Spike this Heel!

Many thanks for the invitation to join you all in blogging at Concurring Opinions! During my visit I’m looking forward to writing about things that are not necessarily part of my law-and-fashion beat over at Counterfeit Chic, but to start off I can’t resist sharing an image from Paris Fashion Week that touches upon – or, rather, walks all over – both fashion and cultural property.

Take a close look at this sandal from John Galliano’s runway show for Christian Dior. The carved statuette that forms the heel is reportedly a Masai fertility symbol.

 

Even setting aside the awkward juxtaposition of a curvy, pregnant woman with teenage fashion models so thin that they may not even be capable of conceiving (a legal issue for another day), the colonialist image is a disturbing one. Galliano, like many other Western designers, is known to “ransack the world’s closets for inspiration,” as I put it in my first book. Many of the resulting cultural hybrids (to use Naomi Mezey’s term) are extraordinarily beautiful expressions of human creativity that few would wish out of existence, even if greater norms of attribution to source communities should be developed and encouraged. Some uses of others’ cultural products, however, are simply inappropriate. Placing an African religious symbol literally under the heels of predominantly white women on a European runway is one such offensive use. Selling those same shoes to wealthy women around the globe is another.

I’m reminded of an Australian case that I’ve written about and taught, along with Christine Haight Farley and a number of other scholars. Milpurrurru v. Indofurn Pty. Ltd., (1994) F.C.R. 240, involved a rug merchant who appropriated a series of sacred Aboriginal images for his carpets. It happened that in this case the theft was so literal that copyright law provided a remedy. But what about damages for the desecration of the sacred images that had been trodden underfoot? Or the fact that, lengthy as copyright terms are, religious beliefs are likely to outlast them? Or the potential appropriation of religious images that are not the work of a specific living artist but are instead iconic forms, repeated and passed down over time?

To be fair, maybe the admittedly brilliant Galliano or the august fashion house for which he designs consulted authorized Masai representatives and female elders, who freely and without the pressure of economic or other coercion licensed the use of the fertility figure. It could even be their gift to the reproductively challenged pale populations to their north. But I doubt it.

Perhaps the most peaceful resolution of an issue like this one is a demand for mutual inquiry and respect, rather than protective legislation. Moreover, bearing in mind the violent response to Danish editorial cartoons of Mohammed several years ago and the resulting tension between religious demands and freedom of speech, any such legislation would require extraordinarily careful drafting. But if the cultural “owners” of this fertility symbol object to its commercialization, there should be some forum for their concern.

Posted by Susan Scafidi at 02:25 PM | Comments (5) | TrackBack

Defamation by PhotoShop?

At 25, you have the face heredity gave you; at 50, you have the face you deserve; and at Fox News, your features depend on whether you're a friend or enemy of the network. Or at least that's how Jacques Steinberg and Edward Reddicliffe must feel after Fox aired doctored photos of them on its news show.

Note that the normal photo was not shown on Fox News; the distorted image was presented as the face of Steinberg. (I've embedded the full clip below the fold.)

Can such a distorted depiction give rise to a defamation action? Obviously if the picture were a cartoon, and/or the program a satire or non-news program, creative license lets just about anything go (though some particularly egregious images have sparked resistance). But does a news program have a special obligation to "objectively" present images? And, returning to defamation, is it possible to argue a) that the distorted image is a "lie" about the person it depicts and b) that ugliness (that which distortion seeks to convey) is actionable as something damaging to the person whose image is distorted?

a) As for the idea of "lie" here, consider these arguments about the infamous "darkened OJ Simpson" image on the cover of Time Magazine:

The image on Time was digitally manipulated, making OJ darker and heavily shadowed (in juxtaposition to Newsweek['s image]). . . . Although Time claimed it was a “photo illustration” that served to “show the tragic downfall of an American football hero,” other folks disagreed. Time was charged with: (1) perpetuating the stereotype of “violent” black men; (2) suggesting OJ was guilty; (3) applying digital manipulations to a “news” photo–apparently a real no-no in journalism . . . [But Cara A.] Finnegan . . . challenges those who think the image serves as a “visual argument,” which she defines as a “set of premises, identifiable in the image, leading to a conclusion which is itself present in the image” (236).

Compare the idea that "OJ is guilty" to "Steinberg is ugly." What does the puff-chinned, big-eared, grotesque-nosed Steinberg image "argue" here? Glenn Greenwald might assimilate it to what he calls "the dominant media theme for the last two decades in our political discourse:"

What matters is that Democrats and liberals are weak, effete, elitist, nerdy, military-hating, gender-confused losers . . .and who merit sneering mockery and derision. Republican right-wing male leaders are salt-of-the-earth, wholesome, likable tough guys -- courageous warriors and normal family men who merit personal admiration and affection. . . . [In our] press corps, fantasy easily trumps reality. And our media stars thus . . . cackle in derision at the Democratic weaklings and losers.

Greenwald's analysis, backed up at length in his latest book, articulates a possible "message" in the Fox News photoshopping. But is it really communication, or manipulation? And if the latter, does it not fit more under the rubric of "subliminal advertising" than defamation?

b) Another challenge to a defamation suit might be whether the image is genuinely harmful to the person's reputation. The closer one looks at it, the more obvious it becomes that the proportions of the face are impossible. But note that the clip was shown very briefly in its original context, leaving no time to scrutinize it.

What about "ugliness" is "damaging"? Enlightened individuals judge others on the basis of the content of their character, not their looks; but in this respect America may be becoming less enlightened every day. Here some perplexities raised in recent cases about allegations of homosexuality may be relevant. The question is whether, in an increasingly tolerant society, being alleged to be homosexual is still libelous. Two recent cases come out in diametric opposition:

Klepetko v. Reisman, 41 A.D.3d 551 (N.Y. App. Div. 2007) ("The false imputation of homosexuality is "reasonably susceptible of a defamatory connotation" )

Greenly v. Sara Lee Corp., 2008 WL 1925230 (E.D. Cal. 2008) ("[c]ontinuing to characterize the identification of someone as a homosexual [to be] defamation per se [demeans the lives of homosexual persons]".)

