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Saturday, February 19, 2011

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


  1. How convenient! You found a situation of which you can impute your own agenda, thus marginalizing the events, and bolstering your own contrived narrative.


  2. I think this post relies on three unestablished but indispensable hypotheses; first, that the conduct in question was in fact racist or sexist, second, that it was in fact passive-aggressive, and third, that this would in fact be worthy of discussion if the dean were white or male, or both.

    It's by no means clear that under the facts as presented in the article that the conduct in question by the professor was in fact racist or sexist. This is ostensibly why Professor Connell has chosen not to admit wrongdoing. It's probably important to establish this before continuing on to condemn Professor Connell and his colleagues.

    Second, it would be impossible to prove that the conduct here was in fact passive aggressive without being conclusory or permitting an inference into the mental state of Professor Connell. As an outsider to the situation, I am personally unwilling to make such an inference.

    Finally, there's no evidence that this would be a big deal if the dean were white or male or both. I daresay that in the history of criminal law classes there have been other professors who have proffered hypotheticals about killing the white male dean. The absence of documentation on these incidents would seem to suggest that criminal law professors may freely, without fear of being labeled ersatz carnival revelers, make hypos about killing the dean, even if they are female or minority, or both; and, conversely, ought not to if they are white and male and the dean is anything but that.

    As such, as long as articles like this are permitted to float undisturbed on the flotsam and jetsam of fairness and equality, the seemingly logically fallacious assertion that mainstream power norms are somehow not disrupted in a situation where mainstream power norms have been completely disrupted will be perpetuated. Furthermore, there will be no chance to move towards a world where a person's conduct is evaluated on reasonable grounds instead of grounds on which the putative defendant has no chance of acquittal.

    Finally, I posit that it is inappropriate to criticize the reaction of others to an incident to which they are not parties.