From Sister Blog, Law and Mind (by HLS student, Rachel Funk):
Aunt Vivian: Gee, when Janice described him she didn’t mention that he was…tall. Not that I have a problem with people who are…tall.
Uncle Lester: My cousin used to date a girl who was…tall.
Uncle Phil: Heck, the boy go to a predominantly…tall school.
Will: Now, am I alone on this or didn’t y’all notice he was white?
~ Fresh Prince of Bel-Air (Episode #2.6, Guess Who’s Coming to Marry)
In a short article in the February/March 2009 issue of Scientific American Mind, Siri Carpenter discusses two studies done by psychologists at Tufts and Harvard indicating that people who avoid mentioning race may actually appear more prejudiced. In the experiment, one white participant was paired up with one black participant, and they were each given the same set of photographs of random people. The black participant would choose a photograph, and the white participant had to figure out as quickly as possible which photograph his/her partner had chosen by asking him/her questions about each one in succession. The study was designed so that the matching process would go much faster if the white participant asked about the race of the person in the photograph. Significantly, the study found that the “intrepid few” who asked about race were deemed less prejudiced by black observers than the vast majority of white participants who didn’t mention race at all.
If that finding is accurate and generally applicable, then we as a society have totally f***ed up in making it a taboo to mention someone’s race. We have conflated defining someone by their race with simply acknowledging their race.
In her fantastic book “Why Are All the Black Kids Sitting Together in the Cafeteria?” And Other Conversations About Race, Dr. Beverly Tatum confronts this issue head-on. In reading about the above experiment, I was reminded of the following anecdote from her book:
“A father reported that his eight-year-old daughter had been talking very enthusiastically about a friend she had made at school. One day when he picked his daughter up from school, he asked her to point out her new friend. Trying to point her out of a large group of children on the playground, his daughter elaborately described what the child was wearing. She never said she was the only Black girl in the group.”
Despite the white father’s being thrilled that his daughter was colorblind, Dr. Tatum suggests — and I think that this is probably right — that the girl’s avoidance of mentioning her friend’s race was not so much a sign that she was colorblind as it was that she had been trained not to make explicit reference to someone’s race. (Interestingly, in the two studies mentioned earlier, one was done with adults, but the other one was done with children as young as 10 — the results were consistent across the two studies.) As further evidence of this phenomenon, Dr. Tatum notes that “[m]y White college students sometimes refer to someone as Black in hushed tones, sometimes whispering the word as though it were a secret or a potentially scandalous identification.”
When I was taking the Trial Advocacy Workshop at Harvard Law School, I had to do a closing statement for a mock police brutality case, in which a white policeman in a predominately white, upper-class neighborhood had allegedly assaulted the plaintiff, a black man who had been waiting to pick his daughter up from her white friend’s house. “Ladies and gentlemen,” I began, “what do we know? We know that Robin Boyd was a black man in a white neighborhood.” As soon as I said “black”, the temperature in the room dropped by several degrees, I think because everyone stopped breathing.
For anyone who doesn’t know me, I am extremely white. Pasty, even. And as a member of the oppressor group (or, to dress it up in fancy psychspeak, the socially dominant ingroup), it is my responsibility to avoid drawing attention to this fact. But why? Why is it that we feel the need to go out of our way to avoid mentioning someone’s race, and often feel uncomfortable if someone else brings it up? Is it part of some elaborate construction of a fiction that we’re colorblind? Or does it stem from a fear that we might unintentionally offend somebody, so it’s safest to take the path of least resistance and avoid mentioning race altogether?
Dr. Tatum points out that many, if not most, white people simply never think about their race: “There is a lot of silence about race in White communities, and as a consequence, Whites tend to think of racial identity as something that other people have, not something that is salient for them.”
This insight reminded of a time when I was riding the Metro in southeast D.C., an area of D.C. that is predominantly black. I spent the entire time being acutely aware of the fact that I was the only white person on the train, wondering whether this was all everyone else was noticing too, and trying to act like I hadn’t noticed. In an uncomfortable moment of revelation, I wondered whether this is what the handful of black students at most higher ed institutions feel like all the time.
Most of the time, the default race position is white. For instance, in a novel, unless the author indicates otherwise (either by explicitly describing the character’s race, or by laying out a context in which most of the characters will be of a specific minority, like the burgeoning class of novels geared specifically towards African Americans), we generally assume any characters that pop up are white. In fact, I remember being struck by, while reading one of Robert Parker‘s Spenser novels, the fact that the (white) narrator mentioned that another character was white. While Mr. Parker delights in bringing racial issues up in oblique, peripheral ways — I should note that the Spenser books are easy-read mystery/crime novels, not the kind of deep, soul-searching, trying-to-make-a-statement books you’d expect to confront issues about race — it still caught me off-guard. It surprised me that it surprised me, so to speak.
Time for a politically incorrect anecdote: One day, when my friends and I were walking back to Harvard from the Square, a couple stopped and asked us for directions to a building on the undergraduate campus. As highly superior law students, we of course had no idea. As they walked away, my Chinese friend commented, “They should know better than to stop and ask a little Asian girl for directions.” To which my white friend joked, “Yeah, but at least you’re good at math.” (Followed by my Chinese friend yelling, “RACIST!” and chasing my white friend through Harvard Yard.)
There’s no point to that story, I just thought it was time for a little levity in the post. (Although John Jost does offer some fascinating insights into complementary stereotypes via system justification theory…)
Since this is a blog about mind sciences and the law, what implications does how we think about race have for law? The following is a series of anecdotes meant to offer some food for thought on the various ways that law and race intersect:
1) A white public defender that I met during the Trial Advocacy Workshop told us that she always made it a point to put her hands on her client’s shoulders (her client usually being a young black man) at some point during her opening statement, to communicate to the jury that she, as a white woman, trusted her client, and therefore they should too.
She also told us that she had to warn her clients that she was going to do that so that they wouldn’t flinch when she did it.
2) A scholar at Harvard was attempting to research whether the verdict in jury trials where the defendant was black had any statistical correlation to whether and how many African-Americans were on the jury. However, there weren’t enough black jury members in Massachusetts jury trials to provide a reliable sample.
3) The Vera Institute of Justice‘s Prosecution and Racial Justice project works with prosecutor’s offices across the country to study how prosecutorial discretion is exercised in relation to race, focusing on four key areas where prosecutors have the most discretion: initial case screening, charging, plea offers, and final disposition. Not surprisingly, the project found that prosecutors as a group often exercise their discretion in a way that has a disproportionate impact on minorities. However, as part of the demonstration project, many of these offices have implemented policies that have significantly reduced this disparity, even when these policies did not explicitly focus on race. You can find out more about Vera’s approach and findings here.
The popular image of Justice as blind seems to me to be exactly wrong. Justice is not blind because we are not blind, and it is through us that our justice system operates. Maybe if we saw Justice as mindful instead, we would have a better idea of how to go about achieving it.
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