Of Jazz and Double-Dutch Jump Rope: Serena Mayeri’s Reasoning from Race

There has been a long history of reasoning from race--acknowledging the significant analogies between racist, especially anti-black practices, and sexist practices. Mayeri’s Reasoning from Race plumbs the depths of this strategy.  I review the book in a recent article in Texas Law Review Dicta.  I use metaphors from popular culture-- jazz and double-dutch jump rope-- to frame my discussion.  

Women and blacks have often been said to have lesser faculties than white men. It has been observed that, unlike other some social outsiders, women and blacks frequently possess physical and social characteristics that function to systematically and explicitly exclude them from opportunities to which members of other groups might aspire. These shared characteristics of women and blacks have been summarized as falling into several typologies such as high social visibility because of appearance and experiencing social, legal, economic and educational disparities that result from discrimination. Given these shared typologies, it would seem that reasoning from race would play an even larger role in theorizing the way that gender oppression works. That there are not more discussions of this nature speaks not only to the barriers themselves but also to the way in which members of oppressed groups articulate their goals and the differences between themselves and others.  

There is frequently a process of convergence and divergence as groups shape their identities. This is especially evident in the context of law. While race-sex congruence often framed the legal strategy of many feminist advocates as they struggled to bring the gains of the civil rights movement to women’s quest for equality, feminism's embrace of civil rights norms was sometimes a hesitant embrace. This hesitance was born of the need for women to forge their own road, even if that road was sometimes cut with borrowed tools and in some parts parallel to or intersecting with the swath blazed by the civil rights movement.

Knight Watch: Cain’s Gage and Disengagement

It looks as if Ginger White has picked up the gage thrown by Herman Cain’s lawyer, according to a New York Times news report alleging that Republican hopeful Cain was involved in a 13-year affair with Ms. White.

That’s gage as in the token, such as a glove, thrown down by medieval knights to signify a willingness or desire to enter into combat to gain satisfaction in a dispute.  Several weeks ago when some women came forward with allegations of Cain’s sexual misconduct, Cain’s lawyer warned other potential accusers to “think twice” before coming forward with additional allegations.  

I cringed when I read that—“think twice”?  Really? Where I come from we were taught not to try people with such language.  Such challenges are an invitation for someone to come in and try to knock your block completely off. Even people who had no opinion whatsoever about Cain’s innocence or guilt of the allegations were animated by such talk. Such talk takes us back to the medieval judicial duel or trial by combat in which accusations were settled by tossing a gage followed by a battle between the accuser and the accused, or their stand-ins. Lorenzo Sabine’s Notes on Duels and Dueling, published over 150 years ago and detailing the history of the duel, tells us that early Western notions of the judicial duel were founded on the belief that “a brave man did not deserve to suffer, and that a coward did not deserve to live.” 

Speaking of medieval times, knights and gages, the recent turn of events reminded me that our political process bears more than a passing similarity to a medieval tournament.

Consider this language from a website on medieval tournaments: 

A Medieval Tournament was a series of mounted and armoured combats, fought as contests, in which a number of combatants compete and the one that prevails through the final round or that finishes with the best record is declared the winner and is awarded the prize.

Gee, sounds like a major party presidential primary leading up to the nomination, doesn’t it?

Tournaments were imported from France during the 12th century and formed an important element of Medieval military and social life…. The contests in the tournament were fought with blunted swords or lances. However there were still many casualties, as many as 10% were injured, and there were also fatalities. The number of fatalities dropped as the tournaments became better regulated…. Knights would fight as individuals but there would also be team events. There were many different types of Medieval Tournaments which each had a different type of combat method. The events of the tournament were the joust, the melee, and fighting on foot.

Opponents in same-party political primaries usually favor blunted weapons.  After all, it doesn’t pay to try to maul your opponent—if you play nicely, you might be his or her vice presidential choice.  And while all three forms of fighting are in evidence in presidential primaries, the melee is probably the least favored—everybody could get hurt that way.

According to Sabine, combatants always fought in a just cause, at least theoretically.  However, at times even the combatants knew that they had entered into combat when they were in fact in the wrong. This could lead to “evasive shifts” in which the reason for fighting changed in the middle of the battle in order to  create an actual duel-worthy besmirchment of honor. Consider the following story from Sabine:

These evasive shifts are well illustrated in the story of a knight 

who entered the lists upon a case which he knew 

was wrong, and who, to change the issue, fled at the 

first onset." Turn, coward !" exclaimed his 

antagonist. "Thou liest!" retorted the knight: 

"coward I am none, and in this quarrel will I fight 

to the death; but my first cause of combat was 

unjust, and I abandon it."

