The Constitution steps in

But it’s unconstitutional for the University of Oklahoma to expel students for saying racist things, some people in the Law Community are saying. Eugene Volokh says 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.

If that’s true, it seems problematic. Places where people have to work closely together need to be able to regulate the extremes of how those people treat each other. To put it crudely, bullying can make group life hell, so people in charge need to be able to regulate bullying.

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.”

Then I guess I think there should be, for the reasons given.

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.”

I’m not crazy about that “just because…” It’s easy to brush off threatening language that isn’t addressed to you or people like you. I don’t like that “just because” in reference to chants about lynching.

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.

Oh is that so? How does Volokh know that? I don’t know that, so how does he? I’m very damn sick of people who are immune to that particular kind of threat dismissing and belittling it as no big deal.

Time has a piece on the question.

The University of Oklahoma’s decision Tuesday toexpel two students who played “a leadership role” in singing a racist chant that went viral after it was caught on video may assuage critics. But civil liberties experts say it could also be unconstitutional.

“The impulse to expel is understandable, but the decision is on constitutionally questionable ground,” said Ken Paulson, the President of the First Amendment Center and Dean of the College of Mass Communication at Middle Tennessee State University. “A public university is subject to the free speech guarantees of the First Amendment and may not punish students because they hold offensive views.”

A public university, he stipulates – Volokh didn’t limit it that way, but said “universities may not discipline students based on their speech” without limiting it to public universities.

Private institutions like private colleges or the national Sigma Alpha Epsilon fraternity have wide leeway to discipline or expel students for racist speech if it violates their codes of conduct. But the University of Oklahoma is a public research university, and civil liberties groups say it should be treated as an arm of the government.

So apparently Volokh is reaching farther than those civil liberties groups.

The video and Oklahoma’s response are part and parcel of a tension between freedom of speech and hostile educational environments that has been mounting in higher education for several months. Last spring, students at Smith, Rutgers and Brandeis succeeded in driving away graduation speakers who had held views students found offensive.

Well, “hostile educational environments” and “found offensive” are not the same thing, although there’s overlap. I do think that chant went way beyond merely “offensive” and into the middle of hostile educational environment.

“Universities are one of the primary battlegrounds for learning about free speech and understanding how to combat bigotry,” Ryan Kiesel, the executive director of the American Civil Liberties Union in Oklahoma, said in a statement that neither condoned nor condemned the expulsion. “The best antidote to hateful speech is the exercise of peaceful speech in return.”

It might be true that it would be better not to expel the students but to give them some heavy duty peaceful speech in return, instead. But as a matter of principle I don’t think public universities should be banned from ever expelling students for speech. I can agree it should be rarely used, but not never. But I’m not a lawyer, so my view on the subject is just that.


  1. Stan Murch says

    “How does Volokh know that? I don’t know that, so how does he?”

    It’s understandable you can’t tell what a true threat is, since a true threat is legally defined as being how a reasonable person interprets a communication.

  2. Pierce R. Butler says

    I feel a strange urge to break into chants for the blood of anyone abusing the works of Donald Westlake!

  3. iknklast says

    Wasn’t there a case a few years ago where the courts upheld the right of a public school not to support a club that had excluusionary policies? (I think it was a Christian club that excluded gays, but I may be rememering that wrong). If they were serious about there chant that no black people could get into their frat, and if it was demonstrated that they excluded people based on their skin color, then they might have plenty of right to disassociate with them.

  4. Trebuchet says

    If that’s true, it seems problematic. Places where people have to work closely together need to be able to regulate the extremes of how those people treat each other. To put it crudely, bullying can make group life hell, so people in charge need to be able to regulate bullying.

    There’s a huge constitutional difference between private workplaces, or probably government workplaces, regulating speech within their environments and a state (and federally) supported university doing it. The first ammendment doesn’t apply to the former. The university was well within in rights to close down the frat house, but expelling the students — I think not so much.

  5. A Masked Avenger says

    I do find legal sanctions against hate speech to be problematic, because I consider advocacy of the Gulf War to be hate speech, for example. But I admit that it’s impossible to discuss military action if those in favor are legally prevented from speaking, even though they will frequently be guilty (in my book at least) of hate speech.

    At the other end of the spectrum, threats are obviously and always a crime.

    The challenge is in drawing the line. Wherever you draw the line, someone will come right up to it without crossing it, and we’re sure to find that person pretty reprehensible. Because morally, they will have crossed the line; they’ll just be adjusting their behavior in order to remain out of the reach of the law.

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