This week, I began teaching the unit on sexual assault to my Criminal Law class. I – untenured, female, and in my second year of teaching – walked into my classroom and wrote “carnal knowledge of a woman forcibly and against her will” on the chalkboard, thus beginning a two week exploration of the law of rape. Am I brave? Am I foolish? Or am I simply doing what I am supposed to do as a Criminal Law professor?

A couple of senior professors from other law schools had advised me not to cover sexual assault as part of my Criminal Law class at all. It was too risky, I was told. And this is generally true. All classes have an element of risk and uncertainty: one can never be quite sure how any given class is going to turn out on any given day. The most beautifully constructed notes containing the most carefully (and charmingly!) written lecture can produce quizzical looks, yawns, and dead silence during the discussion period; meanwhile, those notes that might as well have been written on napkins during the faculty meeting that preceded the class can produce the most brilliant, Socratic unveiling of that hard-to-understand, but oh-so-fundamental concept. So, yeah: there’s uncertainty built into all classes. But, the uncertainty associated with teaching sexual assault is terrifying. Will my question about the mens rea of nonconsent yield a response that indicates that one of my students has been accused of rape? Will another response indicate that another student has been raped? Will a screaming match break out? Will someone break down in tears? Will that person be me?

I have my strategies, though: first, I avoid any attempts at humor during the unit, which is a departure from my approach to the rest of the class. Criminal Law frequently involves people doing horrible things to other people. The fact patterns of the cases are awful much of the time. So, as a professor, one could go into the classroom and lament man’s inhumanity to fellow man for an hour and a half; or, one could treat it like a dark comedy. I typically choose the latter. I prefer the Fargo approach to the There Will Be Blood approach … except during the unit on sexual assault. During those weeks, I am Daniel Day-Lewis as a turn-of-the-century oil prospector. (Interestingly, even dark comedies tend not to make light of sexual assault. People are killed all the time in dark comedies; but they are infrequently raped. If they are (think of Ving Rhames’ character in Pulp Fiction), the rape scenes are not supposed to be funny; they are supposed to be horrifying.)

My second strategy: instead of calling on students at random, I only call on volunteers. But, I am not entirely comfortable with this strategy. Undeniably: rape is terrible, and talking about it can make some people profoundly uncomfortable. But, you know what else is terrible? Murder. Voluntary manslaughter – which involves case after case of men experiencing sometimes adequate/sometimes inadequate provocation and killing their wives – is terrible, too. Yet, I do not hesitate to call on students randomly during the homicide unit. Some Constitutional Law professors tell me that, during their units on abortion (and definitely on the day that they teach Gonzales v. Carhart, if they teach it at all), they only call on volunteers. The exceptions that professors are willing to make to their usual pedagogy might be a bit problematic. Both abortion and sexual assault are gendered subjects. Is there something about topics that disproportionately and distinctly affect women that makes it appropriate to remove them from normal classroom procedure? One cannot argue that professors make these exceptions with respect to abortion and sexual assault because these topics are especially controversial. You know what else is controversial? Same-sex sodomy. Also controversial: affirmative action. But, the professors whom I have come across do not make exceptions to their practice of cold-calling when they teach Lawrence v. Texas or Grutter. (Indeed, I feel for the student who is a racial minority and who is called upon to be Socratically drilled about Grutter. A sufficiently competent performance may exonerate him or her from an implicit accusation that he or she is a beneficiary of the very program upheld in Grutter. And a bad performance? Well, that’s pretty good evidence that Justice Thomas was absolutely correct in that vigorous dissent….) So, why should we, as professors, be especially sensitive about abortion and sexual assault? Does our sensitivity construct women as especially sensitive? Or does it reflect the belief that crimes against women and gendered issues such as reproductive rights are Other?

Nevertheless, I shall adhere to my strategies, and I shall humorlessly and sensitively teach my students the law of sexual assault. And I shall sigh a huge sigh of relief when the unit is over and we can move on to lighter things – like Bernie Goetz shooting four, young, unarmed racial minorities on a New York City subway. [sigh]

It’s official: the Supreme Court will hear Fisher v. University of Texas at Austin this term. The Court will determine the constitutionality of the university’s use of race in its undergraduate admissions decisions. Because Justice Kagan has recused herself, supporters of affirmative action must hope (pray!) for a 4-4 split – with Justices Breyer, Ginsburg, Sotomayor, and Kennedy on one side and Justices Alito, Roberts, Scalia, and Thomas on the other.