It remains to be seen if Cain will make like the knight in the story.

The Polyandrous Neo-Office Wife

An article in a recent issue of the ABA Journal may help to shed some light on how women partners fare at larger law firms in terms of office support.  The article describes how, in a survey of 142 legal secretaries at larger law firms in 2009 conducted by Chicago-Kent law professor Felice Batlan, not a single secretary expressed a preference for working with a female partner.

The article detailed some of the explanations given by survey respondents: 

• “Females are harder on their female assistants, more detail oriented, and they have to try harder to prove themselves, so they put that on you. And they are passive aggressive where a guy will just tell you the task and not get emotionally involved and make it personal.”

• “I just feel that men are a little more flexible and less emotional than women. This could be because the female partners feel more pressure to perform.”

• “Female attorneys have a tendency to downgrade a legal secretary.”

• “I am a female legal secretary, but I avoid working for women because [they are] such a pain in the ass! They are too emotional and demeaning.”

• “Female attorneys are either mean because they're trying to be like their male counterparts or too nice/too emotional because they can't handle the stress. Either way, their attitude/lack of maturity somehow involves you being a punching bag.”

• Women lawyers have “an air about them.”

According to the article, Professor Batlan wrote that some legal secretaries indicated that they did not like working for women because women are too independent. One respondent in the survey wrote of her male boss: “My partner in particular tends to forget the little things. I often find myself tailing him as he's walking out the door to a meeting going down a list of things he may need. Oddly, I don't feel like my female attorneys need that kind of attention.”

This last comment is a reminder that while women’s participation in the work world over the last several decades has allowed women greater social, economic, and sometimes even sexual autonomy,  women’s move to the work world did not always herald a decrease in dependence.  Instead, there may sometimes be a displacement of dependence.  This is because women employed in workplaces alongside men, especially male bosses, sometimes became “office wives” to such men. The phrase "office wife" has been common in the United States and Canada since at least the 1930s, popularized by Faith Baldwin’s 1930 novel The Office Wife and its 1930 movie adaptation. 


The notion of the “office wife” has been rendered more gender neutral via “office spouse” (or the addition of “cubicle hubby”). Some modern renditions view such relationships as reciprocally beneficial for men and women. However, many commentators have observed that notwithstanding a move toward gender neutrality, women are still often expected to be subservient to men in office settings. In even modern times women secretaries and assistants are often constructed as office wives who are “deferential and ladylike” and who act as “loyal, trustworthy and devoted” extensions of their usually male bosses, according to Rosemary Pringle’s iconic essay “What is a Secretary?” “Office wife” is a phrase that conveys mixed notions of work, domesticity, and sexual promise, even in some modern contexts. For instance, some relatively recent court case have involved women claiming to have served as “office wives" to men in workplaces; not all of the claims were by way of complaint. Even in modern times , women employees have often been expected to serve as helpmates in office settings.

Although the notion of the “office wife” or “second wife” was apparently discounted by some survey respondents as an explanation of the phenomenon seen in Batlan’s survey since modern secretaries often work for more than one boss, I think it may be too soon to discard the idea. Instead I fear that we could be facing neo-office wife syndrome: the office wife is not gone; she is, as the results in the survey may suggest, still fiercely heterosexual in her choice of boss, with the twist that she is now also sometimes polyandrous because she has more than one husband-boss.

[Some of this discussion is drawn from my unpublished PhD dissertation, "Sisters Underneath Their Skins," a qualitative analysis of legal discourses produced in court decisions concerning white mothers involved in intimate relationships with black men while seeking custody of their white children. ]

Their Eyes Were Watching God as a “Legal” Novel

The discussion on Dee Perry's Around Noon today was Zora Neal Hurston’s Their Eyes Were Watching God.   You can hear all of the show at the link above. The book is  a timeless classic that, in broad brush summary, is about hierarchy and race, gender and class.  The novel begins where it ends, and ends where it begins, telling the story of  Janie Crawford and her journey from late girlhood to womanhood.  It is often read in literature courses and especially in African-American literature courses.  It combines its gritty realism, black dialect and lofty poetic language to depict the black South of over 70 years ago.  It is not typically thought of as a legal novel.  There is, of course, chapter 19, which depicts Janie’s trial for murder. But that chapter seemingly stands alone in offering explicit language about law.  

