After the uproar over the video of Sigma Alpha Epsilon fraternity members singing a racist song on a party bus, there was an obvious consensus among free speech advocates: University of Oklahoma president David Boren’s decision to expel two of the students was a clear violation of their constitutional rights.

That conclusion seems obvious. But is there to more say about it than that?

Boren’s decision–based on the argument that the students had created a “hostile educational environment”– makes little sense legally or factually. However, it did not fall from the sky. Understanding where it came from, and what was happening at the campus before the release of the video, might help fill out the picture.

First, to the consensus. Robert Shibley, the executive director of FIRE (Foundation for Individual Rights in Education) wrote in USA Today that while the school might be able to punish the fraternity for unlawful discrimination, “it cannot punish the fraternity members solely for the content of their expression.” Geoffrey Stone of the University of Chicago observed in the Huffington Post that “the Supreme Court has made it quite clear that public universities cannot constitutionally discipline their students for speech merely because it offends the university’s sense of decency.” And the ACLU of Oklahoma’s March 12 statement notes: “Absent information that is not at our disposal, it is difficult to imagine a situation in which a court would side with the university on this matter.”

There are countless other iterations of the same view, all of them firmly grounded in legal precedent. But there are also a few dissenters. The New York Times noted one, USC law professor Daria Roithmayr, who argued that it was plausible to claim that the students had caused a “material disruption” of the school’s educational mission. While not endorsing any similar theory, UCLA vice chancellor of legal affairs Kevin Reed called these cases “very challenging” because public universities by law must “create and maintain a climate that is free of racial discrimination.”

A full-throated defense of the university came from Harvard University law professor and Bloomberg columnist Noah Feldman, who endorsed its decision. “Applying ordinary free-speech doctrine, the expulsion looks unconstitutional,” he admitted, going on to write that might not be the most relevant test, since the school’s explanation “rests on a different theory.”

Zeroing in on Boren’s reference in the expulsion letter to a “hostile educational environment,” Feldman argued that he had a point:

Under federal anti-discrimination law, as interpreted by the Department of Education, a university has an affirmative duty to guarantee students an educational environment in which they are free of hostility based on race or sex.

To him, the matter wasn’t about the students’ right to hold and express noxious views, but rather that “their speech was a form of discriminatory conduct that would create a hostile educational environment for black students.” Feldman contends that the “legal logic here may seem slippery, but it’s well-established.”

There’s no doubt that most free speech defenders would disagree–and quite strongly–but Feldman is at least trying to wrestle with the university’s apparent defense, rooted in civil rights law. But reconciling speech and equality rights is a complicated business.

One doesn’t need to agree with Feldman to appreciate the fact that the conflict between university speech policies and the First Amendment is not always the invention of clueless administrators. In fact, the Department of Education could be faulted for sending mixed messages about what the law requires of institutions like the University of Oklahoma.

In a backgrounder on the First Amendment and school bullying and harassment policies, NCAC executive director Joan Bertin traced the legal history of the law defining hostile environment, which is designed to deal with harassment in both the workplace and in federally-funded educational institutions, and the relevant First Amendment implications. The tensions are obvious; as Bertin notes, “it is not only possible but legally mandated for public institutions to recognize both students’ right to free speech and their right to an educational environment free of invidious discrimination.”

In a number of important cases regarding harassment, the courts have consistently prioritized the First Amendment rights of students. Campus “speech codes” or policies intended to minimize conflict or offense have been successfully challenged on First Amendment grounds.

For many years the Department of Education’s Office of Civil Rights (OCR) has published letters essentially in line with these rulings. However, OCR’s October 2010 letter presented a shift in the guidance it offered school administrators. The letter explained that harassment “may take many forms,” and that it

does not have to be directed at a specific target, or involve repeated incidents. Harassment creates a hostile environment when the conduct is sufficiently severe, pervasive, or persistent so as to interfere with or limit a student’s ability to participate in or benefit from the services, activities, or opportunities offered by a school.

This definition, NCAC’s backgrounder noted, “departs in significant ways from both Supreme Court language and prior statements issued by OCR.” In Davis v. Monroe County Board of Education, the Supreme Court defined harassment as behavior that is “severe, pervasive, and objectively offensive.” But the OCR’s definition– “severe, pervasive, or persistent”– represents a striking shift. And the letter’s reference to speech conducted using “cell phones or the Internet” raises fundamental questions about whether Department of Education is suggesting that schools would be held responsible for off-campus speech.

As the NCAC backgrounder noted, “singling out protected speech as a significant element of harassment may well lead to schools making unnecessary and inappropriate restrictions on student expression.” And that is the precisely what Boren’s critics think has happened here.

But his move also came amidst some serious discussions about the university’s record on diversity. OU Unheard, the student group that posted the racist fraternity video, had been leading discussions about an array of challenges facing black students– poor retention and graduation rates, a lack of diversity among tenured professors, fewer financial aid resources and an inequitable funding formula for student groups. As the LA Times put it, OU Unheard’s message was that “black students feel left out of campus life and have to go elsewhere to get a college experience, including homecoming at other schools.”

While this background does serve to provide some context for Boren’s response and the reaction of other universities confronting student behavior that is, to put it mildly, deeply regrettable, it hardly justifies Boren’s actions. Focusing on the acts of individual students, no matter how reprehensible, is a convenient way to shift the blame to them and deflect attention from the complaints of a hostile educational environment that predate the video and may well persist after the students and the fraternity involved in this situation are gone.

The Department of Education’s recent guidance on the issue of harassment has been not just muddled but counterproductive, compromising First Amendment rights while failing to ensure equality.  DOE needs to hold itself and universities to a higher standard, one that respects the rights of all students, including those with views it finds noxious, and seriously addresses entrenched patterns of discrimination. Silencing a few students isn’t the answer.