Parker Rice and Levi Pettit, formerly members of the University of Oklahoma’s SAE chapter, now closed
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I won’t deny it. It was sort of refreshing to hear former U.S. senator and current University of Oklahoma President David Boren step to the microphone Monday and denounce members of the Sigma Alpha Epsilon fraternity after they were caught on video gleefully singing “There will never be a n—ger SAE.”

In contrast with the typical “We’re looking into it” framing that seems to follow in so many of these episodes, Boren’s statement kicking the SAE chapter off campus and insisting that “we don’t provide student services for bigots” sent a message that he wasn’t interested in coddling a bunch of entitled, loathsome, likely racist frat guys.

Good on him for calling out their ugly display.

But even though I’m not going to shed a tear for the fate of Parker Rice and Levi Pettit, now that I’ve seen their official expulsion letter, I think Boren and OU are mishandling their case.

Because if you’re going to boot students off campus—even if they’re a—holes—it has to be for valid reasons. And in a First Amendment context, Boren has to walk a finer line.

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As the Washington Post’s Eugene Volokh correctly notes—in a post that everyone has referred to this week—“racist speech is constitutionally protected,” no matter how odious.

There’s really no way these guys can be prohibited from singing “There will never be a n—ger SAE,” because part of living in a free country is the freedom to sing things that are racist.

The question for Boren and the university, then, is whether the follow-up lyric, “You can hang them from a tree, but he will never sign with me,” goes beyond protected speech, and whether or not it constitutes a threat. And it’s here that I’m not sure whether Volokh is right.

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He argues that speech is protected, even when it refers to violence, unless that speech can be perceived as a “true threat,” then goes on to say that “that’s not the situation here.”

But is this case really so cut and dried?

I wouldn’t take issue with Volokh or anyone else who concluded that those SAEs weren’t really about to go out and lynch a fellow student—I don’t think they were, either. But how can anyone say with confidence that there aren’t campus community members who shouldn’t now consider themselves threatened?

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And by the way, why should the onus be on the rest of the students to decipher which references to hanging n—gers from trees are real, and which ones are just drunken-frat-guy fun?

Based on Boren’s original press statement, which refers to “threatening racist behavior,” it looks as if he believes that those lyrics should be considered a threat, and that’s why, therefore, his action was so pointed.

When you factor in the campus Student Rights and Responsibilities Code, prohibiting conduct that “a reasonable person would find intimidating, harassing or humiliating,” you’ve got the nut of OU’s case.

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The problem is that in the official expulsion letter sent to Pettit and Rice, that’s not how Boren played it. And that’s where he’s messing this up.

The letter (pdf) informs the students that they’re expelled “because of your leadership role in leading a racist and exclusionary chant which has created a hostile educational environment for others”—never once referencing the potential of a “threat.”

Another way to read it is that Boren—the head of a public university—is punishing two students because he’s had it with their foulmouthed chauvinism. And he actually can’t do that.

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I think Boren has enough, if he wants, at least to make the argument that the song’s lyrics constitute a threat. And if it can be argued that they are a threat, then Boren can expel those students. In a high-profile case like this, though, he’d be advised to lay that out for the entire community—and get his lawyers to reword that letter, stat.

The way it’s written now, he’s violating Rice’s and Pettit’s First Amendment rights and, in the process, doing a disservice to the OU students—presumably, in particular, the African-American students he appears to be trying to protect.

Because wherever there are people, there’s going to be prejudice. And it’s Boren’s job to police OU students if they're threatening fellow students, not to shield them from the repugnant attitudes of their peers.

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David Swerdlick is an associate editor at The Root. Follow him on Twitter.