At least on the issue of expulsions, I think that Volokh is right. It’s a public university, racist speech in itself is protected speech, and I don’t know what exceptions would apply here.
It’s a moot point, but I’m less convinced that the university would be prevented from decertifying the fraternity (although I’m not saying Volokh is wrong about that either.) But it seems to me that expelling the students for this (absolutely indefensible and disgusting and racist) language violates the First Amendment. I can understand why Boren reacted so forcefully and he’s justified in harshly condemning the speech, but I don’t think this is the right remedy.
…rather than responding to multiple similar comments, it is of course true that state colleges can punish people for sexual harassment and other forms of harassment without violating the First Amendment. Harassment is conduct, not just speech. The obvious problem is that as applied to this case it’s a non-sequitur; you can’t legally “harass” someone through a video tape made and distributed by someone else without your foreknowledge or consent and viewed by third parties who were not present. This was not harassment or incitement in a legal sense; it a restriction targeted at pure speech. As for Morse v. Fredrick (the “bong hits 4 Jesus” case), 1)post-secondary education is a very different animal than high school education, and 2)that decision was wrong anyway.