Diary of a Mad Law Professor | The Nation

Diary of a Mad Law Professor

Patricia Williams

A recent front-page story in the Boston Globe proclaimed that New
England leads the nation in Ritalin prescription levels. Somewhat to my
surprise, the prevalence of Ritalin ingestion was generally hailed as a
good thing--as indeed it may be in cases of children with ADHD. But to
me the most startling aspect of the Globe's analysis was the
seeming embrace in many places of Ritalin as a "performance enhancer."
Prescription rates are highest in wealthy suburbs.

While the reasons for such a statistical skewing need more exploration
than this article revealed, what I found particularly interesting was
the speculation that New Englanders have a greater investment in
academic achievement: "'Our income is higher than in other states, and
we value education,' said Gene E. Harkless, director of the family
nurse-practitioner program at the University of New Hampshire. 'We have
families that are seeking above-average children.'"

Aren't we all. (And by "all," I mean all--wouldn't it be nice if
everyone understood that those decades of lawsuits over affirmative
action and school integration meant that poor and inner-city families
also "value education" and are "seeking above- average children"?) But
Ritalin, after all, works on the body as the pharmacological equivalent
of cocaine or amphetamines. It does seem a little ironic that poor
inner-city African-Americans, who from time to time do tend to get a
little down about the mouth despite the joys of welfare reform, are so
much more likely than richer suburban whites to be incarcerated for
self-medicating with home-brewed, nonprescription cocaine derivatives.
If in white neighborhoods Ritalin is being prescribed as a psychological
"fix" no different from reading glasses or hearing aids, it's no wonder
the property values are higher. Clearly the way up for ghettos is to
sweep those drugs off the street and into the hands of drug companies
that can scientifically ladle the stuff into underprivileged young black
children. I'll bet that within a single generation, the number of
African-Americans taking Ritalin--to say nothing of Prozac and
Viagra--will equal rates among whites. Income and property values will
rise accordingly. Dopamine for the masses!

Another potential reason for the disparity is, of course, the matter of
access to medical care. Prescriptions for just about anything are likely
to be higher where people can afford to see doctors on a regular
basis--or where access to doctors is relatively greater: New England has
one of the highest concentrations of doctors in the country. But access
isn't everything. Dr. Sally Satel, a fellow at the American Enterprise
Institute, says that when she prescribes Prozac to her lucky
African-American patients, "I start at a lower dose, 5 or 10 milligrams
instead of the usual 10-to-20-milligram dose" because "blacks metabolize
antidepressants more slowly than Caucasians and Asians." Her bottom line
is that the practice of medicine should not be "colorblind" and that
race is a rough guide to "the reality" of biological differences.
Indeed, her book, PC, M.D.: How Political Correctness Is Corrupting
, is filled with broad assertions like "Asians tend to have
a greater sensitivity to narcotics" and "Caucasians are far more likely
to carry the gene mutations that cause multiple sclerosis and cystic
fibrosis." Unfortunately for her patients, Dr. Satel confuses a shifting
political designation with a biological one. Take, for example, her
statement that "many human genetic variations tend to cluster by racial
groups--that is, by people whose ancestors came from a particular
geographic region." But what we call race does not reflect geographic
ancestry with any kind of medical accuracy. While "black" or "white" may
have sociological, economic and political consequence as reflected in
how someone "looks" in the job market or "appears" while driving or
"seems" when trying to rent an apartment, race is not a biological
category. Color may have very real social significance, in other words,
but it is not the same as demographic epidemiology.

It is one thing to acknowledge that people from certain regions of
Central Europe may have a predisposition to Tay-Sachs, particularly
Ashkenazi (but not Sephardic or Middle Eastern) Jews. This is a reality
that reflects extended kinship resulting from geographic or social
isolation, not racial difference. It reflects a difference at the
mitochondrial level, yes, but certainly not a difference that can be
detected by looking at someone when they come into the examining room.
For that matter, the very term "Caucasian"--at least as Americans use
it, i.e., to mean "white"--is ridiculously unscientific. Any given one
of Dr. Satel's "Asian" patients could probably more reliably claim
affinity with the peoples of the Caucasus mountains than the English-,
Irish- and Scandinavian-descended population of which the gene pool of
"white" Americans is largely composed. In any event, a group's
predisposition to a given disease or lack of it can mislead in making
individual diagnoses--as a black friend of mine found out to his
detriment when his doctor put off doing a biopsy on a mole because
"blacks aren't prone to skin cancer."

To be fair, Dr. Satel admits that "a black American may have dark
skin--but her genes may well be a complex mix of ancestors from West
Africa, Europe and Asia." Still, she insists that racial profiling is of
use because "an imprecise clue is better than no clue at all." But let
us consider a parallel truth: A white American may have light skin, but
her genes may well be a complex mix of ancestors from West Africa,
Europe and Asia. Given the complexly libidinous history of the United
States of America, I worry that unless doctors take the time to talk to
their patients, to ask, to develop nuanced family histories or, if
circumstances warrant, to perform detailed genomic analyses, it would be
safer if they assumed that, as a matter of fact, they haven't a clue.

