Why expelled Oklahoma frat boys would have an ‘excellent chance’ in court

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Why expelled Oklahoma frat boys would have an ‘excellent chance’ in court

Morning Mix

By Terrence McCoy March 11 at 4:39 AM
@terrence_mccoy

University of Oklahoma President David Boren has since severed ties to the powerful national fraternity, expelling two students he said “played a leadership role” in the racist chant. ... But the expulsions immediately struck constitutional law experts such as professor Eugene Volokh, of the University of California at Los Angeles and the Volokh Conspiracy blog, as strange. Did the University of Oklahoma, a public institution, just punish speech that, while clearly abhorrent, was protected under the First Amendment? Was this a violation of the Constitution?

Private institutions — like Sigma Alpha Epsilon — can freely punish speech that breaches their codes or standards. But a public institution such as the University of Oklahoma, which takes public money, operates as an arm of the government under the law. “So, in effect, it’s not a university punishing a student for a racist video or social media post, it is the state itself acting against an individual — a person, importantly, with all the rights guaranteed under the First Amendment,” wrote the University of West Alabama’s Will Nevin on AL.com.
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There is, however, some precedent for such a situation, albeit not one that’s binding in Oklahoma. In the early 1990s, Sigma Chi sued George Mason University in Virginia, challenging what it perceived as an infringement on its civil liberties. This case, cited by some legal scholars on Tuesday, would perhaps bolster any claim that the expelled students or fraternity may consider in the coming days.
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But, {a court} said, that desire couldn’t infringe upon rights bestowed by the Constitution. “The University certainly has a substantial interest in maintaining an educational environment free of discrimination and racism. … On the other hand, a public university has many constitutionally permissible means to protect female and minority students. … The First Amendment forbids the government from ‘restrict[ing] expression because of its message [or] its ideas.”