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Sunday, March 20, 2016

The Unbearable Non-Whiteness of Being: On Resume Whitening

A recent study by University of Toronto Professor Sonia Kang and her colleagues showed that job applicants that are members of racial minority groups are more than twice as likely to receive a callback when they “resume whiten,” that is, when they tailor information on their resumes to appear to be white. Their paper is available here. This study confirms what other research has shown regarding, for example, the relative lack of success of job seekers with stereotypically black (such as "Lakisha" and "Jamal") or Latinx names.

This study also accords with my own anecdotal experiences, and with those of many, many people of color that I know. I discussed these sorts of experiences in another blog article a few years ago where I coined the term "phone passing." I "resume whitened" decades ago when I was seeking to begin my career as a lawyer. I believed that having a race neutral resume would at least get me into the initial interview.  Once I got in, I reasoned, I would have a chance to persuade interviewers to seriously consider me. In theory and in limited practice the notion of the race-blind resume has potential. Race-neutral resumes got me into far more interviews than when I added biographical details that suggested that I was black. The on-campus interview process at my law school, and later sending out unsolicited resumes after graduating, were perfect laboratories for testing out my hypothesis. The non-raced resume was clearly superior as a tool for obtaining a first interview. I was proved wrong, however, in my hopes about what would happen once I got into such interviews.

On-campus interviews where I went in race-blind were especially painful. To summarize, many interviewers who did not know my race before the interview lost interest when I actually appeared at the interview. I was a frequent visitor to the office of the Dean of my law school, lodging complaints against employers because so many interviews that I did on campus resulted in shocked stares and offensively obtuse comments when they saw the "mismatch" between my resume and my face. A real life example: "Princeton; is there a community college by that name? You didn't go to the undergraduate school in New Jersey, right?"

Perhaps worse was the sudden attention to my GPA that arose only after I got into the door of an interview: "Oh, it's too bad; if only you had half a point higher GPA." Why, I wondered, had they invited me to the interview if they felt that my stated in advance GPA was disqualifying? Never mind that white classmates with much lower GPAs obtained jobs at these very same firms. Sometimes differential application of formal requirements is as a result of unconscious bias. But differential reliance on formal requirements is often a conscious tool used to exclude and/or disadvantage people of color or other people on the social margins. Arguing prerequisites and procedural normativity is, of course, not new to those with bad faith objectives: such is the stuff of voting literacy tests and other tools of invidious discrimination. In the hands of ill-intended people, procedure is a sword and a shield. Procedure is often used with impunity to undermine substantive rights and to create and maintain inequality.

In short, while having excellent educational credentials and quality experience is certainly helpful when job seeking, adding femaleness and racial minority status dramatically reduces opportunities. This is the reality for many people. What can be done about it?

It is difficult to address this kind of discrimination in the open marketplace. However, in the case of lawyers, there are, I believe, mechanisms that can be implemented to help dismantle such discrimination. To start, I believe that law schools have a duty to address the problem of racial and gender–based employment discrimination head-on. Schools might begin with conducting their own surveys to determine the race and gender of students with full-time, JD and/or bar passage requiring jobs after graduation. Currently the American Bar Association requires law schools to report employment status and duration for graduates. The journal U.S. News and World Report, which ranks law schools, also collects these same statistics when they survey law schools for their annual rankings.

Neither the ABA nor U.S. News appears to collect the race and gender of those employed. The absence of such publicly accessible data leaves students of color, and especially women of color, at the mercy of anecdotal evidence and “Negro motorist green book”-style publications. This is not to disparage such publications; on the contrary, some are useful in several respects. See, for example, The Black Student’s Guide to Law Schools. But these publications sometimes rely upon metrics that may be poor indicators of whether minority students are likely to obtain JD or bar passage required jobs after attending a particular law school. Only actual data could begin to tell that tale.

Law schools can also help by instituting and demanding adherence to ethical standards for employers that are permitted to recruit on campus. Employers should be urged to offer clear, transparent standards for hiring and to avoid nebulous assertions about "fit" and "collegiality." And where explicit standards for hiring are stated, employers should be urged to examine, for example, whether their insistence on certain prerequisites such as class standing or legal experience are good-faith, bona fide occupational qualifications. Are firms less well served by looking at the top twenty-five percent of a class as opposed to the top ten percent? And where firms insist that they legitimately require such prerequisites, they should be required to demonstrate that their hiring norms are in line with those stated prerequisites. Many of these suggestions are already in place via the National Association of Law Placement Principles and Standards. But it is one thing to articulate a set standards.  It is quite another thing for law schools to create an environment where students feel that they can discuss their recruitment experiences and have their concerns taken seriously.

Perhaps an even more direct approach for some law schools would be to avoid fine-tuned ranking systems or to refuse to rank all together. As some have noted, law schools in the top of the U.S. News rankings routinely give higher grades to more students than do lower-ranked schools. In contrast faculty at some lower ranked schools are exhorted to use "the full range of grades" on grading curves without sufficient regard for the fact that sometimes student performances are so closely stacked together as to make highly-differentiated grading systems exercises in hair-splitting.

