BY YOHANNES TSEHAI
Although I vowed never to utter these words as long as I lived, I actually did read an interesting law review article a couple of months ago written by a Harvard Law School graduate named Jon Gould. This Michigan Law Review article, entitled “The Triumph of Hate Speech Regulation: Why Gender Wins but Race Loses in America,” makes two persuasive arguments. First, racial as opposed to sexual harassment policies have received disparate treatment from all sectors of our civil society, from the judiciary to the press to college administrators across the country. Second, this disparate treatment is unwarranted and inconsistent, especially because both the racial harassment policies that have been struck down and the sexual harassment policies that have been upheld by the courts are borrowed almost verbatim from Title VII. Moreover, neither Title VII nor the Supreme Court decisions that interpret Title VII even suggest that race and gender should be treated disparately for purposes of harassment.
Reading this article buttressed my previous incredulity at the feigned furor at the Law School and throughout the national press regarding the racial harassment policy that the Committee on Diversity is considering. There were grandiose pronouncements by members of our own faculty, student body and alumni proclaiming that such a policy, despite not even being written, would nonetheless be an impermissible violation of the First Amendment.
Even ignoring the impossibility of finding the as-yet-unwritten policy unconstitutional, the silence surrounding the existing policy prohibiting sexual harassment was deafening. I found it quite troublesome and hypocritical on critics’ part that while denouncing the consideration of a policy prohibiting racial harassment, these champions of unfettered free speech failed to utter a single word decrying existing limits on speech imposed by a sexual harassment policy.
Moreover, these individuals failed to articulate a justification for why gender should be treated differently from race, why women should be protected from harassment, while all other groups should be told to, in the words of Austin Bramwell, “withstand such petty contumely.” (Letter to The RECORD, February 6). This duplicity in the treatment of sexual as opposed to racial harassment reeks of intellectual inconsistency and dishonesty, what Prof. Brewer would call a lack of “intellectual due process.”
Consequently, I think that the only pedagogically and logically consistent options the Committee on Diversity and the rest of the HLS community face are to either recommend the approval of a policy banning racial harassment akin to the sexual harassment policy or ban both policies as analogous restrictions on free speech that we do not desire. If we want an academic environment that enjoys wholly unfettered dialogue, including denigrating speech against women and minorities which we as an intelligent and open-minded community find to be reprehensible, then we have no choice but to not only oppose a policy banning racial harassment, but moreover, we have to abolish the policy banning sexual harassment that already exists.
However, if we assert that in addition to free speech, tolerance should be a guiding principle for our academic environment, then we must put an end to the inconsistency with which we approach sexual harassment. We as a law school are upholding a contradictory and untenable position that bans some types of harassment while permitting others, sending the message that we seek to protect only women but not other groups from harassment at HLS.
Furthermore, I wanted to comment on one of the claims made by Bramwell in his letter. Bramwell says that the reason “African-Americans may very well feel disproportionately intimidated at Harvard Law School” is not because of the presence of “systemic racism on campus”, but rather, “is more likely a function of affirmative action.” It is ironic that on one of the few occasions conservatives and critics of affirmative action pretend to care about the alleged feelings of intimidation and inferiority experienced by racial minorities, this feigned compassion is actually a façade used as a pretense to further marginalize and disfranchise these already disadvantaged groups.
Second, I vociferously disagree with the claim espoused by Bramwell that rather than racism, it is “affirmative action, which creates a presumption that blacks on campus are less qualified.” Does living in a patriarchal society dominated by rich white males create the presumption that the male children of rich white parents at Harvard or anywhere else are less qualified than the children of less dominant groups who had to overcome substantial institutional barriers to succeed? Does the fact that Harvard gives preference to the children of alumni and people that went to elite private high schools create the presumption that these students are less qualified? I think not. Just as an admissions policy which considers legacy as one of many factors does not create the presumption that its beneficiaries are inferior or less qualified, an admissions policy which considers race should not create that presumption, either.
If critics of affirmative action want to claim that racial minorities who benefit from affirmative action are less qualified than the rest of the admitted student body, they should demonstrate this suspected “inferiority” by relying on data, which would compare grades and graduation rates of minorities with those of the rest of the student body. Although these data may fail to conclusively prove the “inferiority” of minorities in higher education, trying to find data to substantiate claims of black and Latino “inferiority” would help make this conclusion sound more like an argument supported by fact instead of pure racism.
If conservatives seek to oppose affirmative action, they should oppose it on its merits by arguing, for instance, that it impermissibly grants racial preferences or that the costs of seeking racial diversity outweigh any pedagogical and societal benefits that may result from it. However, they should refrain from making disingenuous claims that they are concerned about the stigmatic effect affirmative action allegedly has on the consciousness of its beneficiaries when they are oblivious to the plight of these groups they pretend to care so much about.
Finally, I am tired of conservative white men projecting their delusions of white supremacy on me by telling me how intimidated, inferior and stigmatized I am to feel because of affirmative action. I am proclaiming here and now that I do not feel intimidated, inferior, stigmatized, or in any way ashamed of being the benefactor of affirmative action.
On the contrary, what I am truly ashamed of is living in a segregated society rife with racial and class disparities in education, housing, healthcare, employment, income, wealth, policing, sentencing and every other measure of socioeconomic status. I am ashamed of the fact that black and Latino children when compared to white children are more likely to: die as infants; receive a substandard education; be tracked and expected to fail in public schools; not go to college; be poor, unemployed, and receive lower wages for the same work even despite having the same education; be profiled, incarcerated, and harshly sentenced; and ultimately die younger on account of their race. This is my shame, a shame that should be shared by every American.
— Yohannes Tsehai, 2L