To continue the analogy: just as sodomy laws were only repealed gradually, only in the early 1970s were certain "ugly laws" repealed. One such law ordered that "'No person who is diseased, maimed, mutilated or in any way deformed so as to be an unsightly or disgusting object or improper person [is] to be allowed in or on the public ways or other public places in this city . . . under a penalty of not less than one dollar nor more than fifty dollars for each offense."

In conclusion; I imagine that a defamation case would be a tough one for either Reddicliffe or Steinberg, but admittedly I have not researched "defamation by distorted image." Edward Tufte has documented the damage that "fudged photos" can do to science, but it's not clear that much can be done about them in the political public sphere.

So what's to stop the unflattering depiction, already a mainstay of negative political ads, to gradually morph into the photoshopped truthiness Fox has pioneered? Perhaps the only answer is to fight fire with fire; Olbermann might air the work, say, of Kenneth Tin-Kin Hung . . . :

(Hung, still from Because Washington is Hollywood for Ugly People)

One thing is clear: if one side in politics adopts the tactic with impunity, the other side has clearly not read its Schmitt and Niebuhr if it decides merely to "turn the other cheek."

PS: Here is the clip in context:

And here is Reddicliffe's transmogrification:

Posted by Frank Pasquale at 10:50 AM | Comments (4) | TrackBack

Little Brother

Cory Doctorow’s latest novel, Little Brother, is technically a young adult novel, but there is something in there for anyone interested in cyberlaw, security, national security law, and oh yeah, a rather fun, although at times scary, tale. In classic Cory fashion, he has made the book available for free (yes well before law profs such as Benkler and Zittrain did so, Cory has been a leader in the world of I-make-money-by-giving-away-my-creations). He also allows people to remix and share the new work. The downloads and remixes are licensed under a Creative Commons Attribution-Noncommercial-ShareAlike license. Now that is a business model of the new economy. For those wondering whether this approach works, it does for Cory if making the New York Times Kids Bestseller list matters. (Scoff at your own risk. Remember kids are a tremendous market). So on to the book.

Some tech/sci-fi writers give up story for ideas. They offer great fun and build excellent worlds, but when it comes to ending the story, they fall short. (I am thinking of early Stephenson here) Little Brother, however, delivers both ideas and story. That is great because one can dive in and enjoy the characters as they navigate the modern day 1984 world of the United States.

Despite, or perhaps because, the characters and the story draw one in, the details of this world are not all fun and games. Hacking, government power, security, racism, freedom, and more swirl around as decent teens trying to have a life, trying to grow and express themselves, and trying to make mischief, crash into a new world. Anyone who remembers useful acts of rebellion and the learning that goes with them should be able to identify with these kids. The beauty of having kids as main characters is that kids often have parents. Doctorow uses the parents quite well. They express the natural desire for stability and the way that once freedom-loving individuals can easily change as they age and see the world through a lens of how-do-I-protect-my-family? Whether they will protect their kids and what the protection will look like was a subtle but important theme which Doctorow navigates well. Perhaps thoughts of becoming a father fueled this sensitivity; perhaps not. Either way it works.

Some of the text tantalizes with ways for individuals to keep their communications free, secret, and/or anonymous as context requires. Exploring those issues allows Doctorow to investigate how trust of other individuals, businesses, and the government work together to create the world we enjoy or what happens if that trust fails. Cory is not shy. He does not stop there. The relationship between federal and state government, the role of the press, and how individuals can or cannot impact the system are all in play as well.

I will stop here as I do not want to give away the details. There is more to discuss, but I also hate spoilers. So here is a possible solution. For those wishing to see Cory’s take on his book check out his post on John Scalzi’s Big Idea series. In addition, Cory is quite busy, but we hope to do a phone interview this summer. That way the law issues can be addressed and those who wish to avoid spoilers can. No promises but if he and I can connect, it should be fun.

Last, you may wonder whether I’d say buy the book given that it can be downloaded for free. Well yes I would say buy it as it keeps Cory funded. Yet, what if you decide to download it? Should you donate to Cory? No. In fact he would prefer you buy a copy for you or someone you love as it works better for his publisher and him. Or ever the innovative person, Cory has another idea you may wish to pursue: a donation program for the book. In short, Cory and his assistant have assembled a list of libraries and schools that want the book. He suggests that people who downloaded the book and want to give him money, find a library or school, buy the book online, and ship it to the school. Everybody wins: the public, the publisher, and Cory (who will receive royalties). Cory sent me the file before he put it online so I could review it. Still, I plan on following his suggestion and donating a book.

Image: Courtesy of Pablo Defendini
The image is an early sketch for a potential paperback cover. Mr. Defendini has a portfolio that you may enjoy too.

Posted by Deven Desai at 12:50 PM | Comments (1) | TrackBack

Pew on Race and Class Issues

NPR's piece Redefining What It Means to Be Black in America examines a new Pew Research Center poll regarding perceptions within the African-American community about the community. From the summary: "African Americans see a widening gulf between the values of middle class and poor blacks, and nearly four-in-ten say that because of the diversity within their community, blacks can no longer be thought of as a single race." The full report is here. The NPR story provides an overview of the poll which among other findings indicates that "67 percent of black men and 74 percent of black women think rap music is a bad influence on black America," "37 percent of African Americans now agree that it is no longer appropriate to think of black people as a single race," and "53 percent of black Americans now agree that 'blacks who can't get ahead are mostly responsible for their own condition.'" I have not read the report yet. There could easily be flaws in the methods used. Still, for those interested in race issues, my guess is this report provides numbers with which one will have to engage.