There is, however, much more about law in the novel.  Their Eyes Were Watching God is, in large measure, a book about laws, rules and norms.  It is a book about the way that social regulatory regimes shape society.  It is a book about the way that law is and is not created. There is a very apt quote about this in chapter 5 of the book where the author writes, in describing the town's feeling about Joe Starks, its self-appointed, well-to-do mayor:  “The town had a basketful of feelings good and bad about Joe's position and possessions, but none had the temerity to challenge him. They bowed down to him rather, because he was all of these things, and then again he was all of these things because the town bowed down." If allusions to Joe are replaced with the word law, then we can get a very clear sense of how norms, whether formal or informal, work, both within the novel and outside of it.   This is because even formal law is often said to be organic—it is molded and remolded at regular intervals, even if that re-molding is slow.  More importantly, we reflect those changes back into the face of law. Law can't happen if we turn away.  To a great extent, law is only law because we allow it to be. That we allow law to be speaks much about our vision for ourselves and for our world.

Dangerous Random Stereotypes of Presumed Difference and Sameness

Today’s New York Times featured two back-to-back Op-eds that made seemingly two different points but had much in common. In one piece, the author decried the way that “digital technologies” have reduced the likelihood that students arriving at colleges will live with a randomly chosen roommate. Thanks to the Internet, some students are able to connect with and arrange housing shares with like-minded students before arriving on campus. In the other Op-ed an author discusses the “The Help,” a film about black Southern domestics and their white employers. The Op-ed shows how the film tends to suggest that only “bad people” (mostly white housewives in the film) are racist. This perpetuates, the author suggests, a “dangerous” white stereotype—that “good” white people are not racist.

While both Op-eds resonated with me, I found myself disagreeing with both in significant ways. First, I think that even in the pre-digital, pre-social media age, roommates were anything but random in the true sense of the word. This is chiefly because most students who attended college over 25 years ago, especially at selective schools, were remarkably alike. They came from similar schools in similar neighborhoods and had similar racial, class and social backgrounds. This is not to say that differences did not exist in the past (the author of the piece on roommates cites for instance political differences and differences in musical taste between himself and his “random” roommate of a few decades ago.) But I would counter that students at selective schools, in the past and perhaps especially now, are more alike than dissimilar; this has been shown in a number of recent studies. This is perhaps not surprising given the self-selecting nature of the college application process. The author’s reference to room sharing as a preparation for marriage is instructive in a way perhaps not intended by the author. While people increasingly marry across all sorts of social boundaries, most marriages, and certainly most lasting marriages, are typically endogamous (the partners come from the same social group) or deemed endogamous (the partners accept that the social capital being exchanged between them is, even if distinct, closely equivalent in value). In short, many of the students about whom the author is writing are not all that different except in relatively superficial, mutually acceptable ways. I think therefore that it scarcely matters if they choose each other before arriving on campus.

If positing significantly socially dissimilar students, in order for students to truly have the potential to benefit from associating with each other, there must be an assumption of social parity operating such that the attributes, beliefs and values of one person are deemed as good as the other. Where students are very dissimilar, there are sometimes no such assumptions; it is a case of “mainstreamer” versus “outsider.” When students from such different backgrounds are compelled to form close associations, it may result in what some scholars have called “social energy drain” for the person deemed an outsider: the outsider has to work hard at showing that he is “just as good as” or “just like” the mainstreamer. It’s exhausting for the outsider and may be only slightly (or not at all) enlightening for the mainstreamer. Social energy drain and the resulting fatigue is a substantial part of the reason why, at colleges and universities across the United States, even in the new millennium, “all the black kids are sitting together in the cafeteria.” For the well-meaning mainstreamer it may be equally as tiring as the mainstreamer works hard at showing that she is “not racist” and at treating “everyone the same” no matter the context. Sometimes uncritical equal-treatment schemes lead to absurd inabilities to make contextual distinctions. Can people really not see that it might be racist to assert "free choice" to avoid sitting next to a black person on a public bus who, besides skin color, is much like the other riders, but it might not be racist to avoid a violent, delusional black person who accosts them on the street, and that even if the latter avoidance is racist, it's still probably a good idea under the circumstances? We are so taken with "racist" as an epithet that we sometimes forget that at the core of anti-racism are values of common sense and rationality. We are in a sadly paradoxical age of reasonable racists and irrational anti-racists.

In the Op-ed about “The Help,” the author is concerned that we may forget that "good" people were sometimes racist, too. I have much more to say about the film, but, in direct response to the Op-ed, I think that the larger problem is the way that being "racist" or "not racist" seems to consume so much social space in discussing relations between people. I didn't find it particularly surprising or offensive that the black "help" would be treated as social inferiors by the affluent white people for whom they worked. That was, and, indeed, despite denials by some, is often the way of things. I would have been more surprised and offended if the film had depicted an absence of racial and class bias (see my post on The Princess and the Frog). I don't think that we are in any more danger of forgetting that "good" or ostensibly discerning people can be racist than we are of forgetting that "bad" (or undiscerning ) people can be distinctly anti-racist. At the end of the day, it is about how we treat each other on the most fundamental levels.

