Expelling Oklahoma students for racist video is likely unconstitutional

As a public institution, the University of Oklahoma is bound by the Constitution as much as any other entity run by the state, and that means that it can’t punish people solely based on the content of their speech.

At the beginning of the week, the nation was shocked by the release of a video of students from the Sigma Alpha Epsilon Fraternity at the University of Oklahoma reciting chants that were quite explicitly racist. The reaction from university and other authorities was swift and immediate, with the president of the university, former Sen. David Boren (D) of Oklahoma, rescinding the fraternity’s charter and ordering its members to vacate the fraternity house by the end of the day on Monday. Additionally, the head of the national fraternity quickly came forward to condemn the local chapter and rescind whatever remained of its links to the national organization. Then, yesterday, two of the students that participated in the video were summarily expelled from the university, with the possibility that a similar fate could befall other students in the coming days and weeks:

Two University of Oklahoma students who led the singing of a racist chant that was recorded and posted to social media have been expelled.

The students “created a hostile learning environment for others,” a statement from the university read.

University president David Boren made the announcement in a tweet which included a link to a larger statement detailing his reasoning.

The video of the chant has caused a national outcry in recent days.

The video was posted online by a black student group and showed members of the Sigma Alpha Epsilon fraternity singing racist chants that said a black person would never be allowed to join the fraternity.

It also used a racial slur and referred to lynchings.

Mr Boren said that the investigation into the students seen in the video is ongoing, and said: “Once their identities have been confirmed, they will be subject to appropriate disciplinary action.”

Eugene Volokh notes, though, that there is a fairly compelling argument that expelling students from a public university solely because of the content of their speech is most likely not permissible under 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.”

2. Likewise, speech doesn’t lose its constitutional protection just because it refers to violence – “You can hang him from a tree,” “the capitalists will be the first ones up against the wall when the revolution comes,” “by any means necessary” with pictures of guns, “apostates from Islam should be killed.”

3. To be sure, in specific situations, such speech might fall within a First Amendment exception. One example is if it is likely to be perceived as a “true threat” of violence (e.g., saying “apostates from Islam will be killed” or “we’ll hang you from a tree” to a particular person who will likely perceive it as expressing the speaker’s intention to kill him); but that’s not the situation here, where the speech wouldn’t have been taken by any listener as a threat against him or her. Another is if it intended to solicit a criminal act, or to create a conspiracy to commit a criminal act, but, vile as the “hang him from a tree” is, neither of these exceptions are applicable here, either.

In a followup post, Volokh discusses in further depth the kind of speech that might authorize a public university to expel students, and the basic answer is that it would have to constitute speech that constitutes direct threats of violence against others, whether that be other students, faculty members and employees of the university, or simply members of the general public. While the chant that the SAE fraternity brothers were recorded saying is certainly highly offensive and most assuredly racist, it cannot be reasonably interpreted as being a threat of violence. Additionally, as Volokh notes, there is no exception to the First Amendment for so-called “hate speech,” even in a university setting. Given that, and most especially given the summary nature of the the way in which these two students were expelled, it seems quite apparent that the expulsion of these two students based solely on the content of their speech, and, as Volokh notes, it’s clear from Boren’s comments yesterday that this was the sole basis for his decision, raises serious First Amendment issues.

The reasons for this protection would seem to me to be rather obvious. If students can be expelled for “offensive” speech generally, then what’s to stop that rule from being applied to students to express unpopular political opinions or who are critical of some of the ideas advanced by the advocates of political correctness when it comes to issues regarding gender, race, and religion? If the University of Oklahoma were a private university, this wouldn’t be an issue since the First Amendment would not apply to its decisionmaking process. However, as a public institution it is bound by the Constitution as much as any other entity run by the state, and that means that it can’t punish people solely based on the content of their speech.

As Volokh notes, this doesn’t mean that other actions that the university has taken in response to this video are impermissible. Rescinding the fraternity’s charter, for example, seems to be clearly within the discretion of the university, since fraternities and sororities generally operate on campus at the pleasure of the administration to begin with. Additionally, one imagines that the students could be barred from certain extracurricular activities based on what they’ve done here. When it comes to the expulsion, though, it seems fairly clear that the First Amendment, properly understood, means that University of Oklahoma has crossed a line. I have no idea if the students involved in this matter will try to challenge their expulsion in court, but if they do, then it seems fairly obvious that they would have a strong case and that the university should probably think about offering a settlement rather than fighting a battle that they’d be likely to lose.

Doug Mataconis appears on the Outside the Beltway blog at http://www.outsidethebeltway.com/.