Earlier this week the University of Oklahoma chapter of Sigma Alpha Epsilon was caught on video engaging in a racist chant. The video shows several men wearing tuxedos and riding on a charter bus singing that black students, which the men refer to with a racial slur, could never join their fraternity. The chant also alluded to lynchings.
Language warning: The video below contains offensive and racist language.
The reaction to this vile, disgraceful video was swift and, for the most part, appropriate. The national headquarters immediately closed the chapter and suspended the members. “This type of racist behavior will not be tolerated and is not consistent with the values and morals of our fraternity,” the national leaders of Sigma Alpha Epsilon said in a statement. David Boren, the president of the University, also rebuked the fraternity: “To those who have misused their free speech in such a reprehensible way, I have a message for you. You are disgraceful. You have violated all that we stand for. You should not have the privilege of calling yourselves ‘Sooners.’ ”
But then President Boren took it a step too far and expelled two of the racist-chanting students. Boren said the students who played a leadership role had created a hostile learning environment for others. As he told 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.”
As legal scholar Eugene Volokh notes, there are two problems with Boren’s statement and his expulsion of the students. The first problem, says Volokh, is that “racist speech is constitutionally protected, just as is expression of other contemptible ideas; and universities may not discipline students based on their speech.” The second issue is that, “Similar things could be said about a vast range of other speech.”