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LEGAL VIEW WITH ASHLEIGH BANFIELD

SAE Shuts Down Chapter At University of Oklahoma

Aired March 9, 2015 - 12:00   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.


ASHLEIGH BANFIELD, CNN ANCHOR: Hello, everyone, I'm Ashleigh Banfield and welcome to LEGAL VIEW.

Their fraternity creed is, "the true gentlemen." But video of members of the SAE, Sigma Alpha Epsilon, at the University of Oklahoma posted online on Sunday in 2015 paints the total opposite picture. They are caught on tape shouting the "n" word, singing about it actually, and also singing about lynching. I want to warn you, what you're about to hear is highly offensive. You're about to see a group of white students singing a racist chant gleefully while riding a bus. And I can't stress enough hat what you're about to see and hear is vile and extremely offensive.

(BEGIN VIDEO CLIP)

KIDS (sing): There will never be a (EXPLETIVE DELETED) at SAE. There will never be a (EXPLETIVE DELETED) at SAE. You can hang from a tree, but they'll never sign with me, there will never be a (EXPLETIVE DELETED) at SAE.

(END VIDEO CLIP)

BANFIELD: As you can imagine, this has caused shock waves. And as such, any moment now we're expecting to hear live from the University of Oklahoma president about what happens next. Today just happens to be this fraternity's birthday, Founders Day. SAE's national chapter, however, has already shut down this chapter. That happened right away, in fact, Sunday night. The same day that the video was posted. And nearly to the day of the 50-year anniversary of Selma.

On Saturday we watched these pictures, a much happier scene if you think about it. The president, joining hands with civil rights leaders, marching across the Edmund Pettus Bridge. And, today, outrage that young men who were born not long before the September 11th attacks, just think about how recent that history is, these kids were born just a few years before 9/11 using the kind of language that you heard on that bus. This kind of racism continues to be passed down to the millennial generation it appears.

Miguel Marquez joins me now.

It's astounding when you see it. There's really so little to even try to make sense of here. But what is the university doing?

MIGUEL MARQUEZ, CNN CORRESPONDENT: Well, the reaction has been instantaneous and as complete as it can be at the moment. Students were out overnight. They were protesting this. They held a vigil, black, white and otherwise came together at the university. The university president, David Boren, was up before the sun rose to talk to the media and to talk to students.

BANFIELD: With the protesters.

MARQUEZ: With the protesters. Joined the protesters there.

BANFIELD: Was he alone? Did he have anyone else from the university with him (ph)?

MARQUEZ: Well, he had some folks with him. But he was there basically on his own. He wasn't afraid of these students. He wasn't worried about these students. He wasn't worried about what these students would do. We have a little bit of what he said very early this morning.

(BEGIN VIDEO CLIP)

DAVID BOREN, UNIVERSITY OF OKLAHOMA PRESIDENT: In my mind, you shouldn't have the privilege of calling yourselves Sooners. Real Sooners are not bigots. Real Sooners are not racists. Real Sooners believe in equal opportunity. Real Sooners treat each other with respect. Real Sooners love each other and care for each other like a member -- members of a common family.

(END VIDEO CLIP)

MARQUEZ: Absolutely disrespectful and disgusted he is by what he's seen. He's shut the fraternity house. Says by midnight tomorrow night they have to have all of their belongings out and it's done. The SAE fraternity itself has pulled its charter for at least four years. They also say in their statement there's a possibility it may come back. I don't think anybody is talking about that right now. African-American fraternities and groups - there's a group called Unheard there at the university that is shepherding all of the African-American groups on the university and being the single voice for this. They're not shocked because they say they've seen this happen in other places but they want -

BANFIELD: This bad?

MARQUEZ: They want this investigation to be broad and deep.

BANFIELD: We've got pictures. There are faces. Look, we've blurred out faces.

MARQUEZ: It's disgusting, shocking.

