2 students are expelled over racist frat video; is ouster a First Amendment violation?
University of Oklahoma President David Boren announced on Tuesday that two students have been expelled for an alleged leadership role in a video of fraternity members singing and chanting a racist song.
In a press release posted on Twitter, Boren says he acted because the two students had “created a hostile learning environment for others” through their leadership role. CNN and USA Today are among the publications covering Boren’s announcement.
The video showed Sigma Alpha Epsilon members on a bus repeatedly chanting, “There will never be a n—– SAE. You can hang him from a tree, but he can never sign with me. …”
Boren noted a legal concern, according to the CNN report. “Legally, our concern is we have to demonstrate exactly how the educational experience of our students was threatened or disrupted by their actions,” Boren said, “and it really has to focus on the students on the bus. Did the other students have their educational experience disrupted?”
One law professor is raising questions about a possible constitutional violation. Writing at the Volokh Conspiracy, University of California at Los Angeles law professor Eugene Volokh says racist speech is constitutionally protected. “There is no First Amendment exception for racist speech, or exclusionary speech, or …. for speech by university students that ‘has created a hostile educational environment for others,’ ” Volokh says.
The reference to a lynching doesn’t lose constitutional protection, Volokh says, unless it is likely to be perceived as a true threat of violence.
The university does have the right to demand that groups receiving its benefits refrain from discrimination in admissions, but a discussion advocating discrimination probably isn’t enough to constitute a violation, Volokh says.
