No, It’s Not Constitutional for the University of Oklahoma to Expel Students for Racist Speech

Some University of Oklahoma students in the Sigma Alpha Epsilon fraternity were videorecorded singing (as best I and others can tell),

There will never be a nigger at SAE
There will never be a nigger at SAE
You can hang him from a tree
But he’ll never sign with me
There will never be a nigger at SAE

University of Oklahoma president David Boren said, “If I’m allowed to, these students will face suspension or expulsion.” [UPDATE: The president has indeed expelled two of the students.] But he is not, I think, allowed to do that.

1. 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.”

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5. Of course, this just applies to the university. It certainly makes sense that the national fraternity may suspend the student chapter, and that other fraternity or sorority organizations refuse to deal with the chapter (or even its students). {snip}

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Under the First Amendment, though, the government–including the University of Oklahoma–generally cannot add to this price, whether the offensive speech is racist, religiously bigoted, pro-revolutionary, or expressive of any other viewpoint, however repugnant it might be.