THE BLOG
12/18/2014 09:58 am ET Updated Feb 17, 2015

When Racism Intersects With Absurdity

Racism is one of those unique words in our lexicon that embodies a slippery slope of understanding, belying a comprehensive definition.

One says it, what do they mean? Another hears it, what did they hear? As a result, charges of racism can sometimes intersect with absurdity.

If reports are accurate, a number of law students at UCLA are the latest example of applying an absurd standard under the rubric of racism.

In the aftermath of the grand jury in Ferguson, Missouri, that decided not to charge officer Darren Wilson of shooting Michael Brown, constitutional law professor Robert Goldstein queried his students whether Brown's stepfather, Louis Head, should face indictment for shouting "burn this b---- down!"

The crux of the issue was whether Head's comments, which were captured by a CNN cameraperson, incited the subsequent violence that occurred in Ferguson? Goldstein asked students to write a memo advising whether the prosecution should bring charges against Head.

This was not an ethics course asking moral questions, but rather a constitutional law class with legal inquires. Somehow the wound was too fresh, the tragedy too severe for some students to ponder the legal questions raised by the events in Ferguson.

In what appears to reasonable persons as a First Amendment issue, was quickly thrown into the caldron of racism. Some students objected to the question and Goldstein later apologized.

Let's assume momentarily (and I do mean momentarily) that racism was the basis of Goldstein's question. How does it prohibit students from grappling with the constitutional implications?

Did Head's words meet the standard provided by Justice Oliver Wendell Holmes in 1917 that free speech does not protect one who falsely shouts fire in a crowded theater? More germane to the situation in Ferguson would be the Supreme Court's ruling in Brandenburg v. Ohio.

For the first half of the 20th century the Court wrestled with the ramifications of free speech. In 1969, the Court ruled in Brandenburg the limits of free speech, and that remains the standard today.

Though inflammatory, did Head's remarks incite, as the Court defined in Brandenburg, "imminent lawless action"? Can the prosecution establish a link between what Head said in the video footage and the violence that followed?

If not, then his speech is protected, and the prosecution would have no grounds to charge him with a crime.

Ironically, Brandenburg, a leader in the Ku Klux Klan, made a speech at a Klan rally and was later convicted under an Ohio criminal syndicalism law. The Court ruled 8-0 in his favor, which included Justice Thurgood Marshall, who 15 years earlier successfully argued before the Court in Brown v. Board of Education, which overturned 58 years of constitutionally protected Jim Crow laws.

Understanding of and appreciation for the Constitution cannot be encased on the narrow parameters of one's feelings. Fundamentally, the Constitution that sits under glass at the National Archives is an amoral document. Its morality is infused by the ongoing commitment of "we the people."

It was a teachable moment that was squandered. Rather than engage in the complexities of the Constitution, a group of students at one of the nation's prestigious laws schools opted to hide behind the arrested development of racial essentialism.

A term coined by researcher Carmit Tadmor of Tel Aviv University, racial essentialism reduces creative thinking by making people more closed-minded. It is to view the world with the anvil of racism around one's neck.

Tadmor's findings suggest racial groups possess underlying essences that represent deep-rooted, unalterable traits and abilities -- and creativity. They hypothesized that, once activated, an essentialist mindset would lead to reluctance to consider alternative perspectives, resulting in a generalized closed-mindedness.

But racial essentialism is not something that merely infects the individual. Those unwilling or unable to consider the nation's ongoing struggle with its original sin prefer examples like that at UCLA when charges of race are intertwined with absurdity as representative of the larger discussion.

As recent events indicate, the racial fault line in America remains a tenuous one. It can ill-afford to be bogged down by the trivial pursuits of the privileged, regardless of race.