My mother used to say that most day-to-day problems of racism, those numerous, cumulative slights that people of color often endure, would be solved if people actually learned and practiced good manners and basic human kindness toward everyone. I think she was right in some respects; on an individual, instrumental level (it may be quite different at an institutional level, but that is another discussion) I see racism as just one more deeply unpleasant form of human misbehavior that, like most such behaviors, can be forgiven or overcome. Whether at the individual or institutional level, however, tempering racism or other biased behavior requires a clear acceptance of the fact that people of diverse racial, social, or class backgrounds are different sometimes and that we accord varying values to those differences for a multitude of fair and unfair, legitimate and illegitimate reasons. We must equally as well accept that seemingly dissimilar people may be closely alike in all the ways that matter in a particular context. Effecting change becomes impossible, however, in a climate that posits differences where there are none of which to speak and denies differences where they do exist.

SlutWalk, Women, Talk! Taking Back Public Spaces

From a Ms. magazine blog on a planned slutwalk in Delhi, India:

Delhi women aren’t marching for the right to walk down the street dressed in barely-there clothes, as critics suggest. They’re fighting for the right to walk down the street. Period…“Women can wear whatever they want [when marching]. … The point we’re trying to make is that it is not the clothes you wear that cause harassment,” said SlutWalk Delhi organizer Umang Sabarwal to The New York Times.

Many of you are familiar with the slutwalk concept. Slutwalk was triggered by the comments of a Toronto police officer. According to the Toronto Star, the officer commented at a public safety meeting at Osgoode Hall (one of my alma maters!) in early 2011 that "women should avoid dressing like sluts in order not to be victimized.” The officer later apologized, but his comments were something of a watershed event.Women in cities the world over have gathered and walked (sometimes dressed in provocative clothing) to protest against the notion that sexual assault is caused by the victims’ clothing or appearance. In part, protesters want to reclaim the word slut, in much the same way that other groups have attempted to reclaim slurs that have been wielded against them (see e.g. the n-word, which is not entirely rehabilitated, or queer).

Slut, however, has perhaps a different discursive imprint than other slurs. One of the concerns about slutwalk is how it translates across cultures, customs or national borders. This is the point made in the Ms. blog article about the planned walk in Delhi. Many women in the West have long taken for granted the right to go out into public unaccompanied. This is emphatically not the case for women in some other parts of the world, or even for all women in Western countries. As one women notes in the Ms. blog in discussing the situation in Delhi, “On the street … you’re never called ‘slut’”. Indeed, it’s not necessarily what they call you. It’s how they treat you.

Even women in Western countries who go out alone or travel alone are often subject to certain forms of treatment that imply that they are not quite proper. I’m thinking of some of my recent travels wherein I stayed in hotels alone and managed to be harassed by a hotel guest, hotel workmen, and a hotel security guard. The guest looked like a perfect model of an American businessman and father. We chatted briefly and innocuously in the lobby while standing and waiting for an elevator. He chuckled amiably as we stepped into the elevator together. He then took out a large billfold of money and started counting it slowly and talking pointedly about how “lonely” it is when traveling for business. I looked down, tightened my grip on my briefcase (the better to whack him with) and went silent; much to his credit he reddened and put his money away. In another hotel the security guard who responded to my room when I called to complain about jeering workmen in the hallway suggested that I looked as if I was ready to go “on a date” and asked if I wanted him to give me a tour of the hotel. I am sure I looked quite ready for a day in the office in a boxy business pants suit and glasses perched on my head. No matter. It’s clearly not what you wear. The whole discussion of women in hotels raises the specter of DSK—but I won’t go there now. I will remark that the idea that women traveling alone are “suspicious” in more ways than one is a pretty old one and still holds sway. I was watching So Long at the Fair some weeks ago (it was Jean Simmons night!) and in the film, set at the 1889 Paris Expedition and said to based on a partly true story, a woman’s brother and traveling companion goes missing at their hotel. Part of the undercurrent in the film is that she was somehow tainted by the mere fact of being alone.

Some people are prone to draw a sharp line between sexually-tinged remarks and actual sexual assault. And yes, there is a huge difference. But such remarks are along the spectrum of harmful behaviors, and because they are too often deemed “minor” or even “charming” and "flirtatious", they go undiscussed and unaddressed. I am encouraged by events such as slutwalk even despite the difficulties of translating it across cultures. Slutwalk helps to air a problem that has proven intractable despite years of take back the night marches—women’s ability to be free from sexual assault or harassment in public spaces. The only way we will make any headway is for women to talk openly and honestly about the problem.