There are probably some who will argue that in this time of relatively scarce legal jobs, law schools should do nothing that might reduce employers' willingness to recruit at law schools. This argument, however,  unfairly promotes the interests of some students over others.  This argument also ignores very real and persistent discrimination that no amount of resume whitening will eliminate. Law students need employers, but employers also need law students, even in a narrowed legal job climate. Law schools are ideally situated to foster relationships that are mutually beneficial and fair to both employers and students.

Wednesday, December 2, 2015

Get Tough, Big Team, Get Tough: On the Resilience of Student Protesters of Color

In light of the recent student protests at the University of Missouri, at Yale, at Princeton, and at many other colleges and universities, there have been a number of critics who have admonished the mostly black students and their allies who demand that universities as institutions address long-standing problems of racism. The student protesters are often told to "stop whining," "deal with it," "stop being crybabies," and are otherwise exhorted to toughen up and solve the problems of campus racism on their own.

Yes, these critics say, the student protesters need to toughen up. They need to put their shoulders to the wheel, keep their noses to the grindstone, keep their eyes on the prize, take heart, chin up, turn the other cheek, suck it up, develop a thick skin, and just generally perform all the other anatomic metaphors for relentless attention to task and resilience.

It is enough to make one want to tell such critics to perform another anatomic metaphor, one that would be anatomically difficult it not impossible.

These critics do, however, have a point. Resilience, or, as some people like to call it, grit, has its place. Perseverance in the face of adversity is what helps to make many people, including many of the black student protesters seen in recent days, successful.  But if, as I opined in a letter to the Wall Street Journal a few years ago, grit were a major factor in success, more people who start life disadvantaged would succeed more often. What these critics often conveniently ignore about many student protesters is that they are often more resilient than critics could possibly even imagine. Indeed, it is resilience that allows some students with disadvantages to reach elite colleges. I think that the point that the students are often making is that they are tired of expectations that they stoically, unilaterally, and individually address what are in fact longstanding institutional problems and concerns.  Parul Sehgal’s recent article in New York Times Magazine also makes this point.

Some critics of recent student protesters seem to see the students as actors in a play called college life, actors who are there, literally and figuratively, to provide local color. These actors are charged with performing outsized innate traits of gratitude, forgiveness, and yes, resilience. These actors are not permitted to go off script and complain about being surcharged with additional burdens. The role of these actors is akin to that of student athletes on some campuses, for student athletes, particularly those in prominent athletic programs, are also often bodies of color put into motion to perform innate, race-based physical superiority. These student athletes, as I wrote in the NYU Review of Law and Social Change, are “new minstrels” who are prized for their swagger, smiles, and apolitical disconnection from larger campus or societal issues. It is no wonder that the recent action by football players at the University of Missouri to threaten a boycott of football related activities in response to racial tensions on campus was met with so much surprise. Student protesters of color, like student athletes, are supposed to get tough, big team style, even, or perhaps especially, in the face of institutional neglect.

But while “get tough, big team” is a rousing chant for the day of the big game, it is also a reminder of the ways in which some student bodies are viewed as mere performers on a stage. Get tough, big team fails to account for the pervasive inability to imagine people unlike oneself in a way that engenders ongoing respect, equality and morality. It is for this reason, writes scholar Elaine Scarry, that institutions such as colleges and universities must help to foster conditions of recognition that do not rely upon individual action or imagination.

Tuesday, November 10, 2015

Kids Just Want to Have Fun (In a World Turned Upside Down)

<< I wonder, and I am not trying to be provocative: Is there no room anymore for a child or young person to be a little bit obnoxious… a little bit inappropriate or provocative or, yes, offensive? American universities were once a safe space not only for maturation but also for a certain regressive, or even transgressive, experience; increasingly, it seems, they have become places of censure and prohibition. And the censure and prohibition come from above, not from yourselves! Are we all okay with this transfer of power?>>

The above quote is taken from the e-mail of Erika Christakis, a Yale lecturer whose training is in early childhood education.  Ms. Christakis, speaking in the language of her profession, wrote her e-mail in response to a pre-Halloween message from Yale administrators asking that students be sensitive about the ways in which certain costumes, such as donning blackface or redface, might be offensive to members of the communities being mimicked. Ms. Christakis went on to lament that she could not  “give credence to a claim that there is something objectionably “appropriative” about a blonde-haired child’s wanting to be Mulan for a day. Pretend play is the foundation of most cognitive tasks, and it seems to me that we want to be in the business of encouraging the exercise of imagination, not constraining it.”

