Toxic Diversity

Race, Gender, and Law Talk in America

Dan Subotnik

• Publisher: NYU Press
• Year: 2005
• ISBN:
  9780814739907
• Topic: Droit
• Subtopic: Droits civiques en droit

Toxic Diversity offers an invigorating view of race, gender, and law in America. Analyzing the work of preeminent legal scholars such as Patricia Williams, Derrick Bell, Lani Guinier, and Richard Delgado, Dan Subotnik argues that race and gender theorists poison our social and intellectual environment by almost deliberately misinterpreting racial interaction and data and turning white males into victimizers. Far from energizing women and minorities, Subotnik concludes, theorists divert their energies from implementing America's social justice agenda.

Insisting, in the words of James Baldwin, that “not everything that is faced can be changed, but nothing can be changed until it is faced,” and that thoughtful Americans regardless of race and gender can handle frank conversations about difficult topics, Subotnik’s critique of race and gender theory pulls no punches as it confronts such inflammatory issues as single parenthood, the merit system in academic and business settings, gender privilege in the classroom, and crime.

PART I
The Signifying Monkey

Deep down in the jungle so they say
There’s a signifying monkey down the way
There hadn’t been no disturbin’ in the jungle for quite a bit,
For up jumped the monkey in the tree one day and laughed
“I guess I’ll start some s—t.” —Classic African American toast

1
Learning to Think about Race and Gender

Show ’em the first-rate sorcerer that you are
Long as you keep ’em way off balance
How can they spot you got no talents?
Razzle dazzle ’em,
Razzle dazzle ’em
Razzle dazzle ’em
And they’ll make you a star!

—Fred Ebb, lyricist, Chicago

On April 4, 1991, a professor at the New England School of Law was murdered not far from her home in Cambridge, Massachusetts. Mary Jo Frug’s death, which was a result of a night-time street knifing, horrified friends—and acquaintances such as myself—and shook the community at large for months. That Good Morning America saw fit to report this item at 7:30 the next day highlighted the problem for Americans: if we were vulnerable in the ivory tower just steps from Harvard Yard, were we and our loved ones safe anywhere?

The crime, which has never been solved, raised other painful questions. Was Frug victimized for being a woman and, as some claimed, for being a fierce and well-known feminist? Did her feminism compel her to resist her presumably male attacker and thus help bring about her death? Answers to these questions have been hard to come by. We may, however, be able to clear up a related mystery, which would allow us to better understand Frug’s work and, central to our purpose here, to test the sincerity and serious-mindedness of gender and race talk today.

Ten months after Frug’s murder and after much debate, the Harvard Law Review published Frug’s last article, “A Postmodern Feminist Legal Manifesto (An Unfinished Draft),” a wide-ranging feminist attack on male power in the legal profession. Two months later, at the annual banquet of the Harvard Law Review (the Law Revue), some students lampooned Frug in a short piece entitled “He-Manifesto of Postmodern Legal Feminism” by “Mary Doe, Rigor-Mortis Professor of Law.”¹ In this piece, a sex-obsessed feminist with “no sense of humor” seeks admission to heaven. Initially rebuffed, she is allowed to enter only when the Admissions Committee abandons all standards: “Heaven should be open to everybody. White, Black, Male, Female, Short, Bald, Talented, Untalented.” The piece further suggested that Frug’s article was accepted only under pressure exerted by her well-placed husband, a professor at Harvard Law.

Rush to Judgment

The law school community was scandalized. How could students be so lacking in feeling following a brutal murder? Would the offending students have mocked a male who had met a similar fate? Was Frug’s death the symbolic fate of all feminists who take a hammer to the glass ceiling? Fifteen Harvard Law professors signed a letter charging that institution —then (as we shall see) in the middle of a gender war—with maintaining an environment of “sexism and misogyny.” For Professor Elizabeth Bartholet, the “incident showed that something very scary about male anger towards women” was manifesting itself at Harvard. Some of Harvard Law’s males weighed in. According to David Kennedy, female Law Review members could take it as a “direct threat of personal violence,” and he strongly urged, along with a number of others, that the offending students be disciplined. For Professor Laurence Tribe, the grotesque thesis of the piece was that “hatred of women is a hoax perpetrated by paranoid feminists,” and he likened the authors to Ku Klux Klan members and Holocaust deniers. The Law Revue satirists, he continued, “might as well have danced on Mary Jo’s grave for what they did. They made a decision to desecrate her memory with verbal knife-stabs” and thus were guilty of “rape in all but biological reality.”

In the end, a few new female law professors were hired. The students escaped discipline. Harvard effected no additional change other than to cancel the Law Revue banquets indefinitely.

