on hearing

“To have pain is to have certainty; to hear about pain is to have doubt.” — Elaine Scarry


That’s a nine-minute video made by UCLA Law School’s Black Law Students Association about what it’s like to be part of a severely underrepresented racial minority at the Law School. It’s a very moving video, and it’s worth your time to watch the whole thing, but here are some excerpts:

“It’s a constant burden . . . . I’m constantly policing myself, just being aware of what I say and how it can be interpreted because I essentially am the representation of the black community.”

“It feels like there’s a lot of pressure on me to do well. Which I don’t necessarily mind, but it’s just — it’s hard.”

“I get here, and I’m one of three black students in my section, and I’m told that that’s ‘impressive.'”

“It feels isolating. It feels horrible. It feels like there is a lot of pressure, a lot of weight. It feels like I don’t belong.”

“I feel my classmates’ eyes on me. Particularly if we’re discussing something that brings race . . . into play.”

“At one point in the semester I really felt like people just stopped listening to me, because I kind of got written off as a little too aggressive, a little too mouthy. And I felt like the fact that I was a black woman played a lot into why people stopped listening to me. I felt like if there were maybe more black women in the class, maybe just five of us, people could have seen more of a variation in our responses to what was going on in class . . . . Maybe I could have not been the ‘angry black woman’ — but I maybe would have been the ‘kind-of-moderately-angry black woman,’ and then [if] we had a ‘nice black woman’ . . . . [laughs]”


All of that is just the everyday background condition of being a member of an underrepresented and traditionally-excluded minority in the law school. The students who made that video are trying to draw attention to painful mental burden that comes with being simultaneously isolated and highly visible — a mental burden that carries real costs in a high-stakes, winner-takes-all environment like law school where you need 100% of your mental energy to be focused on the tasks at hand. Carrying this burden may make a student afraid to speak up (and many classes include participation in the grading), afraid to approach the professor to ask questions (for fear of looking stupid and confirming people’s stereotypes), or simply preoccupied and less able to focus.

This is not the case across the board, of course — some minority students may, by personality, be less susceptible to these burdens than others. And many are so gifted or so driven that they will continue to perform at a very high level no matter what additional burden is placed on them. But the combination of ugly, lingering stereotypes and extremely limited black, Latino, and Native American enrollment puts additional pressures on those students that white students simply do not have to deal with.


So these students made a video — a video that’s been getting some play at media outlets like Colorlines and The Huffington Post. And they held a small awareness event in the law school courtyard, where, again, students from various minority groups discussed the difficulties they faced in the law school. This included a few candid expressions of the feeling that some of their white classmates were hostile to them.

Since then, there’s been some backlash, including acrimonious Facebook exchanges, personal confrontation, and, most disturbingly, an anonymous note left in one student’s mailbox telling that student to “stop being a sensitive nigger.”

Don’t be distracted by the word “nigger” there. That’s what finally got the administration’s attention after a long series of more ambiguous, but nonetheless racially charged, incidents on campus, about which more in a moment. But “nigger” is just a bit of subtle misdirection. Because the word in that note that’s really designed to hurt, that really does the damage in a post-Archie Bunker world, is not “nigger,” but “sensitive.”

Stop. Being. So. Sensitive. It’s the great conversation-ender. It’s the ultimate way to keep people from telling you about their experience, because it frames that experience as a character flaw on the part of the speaker — and one she needs to correct, pronto. Nothing happened to you that doesn’t happen to everyone else. Your experience is utterly typical. But everyone else is dealing with it like an adult. And there you are. Being sensitive. So just cut that out, and everybody will be fine.


A couple of weeks ago, Eric and I had a debate in comments about the whole recently-reignited Woody Allen fiasco, and how you maintain legally-appropriate skepticism about fragile human memory while still hearing the person who is telling you about her subjective experience of sexual assault. Eric’s answer, basically, was “shut up and listen”:

[M]y experience is that telling someone, “That isn’t what happened to you,” is almost always the dead-wrong approach. Sometimes it’s inevitable and there’s no way around it. But generally a better approach is a sympathetic agnosticism, if you can manage it. Because some of the craziest stories you ever heard turn out to be true, and some of the most plausible explanations you ever heard turn out to be flat-out, knowing deceptions. And at the starting point of any knowledge, you probably have no inkling.