Perhaps not surprisingly, many students of color and others within and outside of Yale took offense at Christakis’ e-mail, with some people calling for the ouster of Christakis from her position as house “master” in a Yale residential college, a position she holds along with her faculty spouse.  I am in agreement with many of those protesters. Ms. Christakis’ e-mail seems to conflate the wishes of a white pre-schooler to dress mimicking a fictitious, animated, individual and named Asian character with the desire of college-age, mostly white, often male students to costume themselves as nameless, de-individualized black, Asian or other persons of color. Small children of any background need neither excuse, justification nor explanation for wanting to costume themselves as fictional characters aimed at children.  Children who do so typically mean no harm and cause no harm. Little kids just want to have fun. However, in the vast majority of cases, college “kids” are legally adults. 

Yes, these big “kids” also want to have fun. They want to be irreverent and silly and, as Ms. Christakis writes in her e-mail,  “a little bit obnoxious” or “a little bit inappropriate.” Here I agree with Christakis; maybe these college students should be allowed a lot of leeway to behave in these ways. College campuses function, as I have described in some of my work, as Foucauldian “other spaces.” Colleges are places where the young go not just for education but also for respite from the world.  We should condone and even encourage a certain amount of mildly riotous carnival fun like Halloween where, as Christakis writes, students may engage in “a certain regressive, or even transgressive” behavior. Just as in other parts of the grown-up world, students should not be required to respect others.

But there are times when students should be asked to respect others. This is because there is a difference between a nineteen-year-old member of a majority, mainstream community on an elite campus who wants to masquerade as a member of another, minority race and a preschooler who wears a character costume depicting someone of another race. There is, yes, a long history of carnival behavior in many societies including our own, where mainstream social, legal or economic norms are subverted. In carnival, privileged figures are sometimes mocked, demoted and subverted by the oppressed who then assume power, even though only in pretense and usually for only a short while. Carnival has been, and continues to be, a permitted blowing off of social steam that, while riotous and even sometimes offensive, is often ambivalent in its goals: in carnival the lowly sometimes secretly admire and yearn for the respectability and privilege of those whom they mock.

I have blogged about this before. Unfortunately, carnival is also frequently accompanied by a perverse ersatz carnival wherein people in power mock the relatively powerless.   Tolerating ersatz carnival is condoning insult. And citing freedom of expression norms to protect it is especially pernicious. Colleges have a unique responsibility to educate students well beyond the classroom. In loco parentis may not be as robust a doctrine as in past decades, but neither is it dead letter. Inculcating values of respect, thoughtfulness and decency remain important parts of the mission of modern colleges.

The Atlantic magazine seems to agree with Ms. Christakis, describing her e-mail as “a model of relevant, thoughtful, civil engagement” and sees the students protesting the e-mail as “intolerant.” Again, I disagree. Ms. Christakis' comparisons are so inapt as to almost seem to be intentional provocations (an intent that she denies.) Cultural appropriation is a real thing and a real harm. The Atlantic article is a woeful reminder that we are living in a world turned upside down, one in which the vocabulary describing the conditions facing marginalized people such as "intolerance" and the words offering them succor such as “safe space” are being used to describe the conditions of the empowered majority. We are in a world in which the majority is framed as a besieged minority when there are requests that they not act in ways that oppress others. Yes, “kids” at college just want (and should be permitted) to have fun. But they should not do so at the expense of demeaning others.

Wednesday, July 29, 2015

Dr. Huxtable as Mr. Hyde: A Reprise of Bill Cosby and the Absence of Memory

 <<"And you never asked about the—place with the door?" said Mr. Utterson. "No, sir: I had a delicacy," was the reply.

“I feel very strongly about putting questions; it partakes too much of the style of the day of judgement. You start a question, and it's like starting a stone. You sit quietly on the top of a hill; and away the stone goes, starting others; and presently some bland old bird (the last you would have thought of) is knocked on the head in his own back garden, and the family have to change their name. No, sir, I make it a rule of mine: the more it looks like Queer Street, the less I ask.” 

"A very good rule, too," said the lawyer. >>

--Robert Louis Stevenson, The Strange Case of Doctor Jekyll and Mr. Hyde

The blog post below is a reprise from November 20, 2014 titled "Clarence Thomas, Bill Cosby, and the Absence of Memory".  In light of the publication of New York Magazine's cover story depicting thirty-five women who have accused Bill Cosby of sexual assault, I thought it was a particularly apt time for re-sharing this piece. Since my publication of the November 20, 2014 post, it seems that the chickens have come home to Cosby's house to roost.  Or, at least, they are in the barnyard scratching at the gate: there has been more evidence supporting the allegations against Cosby. The women in the New York Magazine piece, rendered in black and white, are both black and white, but mostly white. This racial tableau, curiously to some, has thus far been suppressed as part of the larger narrative of outrage. I don't know that it is so curious. Bill Cosby was one of those Famously Transcendent Black People: he was racial in a non-racial (non-threatening) way. 

While the specter of black males as sexual predators has long been a potent trope in the United Statesean pysche, there is a parallel and perhaps even more powerful trope of the sexless, subservient black Uncle who could be trusted with white women and children as well as the family jewels and secrets. Bill Cosby as Heathcliff Huxtable was the black Uncle in spades (pun intended). Did anyone ever wonder at Heathcliff Huxtable's profession as an obstetrician? A master of the helping profession, his amiable, avuncular manner reassured America that all was well in the post-Civil Rights era, all while racial turmoil continued to bubble beneath the surface. 