Posted by Deven Desai at 02:07 PM | Comments (0) | TrackBack

The Noose

That old instrument of death the noose has been much in the news of late. Saddam Hussein and his henchmen have gone to the gallows. Clarence Thomas continues to rail against his "high-tech lynching" at the hands of the Senate Judiciary Committee. And in the past few months, actual nooses have been found hanging in a variety of places -- at high schools and universities, in workplaces and police stations, from the backs of pickup trucks, and near Ground Zero in New York City. Many have surmised that the appearance of these nooses is related to the controversy sparked in Jena, Louisiana when white students hung nooses from a tree near a public school. What we have is probably some combination of disgruntled students, cowardly racists, and "copycats." Or perhaps, as Peter Applebome of the New York Times suggested, "maybe it's just the distorting mirror of the never-ending media cavalcade, where any moron with a Sharpie and a length of cord from Home Depot can make a statement heard round the world." [The noose is not the only symbol of hate making a comeback. The swastika has been showing up with increasing frequency in some communities; it has been spotted at synagogues and even carved into a crop circle in New Jersey].

Whatever the case, the seeming resurgence of the noose is a disturbing development. Its intentional use as a symbol of racial hatred and terror is of course utterly comtemptible. There have always been, and likely always will be, those who will make such cowardly gestures in an effort to intimidate. More disturbing on some level is the fact that there appear to be some (perhaps many) people who are either not aware of the noose's disgraceful history, or who may believe that being forced to acknowledge that experience forces political correctness upon them. Some of the co-workers involved in the incidents noted above seemed to think that hanging a noose was a "joke." Others have suggested that perhaps the media is hyping noose hangings in an effort to shock readers into caring about race. After all, as Alex S. Jones, director of the Joan Shorenstein Center on the Press, Politics and Public Policy at Harvard, is quoted in the New York Times saying, ''This is comparable to name calling" . . . ''It's important to look at what it means and also what it doesn't mean.''

We certainly ought to consider what hanging a noose signifies. I suggested in a paper that ethnographic methods may be useful in assessing the meaning of symbols like the confederate flag and symbolic acts like cross burning. Anyone who doubts the enduring and powerful hatred and terror associated with this symbol (and who cannot be bothered to read one of many excellent accounts of the Jim Crow South) should at least peruse Without Sanctuary: Lynching Photography in America (2000), a book I stumbled upon years ago and have never forgotten. Of course, the noose, like other symbols, is polysemous. The context of the display matters. There are certain contexts -- historical exhibits on Jim Crow violence or the death penalty, tributes to the Wild West, and perhaps even a celebration of Halloween fright -- in which the symbol is intended to convey some non-threatening meaning. Even so, hangers of nooses -- in particular those who live in diverse neighborhoods or work in diverse environments -- ought to understand how this symbol is interpreted by many, if not most, African-Americans. Those noose-hangers who are fully aware of and even embrace the terrorism of the symbol should not count on any First Amendment protection for their "message." Hanging a noose with the specific intent to intimidate is a true threat. What to do about the deep-seated undercurrent of racism that the noose's resurgence seems to signify is a much more complicated question -- and not, as our history demonstrates, one that will be resolved solely by passing hate crimes laws.

Posted by Timothy Zick at 03:00 PM | Comments (6) | TrackBack

Law Talk: Al Brophy on Slavery, Reparations, and Institutional Responsibility

In this week's episode of Law Talk, we hear from Professor Al Brophy of the University of Alabama Law School. In addition to his fame as a Co-Op guestblogger, Al is a legal historian with a special interest in issues of slavery and race in American law. Al is also interested in issues surrounding debates over reparations and apologies for slavery. In this podcast, he discusses how universities and colleges with links to slavery might deal with these issues, using the example of my own employer, The College of William & Mary.

You can subscribe to "Law Talk" using iTunes or Feedburner. You can also visit the "Law Talk" page at the iTunes store. For previous episodes of Law Talk at Co-Op click here.

Posted by Nate Oman at 12:14 PM | Comments (0) | TrackBack

Saggy Pants and the First Amendment

The city of Atlanta, as the Chicago Tribune reported recently, looks likely to join a growing number of cities that have enacted laws regulating saggy trousers as constituting indecent exposure. These laws strike out at the fashion of men wearing their pants off their hips exposing their boxers or women wearing their jeans low so as to expose thongs. Unlike school dress codes regulating hip-hop clothing that have been promulgated in cities like Indianapolis, these laws apply beyond the school context to regulate dress in public.

It's an interesting question whether these laws would violate the First Amendment as currently understood. On the one hand, we know from cases like Cohen v. California that the government cannot regulate clothing's expressive qualities, even when such expression contains profanity. On the other hand, notwithstanding the Cohen line of cases, indecent exposure laws requiring people to wear clothes are probably constitutional under some kind of residual (and weak) power to require decency in public. Saggy pants laws form a kind of hybrid case, regulating in terms of indecent exposure on the theory that undergarments cannot be displayed in public, but seem to be directed at the expression of identity through clothing. The harms that these laws seek to remedy are those of personal offense and outrage - something like "I am offended by the dress of that young man over there." Laws that try to protect hurt feelings from being upset (particularly in public) tend to do very poorly when subjected to First Amendment analysis. Moreover, because saggy pants laws single out a particular fashion for regulation, I would think that they raise serious constitutional problems under the First Amendment. That said, given the murky government power to enact indecent exposure laws, I'd be hesitant to call all saggy pants laws categorically unconstitutional under current doctrine without the text of an actual ordinance and/or facts upon which to apply it.

But putting First Amendment doctrine to one side, I still think saggy pants laws would be a terrible idea. Our clothes can be a form of personal expression - they are one of the most important ways we project our selves and our identities to the world. The government may decide (and be entitled to) regulate the dress of children in school in pursuit of educational objectives generally, but outside that narrow context, it is up to children (and their parents) to decide how they should dress. Indecent fashion statements, like other forms of expression, are not the kinds of things that the government should be wasting its time, energy, and scarce law enforcement resources on. I would imagine that the Atlanta police probably have more pressing problems to deal with than young people (or maybe even the elderly) showing too much thong. There's also a significant racial component to this issue, as the fashions being scrutinized are inspired and associated with Black popular culture. This is an additional consideration of constitutional magnitude counseling a light regulatory hand here.

I think that in the long run, we'll look back on this question with the same incredulity that we now regard the fuss over Elvis Presley's swiveling hips on Ed Sullivan or the long-haired men and short-haired women of the 1960s. Politics has fashions no less than clothing, and I hope this fashion for these kinds of laws will soon go the way of New Wave hairdos and other regrettable fashion mistakes.