And he helpfully provided a list of possible responses to someone’s narrative about their own pain:

[Nothing. You listen with your ears, not your mouth, as some wise prophet once said.]

“And then what happened?”

“Are you okay?”

“Have you thought about what to do next?”

“Tell me how I can help?”

[Where appropriate, and when it’s appropriate it might be best:] “I love you.”

It’s obviously important to take extra care with victims — especially child victims — of sexual assault (or even, as is sometimes claimed of Dylan Farrow, someone who believes they’ve been assaulted). But the same principle really applies much more broadly. Whenever someone is in pain, and wants to tell you about their pain, the best position you can possibly adopt at the outset is to listen quietly, reserving judgment.


There’s some fair room for debate, I suppose, about whether people are “too sensitive” about race. Clarence Thomas thinks maybe we are. Jamelle Bouie responds that increased sensitivity might be a positive sign of our development as a society:

Let’s say that Americans are more sensitive about race (and gender, and sexuality) than they were in the 1960s. This is a good thing. If blacks in Jim Crow Georgia were willing to answer to “boy” and shrug at “nigger,” it’s because they risked danger with any other reaction.

But that’s changed. We’ve advanced. And now blacks, as well as other minorities and women, feel entitled to public respect in a way that wasn’t true in the 1960s.

I agree with Bouie. But also, here’s a line from Justice Thomas’s speech:

Every person in this room has endured a slight. Every person. Somebody has said something that has hurt their feelings or did something to them — left them out.

Undoubtedly true. So what? If people have been slighted and hurt, let’s hear their story. If they’ve been marginalized by law or by our society’s inherited attitudes or social structures, let’s hear their story. If something ambiguous happened to them, let’s hear their story. What does that cost? You are not required, when you genuinely and compassionately listen to someone’s experience, to adopt any particular policy or philosophy. You’re only required to be a witness. And someone, in turn, will be a witness for you.


Recently, someone introduced me to the idea of “hard” and “soft” emotions — the idea that often the outer thing we’re expressing, the “hard” emotion, is covering a more primal feeling underneath. Hard emotions are often framed in terms of anger, and often they fit into an intellectual framework, especially one having to do with principles of justice. Soft emotions, on the other hand, are the pre-rational feelings of pain that we experience when we’re deprived of some basic human need, such as love or acceptance or safety.

I try, now, to keep this in mind when I’m arguing about politics with friends and relatives. An argument about something as abstract as taxation may be, at bottom, a hard emotion covering a very primal fear of economic insecurity. An argument about guns may, underneath, be about a feeling that one is or could be beset by danger. And an argument about race in America usually covers a whole gamut of soft emotions, from alienation, frustration, and disillusionment on the part of people of color to the feeling of many white people that their lives, too, are hard, and yet they will never be heard, because there is no language to talk about their pain.

Here’s an Ebony article in which a black woman explains to a white Facebook friend why she was “sensitive” about race after the Trayvon Martin verdict. In the comments, a white woman shows up to respond, raising her own painful and isolating experience in order to refute the uniqueness of the black experience of racism:

I was a white child that wished I was black growing up in a prodominetley black neighborhood hearing all my life that white people were liars, predjuidce and thieves… to say the least. I began to hate who I was because of ignorance, so yes this can happen to any child of any color . . . .

I have to worry about my brother and nephews being targeted as white males being attack in retaliation to the MARTIN case.. just go back to the Rodney King era .. where innocent white people were being pulled out of their cars for something they had nothing to do with other than being white . . . .

I am not sure but I think that I might have been rejected if I had tried to enroll in an all black college. I havent tried to enroll in one so I am not sure . . . .

I was called a white b**ch, a honkey, a prejudice white b**ch all because I didnt see some women waiting to be seated at a resturant I worked at.. I honestly did not see them.

