Chinyere Ezie, Columbia Law School class of 2010 is Editor-in-Chief of the Columbia Journal of Gender and Law and former President of Outlaws (the Lesbian/Gay/Bisexual/Transgender/Queer/Allied student organization at Columbia Law School), offers the following reflections on ongoing attempts to bring lbgt people within the protection of federal hate crimes legislation in light of the deeply racialized nature of U.S. policing and criminal policy:

Last weekend, as LGBT-rights activists gathered in D.C. for the National Equality March, news broke of a vicious gay bashing in New York City. Jack Price, a 49 year old Queens resident, was attacked while leaving a neighborhood deli-grocery. Price was pummeled until his jaw shattered, both his lungs collapsed, and every rib in his body was broken.  (He was admitted to the hospital last Friday in guarded condition. However, this weekend he emerged from a coma and doctors are hopeful that he will survive his injuries.)

Price’s five minute beating is captured in lurid detail by a surveillance video that quickly made its way around the web. Last Wednesday, after reading a few articles about the case during lunchhour, I suddenly found myself watching a clip of the horrific attack unfold. The first 30 seconds of tape show Price careening from one street corner to another, frantically trying to evade his attackers. Eventually, he hits the asphalt in a hail of blows— images so startling that I was moved to grief in my law school cafeteria— suddenly choking back warm tears.

In the next minute of footage, Price is seen lying in the road in the fetal position as punches and kicks continue to rain down. At one point, Price’s assailants are shown brazenly standing over his body as cars pass by— a scene which left me puzzling about Foucault’s theory of the panopticon and the indifference of strangers — wondering why all of “the eyes on the street” failed to keep both Jack Price & Kitty Genovese safe.

In the final minute of footage, Price is shown vainly trying to stand after his attackers retreat. Seeing him collapse over and over—eventually crawling the ten blocks home— triggered an unspeakable wave of anguish as well as a crisis of moral philosophy. After several years of carefully crafting a set of objections to hate crimes laws, suddenly, I found myself questioning if they might be of value – even when deployed in a flawed criminal justice system.

Surveying the writings of critical legal scholars reveals a profound ambivalence for our modern system of crime and punishment. Bafflement with the criminal justice system still holds with respect to “protective” legislation like hate crimes laws, where law plays the role of guardian and protector. As critical race theory explains, it is hard to seek protection in the laws when you hail from a community where overpolicing and police brutality are the fabric of daily life. Kimberlé Crenshaw orients readers to these issues in Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color. As she explains, immigrants and racial minorities who are survivors of domestic violence oftentimes (credibly) fear that availing state assistance will attract undesirable forms of state surveillance to their communities— jeopardizing   immigration statuses, for example,  fueling the fever-pace of arrests and incarceration— perpetuating marginalization and subordination in their home communities.

Hate crimes legislation is a unique flash point for these tensions: by using sentence enhancements as its means of condemning violence that targets racial and sexual minorities, hate crime laws strengthen the U.S. system of corrections despite its myriad flaws— e.g. disparate policing, prosecution and sentencing, the privatization and monetization of prisons, and the political disenfranchisement and social ostracization of those persons with time served.

Because of its failure to reckon with the flaws of the criminal justice system, hate crimes legislation often attracts vociferous criticism from those it is designed to protect. In recent years, I have been one such critic: well-briefed on the sociology of criminal justice, so to speak, I left my first-year Criminal Law course with serious doubts that rehabilitation, deterrence and retributivism justified our imprecise system of crime and punishment.

Yet, watching those three, anguished minutes of video brought about a reckoning of a more personal sort— and suddenly I found myself taking solace in the notion that hate crimes law are an expressive, normative force. This fourth justification for criminal law— what I would call a Lockean theory of the law— is one that law school textbooks largely neglect. Under this so-called Lockean view of criminal law, law can be viewed as an expression of community values— forming the basis of a social contract to which we all belong — not due to coercion, but by being members of a democratic polity.

If one accepts that law can serve as an expression of community values, being named in the law, in the case of hate crimes legislation, serves an objective quite apart from administering a system of penalties and punishments. Rather, when the law takes cognizance of people like Jack Price, Lateisha Green & Angela Zapata, it communicates, as the video surveillance footage manages all too well, that a breach of the social contract occurs when violence is breathlessly directed toward racial and sexual minorities, based solely on the fact that they are different.