We live in a world where race is so buried in our language and habits of
thought that unconscious prejudgments too easily channel us into
empirical inconsistency; it is time we ceased allowing anyone, even
scientists, to rationalize that consistent inconsistency as

Supreme Court Justice Anthony Kennedy has been traveling around the
country recently as part of a nationwide post-9/11 effort to promote
debate about civic values in schools and colleges. According to the
Boston Globe, Kennedy spent a day in that city's top public school,
Boston Latin Academy, and proposed a scenario in which "students
accidentally end up on a three-day layover in a very poor (imaginary)
nation called Quest, where Drummer, a young charismatic man, preaches
that the decadent United States should be destroyed. Quest citizens say
Drummer offers hope for change and that America is corrupt." Quest is
described as pervasively corrupt; although it has a written
constitution, "promises are not kept." The students were challenged to
defend American democracy.

The idea of getting students to excavate and examine the values they
hold most dear is an excellent one, although I must say I'm suspicious
of such a flatly simplistic scenario. I'd want to know a lot more about
the politics, history and economy of Quest. What's driving the
resentment--is it poverty? If so, is the anti-American sentiment merely
due to the abstract symbolic wealth of the United States, or is there
some specific industrial business presence in Quest--say an Enron--whose
unethical exploits have, by exacerbating living conditions, been
mistaken for the people and values of the United States? Does
anti-American resentment in Quest cut across all socioeconomic
spectra--hinting at some more ideological or religious discontent? Or is
it the result of some specific trauma, like Bhopal? Has the United
States supported oppressive regimes in the region? Is Quest an ally,
like Iran or China?

I suppose Justice Kennedy would not appreciate a devil's advocate like
me; I suppose he wants students to imagine Quest along the lines of
Zimbabwe or Iraq. I suppose the "right" answer would be that I'd spend
my three days proselytizing, as I do right here at home, about the
salutary effects of due process, free and honest elections, the Bill of
Rights and equal opportunity for all. But any good player in strategic
games knows that studying the motives and designs of the opposition
makes all the difference.

So I question what was accomplished by the vagueness of this exercise.
Indeed, its open-endedness made me think of an essay I read recently by
Harvard law professor Richard Parker, in the spring issue of the Harvard
Journal of Law and Public Policy
. Parker urges the "making" of
patriotism as a mobilization of emotion--"a political equivalent of
love"--that must be "grounded like electricity." He poses a set of
questions to test those sensibilities: "Recall your own early reactions
to the September 11 attack. (1) Did you feel that it was, in fact, an
attack 'on the United States'? (2) Did you believe that the United
States should defend itself--including preemptive self-defense to the
extent necessary? (3) Did you focus mostly on the past misdeeds of our
country. (4) Did you adopt a 'pragmatic' stance and argue that we ought
to govern ourselves by attending to 'the way we and our actions are
perceived' abroad? those who love our country are more likely than not
to give one set of answers: yes, yes, no and no."

Much of this essay struck me as romantic, murky nonsense; but what
troubled me most was its source. Like Justice Kennedy, Professor Parker
is powerfully positioned to be advancing a Rorschach test no more
reliable than a mood ring--patriotism reduced to "which side of the line
did you see yourself on if I flash this picture of September 11." And it
is irresponsible if one is then prepared to fashion a set of
consequences for being on the wrong side--as could well be under the USA
Patriot Act, which authorizes increased surveillance and interference in
the activities of those deemed unpatriotic.

What I thought on September 11 was considerably more tangled than
Parker's test. Lots of people were confused--people whom it would be
quite foolish to characterize as unpatriotic. When I first heard of the
hijackings, for example, I feared that it was retribution for Timothy
McVeigh's execution only a few months before. That gut reaction might
place me on the wrong side of Parker's test--my fears didn't
"privileg[e] insiders" more than "hostile outside forces." Moreover, in
my conviction that our civil rights are on a continuum with human
rights, I might run afoul of his assertion that "strict commitment to
universal values," including the notion of human rights, tends to
"stretch and break the bonds of patriotism, as their enthusiasts
proclaim themselves 'citizens' of nothing less than 'the world.'"
Indeed, by this measure, Timothy McVeigh might have had a greater chance
of passing Parker's test than I, which is distressing, to say the least.

Back in Boston, Justice Kennedy asked "whether it was right to let
people in other nations choose dictatorships." That troubled one senior,
who felt that the Justice was saying it was OK to impose democracy. "I
don't agree...[but] if I was in another country, I wouldn't be able to say
such things to such important people. You probably wouldn't see me
tomorrow." (I do hope the student was a citizen; if not, he could be
subject to President Bush's order allowing indefinite detention of
noncitizens without charge in undisclosed locations, with no recourse to
lawyers of their choice.)

