Nothing like an 11-second racist chant on a fraternity bus to reveal the ongoing gap that exists between our lived commitment to the Constitution and our rhetorical adherence.
I received numerous emails in response to last week's post where I opined that expelling the Sigma Alpha Epsilon (SAE) students at the University of Oklahoma for the racist chant was unconstitutional -- a teachable moment that was missed.
I contend, as an agent of the state (the University of Oklahoma is a public institution) and therefore bound by the Constitution, it could not abridge the student's freedom of speech. Expulsion in my view abridged that most fundamental right.
That sent a number of readers off in search of the elusive asterisk to justify expelling the two OU students.
Did the chant create, as some cited, a hostile educational environment? This question is linked with Title IX, which prohibits discrimination based on sex.
Under this federal statute, the Education Department requires universities to protect students against a hostile educational environment based on sex discrimination, including sexual harassment.
One could conceivably make an argument that the students were not being expelled for their speech, but rather for creating a hostile educational environment for all students.
Since the speech in question touted discrimination and lynching, does removing the chant leaders restore the esprit de corps that may have been lost temporarily when the video went public?
Why stop with the chant leaders? If a hostile education environment were created, wouldn't restoration to normalcy require additional expulsions?
One reader stated that it was hate speech, which is not protected. This inaccurate assertion reflects one of the Constitution's great challenges: To know the difference between supporting the concept versus the specific issue.
Hate speech can still be protected. If it were not, it would place us on a slippery constitutional slope that would undermine the entire enterprise.
As the ruling in Brandenburg v. Ohio proved, the state cannot forbid advocacy of the use of force, or of law violation except where such advocacy is directed to inciting imminent lawless action and is likely to incite or produce such action.
Is anyone prepared to offer that the racist SAE chant remotely rises to, let alone beyond, the standard set in Brandenburg?
In 2011, the Supreme Court ruled 8-1 in Snyder v. Phillips that the protest and signs by the Westboro Baptist Church, though offensive to most Americans, was still protected.
The benign but naïve email that got at the crux of the challenge stated: "The Constitution was but one consideration." However, it is the one consideration that by itself constitutes a quorum.
The Constitution remains the unalterable document that we embrace regardless of how we may feel. If the tie goes to the runner in baseball, it goes to the Constitution in our democracy.
A number of readers took painstaking efforts to quote federal and state statues, the University of Oklahoma code of conduct, even the state Constitution. They could have saved themselves a lot of time by referring to section 1 of Oklahoma's state constitution that reads:
"The State of Oklahoma is an inseparable part of the Federal Union, and the Constitution of the United States is the supreme law of the land."
What good is it to even want a Constitution that bends only to the will of certain individuals? Though not explicitly stated, was not the original intent of the Constitution reserved primarily for white, male landowners?
But that proved too truncated for a nation committed to the notion of "We the People."
The Constitution does not rest in hibernation, on call to periodically adjudicate what one may perceive to be a specific injustice. It instead must live in ongoing tension.
It is a document that originated in conflict in order to provide a conceptual framework that with a little tinkering has stood for 225 years. I have been inspired by rulings, based on the Constitution to expand rights to those originally left out. Rulings using the same document have also disappointed me.
If the Constitution were anything else, it would not keep us on the path toward a "more perfect union."
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