To the extent you guys are interested, here is a fairly analogous case from the 70s:
https://caselaw.findlaw.com/us-supreme-court/410/667.html
The arguments are very similar to those at issue re. McNeil.
I'll be real, I'm not going to read 50 year old case law, because I'm not in college anymore. However I do have a direct question for you and the other attorneys on the board, hell for anyone. It's a yes/no question, two actually.
1. Isn't there extensive case law and precedent used to interpret broaden/narrow the scope of constitutional amendments?
2. Has what's considered protected speech changed in any way since 1791?
If the answer to either questions is yes, isn't the opinion that the university should let him stay to protect his first amendment rights just essentially saying you (general term) don't think this is a battle worthy of the university fighting? I'm very put off by some people who are yielding the first amendment as some mind bending labyrinth, not even worth trying to solve.
I'll tell you that I'm a bit rusty on 1A procedural stuff -- spracs seems to have a better understanding so I'll defer to him if my analysis is off. But the answer to both questions 1 and 2 -- "yes."
That said, lower courts would be governed by the established precedent, which undeniably recognizes that expelling this guy would constitute an intentional violation of his constitutional rights. McNeil is back in school a week or two after filing the case, btw. We would 100% lose at the trial level with the only question remaining being damages (not ideal!). SCOTUS could theoretically hear the case (though that's not likely) (also we're spending an assload at this point on fees and we're likely already judgment debtors for the punitive amount) seeking to overturn decades of established precedent, but that sort of thing is exceedingly, exceedingly rare. If by some chance this hypothetical case did make it to the Supreme Court, I suspect the Court would unanimously rule against us. I'd put our odds of success somewhere between 0-5% -- and that may be generous. Also, the resolution of this case would be years down the line.
So yes, it's possible the precedent could get overruled. No, it's a virtual certainty we'd lose. It's also a certainty that this would cost K-State 7-8 figures. If your only bet is overturning 50 year old Supreme Court precedent, it's usually not a good idea.