Wednesday, October 28, 2009

"The Low Cost of Being Racist (sic)"

In an article entitled "The Low Cost of Being Racist", by Karnythia at the blog, "The Angry Black Woman: Race, Politics, Gender, Sexuality, Anger" blog points to a case in Taos, New Mexico as an example of "racism". A white man bought a hotel in this mostly Latino town and then told Latino workers that their names had to be anglicized, and could no longer be pronounced as would be appropriate in their native language, and as they had been called all their lives, at work and at home.

According to Yahoo News,

The tough-talking former Marine immediately laid down some new rules. Among them, he forbade the Hispanic workers at the run-down, Southwestern adobe-style hotel from speaking Spanish in his presence (he thought they'd be talking about him), and ordered some to Anglicize their names.

No more Martin (Mahr-TEEN). It was plain-old Martin. No more Marcos. Now it would be Mark.

Whitten's management style had worked for him as he's turned around other distressed hotels he bought in recent years across the country.

The 63-year-old Texan, however, wasn't prepared for what followed. Yahoo News.

Although I understand Karnythia's concern with "racism", there is a fundamental futility in calling people and their behavior "racist":

New Mexico's anti-discrimination law does not use the word "racist" and does not forbid being a "racist". Instead, the anti-discrimination statute forbids acts and practices based on race . . . color . . . national origin . . . ancestry . . .

28-1-7. Unlawful discriminatory practice.

It is an unlawful discriminatory practice for: A. an employer, unless based on a bona fide occupational qualification or other statutory prohibition, to refuse to hire, to discharge, to promote or demote or to discriminate in matters of compensation, terms, conditions or privileges of employment against any person otherwise qualified because of race, age, religion, color, national origin, ancestry, sex, physical or mental handicap or serious medical condition, or, if the employer has fifty or more employees, spousal affiliation; provided, however, that 29 U.S.C. Section 631(c)(1) and (2) shall apply to discrimination based on age; or, if the employer has fifteen or more employees, to discriminate against an employee based upon the employee's sexual orientation or gender identity;

Since the employee's names are virtually inseparable from their "national origin" and "ancestry," to oblige Hispanics to anglicize and stop using their given names seems a like discrimination to me. And I believe I have read some caselaw to that effect although I don't remember the citations.

So, is Whitten "racist"? What difference does it make, if our laws do not provide for treatment or punishment for being racist? Like diagnosing someone with "bipolar disorder" and "schizophrenia", "racist" is a diagnosis that cannot be proved based on one act of illegal color-aroused discrimination. As with alcoholism, you need a case history, access to medical records, discussion with family . . . No one should be psychiatrically diagnosed, e.g. an "alcoholic" on the basis on one night of drinking.

Does that mean they should not be punished for their behavior? Absolutely not! If drivers drives drunk, then they can should be penalized not because they are alcoholics, a determination which is more in the realm of medicine that law, and which determination would require expert testimony and weeks of testimony. No, they should be punished not for what they are, but for what they did. The should be punished because they drove drunk, which is a determination that does not require expert testimony.

Laws typically prohibit what people do, not what they are. Even laws that declare someone to be a sex offender based the sex-offender characterization on on individual convictions, based on proven sex offenses. Statutes specify exactly what behavior leads to a determination that a convict is a sex offender.

Is anyone aware of a law under which three acts of discrimination qualify the offender as a "racist"? That doesn't exist, and I don't think it will anytime soon, if only because "racist" is a psyhchiatric determination rather than a legal one.

There is a fundamentally distinction between proving what someone is and what someone has done. A law professor once told me to be careful not to exaggerate my own "burden of proof." Don't say, for example, "The prosecution will prove that Mr. Rapist is the most hideous rapist in the state." Don't say that to the jury because even if the jury find that Mr. Rapist has commited one act of rape, that same jury might use the burden of proof that you suggested - "most hideous rapist" - and find that there is reasonable doubt on the question of "most hideous". That would be a shame since "most hideous" is not a criteria necessary for a rape conviction.

Back to Larry Whitten, the hotel owner. If we propose to prove that Whitten should be punished by the Government because he is a "racist," then we will fail because:

(a) Being a "racist" is not against the law, and

(b) Even if being a "racist" were against the law, you would need expert testimony from psychiatrists, psychologists, sociologists and even linguists to prove that Whitten is a racist. Aren't discrimination cases hard enough already without assuming this immensely higher burden of proof?