But, what’s the likelihood that Justice Kennedy will swing to the left? After all, he dissented in Grutter. Part of his discontent in 2003 concerned Michigan Law’s notion of a “critical mass.” Michigan Law argued, and the majority accepted, that a “critical mass” of minority students would promote “cross-racial understanding,” undermine racial stereotypes, prepare students for the “multicultural workforce” that exists outside the law school’s doors, and prevent minority students from having to be “spokespersons for their race.” Essentially, admitting less than a “critical mass” of minority students would be an exercise in futility; however, admitting a “critical mass” of them would further the compelling state interest in securing the educational benefits of having a diverse student body. But, Kennedy protested that he was not fooled by the concept of “critical mass.” To him, “critical mass” walked like a quota and quacked like a quota. “Aha!,” Kennedy exclaimed in dissent. “It’s a quota!” And quotas are, of course, constitutionally repugnant.

So, it may be a bit ominous for those who want to see the University of Texas’ affirmative action program survive review that the university specifically and explicitly argues that it uses race in its admissions decisions in order to ensure that its student body contains a “critical mass” of racial minorities. As Justice Blackmun said in another context: “The signs are evident and ominous, and a chill wind blows.”

Notably, Justice Kennedy did not have a problem with the Grutter majority’s holding that student body diversity was a compelling governmental interest. He noted in his dissent that he found “no constitutional objection to the goal of considering race as one modest factor among many others to achieve diversity”; his disquietude was solely with the way that Michigan Law pursued this interest. Thus, if Texas’ program is struck down this term, it will not be because a majority has found that achieving student body diversity is no longer a compelling governmental interest.

Yet, this holding is, for me, the most disturbing part of Grutter. I get it: we have to argue in the language of “diversity” in order to justify affirmative action programs because the jurisprudence will not allow us to argue successfully in the language of “remedying past societal discrimination.” But, while the end is the same (more racial minorities gain access to schools that otherwise would be inaccessible), the means to the end are troubling. Why is “diversity” more attractive as a compelling interest than “remedying past societal discrimination”? The answer may be that those who are imagined to benefit from programs designed to “remedy past societal discrimination” are only the minority groups that were victims of discrimination; however, those who are imagined to benefit from programs designed to increase diversity include nonminorities. To be clear: the programs are the same. But, when “diversity” is the justification for the program, it allows us to imagine that even White people benefit. Nonwhite people and White people acquire cross-racial understanding. Nonwhite people and White people are disabused of racial stereotypes. Nonwhite people and White people are prepared to enter a multicultural workforce. There are no losers with diversity! It’s a win-win!

And I’m pretty sure that individuals of all racial ascriptions and identifications benefit from racially diverse environments. However, my issue is that when the interest was framed in terms that focused only on the benefit that minorities would receive from affirmative action – when it was articulated in the language of “remedying past societal discrimination” – a majority of the Court refused to find that this interest was compelling. Rectifying the enduring effects of the mistreatment, the disenfranchisement, the denial of citizenship, the abuse… That’s definitely legitimate. It may even be important. But, it’s not compelling. Diversity, on the other hand? That’s the stuff that the Fourteenth Amendment can sink its teeth into!

At present, efforts to repair the damage caused by this country’s history of racism and exclusion can only be justified by not making reference to this country’s history of racism and exclusion. There’s something unsettling about that. There’s also something unsettling about the work that the acceptance of the diversity argument, coupled with the rejection of the remediation argument, does to deny that the effects of past societal discrimination even exist. Diversity screams, “Racism is dead!” But, could it be that the premature celebration of racism’s demise is the very sign that demonstrates that racism is alive and well? That is: nonwhite people – Black people, specifically – are poorer, sicker, more frequently incarcerated, die earlier, more likely to die violent deaths, etc., than their White counterparts. If these disparities are not the effects of past societal discrimination – if these disparities are not the effects of institutional mechanisms – then what explains them? The focus shifts to individuals and their pathological choices, behaviors, lifestyles, cultures, instincts, etc. And racism is just a stone’s throw away.