However disturbing the parody, a conscientious cultural analyst has to wonder about the hype in the foregoing reactions. Does a “rape in all but biological reality” have any content? Or is it merely academic razzle-dazzle, Sturm und Drang without the “storm and turmoil”? If we are to learn something from the parody beyond the highly questionable taste of its creators, must we not ignore Tribe’s seductive imagery and ask: Was the parody a symbolic crime against Frug and against women in general? Should readers take the protests against the Law Revue parody at face value?

A short detour can help begin the discussion. Called to the stand by Johnnie Cochran in the 1994 O. J. Simpson trial, Robert Heidstra testified that he was walking his dogs on the night of the Nicole Brown Simpson and Ron Goldman murders when he heard someone say, “Hey, hey, hey!” Black prosecutor Christopher Darden then cross-examined Heidstra by asking him about a report that at the time of the murders he had heard “the voice of a black man.” When Cochran strongly objected to the question, Darden explained to the judge that an acquaintance of Heidstra’s, Patricia Baret, had earlier reported to Detective Lange that Heidstra had “heard the very angry screaming of an older man who sounded black,” so he, Darden, had the right to ask the question.²

“I resent that statement,” Cochran shot back. “You can’t tell by someone’s voice when they’re black. I don’t know who’s made that statement, Baret or Lange. That’s racist.” Cochran continued in this vein: “This statement about whether somebody sounds black or white is racist, and I resent it … I think it’s totally improper in America … just to hear this and endure this.” Apparently allowing himself to be silenced by the charge of racism, Darden moved on to other matters. Thus ended what could well have been a breakthrough line of inquiry in a trial that polarized the nation along racial lines.

Another exchange during that trial may be equally revealing. After Cochran had argued for the importance of allowing testimony of Detective Mark Fuhrman’s habits of speech, prosecutor Chris Darden objected, claiming that the n-word is “the filthiest, dirtiest, nastiest word in the English language [and] will blind the jury. It will blind them to the truth [and] impair their ability to be fair and impartial.” With the evidence allowed in, “the entire complexion of the case changes. It is a race case then. It is white versus black, African American versus Caucasian, us versus them, us versus the system.”³

This potent argument threatened to knock the underpinnings out from Cochran’s case. Speaking about the n-word, the distinguished scholar on race Andrew Hacker has explained that “[t]his word has the power to pierce, to wound, to penetrate, as no other has.” Conscious of the word’s history and power, a number of African Americans launched an effort a few years back to get the Merriam-Webster’s Collegiate Dictionary to excise it.⁴ Cochran, however, was too skilled to let himself be silenced. He responded by calling Darden’s plea “the most incredible remarks I’ve heard in the thirty-two years I’ve been practicing,” and he went on to “apologize to African Americans across the country.” It was downright “demeaning” to suggest that African American jurors could not deliberate fairly after hearing Fuhrman’s views, when their forebears had “lived under oppression for two hundred-plus years in this country,” and they themselves had lived with “offensive words, offensive looks, [and] offensive treatment every day of their lives.”⁵ Judge Ito allowed inquiry into Furman’s use of the n-word.

“I’m Madder Than Hell”

Was Cochran really too resentful to endure the discussion of voices? Did he feel demeaned? Was he playacting for litigation advantage? Or was he simply signifying?

It is time to define “sigging,” which Harvard’s Henry Louis Gates says is “so fundamentally black … [a] rhetorical practice” that it is hard to talk about.⁶ Signifying, Gates reports in his landmark book, The Signifying Monkey (the source of this part’s opening epigraph)⁷ refers

to the trickster’s ability to talk with great innuendo, to carp, cajole, needle and lie…. to talk around the subject, never quite coming to the point. It can mean making fun of a person or situation…. [I]t is signifying to stir up a fight between neighbors by telling stories.⁸

Sigging is related to the African American practice of “turning it out,” that is, deliberately “losing control, unleashing anger, acting obstinate or unreasonable”—sometimes also called “acting colored”⁹ and manifesting itself as “talking s––t” or “trash.” “Trash talk,” meanwhile, is “disparaging, often insulting or vulgar speech about another person or group.”¹⁰

So, again, how should readers evaluate Cochran’s behavior? For this purpose, we need to decide first whether Darden’s line of inquiry on the issue of racial profiling was improper as a matter of etiquette. A comment that a person “sounds black” should be no more offensive than a comment that he sounds Californian or French. Especially so, given that Darden was himself black, that race critics themselves are so quick to emphasize differences between majority culture and black culture, and that the comment was obviously not meant as a putdown of blacks. In this view, what is objectionable is not Darden’s question but Cochran’s discussion-ending outburst.

