OU broke the law to avoid bad press: Column 'Hate speech' is constitutionally protected, according to the courts.

Glenn Harlan Reynolds | USATODAY

It has been a bad spell for the University of Oklahoma. First, some members of the Sigma Alpha Epsilon fraternity were videotaped singing a racist song on a bus, and a video went public. Then OU President David Boren kicked the fraternity off campus and summarily expelled two of the fraternity members.

You may think it's unfair for me to treat these two incidents as comparable, and if you do think that you're right: The difference is that David Boren broke the law, while the fraternity brothers merely behaved badly.

As a state institution, the University of Oklahoma is constrained by the Constitution. Among other things, that means that it must respect the free speech guarantees contained in the First Amendment, even if that speech is repugnant. Just because the university doesn't like what students say, thinks it's hateful, or worries that it will produce an unpleasant atmosphere on campus, doesn't grant it the authority to punish people for speaking. One would think that Boren — a former U.S. senator who took an oath to uphold the Constitution when he was sworn into office — would know better. Apparently not.

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UCLA law professor Eugene Volokh has a column in the Washington Post titled, "No, it's not constitutional for the University of Oklahoma to expel students for racist speech." Volokh comments: "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. ... The same, of course, is true for fraternity speech, racist or otherwise."

Though some ignorant people argue that "hate speech" is unprotected under the First Amendment, that is not the law and never has been. Nor should it be. The test of our commitment to free expression, after all, isn't our willingness to tolerate speech that everyone likes. If you only support free speech for ideas you agree with, you're a hack. If you only support free speech for ideas that everyone agrees with, you're a coward. And if poisonous hateful speech could be banned, communists and the Westboro Baptist Church wouldn't have won so many First Amendment cases.

Boren's behavior was not only illegal — and clearly so — it was also a betrayal of the duty of fairness that he, as a university president, owes to every student enrolled in his university. To have acted so hastily, in violation of OU's own student conduct code, bespeaks a dishonorable willingness to throw students to the wolves in order to avoid bad publicity — accompanied, perhaps, by the sort of generalized hostility to fraternities that seems all too common among university administrations these days. (That hostility, based on a general dislike of fraternities as bastions of "white male privilege," is itself racist and sexist, of course.)

As Reason's Robby Soave notes, OU administered lighter punishment to a football player who punched a girl so hard it broke four bones in her face than it meted out to the SAE fraternity for singing a song. After this assault, caught on camera, Joe Mixon was suspended from playing, but allowed to remain on campus, attending classes with other students as usual. No expulsion there.

In theory, universities are supposed to be the bastions of reasoned thought and fairness. In practice, you will seldom find a place where mob justice is more likely to prevail with the willing participation of the authorities. That's not unique to Oklahoma, alas, as demonstrated by University of Virginia President Teresa Sullivan's unfair response to a fraternity implicated in a bogus gang rape story published by Rolling Stone that was later exploded by the Washington Post.

News reports over the weekend suggest that the SAE fraternity has retained a high-powered attorney and may sue, something that could wind up costing OU, and perhaps President Boren, a considerable amount of money. But worse yet is that Boren's behavior revealed OU to be a place ruled by panic and prejudice, not the sort or reason and fairness that a university should embody.

The Board of Regents should ask Boren tough questions about his behavior. And the trustees of other schools should ensure that their own leadership offers all students the fair and thoughtful treatment they deserve as members of the university community — even when there's bad press afoot.

Glenn Harlan Reynolds, a University of Tennessee law professor, is the author of The New School: How the Information Age Will Save American Education from Itself.

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