After much gossip, hand-ringing, internecine scuffles and turf kick-up, the White House has announced that Luis de Baca will be appointed to head up the State Department’s Trafficking In Persons (TIP) Office.  The TIP Office coordinates policy out of the State Department on the Traffic in Persons and, perhaps most importantly, must issue an annual Report in which it assesses the efforts that foreign governments are making to combat severe forms of trafficking, and in which countries are ranked in tiers based upon the TIP Office’s assessment of their commitment to and success in combating human trafficking.   The Bush Administration had used the TIP Office and the annual TIP Report to advance a highly contested policy of forcing foreign governments and NGOs  to adopt laws criminalizing sex work on the flawed hypothesis that prostitution “causes” sex trafficking.  See previous post discussing this problem.

de Baca’s appointment is very good news.  Mr. de Baca, a lawyer who has worked as legislative counsel for the House Judiciary Committee and in the Justice Department as chief counsel of Civil Rights Division’s Human Trafficking Prosecution Unit is a smart, experienced and effective choice for the job.   He has worked for years on this issue and is very-well respected in criminal justice and advocates’ circles alike for his approach to this difficult problem.  He was one of the lead DOJ attorneys who successfully prosecuted Kil Soo Lee, the former owner of an American Samoa garment factory, who was sentenced to 40 years in prison for his role in illegally confining and using as forced labor over 200 Vietnamese and Chinese garment workers.

de Baca, as evidenced by this presentation available on the web, takes a complex and nuanced view of the injustice of trafficking.  He is not liable to over-determine the work of the TIP office with trafficking that is sexual in nature, recognizing that the trafficking of persons into sex work is a part, albeit an important part, but a part of the vast range of work-sectors into which people are illegally trafficked – including agricultural, domestic (meaning work in homes as nannies, maids and servants), factory, restaurant and other work that is exploitive but not necessarily sexual in nature.  So too, de Baca has acknowledged a need for law enforcement officials to work closely with NGOs to create support and exit for trafficked persons that does not over-rely on raids as the principal means by which people who have been trafficked can be “rescued” by law enforcement officials, or worse, get swept up in raids that result in their datainment and deportation along with other undocumented people.  We’ve blogged about this previously.

Perhaps most importantly, de Baca appreciates the importance of a harm reduction approach to the problem of trafficking that prioritizes the needs, risks, complexities of the trafficked person rather than that of law enforcement or anti-sex evangelists.

- Katherine Franke

In 1995 Lani Guinier, Michelle Fine, Jane Balin, Ann Bartow & Deborah Lee Batchel published a study of the gender-based bias and stratification of the law school experience at Penn Law School.  Becoming Gentlemen: Women’s Experience at One Ivy League Law School, 143 U. Pa. L. Rev. 1 (1995).    I often mention this article in my teaching, urging students to reflect on the role of gender not only in the law but in their legal education.  When I referred this spring in my 1L class to the findings of Becoming Gentlemen, one of the students pushed back, saying that the insights of Guinier et al.’s work may no longer hold true, or at least doesn’t hold true at Columbia.  I asked her if she’d be willing to write something about why, and here it is – Katherine Franke

Unlike the accounts described in Becoming Gentlemen, my own experience as a woman in Law School has been positive, in the sense that I have never felt prejudice or experienced a barrier because of my gender. I have never been called a “lesbian” or “feminazi dyke” because I expressed my opinion in class. Nor  have I ever been berated by a professor. I have also never thought my chances for academic or workplace success were limited because of my gender (In fact, women at Columbia have earned some of the highest markers of academic excellence, such as Editor in Chief of the Law Review and finalists in the Stone Moot Court competition).

Gender is so far in the background, such a “non-issue,” that questions of gender are not really discussed or thought of amongst my peers. As one friend remarked, “When I discuss gender stereotypes, domestic violence, or rape, I feel like alot of people don’t get it and don’t really care to.” I am one of those people. Without the efforts of friends such as the one above, I would likely forget that my life could have a gendered dimension because it is not part of my daily experience.

While I had a hard time relating to the experiences of the surveyed women, what most confused me was the way minorities were simply “lumped in” with their respective gender and the nuances of their individual experiences were ignored. The piece initially left the impression that minority women were most readily singled out because of their gender. Meanwhile, it portrayed minority men as heavy participants in gender discrimination and equal beneficiaries of the “good old boy” network.