BANFIELD: We don't - we don't know who is in on the chant, who might be disgusted by it. My guess is that the person who's surreptitiously videoing this doesn't like it otherwise the video would be held up high. But we do see some people. Do we know if they've been pinpointed? Have they been expelled? Have they been brought out to light? MARQUEZ: This is -- two things have already happened. The - the

fraternity itself looked into it, figured out who those members were and pulled the charter very quickly. Absolutely sure that this is SAE. The university is now trying to figure out that exact question, who was in that bus. But the black groups there on the campus, they want it broader. They said, this is the tip of the iceberg. This is -- when you start to scratch below the surface, you will find this sort of behavior amongst fraternities and other places widespread.

BANFIELD: So, as Miguel just said, the fraternity has been working overtime to try to fight the stigma of what some people say SAE should really stand for and this - you've been talking about just today's incident. But there have been a lot of bad behavior at this - throughout this fraternity.

There are women and others who say that SAE should really stand for sexual assault expected because of some of the bad behavior in the past. Incidents that have been documented. It's had to tackle numerous violations as well for alcohol and for hazing. SAE has 219 chapters, 20 colonies awaiting official recognition to become a chapter.

And since 2006, according to Bloomberg, at least 10 members of this frat have died in alcohol hazing or drug incidents at some kind of SAE event. That is more than any other fraternity across the country. In 2006, pledges at the University of Texas were allegedly shocked with cattle prods, beaten with pieces of bamboo, forced to binge drink and burned with hot clothes irons.

In 2008, a student at California Polytechnic State University died of alcohol poisoning at an initiation ritual. Bloomberg says the family sued SAE members for negligence and settled for at least $2.4 million. And in 2009, a student at the University of Kansas died, also, you guessed it, excessive alcohol consumption.

Same thing happened again in 2011, Cornell University. Not finished, 2012, former Salisbury University freshman told police he was kept in a dark basement for many hours without food, water or bathroom breaks, all part of a hazing ritual that got the chapter suspended through the spring of 2014. That would be last year. And this is 2015 and we see what we saw.

For the legal view, I want to bring in some experts here. HLN legal analyst and defense attorney Joey Jackson and CNN legal analyst and defense attorney Danny Cevallos.

You know, guys, what makes this country great is free speech and sometimes what makes us show our awfulness is free speech. Ultimately, though, a lot of people were asking questions this morning, what can be done about this? What can be done, legally speaking, about this? And the answer is?

DANNY CEVALLOS, CNN LEGAL ANALYST: What should be done, really? First you saw - Miguel told us about students marching, they're protesting, they're exercising that cherished free speech right to make a demand. And that demand is to suppress someone else's free speech. Now, is a word like this free speech? Courts have grappled with this

and the university should be not too hasty in responding because to be fighting words, the actual word has to be directed at the person. There is no free - there is no free speech -- I'm sorry, there's no prosecutable speech if you're sitting in your dorm room and you said the nastiest of words. So the question will ultimately be, was this a fighting word in that it was directed at a particular person?

But the thing is, do we really need the university to get involved? The First Amendment has its own built in penal code. It's called being held up to ridicule. These people, whoever said these words, and I'm sure we'll find out who they are, are going to be damaged maybe for life. Do we really want to say off with their heads? They're students, they're young, they make dumb decisions. Do we want to institute - do we want to institute a university proceeding and bring up a university policy that may ultimately be ruled unconstitutional because other policies have been ruled unconstitutional here.

BANFIELD: Well, that's a great - that's a great point. So the point is great.

JOEY JACKSON, HLN LEGAL ANALYST: All right, let's -

BANFIELD: You go after them the way, you know, conventional wisdom would success, punish, punish, punish, but could it come back at the university because this is free speech?

JACKSON: First things -- let's talk about first thing first. We'll unpack the hate speech, whether or not it has social value to be using that word. But let's take a step back momentarily.