Bill Cosby's alleged numerous predations were made possible by a persistent, willful social and legal blindness, forgetfulness, and an almost criminal incuriosity. These behaviors were adopted in order to sustain the black Uncle trope. Dr. Huxtable as Mr. Hyde is a jarring disruption to a myth that many hold dear. 


There has been a resurgence of news items recalling numerous rape allegations made against entertainer Bill Cosby over the course of several years. One article in the New Republic  queried how “such incendiary material” could be “both public and simultaneously hidden from view” and suggests that the rape allegations against Cosby create dissonance with many people’s desire to believe that racial and sexual inequality are problems of the past.

The allegations regarding Bill Cosby have proved very timely for recent discussions in my Race and Law class, as we just completed a unit on the Clarence Thomas confirmation hearings and the allegations of Anita Hill. I was somewhat surprised that some students had apparently never heard of the sexual harassment allegations against Justice Thomas. 

I was completely flabbergasted, however, at the fact that some students, including some women, thought that even if Justice Thomas had done and said the things that were alleged, they did not constitute sexual harassment and/or did not have anything to do with his fitness to serve on our highest court. Some women opined that this was "just how some men are" in the workplace, and women needed to deal with it or get out. 

I don't think that this bodes well for us as a society. And not because I consider the students’ comments blameworthy. I myself have been in situations involving sexual harassment of epic proportions, and my thoughts ran much the same way at the time.  For instance, at my law firm summer job following my first year in law school, I was treated to remarks so vile and behaviors so obscene that I have never fully recounted them to anyone. When it became clear that this kind of behavior was pervasive in the firm, I agonized about what to do. Should I tell someone? Tell who, I thought.  Some of the name partners were the worst offenders.  Should I quit? I dismissed that possibility immediately.  Though I had very good credentials, finding a firm job after first year summer had been like grabbing the brass ring, especially when so many of my classmates of color had not gotten such a job.

In addition, I did not wish to quit or address the harassment head-on because the money at my job was very, very good.  It was more than I had earned in my life up to that point.  It was more than my parents earned. And, as a poor kid, I needed that money.  I more than needed that money. I wanted that money and the things that it could buy. There are pictures of me from that period of my life wearing one of my new Nordstroms business suits, standing next to my new car, holding my new briefcase, smiling broadly. It was a cynical inversion of a g-money cash fanning photo, except instead of selling drugs I was selling cool, college educated, black upwardly mobile yearnings.  Not unlike those shown on the Cosby Show, which, not coincidentally, was a staple of my law school viewing. So, I soldiered on in the malign conditions of sexual harassment at my job.  When, at the end of the summer, I was offered part-time work during the school year, I accepted it.  I reasoned that it made no sense to pass up such high wages. 

Finally, a few months afterward when I could take it no more, I walked purposefully into the hiring partner’s office and told him…that I needed to quit in order to insure that my grades remained high.  We looked each other in the eye, and I knew that he knew the real problem.  We shook hands warmly, and he gave me an excellent reference that sent me on the way to the rest of my career. Did I miss an opportunity to fight against women’s oppression? Maybe. Were the hiring partner and I complicit in maintaining the hideous atmosphere, with my excellent reference being the price of my silence (never mind that I had outworked every associate in the place)? Again, maybe. But more likely is the case that my relatively low status at the firm would have meant that my complaints would fall on deaf ears.  Also more likely is the case that I would have been blackballed from other employment in the immediate future.  So it went, and so it goes.

As I wrote in a piece in the Berkeley Journal of Gender, Law and Justice reviewing a recent book by Anita Hill, Hill’s testimony at the Clarence Thomas confirmation hearings “both engendered and gendered a national conversation on sexual harassment in the  workplace and demonstrated how such harassment had the potential to oppress and demean even relatively privileged women.” However, that testimony, and its aftermath, quickly became a part of what film theorists call the “space-off”: spaces not visible within a camera’s frame that may only be inferred from represented (main frame) spaces in the center of the camera's eye. Space-off material is sometimes even erased or subsumed in the represented space by cinematic rules of narrative. And from the space-off of so many years ago, Hill’s testimony, much like the allegations of rape by Cosby’s accusers, has traveled even farther, seemingly falling into the void of absent memory.

The absence of memory regarding allegations against Justice Thomas and Bill Cosby, and the ways in which the allegations have been addressed when they are remembered, speaks to how much work still needs to be done to secure the rights of women in the workplace and elsewhere.

Thursday, June 18, 2015

Reciprocity, (Ir)reality and Rachel

For years, going back at least to the time I was in middle school, I was always subject to imbalances in social reciprocity. I was always the one chasing my close associates for get-togethers, phone calls, or other interactions. I became acutely aware of this near the end of middle school when two people who I thought were my very best friends just dropped me cold, saying that they no longer want to be bothered by me. I was shocked, and I spent the next several months learning how to make new friends.

