Notions of Race and Racism
Reader: You have written extensively on the notions of race and racism and how the United States should address these social ills. More specifically, you have discussed the problem of increasing racism on college campuses. What do you see as the causes of this emerging problem and how can or should a college respond to such instances of racism?
Delgado: I don't know. I am not a social scientist. I know that some conservatives dismiss the problem, believing it does not exist, is simply a product of better reporting or of whiney, complaining minorities who raise their voices every time something offends them. Dinesh D'Souza thinks that if racism is increasing on campus, it is minorities' fault. They bring it on themselves just by being there instead, I suppose, of working at some dead-end job or attending community college in an inner city area.
If pressed to go outside my expertise and hazard my own answer, I would say
that racism on campus is increasing because it is doing so in society at large,
with the Supreme Court cutting back on affirmative action,
referendums in California and elsewhere, even television featuring talking Chihuahuas. As to why, in turn, this is happening, read Rogers Smith's new book: society's ordinary state is racist; advances for people of color come only when three things coincide--a war, which requires labor and cannon fodder; an external enemy, such as the Soviet Union, which requires that we be on our best behavior; and civil disruption, mass protests, etc., or the threat of them.
We haven't had any of those three in a while. How should colleges respond?
By putting in place reasonable rules penalizing hate-speech, graffiti written
on Jewish meeting places, and the like. Colleges have wide scope for enacting
measures that protect the campus learning environment so that it is safe and
welcoming for all.
Reader: Can a college setting be viewed as a microcosm of American society, reflecting the problems of society as a whole? Can solutions effective at the college-level be applied to the larger society?
Delgado: See my answer to the first question--many of the same forces that shape broader society end up affecting the campus. Otherwise, no--college are not microcosms of society at large. The population is younger, the average
level of education is higher, and the norm against racism is better established. A solution that works on a campus may or may not be suitable for society at large or for a corporation, say.
Reader: In your work "Must We Defend Nazis?" you outline two different observed responses to laws that attempt to limit so-called "hate speech". One response is that such measures are offensive to the nature of the first amendment. In rebuttal, some indicate that these laws are necessary for the preservation of the fourteenth amendment. Could you explain the arguments for and justification of each viewpoint?
Delgado: Our legal system recognizes two values--free speech and equal treatment. Restrictions on hate speech interfere with the one, but promote the other. Of course, much speech already is unfree--when freedom of expression
collides with the interest of some powerful, thin-skinned group, we simply deem it an "exception" to free speech. Consider: words of threat, disparagement of a product (such as lettuce), and disrespectful words uttered to a judge or other authority figure, libel, defamation, plagiarism, copyright--the list goes on and on.
By the same token, society already punishes words constituting sexual harassment,
because these violate the norm of equality and equal treatment. And, one federal
circuit court recently held that a public school that
tolerated known insults and epithets, including "nigger," could be sued for maintaining a hostile environment. The law is slowly moving in the direction of recognizing the legitimacy of hate-speech regulations, at least in the most offensive, face-to-face, situations.
Reader: What is the ultimate goal of making hateful speech a crime? Is it to deter people from engaging in insulting activity or to protect the minority interests of society?
Delgado: I don't advocate making hate speech a crime. It should be a
campus offense, punishable by noncriminal methods of enforcement, such as a
reprimand or community service. I've also advocated that it be redressable by
an action in tort (for damages--like defamation or invasion of privacy) in a
civil court. And the purpose would be twofold--the ones you mentioned: deterring
offenders, and making the victim whole.
Reader: How would you respond that it is along socio-economic divides and not racial lines that modern America is divided?
Delgado: Modern America is divided along both lines, with the racial one being most intractable and hard to deal with. It is easier to rise from poverty; the children of poor parents usually end up better off than their parents (at
least if they are not black or brown). Poverty generally lasts just a generation or two; not so for blackness or Hispanicity. By the same token, the children of middle-class black and Latino families often fall from middle-class status more suddenly and irrevocably. Roy Brooks has documented how racism blights the lives of working-, middle-, and upper-class blacks. Everyone recalls the old joke: What do you call an African American with a Ph.D. (Answer: a nigger).
Reader: Even if we concede that race will forever be a social lightning rod and cause dissention among the populace, does our continued preoccupation with race force us to overlook such notions as a growing rich/poor gap? Can we deal with newer phenomenon that further place minorities at a disadvantage and at the same time effectively combat racism?
Delgado: No. Our society has been overlooking both race and the rich/poor gap as long as I can remember. For a short time in the Sixties, we worked seriously on both problems, and the New Deal effectively targeted poverty and unemployment, at least among whites. Other than then, American society has seemed perfectly happy to maintain great disparities between the rich and the poor (now the widest of any industrialized nation), as well as appalling conditions for minority populations.
The book mentioned earlier by Rogers Smith, and others by Derrick Bell and
his Critical Race Theory colleagues (writing about race), and works by liberal
economists dealing with the income and wealth gap suggest things will not get
better easily--at least without a convulsion of some sort. So, the idea that
a few liberals or progressive college students' expenditure of energy on the
one or the other cause will cause the other area to deteriorate alarmingly seems
to be over-optimistic. In other words, one can work on poverty or racism without
Reader: Many legal scholars such as yourself and Randall Kennedy, among
others, have written about the racial discrimination associated with the criminal
justice system, ranging from differing sentencing laws for powder and
crack cocaine to an irregularly high number of minorities on death row. If you were able to make one change in the criminal justice system to try and help eradicate this problem, what would that policy initiative be?
Delgado: I would enlarge and zealously enforce violation of the category of white-collar crime. Currently, society considers crime a largely black problem. But, if one considers dangerous products, corporate crime, embezzlement, and undeclared wars--acts associated with white elites—one finds that they inflict more pain, death, and property losses, both on an aggregate and a per-capita basis, than all street crime combined. Many of these actions we do not consider criminal at all; others we punish lightly. Yet, they are more deadly and costly than mugging, burglary, graffiti, shoplifting, and all the other crimes associated with the minority underclass put together.
Society should declare war on these other crimes. Sociologists should examine why white homes and family structure produce such deadly killers. Too much privacy when white kids are growing up? Something about the suburban neighborhood? Not enough extended families?
If police, prosecutors, and the media were to shift their focus to, or at least share it more equitably with, these other groups (suburbanites, corporate executives, military commanders), the incidence of black/brown charging, arrest, incarceration, and even execution would drop to a level approximating their proportion of the population.
Readers interested in my thesis may wish to consult "Rodrigo's Eighth Chronicle: White Crime, Black Fears--On the Social Construction of Threat" in the Virginia Law Review and in "The Rodrigo Chronicles" (NYU Press 1996)
Your time is up. Earlier, you said you had about six questions. We've come to the end. Your readers may write to me at University of Colorado Law School, CB-401, Boulder, Co 80309, and I'll promise to try to respond.
Reader: Thanks for your time.
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