Lowering The Boomer, Sooner

University of Oklahoma President David Boren has chosen to expel two of the students involved in this week's display of a campus fraternity's viral video of racism.  The question becomes "can a public, taxpayer funded university expel students over racist speech"?  Eugene Volokh says it's a clear violation of the First Amendment.

First, racist speech is constitutionally protected, just as is expression of other contemptible ideas; and universities may not discipline students based on their speech. That has been the unanimous view of courts that have considered campus speech codes and other campus speech restrictions — see here for some citations. The same, of course, is true for fraternity speech, racist or otherwise; see Iota Xi Chapter of Sigma Chi Fraternity v. George Mason University (4th Cir. 1993). (I set aside the separate question of student speech that is evaluated as part of coursework or class participation, which necessarily must be evaluated based on its content; this speech clearly doesn’t qualify.)

UPDATE: The university president wrote that the students are being expelled for “your leadership role in leading a racist and exclusionary chant which has created a hostile educational environment for others.” But there is no First Amendment exception for racist speech, or exclusionary speech, or — as the cases I mentioned above — for speech by university students that “has created a hostile educational environment for others.”

Scott Lemieux agrees with Volokh on this question.

It’s a public university, racist speech in itself is protected speech, and I don’t know what exceptions would apply here.

It’s a moot point, but I’m less convinced that the university would be prevented from decertifying the fraternity (although I’m not saying Volokh is wrong about that either.) But it seems to me that expelling the students for this (absolutely indefensible and disgusting and racist) language violates the First Amendment. I can understand why Boren reacted so forcefully and he’s justified in harshly condemning the speech, but I don’t think this is the right remedy.

Completely not a lawyer (both Volokh and Lemieux are) but the Supreme Court made it pretty clear a few years ago that vile speech is protected under the First Amendment when the Westboro Baptist Church successfully sued for their right to protest military funerals in 2010.  The Roberts Court heard another case on vile speech, this time involving internet threats, back in November, and a decision on that is expected this spring.

I hate it but the Constitution and the courts have been very pointed on this.  The government can't stop you from being a racist asshole.  Private entities can surely level consequences against you, but the speech itself (and Boren makes it clear that it's the speech itself the students are being expelled for) is protected from government action.  These students have a compelling case, and I'd expect some hefty legal action against the University of Oklahoma that the courts will support.

There's another question of whether or not the fraternity can discriminate against black students, but again that's a separate battle and the courts have generally sided with universities that the action of discrimination by Greek organizations against students is wrong and that public universities don't have to tolerate it.  But the main issue is about free speech on a taxpayer-funded public university campus, and I don't see how the University of Oklahoma wins this one.

It was a stupid move, long-term.