[I should note that this post builds on Amanda Pustilnik’s post that’s right below….]

A recent study published in the journal Psychopharmacology reports that a beta-blocker, usually prescribed as a treatment for heart disease and anxiety, had the effect of reducing implicit racial biases in white volunteers who took the drug. In the study, one group of volunteers was given the beta-blocker while another group was given a placebo. The participants were then asked to complete a racial Implicit Association Test, which purports to measure subconscious racial bias by asking test takers to associate positive and negative words with images of black and white people. The participants who had been given the beta-blocker earned better scores on the test; it took them less time than the placebo group to associate a positive word with a picture of a black person. The researchers who conducted the study postulated that, based on the part of the brain and the nervous system on which beta-blockers act, the results suggest that racism is fundamentally based on fear. Inhibiting that part of the brain inhibits racism.

Simply put, a recent study claims that people were less racist after popping a couple of pills. Why did I – a person who eats, sleeps, and breathes anti-racism – greet the news with a body-rattling yawn? Why didn’t I jump on the computer to write a sternly worded letter to my congressman, demanding that the drug be added to the water supply? Why didn’t I immediately start planning my End of Racism party? I didn’t even post a link to the study on my Facebook page…. Why the lack of excitement?

I’m always indifferent when I hear talk of subconscious racism. And there’s plenty about which to be indifferent. The psychological literature is filled with studies claiming to explain racial bias as a product of cognitive shortcuts and heuristics. You see: we have so much information coming at us from all directions. It would be too overwhelming for our brains to process it all. So, the brain does us a little favor and creates scripts for us to follow in order to save us time and energy. It’s these scripts that make us (all of us, without regard to our racial identities and ascriptions) associate images of black people with words like “bad,” “dangerous,” and “ugly”; it’s these scripts that make us associate images of white people with words like “good,” “safe,” and “pretty.” For many years now, cognitive psychology has been reassuring us that we’re not racist; it’s our brains that are the problem.

Attributing racism to the subconscious mind is hugely attractive. There are bad results with no bad actors. There is racism with no racists. Because we are all equally blameworthy and equally blameless, we can work together to erase the effects of subconscious racism. The attractiveness of this view may explain why Charles Lawrence’s “The Id, the Ego, and Equal Protection” – a brilliant article in which he uses the idea of subconscious racism to argue that heightened scrutiny under the Equal Protection Clause ought to be triggered by evidence of disparate impact (and not solely discriminatory intent) – has been cited in close to 2,000 law review articles and has made its way into decisions in three state supreme courts, eight circuits, and the Supreme Court of the United States. (Justice Brennan cited it in his dissent in McCleskey v. Kemp.)

But, I’ve never thought that subconscious racism can explain very much. I don’t think that we bear witness to the racial disparities and inequalities that scar our society (and our globe) because of subconscious racism. I think that racism is a conscious mechanism. Temporary Aid for Needy Families and other social welfare programs that provide cash assistance to indigent persons have been vilified not because they are associated subconsciously with the always already black “welfare queen”; they have been vilified because they are associated consciously with the always already black “welfare queen.” States have chosen to crack down on “illegal” immigrants not because this ostensibly race-neutral category is associated subconsciously with Mexicans; states have chosen to crack down on “illegal” immigrants because this category of persons is associated consciously with Mexicans. Speaking of McCleskey: those who kill white people are more likely to get the death penalty not because of the subconscious racism of prosecutors and juries; those who kill white people are more likely to get the death penalty because, generally speaking, the lives of white people are more valued – and consciously so – than the lives of nonwhite people.

All of that to say: the racism that is most damaging – the kind that we should be most worried about – is conscious.

But, maybe we should put that beta-blocker in the water, just in case….