In my own experience, the opposite is true. There is far greater discrimination and informal barriers to success because of race than gender. For example, there are few (2, that I know of) Hispanic professors at Columbia and they do not teach 1Ls. There are no cases in Con Law which describe the significant contributions towards the development of Civil Rights law by Latinos. In Crim Law, Latino is the assumed race of drug dealers.

Latino 1Ls have informally agreed to support one another in the classroom. We have formed groups and blogs to educate ourselves about issues (such as Critical Race Theory, Immigration, famous Latino cases and important Latino legal organizations) which are mostly ignored by the curriculum and faculty. We acutely feel the pressure to “represent” our community in the classroom and (someday) in the courtroom. Most importantly, we all, male and female, have felt the need to come together as a support group in a (sometimes openly) hostile environment.

A close reading reveals, however, that minority men and women in the study expressed similar views and had similar experiences 20 years ago. In the footnotes, Black/Latino men and women both expressed similar desires to “help their community” and to “represent their people.”

There was not a single example given of a Latina or African-American woman who showed a strong identity with white women on the issue of gender in the school. Rather, their statements closely mirror those of the minority men. This correlation makes it difficult to say that the experience of law school was simply “gendered”. Rather, it appears that it was more of “white male” vs. everyone else.

What is disturbing to me, however, is that these problems of race were present 20 years ago and, unlike the issues facing white women, have not been sufficiently addressed. Surveys which exclusively focus on the “gendered” experience, at the expense of race, only add to this problem because they allow a false sense of “mission accomplished.” Under the rubric offered in Becoming Gentlemen, as long as white women’s experiences improve, then both minority men and women can be “left behind”; their needs and issues delegitmatized and unaddressed.

I understand that this may place a difficult standard on researchers who seek to focus only on one variable or who are most interested in the gendered experience. But the fact that things have changed so little for many minority students, including minority women, while they have changed so dramatically for white women is something that should not be accepted by researchers interested in gender. I hope these researches are aware of the way their observations on gender and race can influence policies and perceptions, and I challenge them to confront the nuances that race adds to the experience of gender.

Priscilla Orta

On Friday, the Gender and Sexuality Law Program held its inaugural symposium, this year honoring  the work of Professor Martha Nussbaum.  Nine scholars submitted papers providing insights on  Professor Nussbaum’s scholarship, points of departure for her theories, and novel applications of her  theories to many different contexts.  Dean Schizer introduced Professor Nussbaum before her keynote  speech at the end of the day, and Professor Nussbaum gave a summary of her scholarship and ideas, and thoughtfully responded to each paper.

The diversity and creativity of scholarship and thought that came out of the symposium was really remarkable.  We covered everything from Nussbaum’s capabilities approach as applied to women’s movements (Amrita Basu), the possibility of a collective capabilities approach to women’s empowerment in Africa (Aili Tripp), and the relationship of the state to the capabilities approach (Tracy Higgins), to the application of Nussbaum’s work to the same-sex marriage debate, the LGBT community, and its relationship with science (Nancy Levit), and whether the state should be in the business of regulating marriage in the first place (Janet Jakobsen).  Nussbaum’s capabilities approach was applied to global economic systems (Saskia Sassen) and stretched from its universality to its flexibility in encouraging people of opposite viewpoints to sympathize with one another (Carlos Ball).  We learned of a historian’s perspective on Nussbaum’s reliance on the history of relationships to support her arguments about same-sex marriage (Alice Kessler-Harris), and tough questions were asked of how far the law should go in the forcing of certain types of relationships, and what emotions, aside from disgust and shame – and anger for that matter – might be appropriate for opponents of same-sex marriage (Mary Anne Case).  I fully admit, that’s not nearly the half of it; you can read all the papers in the Columbia Journal of Gender and Law’s forthcoming publication of them.

On a personal note: law school does not all too often provide the opportunity to stop learning about the law per se and actually examine its parameters and characteristics.  That the emotions of shame and disgust might problematically inform how the law is shaped, or the notion that all human beings are entitled to a range of fundamental capabilities, are concepts that add a huge depth to legal study.  This conference was a great moment to pause and consider, and I hope everyone at the end of the day felt similarly enriched.

Jeannie Chung

Jeannie Chung is a second-year law student and research assistant for the Gender and Sexuality Law Program.