If I were designing such an exercise, I'd use specific examples--like
Argentina under the junta or Turkey under martial law--rather than a
one-size-fits-all fictional foe. I'd have students compare the text of
the Constitution with the text of the USA Patriot Act. I'd have them
studying the right of habeas corpus, to my mind the greatest
contribution of Western jurisprudence. And I'd remind them of playwright
Arthur Miller's concern that we not turn our civic engagement into a
crucible where a "political policy is equated with moral right, and
opposition to it with diabolical malevolence. Once such an equation is
effectively made, society becomes a congeries of plots and counterplots,
and the main role of government changes from that of the arbiter to that
of the scourge of God."

A friend and I were sitting around commiserating about the things that get to us: unloading small indignities, comparing thorns. "So there I was," she said, "sitting on the bus and this man across the aisle starts waving a copy of law professor Randall Kennedy's new book Nigger. He's got this mean-looking face with little raisiny eyes, and a pointy head, and he's taking this book in and out of his backpack. He's not reading it, mind you. He's just flashing it at black people."

"Don't be so touchy," I responded. "Professor Kennedy says that the N-word is just another word for 'pal' these days. So your guy was probably one of those muted souls you hear about on Fox cable, one of the ones who's been totally silenced by too much political correctness. I'd assume he was just trying to sign 'Have a nice day.'"

"Maybe so," she said, digging through her purse and pulling out a copy of Michael Moore's bestselling Stupid White Men. "But if I see him again, I'm armed with a 'nice day' of my own."

"That's not nice," I tell her. "Besides, I've decided to get in on the publishing boom myself. My next book will be called Penis. I had been going to title it Civil Claims That Shaped the Evidentiary History of Primogeniture: Paternity and Inheritance Rights in Anglo-American Jurisprudence, 1883-1956, but somehow Penis seems so much more concise. We lawyers love concision."

She raised one eyebrow. "And the mere fact that hordes of sweaty-palmed adolescents might line up to sneak home a copy, or that Howard Stern would pant over it all the way to the top of the bestseller list, or that college kids would make it the one book they take on spring break----"

"...is the last thing on my mind," I assured her. "Really, I'm just trying to engage in a scholarly debate about some of the more nuanced aspects of statutory interpretation under Rule 861, subsection (c), paragraph 2... And besides, now that South Park has made the word so much a part of popular culture, I fail to see what all the fuss is about. When I hear young people singing lyrics that use the P-word, I just hum along. After all, there are no bad words, just ungood hermeneutics."

"No wonder Oprah canceled her book club," she muttered.

Seriously. We do seem to have entered a weird season in which the exercise of First Amendment rights has become a kind of XXX-treme Sport, with people taking the concept of free speech for an Olympic workout, as though to build up that constitutional muscle. People speak not just freely but wantonly, thoughtlessly, mainlined from their hormones. We live in a minefield of scorched-earth, who-me-a-diplomat?, let's-see-if-this-hurts words. As my young son twirls the radio dial in search of whatever pop music his friends are listening to, it is less the lyrics that alarm me than the disc jockeys, all of whom speak as though they were crashing cars. It makes me very grateful to have been part of the "love generation," because for today's youth, the spoken word seems governed by people from whom sticks and stones had to be wrested when they were children--truly unpleasant people who've spent years perfecting their remaining weapon: the words that can supposedly never hurt you.

The flight from the imagined horrors of political correctness seems to have overtaken common sense. Or is it possible that we have come perilously close to a state where hate speech is the common sense? In a bar in Dorchester, Massachusetts, recently, a black man was surrounded by a group of white patrons and taunted with a series of escalatingly hostile racial epithets. The bartender refused to intervene despite being begged to do something by a white friend of the man. The taunting continued until the black man tried to leave, whereupon the crowd followed him outside and beat him severely. In Los Angeles, the head of the police commission publicly called Congresswoman Maxine Waters a "bitch"--to the glee of Log Cabin Republicans, who published an editorial gloating about how good it felt to hear him say that. And in San Jose, California, a judge allowed a white high school student to escape punishment after the student, angry at an African-American teacher who had suspended his best friend, scrawled "Thanks, Nigga" on a school wall. The judge was swayed by an argument that "nigga" is not the same as "nigger" but rather an inoffensive rap music term of endearment common among soul brothers.

Frankly, if Harvard president Lawrence Summers is going to be calling professors to account for generating controversy not befitting that venerable institution, the disingenuous Professor Kennedy would be my first choice. Kennedy's argument that the word "nigger" has lost its sting because black entertainers like Eddie Murphy have popularized it, either dehistoricizes the word to a boneheaded extent or ignores the basic capaciousness of all language. The dictionary is filled with words that have multiple meanings, depending on context. "Obsession" is "the perfume," but it can also be the basis for a harassment suit. Nigger, The Book, is an appeal to pure sensation. It's fine to recognize that ironic reversals of meaning are invaluable survival tools. But what's selling this book is not the hail-fellow-well-met banality of "nigger" but rather the ongoing liveliness of its negativity: It hits in the gut, catches the eye, knots the stomach, jerks the knee, grabs the arm. Kennedy milks this phenomenon only to ask with an entirely straight face: "So what's the big deal?"

