THE BLOG

It's Not Unconstitutional to Be Racist

03/11/2015 01:29 pm ET | Updated May 11, 2015

Racism is a repugnant disease of the heart and mind, but it's not unconstitutional.

That is the perennial tension when episodes like the recent incident involving the Sigma Alpha Epsilon (SAE) fraternity at the University of Oklahoma come to light.

The video that went viral on the 50th anniversary of "Bloody Sunday" sickened many who saw it. The 36-word racist chant, captured by video on the fraternity bus, touted lynching and segregation.

The national office of SAE suspended the University of Oklahoma chapter, and the students have vacated the premises.

I agree with University of Oklahoma President David Boren, who said in the aftermath of the video being made public, "I think it time for all of us across America to step up and show zero tolerance when we're dealing with racism."

Boren backed up his words by expelling two students identified as playing a leadership role in singing the chant.

This is not the first time a fraternity on one of America's institutions of higher learning has been disbanded for racist behavior. And it will most likely not be the last

Boren's action helps assuage the feelings of many who were outraged by the chant, but is expulsion constitutional? If the question is answered as to how one feels, I along with many others would say "yes," but our constitutional values suggest it's not that simple.

Much of our constitutional interpretation in the public discourse is to support the free speech we find acceptable. Though emotionally understandable, it is too subjective to sustain any lasting merit.

The measure of one's support for the concept of free speech is found more often with that which one finds philosophically abhorrent.

The Bill of Rights originally applied only to the federal government but subsequently became applicable to state governments by way of the14th Amendment through a process known as incorporation. Since the University of Oklahoma is a public institution, wouldn't free speech apply to the expelled students?

Did the words on the bus meet the free speech standard provided by Justice Oliver Wendell Holmes in 1917 -- that it does not protect one who falsely shouts "Fire!" in a crowded theater?

The Supreme Court's ruling in Brandenburg v. Ohio remains the standard by which free speech is evaluated.

Clarence Brandenburg was a leader in the Ku Klux Klan who made a speech at a Klan rally that called for violence against blacks, Jews, and those who supported them.

Brandenburg was arrested and convicted under an Ohio criminal syndicalism law. The court ruled 8-0 in his favor, holding that government couldn't constitutionally punish abstract advocacy of force or law violation.

Is the SAE chant tantamount to yelling "Fire!" in a crowded theater? Aren't the expelled students being punished for speech that does not rise to the level of Brandenburg?

Though intellectually paradoxical on the surface, my free speech rights are fortified by the speech I may find reprehensible.

While expelling students might have been the path of least resistance in addressing the university's public relations nightmare, it may prove to be a missed opportunity for a teachable moment.

America's approach to the original sin of racism maintains an aspect of arrested development. It is too easy to temporarily transfer our moral indignation toward a fraternity at the University of Oklahoma that no longer exists than it is to take the more difficult path that could lead to a meaningful transformation.

The racist chant on the fraternity bus did not originate at the University of Oklahoma in 2015. Nor, based on the video, were the two students expelled alone in their enthusiasm for the chant.

The expelled students have already succeeded in dismantling their fraternity chapter. Shouldn't they be given opportunity for redemption? In lieu of expulsion, could the university have found another way to educate all involved about the poisons of racism?

The ease with which one can easily sing a song for amusement that dehumanizes another cannot be eradicated by an expulsion that, in my view, is unconstitutional.

Because racism is a learned behavior, it can be unlearned.

Moreover, it could prove to be the most meaningful class the students involved ever take.