What do Katrina victims waiting for federal disaster relief, millionaire rappers buying vintage champagne, Ivy League professors waiting for taxis, and ghetto hustlers trying to find steady work have in common? All have claimed to be victims of racism. These days almost no one openly expresses racist beliefs or defends bigoted motives. So lots of people are victims of bigotry, but no one's a bigot? What gives? Either a lot of people are lying about their true beliefs and motivations, or a lot of people are jumping to unwarranted conclusions--or just playing the race card. As the label of "prejudice" is applied to more and more situations, it loses a clear and agreed-upon meaning. This makes it easy for self-serving individuals and political hacks to use accusations of racism, sexism, homophobia, and other types of "bias" to advance their own ends. Richard Thompson Ford, a Stanford Law School professor, brings sophisticated legal analysis, lively and eye-popping anecdotes, and plain old common sense to this heated topic. He offers ways to separate valid claims from bellyaching. Daring, entertaining, and incisive, The Race Card is a call for us to treat racism as a social problem that must be objectively understood and honestly evaluated.
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Richard Thompson Ford is the George E. Osborne Professor of Law at Stanford Law School. He has published regularly on the topics of civil rights, constitutional law, race relations, and antidiscrimination law. He is the author of Racial Culture: A Critique.Excerpt. © Reprinted by permission. All rights reserved.:
In November 1987, a deputy sheriff was dispatched to an apartment building in Dutchess County, upstate New York. There a resident of the building led him to a large plastic garbage bag that contained a seemingly unconscious Tawana Brawley. Brawley’s body was smeared with feces, her clothes were torn, the crotch burned away from her jeans, and she was not wearing a bra or underwear. An ambulance was dispatched, and Brawley was taken to the hospital. When her clothes were removed, the markings were stark and unambiguous: the words “nigger,” “bitch,” and “KKK” were scrawled on Brawley’s torso in black charcoal.1
The sheriff’s office, sensing that they were in over their heads, called the FBI to report a likely civil rights violation. Doctors examined Brawley for injuries and evidence of rape. They found neither. Brawley could not—or refused to—speak to hospital staff and detectives about what had happened. Eventually, communicating by nodding and shaking her head, she indicated that she had been raped by several men. Then came the bombshell. When asked if she could identify the attackers, the silent Brawley scrawled two words on a piece of paper: “white cop.”
When Brawley was released from the hospital, her family thought a warm bed and an interview with a New York City television station might help her to rest and recover. Against the advice of the hospital social worker, her mother and aunt publicized the horrifying story. They did so, they said, out of fear that the incident would be covered up by a racist law enforcement establishment.
The last thing they needed to worry about was too little publicity. The family enlisted (or was conscripted by) lawyers Alton Maddox and C. Vernon Mason and the Reverend Al Sharpton. Thereafter, “Brawley’s story” (she never told her own story publicly, which gave her representatives plenty of, let’s say, interpretive license) was the featured topic of discussion on innumerable news and current events programs, including the archetype of talk TV, The Phil Donahue Show, and its down-market competitor, The Morton Downey Jr. Show. Sharpton—not Brawley—named names, accusing a local police officer, who later committed suicide, and assistant district attorney Steven Pagones, who later successfully sued Sharpton for defamation. Sharpton—not Brawley—spun a conspiracy theory worthy of its own X File, implicating the Irish Republican Army, the Cosa Nostra, New York governor Mario Cuomo, and a mysterious man with a missing finger.2 (Could Dr. Richard Kimble’s one-armed man have been out of the loop?)
