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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 Ameri- cans: 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 ques- tions. 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 un- derstand Frug’s work and, central to our purpose here, to test the sincer- ity 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

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Manifesto (An Unfinished Draft),” a wide-ranging feminist attack on male power in the legal profession. Two months later, at the annual ban- quet of the Harvard Law Review (the Law Revue), some students lam- pooned 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 Ad- missions Committee abandons all standards: “Heaven should be open to everybody. White, Black, Male, Female, Short, Bald, Talented, Untal- ented.” The piece further suggested that Frug’s article was accepted only under pressure exerted by her well-placed husband, a professor at Har- vard 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 stu- dents 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 Bart- holet, 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 Re- view members could take it as a “direct threat of personal violence,” and he strongly urged, along with a number of others, that the offending stu- dents 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. Learning to Think about Race and Gender |5

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-daz- zle, 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 testi- fied 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 ob- jected to the question, Darden explained to the judge that an acquain- tance 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 ques- tion.2 “I resent that statement,” Cochran shot back. “You can’t tell by some- one’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 polar- ized 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 Detec- tive 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 al- lowed in, “the entire complexion of the case changes. It is a race case 6|Learning to Think about Race and Gender then. It is white versus black, African American versus Caucasian, us ver- sus 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 ex- cise 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 deliber- ate 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] offen- sive 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 Signify- ing Monkey (the source of this part’s opening epigraph)7 refers

to the trickster’s ability to talk with great innuendo, to carp, cajole, nee- dle 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 signify- ing 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 manifest- ing itself as “talking s––t” or “trash.” “Trash talk,” meanwhile, is “dis- Learning to Think about Race and Gender |7 paraging, 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 com- ment that he sounds Californian or French. Especially so, given that Dar- den was himself black, that race critics themselves are so quick to em- phasize 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 dis- cussion-ending outburst.

Sound, Fury, and Signifying Of further help in evaluating Cochran’s outburst on the black speech mat- ter 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 dis- cussion 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 un- 8|Learning to Think about Race and Gender derstand Cochran’s performance in the same way as Seinfeld creators re- ferred 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 Di- versity. For the irrepressible Alan Dershowitz, Douglas’s response to Cochran would seem to capture the histrionics and humbug of contem- porary gender and race dialogue. As part of the Simpson Dream Team, Dershowitz could not properly contradict Johnnie Cochran on the sub- ject 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 ac- cuse 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 open- ing 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 Post- modern 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, be- cause we are cunts [sic].” Women do not make love to their lovers out of Learning to Think about Race and Gender |9 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 eco- nomic 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 com- pelling 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 scholar- ship,” says Harvard Law’s Martha Minow, “means becoming the object of sustained criticism.”16 Before criticism can be sustained it has to be started, which is precisely what I am doing here. When Minow’s words were printed in 1989, it was impossible to iden- tify the cutting-edge writers who were drawing the most attention. Today, with the development of giant databases, academic influence is, in at least one way, much easier to measure. Scores of citation studies rank scholars in all fields.17 In a world drowning in text, readers easily determine who should be “taken seriously” as a leading “object of sustained criticism.” A book such as this one, which cites Frug a dozen times, can only help so- lidify her standing in her field.

Nil Nisi Malum Should the fact of Frug’s death have made a difference? I suggest not. Dead white European males are primary targets for feminists in the cul- 10 | Learning to Think about Race and Gender ture wars and, indeed, are stock villains for many of them. The injury from such attacks to living men, moreover, is not mitigated by Frug’s tragic death. The publication of her article and the posthumous rally on her behalf attest to the continuing influence of her work. As for what Frug herself would have wanted, consider that the impulse to write is said to arise from the fear of death and thus to answer the need for immortality.18 Refusing to fully confront Frug’s work precisely because of her death would compound the injury to Frug by thwarting her in the pursuit of perhaps her life’s most important goal. Undoubtedly, the parodic aspect of “He-Manifesto” had much to do with the academic community’s response. But why necessarily presume that human beings make fun of people out of hatred or contempt rather than out of annoyance? Those who want to hear words of hate should lis- ten to people who supposedly love one another.

He Jests Who Feels the Wound The “He Manifesto” may indeed have allowed the editors to live with the horror of Frug’s death and with the guilt of reliving it once they decided that a response was required. “To become conscious of what is horrify- ing and to laugh at it,” noted the playwright Eugene Ionesco, “is to be- come master of that which is horrifying.”19 Humor at Auschwitz and Dachau was described by an inmate, who later became a distinguished neurologist and psychologist, as “among the soul’s weapons in the fight for self-preservation.”20 Ionesco is right, of course, at least for males. Reflecting an adolescent sensibility, the “sick” jokes first told in the fifties, usually by boys, were not psychotic products, born out of hatred for one group or another. In one of the early jokes, when Johnny’s friends come over to ask him to come out and play ball, his father tearfully tells them that his son has been stricken with polio and has no use of his hands and legs. “That’s OK,” they say, “we can use him as second base.” Such jokes fail the test of high- mindedness, but no one was taking pleasure in the new quadriplegic’s condition. A case can be made that the joke bespeaks the group’s need to maintain its stricken member as a continuing part of the community or to minimize the seriousness of a then epidemic. Similarly, jokes about the Kennedy assassination, O. J. Simpson, the John Kennedy Jr. accident, the Timothy McVeigh execution, and the Learning to Think about Race and Gender |11