This week at my law school, I presented a chapter of my book to students as part of a brown bag lunch series in which various members of the faculty lecture on disparate topics of interest. When I was invited to participate in the series at the beginning of the semester, I happily agreed to do so – in part because, as a junior professor, I happily agree to everything. (Dean: “It would be really helpful if you sat on three more committees, taught two more classes, and did some light janitorial work a couple of days out of the week. Can you do it?” Me: “Absolutely!”) However, I also agreed to do the lecture because I felt no pressure. First, I knew that it would take very little effort for me to prepare a 45-minute lecture on my book because … well, I know my book; I’m not exaggerating if I describe myself as “conversant” in this thing on which I labored for five good years of my adult life. Second, I didn’t feel any pressure in accepting the invitation because the lecture was to be attended by students, and I was pretty darned certain that students weren’t going to attend. The talk was scheduled for the end of March. I figured students would be more interested in 1) prepping for their classes, 2) outlining in anticipation of their exams, and 3) being sad puddles of anxiety and despair. I assumed that any interest that they had in anything that I had to say about my book would take a backseat to those more important pursuits. I honestly thought that the lecture hall would be filled with the person who organized the event, a gunner or two, and a cricket that would make cricket sounds at appropriate intervals. So, imagine my surprise when I entered the room and it was filled to capacity….

Yes: some students undeniably came for the “light refreshments” that had been advertised on the poster announcing the event. (And those students were not disappointed: on the refreshment table, I saw glimpses of fresh fruit and tongs – tongs! – with which to retrieve said fruit.) But, they stayed. They listened intently. And they asked really insightful questions during the fifteen minutes reserved for Q&A. Some even asked me follow-up questions via email.

And, apparently, this type of thing happens all the time in the law school; several students told me that there was an event last week involving a former federal judge that was so well attended that they ran out of chicken wraps! Moreover, that there would be chicken wraps available for consumption was a fact about which students were unaware prior to their arrival. Students attended the event because they wanted to hear a federal judge talk about her experiences. This is remarkable.

But, why do I find this remarkable? Perhaps because it is completely at odds with my approach to law school. I never attended anything extracurricular when I was in law school. During those three years, I could be found in class, in the library, or in an empty corridor pulling myself together. (I was a very nervous law student.) This is especially unfortunate because I was in law school – in New York City – when the country was reeling from the events of September 11, 2001. (In fact, I was in Federal Income Tax on September 11, 2001. My professor was lecturing about the concept of stepped-up basis as the Twin Towers fell a couple of miles away.) The law school was peppered with fora on national security, and the Patriot Act, and Article II powers. And I didn’t attend anything.

What a shame! They say that youth is wasted on the young. Well, law school is wasted on law students – at least when they don’t take advantage of the incredible opportunities surrounding them.

So, kudos to those students who maintain enough perspective to realize that the education that happens in the classroom is only a fraction of the education that is available to them. And next time, I hope that the organizers order enough chicken wraps so that those perceptive students are properly rewarded for their insight.

I come to the issue of abortion and abortion restrictions from a different angle and with a different focus than those used by Carol Sanger in her wonderful new book, About Abortion: Terminating Pregnancy in Twenty-First Century America. In my scholarship, I’ve been interested in how the regulation of abortion has been a mechanism by which the state can regulate race and class. Specifically, I’ve been interested in the role that race and class have played in women’s ability to access abortion (as well as contraception and sterilization). I’ve also been interested in the role that race and class have played in women’s ability to choose to eschew abortion, contraception, and sterilization and to become mothers and parent their children with dignity.

If you take a look at the nation’s history, you will find that many restrictions on abortion, contraception, and sterilization are directly related to the state’s interest in forcing affluent white women to have babies. This interest was a product of racist fears triggered by a decreasing percentage of white children born to native-born white people in the United States. So, abortion, contraception, and sterilization restrictions were a means for regulating race and class insofar as they were a way to control the bodies and the fertility of white women with class privilege: the state controlled their bodies by forcing them to be fertile.

However, at the same time that class-privileged white women were being encouraged to have children, poor women and nonwhite women were being actively discouraged from having children. While white women were fighting for access to abortion, contraception, and sterilization, poor women and nonwhite women were the victims of coercive sterilization. A couple of examples from history might be instructive:

• According to a survey conducted in 1965, a third of Puerto Rican women living on the island had been sterilized. Sterilization was so common that people referred to it as “la operación”– a generic “operation.”