Harriet Beecher Stowe, the Real Woman Behind the Unreal Man (Or: Truth and Death)

This from the Op-ed section of yesterday’s New York Times:

<< The novelist Harriet Beecher Stowe, born 200 years ago today, was an unlikely fomenter of wars. Diminutive and dreamy-eyed, she was a harried housewife with six children, who suffered from various obscure illnesses worsened by her persistent hypochondria. And yet, driven by a passionate hatred of slavery, she found time to write “Uncle Tom’s Cabin,” which became the most influential novel in American history and a catalyst for radical change both at home and abroad.>>

The author goes on to discuss how the character Uncle Tom of the novel’s fame has been reduced to a “spineless sellout” as a result of numerous dramatizations and re-tellings that somehow re-wrote and thereby deformed the “strong and morally courageous”, “muscular, dignified” dramatis persona that Uncle Tom really was. I was struck by how, in the process of attempting to “rescue” the “real Uncle Tom”, and thereby mark the birthday of Harriet Beecher Stowe, the author of the op-ed seems to quite gratuitously verbally assault the character of Uncle Tom's creator. The irony, of course, is that Uncle Tom was not “real” at all. Uncle Tom came to be only because the real woman Harriet Beecher Stowe gave him life. Well, happy birthday, Harriet the harried hypochondriac housewife and mother of Uncle Tom.

It is perhaps not surprising that the image of Harriet Beecher Stowe’s Uncle Tom is so much larger than the memory of Stowe herself. Uncle Tom was, as the author of the op-ed points out, an icon of the anti-slavery movement. The problem, if there is one, is that Harriet Beecher Stowe’s Uncle Tom has been transformed from a key figure in a complex allegory into a rough-hewn, unsubtle archetype that only scarcely represents the author’s creation. Uncle Tom is in this respect somewhat like Mary Wollstonecraft Shelley’s Frankenstein's creature (I won't call him a monster, that's part of his bad rap), who, in similar fashion, has been recast by popular culture as a dim-witted brute.

Harriet Beecher Stowe actually had a lot in common with Mary Shelley. Both women were part of socially and politically well-connected families with literary leanings. Both women balanced high-minded idealism and genius with the harsh realities of childbearing and illness. Both women created entire bodies of work that have been overshadowed by the Golem-like figures of Uncle Tom and Frankenstein's creature who were created by words and then ran amuck.

Like the author of the op-ed, I say let the “real” Uncle Tom live. To do so, we need to not only re-inscribe “truth” on his forehead but also give proper homage to his maternity.

Lea VanderVelde’s Mrs. Dred Scott —A Genre Bender?

There are many ways of writing about history. Three somewhat related genres within the larger historical enterprise are non-fiction history, historicized fiction and fictionalized history. Mrs. Dred Scot, to my read, manages to fall somewhere in the interstices of all three of these. Read more about this at Osgoode Hall's Institute for Feminist Legal Studies blog!

Thief Me (Or, Giving a Six for a Nine in Providing Public Education)

Theft is, from a moral and legal perspective, a bad thing. Theft that occurs by lying, faking or other subterfuges as opposed to by good old-fashioned five-fingered grabbing is often considered even more reprehensible. Though typically thieves do no physical harm to their victims when they abscond with other people’s stuff, thieves are high on the list of most disliked criminals. As my late grandmother-in-law Nen used to say in her Caribbean accent: “I don’t want nothing to do with someone who thief me.” In her parlance, “thief” was a verb that was synonymous with “steal from” as well as a noun. A thief thieves people. Nen also seemed to envision a special place in hell for people who thiefed people by pretense or fraud. Some of the worst people, she said often, are people who give a six for a nine.

In Norwalk, Connecticut Tonya McDowell has been indicted for first-degree larceny. She faces a maximum sentence of 20 years in prison and a $15,000 fine. She is charged with stealing education: she allegedly enrolled her son in Norwalk schools from September 2010 to January 2011 when she did not live there. She is alleged to have used the address of her babysitter who did live in Norwalk. You can read about it here in the New York Times. Several people have expressed outrage that a parent seeking a better education for her child would be subjected to such charges. They argue that what should be under indictment is the system of school funding in much of the United States that relies upon local tax funding and thus makes schools in wealthy neighborhoods more likely to be excellent while leaving schools in poor areas deficient.