When we assume that we have to prove that someone "is a racist" in order for anything to be done about their behavior, we effectively increase our own burden of proof from:
(a) proving what they have done, to

(b) proving what they are in their essence.
Many of us cannot describe ourselves cogently, much less convince an all-white judge or jury that one or three or five actions of discrimination. That's a determination that a legislature would have to make by legislating the number and kind of acts which, once proven, make a person a "racist."

Here's an analogy: to convict someone of shoplifting, do you have to prove that they have a long-established tendency to steal from stores, or is it enough to show that they stole from one store one time? Should we change the law to increase the burden of proof, requiring the state to prove that the defendant is a shoplifter. If so, how many instances of shoplifting must the prosecutor compile, and what additional psychiatric information would be required before the state can arrest someone for being a thief?

Must a prosecutor prove that the person who raped a woman is a rapist, or only that he raped someone on one occasion? Is it unfair to punish someone for "just one rape"? Shouldn't we wait unti the have committed a series of rapes, and until there is a consensus among the talk show hosts, before we put them in jail, having determined that all of their rapes together prove that they are a rapist? Is so, then every man can commit one or two rapes with impunity, because one or two rapes, without more, don't prove that he is a rapist.

What we're really talking about is whether someone has to be proved to be a serial rapist before they can be charged and convicted of one rape? And whether someone has to be a serial violator of anti-discrimation laws before the can be charged with discrimination. After arguing over the definition of "racist" for half a century, it should be obvious to us that it is much easier to prove what someone has done on a particular day, with witnesses present, than it is to prove what someone is.

The problem with calling people "racist" is that "racist" is a high bar to clear, and requires a strong burden of proof on the person making the accusation. It's fair to ask, how can you tell from this one circumstance that the person's manner of interacting with Latinos is consistently and chronically antagonistic based on the "race" of the victim?

The truth is, it really doesn't matter whether Larry Whitten is a "racist" or not. It seems likely to me that under New Mexico's anti-discrimination law, Whitten would be found to have engaged in unlawful discrimination in this instance, because he forbids people to use the names that inherently identify them with their color, national origin and ancestry. Just stating that rule, orally or in writing, is sufficient at least to file a claim under the anti-discrimination, because to fail to file a claim will mean acquisence to a long series of violations of the statute.

Here's an analogy: Your child takes ten dollars out of your pocketbook to buy candy. You say he is a thief and must be punished. He retorts, "I have stolen in this once instance, but that doesn't prove that I steal all the time, in the past and into the future. I am guilty of one act of theft, but that is not enough for me to deserve a spanking. You must prove that I am a thief.

According to Merriam Websters Online Dictionary:
Pronunciation: \ˈthēf\
Function: noun
Inflected Form(s): plural thieves \ˈthēvz\
Etymology: Middle English theef, from Old English thēof; akin to Old High German diob thief
Date: before 12th century

: one that steals especially stealthily or secretly; also : one who commits theft or larceny

So, your child argues that he has stolen once, but that does not prove that he is "one who steals" habitually. And so he isn't a thief and cannot be punished for one mere act of theft.

And so you say to your child, "You are right." I don't have enough information to determine that you have dedicated your life to an unyielding pattern of thievery. So I agree that it would be unfair to punish you for stealing $10.00 from me. I agree to wait until you have stolen so many times that you meet the definition of "one who steals" rather than the lower burden of proof of "one who has stolen."

Now, your child has you beaten. There is no one anywhere who can specify the number of times and quantity of money stolen necessary to prove, to everyone's satisfaction, that your child is a thief. That's why the law against theft focuses on what the defendant has done, rather than on what he is as a person.

Remember: we do not need to prove that someone is a rapist; we only need to prove that they comitted ONE act of rape. Likewise, we do not have to prove that Larry Whitten is a racist and doing so would have no legal effect even if it were possible. We only need to prove that he committed one or more unlawful acts of discrimination.

It is not illegal to be a "racist", even in Brazil where there is a law that specifically forbids acts of racism. The law forbids acts, not vaguel or completely undefined existential states. This is why we need to stop calling people "racists", setting a high evidentiary bar that we can never clear. We need to show how individual acts and patterns of acts constitute violations of anti-discrimination laws. If those laws do not forbid the acts that most offend us, then we need new laws. But, we'll never get a law that punishes people for what they are rather than for what they do.

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