Challenger disaster are better understood as self-prescribed therapies of release than as expressions of joy in the suffering of others—much less in that of “subordinated groups” (a term I will use for women and minori- ties generally). The effectiveness of this kind of therapy was demonstrated three weeks after 9/11 when an aspiring young Muslim comic got up on a London stage and introduced herself: “I am Shazia Mirza. At least that is what it says on my pilot’s license.”21 After a moment of pin-drop si- lence, the crowd went wild. Mirza has since become a star. While not aim- ing for Mirza’s success, nurses, doctors, police, and EMTs practice com- edy medicine on themselves when they refer to those killed in fires as “Crispy Critters” and to those who die in traffic accidents as “Road Pizza.”22 In fact, since a 1976 landmark article by Norman Cousins in the pres- tigious New England Journal of Medicine,23 humor therapy has become big business. Today around the country, hospitals are setting up Laugh- mobiles and Laughrooms for pain and illness. Physiologists are studying the medical benefits of humor, and the Association for Therapeutic Humor promotes this research. In one protocol, women who have un- dergone mastectomies are shown a cartoon of a woman having her breasts flattened by a steamroller. “Yes, I’ve had my mastectomy,” the woman is saying, “Why do you ask?”24 The handful of Law Revue participants, then, were guilty of nothing more than bad taste for ignoring likely reactions; they were not celebrat- ing Frug’s murder. What this means is that the Law Revue highlighted nothing “very scary about male anger towards women” and carried no “direct threat of personal violence against women” by symbolic Ku Klux Klan members in Cambridge. The parody gave women no reason to feel one bit more or less secure on campuses and streets. Another part of the logic of the posthumous attack on Frug’s article needs some elaboration. First, the staid Harvard Law Review was pub- lishing an unfinished work, apparently for the first time. Frug, moreover, did not teach at Harvard or Yale. It seems fair to say that if she had taught at one of those schools rather than at the New England School of Law, there would have been nothing incongruous in the Law Review’s publi- cation decision; such a happening would have been routine and unwor- thy of comment. What made the publication decision noteworthy was the idea, well captured by the parodists in the “Heaven should be open to everybody” shtick, that owing to the strong bias shown by law reviews against authors at low-status law schools,25 the Harvard Law Review 12 | Learning to Think about Race and Gender would not have found Frug’s article up to its traditional standards if she had neither died nor been well connected. She thus acquired her “rigor- mortis” (the only kind of rigor available to her), and beat the system, by getting killed.

Insult and Injury That the Harvard Law Review had never previously published any arti- cles by New England School of Law professors—or since, one might add —may explain why, under question, the parodists themselves failed to ex- plain the logic of the parody. To suggest that Frug was merely a professor at an unranked school was a no-win proposition for them; such a tactic would have multiplied their troubles with those devastated by Frug’s murder by adding further insult to Frug’s name. On another level, it can be argued, the parody should have come as no shock to, and maybe should even have been welcomed by, Frug’s highly sophisticated academic supporters. Philosopher Jacob Bronowski urges students to come to the university with “barefoot irreverence.” For the distinguished nineteenth-century philosopher of knowledge Arthur Schopenhauer, “All truth passes through three stages. First, it is ridiculed. Second, it is violently opposed. Third, it is accepted as self-evident.”26 The philosopher’s truth could have served as a motto for Mohandas Gandhi, man of action and, like gender and race critics, archenemy of white male imperialism: “First they ignore you, then they laugh at you, then they fight you, then you win.”27 If Schopenhauer and Gandhi were right, whatever the Law Revue creators’ actual objectives, ridiculing Frug was an essential step in Frug’s canonization as a feminist writer. And who can deny the need for additional truth in social and political life? Among the first things the post-Apartheid government in South Africa did to bring social harmony was to establish a Truth and Recon- ciliation Commission. The premise, implicit in the title, is that the former is a prerequisite for the latter. Can this notion have any less currency in America? But feminists should not have had to rely on dead males or on an ap- peal for reconciliation to welcome the attack on Frug’s work; feminism has a rich tradition of mockery. Frug, after all, employed humor in her own work and enthusiastically advocated it for others. To be sure, she claimed membership in a “historically subordinated” group, which she Learning to Think about Race and Gender |13