There are however, a large number of people who remain silent through all of this. They are the quite rational, well-meaning, sympathetic and even empathetic people who, though they might not have criminally charged Ms. McDowell if it appeared that she had enrolled her child in a school district where she did not live, certainly would have advocated the prompt removal of her child from the school. One of their arguments goes something like this: “I worked hard for years to be able to afford a house in this neighborhood. I work even harder to pay the taxes that support the schools in this neighborhood. Why should someone who hasn’t done those things get to take advantage of the school system here?” I get this argument; I really do. Good quality education can be expensive. Yes, we do in many cases pay taxes for certain other services that may be used by all comers whether or not they live in our neighborhood, such as roads, firefighters, and police. But these, we might assert, are in the realm of the really necessary from a health, safety and welfare standpoint. Moreover, these tend to be services that do not always rely entirely on local funding, or that are not frequently used by non-residents (and still, there are sometimes calls to limit use or to charge a fee for use of even these essential services).

There is also the argument made by those who would have supported the removal of Ms. McDowell’s child that school excellence is the result of more than just well-funded schools or excellent teachers. Excellent schools are often attended by large numbers of children who come from safe, warm, clean homes with plentiful, nourishing food, attentive if not loving well-educated parents and other relatives, books and music, private lessons that supplement schooling, opportunities for travel, and all sorts of enrichment. Even if we could insure that all children attend well-funded schools, we would likely have to do a great deal more to create optimal educational conditions for all children. I get this argument, too. Education is, after all, more than instruction. Education has to do with the formation of an individual in numerous ways, ranging from the intellectual all the way to the moral, social and cultural. In contrast, instruction is more precise, and has to do with specific methods used for the transmission of knowledge. Instruction is a part of education, but education is not necessarily instruction. Education begins at home and continues at home long after instruction at a school or anywhere else is over.

So what does this say about whether or not we should be lodging theft charges against a mother for seeking to educate her child in a place where she does not live in order to obtain what she believes (and what many objective measures show to be) a better school? Do the Ms. McDowell’s of the world thief those of us who reside in better neighborhoods when they enroll their children? Is their behavior even more reprehensible because they must by necessity give sixes for nines to school enrollment officials when making representations about where they live?

The answer lies in how one views public education. If we conceive of the provision of public education as a consumer good or service that is subject to being “stolen”, then it is right to charge Ms. McDowell as if she had stolen an item from a luxury store or failed to pay for a hotel stay after representing that she could in fact pay. Such a view is deeply problematic, however. Public education is not a good at all, and though it is a service, it is a really unique type of service. It is a cornerstone of civic engagement and of democracy itself. However, while many of us would agree that we owe a public education to all children in our society, far fewer would agree that we owe a quality public education to every child. That seems to be something reserved for those with the price of admission. This is at the heart of the matter. It could be that by not providing quality education to all children it is we who thief the Ms. McDowell’s of the world. Through some combination of sympathetic tut-tutting and sophistic language about the nature of school funding, we give sixes for nines to the least advantaged persons in our society.

(This post is based on a paper in progress titled Thief Us: The Use of Criminal Sanctions for Enrolling Non-Resident Children in Public School Districts)

Remembering the Victims of the Transatlantic Slave Trade

Today is the International Day of Remembrance of the Victims of Slavery and the Transatlantic Slave Trade. On this day we pause to remember the untold numbers of African women, children and men who were victimized in the Transatlantic slave trade over a period of four hundred years. Although there is sometimes debate about just how many persons were transported, one thing is clear: it numbered in the many millions, as illustrated by much of the data in Emory University's Transatlantic Slavery Database. In memory of the victims, the U.N. General Assembly, in its resolution 62/122 of 17 December 2007, declared 25 March the International Day of Remembrance of the Victims of Slavery and the Transatlantic Slave Trade, to be observed annually. The resolution called for the establishment of an outreach program to inculcate in future generations the “causes, consequences and lessons of the transatlantic slave trade, and to communicate the dangers of racism and prejudice”.

The specific goal of this day is to honor the memory of those Africans and African-ancestored people who suffered and died as a result of being enslaved, especially those who underwent the horrors of the Middle Passage. However, in making this declaration, Member States recalled that the treatment of African-ancestored slaves is also at the foundation of many present-day situations of social and economic inequality, injustice, racism and hatred aimed at African-ancestored people. This is a day not only to remember the past, but to promote contemporary awareness of the continuing ills of this particular form of slavery.

We might well wonder how something of the magnitude of the African slave trade could be little known or at risk of being forgotten. The problem lies not, however, in whether we are ignorant of or forget about slavery, but in the nature of what we know and in the manner in which we remember slavery. In the case of African-ancestored slavery in the West, history and memory are often contentious distant kinsman instead of close siblings. There is, for instance, a tendency to historicize African-ancestored slavery as an institution instead of simply (or complexly) remembering it as a series of ongoing events with very real, material consequences for individual and collective groups of enslaved black people. As scholar Pierre Nora wrote in his discussion of the relationship between memory and history, memory and history are far from synonymous; they appear often to be in fundamental opposition. The opposition is between an actual past phenomenon and a representation of the past phenomenon. The treatment of African-ancestored people during slavery and in its aftermath is part of a somber past. This past is not, however, personal to African-ancestored people themselves, or to former slave societies, but to the entire world. African women, children and men were removed from their homes and introduced into a system of bondage that was not only sometimes violent and capricious but which also deprived them of the essence of their humanity: freedom and hope for future.