From Columbia Law School Professor Patricia Williams, via The Nation

For some years now, the biotechnology of fertility enhancement has been exalted as God’s gift to the biblically barren. A relentless narrative of entitlement intertwined with prayerfulness has framed infertility as a tragedy, an oppression, an agony, a disease. Some have proclaimed a “right” to a “natural,” biologically related child, a child “like me.” Unusually large Middle American families–some with up to eighteen children–are offered movie deals and television programs.

Against the backdrop of a cold, impersonal and lonely world, these well-feathered and overly populated nests look villagey and warm. It’s an undeniably seductive vision, even if other options like adoption and fostering are almost never mentioned. Also less discussed are the side effects of this mad race for biological generation at all costs: the likelihood of multiple births, low birth weight and birth defects; the ethics of using poorer women as fetal hatcheries; the health risks to young women who have their “Ivy League” eggs extracted for handsome sums of cash.

There are loads of good reasons to think about regulating these medical procedures; we should have come up with something other than a “free market” for them years ago. But now, with the birth of Nadya Suleman’s octuplets in Bellflower, California, we are confronting a perfect storm of eugenic outcry. With a plunging economy, all the well-rehearsed elements of the “undeserving” welfare queen are lined up: Suleman is single, disabled, unemployed, on food stamps and has six other children under the age of 8, one of whom is reportedly autistic. She lives in a matchbox-size house with her resentful parents, who think she’s insane. Toss in that funny, foreign-sounding name–which turns out to be, gasp, Iraqi!–and the backlash is in full swing.

No doubt Suleman has emotional problems. But rather than caring about her mental health, much of the media are content to pillory her as a drain on the public dole–selfish, frivolous, calculating and cruel. No Brangelina-style accolades of “God Bless ‘Em” in People magazine. Just impassioned calls to cut off her remaining sources of income and to criminally prosecute the doctor who fertilized her. The Atlanta Journal-Constitution even ran an op-ed calling for the government to appoint a legal advocate for every child born to an unmarried woman, since the “lack of a father’s guidance” must be “a major cause of [children's] suffering.” Furthermore, in the case of Suleman’s children, “the legal advocate would file suit against the fertility clinic or a physician who knowingly contributed to their abuse–life in a multiple-child household headed by a single woman.”

Nadya Suleman’s saga, in other words, has highlighted a deep cognitive dissonance about whether children are “assets” or eternal expenditure, divine joy or devilish curse in a time of dwindling planetary resources. When I first heard of Suleman, my immediate thought was of Andrea and Rusty Yates–married, fundamentalist Christian believers in that ubiquitous story line about going forth and multiplying no matter what. After caring for and home-schooling five very young children with no assistance but prayer, and with accumulating signs of postpartum psychosis, Andrea Yates woke up one morning and drowned all her children with quiet efficiency.

And so the specter of psychotic breakdown haunts me when I think of the Suleman abode: one autistic child, plus 2-year-old twins, plus four other kids ages 3 to 7, plus eight newborns ranging from one to three pounds, plus a grandfather who has gone back to Iraq to earn more money for the family, plus a grandmother furious at the medical professionals who “assisted” her daughter, plus a surreally chipper Nadya, who despite the miserable odds remains enrolled as a graduate student in, of all things, pediatric counseling. This situation is undeniably sheer madness, but the public discussion seems fixated on the question of whether she can “afford” so many kids, as though if she was rich, this would be sane.

This past fall The New York Times Magazine ran a cover story by Alex Kuczynski, fashion writer and self-confessed “cosmetic surgery addict.” Her wish to have a child was framed by fierce determinism, the “natural outgrowth” of marriage to her husband–without whom she “would skip the child.” Kuczynski is married to a man whose “sperm had a track record”–six other children by two prior wives. She, the third bride and twenty years her husband’s junior, described herself as engaged in nothing less than a “battle for my fertility”; having a biological child was “necessary,” a “mad desire,” a “compulsion” and “proof” of the marital bond, without which she faced “wrecked hopes” and an “abyss of grief.” Indeed, to die “without having created a life is to die two deaths: the death of yourself and the death of the immense opportunity that is a child.” When she thinks she’s pregnant, she feels a “shiver of victorious accomplishment…. my own fecundity triumphant.” When she tells people she’s not, she feels “barren, decrepit, desexualized,” “branded with a scarlet ‘I’ for ‘Infertile,’” “the dried-up crone with a uterus full of twigs.”