First of all, operating a fraternity or sorority, and many do wonderful things on campuses, but operating on that campus, it's no - it's not right to do so, it's the privilege. And when you start espousing things that are contrary to a university's view, to other students' view and that could be hateful and certainly insulting, and not only Miguel and his work up to this, you know, addressed what African-Americans are doing about this, I think you're going to see in unison, not only African-American fraternities, but fraternities of all nationalities, racism, religions uniting to say that this is hurtful.

Now, beyond that, Ashleigh, let's understand what we're talking about. We're not talking about isolated words in which someone, you know, carelessly throws around a word. We're talking about a song. Songs need to be choreographed. They need to be developed. There needs to be a hymn. This is apparently something that goes to the culture of what they're doing. We saw it on that videotape. And so before we talk about hate speech, whether or not it rises to the level of, you know, communicating hate and social value, is there eminent lawless action, we could talk about Supreme Court standards, but we first have to talk about how a sorority or fraternity gets to operate. And if they violate that privilege by engaging in acts like this, which are offensive and certainly abusive to all concerned, then that privilege should be revoked. It has been revoked. You ask about the action that's being taken. The university is taking it and the students collectively are taking it right now.

BANFIELD: (INAUDIBLE).

CEVALLOS: And Joey -- Joey mentions - mentions the word song, and that amps it up to another level because, yes, it's a song, yes it has to be rehearsed, just like many other songs that we all buy CDs of that have that word many, many, many times. Listen, this particular word, and we all know the word I'm talking about, has an odd place in our Constitution. It's a word that some of us can never say, but others of us can put on a record album and it's entirely OK. I don't know what the answer is, but it is an unusual word because it's unlike any other word in our free speech context.

JACKSON: (INAUDIBLE) -

BANFIELD: But I think you're -- you're both right about the free market stepping in here. The free market on consequences for your actions. Sure, you could say what you want in the United States and you can also deal with what your neighbors do afterwards.

CEVALLOS: Definitely.

BANFIELD: Guys, hold on for just a moment, if you will, because we're still waiting for that live news conference, the president of the University of Oklahoma expected to speak shortly about this. We're just waiting on this. They're just testing the mics. But clearly within about, what, a day or so they are trying to get ahead of this and they are trying to handle it. Will that happen? We're going to wait to see. We're going to take you there live.

Also in the news, a policeman shoots and kills an unarmed teenager and protests and rage quickly follow. If it sounds familiar, this time it's in Wisconsin, but the case isn't quite like the others.

(COMMERCIAL BREAK)

BANFIELD: We want to break in live with the University of Oklahoma president, David Boren, who has just began speaking.

DAVID BOREN, PRESIDENT, UNIVERSITY OF OKLAHOMA: And we're - we're going through the learning process right here. And that is, wherever we are, whether it's in casual conversation or in other activities, anytime there are racists remarks made, we must speak up as Americans if we're going to put an end to this kind of nonsense all across the country. And by taking a zero tolerance policy here at the university, and by making it clear we won't tolerate this, these people, as I said this morning, don't deserve to be called Sooners. They're misusing our names.

Sooners are not racists and bigots, Sooners are people that believe in respecting each other and helping each other and caring for each other. We're a real community. And I said one of the things that breaks my heart about this is that we have so many students - and you saw many of them this morning, some were there last night at a prayer circle - who condemn this kind of activity. These - these value are not our values. We're different kinds of

people. And, really, it's very hurtful to think that our community, which is so strong and so positive in so many ways, is being held up by a few people. And I will just say, it will not be tolerated. That is why that house is immediately closed. That is why those young men will have to have their belongings out of that house by midnight tomorrow. And as they pack their bags, I hope they think long and hard about what they've done. I hope they think long and hard about how words can injure and hurt other people.

This is not our way. These are not our values. This is not who we are and we won't tolerate it. Not for one minute from anybody. So, those students will be -- will be out of that house by midnight tomorrow night. The house will be closed. And as far as I'm concerned, it won't be back, at least not while I'm president of the university. It's not going to come back. It's time we send messages that are very strong and very clear.

