The University of Oklahoma has expelled two students for leading a bus full of Sigma Alpha Epsilon members in singing a racist song that was recorded on video. But First Amendment experts on Tuesday said that such a punishment is unconstitutional. "I have emphasized that there is zero tolerance for this kind of threatening racist behavior at the University of Oklahoma," David Boren, Oklahoma's president, said in a statement. In a letter to the expelled students, Boren said that they were expelled because of their "role in leading a racist and exclusionary chant which has created a hostile educational environment for others."
Writing for The Washington Post, Eugene Volokh, a law professor at the University of California at Los Angeles, said that "there is no First Amendment exception for racist speech, or exclusionary speech, or -- as [in] the cases I mentioned above -- for speech by university students that 'has created a hostile educational environment for others.'" While SAE's national headquarters, as a private organization, is allowed to punish individual members based on its own rules, Oklahoma University, as a public institution, must view the song as protected speech, Volokh wrote.
In a statement Tuesday, the Foundation for Individual Rights in Education said that "the expression recorded in the video, standing alone, is insufficient to create a hostile educational environment." FIRE also expressed concern that the students were seemingly expelled without a hearing. In his letter to the expelled students, Boren said administrators made the decision after identifying the students in the video, and that if they disagreed with the punishment they had until Friday to contact the university's Equal Opportunity Office. "This cannot be justified unless the students present an immediate physical danger to themselves or others were they to remain on campus," FIRE stated.