Is a public university expelling a student for hate speech unconstitutional?

[Lief 🗽]

Professor Eugene Volokh seems to think so:

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http://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/03/10/no-a-public-university-may-not-expel-students-for-racist-speech/

[Antonio the Sixth]

I'd be surprised if the SCOTUS hasn't already ruled on this issue, directly or indirectly.

[Linus Van Pelt]

http://en.wikipedia.org/wiki/Tinker_v._Des_Moines_Independent_Community_School_District

Yes, it is likely unconstitutional.

One can reasonably disagree about the legality of hate speech, but the principle that if some speech is protected by the first amendment, then this protection should extend to equal provision of government services, not just criminalization, should be uncontroversial. What if a government could say the following? "If you criticize the party in power, sure, we can't send you to jail, but we will deny you a driver's license and your social security and medicaid benefits." This would be clearly disastrous for free speech.

[Antonio the Sixth]

The reach of Tinker v. Des Moines has been significantly narrowed by later rultings (in some cases rightfully, in others less so). His enduring jurisprudence regards mainly the issue of viewpoint discrimination (as the ban that prompted this lawsuit regarded specifically the white armbands worn in opposition to the Vietnam war). I don't think you can interpret it as a relevant precedent with regards to hate speech, which is a matter of content discrimination.

[Linus Van Pelt]

The later restrictions have to do mostly with speech at in-school events, though.

I suppose you could maybe argue that a frat bus is like a school newspaper as in Hazelwood v Kuhlmeier. This seems like a stretch to me, but to be honest I don't really know the details of the relationship between universities and fraternities.

[King]

The University of Oklahoma only has an 80.4% acceptance rate, which means 19.6% of their student applications are read each year and the individual denied access into the University for what they wrote on the paper.

Violation of freedom of speech?

[Linus Van Pelt]

No, obviously not. Again, no one doubts that the university may regulate its own educational activities. The question is whether it may discriminate based on speech outside those activities.

Actually, this case is a much more direct precedent than the one I gave above: http://en.wikipedia.org/wiki/Doe_v._University_of_Michigan

[King]

A fraternity chartered by the university is not outside it's activities.

[Citizen (The) Doctor]

A fraternity chartered by the university is not outside it's activities.

[Linus Van Pelt]

IOTA XI CHAPTER OF SIGMA CHI FRATERNITY v. GEORGE MASON UNIVERSITY, US Court of Appeals, 4th Circuit, 1993

The fraternity chapter held an "ugly woman contest" in which male frat members dressed up as women, including one with blackface, braided hair and a stereotypically African-American accent. The university, on the grounds that the event was sexist and racist, sanctioned the frat's officers from participating in frat social events for a year, and required the fraternity to implement a sensitivity training program.

The frat sued the university and won. The court ruled that the university had no right to impose any disciplinary sanctions at all, because the "ugly woman contest" was protected by the First Amendment.

Look, you may not intuitively agree, but there is just a lot of case law on this: a public university's right to discriminate on the grounds of speech is limited to its educational mission in a narrow sense, meaning curricular assignments, applications, etc.

[True Federalist (진정한 연방 주의자)]

Linus, I think the concurrence in the case you just cited is more relevant, both to the OU case and to what SCOTUS would likely rule if the case got that far.