So, again, I want to commend our students. They're the 99 percent of the great citizens of this university. Our faculty, our staff and, above all, our students who've stood up and spoken out for our real values and I really appreciated those who came this morning and did just exactly that. They have my full support. And we are just not going to tolerate this kind of thing at the University of Oklahoma.

I will tell you, I don't really have too much more to tell you other than what I said today. Obviously, the video was taken by certain individuals, people that didn't, I believe, agree with what was going on. Our students didn't agree. And I'm very proud of the fact that they've helped expose this kind of activity so that we can know about it and so that we can take action. And then I think the only way to keep faith with our students is to take this kind of action. So I view it this way.

This is, to me, it's heartbreaking. I think it's heartbreaking for every member of this community. The upstanding, right thinking members of this community, the 99 percent, that 1 percent of people through their bad behavior could cast this whole institution in a bad light.

We are - in addition to what I said this morning, I've had our legal staff looking at this. I've had also our EEOC people looking at this. And we will - we are commencing an investigation, not only of the chapter, because that action has already been taken about the chapter, we know enough to have closed the chapter immediately. And - but we are also going to look at any individual perpetrators, particularly those that we think have taken a lead in this kind of activity.

And we have - we have a student code which prevents discrimination of any kind. It prevents those who would create a hostile environment for the education and learning by our students and it's based upon Title Six of the Civil Rights Law of 1964. So we're examining and we are - we are investigating at this point in time whether we will be able to take any individual action against students. Evidence has to be collected. That process to stay in constitutional muster must be very carefully directed. And so we are - we are with great care, we're conducting an investigation that is appropriate into the individual actions of the students so say - see if we can take additional action against those individual student leaders who were most involved in this incident, in addition to taking action against the chapter of the fraternity itself.

I think that's ongoing. I don't expect that to be something that we can come to conclusions about instantly. I think it's going to take some time. It's going to, as I say, requires great care. And -- but we - we are conducting an investigation into individual behavior as well as chapter behave.

So, with that, I would be happy to - it's a little blinding here but I'll do my best to see you.

Yes.

QUESTION: (INAUDIBLE) when I talked to you this morning you said that you didn't know - you didn't (INAUDIBLE) if you all --

BOREN: Right.

QUESTION: (INAUDIBLE) at the university (INAUDIBLE) -

BOREN: Right.

QUESTION: So now you all (INAUDIBLE) if there might be a way for that to happened?

BOREN: There might be. Under Title Six of the 1946 Civil Rights Act and our nondiscrimination policy at the university is based on the requirements of Title Six. And this morning I couldn't tell you that off the top of my head. I have legal staff working on this, as well as our EEOC staff and others that are working on this. So we're investigating that. And there is - I told you this morning I wasn't sure. I'm still not exactly positive, but I first thought there was not a way we could. Now I think there is possibly a way because obviously some of those who took leadership roles in orchestrating a chant, pushing forward the chant, engage in this activity which clearly is harassing on our community and disrupting our educational experience. And under the Civil Rights Law, it may be possible for us to take action against certain individuals.

QUESTION: One other thing I wanted to ask you, President Boren.

BOREN: Yes.

QUESTION: (INAUDIBLE) talked to one of the members of Unheard (ph) this morning.

BOREN: Yes.

QUESTION: (INAUDIBLE) she expressed to me that they were really hoping that there are (INAUDIBLE) to any student activity that (INAUDIBLE). I don't know if (INAUDIBLE) -

BOREN: Well, that - they are banned as members of SAE from -

QUESTION: (INAUDIBLE).

BOREN: From doing anything that has to do with - I don't know that -

QUESTION: How about a basketball (ph) game (INAUDIBLE).