Posted by Neil Richards at 12:50 PM | Comments (17) | TrackBack

Sex, Laws, and Videotape (Genarlow WIlson Edition)

Genarlow Wilson, you may recall, is the young man sentenced to a 10-year mandatory sentence in Georgia for occurrences at a wild hotel room New Year's Eve party with other high schoolers when he was 17 years old. He was acquitted of raping a 17-year-old girl who said that she was intoxicated and that her intercourse with Wilson was not consensual. He was convicted, however, of engaging in oral sex with a 15-year-old girl, even though all agree that encounter was consensual, because she was below the 16-year-old age of consent. (Moreover, the fact that they had oral sex in particular triggered a much more severe penalty than would have applied to intercourse, a quirk in Georgia law that the Legislature has since changed). The trial judge recently ordered Wilson released, calling his sentence "a grave miscarriage of justice," but that order has since been appealed. Meanwhile the case has become a cause celebre, drawing comment from Jimmy Carter to Barrack Obama and, inevitably, spawning a web site and legal defense fund.

Clearly, there are dozens of possible legal blog posts embedded in this story: gender, race, sentencing, statutory rape and strict-liability crimes, the judge's proper role in such circumstances. But I am going to focus on an information law angle -- specifically, does the law require the release of a videotape at the center of the legal case, as the Georgia D.A. says, or forbid it, as the U.S. Attorney says?

The events of the party were videotaped, and as ABC News Primetime reported last year, that tape became the core of the prosecution's evidence:

District Attorney David McDade said the videotape was critical to his case. "There is no doubt that without the videotape we would have to be relying on the statements of these young people, and that would have been a more difficult prosecution," he said.

But, as my friend Jessica Silbey has argued persuasively in a series of articles, videotaped evidence is not some sort of unvarnished and incontrovertible truth-telling mechanism; its meaning is in the eye of the beholder. And the jurors here beheld it this video quite differently from the way prosecutors intended. According to ABC, they voted to acquit Wilson of raping the 17-year-old very rapidly:

"I mean it wasn't even an hour [of deliberation on the rape charge]," said jury forewoman Marie Manigault. "We immediately saw the tape for what it was. We went back and saw it again and saw what actually happened and everybody immediately said not guilty."

So, the videotape became central to both the legal decisionmaking and the media reporting (ABC, for instance, portentously described "a portion of a tape obtained by 'Primetime'"), especially as the case has become a growing political and racial controversy. Not surprisingly, a lot of people have asked to see it, according to an Associated Press story:

[District Attorney] McDade said his office gave copies of the tape to some 35 parties that requested it, including The Associated Press, which received the tape late last month after making an open records request. Seven state lawmakers, several members of the public and numerous members of the media also received the tape.

McDade claims he had no choice under the state's "very clear" open records law, and a letter from the Prosecuting Attorneys' Council of Georgia supports his interpretation. But now U.S. Attorney David Nahmias has intervened with a statement of his own, saying that the tape constitutes child pornography and may not be distributed or even possessed -- and advising everyone with a copy of the tape to return or destroy it.

"These laws are intended to protect the children depicted in such images from the ongoing victimization of having their sexual activity viewed by others, potentially for years to come, particularly if the images are placed on the Internet or otherwise broadly enter the public domain," Nahmias said.

Here's what's fascinating to me. The antagonists on both sides cite seemingly inflexible legal regimes. The child pornography law is said to leave no space for even the clearest public interest, such as letting the media examine the evidence in a case that has become a gigantic political and social hot button. The open records law is said to allow no leeway to suppress a sex tape that probably qualifies as contraband child pornography and definitely constitutes a grave privacy violation for the teenagers depicted. This lack of ambiguity in both regimes (and, by the way, in the statutory rape law too) is not a bug but a feature. These laws were designed to prevent evasion through exceptions. Now we are stuck with a pair of unpalatable alternatives.

The optimal solution might well be to allow access to the tape with strict limits on redistribution (perhaps requiring that it be viewed in the courthouse rather than distributing copies) or perhaps blurring the faces of all the persons involved. But most likely neither of these possible solutions satisfies either of the inflexible legal structures. The only way I see of avoiding the problem is for the U.S. Attorney to exercise prosecutorial discretion and allow this sort of limited access. But I'm not sure how likely that is to occur.

[Cross-posted at Info/Law.]

Posted by William McGeveran at 12:05 PM | Comments (6) | TrackBack

Why So Few Black Ballerinas?

There was an interesting article in yesterday’s NY Times discussing the absence of Black ballerinas in prominent ballet companies in the U.S. The reasons are many and complex, including economic (ballet is expensive), the pool of qualified dancers is very small, and access to ballet training is quite limited in the U.S. But I was struck by the suggestion that ballet companies are reluctant to hire even exceptionally gifted Black ballerinas because they are afraid to challenge their subscriber base and their expectation of “a ballet company, the way you thought ballet was.” Other Black ballerinas suggested that stereotyping of Black women was a major obstacle to their success because “Black women are perceived as being forceful, which doesn’t square with the ethereal image of a ballerina.”

I must confess that my exposure to ballet is quite limited. Thus, I found it hard to believe that dance companies would pass up the opportunity to recruit talented dancers because they feared their audience reaction. Then I remembered a column which appeared in the NY Times Magazine last December. A reader asked "The Ethicist” columnist whether she was racist because her enjoyment of “The Nutcracker” ballet had been “severely marred by the appearance of a black snowflake and then, even worse, a black Snow King.” According to this anonymous reader, “the aesthetic incongruity was inconceivable. The entire ballet was spoiled.” I am not sure what to make of this reader’s question, but it does suggest that ballet companies’ concerns about their audience’s ability to welcome Black dancers are not completely unfounded. Any thoughts?

Posted by Solangel Maldonado at 10:48 AM | Comments (5) | TrackBack

China Tightens Restrictions on International Adoption—Will Demand for African-American Children Increase?

Thank you for the introduction and the opportunity to guest blog this month. I look forward to everyone’s comments.