Just because Kuczynski is married and wealthy does not make her less obsessive or more profound than Suleman. Kuczynski sounds like a sad, silly child mooning over “fertile but fit” stars like Halle Berry, Nicole Kidman, Salma Hayek and “John Edwards’s sometime mistress,” who all had babies in their 40s. Likewise, Suleman takes heart looking at Angelina Jolie. Suleman and Kuczynski represent disturbing emotional extremes. But that should not excuse the rest of us from examining the oppressive competitive natality that seems to have gripped us–the fantasies of “baby bumps” and breeding, always breeding, yet more of “our kind.” Our culture’s antifeminist backlash and its unrealistic aspirations have bewitched Kuczynski and Suleman, these two young women who are so addled and so suggestible, so endowed and yet so impoverished. All these years after the age of “liberation,” perhaps it is time to revisit the myths we still concoct about childless women’s worth.

Many of Columbia’s peer schools have recently undertaken reforms in their grading systems.  Harvard and Stanford have moved in the direction of Yale’s system – three passing grades (1: Honors/High Pass, 2: Pass and 3: Restricted Credit/Low Pass) and then 4: No Credit/Fail.  Since hardly anyone fails in our law schools, this means that these schools have adopted a policy of three grades, unmodified by pluses or minuses.  NYU, by contrast, adjusted its curve upward capping the number of A (A+, A, A-) grades in a class at 31% and targeting only 6% for B- and below.  This is a higher curve than ours at Columbia (our first year grading curve caps A range grades at 24% and targets 10% for B- and below).  I won’t rehearse here the justifications for these reforms.  You can read more about them here and here and here.  Wikipedia has an overview.

Despite our peer schools’ recent efforts at grading reform, we have resisted moving in a similar direction.  We haven’t reached a final faculty decision on the issue, but we’ve devoted considerable thought to it and are to a large measure disinclined to follow the trend.  Why?

Well, there are a number of reasons why these reforms might be both well- and ill-advised.  But my hesitation stems from a concern for our students of color and women students.  Even with our current grading system (four passing letter grades with pluses and minuses) prospective employers rely heavily upon the formal and informal recommendations of faculty – especially faculty they know personally.  Whether applying for clerkships or jobs in private or public interest, judges and employers use grades as the initial filter in sifting through stacks of resumes, but when deciding which of the best students to interview, they typically turn to the recommendations of faculty.  This informal, largely old-boy network continues to disproportionately favor students who are white and male.  I’m not prepared to accuse my colleagues of intentional discrimination, indeed, it is often the case based on my own experience that the white male students are most comfortable extending themselves both inside and outside the classroom in ways that make them stand out.  Class background is no small factor here as well.   I get to know them and their thinking better than other students who are more reticent to seek me out, toot their own horns, offer to do research for me, etc.  I regard it as part of my job as a professor to create opportunities for a larger range of students to shine, but also to teach them all that part of success in this business is feeling comfortable putting yourself out there.

To the extent that we deemphasize grades in the ways that Stanford, Harvard and Yale have done, or lump more students into the top of the class as has done NYU, future employers will rely even more on the recommendations of faculty.  Many of us at Columbia have already been lobbied by judges and firm hiring committees not to follow the trend. (Interestingly enough, our students at Columbia may be favored by our retention of the old-fashioned grading system – it takes a lot less work to read a grade than it does to read a letter of recommendation and follow up with a phone call to get the recommender’s adjectival key (outstanding =A, excellent = B+, very good = B etc). Why the heck bother?.  I went to a law school that had no grades, but rather gave students written evaluations.  This system had many merits, but is impracticable at a school the size of Columbia – and employers HATED it.

Surely there are plenty of problems with grades – they are anything but scientific, we all agonize when we have to draw a line between the A- and the B+ grades.  The Columbia faculty is considering alternatives to the Yale, Stanford, Harvard model – perhaps making the first semester of the first year pass/fail, increasing the number of courses overall that students may take pass/fail, a lottery, or no grades at all (well, those last two we didn’t discuss, but I like them).

I don’t doubt that our colleagues at our peer schools thought about these concerns carefully and decided on balance that the reforms outweighed the costs.  I’m not there yet – there are so many ways in which law school structurally favors certain types of students’ learning styles, self-confidence, ways of being in the world, sense of belonging or entitlement to certain opportunities – I’m not ready to heap on another significant and largely inchoate measure of success that will inevitably, I’m afraid, reward the students who are already operating with the benefit of substantial tailwinds.