BOREN: I don't know that we can - at this point in time, it takes a tremendous amount of work through the federal process for us to ban them from going to activities unless, let me say, we will look at all possible punishment and what is available to us under the law. And I have to say, we don't know yet. But I would say even up through and including expulsion, which is the ultimate ban on all student activities or any activities. So it may be possible that some of those who are most responsible for the activity, once we establish a chain of evidence and once we get legal precedents, might be held fully accountable even to that extent.

BANFIELD: The president of Oklahoma University, David Boren, now addressing questions from the audience after giving an unprepared speech, remarks this morning he never thought he would never have to make this Monday morning about some vile incident on a bus in which terribly racist language was chanted among students who were on their way to what looked like a pretty fancy party. Perhaps the headline coming out of this, not only have they closed that chapter of the Sigma Alpha Epsilon fraternity on the campus of Oklahoma University, but they have also announced that they will be continuing the investigation into the individual actions of those who were identified on that video.

And that brings me to the topic of video. You've probably been seeing the same small portion of video playing over and over again since it surfaced Saturday. And now we have yet another piece of video from that bus. I want to play this for the first time now.

(BEGIN VIDEO CLIP)

KIDS: You can hang them from a tree, but they'll never sign with me. There will never be a (EXPLETIVE DELETED) at SAE. You can hang them from a tree, but they'll never sign with me. There will never be a (EXPLETIVE DELETED) at SAE. You can hang them from a tree, but they'll never sign with me. There will never be a (EXPLETIVE DELETED) at SAE.

(END VIDEO CLIP)

BANFIELD: Well, if he wasn't identifiable before, the leader of that chant is certainly identifiable now. But you already heard the president of the university suggest that there will be a heavy investigation looking at all possible punishments, including the ultimate punishment from that university which is expulsion.

One other key piece of information from that news conference that President David Boren just gave ad hoc is that they will not only be closing that chapter and that house, and by midnight tomorrow night all of the occupants of that house had better get their things out or contact the deen, but he also said these words, "they won't be back. Not at least while I'm president at this university." I want to bring back in my panel to discuss this. Look, we've just got another angle, guys. We've now heard what the president has said about this. He talked about legal action.

Joey, but, again, legal action is pretty constrained when you're talking about the president of a university.

JACKSON: Well, I don't know. And here's why I say I don't know about it being constrained, because understand a few things. Number one, attending a university, it's not your right to be there. It's a privilege to be there. There is a student code of conduct that you need to abide by. If you don't, you're gone. Operating a university in a university setting, an fraternity, a sorority, again, it's a privilege to do that. And so when you espouse views that are so contrary to what the university stands for, we could talk about Title Six for sure, which prohibits any type of discrimination if you're receiving any type of federal funding. He alluded to it, that is the president, in his remarks. But before you even get there, you get to something basic, and that is, it's not an individual right to be there. And as a result of that, if you act in a contrary way, you're pulled right out, period. Period.

BANFIELD: It's a university law, but it's not criminal law.

Miguel Marquez, you've been watching this story and you've been watching the social media reaction to this story. I expected that you were going to come up on this set and tell me how disgusted people were, that people were echoing what those protesters were echoing, what the president was echoing, that this will not stand, we have zero tolerance.

MARQUEZ: Right.

BANFIELD: That's not what you're seeing.

MARQUEZ: Well, in many places we are seeing that. But on a - on a social media site called Yik Yak (ph), which is location based, so you can only see it where you happen to be, and it's anonymous, so I can tweet about you or Yik Yak about you -

BANFIELD: Anything goes.

MARQUEZ: Anything goes. There are people who are taking the side of those singing. There are racist comments being made on that. But there's also something else that's interesting that's happening on that site. And these are students telling us this, that they are seeing this on their Yik Yak feed at OU right now. There are those who are saying things like that that song, which is put to the song of "If You're Happy and You Know It Clap Your Hands," in such a disgusting version of it, one person adding on Yik Yak, "it's taught by essentially every SAE chapter and it's explicitly accepted by the national chapter. We are just stupid enough to get caught up."