Something was badly awry. Even without Sharpton’s embellishments, Brawley’s story—to the extent that she told one—didn’t jibe. Witnesses saw her climb into the garbage bag herself after looking around furtively. All of the materials necessary to stage the assault were found in her old apartment. She was seen at a party shortly before she was discovered by police. When examined at the hospital, she showed no signs of exposure despite subfreezing temperatures, suggesting that she hadn’t been outside for long. Brawley never had the chance to explain these discrepancies, and she never had to explain them: on the advice of her lawyers, she refused to cooperate with police and prosecutors, so she never gave a detailed account of events. She was spirited away to undisclosed locations while her handlers gave incendiary interviews to the press and spun race-baiting conspiracy theories. Sharpton, in a heartwarming display of sensitivity, said that asking Brawley to meet with New York’s Jewish attorney general would be like asking a Holocaust survivor “to sit down with Mr. Hitler.”3
A grand jury found no evidence of wrongdoing and concluded that the whole affair was probably a hoax. To this day we cannot know whether Brawley was assaulted by someone—named or unnamed, known to her or unknown—whether she was cajoled or pressured into playing a role in an elaborately orchestrated hoax, or whether she just made the whole thing up. Owing in large part to the exploitation of the case by her lawyers and handlers, any truth is so intermeshed with a tissue of lies that there’s no separating the two. As a result, “Brawley’s story” is still available for charlatans and demagogues to cite as evidence of an elaborate white racist conspiracy. For such people and those who believe them, the Tawana Brawley incident is a reason to resist law enforcement, to distrust the criminal justice system, and to secede from mainstream society into black separatist cults such as Louis Farrakhan’s Nation of Islam. (Farrakhan has vowed vengeance on Brawley’s attackers: “You raped my daughter, and I will kill you and dismember your body and feed it to the fowl of the air,” he frothed.4) But for most people, whatever else it was, the Tawana Brawley debacle was a prime example of the damage done—to lives, to reputations, to careers, and most of all to the truth—by playing the race card. Almost all Americans agree that racism is wrong. Many believe that it remains a serious problem that affects many people on a regular basis. But a lot of people also worry that the charge of racism can be abused. We can all think of examples: Tawana Brawley’s claimed assault seemed to have been a staged hoax. Michael Jackson—a musician who enjoyed the most lucrative career in the history of recorded music—teamed up with Brawley’s former handler, Al Sharpton, to accuse his recording label, Sony Music, of a “racist conspiracy” to undermine his popularity after sales of his disappointing latest album are, well, disappointing. The multimillionaire—who, through untold plastic surgeries, has achieved the Aryan phenotype of Snow White—declared fearlessly, “When you fight for me, you’re fighting for all black people, dead and alive.” (That rumbling you hear is the sound of thousands of former slaves, sharecroppers, and victims of Jim Crow turning in their graves.) Prince, a musician whose contract was not quite as good as Michael Jackson’s but still extraordinarily generous, complained that he was a “slave” to his record label (years later Prince made a deal with Jackson’s old label, Sony, apparently unafraid of the racist conspiracy). Clarence Thomas, when charges of sex harassment surfaced during his confirmation hearings for the Supreme Court of the United States, compared his critics to a lynch mob. And of course there’s O. J. Simpson. We all know what happened with O. J. Simpson (don’t we?).
The Race Card will examine the prevalence of dubious and questionable accusations of racism and other types of bias. I will argue that the social and legal meaning of “racism” is in a state of crisis: the term now has no single clear and agreed-upon meaning. As a result, it is available to describe an increasingly wide range of disparate policies, attitudes, decisions, and social phenomena. This leads to disagreement and confusion. Self-serving individuals, rabble-rousers, and political hacks use accusations of racism, sexism, homophobia, and other types of “bias” tactically, in order to advance their own ends. And people of goodwill may make sincere claims that strike others as obviously wrongheaded.
In a sense, the Tawana Brawley incident was a classic example of playing the race card: Brawley and/or her handlers used a claim of racial bias in order to gain something they didn’t deserve—notoriety, attention, money, public support for their controversial racial politics. But in another sense the incident was atypical. Playing the race card typically involves jumping to a conclusion not compelled by the facts; Michael Jackson’s album sales were disappointing—that’s a fact—but it’s far from obvious that they were disappointing because Jackson was the victim of racism. By contrast, it appears that Brawley or her handlers actually fabricated the injuries, as well as disingenuously claiming that racism was to blame for them. The Brawley incident didn’t involve jumping to a conclusion that the facts didn’t support; it involved making up facts that would support the desired conclusion.
Still, this unusual case demonstrates something about playing the race card more generally: false or exaggerated claims of bias piggyback on real instances of victimization. They “work” because there are enough similar verified cases for the lies and exaggerations to seem plausible. Brawley’s story was plausible to many people because they knew of similar incidents that actually happened. There are racist police, and they sometimes abuse black people. When asked many years later whether he would apologize for his role in the incident, Reverend Sharpton defended his conduct: “Apologize for what? For believing a young lady?”5 People who believed Brawley did so because they gave her, rather than the police, the benefit of the doubt. They began with the presumption that black people often suffer from racism and police often lie. People who began with the opposite presumption—that blacks rarely suffer from racism and police are usually truthful—never believed her. In the Brawley case, the latter presumption yielded the correct conclusion. But that doesn’t make it a superior presumption in general. It would have yielded the wrong conclusion in many other cases, such as when New York police did indeed sexually abuse a black man—Abner Louima—and lied about it in an unsuccessful cover-up attempt.
The cases of Brawley and Louima involved objective facts that people could observe and verify. But many claims of racism don’t involve such hard fa...
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