The New Yorker recently featured a cartoon by Art Spiegelman that captures my concern: A young skinhead furtively spray-paints a swastika on a wall. In the last panel, someone has put the wall up in a museum and the skinhead is shown sipping champagne with glittery fashionistas and art critics. I do not doubt that hateful or shocking speech can be "mainstreamed" through overuse; I am alarmed that we want to. But my greater concern is whether this gratuitous nonsense should be the most visible test of political speech in an era when government officials tell us to watch our words--even words spoken in confidence to one's lawyer--and leave us to sort out precisely what that means.

As state budgets around the country are slashed to accommodate the expense of the war on terror, the pursuit of educational opportunity for all seems ever more elusive. While standardized tests are supposed to be used to diagnose problems and facilitate individual or institutional improvement, too often they have been used to close or penalize precisely the schools that most need help; or, results have been used to track students into separate programs that benefit the few but not the many. The implementation of gifted classes with better student-teacher ratios and more substantial resources often triggers an unhealthy and quite bitter competition for those unnaturally narrowed windows of opportunity. How much better it would be to have more public debate about why the pickings are so slim to begin with. In any event, it is no wonder there is such intense national anxiety just now, a fantastical hunger for children who speak in complete sentences by the age of six months.

A friend compares the tracking of students to the separation of altos from sopranos in a choir. But academic ability and/or intelligence is both spikier and more malleably constructed than such an analogy allows. Tracking students by separating the high notes from the low only works if the endgame is to teach all children the "Hallelujah Chorus." A system that teaches only the sopranos because no parent wants their child to be less than a diva is a system driven by the shortsightedness of narcissism. I think we make a well-rounded society the same way we make the best music: through the harmonic combination of differently pitched, but uniformly well-trained voices.

A parsimony of spirit haunts education policy, exacerbated by fear of the extremes. Under the stress of threatened budget cuts, people worry much more about providing lifeboats for the very top and containment for the "ineducable" rock bottom than they do about properly training the great masses of children, the vibrant, perfectly able middle who are capable of much more than most school systems offer. In addition, discussions of educational equality are skewed by conflation of behavioral problems with IQ, and learning disabilities with retardation. Repeatedly one hears complaints that you can't put a gifted child in a class full of unruly, noisy misfits and expect anyone to benefit. Most often it's a plea from a parent who desperately wants his or her child removed from a large oversubscribed classroom with a single, stressed teacher in an underfunded district and sent to the sanctuary of a nurturing bubble where peace reigns because there are twelve kids in a class with two specialists and everyone's riding the high of great expectations. But all children respond better in ordered, supportive environments; and all other investments being equal, gifted children are just as prone to behavior problems--and to learning disabilities--as any other part of the population. Nor should we confuse exceptional circumstances with behavior problems. The difficulty of engaging a child who's just spent the night in a homeless shelter, for example, is not productively treated as chiefly an issue of IQ.

The narrowing of access has often resulted in peculiar kinds of hairsplitting. When I was growing up, for example, Boston's Latin School was divided into two separate schools: one for boys and one for girls. Although the curriculum was identical and the admissions exam the same, there were some disparities: The girls' school was smaller and so could admit fewer students; and the science and sports facilities were inferior to those of the boys.

There was a successful lawsuit to integrate the two schools about twenty years ago, but then an odd thing happened. Instead of using the old girls' school for the middle school and the larger boys' school for the new upper school, as was originally suggested, the city decided to sever the two. The old boys' school retained the name Boston Latin, and the old girls' school--smaller, less-equipped--was reborn as Boston Latin Academy. The entrance exam is now administered so that those who score highest go to Boston Latin; the next cut down go to what is now, unnecessarily, known as the "less elite" Latin Academy.

One of the more direct consequences of this is that the new Boston Latin inherited an alumni endowment of $15 million dollars, much of it used to provide college scholarships. Latin Academy, on the other hand, inherited the revenue of the old Girls' Latin alumni association--something under $200,000. It seems odd: Students at both schools are tremendously talented, the cutoff between them based on fairly insignificant scoring differences. But rather than pool the resources of the combined facilities--thus maximizing educational opportunity, in particular funding for college--the resolution of the pre-existing gender inequality almost purposefully reinscribed that inequality as one driven by wealth and class.

There are good models of what is possible. The International Baccalaureate curriculum, which is considered "advanced" by most American standards, is administered to a far wider range of students in Europe than here, with the result that their norm is considerably higher than ours in a number of areas. The University of Chicago's School Mathematics Project, originally developed for gifted students at the Chicago Lab School, is now recommended for all children--all children, as the foreword to its textbooks says, can "learn more and do more than was thought to be possible ten or twenty years ago." And educator Marva Collins's widely praised curriculum for inner-city elementary schools includes reading Shakespeare.

