Yesterday the president of the University of Oklahoma (OU) expelled two students who had been caught on camera leading a bus full of their fraternity brothers in disgustingly racist song. Despite agreement from all corners that their behavior was worthy of condemnation, legal experts and First Amendment advocates quickly pointed out that, well, um, kicking students out of a public college for something they said almost definitely violates the Constitution.
"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,'" wrote the law professor Eugene Volokh on his blog at The Washington Post. "But there is no First Amendment exception for racist speech, or exclusionary speech, or…for speech by university students that has created a hostile educational environment for others."
As my colleague Robby Soave put it, "You can't expel students at a public university for their words. It's that simple."
This specifically applies here because the University of Oklahoma is a public, state-run entity. Like a teacher at a public elementary school, or a worker at the Oklahoma City Social Security office, OU's president, David Boren, is a government employee. And the government is explicitly prohibited from "abridging the freedom of speech."
In fact, the very purpose of the expulsions was to abridge speech—to make it clear that the language the students used is unwelcome on the OU campus. But if Volokh and the others are right that this is unconstitutional, it's hard to imagine any punishment university administrators could have meted out—demanding a public apology, say, or requiring members of the fraternity to perform community service—that wouldn't have had the practical effect of chilling students' speech, thus leaving the school vulnerable to legal challenge. In other words, public university administrators are toothless—the law gives them few if any avenues for taking disciplinary action against a student for inappropriate speech, no matter how heinous his or her words might be.
Greg Lukianoff, president of the Foundation for Individual Rights in Education and a noted pro-speech activist, offered one alternative: "They have the bully pulpit. Boren absolutely has the right to condemn it," he says. But he maintains that to expel them is "almost certainly unconstitutional."
Is the bully pulpit enough? OU's president didn't think so, and I suspect he's not alone. Shouldn't schools have the right to decline admission to applicants with a record of making inappropriate comments, or to remove individuals who flout the school's rules about acceptable speech? It's reasonable to consult our moral intuitions, and some people's intuitions are likely telling them that there's something wrong with the status quo unfolding before us, in which universities are required by law to take a hands-off approach to students who are caught using racial slurs and making jokes about lynchings.
It's a gut-check that should cause us all to reconsider whether it's a good thing so many of our universities are run by the state.
Private institutions are rightly removed from the constraints that need to be there to keep government, an entity with the tax man, the judge, and the jailer at its disposal, in check. This means private institutions are far freer to decide the best way to address situations like the one in Oklahoma, far freer to take student and faculty perspectives into account when making rules, far freer to experiment with contractual or other arrangements aimed at producing the best possible learning environments, and far freer to change those arrangements when they fail. More private institutions also give students more opportunities to seek out a college committed to the approach to speech that they believe is right—instead of being stuck with one that public universities, hamstrung by their relationship to the state, are necessarily bound by.