To tell this person, who is clearly in a great deal of pain, about her white privilege or invisible backpacks, about the relative rareness of the Reginald Dennys of the world compared to the Oscar Grants and Renisha McBrides of the world, is both counterproductive and, I think, missing what she’s actually trying to tell you. She’s trying to tell you about the ways in which she’s been hurt.

But white people ought to candidly acknowledge that it is also missing the point to respond to a black person’s pain the way this woman did. Coming up with an example of that one time you were called “honky” in order to deny the uniqueness of the black person’s experience is also counterproductive and also failing to hear the person who’s trying to tell you about how they’ve been hurt.


This is not a liberal idea, thought up by some wispy-haired hippie dreamer. It’s a basic principle of dealing with other human beings.

Here’s Eugene Volokh, a conservative white man, talking to other conservative white men about listening to women:

OK, I get it: Life’s hard for men. I’m not being sarcastic; life’s hard for everyone, in various ways, and it’s in some ways especially hard for men, just as in other ways it’s especially hard for women.

And that means what? That the difficult choices and regrets that many women face don’t matter? That we as humans should ignore them — or ridicule them — because we feel that women are undervaluing the problems that men face . . . ?

More to the point, they are the problems of fellow humans, who like us have one life to live, who like us cannot turn back the clock, who like us have to make decisions and then take stock of how they went wrong. There’s a good deal to learn for us as humans by considering the problems, even the self-inflicted ones, of other humans. (Hence the value of much great literature.) And there’s very little to gain, I think, from treating reflections on these problems as if they were no more than just the latest item in an us vs. them confrontation.


The acrimony surrounding the “33” video, culminating in the anonymous note, was not the first racially-charged incident at UCLA Law. But previous incidents were often cloaked in ambiguity.

For example, last semester, a group of 1L’s in Professor Richard Sander’s property class made T-shirts for an intramural softball game against another section, and they chose to emblazon on those T-shirts a picture of Prof. Sander and the words “TEAM SANDER.”

To understand why that might be weird, you have to understand that Professor Sander does fairly controversial research on the effects of affirmative action in law school admissions. His basic thesis is that the pool of well-prepared minority students is not large enough to allow the best law schools to meet their affirmative action goals, and so those schools admit some minority students who are not as well prepared as their peers, which leads to worse outcomes for those students, including, ultimately, many of them not becoming practicing lawyers. “Large [racial] preferences,” writes Sander, “often place students in environments where they can neither learn nor compete effectively — even though these same students would thrive had they gone to less competitive but still quite good schools.”

Sander also claims that schools in states where affirmative action is outlawed are nonetheless still giving minority students preference in admissions on the sly: “[UCLA] engineered secret policies to violate Prop 209’s requirement that admissions be colorblind.” Indeed, he is currently suing the State Bar of California to gain access to data that he hopes will help him prove exactly that.

I’m not interested in a discussion of the merits of Sander’s work, or his character as a person. (Disclosure: Professor Sander was my 1L property teacher and kindly wrote me a recommendation letter.) What’s important for the purposes of this essay is his position as a kind of cultural Sorting Hat at UCLA itself. Black, Latino, and Native students tend to be aware of his work; most white students are oblivious. (I didn’t find out about his affirmative action arguments until long after I left his class.) For students of color, to be placed in Sander’s class can be a painful experience, because his arguments tend to suggest that he may think those students don’t actually belong at UCLA. And even if he doesn’t think that, being in his class can constantly remind them of the stereotypes about race and academic ability that still persist. Some students, understandably wanting to concentrate on their studies rather than on the situational hyper-salience of their racial identity, have asked to be transferred out of his class. But this tends to happen behind the scenes, and white students remain, for the most part, deeply unaware.

So the “TEAM SANDER” shirts, when they appeared around school, became a kind of racial polarizer — some students of color saw wearing them as an overt act of hostility, essentially a slap in the face. To be part of “Team Sander,” it seemed to them, was to in some way endorse Sander’s theory that the black, Latino, and Native students at UCLA didn’t really belong there.

For many white students, this seemed like a dramatic overreaction. Why is a softball T-shirt with your professor’s name on it — whatever the personal or professional opinions of that professor — an act of “racism”? To be sure, if any of the students had used the shirt as an intentional provocation, that would have been a nasty thing to do. But in the absence of any evidence that that was so, isn’t “racism” a harsh and unfair word to throw around?