Imparting higher levels of content requires nothing exceptional but rather normal, more-or-less stable children, taught in small classes by well-trained, well-mentored teachers who have a sophisticated grasp of mathematics and literature themselves. It will pay us, I think, to stop configuring education as a battle of the geniuses against the uncivilized. We are a wealthy nation chock-full of those normal, more-or-less stable children. The military should not be the only institution that teaches them to be all that they can be.

It all began with a missing sheet of homework. "Contractions," my son had written very clearly in his assignment log. "What's this?" I asked when he announced he'd finished everything else, noting that there was no book or worksheet to which the reference logically applied. "Don't know," replied my son.

I was off to the races, astride my high horse, afroth with my mission of dutiful motherhood, my son sniveling that he had No Idea what it meant.

"The teacher made you write it down, n'est-ce pas?"

"Yes, but..."

"No buts--I am calling for reinforcements." So we called his best friend. No Idea. Aha, I thought, the two of them must be in league. We called his next best friend. No Idea. Three in league? Better try the girls, girls are sober, reliable, always bright as buttons. But girls were not home, out sick, at gymnastics, No Idea.

I called my mother: How will he ever get to college at this rate, I moaned. "Is this a joke or are you working out for the high blood pressure Olympics?" she asked quietly.

By 6 o'clock, I gave up, took two aspirin and went off to a school board meeting. Most unfortunate for my throbbing temples, gifted and talented programs were the topic of the evening, and the room was packed with parents, 100 percent of whom were banking on the hope that their children were in the ninety-ninth percentile. An expensive array of options was on the table, products and "packages," computer programs and reading lists. It was a veritable Tupperware party of the education industry, but what most people seemed to want most was A Separate Class.

One of the things I get to do in my profession is travel around to schools and talk about the benefits of equal access in all its forms. I find myself increasingly concerned that a kind of triage mentality has settled over schools, a vise of constraint that has led to a bottom-dollar hunt for top students. Triage is a theory that makes a certain sense in extremely dire settings where such a cruel cost-benefit analysis has the remote moral justification of salvage-under-fire. That educational opportunity should at all resemble such a configuration in this, the wealthiest and most technologically developed country on the planet, speaks of a deep and troubling class divide.

I cannot help thinking of this as I read headlines about libraries being shut, public universities shrinking, school music programs disappearing everywhere. I cannot help thinking about this as I sit in yet another roomful of parents desperately touting their children's special attributes, waving credentials about as though clawing their way up from the steerage deck of the Titanic.

The guest expert at this particular meeting defined "gifted" as the top 3 or 4 percent of the population, although that particular cutoff reflected a monetary limit, rather than any rational relation to the potential of a child "only" in the ninety-fifth percentile. In a different district there might be enough money to provide services for only the top 1 percent; in yet another, for the top tenth.

But I can't help believing that in a world of universally well-funded education, schools could provide for almost all their students much of the enrichment that is now reserved only for the most endowed. We seem to have forgotten that there are many successful models in which all levels are accommodated, in which neither gifted nor special education students are segregated but are given materials that both educate and engage; programs where individual differences in ability can be negotiated in small classes, by teachers who are well-educated and well-supported.

As I glanced around the room, I did the math that a lot of people seem to be ignoring: A Separate Class for the top 3 or 4 percent would mean that no more than one or two students in a given grade would have access to the truly wonderful materials being discussed--materials from which any child could profit. There will be a heap of hurt feelings if this plan comes to pass. But more important to the state of our union, it is wasteful of precious human resources. It is inconceivable to me why we Americans can't cough up enough money so that the "bottom" 95 percent are exposed to Shakespeare and calculus and music theory from as young an age as possible. If they can't all write a concerto by the time they're 7, at least a whole lot more of them will be able to enjoy one.

While I think programs and materials for the gifted are fine and good, I worry about meetings like this in which the dominant sentiment is that the only way to educate the gifted is to remove them from the company of mere mortal riff-raff. In a world where public schools are shuddering beneath hatcheted budget cuts, gifted programs have become a kind of status symbol, the equivalent of those new "designer" medical practices where doctors charge exorbitant fees to make themselves available to only a few patients for round-the-clock cell-phone access and midnight consultations.

The board meeting ended with a description of how a special class for the gifted had helped maximize the strengths of one particular child described as "brilliant but unmotivated"--a child of such genius that he was too preoccupied to get to school before the day was half over. His tardiness was so great that the teacher would actually go to his house in the morning and drag him to school herself. Hmm, I thought. What a wonderful world it would be if we put together the resources to push all children with such unyielding solicitude.

When I got home, I checked my e-mail to find a note from my son's teacher explaining that she had simply forgotten to give the children the worksheet on contractions. All the tension drained from me. Education has become such an awfully anxious rat race. I kissed my son--who in the meantime had come up with the inventive theory that contractions are the physical product of any given page of long division--on the tip of his nose. How lucky our worries. How perfect the children.

