Congratulations University of Oklahoma: In Your Outrage You Just Violated the Law
This week several University of Oklahoma frat boys were caught on tape singing a vile, racist song (and, no, it wasn't "unconscious" racism or "coded" racism — it was straight up segregation-era hate). The video triggered a tidal wave of outrage on and off campus. A top football recruit "de-committed" to OU and committed to Alabama, the national fraternity expelled the local OU chapter, and students, coaches, professors, and administrators marched in protest.
To this point, the matter is rather simple. The SAE students engaged in racist expression, and private citizens countered with expression of their own — doing what the marketplace of ideas does best, countering bad speech with better speech.
Then, the government got involved. OU president David Boren has summarily expelled two students allegedly responsible for the chant.
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I agree with Eugene Volokh. This action is almost certainly unconstitutional. I'm not going to repeat his entire analysis, but his first point should be sufficient:
[R]acist 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.)
Our public universities are becoming national leaders in trampling the Constitution to legislate their brand of "inclusive" morality. FIRE's Robert Shibley gets the issue exactly right:
Censorship isn't necessary for those who are confident in the truth of their views. It's a signal of insecurity and displays a fear that if an idea is allowed to be expressed, people will find that idea too attractive to resist. Somehow, college administrators are convinced that if they don't officially punish racism, their students will be drawn to it like moths to a flame. But there's simply no reason to expect that. Given the history of campus activism in our nation from the civil rights movement onward, there are myriad reasons to expect the opposite.
Instead of government crackdowns on a viewpoint, it is far better to let the marketplace of ideas determine the social consequences for racist speech. In this instance, the OU members of SAE are not only likely to spend the rest of their college careers as pariahs but to be hounded to the ends of the earth on social media and exposed for posterity on Google.
When I was at FIRE I fielded a call from an angry administrator demanding to know what he could do to "take action" after a handful of Klansmen posted racist flyers on a community bulletin board. He forwarded the flyers, which were full of typos and barely legible. I asked him whether he thought his students would be persuaded by this nonsense or would use it as an opportunity to express their support for their African-American brothers and sisters. The latter, he said, and he explained the groundswell of student expression in response. "There's your 'action,'" I told him. Let the students send their own message. If the Klan wants an argument, it will lose.
I hope these students find the courage to sue — not because anyone agrees with their words but because the First Amendment needs a defense. They said terrible things, but they did not violate the law. Ironically, the only lawbreaker here is a university so incompetent that it created First Amendment martyrs out of students who redefine the word "crass."
This column was originally published at National Review.