The Chinese government’s new restrictions on international adoptions went into effect earlier this week. The new rules require that all adoptive parents be married at least two years (to a person of the opposite sex), that they have at least a high school education, and that their family assets total at least $80,000. Most Americans seeking to adopt internationally have no objection to the educational and financial requirements, possibly because most Americans adopting from China are upper middle class. However, there has been a lot of discussion on the adoption blogs about China’s new age and health requirements. According to the U.S. Department of State, China now requires that all foreigners seeking to adopt be 50 years of age or younger. They also must be free of certain medical conditions such as “mental disorders requiring medication for more than two years, including depression, mania, or anxiety neurosis” or a “Body Mass Index (BMI) of 40 or more.” Persons with severe facial deformities, limb paralysis or dysfunction, or blindness (even if only in one eye) are also disqualified.

Many sending countries place even greater restrictions on foreigners seeking to adopt. In addition, Russia has recently stopped accepting applications from American adoption agencies as it attempts once again to curb rampant corruption in its adoption system. Guatemala has similarly announced that it will impose greater restrictions on international adoptions as it attempts to comply with Hague Convention on Intercountry Adoption. As a result, many Americans must come to terms with the reality that their odds of creating or expanding their families through international adoption anytime soon might be reduced.

A few days ago I got a call from a journalist asking what effect, if any, China’s new restrictions will have on white Americans’ adoptions of African-American children. One might expect that China’s new policies would lead some white Americans who would otherwise have adopted from China to adopt an African-American child. After all, these are families who had already decided to adopt a child of a different race. However, I am not hopeful. As much as I would like to believe that China’s restrictions will lead many more white Americans to seek African-American children, not only from foster care, but from private agencies that place primarily healthy infants who were relinquished voluntarily, I am not sure China’s restrictions will lead to increased demand for African-American children.

First, some families chose to adopt internationally because they wish to avoid the risk that the birth mother or father will later change their minds and attempt to reclaim the child. Although this rarely happens, understandably, some adoptive parents prefer to adopt from abroad where this particular risk might be even lower although the risks of other types of disruptions might be higher. Second, some adoptive parents want to avoid open adoptions which are increasingly common in the U.S. and require the adoptive parents to keep in contact (albeit minimal contact in many cases) with the birth parents.

But let me suggest a third reason—race. Is it possible that some white Americans disqualified from adopting from China might not seek to adopt an African-American child precisely because he is Black? The literature on unconscious racial bias shows that cognitive biases against African-Americans influence employers’ evaluations of applicants’ resumes based on whether they have a “white” name or a “Black” name. Unconscious racial biases also affect the amount of bail set, and even the rate at which NBA referees call fouls against African-American players. Studies have shown that Americans marrying interracially find African-Americans to be the least desirable marriage partners, even when the study participants honestly believed that they had no racial biases. Further, demand for African-American children is significantly lower than demand for children of other races. Indeed, many adoption agencies subsidize adoptions of African-American infants because too few families are interested in adopting these children. The standard fee for adoptions of “Caucasian, Hispanic, Asian-American, or Native-American infants, or any combination thereof” does not apply to adoptions of African-American infants which are discounted as much as 50%. Thus, I ask: Is it possible that unconscious biases against African-American children will keep some white families from providing a child with his “forever family?”

Posted by Solangel Maldonado at 02:32 PM | Comments (8) | TrackBack

Don Imus and Megan Kanka In A Soundbite Nation

Over at BlackProf, Darren Hutchinson has a good post about the understandably strong response to the comments of shock-jock Don Imus. Here's a taste:

How do persons concerned with racial justice convince people to examine structural racism with the same level of intensity as they devote to incidents such as Nappy-Gate? When idiots like Imus (and Lott and all the other racists du jour) have moments of Freudian slippage, Sharpton, Jackson and others respond; the idiots apologize; and the racist “moments” pass. Victory! But what about the next day? Racism in its structural and individualized forms persists. Is it possible to capitalize on moments like these to bring attention to issues far more dangerous and pervasive than Imus (like conjoined poverty and racism)? Does intense focus on idiot du jour racism, rather than structural racism, make the latter even more obscure and beyond remediation?

I think this is an extremely important point. Events like the Imus fiasco have multiple pathogenic results. They make millions of people feel good about their petty racisms because "I never would have said anything that stupid and offensive." They create excellent opportunities for individuals and institutions who promote, or benefit from, racism to speak out against Imus and publicly document their supposed opposition to racism, thus innoculating them against future criticism. Most of all, they obscure potent forms of institutional discrimination by creating the impression that Imus-like comments are the prototypical form of racism that we should all worry about.

Ironically, I fear most the suggestion that events like this reduce racism because they generate an important public debate about race. Any public debate happening in the aftermath of Imus seems to be a sideshow obscuring the main event - institutional racism that lacks fingerprints or soundbites, and operates silently and effectively throughout America's day to day. The Imus affair reminds me a bit of the aftermath of Megan Kanka's brutal abduction and killing. As bad as that individual case was, the public debate and legislative response - targeting the comparatively rare child sexual abuser who victimizes strangers- completely obscured the much more significant child sexual abuse problem in America: sexual assaults by close friends and family members and, in particular, step-dads and their equivalents. (Robin Wilson's article remains a critical piece of this literature.)

As a general matter, if CNN can't describe an issue in 60 second or less, it's not a problem our society can acknowledge or address. Deep seated societal racism cannot be captured in a clip. Don Imus can be. The consequences? We learn that Imus = racism. Punishment and apology follows. And a relieved nation moves on.

Posted by Dan Filler at 12:05 AM | Comments (5) | TrackBack

March Madness, part 2

A propos of some of the comments made in response to my earlier March Madness post, readers may be interested in the recent Graduation Rate Study of NCAA Div. 1 Tournament teams, authored by Dr. Richard Lapchick of the Institute for Diversity and Ethics in Sport.