In my last column, I mentioned that most actual drug users are young white people, even though most of those "profiled" as drug users are people of color. Indeed, according to the Sentencing Project, 72 percent of all illegal drug users are white.

But profiling is further vexed by the eternal question of how one determines who is white and who is not. In today's diasporic world, racial identity or "whiteness" is less determined by lines of "blood" or descent than it once was in certain Southern states. Today, whiteness is more dominantly a matter of appearance, based on malleable aesthetic trends.

This point--the malleability of how we assign "race" to people--is certainly illustrated by the example of Noelle Bush, to whom I referred as white. I received much mail insisting that she is not in fact white but Latina "because her mother is." It's an interesting question, this: the potential tension between "actual" and actuarial determinations of race. But first, let us agree that although there is no biological reality of race, the force of race is a powerful if constantly negotiated sociocultural construction, and has been since colonial times. Second, allow me to sidestep for now the complex anthropology of whether being Latina is determined matrilineally, thus canceling out her conspicuous Puritan patrimony. Third, let us also agree that recent migrations from Latin America have increasingly complicated national demographics as historically inflected by Jim Crow laws. And so, while "Latina" seems to be used as a racial category when it comes to most compilations of criminal justice statistics (meaning brown people from south of the border, of mixed Spanish, African and Native American descent), the reality is that not all Latinos are people of color. Indeed, "Latino" is perhaps more accurately understood as a broad linguistic, regional and cultural category rather than a racial one.

In any event, I called Ms. Bush white because, in photographs, that's what she looked like to me, admittedly through all the filters of my particular geographic and generational prism. At the same time, a number of letters pointed out that Noelle Bush and her brother are the grandchildren whom George Bush the Elder once described as "the little brown ones." This underscores the essential irrationality of profiling by appearance alone: If old George and I (just let your imagination wander here) were working as airport screeners, side by side and in accordance with the logic of most racially based profiling guidelines, he'd have stopped her, and I'd have waved her through. "But she's really..." has no fixed meaning in such profiling. This is not a new aspect of racial scrutiny; in generations past, perhaps, Noelle Bush's status might have been familiar as that of Tragic Mulatta. In today's more global context, I re-examine her picture and note how she resembles supermodel Christy Turlington--herself endlessly exploited for the vaguely "exotic" racial ambiguity that her mother's Ecuadorean "blood" supposedly lends her. But however one may or may not want to classify Ms. Bush, the existence of a confused limbo of those who can "pass" does not alter the fact that once classified as "suspect," as are too many of the unambiguously dark-skinned, the license of heightened investigation significantly colors the fundamental counterpresumption of innocent until proven guilty.

Let me shift topics here. One striking feature of virtually all the letters I received was the application of the word "smug" to my description of "Governor Jeb Bush's poor daughter, Noelle." This attribution was attended by detailed accusations, all starting with the word "impliedly." I impliedly took delight in the Bush family's suffering. I impliedly reveled in her getting what she deserved. I impliedly used the daughter to make fun of the father.

A little clarification is perhaps in order. When I said "poor Noelle," I meant it, with no irony attached. Whether fueled by biological predisposition or depression, substance abuse knows no political, class or ethnic boundary. Poor Prince Harry, poor Betty Ford, poor Robert Downey Jr., poor not-a-few Kennedys. I don't find a single bit of enjoyment in what is clearly a pervasive modern crisis. If one must project, let me provide some guidance. I see our crisis of drug dependency as a medical or mental health issue rather than a criminal cause. This stance obviously places me at odds with the Prohibition-era policies of Jeb and both Georges. It doesn't mean I doubt that Governor Bush is less desperately concerned about the fate of his daughter than any other father. He believes the war on drugs is to the greater good; I think it woefully misguided. Asserting such disagreement about the efficacy of policy is democratic, not inherently disrespectful.

I also agree with those who counsel against publishing the unruly actions of children, whether their parents happen to be in the limelight or not. I believe minors, defendants or witnesses, deserve protection from the media. But Noelle Bush is well over 21, has had five traffic violations, seven speeding tickets and three car crashes and was convicted of impersonating a doctor in order to fraudulently obtain a prescription. The actions of adults who are brought before the criminal justice system are appropriately the subject of public record. Noelle Bush was given probation and referred to a drug treatment center. Who's to say if that's what she "deserved," but most likely it's what she, and so many others like her, needs. Where her example might be of continuing public interest is in contrasting her fate with that of poorer women, who, if convicted of drug offenses, are ineligible for welfare benefits for life. And in a case recently before the Supreme Court, an elderly woman whose retarded granddaughter smoked a joint three blocks away from her house was evicted from public housing based on her "relation" to drug use or sale. If such rules were applied across the socioeconomic spectrum, we'd have to ask Jeb Bush to give up the governor's mansion. It is, after all, public housing. I know--some of you will be affixing meanspirited, giggling gratuity to that image, but my point is rather the sad absurdity of it.

In all this, the bottom-line concern is whether fundamental fairness remains the measure of how we treat anyone--rich or poor, white or Latino, anonymous minor or poor Noelle.