Bridging the history and memory of slavery poses a number of problems. Perhaps chief among them is how not to stand in judgment on a slave past that in some measures defies critique by its very historicity: 1811 was not 2011, and it is at best facile and misguided to bring to bear on the slave past the norms that guide us in present times. Nonetheless, African-ancestored slavery remains a searing memory that scorches the fabric of modernity, and hence, is something that merits attention. The notion of people as property makes manifest Nora’s notion of lieux de mémoires, disparate sites where “memory crystallizes and secretes itself.” While Nora envisions such sites as places, concepts, or objects that symbolize the memorial heritage of a community, in the case of slavery the bodies of enslaved black women, children and men were and are themselves sites of memory. The bodies of the dead are, however, enshrouded by a historic past that obscures the memorial past inscribed upon their very remains.

Gender, Race and Power in the Legal Academy (Or, the BAU Haus Rules)

In recent days news circulated regarding an incident at Widener University’s school of law. It seems that a faculty member was called to task for repeatedly offering hypotheticals about killing the dean in the context of teaching his criminal law class. The dean happens to be a black woman, Linda Ammons. Some students complained about what they viewed as repeated instances of “violent, racist, sexist” behavior by the white male professor. There were also apparently claims by students that the professor had engaged in a “pattern” of misconduct , "cursing and coarse behavior, "racist and sexist statements" and "violent, personal scenarios that demean and threaten” the professor’s colleagues at the institution. You can read one newspaper's account of the matter here.

I have watched in horrid fascination the various deconstructive responses to this story from members of the legal academy:

1. Silence. This is perhaps the most interesting response, especially given that Dean Ammons has been in the academy for many years and is known to many.

2. Dispassionate equanimity. This mostly consisted of calls to wait and see, to not jump to conclusions until all of the facts are in. We are, after all, law professors. We wouldn’t be acting according to our training if we took a position before knowing all of the facts.

3. Precedential analysis and dismissal. A number of scholars, many of them “progressive”, have suggested that if the legal academy were to get up in arms about what the professor under fire said, it wouldn’t sit well with the position of many (but certainly not all) progressive faculty members in the case of Ward Churchill. Some of you will recall Ward Churchill as the academic who in an essay compared World Trade Center victims on 9/11 to "little Eichmanns". Churchhill was fired by his university but later reinstated.

4. It’s all good because it’s part of the game. Many academics who also teach criminal law have loudly asserted that hypotheticals that feature the death or maiming of people are part of the “morgue humor” that prevails in this area. After all, homicide is for many of us who teach criminal law the crown jewel of the course. There are, by necessity, unpleasant discussions. People die in some cases, sometimes in really horrible ways. If we didn’t laugh, we might cry. Also, an acknowledged part of the “game” of academics is engaging in what one professor called “passive-aggressive” behavior towards administrators. How else can you get back at deans who give you bad offices and worse schedules than with a little good-natured ribbing in hypotheticals?

Moreover, many have asserted in response to this situation that an important part of the game is academic freedom. This mostly consists of assertions that making such statements is well within the rights of a professor. After all, one of the hallmarks of academia is the right to make remarks in the course of doing our work that may be unpopular. Indeed, the whole notion of tenure is closely tied to academic freedom, in recognition of the fact that academics may sometimes do and say things that are not well received or highly valued.

Somehow I have been troubled by all of these responses, so I offer my own deconstruction of the deconstruction.

Silence is perhaps the worst of the responses. Silence basically suggests that this just doesn't matter enough to comment upon one way or another. In some respects this is akin to another relatively recent situation involving a black woman academic. See my blog post On Being a Black Woman Lawyer (Or, the Sound of Silence).

The dispassionate equanimity approach, while making sense on its face, obscures the broader concerns here and hides itself in a cloak of legalism. No, we shouldn't make a decision until the facts are in. But given the nature of the claims here, where we are not really dealing with a denial (the professor under siege apparently admits that he made such remarks about the dean), there is plenty of room for righteous indignation. While the dispassionate equanimity approach is no doubt a tribute to legal formalism, it is also a marvelous example of what some people call the "formalist fiction": that broader normative and policy considerations have no relationship to formal articulations of law.

