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 this violate their First Amendment rights?
If it does, what’s wrong with a public university sanctioning students who not only chant that they bar blacks from their organization but 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, 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.
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Discipline is another anomaly. A university is meant to be a community of learning, and making it 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.
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.
The law doesn’t ban speech; it bans the act of discriminating. And when laws are aimed at conduct that incidentally burdens speech, the courts don’t subject them to the same strict scrutiny they apply to laws directed primarily at speech.
That’s what’s going on in Oklahoma. The university is enforcing the legal requirement of a nonhostile educational environment by barring racially hostile conduct.
This was not just a speech in favor of racism. The chant was trying to create an atmosphere of racial exclusion in the fraternity and hence on the campus.
But if you’re still a little uncomfortable with the reasoning, that’s probably a good thing, too. Taken to extremes, the doctrine of the hostile educational environment could be used to limit academic freedom.
After all, professors need to teach students about all sorts of uncomfortable facts and all kinds of nasty opinions — and students need to understand them.
If the world of facts and ideas is treated as itself hostile, we’ll end up with a milquetoast curriculum, completely unsuited to our decidedly un-milquetoasty world.
The balance between a civil educational community and academic freedom is subtle and difficult. But the First Amendment should be read to allow universities like Oklahoma to find that balance for themselves.
Noah Feldman is a professor of constitutional and international law at Harvard.