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In early March 2015, a video surfaced showing members of the Sigma Alpha Epsilon (SAE) fraternity at the University of Oklahoma chanting: “There will never be a nigger at SAE . . . you can hang him from a tree, but he’ll never sign with me.” Following the wide circulation of this video, the university’s president expelled two students leading the chants in the video for creating a hostile racial environment on campus. Legal commentators criticized this disciplinary action, arguing that it violated the First Amendment and principles of academic freedom. On the other hand, a review of Title VI law suggests that President David Boren’s actions were in line with federal regulations. This has led some to argue that universities “are in a double bind.” They are required by civil rights statutes to redress hostile environments, but face liability under the First Amendment if they punish speech that led to a hostile environment. This essay argues that a university can defend punishment of hostile environment conduct based upon its authority to punish students for substantially disrupting the operations of the university—balancing free speech rights with the rights of students to attend school free from racial discrimination.

Publication Title

Yale Law & Policy Review Inter Alia

Publication Citation

31 Yale L. & Pol'y Rev. Inter Alia (2015)