The problem with the particular brand of precedential analysis offered here is that the analogy to Ward Churchill is, in my view, a very inapt precedent, as it offers little that is substantively useful by way of analogy. A professor who writes an essay ostensibly assailing a group of people that most of us consider innocent victims is very different from a professor who apparently repeatedly makes remarks that invite the captive listeners to violently envision an actual individual known to the listeners. At a minimum, we can generally choose not to read essays. Students in contrast have little power to choose not to listen to their professors or to absent themselves. As I have written elsewhere, the paradigmatic approach of the “legal method” is sometimes flawed, as it is based upon the often unstated assumption that there is broad agreement on the warrants of the paradigm. Now, we usually understand that in undertaking analysis by analogy, there may be few cases that agree “on all fours,” and that part of the exercise is exploring the aptness of the cases cited as precedent. The problem comes in when such analyses take shortcuts whereby no one bothers to parse the analogy, usually based on the assumption that we all agree anyway, when really some of us, sometimes huge sums of some of us, disagree on the aptness of the precedent. This dissonance undermines the value of precedent as a legitimate tool for reaching conclusions, and works a startlingly odd form of legal discursive violence on those in disagreement.

The it’s all good, it’s part of the game approach also has much to recommend it on its face. As someone who worked as an assistant prosecutor in an office where we once passed around photos of a dismembered drug suspect and invited laughter (“there’s one we won’t have to try”), I really understand “morgue humor.” When I taught criminal law I had a hypo where a robber came into the classroom and held a small knife to my back, and I in turn pulled out my high powered assault weapon from the podium (where I repeatedly asserted that I kept it), aimed it at the robber, demanded that he drop his knife and then shot the robber repeatedly until he died. Self-defense or not?

I also get the urge to passive-aggressiveness in hypotheticals. I used to offer a long-running hypo about leaning out of the impossibly small, oddly-positioned window of the office to which administrators had assigned me (jab) and doing target practice by firing across the street to hit the window of a tobacco shop. The “joke”, and the key fact, was that I did this while hundreds of people gathered for a parade in the street below (as was sometimes the case). As I used to explain, I taught so many large classes and served on so many committees that there was little chance that a parade would occur when I was not present at the building (another jab). Is it manslaughter or murder if I kill someone during target practice? It all made for great discussions. But never, ever, did it occur to me to make an actual person, and certainly not an actual person in my workplace, the subject of my hypothetical homicides.

Passive-aggressive humor that explicitly or implicitly assails those who hold power over you is a time-honored part of what some scholars have called “carnivalization”. Carnivalization usually occurs where social subordinates breech the norms of polite discourse and behavior as a means of acting out against oppression. Carnivalization may include mockery of those in power or self-mockery by the oppressed group. I have written about this in the NYU Review of Law and Social Change.

The problem with carnivalization is that while carnivalization represents an upsetting of mainstream power and norms, it is possible to deploy carnivalizing norms to silence persistent outsiders, especially when those outsiders are perceived as "upstarts", that is, when they begin to have some claim to power or status themselves. In my previous writing on this topic I used as a principal example Imus’s calling members of the championship Rutgers women’s basketball team “nappy-headed ho’s”. I also offered the instance of upper middle class white college students throwing “pimp and ‘ho” parties right in the midst of their dismayed black classmates. This is ersatz carnival, a cynical inversion of carnival norms. Even in today’s post-racial, post-sexist United States, race, class and gender still frame relations of power. Even when the president is a black man, or the dean is a black woman, there is no disruption of mainstream power norms when those who have traditionally wielded power continue to deploy it in verbal assaults—it is racist, sexist, BAU: business as usual.

Follow-up February 27, 2011:

I received many comments to this post. Thanks all of you for reading! Most comments came directly to me via e-mail, and were signed. Three comments came via the blog and were anonymous. Two commenters expressed disagreement; they were among the three anonymous submissions (funny how that works.) I published the two dissenters below under comments. Quite unintentionally I'm sure, they actually make my point rather than counter it. The third anonymous commenter sent me a link (that I declined to click on, thank you) titled "Why I Hate American Women", LOL. It's all good, I guess. Free speech lives! Kind of. As many scholars have noted (key among them Chris Demaske), the power of discourse in modern societies, and of "First Amendment norms" in particular, lies mostly in the way that such discussions mask the true character of modern power and as a result conceal domination. The power of dominant groups is not via censorship, but in the illusion of the inclusiveness and accessibility of the debate. As long as mainstream discursive norms are able to exercise the equivalent of socio-political, socio-legal filibustering of discourse that drowns out response, and then call it all square, can speech be truly "free"? It is worth remembering that not everybody can speak. LBI