In a nutshell, athlete graduation rates aren't very good at some of the schools (but not all) sending teams to March Madness. Two notable high seeds posted scores that look pretty bad. Number 1 seed Ohio State graduated only 10% of its players in a 6 year span, and the University of Oregon a whopping 0%. That isn't a typo. It's "zero." At the other end of the scale, Holy Cross (86%) and Butler (82%) led the honor role. Lapchick also lamented a significant disparity in the graduation rates of whites and African-Americans.

Granted, graduation rates don't tell you everything about a program's commitment to the student-athlete, but it's striking how low some of the graduation rates are. Hmmm....now maybe this will lead to a new way to fill out those brackets....

Posted by Alfred Yen at 09:22 PM | Comments (1) | TrackBack

Justice Clarence Thomas Speaks in Business Week Online

Business Week Online has published excerpts of an exclusive interview with Justice Thomas. Interesting reading!

Posted by Alfred Yen at 02:14 PM | Comments (1) | TrackBack

Protecting The Rights Of African-American Majorities

Jack Chin offers up an interesting new take on Jim Crow, arguing that the 14th and 15th Amendments were adopted at a time of African-American majority rule. From the abstract:

When it mattered, when the Fourteenth and Fifteenth Amendments were enacted and for decades after, African Americans were a majority or controlling plurality in the states where most lived. African American-backed majoritarian governments controlled the South after the Civil War; while in power, they enacted strong civil rights laws and created a public education system. These policies were reversed, and segregation imposed, not because African Americans were a minority, destined to lose in the majoritarian political process, but rather through elimination of democratic politics and imposition of minority rule.

He goes on to raise the spectre of a "majoritarian difficulty." The piece is worth a look.

Posted by Dan Filler at 06:28 PM | Comments (1) | TrackBack

Racism in Sports discussed at blackprof

I just noticed an interesting post by Chris Bracey over at blackprof: "(More) Racism in Sports."

Here's the beginning: "What has gotten into people these days? A number of folks here and elsewhere have commented upon what appears to be an uptick in racial callousness among Republican candidates for public office. But it's also worth noting that, within the past couple of weeks, we have witnessed a similar uptick in racially insensitive conduct in the realm of athletics. Is racial callousness back en vogue or what?"

You can link to the whole piece here.

Posted by Heidi Kitrosser at 08:23 AM | Comments (5) | TrackBack

Xoxohth, Civility, and Prestige: Part I

Xoxohth claims to be the "most prestigious law school admissions discussion board in the world." According to its marketing materials, it controls 70% of the online "market" for "higher education and career discussion", with around 6000 posts a day on various topics. One of its founders reports that the site receives 350,000 to 500,000 unique visitors every month, making it significantly more trafficked than any other law blog, with the exception of Volokh. (By comparison, we get 60-70K unique hits a month.)

But.

Among many legal scholars and administrators, there is a shared impression that discussion at XO is overrun by sexist, racist, anti-semitic, and just plain foolish talk. The well-known Leiter-XO engagement (see here) is just one example, but it isn't alone. Based on correspondence, I have learned that multiple law school deans and assistant deans have dealt with the Board when trying to mediate online disputes involving their school's students. XO has been threatened with legal action (at least twice) involving alleged defamation on the board, although the site is not, to my knowledge, involved in pending litigation. Some wish the entire XO discussion board was a hoax (although others think it may be providing a public service) and some, well, some are mad as hell:

If this is what other lawyers are going to be like, I want out. They make us all look like utter a[*******]. People should avoid law school because it sucks, not because of these jerks.

I've written a bit about the Board before, in the context of a US News citation dispute, and since then, I've been in contact with one of the Board's administrators, Anthony Ciolli, a 3L at Penn Law. I think the board is pretty fascinating, primarily because its anonymity enables, and its format records, discussions among rising lawyers that are frank and heterodox (in legal culture) with respect to race, gender relations, and professional development. It isn't the only forum for such discussions, but it may be the largest.

In subsequent posts, I will be exploring three basic questions about XO.

1. What is it? I will set out the history of the Board, arising from a disaffected group of folks talking at a Princeton Review website. I will then try to get a handle on the actual discussions on XO. As Prof. Leiter pointed out, many posts on XO contain frankly racist and sexist talk. What percentage of the whole? Is the remainder entirely about law school and law firm rankings, and, if not, what else is being discussed? Other questions: who makes up the XO community? what motivates folks to spend time and effort on the various discussions? how is the site governed? how are disputes resolved? how much money does it take in?

2. Is XO Representative of Law Students? I wonder if XO strips away the mask of civility and gives us a view on how rising lawyers think. Law self-imagines as a service profession, at least in part, but posters on XO are significantly more concerned with utilitarian ends (particularly, maximizing prestige). How unique is this community and this view within the general legal profession?

3. Why should we care? Here, I'll take on some of the bigger, normative, questions. In particular, one of the "strengths" of XO is that it isn't moderated, but, that lack of moderation may be correlated with very ugly speech. Does the combination of moderation and anonymity produce net social benefits? That question would seem to turn on alternative fora, and the basic question here is whether law schools are failing to enable frank talk about law firm life and the importance of rankings, if we think that these discussions belong in school. Should law school deans be in the business of trying to shut XO down? Should professors encourage Bar Admissions C&F committees to ask "are you now, or have you ever been . . . " questions?

I think the series of posts will be interesting. I'm gathering data and information from a variety of sources: if you have any special insights about XO, you are free to send them to me via email. (I'm closing comments on this post, on the theory that they are likely to be immoderate. Unless you tell me otherwise, I will assume that I can quote and attribute any emails.)

Look for more in the coming days and weeks.

[Update: Part I.1; Part I.2; and (3; 4) related posts].

Posted by Dave Hoffman at 02:33 PM | TrackBack

Pop quiz.

Name the high-profile mass-media immigration reform opponent who, after speaking of her own "light mocha brown skin," said this:

Never could I have imagined growing up that I would see the day when brown- and yellow-skinned people would stand on the side of pink-skinned bigots railing against the problem of too many of "them."

Answer (as if you needed it) below the fold.

Michelle Malkin, "Whitewashing Asians Out of Racial Preference Debate," Seattle Times, May 26, 1998, at B4.

In the piece, she complains that as an Asian American, she might someday not qualify for racial set-asides for minorities.

