The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
University of Oklahoma President David Boren has expelled two students for leading a racist chant. These students' speech was indeed quite repugnant, but for reasons I discuss here, it's protected by the First Amendment.
And here's one reason why. Consider the president's statement to the students: "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." Similar things could be said about a vast range of other speech.
Students talking to each other about a student group event about how Hamas has it right? (The Charter of Hamas, recall, expressly says, "The Prophet, Allah bless him and grant him salvation, has said: 'The Day of Judgement will not come about until Moslems fight the Jews (killing the Jews), when the Jew will hide behind stones and trees. The stones and trees will say O Moslems, O Abdulla, there is a Jew behind me, come and kill him. Only the Gharkad tree, (evidently a certain kind of tree) would not do that because it is one of the trees of the Jews.' (related by al-Bukhari and Moslem).") Why, that could be labeled leading an anti-Semitic and exclusionary discussion that, once it's publicized on campus, creates a hostile educational environment for Jews.
Black students talking to each other about how all whites are racist, and white cops – and maybe other whites – should get shot? Again, that could be labeled racist and exclusionary speech that, when publicized, can create a hostile educational environment for whites.
Students talking about what a horrible, oppressive religion Islam is, or Scientology is, or Catholicism is, or conservative Christianity is, and how no-one should associate with people who have such evil religious views? Could be called religiously bigoted and exclusionary discussion that, when publicized, can create a hostile educational environment for members of that group. To be sure, this hypothetical doesn't include discussion of violence – but president Boren seems to think that even this isn't required for expulsion, so long as the speech is bigoted and "exclusionary." And the rhetoric of "hostile educational environment," when it has been used to try to restrict speech on campuses, has never been limited to speech that mentions violence.
Likewise, students talking about how they think homosexuality is evil, and that homosexuals shouldn't get equal treatment? Could be called bigotry based on sexual orientation and exclusionary statements that, when publicized, can create a hostile educational environment for gays. Students talking about how women are inferior to men, or men are inferior to women – same thing.
And I take it that open membership in groups – including off-campus groups – that espouse actually or allegedly racist, religiously bigoted, antigay, sexist, etc. views would be covered as well. Surely a student's membership in the KKK, if other students learn about it, will lead them to infer that the student is racist just as much (if not more than) the singing of a racist song would. Likewise, a student's membership in a group that endorses the Hamas Charter, a religious organization that harshly criticizes homosexuality, an organization that believes whites are inferior or morally corrupt, and so on.
There is, as I've mentioned before, no First Amendment exception for supposed "hate speech." But if there is such an exception, there certainly is no First Amendment foundation for distinguishing speech that is actually or supposedly anti-black from speech that is anti-white, anti-Semitic, anti-Muslim, anti-Catholic, anti-women, or anti-men. If the University of Oklahoma president's position is accepted as legally sound, then there'd be no legal basis for protecting the other kinds of speech while expelling students for this sort of speech.
And what I call "censorship envy" will make it all the more likely that there will indeed be calls for expelling students who express those other views. Right now, for instance, Jewish students who have to deal with their classmates' holding anti-Semitic views, and expressing them to each other, may rightly assume that such speech is protected by the First Amendment and the university can't expel the anti-Semites. But if it becomes accepted that a university can expel people who express racist views about blacks, why wouldn't many Jewish students call for expulsion of students who express (even just to each other) anti-Semitic views? Indeed, many students might think that they would be chumps for failing to demand such expulsion, after they've been taught that such speech victimizes them by creating a "hostile educational environment" that can be remedied by expelling bigoted students. And that's just one example.
Moreover, this surely wouldn't be limited just to people who use epithets – president Boren's statement speaks generally of the viewpoint of the speech ("racist and exclusionary") and not just the particular words that were used. Nor would it be limited to things that really are contemptible; as we've all seen in past years, "hate speech" and "hostile educational environment" is a label that is cheerfully thrown around, to refer to criticisms of illegal immigration, to people deliberately trampling the Hamas flag, and much more. To quote Justice Jackson in West Va. Bd. of Education v. Barnette (1943), First Amendment law is "designed to avoid these ends by avoiding these beginnings."