Let's make one thing clear from the outset. The video of members of Sigma Alpha Epsilon's chapter at the University of Oklahoma declaring there would "never be a "n***r" among their number is absolutely abhorrent, and there is no place for such behavior at any civilized university. However, as I mention at Liberal America, I'm finding it hard to applaud today's announcement that school president (and former Senator) David Boren has expelled two of the ringleaders in that disgusting incident.
There were numerous ways that Boren could have dealt with this. Some of them he's already utilized--the members have been evicted from their house, their charter has been torn up, and Boren has declared that SAE won't be allowed back in Norman at least as long as he's president. All of those deserve to be applauded, particularly the long-term ban on SAE. There was clearly an unacceptable culture in that house, and the only way to ensure it's completely rooted out is to not allow it back on campus until 2019 at the earliest.
But as the leader of a state university, Boren doesn't have a whole lot of latitude to punish students merely for speech, no matter how disgusting and abhorrent it may be. He could have made them publicly apologize, perform community service, and boot them out of any extracurricular activities in which they took part for the balance of their tenures at OU. All of those would have been more than justified.
But based on what we know now, there's only one way I can think of that expulsions are justified at this point for what Boren describes as behavior that created "a hostile educational environment for others." For those who missed it, the video came to light after Unheard, a student organization at OU, got its hands on it. What if the video had been uploaded beforehand, and then someone who saw it was outraged enough to alert Unheard? If the video had been uploaded earlier, then to my non-lawyer's mind you could argue that there is no good-faith reason to put this kind of bilge online. Unless that's the case, Boren may have stepped in a First Amendment minefield today.
I know this sounds like a contrarian view. But I say this as someone who's pretty close to a First Amendment absolutist. There were a lot of ways in which Boren could have come down with hobnail boots on the clowns who made this video. But unless I'm very wrong, there's only one circumstance in which expulsions are justified at this piont.