- Katherine Franke

Yesterday, the Gender and Sexuality Law Program kicked off its spring 2009 colloquium with the presentation and discussion of Professor Anna Marie Smith’s paper entitled “Reproductive Technology, Family Law, and the Post-welfare State: The California Same-Sex Parents’ Rights ‘Victories’ of 2005.“ Professor Smith’s article touches on several facets of parental rights and its intersection with political theory, the law, and same-sex relationships; however, we spent the bulk of the time discussing Smith’s illumination of some of the “unintended consequences” of the National Center for Lesbian Rights (NCLR)’s participation as amici in the Elisa B. case, and the impact those consequences might have on poverty law, family law, and LGBT and single mothers’ parental rights more broadly.

Here are the facts: In California, two lesbian women (Elisa and Emily) in a relationship each bore children via donor insemination. During this time, the women agreed that Emily would be the “stay at home” mother, and Elisa would be the family “breadwinner.” The two women separated after having three children (Elisa moved away, taking her child, while Emily stayed in California with twins); Elisa initially continued financially supporting the children, but after some time, stopped. Emily subsequently applied for California’s public assistance benefit for single mothers of “needy families,” otherwise known as TANF. TANF requires its beneficiaries to initiate proceedings with the state to identify absent second parents of their children to assist in the collection of support payments from him or her. Emily was the absent second parent, so the state went after her for child support, and NCLR filed amicus briefs on behalf of the state. When California won, and Elisa B. was required to pay child support to Emily under TANF, the decision was hailed as a victory for LGBT families everywhere.

Here’s the problem: The state of California brought this case against Elisa B, not Emily. Why? Because TANF requires its recipients to initiate proceedings to identify and go after their ex-partners for child support. This poses a particularly dangerous dilemma for recipients who have experienced domestic violence: get the benefits, or risk the repercussions of opening up contact with the partners who abused them. In fact, Smith points out that indeed, all TANF recipients are robbed of their autonomy to decide whether to contact their former partners at all, or at least, on their own terms, and not via the state.  

Sudhir Venkatesh, a sociologist and Director of the Center for Urban Research and Policy at Columbia University, gave insightful commentary, noting the social and cultural assumptions that all those involved in the litigation process inevitably make in the process of advancing case law. He also brought up the question of decision-making: when TANF recipients are faced with the difficult choice of whether to contact the child support payer in order to receive benefits, what goes into that decision-making process, and are there other ways to negotiate relationships with child support payers?

Other interesting points raised: (1) what about “vertical” family relationships, that is, parent-child relationships, and how does autonomy play into that relationship?  What if there is a conflict between protecting the autonomy of the “horizontal” family relationship to the detriment of the parent-child relationship? (2) Is there a legal consciousness story to be told here, one that centers on affirmative rights to a relationship between the social mother and child versus the responsibilities to which a social mother must adhere vis-a-vis her child after the relationship ends? and (3) To what extent are these cases about redistribution of benefits from one LGBT parent to another, or about recognition of a status relationship between the two?

Jeannie Chung

Jeannie Chung is a second-year law student and research assistant for the Gender and Sexuality Law Program.

From Columbia Law School Professor Patricia Williams, via The Nation

Millions of people are expected to descend on the nation’s capital for the inauguration of Barack Obama. It is unprecedented: churches, temples, mosques and tribal councils have hired buses to attend. Schools are closing for the day. Universities are setting up JumboTrons to watch the festivities. Global media will join the dancing in the streets.

A friend recently asked me if I thought all these constituencies were celebrating the same things. Did I think this coronation-scaled civic bliss was mostly about Obama’s being our first African-American president? Or was it because his win convinces us that some “post-race” American Dream has been ultimately affirmed? That he’s going to improve the economy? Repair global relations?

The question made me reflect for a moment. Yes, the symbolism of his race is significant, although it certainly cannot be equated with the end of racism. And surely we’re uplifted by Obama’s being so genuinely likable and smart. No doubt the euphoria is also unusually great because his campaign drew constituents into political engagement–the phone banks, the door-to-door canvassing, the social networks, mass e-mails and text messages. As a result, people feel personal, even possessive, satisfaction about his victory.

