Diary of a Mad Law Professor | The Nation

Diary of a Mad Law Professor

Patricia Williams

There's a joke circulating on the Internet: A grandmother overhears her
5-year-old granddaughter playing "wedding." The wedding vows go like
this: "You have the right to remain silent.

It's a scary little world right now. Such wars of careless words. Such
panic on every breeze. If Eskimos have a hundred words for snow, we have
let bloom a thousand words for fear.

I saw a puzzling banner on the door of a restaurant the other day. It
was a flag flanked by two aphorisms: God bless America and America bless

Ward Connerly, figurehead for California's anti-affirmative action Proposition 209, is up to more mischief. This time
it's a push to prevent California's public agencies from classifying
"any individual by race, ethnicity, color or national origin in the
operation of public education, public contracting or public employment."
Classification is defined as any "act of separating, sorting or
organizing by race, ethnicity, color or national origin including, but
not limited to, inquiring, profiling, or collecting such data on
government forms."

Shrewdly titled the Racial Privacy Initiative, it sounds like a plan to
protect us from the manipulative purview of Big Brother, or perhaps an
act to prohibit police profiling or to protect medical records from
being misused or to prevent consumer credit and employment histories
from being revealed in ways that discriminate against minorities.
"Racial privacy" beguiles with the promise of removing race and all its
contentiousness from public view, keeping its secrets in a vault for
only the rightful owner to know. A kind of "don't ask, don't tell"
stance of racial revelation.

In fact, the proposed enactment contains a series of crucial exceptions
that quickly turn such rosily "color-blind" expectations completely
upside down. First, in a blatant concession to Big Brother writ large,
there is an exemption for police. Sociologists Troy Duster and Andy
Barlow have worried that this exemption will allow police alone to
collect racial data: "What about the concern of many citizens that
police practices need to be monitored for racial profiling? The racial
privacy initiative would not allow such data to be kept."

Similarly, while permitting racial and ethnic classification of "medical
research subjects and patients," the initiative bars the collection of
data for population-based surveys that are the cornerstone of public
health administration. And while there is a superficially charitable
exemption for the Department of Fair Employment and Housing, that much
of a given is rather severely constrained in that the department "shall
not impute a race, color, ethnicity or national origin to any
individual." In any event, this particular exemption "shall expire ten
years after the effective date of this measure."

In fact, the Racial Privacy Initiative is not about protecting data from
being misused; instead it effectively eliminates data collection at all.
If enacted, it would continue a trend begun by Ronald Reagan and pursued
by every Republican administration since: limiting the accountability of
public institutions by making vital public information unavailable. In
such a world, there can be no easy way to know whether Native American
women are being sterilized at higher rates in public hospitals than
other groups. One would not be able to determine whether public schools
were tracking black students into remedial classes and white students
into advanced placement. Documentation of ghettoization and other
patterns of residential segregation would be magically wiped from census

With no impartial public archive of such data, the burden of compiling
such statistics would fall either upon independent academics who would
have to find funding for their studies on a project-by-project basis; or
upon a cacophony of competing interest groups--a competition that no
doubt will be more than skewed by better-funded conservative think tanks
like the Manhattan Institute and the American Enterprise Institute.

Indeed, this initiative is not about "privacy" as most laypeople think
of it. It is actually about privatizing racially based behavior. And
privatized racism has been a dream of the far right since the first
whites-only private schools sprang up in the wake of Brown v. Board
of Education
. Segregation is "private choice," a "social" problem,
not a legal one, according to this logic. You can't force people to love
you. Suing over discrimination is victimology. As long as the government
doesn't force you to drink out of a separate water fountain or go to a
separate school, then that is the limit of equal opportunity.

Eliminating official knowledge of race and ethnicity in the public
sphere at first sounds like part of the same enterprise as eliminating
Jim Crow laws. (Indeed, many California voters seem as confused about
the meaning of the initiative as they were about Prop 209, which sounded
to many as though it would lead to more inclusion rather than less.) In
fact, however, "racial privacy" accomplishes little more than
institutionalizing an official stance of denial and, in the process,
eviscerates essential civil rights enforcement mechanisms. Californians
may as well put those three little moral idiots, Hear-no-evil,
See-no-evil and Speak-no-evil, in charge of remediation for

In what has been one of the most effective manuevers of the right in
recent years, defenders of the initiative have co-opted a good deal of
the vocabulary of the civil rights community in a blizzard of
definitional inversions. Ward Connerly insists that this measure will
keep the state from "profiling" its citizens. If one accepts that to
most Americans "profiling" connotes the unethical use of data to
discriminate (as in Driving While Black), this conflation with the
neutral act of data collection itself is tremendously misleading. By the
same token, the name of Connerly's group, the American Civil Rights
Coalition, would seem to imply a greater measure of protection for civil
rights rather than lesser. I do worry that such studied reversals of
terms will come to overtake the discourse as much as the term "quota"
has displaced any public understanding of the actual meaning of
affirmative action.

The publicly collected statistics we take for granted today show
undisputed racial and ethnic disparities in every realm of American
life. Any proposition that this gap is either not worth documenting--or,
even more insidiously, is aggravated by the gathering of such
knowledge--consigns us to a world in which "intelligence" is the
exclusive preserve of unrestrained police surveillance. The collective
ignorance with which we will be left will quite literally keep us from
ever speaking truth to power.

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.


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