海角大神

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,聽rescinding the fraternity鈥檚聽charter and ordering聽its members to vacate the fraternity house聽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,聽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:

Eugene Volokh聽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:

In a followup post, Volokh discusses in further depth聽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 鈥渉ate speech,鈥� 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鈥檚 clear from Boren鈥檚 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 鈥渙ffensive鈥� speech generally, then what鈥檚 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鈥檛 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鈥檛 punish people solely based on the content of their speech.

As Volokh notes, this doesn鈥檛 mean that other actions that the university has taken in response to this video are impermissible. Rescinding the fraternity鈥檚 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鈥檝e 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鈥檇 be likely to lose.

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