It was painful, but I did learn to make new associates, if not friends. I learned to be the savvy chooser rather than waiting to be the grateful chosen. Eventually I made up somewhat with one of my friends who had dropped me (the other one never spoke to me again). On the second go around, however, we were not as close, and I accepted the fact that a person doesn't have to be everything to you in order for you to interact with them. They can be your tennis buddy, or your research buddy or your joking at the water cooler buddy and not come anywhere near being your best friend. Sometimes, the individual interaction matters little in the grand scheme of things. Rather, it’s the improvement to your overall tennis game or to your research project or to your workplace enjoyment that matters.

Over the years the memory of the lesson that I learned in middle school has waxed and waned, since it is my nature to be all in with people when I declare myself to be closely allied with them. But then that old imbalance of social reciprocity starts up again, and I find myself excusing their failure to engage interestedly. I shrug off slights, saying, "My friend is busy and that's why I can't hear from him. I will be there when he's ready to meaningfully engage."After all, being the chooser rather than the chosen means that sometimes you have to wait for a response, hoping to figure out what is going on with your friend. You look and you hope for the signs that will vest the relationship with meaning, constantly sounding for depth that you hope is there.

And looking and hoping works just fine, until you get other associates who actually do seem to value you and who do reciprocate heartily and warmly, portending a relationship rich with valuable possibilities. And then you stop and say, "Wait, I am busy, too. I need to guard my time and save it for people who matter to me and to whom I really seem to matter." Yes, again I say seem, for much of life is irreal in the philosophical sense, not the opposite of reality or truth but an altered version with its own internal rules and consistencies. As my mother used to say, it’s no shame to engage with someone who only pretends to offer you value in return. But it’s sad indeed to engage with someone who doesn’t even pretend to do so. There is very good reason that one of my mother’s mantras was “Don’t put yourself on anyone or anything.” By this she meant don’t demand more out of people and situations than they are willing or able to give. It is not just a matter of being the chooser or the chosen. Attention and caring are forms of currency; I have said this before in other contexts. Before any expenditure there is a value calculation to be done.

This social reciprocity calculus works much the same way when it comes to addressing socio-legal or political issues.  For the intellectual crowd, issues sometimes pop up that take up all the space in the room, crowding out other more substantial matters. Some of these issues of the moment are not only attractive at surface level, but they offer the promise of depth of engagement, broad meaning, and the chance to make a difference in how people are treated or how the matter is perceived. However, whether we choose them or they choose us, these issues beguile us like a friend that isn’t. Digging beyond the surface level reveals that there is little takeaway and even less meaning to any singularly focused association. But like a tennis buddy or water cooler joker, such issues can be wonderfully valuable for how they contribute to our greater view of things.

So, whether it’s assessing Alice Goffman’s book On the Run or Rachel Dolezal’s claims of blackness, we should take them for what they're worth in the larger scheme of things, thus addressing what really (but what is realness?) matters. And speaking of the larger view of things: (a) It’s funny that these two women have in common fixations on black underclass life and victimization that may not be grounded in reality (b) renowned sociologist Erving Goffman’s (father of Alice, which may explain the seeming uncritical, even fawning reception of her work from graduate school at Princeton until the present) notions of stigma as spoiled identity and performance in everyday life may help us to theorize about Alice and Rachel as exemplars of a broader phenomenon.

Wednesday, May 13, 2015

Plus Ça Change...Of Gentrification and Grim Racists

A recent article in New York Magazine detailed some of the racist tactics of a landlord who controlls several New York buildings ("Grim, Racist Methods of One Brooklyn Landlord").  In the article the anonymous landlord discussed how he evicted black tenants in buildings that he owned in order to put in white tenants. He bought out leases and installed white tenants, asserting: "My saying is — again, I’m not racist — every black person has a price. The average price for a black person here in Bed-Stuy is $30,000 dollars. Up over there in East New York, it’s $10,000 dollars. Everyone wants them to leave, not because we don’t like them, it’s just they’re messing up — they bring everything down. Not all of them."  Later the landlord stated: "If there’s a black tenant in the house—in every building we have, I put in white tenants. They want to know if black people are going to be living there. So sometimes we have ten apartments and everything is white, and then all of the sudden one tenant comes in with one black roommate, and they don’t like it. They see black people and get all riled up, they call me: “We’re not paying that much money to have black people live in the building.” If it’s white tenants only, it’s clean. I know it’s a little bit racist but it’s not. They’re the ones that are paying and I have to give them what they want." "

I think that there will be many readers (of the article linked above and this blog post) who are appalled and surprised at the persistence of racism in housing.  There will be some who will be vaguely disquieted but they will dismiss this landlord as an ugly outlier in a world where most providers of housing are fair and non-racist. Then there will be others who, like me, from personal experience and the experience of many other people of color, know that racism (often combined with sexism; the Welfare Queen still lives in popular imagination) in the provision of housing is as common as non-Whole Foods variety, non-organic, sliced bread.

