Recently, members of the Oklahoma chapter of the SAE fraternity were caught on video chanting a mind-bogglingly racist song that included “a line that suggests lynching blacks is preferable to admitting them in the fraternity.” Quite reasonably, the national fraternity “shut down the chapter.” More controversially, the University of Oklahoma (which, unlike the fraternity, is part of the government and thus constrained by the First Amendment) expelled two of the fraternity members.
“Most legal experts” consulted by the New York Times argued that the university’s action violated the First Amendment, including “several” law professors, “liberal and conservative alike,” such as UCLA’s Eugene Volokh and the University of Chicago’s Geoffrey Stone. “‘The courts are very clear that hateful, racist speech is protected by the First Amendment,’ said Erwin Chemerinsky, a constitutional scholar and dean of the law school at the University of California, Irvine.” (Professor Volokh’s legal analysis can be found at this link at the Washington Post web site).
But whether it ought to be protected is a different question than whether it is protected under existing First Amendment case law. Some commenters have argued that since private colleges can restrict shamefully malicious and hateful speech that contains no intellectual substance, perhaps public colleges should be able to do as well, to provide the same pleasant educational atmosphere. In “The OU Debacle and the Case for Private Institutions,” Reason’s Stephanie Slade notes that “private institutions are far freer to decide the best way to address situations like the one in Oklahoma,” in ways “aimed at producing the best possible learning environments, and far freer to change those arrangements when they fail.”
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