(and others) argued should never be ridiculed: “‘the circumstances of women’s lives [are] unbearable,’ . . . [h]ardly appropriate material for irony and play.”28 This asymmetric rule of fair dealings, founded on a the- ory of women’s fragility, will be examined in depth later. For now, con- sider that through the use of humor the Law Revue was performing the valuable service of calling her grim views of women’s lives into question. Finally, if Frug had taken her cue from an impeccably credentialed white woman, as I happily and unreservedly do for my work, she might have thanked the parodists for satisfying her deepest existential longings for a meaningful life. The feminist hero I have in mind would not have written the Law Revue parody. But the author of Sense and Sensibility set the stage for the “He-Manifesto of Postmodern Legal Feminism” by ad- vancing no demand for a sober response to her work nor by holding women out as social quadriplegics in need of special handling. “For what do we live,” Jane Austen has asked millions of her readers, “but to make sport for our neighbours, and laugh at them in our turn?”29

Because participants in the foregoing stories are speaking off-the-cuff, not ex cathedra, their opinions cannot reach the deepest strata of gender and race consciousness. This book applies questions raised by the Frug and Cochran (melo)dramas to formal writing so as to promote the high-level discussion needed to address our deep-seated gender and race problems. Can groups properly evaluate the environments in which they find them- selves without outside help? More particularly, in seeing themselves as ever-oppressed, do women and minorities not rush to judgment when is- sues come up? And if so, will this not impede realization of their stated dreams? To begin the process of detecting and then clearing obstacles, Part I, beginning with this introductory chapter, provides a general survey of the gender and race literature. The next chapter sketches and then questions the major charges brought by minorities and women against white males. Chapter 3 offers an introduction to a radical school of inquiry known as critical race theory, traces its development, describes its methods, and ex- plains how it has drawn minority academics in while keeping others at bay. Chapter 4 examines whether race and gender talk should be shaped by the same rules that apply to general social and political discourse, and particularly whether satire directed at subordinated groups is appropri- ate. Chapters 5 and 6 expand on the race and gender critiques surveyed in the first three chapters. 14 | Learning to Think about Race and Gender

Part II explores in detail some of the challenges to the legal/political system brought in the name of women, giving particular attention to the question of whether the feminist critique furthers the cause of women or undermines it. It selects three such areas for discussion—the first two be- cause they have elicited an especially large amount of feminist commen- tary, the third because it is arguably tied to a fundamental social problem. Chapter 7 evaluates the feminist claim that law schools oppress women students, and chapter 8 extends this discussion to a related claim con- cerning abuse of women faculty in the academy. Chapter 9 examines the issue of whether and how the law unfairly penalizes unwed parenthood. Part III deals with a few critical challenges to the existing order brought in the name of minorities. Chapter 10 evaluates challenges by race theorists to prevailing conceptions of merit, and chapter 11 explores the relationship between race and crime. The conclusion summarizes the book and offers a few thoughts on where we go from here, while the Final Exam allows readers to determine whether they got out of the book what the author intended.

Playing with Fire One issue to be faced throughout this book: Does the gender or race critic consider whether “it is water or gasoline he is tossing on the . . . fire [or only] whether it is a well-intended act”?30 The reader may be puzzled by the notion that people would fail to consider the obvious consequences of their actions. An incident that took place in 1995 can help sharpen our focus. It involved the Reverend Al Sharpton and Fred Harrari, white owner of a Harlem-based clothing store. Wanting to expand operations, Harrari had refused to renew the sublease of a black-owned record store next door. Rev. Sharpton stated his position at one of the early protest ral- lies in September: “We will not stand by and allow them to move this brother so that some white interloper can expand his business on 125th Street.” Two months later, in the wake of cries of “Kill the Jew Bastards” and “They’re sucking the lifeblood out of the community,” a black street vendor entered Harrari’s place, shot four people, and torched the store, killing seven workers in the blaze. When later asked about the tragedy, Sharpton defended himself against charges of inciting racial violence: “Yes, he [Harrari] was a white interloper. What they are trying to do is act like we can’t say anything Learning to Think about Race and Gender |15 wrong about an individual white. Otherwise, that’s racist. That’s baloney.”31 Readers—particularly those sensitive to charges of racism—are asked to remember this defense as black writers are challenged here and to con- sider that Harrari had been on 125th Street. for three years, long enough, arguably, to be disqualified as an “interloper.” Readers should also imag- ine how Sharpton would likely have reacted if a black man had tried to set up shop at 5th Avenue and 44th Street and had met with a compara- ble reception. The objective here is not to assess Sharpton’s intentions or to suggest that all our social problems can be resolved through a simple test of sym- metry. It is, rather, to launch a discussion of the hearts and minds of gen- der and race scholars from the heart and mind of a white scholar. To this end, consider “firefighter syndrome,” the well-documented practice of a firefighter starting a blaze so that his unit will be called in and he can make himself a hero. In shouting “fire” in a flammable social and politi- cal setting, are gender and race critics laying the foundation for a perma- nent call on their diversity squads?