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34 Yale L. & Pol'y Rev. Inter Alia 1 (2015-2016)

handle is hein.journals/interal34 and id is 1 raw text is: YALE LAW & POLICY REVIEW Discrimination as Disruption: Addressing Hostile Environments Without Violating the Constitution Cara McClellan* 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 free- dom.' 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.2 They are required by civil rights stat- utes to redress hostile environments, but face liability under the First Amend- ment 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 at- tend school free from racial discrimination. I. HOSTILE ENVIRONMENT REGULATION CANNOT BE OVERLY BROAD When students are punished for their verbal statements or other forms of expression, consideration must be given to First Amendment implications.3 In- * Yale Law School, J.D. 2015. The author expresses her sincere appreciation to Professor Reva Siegel and Dean Robert Post for their guidance and advice. 1. See, e.g., Geoffrey R. Stone, Racist Rants and the University of Oklahoma: Getting It Wrong, HUFF. POST POL. (Mar. 11, 2015), http://www.huffingtonpost.com/geoffrey - r- stone/racist-rants- and-the-univb_6 844500.html. 2. Judith Shulevitz, In College and Hiding From Scary Ideas, N.Y. TIMES, Mar. 21, 2015, http://www.nytimes.com/2o15/o3/22/opinion/sunday/judith-shulevitz-hiding- from-scary-ideas.html?emc= etai. 3. Tinker v. Des Moines Independent Community School Dist, 393 U.S. 503 (1969).

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