Category: Race


Saggy Pants and the First Amendment

PANTS2.jpgThe city of Atlanta, as the Chicago Tribune reported recently, looks likely to join a growing number of cities that have enacted laws regulating saggy trousers as constituting indecent exposure. These laws strike out at the fashion of men wearing their pants off their hips exposing their boxers or women wearing their jeans low so as to expose thongs. Unlike school dress codes regulating hip-hop clothing that have been promulgated in cities like Indianapolis, these laws apply beyond the school context to regulate dress in public.

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

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

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


Sex, Laws, and Videotape (Genarlow WIlson Edition)

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

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

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Why So Few Black Ballerinas?

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

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


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

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

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

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

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Don Imus and Megan Kanka In A Soundbite Nation

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

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

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

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

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


March Madness, part 2

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

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

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


Protecting The Rights Of African-American Majorities

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

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

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


Racism in Sports discussed at blackprof

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

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

You can link to the whole piece here.


Xoxohth, Civility, and Prestige: Part I

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


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

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

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

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

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