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Diary of a Mad Law Professor | The Nation

Diary of a Mad Law Professor

Patricia Williams

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.

In this most emotionally charged of times, I think that many of the moral issues we face are overlaid by an oft-expressed tension between the need for security and the full protections of human rights. It is always expressed as a tension, freedom as opposed to security. It is a false dichotomy but understandable, given how afraid we all are. And so we limit our sights to the need for good policy, good intelligence and strong, democratically inclined, diplomatically gifted leaders.

But I am also a lawyer, and a child of the civil rights era, which was, a bit like these times, a dangerous time, troubled by terrorizing outlaw behavior, a violent time. Yet what guided us, black and white, men and women, minority and majority, through that time was a determined appeal and, ultimately, adherence to principles of morality, justice and law. Dr. King's appeal to a transformative progressive society, to what he referred to as The Beloved Community, was of course an overtly theological argument, grounded in a love of all humanity. But it was also a metaphor, and that metaphor was grounded in a legal case, in a series of legal cases that held steadfastly to notions of fairness, equality and due process of law. The legal and political triumphs of the civil rights era remain a monument to America's best ideals.

Those times too were fraught with passion and grief. There were those who thought that Dr. King's work for racial equality was too radical, too deeply subversive, or unpatriotic. There were those who thought his opposition to American policy in Vietnam merited the response Love it or leave it. Similarly, there are those who have taken George W. Bush's oft-repeated statement--originally a warning to Iraq, as I recall--of "you're either with us or against us" and applied it broadly and inappropriately to men and women of conscience who express their concern that international conventions and norms of human rights be scrupulously applied in the battle against Al Qaeda.

Trust, don't ask, some have said. Say something positive or shut up. I worry a lot about the predominance of flat "either-or" dualisms that by their very syntax eliminate the middle ground so necessary to political debate. Love it or leave it. But Dr. King loved his country, and there was no "or" about it. He did not leave America but worked to impart a legacy that changed it and the world for the better. He appealed to a society that is committed to unity and yet vaunts individual freedom, including the freedom to dissent.

These tensions are often placed like roadblocks: security versus freedom, community versus dissent. That pervasive sense of opposition was a challenge for Americans in Dr. King's time, and it is a challenge for Americans now. And because the United States is a model others copy as well as a global force to be reckoned with, the citizens of the world are, one by one, having to resolve these tensions as well. As Dr. King said, "Civil rights"--or human rights I think he would add in today's global context--"civil rights is an eternal moral issue..."

Whatever the issue, whatever the time, we must resist a mindset that defines those who are "with us" as those who accept all policies as untouchable, all military action as automatically legitimate, all criticism as giving aid and comfort to the enemy. Otherwise we consign people who are engaged in the essence of democratic debate to the conceptual dustbin of those who are "against us." You're either on board as a team player or (according to the last few days of the New York Post alone) you're a brainless, overintellectualizing, group-thinking, anarchist, socialist, communist, stalinist, nihilistic, solipsistic, atheistic, politically correct, race-card-playing feminazi crackpot.

I sometimes wonder if we've forgotten who the enemy is.

But it is not unpatriotic to question and argue about our public policy; it's a duty of citizenship. It is not disrespectful to the Republic to ask, when our Defense Secretary says the men held in Guantánamo Bay are receiving better treatment than the Taliban ever gave their prisoners, what that means precisely. That they have not yet been beheaded? Or that the norms of the Geneva Convention and the Constitution are being rigorously observed?

I worry too about the degree to which we keep referring to these enemies as The Evil Ones or The Bad Guys--such odd terms, as though our leaders were speaking to very young children. By this, Al Qaeda is placed in an almost biblical narrative, ready to be smote and cast out. In this model, giving The Evil Ones so mundane a forum as a trial is literally "courting" the devil. While this sort of embedded language has certainly galvanized the people in a time of great crisis, I don't believe it's a useful long-term model for a democratic secular government trying to fight real political foes, particularly stateless enemies who are religious zealots in their own right. This sort of narrative obscures the adult reality that they are enemies, not viruses. They are humans, not demons. They are criminals, not satanic extraterrestrials. They may indeed be our New Age Goebbelses and Goerings, but we did not put Nazi war criminals in cages. We brought them to justice.

Given all this we will need all the thoughtful voices we can get to help our beleaguered leaders figure out a world that is growing more mobile, more diasporic, more riven by racism, xenophobia, anti-Semitism (and I mean anti-Semitism in the broad sense of prejudice against all Semitic peoples, including Jews, Arabs and some Asians), religious intolerance, economic disparity and struggles for land. Indeed, recent tensions are such that some are calling this a "clash of civilizations." This too is something we should be wary of. Organized crime syndicates--whether the Ku Klux Klan in the civil rights era or Al Qaeda now--do not a civilization make.

As we move into Black History Month, it is good to remember that Dr. King's message was far more complex than the naïve rosiness to which he's often reduced. He insisted on equal protection even for those we do not like. He insisted on due process of law even for those whom we have reason to fear. And he demanded that we respect the humanity even of those we despise.

In these heated times, what does the word 'fundamentalist' mean? Well, it all depends on whom you ask.

As the country tilts toward war, media voices are craven in their obsequiousness.

What plagued the O.J. Simpson trial—corruption, malfeasance and a breakdown of the rule of law—is exactly what the 'war on terror' is achieving in its blind quest to hold Bin Laden to account.

Author

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

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