No, it’s not constitutional for the University of Oklahoma to expel students for racist speech [UPDATED in light of the students' expulsion]
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Some University of Oklahoma students in the Sigma Alpha Epsilon fraternity were videorecorded singing (as best I and others can tell),
There will never be a nigger at SAE
There will never be a nigger at SAE
You can hang him from a tree
But he’ll never sign with me
There will never be a nigger at SAE
University of Oklahoma president David Boren said, “If I’m allowed to, these students will face suspension or expulsion.” [UPDATE: The president has indeed expelled two of the students.] But he is not, I think, allowed to do 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. The same, of course, is true for fraternity speech, racist or otherwise; see Iota Xi Chapter of Sigma Chi Fraternity v. George Mason University (4th Cir. 1993). (I set aside the separate question of student speech that is evaluated as part of coursework or class participation, which necessarily must be evaluated based on its content; this speech clearly doesn't qualify.) ...
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