In my last column, I called the expansion of profiling that has occurred since September 11 "equal opportunity." I meant it ironically, but a surprising number of people took me literally. So I want to make clear that I don't consider this upgraded frisking any kind of opportunity, nor do I think that its expansion is really the same as equality. I am also aware, as was pointed out to me, that there are people in the world who might appreciate a good cavity search, confident that this is all for their benefit. And while I understand that we have all become subject to "nothing more than" the same ministrations that visitors to maximum security prisoners go through, the fact that some think this is the best of all possible worlds strikes me as fatuous.

The billions of dollars currently being pumped into police and surveillance budgets represent an unprecedented investment in a heavily patrolled world. Such an extraordinary buildup will inevitably exacerbate questions about the limits of state force; it will require the greatest vigilance to prevent our turning into not just a police state but one big global military base. Specific categories of us will probably continue to bear a special burden--black women in airports are, according to some figures, searched more than anyone else because I, as Typical Black Everywoman, meet the description of a drug courier better than you--as in You, profiled Nation reader and Typical Ungendered White Person.

Blacks and Latinos are the profiled shape of the "war on drugs," even though the majority of actual drug abusers are young white people like Governor Jeb Bush's poor daughter, Noelle. The "war on terror" promises to be even more sweeping. For the time being, our new international, militarized police force has increased its scrutiny, from black women in airports and black men in cars, to include Middle Eastern men anywhere, Asian people who look vaguely Filipino, as well as ample Minnesota housewives actually armed with sets of silver fondue forks.

Is this better or worse? I think it's a misuse of data, often creating a false sense of security. The kind of profiling that seems to inform the majority of stops and searches is usually based on statistical relations so vague as to be useless. Such profiling, premised on diffuse probabilities about looks and dress, ethnicity or nationality, class or educational status, begs for more analysis. Otherwise it can be defeated on the one hand by guards and gatekeepers whose interpretation of looks or class status is skewed by selective and subjective prejudice and on the other hand by travelers committed to the art of disguise.

The attacks on the Pentagon and the World Trade Center were carried out by deeply rational and well-trained operatives whose tactics defied easy profiling. They looked--and were--well educated; they dressed professionally. The fact that the FBI actually had information that some of them had been involved in terrorist networks counted less in the real world than that they looked good. After all, it is true that in a very large sense sleek, well-dressed professionals commit fewer crimes than the hungry, grumpy lower classes. I have this painful recurring dream of the security guards at Logan on September 11, carelessly waving all eighteen men through, while strip searching long lines of black women having bad hair days.

I worry that we're doing the same thing with shoes: Richard Reid was able to board an airplane because he played against the expectation embedded in profiles. He looked odd enough to have been stopped and questioned, but ultimately looks had little to do with what made him dangerous. Although they were suspicious, security officials did not discover his criminal record, surely better evidence of his propensities than whether he wore a ponytail. He was finally allowed on board; he was a British citizen, and British citizens were not the subject of any profile. They searched his bag but not his shoes, because shoes were not at that point the subject of any profile. Now that we know thick-soled sneakers can be turned into weapons of mass destruction, airports spend a lot of time removing and examining them. It's likely to catch copycats, I suppose, which is not a problem to be ignored, but does anyone really believe that Al Qaeda would use shoes again? In other words, while there is, after Richard Reid, a marginal relation between shoes and bombs, the actual odds of it ever happening precisely like that again are slim to nonexistent. Indeed, what distinguishes professional operatives who calculatedly sow terror is that they take the time to play against type.

So I worry when I hear about plans to expand profiling as we now seem to practice it. I worry when I hear about plans to have our thumb prints taken, our irises scanned, our DNA plotted. How can we be putting all this work into appearances when appearances bear no necessary relation to intent? The risk of this is not just one of diminished dignity or privacy. The problem ought to have been made clear to us in the wake of "accidents" like Amadou Diallo. The problem ought to be apparent in recent news stories about the CIA having flown an unmanned surveillance craft over a street in Afghanistan. It had a night vision camera on it that caught in its scope a group of men conversing who fit a profile because one of their number was unusually tall, as is Osama bin Laden. After some consultation at the remote site where the CIA officers and their telemonitors were located, the CIA decided to bomb the group. The men were killed, but as of this writing, the CIA admits it still doesn't know who the men were. Civilians on the ground claimed that the men were townspeople scavenging for scrap metal.

This death by actuary. This profiled guilt. This trial by night vision drone. Our superlative technology permits us to listen, scan, survey and X-ray anybody and everybody in the world. But a sea of data alone won't help us if there is no higher wisdom in the final analysis. Good "intelligence" means more than eyes and ears--there must be a heart and a brain, or we will never achieve the global stability we all so desperately desire.

We have reached the point that the idea of liberty, an idea relatively recent and new, is already in the process of fading from our consciences and our standards of morality, the point that neoliberal globalization is in the process of assuming its opposite: that of a global police state, of a terror of security. Deregulation has ended in maximum security, in a level of restriction and constraint equivalent to that found in fundamentalist societies.