But at least as important as all that, I think, is a kind of Wizard of Oz-ish fizzy relief about George W. Bush’s exit–as in Ding Dong, the Wicked Warlock is melting into a nice little past-tense puddle. There’s a giddily celebratory sweeping out of the indubitably, absolutely, completely, very worst president in our history. So many bad things have happened in the past eight years that it’s hard to keep them all in one’s head at one time. Another friend says he hung a list in the hallway of his apartment building, tabulating all the really awful things he blames Bush for. Other neighbors added to it. At first, he said, he was going to use it to host an inauguration party at which people would knock back a shot for each phenomenally inept executive flub. But then, he says, “I realized we’d all be drunk for a year.”

In any event, it’s a great list; the sheer length of it reminds one how dizzyingly mismanaged the executive office has been. Here are a few of the highlights, to get you in the mood of groveling gratitude for the new course we are about to embark upon:

Pax Americana and the aspiration to consolidate a global American empire. The Bush Doctrine of pre-emptive warfare. Hurricane Katrina and “heckuva job, Brownie.” The explicit rejection of the Geneva Conventions. John Yoo’s and Alberto Gonzales’s redefinition of torture. Paul Wolfowitz as head of the World Bank subsidizing his girlfriend. Ahmad Chalabi. The FCC allowing greater consolidation of media. The outing of Valerie Plame. The manipulations asserting that there were weapons of mass destruction in Iraq. The addled handling of Harriet Miers’s nomination to the Supreme Court. Opposition to stem cell research. The looting of the National Museum of Iraq, and the burning of Baghdad’s National Library. Donald Rumsfeld’s remarks that rioting in Iraq was the sign of a liberated people and that Iraq was no more violent than some American cities. Stacking the Civil Rights Commission with conservatives, like Abigail Thernstrom, who want to overturn sections of the Voting Rights Act. The shooting death of Italian intelligence officer Nicola Calipari and injury of journalist Giuliana Sgrena at the hands of American soldiers. The appointment of ultraconservatives John Roberts and Samuel Alito to the Supreme Court. Cheney filling his friend with birdshot. The USA Patriot Act. Doing away with habeas corpus. The National Security Agency’s warrantless wiretapping of citizens’ phone calls and e-mails. The notion of an unchecked, unaccountable “unitary executive.” The failure to keep official numbers of dead Iraqi civilians. The forbidding of photographs, or even visibility, of American military dead. The multilayered, high-level lying about how football hero Pat Tillman was killed in Afghanistan. Halliburton taking kickbacks from Kuwaiti oil suppliers. Paul Bremer dispensing billions of dollars for contracts in Iraq, which disappeared, never to be accounted for or recovered. Blackwater mercenaries accused of murdering Iraqi civilians. “Military tribunals” established outside the military justice system, with no due process or right to an attorney or to cross-examination or even to know the charges. The silly disparagement of the national anthem sung in Spanish. Bush talking directly to God. Abu Ghraib. Profiling Arab, Muslim and Latino immigrants. Guantánamo. Extraordinary rendition. Lousy veterans’ benefits. Lousy veterans’ hospitals. The failure to provide soldiers with reinforced armored vehicles (”You go to war with the army you have,” explained Rumsfeld). The refusal to recognize post-traumatic stress disorder as a legitimate condition. Monica Goodling’s political litmus tests in hiring for nonpolitical posts in the Justice Department. Expelling Helen Thomas from the White House press room and putting in fake reporter “Jeff Gannon” to throw adoring softball questions. John Ashcroft’s draping of bare-breasted sculptures in the Justice Department. His subpoenas of more than 2,500 records of abortions performed at public hospitals. Gonzales firing US Attorneys around the country for political reasons. Oh, and did I forget the economy?

This is only a short list–it doesn’t even touch on the things we were spared but that might have happened: Bush’s (failed) nomination of Bernard Kerik to head Homeland Security; the privatization of Social Security; the elevation of Alberto Gonzales and Robert Bork to the Supreme Court; a constitutional amendment banning gay marriage.

“Honestly,” says my friend, “who needs booze? Just reading the list, you could get drunk and have a killer hangover.” I do suppose we’ll all sober up after inauguration day. But I’m going to sneak a look at the list every now and then, just to make sure I don’t take anything for granted. However challenging the future we face, an Obama administration represents real change.

