An image of a University of South Carolina student’s use of the “n-word” on a dry erase board made national headlines this weekend as the image “went viral” through social media. The University responded quickly, suspended the student, and began an “investigation.”

USC’s quick action, however, may well be unconstitutional and the school would be well-advised to take careful steps not to violate the First Amendment while it conducts its “investigation.”

A very similar incident took place earlier this year at the University of Oklahoma were several students were expelled after being videotaped singing a chant which contained the “n-word.” Eugene Volokh, one of the nation’s leading First Amendment experts, plainly concluded that the University violated the Constitution when it expelled the students. Volokh’s comprehensive analysis may be read here.

Volokh’s conclusion–well supported by case law–was that a University may not expel a student for a so-called “conduct violation” when that conduct was, in fact, speech protected by the First Amendment. Protected speech, Volokh notes, includes hate speech.

If the University of South Carolina violates the First Amendment rights of the student under investigation, the individuals who make the affirmative decision to do so–rather than the school itself–may be sued by the student under a federal statute, 42 U.S.C. § 1983. This possible personal liability of the USC President, Board of Trustees, or any other individuals with decision-making authority over the student’s future is very real. Thus the school and its officers must respond to this situation with reasoned wisdom lest a decision to punish bad behavior result in a very strong lawsuit from the student.

Chappell Smith & Arden, P.A. attorney Graham L. Newman practices in the area of complex litigation and handles the firm’s appellate practice.