Looking back, across many leases and purchases of housing for myself and my family, I can count on one hand housing searches where I was *not* at some point the victim of racial discrimination, including in my most recent search for housing last fall. Then I was lucky to have a realtor who dealt with me fairly.  But more than one landlord changed tunes, going from "Happy Days Are Here Again" after hearing from me by phone or e-mail to "The Volga Boatmen" on seeing me. I was honestly fearful of seeing any landlord before attempting a rental, and I remain grateful that my current landlord was pleasant and seemed positively disposed to my candidacy even after seeing me. That in 2015 I am thankful to have been treated fairly (much less well) when seeking housing speaks volumes.

Landlords and sellers are often subtle in their discrimination.  Even when housing providers are boldly racist (like the realtor that I spoke to on the telephone some years back about a rental; when she drove up to the property and saw me she put the pedal to the metal and took off like a bat out of hell. She wouldn't take my calls after that...), it's often hard to prove such cases.  This is the grim reality of "fair housing" in this country. Most people who know that they are being discriminated against don't try to vindicate their rights, and even if they did, they might have little to show for it. This is also the grim reality of "gentrification." Though some have argued that gentrification is merely the "improvement" of neighborhoods, class is but a small part of its dynamics. Filmmaker Spike Lee spoke eloquently in an obscenity-laced response (or "rant" as some saw it) to claims that gentrification is an unmitigated good. The race and culture of old settlers is often ripped out right along with corner stores and bodegas. I have, in the past, worried that exceptions to the FHA (like the Mrs. Murphy clause discussed below) are swallowing the rules of fair housing. But there is no need to worry about exceptions when the rules are violated ( or savvily avoided) with impunity.

So, it appears that the more things change, the more they stay the same. As a tribute to old times, I republish below my blog post from November 2008, "Dialing Mrs. Murphy (Or, Me Talk Pretty One Day").


I began the search for temporary housing by scouring Craigslist. I had been making calls for months, but now it was time to nail something down. I found a promising ad: fully furnished, all utilities included, Internet and parking. The pictures looked great. Maybe a little more heavily decorated than I’d like, but the place looked well kept. I made the call. Someone picked up on the first ring, whereupon I stated my reason for calling, trying to sound at once business like and warm and friendly. After listening patiently, the person on the other end asked me to hold while she switched phones. She returned and began telling me about the apartment.

“It’s my father’s place. He’s away visiting in Ireland. We figure we may as well make some money since he’ll be gone for so long. It’s part of my house, downstairs. It’s in the nice part of town so you don’t have to worry about security.” The woman had an Irish accent which grew more pronounced as she continued. “We want someone who doesn’t smoke, has no pets, and is the right sort. It is my home, you know. You’ll have to call back and talk to my husband and he can schedule the showing. You sound respectable, you said you’re a law professor, is that right?” 

“Yes, I teach in Cleveland. I don’t smoke, and while I like pets I don’t really have time for or interest in caring for any so I have none.” I said it all rather too quickly. After her comments, I felt as if everything I was saying was a lie. Am I the right sort? Will I be a blight on the neighborhood's niceness and security? Am I respectable, or do I just sound as if I am?

Why would I wonder such about such things? Then it hit me.

She probably thinks that I’m white. Why wouldn’t she? I speak crisp, standard, Northeastern U.S. English with, I’m told, a vague hint of Californian that betrays my Los Angeles upbringing. Most people who speak as I do and have the job that I do are, statistically speaking, white. They are also probably men, but the register of my voice no doubt gives away my gender. So, if she thought I was white, she could certainly be forgiven for thinking so. I struggled mightily to curb the impulse to say: “I’m black; will that be a problem?” I didn’t want to ask because I didn’t look forward to any of the three possible responses I envisioned hearing: 1) stunned silence then a stammered “no” which really meant “yes” 2) stunned silence followed by “Yes, it matters”, followed by polite dismissal (or a click as the receiver was hung up) 3) stunned silence followed by righteous indignation at having been asked about whether race figures in such matters (“We’re all post racial now!”). None of the three possible outcomes seemed attractive. I suddenly feared that I had called the wrong number. Could it be...Mrs. Murphy in the flesh?

Many of you know the hypothetical Mrs. Murphy of Fair Housing Act fame.

The 1968 Fair Housing Act (FHA) proscribed discrimination in most housing transactions on the basis of race, color, religion, and national origin. It contained a noteworthy exception, the so-called “Mrs. Murphy” clause found in 42 U.S.C. §3603(b). This section, in brief, allowed landlords who were owner-occupiers of small scale multiple dwelling units or owners of few rental properties to discriminate. Mrs. Murphy, so named during the legislative debates surrounding the clause, was the hypothetical small landlady who ran a boarding house, or perhaps owned a duplex apartment building and resided in one unit while renting the other. Such persons, legislators argued at the time of the enacting of the FHA, should be able to rent their housing as they saw fit, given the small, intimate settings in which their rentals occurred. The exceptions in the FHA, however, did not include discriminatory housing statements or advertising. Under the FHA, Mrs. Murphy could discriminate racially but could not advertise or state that she was doing so. Mrs. Murphy could, for reasons of race, silently turn down applicants who presented themselves. (There are other legal non-discrimination norms that might proscribe Mrs. Murphy’s silent but racist inspired refusal to rent; these I leave for another time.)

