Yes, they said some vile things, but that doesn’t justify expulsion.

Eugene Volokh writes at the Washington Post.

No, it’s not constitutional for the University of Oklahoma to expel students for racist speech [UPDATED in light of the students’ expulsion]

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.)

UPDATE: 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.” But there is no First Amendment exception for racist speech, or exclusionary speech, or — as the cases I mentioned above — for speech by university students that “has created a hostile educational environment for others.”…

How long this sort of misbehavior should dog a person is an interesting ethical question, but in any event it’s pretty clear that the offending students are going to pay a substantial social and likely economic price for their actions.

Under the First Amendment, though, the government — including the University of Oklahoma — generally cannot add to this price, whether the offensive speech is racist, religiously bigoted, pro-revolutionary, or expressive of any other viewpoint, however repugnant it might be.