• In the 1970s, the Indian Health Service sterilized scores of indigenous women without their consent. The case of Norma Jean Serena, an indigenous woman, is illuminating: She had signed a “Statement of Need for Therapeutic Sterilization,” which reads in relevant part: “We find from observation and examination of Norma Serena that she is suffering from the following ailment of condition: …‘socio-economic reasons’… and that another pregnancy in our opinion, would be inadvisable. Therefore, we are of the opinion that it is medically necessary to perform the sterilization.” Serena had been told that her sterilization was medically indicated. She discovered later that she actually had been sterilized simply because she was poor.

• Poor black women have been coercively sterilized throughout this country’s history. Forced sterilizations were so common in the south that they were called “Mississippi appendectomies.” One of the most famous cases of sterilization abuse occurred in 1973 and involved the Relf sisters. They were 12 and 14 years old when an Alabama physician deemed them mentally incompetent and subsequently sterilized them. Their mother couldn’t read or write. Indeed, she had signed an “X” on the consent forms.

So, with respect to poor women and nonwhite women, the failure to restrict abortion, contraception, and sterilization was a means for regulating race and class insofar as it was a mechanism by which the state could control their bodies and their fertility: the state controlled their bodies by forcing them to be infertile.

In About Abortion, Sanger does a deep dive into modern abortion regulations. She notes that “[m]uch of the regulation takes as its starting point that pregnant women and girls do not exactly understand what they are doing when they decide to end a pregnancy. That is why they must be told when human life starts, that a fetus is a child, that it has a heartbeat and maybe fingernails, and that adoption would work to make everyone happy” (23). The types of regulations to which Sanger is referring here are involved in the business of moral suasion. They try to make arguments about the moral status of the fetus: they try to convince women to carry their pregnancies to term by telling them that they are presently carrying a morally consequential entity—a baby.

But, abortion regulations with respect to the populations in which I have been interested—poor women, who are disproportionately of color—do not look like this. The regulations that have been aimed at populations without class (and race) privilege are much more in the business of coercion. I’m referring to the Hyde Amendment here. The Hyde Amendment is a federal legislative provision that prohibits the use of federal Medicaid funds for even medically necessary, therapeutic abortions. While the Hyde Amendment currently allows indigent women to use Medicaid funds to terminate pregnancies that endanger their lives or are products of rape or incest, it denies funds to terminate pregnancies that endanger women’s health. Thus, the Hyde Amendment leaves poor women to be maimed by their pregnancies. Again, Hyde is not in the business of moral suasion. It does not attempt to persuade women to carry their pregnancies to term by arguing that the fetus is like a baby—with a heartbeat, fingernails, the ability to feel pain, etc. Hyde coerces indigent women to carry their pregnancies to term by leaving them—indigent women—to scrape together the $300 to $3,000+ for their abortion procedures.

In the final chapter of the book, Sanger muses on how we can begin to normalize abortion. She argues that the first step in this project of normalization is that women who have had abortions need to talk about their abortions. Sanger’s discussion might prompt us to think about how Hyde works against any project of normalization. That is, Hyde works to abnormalize abortion. Or, we might say that Hyde normalizes abortion as an abnormal procedure. Hyde creates a narrative that suggests that it is normal for us to think of abortion as something that is appropriately excluded from health insurance plans.

Let’s be clear: Medicaid—which is health insurance—does not cover the costs of even therapeutic abortions. This is both materially and discursively powerful. Hyde is materially powerful inasmuch as it powerfully impacts the material lives of indigent women: it frequently coerces poor women into motherhood. And Hyde is discursively powerful insofar as it creates and legitimates discourses that describe abortion as “not healthcare.” If abortion is “not healthcare,” then there is nothing unusual about its exclusion from health insurance plans that cover the cost of healthcare. Compare this landscape with an alternative landscape wherein abortion is understood as a normal medical procedure: as a normal medical procedure, its exclusion from health insurance plans would be abnormal. The discursive effect of the Hyde Amendment is to impede the development of this alternative landscape.

I agree with Sanger that we need to normalize abortion. That is why I believe that in addition to talking about abortion, we might also pay attention to how institutions—like our public health insurance program—abnormalize abortion.