I have had my share of racist experiences while searching for housing. (See my blog post How Now, Brown? Parents Involved in Community Schools and the Triumph of Color Blind Ideology.) In recent years, however, when I have mostly sought short term accommodations, I have generally avoided such incidents by dealing with large, impersonal entities such as corporate housing providers who really only care about whether I can pay. When I do deal with smaller, private providers of accommodations, I generally am known to the provider or am otherwise “pre-approved.” In short, I try to avoid the potential Mrs. Murphys of the world altogether.

With the advent of Craigslist, people who would have advertised their housing with a sign in the yard or maybe an advertisement in the local newspaper can now offer their housing to a national or even international Internet audience. So, Mrs. Murphy now has global reach. Really, anyone may dial her number. A caller’s manner of speaking may often reveal gender and sometimes race to her. Thanks to a greater number of integrated social and educational interactions than used to be common, all too often people of diverse racial backgrounds sound like, well, people of non-diverse racial backgrounds. They sound white ("Speaking Standard English is not 'sounding white'," you say! Yeah, I know that song...). When these people telephone out into the world, whether they set out to do so or not, they are phone passing.

Black people know that I mean. Phone passing is when you call to order goods or services and you breeze through the interaction using your best Standard English voice, knowing that in many cases the person on the other end of the line probably assumes your whiteness and treats you accordingly. Not treating you well, necessarily, just neutrally. You get that nice, even, default customer service mode. There’s nothing funnier (in that wry, sad-funny way) than when you arrive to claim the book you placed on hold at the book store (the last one of its type in stock) or to get your vacuum cleaner fixed after talking to the repairman on the phone (who stayed late to accommodate you) only to be confronted with a puzzled “Oh, was that you who called ?” Most such vendors shrug it off and continue to offer the same level of service they offered on the phone. Some are visibly perturbed by what they no doubt see as racial identity fraud and set about giving what is clearly an inferior level of service.

Phone passing presents a thornier situation when it comes to negotiating for longer term arrangements such as housing or jobs. On the one hand, there is an ethic of non-discrimination that theoretically prevails which would eliminate the need for one to announce one’s race. On the other hand, there is the sober reality that race may especially matter in smaller, more intimate situations and the sooner one puts it on the table, the better. I came to that conclusion years ago when first applying for legal jobs. I attended a good number of interviews with interviewers who were clearly flummoxed by the seeming mismatch between my face and my resume. I learned to avoid awkward interactions by prominently listing on my CV items such as “Black Law Students Association Co-Chair” and “National Urban League Scholarship Winner” in order to tip off potential employers.

In the case of my potential Mrs. Murphy, I chose not to give any indication of my race but, the truth is, I have no intention of calling back to schedule an appointment. Am I being unfair in not giving this a try? Maybe. But there’s just too much chance for unpleasantness, and that would be unfair to both of us, non-discrimination norms notwithstanding.

Too bad. She sounded like a nice lady.
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Wednesday, May 6, 2015

Remembering Marie (Or, Marie’s and Einstein’s Theory of Relativity): A Mother's Day Tribute

[It is almost Mother's Day.  This is, in many ways, a very difficult time for me.  Although I am a mother and have been for many years, and I know many people who are mothers, the death of my own mother left me with an odd sense of aimlessness and even resentment in the face of Mother's Day celebrations. As part of my ongoing work to overcome these feelings, and to mark this Mother's Day and what will soon be the twenty-fifth anniversary of my mother's death, I re-publish the following post from May 23, 2010. I cried as I re-read this, but then I smiled. So there is progress. Happy Mother's Day to all.]

I am Very Busy these days Writing and Editing Important Work. I have no time to blog these days, and certainly not today. However, my mother is making me write this.

For those who know me, this may seem surprising, since today is the twentieth anniversary of the death of my mother Marie. (Marie was not her real name, but it’s what we called her, for a host of simple and complicated family reasons. I even insisted that it be put on her tombstone along with her “real” name.) In the past, in the years shortly after her death, I marked the days coming up to it and the anniversary itself with copious private tears, with the tears getting more private with every passing year. Big girls (and certainly not big boys) are not supposed to cry, right? I have, correspondingly, trained myself to cry less at her memory. Even now when I cry I think of how my mother used to complain about my crying as a child. I was the cryingist and whiningist child in America, she used to say. My crying and whining by themselves didn’t so much upset my mother; it was the reasons that I cried and whined. Like many children, I cried for many minor matters, assuredly. But I more often cried for things that were beyond my own personal childish grievances. I was always wanting things to be better and different, big things, things for everybody.