BANFIELD: What? Now, let's - let's be clear, this is some anonymous poster -

MARQUEZ'S: This is anonymous. This isn't -

BANFIELD: Who's not speaking for the national chapter.

MARQUEZ: Not - not -

BANFIELD: Yes.

MARQUEZ: Speaking for the national chapter. But then you have others saying they have other racial incidents at OU that they want to now put up on the social media. I've spoken to students --

BANFIELD: Are they saying OU or are they saying SAE?

MARQUEZ: That - at OU, other fraternities at OU where they've seen this sort of behavior occur. I've spoken to students this morning who say, look, this is not new to us. We're not shocked by this. You go to a party at the university and if you're black, you are singled out as soon as you walk in. There are certain things that they have all seen, that they all have in common that make this video sadly not shocking to them at all.

BANFIELD: OK, I'm 47 years old and I went on a lot of party buses when I was in college and never saw anything like this. Granted I'm from Canada. But I never saw anything like this. And my morning meeting, with all of the staff that works on this show said the same thing.

Danny, you're not far off from my age either. I mean what -- this is 2015.

CEVALLOS: It's shocking. Well, we shouldn't be surprised that anonymity leads to racism. I mean anyone who reads the comments on any - on any website.

BANFIELD: I'm shocked at the bus. I'm shock that that happened.

CEVALLOS: Well, let's talk about the bus. Yes, let's talk about the bus because, you're right, and Joey brought up a good point, the fact that this song has been around and taught suggests that there is some sort of bizarre tradition with songs like these. But, look, this is from -- I'm paraphrasing from the University of Oklahoma's policy on abusive conduct. And it is defined as "unwelcome conduct," which suggests that it must be directed at somebody, "that is sufficiently severe and pervasive.' And it goes on to say that isolated incidents will not qualify unless they're sufficiently serious. So, this could go either way.

BANFIELD: Wow.

CEVALLOS: Joey, I see what you're saying.

BANFIELD: Wow.

CEVALLOS: It could go either way. And the pervasiveness may be defined by the fact that while this may be a song that someone has other evidence that it's gone on in other places. So that is going to be an interesting -- but make no mistake about it, this is, as all university speech codes are, ripe for a constitutional attack.

BANFIELD: That's incredible. And, you know what, we do have to say, there is one thing that the president pointed out, he was proud of those who helped to expose that. He was alluding to the fact there were people on the bus who were not in cahoots with this, who did not appreciate this, who were in that group that found that offensive personally.

CEVALLOS: Of course.

BANFIELD: And ultimately decided to out that. That may just be the lynch pin in this making a case.

JACKSON: It may be. But the problem is, is that you have a fraternity as an organization who appear to be suggesting that this is the norm to them.

BANFIELD: Well -

JACKSON: In other words, we're not inviting people like this, the "n" word in, and saying all other types of derogatory things. And so you have to wonder --

CEVALLOS: The "n" word may ultimately be the least offensive part of that song when you think about it.

BANFIELD: Yes.

CEVALLOS: I mean there's violence in it and there's exclusion. So there could be - because of that --

JACKSON: That may be the fact that you are connected with the "n" word.

CEVALLOS: Correct. But the son -

JACKSON: Absolutely the violence, but it goes to the single issue of a racial group being singled out.

CEVALLOS: Right.

BANFIELD: I have - I have to wrap it there, guys. Miguel, let us know when you find other developments on this story.

MARQUES: We'll do.

BANFIELD: I know you'll be working this all day long. It's extremely -- again, I can't stress it enough. It's 2015. These kids were born just before 9/11. And they think this is OK. Continue to follow this on CNN.

In the meantime, a policeman shooting and killing an unarmed teenager and the protests happened quickly. So we're going to outline exactly what happened and where this case may go from here.

(COMMERCIAL BREAK)