Sound, Fury, and Signifying

Of further help in evaluating Cochran’s outburst on the black speech matter is a conversation that began just as the courtroom exchange ended. Pulling Cochran aside, Carl Douglas, his black assistant, who was in the best position to evaluate Cochran’s argument, had a brief interchange with his boss: “If you said that to rattle Darden, it was brilliant,” he told Cochran, perhaps bearing in mind research showing that 80–90 percent of African Americans are identifiable as such by their speech.¹¹ “[I]f you said it because you believe it, I disagree.” Cochran, whose courtroom voice easily identified him as black, brushed him off. But Douglas refused to let the matter drop. “It was both,” Cochran finally said. “Of course, I wanted to rattle him. But I also think it was racist to say that about how a voice sounds.” “Johnnie,” Douglas retorted, “that’s bulls––t.”¹²

Cochran’s n-word argument also militates against taking it and him at face value. If African American jurors, calloused by a lifetime of exposure to offensive words, looks, and treatment, could easily adjust to the use of such a loaded word, is it conceivable that someone both as worldly and confident as Johnnie Cochran could not “endure” a frank discussion of black speech? Putting Cochran’s two arguments together yields an even keener insight. What Cochran was urging upon the court was that a discussion of black speech would unhinge black jurors but that these jurors could stay focused and balanced after hearing a witness use a word whose power is so awesome that it can be referred to only through indirection. In sum, Judge Ito, the jurors, and other Americans had good reason to understand Cochran’s performance in the same way as Seinfeld creators referred to their work product: “The Show About Nothing.”

The connection between the Frug parody and the Cochran outbursts for a society fractured by gender and race tensions is the subject of Toxic Diversity. For the irrepressible Alan Dershowitz, Douglas’s response to Cochran would seem to capture the histrionics and humbug of contemporary gender and race dialogue. As part of the Simpson Dream Team, Dershowitz could not properly contradict Johnnie Cochran on the subject of black speech. His position on interracial and intergender dialogue, however, was made unmistakably clear in the Frug case, where he spoke up for academic freedom while complaining of a McCarthyite witch hunt: “Women and blacks are entirely free to attack white men (even ‘dead white men’ …) in the most offensive of terms. Radical feminists can accuse all men of being rapists, and radical African Americans can accuse all whites of being racists, without fear of discipline or rebuke.”¹³ The best law school brains, he lamented, were devoted to “figuring out ways of constructing freedom of speech and the First Amendment just so as not to include [a] particular genre” of speech found offensive to women and minorities. “How many times,” he asked, “have we heard that? ‘I’m offended, it must be wrong.’”

So, rephrasing the Law Revue question: (a) Were the Harvard Law professors for real? (b) Were they, like the signifying monkey in the opening epigraph to this part, entertaining themselves in a down period? (c) Was theirs just a ploy to get more women hired? Or, perhaps, (d) all of the above?

“If You Prick Us”

It seems amazing that the critics of the Law Revue parody, who were so intent on identifying pain, could not imagine the pain that Frug’s “A Postmodern Legal Manifesto” would have inflicted on the new male, who did not dismiss women’s opinions out of hand but who listened carefully to what they were saying. If the article was designed to bring men down, would those with any male pride left not rise to “revenge”?

Frug’s in-your-face misandry, indeed, cries for a response: “We are raped at work or on route to work,” she writes, “because of our sex, because we are cunts [sic].” Women do not make love to their lovers out of admiration, fondness, or just animal attraction but because they need the physical security males provide and because “financial pressures arising from sex discrimination induce unmarried women to yield to the sexual demands of escorts and companions.” These pressures continue after marriage. Because “refusal to have sex within marriage constitutes grounds for divorce, legal rules inhibit women who marry because of economic or safety incentives from practicing celibacy within marriage.”¹⁴ Under Frug’s rules, a man whose wife refuses sex on the wedding night— and thereafter—would be stuck with her forever.

A Law Revue parody, however tough-minded, would thus seem to be fair academic game, particularly for someone who had never himself raped nor knew anyone who had. Words have consequences, a point that race and gender theorists regularly advance.¹⁵ This view is especially compelling because women’s attacks on men in the academy have been no less brutal. In the Law Revue tradition at Harvard, no one and nothing was off limits; the tastelessness of the “rigor-mortis” image aside (a matter we will come to), the Law Revue’s focus was on Frug’s work, not her death or her personal life. There were no references to her appearance, her family, her religious beliefs, sexual practices, eating habits, or taste in art.

Actually, challenging Frug, as the Law Revue creators did and as I do here, honors Frug. At least one prominent feminist scholar explicitly asks for critical response: “To be taken seriously in the law and legal scholarship,” says Harvard Law’s Martha Minow, “means becoming the object of sustained critici...