Balancing the First Amendment vs. racist chants at the University of Oklahoma

University of Oklahoma President David Boren has expelled two members of the Sigma Alpha Epsilon fraternity on his campus for leading a horrifying racist chant. Does his decision violate their First Amendment rights? And if it does, what's wrong with this picture, in which a public university wouldn't be able to sanction students who not only bar blacks from their organization, but also refer to lynching in the process?

A public university is bound by the First Amendment because it's an organ of the state. Admittedly, there is something weird about this fact, because a public campus isn't inherently different from a private one with respect to educational function and goals. Some strange free-speech anomalies can arise from treating a university like the government. For example, professors sanction speech based on its content all the time, by grading wrong answers lower than right ones. But usually free speech bars such content discrimination.

Discipline is another anomaly. A university is meant to be a community of learning, and making such a community work requires rules of decorum that are more restrictive than those that should apply in the public square. The First Amendment generally guarantees us the right to yell, scream, insult, offend, condemn and denounce. None of these forms of speech belong in the classroom, and few belong on a well-functioning campus.

In a perfect world, there might be a broad First Amendment exemption for public campuses. But there isn't so Boren's decision has to be judged by First Amendment standards.

Applying ordinary free-speech doctrine, the expulsion looks unconstitutional, as professor Eugene Volokh has pointed out. Racist speech is still protected speech under the First Amendment, no matter how repulsive. The fraternity can be banned for race discrimination, which is prohibited conduct. Speaking in favor of discrimination, however, is generally protected.

But Boren's explanation for the expulsion rests on a different theory. He said specifically that the students were being expelled for their "leadership role in leading a racist and exclusionary chant, which has created a hostile educational environment for others."

The important words here are "hostile educational environment." Under federal anti-discrimination law, as interpreted by the Department of Education, a university has an affirmative duty to guarantee students an educational environment in which they are free of hostility based on race or sex.

You may have heard about this principle in connection with Title IX, which prohibits discrimination based on sex. The law has similarly been interpreted by the Education Department to require universities to protect students against a hostile educational environment based on sex discrimination, including sexual harassment.

In the business context, the analogy would be to an employer's obligation to protect against a hostile workplace environment.

So Boren was saying that the students are being expelled not for their opinions per se, but because their speech was a form of discriminatory conduct that would create a hostile educational environment for black students. Given that the speech was literally designed to inculcate the value of racial discrimination by making pledges recite their commitment never to admit a black member to the fraternity, this conclusion seems plausible. Removing the chant leaders from campus is aimed to fulfill the educational goal of creating a nonhostile educational environment.

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Balancing the First Amendment vs. racist chants at the University of Oklahoma