--Jean Baudrillard, "L'Esprit du Terrorisme,"
reprinted in Harper's Magazine, February 2002

Dear Editor,

Sorry to have missed my column deadline. I got delayed at the airport. I was intending to write about the progress of the war on war. I wanted to write about how similar are the wars of words being used in the war on terrorism, the war on crime, the war on drugs, the war on poverty, the war on illiteracy and the war on hunger. I had intended to explore the ramifications of terms like "axis of evil," "triumvirate of terror," "parasites" and the concept of "taking no prisoners" (just detainees).

If I hadn't been delayed, I meant to talk about the war stories we're telling ourselves. That the Geneva Conventions aren't such a big thing. There's just no time for Miranda rights. Civil rights are just not needed. Got to break a few rules to enforce the law.

I was thinking that maybe I am just behind the times. While I wasn't looking, we moved on to less law, more New World Order. It's sort of a military order, as it turns out. It's a religious order too, what with our taxes becoming tithes for Faith Based Initiatives, Soldiers of Fortune and born-again Armies of Compassion.

But order it is, and you've got to admit, an ordered society is a nice and tidy one. Enemies are secretly and sanitarily disposed of. The media are controlled to provide only uplifting images of clean conquest and happy, grateful multitudes. Noisy protesters are swept into neat piles, like leaves. The government encourages village snoops and urban gossips to volunteer their infinite time and darkest thoughts as a way of keeping the rest of us in line. And I don't know much about Afghanistan's Hamid Karzai, but you've got to say this for him: that bias-cut green silk tunic worn over relaxed-fit, wool/linen blend trousers has become "le must" of the fashion world. No wonder Bush is up for that Nobel Peace Prize.

Anyway, that's what I was going to write about, but I didn't have time because I had to take a flight to Philadelphia and I was late because the old man who lives on the next block put his head in my car window as I was about to drive off and he wouldn't remove it while he told me all about how he's our new neighborhood volunteer-for-victory monitor or some such, and he wanted to take an inventory right there and then of any supplies I might have in my house that would be useful in case of national emergency. Any gas masks? Generators? Cell phones? Cudgels? Axes? Prescription drugs?

"Band-Aids," I offered politely. "And could we possibly do this another time?"

"How many people live in your house?" he persisted. "And didn't I see you pushing a baby carriage the other day?"

"Not in many years," I say.

"But I'm sure it was you," he pressed. At that instant I was visited by a very clear image of him on the witness stand. He is white-haired and gentle-eyed, firm-voiced and credible. Even I wanted to believe him so much that I forgot that I had not yet been charged with anything.

When I finally got to the airport I went through the abasements of security, a ritual cleansing of the sort practiced at maximum security prisons: I removed my shoes. I took off my coat. I held out my arms. A guard in a rakish blue beret bestowed apologies like a rain of blessings as she wanded my armpits. "You have an underwire in your bra?" she asked. "You mind if I feel?"

It is hard to be responsive to such a prayer with any degree of grace. It is ceremonial, I know, a warding off of strip-search hell. "Not at all," I intoned, as though singing in Latin.

Another agent was going through my bags. He removed my nail clippers from the intimacy of my makeup pouch and discarded them in a large vat filled with hundreds of nail clippers. A proper sacrifice, I think. I imagine they will distribute them to the poor.

The agent put on rubber gloves and opened my thermos and swirled the coffee around. He removed the contents of my purse and spread it out. When he picked up my leatherbound diary and flipped slowly through the pages, a balloon of irreligiosity exploded at the back of my head, and I could feel the hair rise up, as it does sometimes, getting all militant despite my best prostrations of mousse.

"My diary?" I said as evenly as I could. "This is getting like the old Soviet Union."

"So, you visited the Soviet Union...?" he asked, a glinty new interest hardening what had been his prior languor.

Anyway, I finally got to where I was going. And on my way back from Philadelphia, I wasn't searched at all. They stopped the woman just in front of me, though, and there she stood, shoeless and coatless, with the tampons from her purse emptied upon the altar of a plastic tray. Once on the plane, she and I commiserated, and then the oddest thing happened. Others around us joined in about how invaded and humiliated they felt when searched. The conversation spread across the aisle, then to the seat in front, the row in back. It grew to about five rows of people, all angry at the overseers, all suspicious, all disgruntled and afraid. I was, I admit, strangely relieved to see that we were not only black or brown; we were men and women, white and Asian, young kids, old designer suits. There was a weird, sad kind of unity in our vulnerability, this helplessness of ours. But there was a scary emotional edge to the complaining, a kind of heresy that flickered through it too. What a baffled little coterie we were. Equal opportunity at last.

Anyway, dear editor, that, in short, is why this is not a column. I was having a really bad hair day.


Patricia J. Williams
Patricia J. Williams, a professor of law at Columbia University, was born in...