Khiara Bridges is the Center for Reproductive Rights/Columbia Law School fellow at Columbia Law School who has just completed her PhD in Columbia’s Anthropology Department studying the intersection of race, poverty, and gender through the experience of women in an obstetrics clinic in a New York City public hospital.  She blogged earlier on the racial implications of surrogacy and now offers the following reaction to a recent article in the New York Times on Dominican women’s “self-help” abortions:

For Privacy’s Sake: Taking Risks to End Pregnancy, an article that was published last weekend in the New York Times, reports on the use of misoprostol by Dominican women within New York City to self-induce abortions. Misoprostol is a prescription drug that was approved by the Food and Drug Administration to reduce gastric ulcers; however, the article reports that many Dominican women have purchased the drug, sans prescription, from local pharmacies and have used it to terminate unwanted pregnancies in their homes, without oversight from medical institutions and personnel. The article also reports on a study documenting Dominican women’s use of other “extra-medical” methods to abort pregnancies—such as “mixing malted beverages with aspirin, salt or nutmeg; throwing themselves down stairs or having people punch them in the stomach; and drinking teas of avocado leaf, pine wood, oak bark and mamon fruit peel. Interviews with several community leaders and individual women in Washington Heights echoed the findings, and revealed even more unconventional methods like ‘juice de jeans,’ a noxious brew made by boiling denim hems.”

Interestingly, the article argues that Dominican “culture” explains why many Dominican women do not look to medical institutions when seeking to terminate their pregnancies. The author argues that women from “fervently anti-abortion cultures” may use such methods to induce abortions “despite the widespread availability of safe, legal and inexpensive abortions in clinics and hospitals.”

In this way, the article exemplifies the dangers of “culture” as an explanatory concept. Although there are several other processes at work that do much to explain Dominican women’s off-label use of misoprostol to self-induce abortions, “culture” emerges for the author as that which explains the phenomenon most convincingly. The myriad of other, more compelling reasons as to why Dominican women avoid the medical establishment when terminating their pregnancies is discussed only after the author cites an obstetrician who offers that “‘[t]his is not just a culture of self-inducted abortion…. This is a culture of going to the pharmacy and getting the medicine you need.’” Coming second to “culture” is the fact that those residing in the country without documentation may distrust any institution, medical or otherwise, with the power to reveal their immigration status to officials. Less important than “culture” is the possibility that inducing one’s own abortion may allow women greater control over the meanings that they will attach to the event. Inferior to “culture” is the fact that for women who live in poverty and without access to health insurance, the “safe, legal” abortions that can be procured in clinics and hospitals are far from “inexpensive.” All of these explanations are derivative; “culture” is primary.

The article demonstrates the tendency, observed by progressive anthropologists and others, whereby racial and ethnic minorities, as well as others disempowered by reason of nation, class, religion, etc., are thought to have “culture.” Meanwhile, “culture” tends not to explain actions taken by those with power—i.e., “white males,” “the U.S.,” “the West”; indeed, such actors are thought to be free from “culture.” Last of the Old Guard: Abortion Providers Retire in the West, Leaving Their Posts Empty, published on July 30, 2008 in The Planet Jackson Online, helps to illustrate this tendency by offering an instructive counterpoint to For Privacy’s Sake. Last of the Old Guard tells the story of a woman living in South Dakota who resorted to inducing her own abortion because she could not afford to procure a “safe, legal and inexpensive abortion” in a clinic or hospital: “By her estimates, getting to Sioux Falls—some 300 miles away—for a ‘doctor abortion’ would have cost her $660, including $100 for gas, $60 for a hotel and $500 for the procedure itself. She would have needed a car, which she didn’t have, and two days off of work to wait out the state-mandated, 24-hour waiting period. Time and money were resources she simply had no access to.” As a result, she chose to “drink her pregnancy to death” by imbibing as much whiskey as she could on one snowy night. She reports, “‘I nearly drank me dead, too. I had to find that balance between it dying and me dying, you know?’” Nowhere in the article is “culture” offered to explain the dearth of abortion providers in the Midwest, this individual woman’s decision to self-induce an abortion, or medical students’ decisions to refuse to learn how to provide abortion services. Such phenomena— occurring within a wealthy, powerful nation to racially- and ethnically-nondescript “Americans”—are explained in terms of politics or individuals’ personally-held beliefs. The U.S. and the actors within are rendered free from “culture.” Yet, a young Dominican woman’s decision to “bring her period down” by taking several misoprostol pills is accounted for in terms of her “culture.”

For Privacy’s Sake reminds us that ostensibly neutral terms, like “culture,” may serve to marginalize the disempowered while naturalizing those who have historically occupied positions of power.