Yes, University of Oklahoma, Even Racists Have First Amendment Rights

This week, University of Oklahoma President David Boren acted to expel students involved in a racist chant sung to the tune "If You're Happy and You Know It":

There will never be a ... SAE
You can hang 'em from a tree
But he’ll never [inaudible -- possibly "sign"] with me
There will never be a ... SAE.

Boren justified his action in a letter:

"This is to notify you that, as president of the University of Oklahoma acting in my official capacity, I have determined that you should be expelled from this university effective immediately," Boren said in his expulsion letter to the two students, which was obtained by local news media. "You will be expelled because of your leadership role in leading a racist and exclusionary chant which has created a hostile educational environment for others."   

Boren is apparently basing his authority, indeed his duty, to take action on Title VI of the Civil Rights Act, which bans racial discrimination at institutions receiving federal money, institutions like the University of Oklahoma, a state university.

The problem is that as a state university, Boren has to comply with the First Amendment.  The Constitution trumps federal law when there is a conflict.  The First Amendment has been held to
protect racist and offensive speech. 

Several constitutional law experts weighed in this week, with the overwhelmingly majority finding a constitutional violation.  The Los Angeles Times reported on some of those experts:

Joey Senat, an associate professor who teaches media law at Oklahoma State University in Stillwater: "I believe these students -- under Supreme Court rulings on 1st Amendment for college students -- would have the right to say the very same thing on the library lawn, so to speak. ... The speech is offensive, the speech is abhorrent, but the 1st Amendment protects unpopular speech."   

Robert D. Nelon, an Oklahoma City attorney with the Hall Estill law firm who handles media law: "This is a close case. Perhaps the university has gone a little further than the Constitution would permit in expelling the students. It may be the university would be better in tune with the Constitution if they took to the public forum like President Boren did yesterday and expressed publicly their outrage and meet speech with speech rather than expelling the students."

Erwin Chemerinsky, 1st Amendment law professor and dean of the UC Irvine School of Law: "What can be punished is if it could be shown the speech was threatening to another [person]. There’s no right to engage in speech that reasonably causes another to fear for his or her safety. ... [But] it can’t be said that this speech was a threat to somebody. I find this horribly offensive, but I don’t see why this isn't speech protected under the 1st Amendment."

Joe Cohn, legislative and policy director of the Foundation for Individual Rights in Education, a student legal advocacy group based in Philadelphia: "The school's a public university. At public universities, the 1st Amendment applies in full force. ... The Supreme Court has said repeatedly that speech, even racist speech, is protected under the 1st Amendment. They have never shied away from that. ... Just because a speech is racist doesn't remove its protection." 

UCLA Constitutional Lawyer Eugene Volokh and blogger also chimed in:

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....

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.”

3. 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. Another is if it intended to solicit a criminal act, or to create a conspiracy to commit a criminal act, but, vile as the “hang him from a tree” is, neither of these exceptions are applicable here, either.

4. Given the president's letter, it's clear that the students are being expelled solely for their speech..."

The sad reality though, even though President Boren probably violated the students First Amendment's rights, he probably can get away with it because the students cause would be so politically unpopular if they dared sue.  Too bad.  It could have been such a teachable moment for the University, an opportunity to educate students about racism and constitutional rights.