I am not making this up.

Posted by Eric Muller at 11:00 PM | Comments (4) | TrackBack

Grutter Redo, Part 3

Recall that in a earlier post, I wrote about Judge Kozinski's concurring opinion in the 9th Circuit ruling which upheld the Seattle school choice plan. His view was that rational basis review was preferable and strict scrutiny inappropriate because while the "program does use race as a criterion, [it does so] only to ensure that the population of each public school roughly reflects the city's racial composition." Kozinski's position raises a number of interesting questions -- at least one of which I alluded to before -- the potential appeal of his approach to Justice Kennedy. But now I want to focus on the normative question which lies at the heart of Kozinski's approach.

Let us set aside for a moment the Court's view, which it has repeatedly reaffirmed in cases like Adarand, Grutter and Johnson v. California, that strict scrutiny review must apply to all racial classifications. The question I want to pose is this: is there a meaningful distinction between the racial preference that was at issue in Grutter, and the racial classification scheme that is challenged in the K-12 cases the Court has recently accepted. To assist you in answering this question, I'll provide a quick review of the use of race in the two situations.

Grutter concerned the University of Michigan Law School’s admissions policy which sought to enroll a “critical mass of underrepresented minority students.” In short, while the policy did not set aside a fixed number of seats in the incoming class for minority group members, it did consider race or ethnicity “flexibly as a ‘plus’ factor in the context of individualized consideration of each and every applicant.” Even though race was used flexibly (no bonus points or set asides as was the case in Bakke), there is little doubt that with respect to some candidates, race was outcome determinative. That is, race was outcome determinative for some white candidates in the sense that minority group members with identical qualifications would have been admitted to the Law School while they were not. (We can address the standing difficulties raised under this scenario at a different time.)

Contrast the Law School's admissions plan in Grutter with the Seattle school choice plan. Under the Seattle plan, race was used as a tiebreaker. In the first instance, students are given their choice of schools. It is only when a school becomes oversubscribed and racially imbalanced that the racial tiebreaker comes into play, and even then it only operates on the margins; effecting only schools where the "student body differs by more than 15 percent from the racial make up of the students of the Seattle public schools as a whole." Finally, we should note that under the Seattle plan, no student is denied an opportunity to attend a public school in the school district; all students are placed in some public school within the district. Thus, Judge Kozinski's view of the Seattle plan was, "that a student is denied a school of his choice may be disappointing, but it carries no racial stigma and says nothing at all about that individual's aptitude or ability."

Do you agree? Are the Grutter and Seattle plans distinguishable? Is it really true that one plan attaches "stigma" to a frustrated applicant while the other inflicts no such stigmatic harm to the students? Isn't one argument that the stigmatic impact of each plan is a matter of degree. If that's the case, then perhaps Kozinski is right after all that a heightened form of rational basis review is superior because it would allow the Court to take all of the relevant facts into consideration. Unless you think strict scrutiny, in the race context at least, already performs this function.

Posted by Michelle Adams at 10:53 AM | Comments (1) | TrackBack

Grutter redo, part 2

The Court's acceptance of the two K-12 cases raises so many interesting questions that it is difficult to know where to start. For this post, I'll quickly recap the facts and ask a question about Justice Kennedy's potentially pivotal role in deciding the cases. Later posts will address other issues raised by the cases.

Both cases deal with "voluntary" desegregation plans where there is no court order otherwise requiring desegregation. In both cases, the school districts sought to break the link between residential and school segregation. Given the racially segregated nature of the neighborhoods within the school districts, an uncontrolled school choice plan would have likely replicated such segregation within the schools. Instead, the districts sought to both preserve neighborhood school choice and produce more integrated public schools. As a general matter, one school district used race as a tiebreaker. In this district, students were given their choice of schools, race notwithstanding; race came into play as a tiebreaker for oversubscribed schools that were racially imbalanced. In the other district, the school board established black student enrollment ranges. Administrators then used race as one factor among many (residence, school capacity, popularity, student's choice, etc.) to achieve enrollment within those ranges.

Both the 6th and 9th Circuits upheld these plans, applying the Grutter "student body diversity" rationale to the K-12 context. In this post, I want to focus on just one question: Justice Kennedy's role. While it is true that two new justices have joined the Court since Grutter, I think it highly likely that both Roberts and Alito will vote to strike these plans down (we can debate exactly how they will do this at a later date). I believe Kennedy's vote will be pivotal. While it is true that Kennedy dissented in Grutter, essentially arguing that the Law School's affirmative action plan was not narrowly tailored under the strict scrutiny test, I believe there may be a way to reach him here. But how? Enter Judge Kozinski.

In the 9th Circuit opinion, Judge Kozinski wrote an interesting concurrence. In it, he argued that a heightened form of "rational basis" review ought to apply to the case. His theory was that the Seattle plan wasn't really an "affirmative action" plan given that it concerned admission to K-12 education. According to Kozinski, it had none of the "defects" associated with other racial preference schemes because "there is no competition between the races, and no race is given a preference over another. That a student is denied the school of his choice may be disappointing, but it carries no racial stigma and says nothing at all about the individual's aptitude or ability." Thus, from Kozinski's perspective, strict scrutiny need not apply -- and instead a less deferential form of rational basis review would do. Given Kennedy's position in Romer and Lawrence, will Kennedy be persuaded by Kozinski's argument? If so, it would allow him to uphold the plans and to distinguish his position in Grutter, where arguably, strict scrutiny had to apply.

Posted by Michelle Adams at 09:32 AM | Comments (6) | TrackBack

Grutter redo?

The Supreme Court has just annouced that it will hear two cases dealing with affirmative action in the K-12 context, much more later.

Posted by Michelle Adams at 12:16 PM | Comments (1) | TrackBack

Fourth Circuit Weighs In On Racist Talk In The Workplace

Full Court Press has a good post on a recent Fourth Circuit decision, Jordan v. Alternative Resources Corp., in which a divided panel upheld the dismissal of a Title VII race discrimination suit. In particular, the plaintiff argued that he had been fired in retaliation for making a complaint to management about what he perceived as a racially hostile working environment. The post at Full Court Press offers many more details, but the core of the court's holding was that the employee was "unreasonable" in believing that his co-worker's comments created a hostile working environment.