And maybe it is. But I’d humbly suggest that, where possible, people should try to hear the pain behind what sounds like an accusation of personal animus.

Let’s say you step on someone’s toe. And the person, in pain and aggrieved, says “Hey! You stepped on my toe, goddammit!” In that moment, the person is telling you two things: (1) their body was hurt, and (2) you were the cause of that pain. It doesn’t imply any animus on your part. Indeed, it’s presumed (usually) that you’re acting in good faith, and not to cause harm. But that doesn’t make the harm less real.

There’s a sense in which much of what falls under the umbrella of “racism” is very much like that. A lot of racial injury isn’t intended in a mean or hurtful way; it’s just the thoughtless and accidental infliction of a harm that’s rooted in our common, but not commonly understood, cultural background. Many things that are racially salient for black people, for example, don’t seem as racially salient to white people.

Here, for example, is a tumblr of things people say to people of color (and others), and here is another tumblr of the experiences of black students at Harvard. Both tumblrs involve a surprising number of posts about things like hair — fawning over black women’s hair, touching their hair without asking, and so on. To the white hair-toucher, of course, this feels like friendly, inclusive behavior. I have no animus — I’m very comfortable with you! For the person whose hair is being touched, on the other hand, that familiarity may feel insulting — partly because hair is an area where black people (especially black women) are already subjected to a great deal of racially-inflected cultural pressure, and partly because much of the original purpose of racism in this country was to give white people permission to appropriate and interfere with black people’s bodies without their consent. Of course, it’s rude to touch anyone‘s body without their permission. But for black people in America, that touch can contain multitudes, and for white people, an unconscious cultural legacy of over-casualness with black friends may be muting normal social inhibitions about touching people’s bodies.

All this just goes to show that when we talk about “racism,” we may be talking about an intentional harm inflicted for reasons of racial animus, but we need not be. Plenty of other harms arise out of this simple mismatch of experiences between white people and people of color. That mismatch arises out of a social history driven by racial animus, but its effects don’t at all depend on anyone currently having racial animus. Yet because the word “racism” is so closely tied to overt hostility — and a socially discredited ideology — it can be hard to hear people talking about this other kind of harm without getting defensive. That’s especially true if one feels directly accused.

An additional wrinkle, of course, is that people of color often have no way of knowing whether there is or is not racial animus behind the act. Put it this way: if you lived in a world where people frequently stepped on your toe, and 3/4 of the time it was accidental and oafish, but 1/4 of the time it was intentional and cruel, you would basically have to be a saint not to occasionally lash out at the oafs.

Similarly, while we can all agree that wearing “Team Sander” T-shirts in order to deliberately hurt students of color would be a racist thing to do, it’s harder to hear that wearing the shirt with no knowledge of Sander’s work or philosophy has anything to do with racism. But people are telling you that they’ve been hurt. Hear what they’re telling you. You can hear them without admitting to being an ideological racist. You can even hear them without admitting that anything you did was wrong. Maybe you’ll hear about someone else’s pain and change your behavior. Maybe you’ll conclude that the person’s pain is real, but that you shouldn’t change your behavior. In some cases the hearing itself may even ameliorate a lot of the harm. But however it comes out, hearing is always a worthwhile first step.

(It’s worthwhile for future lawyers, in particular — the first step in advocacy is not to passionately defend a position, but to collect facts. Courts do not start with legal conclusions, but with a hearing.)

Hear, because it’s the right thing to do for your fellow human beings. Hear, to find out more about the world around you. And hear so that you can be heard in turn. Because Justice Thomas is right. Everyone has experienced some slight, some pain. That doesn’t make pain trivial. It make pain an opportunity for us to connect, and to help each other.


UPDATE: In addition to the excellent video above, here‘s an essay by my colleague Gregory Davis, describing his experiences as a black man in the law school. Short, punchy, and readable.

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  1. Pingback: rethinking the Zimmerman prosecution | The Handsome Camel

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