So, for example, I used to cry when my mother had to go off to one of her three jobs. I wondered why she had to work so hard and be gone all the time. (I remember, for example, overhearing my mother confiding to a friend that one of her employers owed her a dollar and a quarter from a previous week. She then spent at least half an hour trying to answer my query about what a dollar and a quarter was and why it mattered so much. Once I understood, I ended up crying because I didn’t want us to need the money. ) I didn’t understand that the days of my infancy and early toddlerhood, when she had no job at all and was with me much more of the time, were some of the worst days of her life. As a teen-aged mother she had struggled every day in a home where she contended with her own mother and with a community that looked down on her.

Later, when my mother sent me to live with my aunt while she, as she called it, “got her life together” (she eventually remarried and then spent time smoothing the way for her children to join her in her new home), I used to hide in the closet at my aunt’s house and cry. I cried not only because I felt abandoned but also because my mother couldn’t live like the mothers I read about in Dick and Jane books. When I was finally able to rejoin my mother I almost never cried in front of her. I had learned many things during my time away from her, among them that it was best to be as little trouble as possible if I expected to fit into her new life. She had enough troubles of her own and really didn’t need the added burden of dealing with America’s cryingist and whiningist child. The only time I remember crying in front of my mother between third and twelfth grades was when we were in an auto accident together when I was 14. During those years my tears were in private at all times, and even in private my tears were more like prayers, fervid supplications that my life and her life would be better at some point in the future.

When Marie died I cried incessantly for months afterward, so much so that my toddler twins used to take up stations on either side of me and pat my back while chanting “Don’t cry mommy, don’t cry.” Except at Marie’s funeral, however, I never cried public tears. Mostly I cried at home in front of my children. I suppose that some would say that tears should especially be hidden from young children, so as not to upset them. I felt the opposite, though. My tears were a signal to them and to myself that I was at home and they were at home, and that at home grief should no more be hidden than happiness. Moreover, I cried at the realization that besides me my children now had no other female relative in the world who would adore them, and I blamed myself for somehow not having a large, loving family to give to them. I cried the most at the realization that Marie’s life, and my life, had finally gotten better, and she wasn’t here to enjoy it.

Today for the first time in many years I cried just a little, even with full freedom to give voice to my sadness. Instead of crying I laughed a lot at the joy her memory evoked. In the years right before her death, when I was first starting off in law practice, I began to put away the stoic pose of my late childhood and college years and had taken to sharing with Marie the trials and tribulations of my work life. Marie, bless her soul, would have none of it. At the beginning of any such conversation she would ignore my complaints and engage me on what she felt to be the truly important stuff of life. “What did you eat today?” she would ask. When I persisted in complaining about something at work she would grow exasperated. “Why are you upset about these things?” she would ask. “Don’t whine, work. I raised you so that you could be in a position not to kiss anybody’s [behind. Though Marie could be as polished as a wealthy suburban matron in public, she could at times curse like a sailor when the situation called for it.] Work hard not only for the sake of hard work, but so that you can get out if you must. Vote with your feet.” Then, my mother would go back to her conversation about the real substance of life. “Now, what did you eat today? And did you spend some time outside today?”

I thought at first that the reason my mother refused to engage me in the details of my professional life was that it was too alien for her, too far removed from her own life. My mother had, after all, scarcely attended a regular high school, having studied much of the time at a “continuation school” for pregnant girls and later finishing up at a night school. But I figured out that this wasn’t the reason at all that my mother behaved this way. She was not well educated, but she was certainly bright. She understood the details of my lawyer’s life. The fact was, she understood them better that I did. What she understood was that as important as I thought that my professional life was, it was but a shadow of the seemingly simple but immensely rich and complex internal workings of my personal life. Only when that personal part of my life was well founded could any of the rest of it come together.

I am reminded of a book that I came across recently called Einstein on Race and Racism by Fred Jerome and Roger Taylor. In it the authors discuss one of the less-publicized aspects of Einstein’s life, his personal interactions with black people. Notwithstanding the almost shocking absence of black people from the movie “IQ,” a lighthearted fiction that portrays aspects of Einstein's life in the town of Princeton, there were a significant number of black people living in the town during Einstein’s years there, and he had close associations with many of them. The book offers insights from many members of Princeton’s black community on why Einstein was seemingly so comfortable in the black community, both within Princeton and outside of it. It was more than a great man’s admiration for a “simple” folk; after all, he counted among his friends some of the most brilliant and accomplished blacks of the day, such as Marian Anderson and Paul Robeson. What, I think, made Einstein so comfortable was that just walking around Princeton’s Witherspoon Street black community and talking with the residents there about apparently small things, as Einstein often did, made his own scientific work make sense. Such walks and talks were, I would argue, the real stuff of Einstein’s life. As one respondent in the book wrote about Einstein’s walks in the black community, there “he was free.”

So, my mother Marie, like Einstein (she would be tickled by the pairing, because she would know that it was, at the same time, improbable yet highly probable), understood that if life could not be reduced to its smallest elements, then larger structures, such as Law and Science, stood in peril of toppling.

Rest in peace, Marie.