What were these comments that no reasonable African-American man could possibly have seen creating a hostile work environment? While watching a news account of the arrest of the DC snipers, his co-worker exclaimed: "they should put those two black monkeys in a cage with black apes and let the apes fuck them." That according to the dissent. The majority redacted the text a bit, so that the gentlememan only suggested that the apes "f--k" them. In the aftermath of this incident, the plaintiff was told by colleagues that this offending speaker had used similar language in the past.

Two thoughts. First, it was interesting to see the majority turn what was clearly family-unfriendly language into, well, family-barely-friendly text. Apparently, for the majority, the "fuck" aspect of this comment was most offensive. Calling African-Americans monkeys - and thereby calling upon a rich history of bigotry - was merely being accurate. (No doubt some will argue that the "fuck" was irrelevant to the claim here, since it was grounded on the monkey image. But that is clearly debatable, if only because the term amplified the speakers intensity of hate.) Judge King's dissent was very aggressive in terms of word choice. FIrst, he restated the facts, including the word "fuck." Then, when citing contrary authority, he explicitly noted in parentheticals that those cases involved the use of the term "nigger." We all know that the mere act of uttering this word is powerful and controversial. His point, presumably, was that any assessment of whether such abusive language could be reasonably viewed as creating a hostile environment cannot occur when the majority is perfuming these statements. Racist language must be addressed squarely, because the mere softening of terminology in a recitation of facts serves to retell a false narrative, one that the plaintiff never experienced. (In some ways, the panel's decision to obscure the actual language - characterizing it rather than providing a precise image - brings to mind Eugene Volokh's argument that you can't discuss the cartoons spoofing Mohammed without seeing the precise images that are under discussion.)

My second point is really a question. Would these two judges - Paul Niemeyer and Emery Widener - have reached the same decision if they had been required to discuss the matter with a third panel member who was African-American? It would have been a lot harder, I imagine. Indeed, if the court decides to hear this case en banc, I think the conversations between judges - including at least two African-Americans who now sit on the Circuit - would be more complicated. Will white judges feel comfortable looking Allison Duncan or Roger Gregory in the eye and telling them these statements aren't that big a deal? (This raises the question of whether anyone has done an empirical study of the effects of a racially mixed panel on decisions in Title VII cases.)

Keep in mind that this case isn't about the merits. The question is not whether these statements actually created a hostile environment. It's not about whether the co-worker ever made these statements. It simply about having a day in court to let a factfinder decide these things. The Fourth Circuit concluded that NO reasonable African-American man, having heard these comments in the workplace, could ever have concluded he was experiencing a hostile environment. Thus, the case cannot proceed to trial. That just doesn't seem right to me. And I won't be surprised if it doesn't seem correct to several other judges on the circuit either. So here's my prediction: I say the conservative Fourth Circuit hears the case en banc and reverses the panel.

Hat tip: Feminist Law Professors which notes the gender implications to this decision.

Posted by Dan Filler at 01:18 AM | Comments (6) | TrackBack

Racial Separation

Yesterday's NY Times included an article about separate drunk driving courts in Phoenix for Spanish-speakers and Native Americans. I wasn't particularly troubled about having special courts for Spanish speakers. As a practical matter, such courts will operate more quickly and efficiently because they will not need translators. At the same time, it seems likely that the proceedings will be, and will be perceived by to be, fairer. This is because Spanish speakers will presumably understand much more of what is occurring in the courtroom. (For example, defendants may benefit from understanding the proceedings in other cases, as well as from understanding the informal courtroom patter that would otherwise go untranslated.)

Creating special courts for Native Americans is different. On one hand, specialty courts are neither new nor troubling. As I've written, drug courts and mental health courts provide special benefits because the feature judges with specialized knowledge, as well as a more developed support staff trained to address particularly challenging personal problems. There are reasons to believe such courts may reduce recidivism because their sentences are more effective. But why couldn't a specialized drunk-driving court provide that sort of individualized treatment plan for both Native Americans and non-Native Americans?

It seems to me that the only basis for having a separate race-based tribunal is if the use of a general tribunal itself prevents effective treatment. Thus we should ask whether there is something about having a special venue that changes the experience for the defendants. That is, do many Native Americans speak more openly in the Native American court? Do they acknowledge their problems more easily there? Do they follow court orders more frequently in such courts? Do lawyers advocate more aggressively in these courts? Even if the answers are yes, I'm not at all sure that I'd support these race-based courts. There are broad social costs to creating race-segregated courts; it seems far wiser to build a single inclusive tribunal.

On a separate note, I've been thinking a bit about recent happenings at NYU Law. As some others have noted, students at my alma mater are petitioning the Dean for creation of a "minority lounge." The space would be open to all members of the community but according to one student, "it should be understood that this is a place where students of color can go to feel comfortable, to talk without hesitation, to be surrounded by those that understand or are more open to understanding their experience in law school."

At best, I have mixed feelings about this proposal. To the degree that it reflects an energized political community seeking recognition and services, I respect it. I also know that people choose their friends based on a variety of factors, including shared experiences and perspectives. Nothing wrong with that. But New York, and the ever-expanding NYU Law School, have many different spaces for people to gather. If students of color at NYU cannot find existing places to feel comfortable within the building and cannot talk without hesitation in these areas, the law school has a real problem. The administration must figure out how to build an inclusive home for all of its students - whether that means addressing matters of faculty, students, curriculum, or services. I'm not sure that designating a special lounge for students of color is the first step of this project and I fear that it may exacerbate, rather than solve, existing difficulties.

Separate facilities and programs may sometimes be necessary but it seems to me that they require the closest of scrutiny. In my own view, society is generally better off when our institutions are both integrated and inclusive.

UPDATE: Belle Lettre has a thoughtful and substantial analysis of the separate lounge issue over at Law and Letters, which continue here.

Posted by Dan Filler at 01:11 PM | Comments (7) | TrackBack