Sherrilyn A. Ifill

Eduardo Bonilla-Silva's book Racism Without Racists is an essential read for anyone trying to understand race in 21st-century America. But even Bonilla-Silva's thesis — that the American liberal embrace of "colorblindness" ignores the attitudes, policies and practices of institutional and unconscious racism that perpetuate racial inequality — could not have prepared us for what we see unfolding today. The wave of mass hysteria that's taken over the far right since the election of President Barack Obama has produced an even more pernicious phenomenon: the virtual eradication of a narrative of anti-black racism.

Neither Mel's Gibson's admonishment to his wife that her attire might result in rape by "a pack of n****ers"; nor Glenn Beck's decision to hold a conservative "answer" to Dr. Martin Luther King's "I Have a Dream" speech on the anniversary of the March on Washington; nor Dr. Laura Schlessinger's "n-word"-laced tirade against a black caller; nor the daily, deliberate and malicious character assassination of our president as those on the right depict him as a dangerous alien is regarded as evidence of racism. Each individual act or statement is stripped of context, common-sense interpretation and obvious intent. Anti-black racism has been relegated to a mere figment of the imaginations of blacks seeking to limit the "First Amendment right" of whites to speak their mind.

It's one thing to have to tolerate this "race through the looking glass" fable on cable TV, or even to hear it gain increasing currency in political discourse. But it's another thing entirely when these fantasies make their way into the courtroom and take on the stamp of law. And that's just what's happening in some Southern courts. In one case several years ago, the Louisiana Supreme Court found that it was not racial when a prosecutor compared a black defendant to O.J. Simpson because, the court said, the prosecutor never mentioned the race of either O.J. Simpson or the defendant. The Supreme Court reversed the Louisiana court.

Now there's last week's decision in Ash v. Tyson Foods. In an unpublished opinion, two judges on the 11th U.S. Circuit Court of Appeals, Edward Carnes and William Pryor Jr., reversed the findings of two successive Alabama juries who'd found in favor of a black plaintiff, John Hithon, who claimed that he was passed over for a promotion in favor of less qualified white candidates at a Tyson Foods plant in Gadsden, Ala. The jury found that the Tyson manager had discriminated and awarded Hithon back pay, $300,000 in compensatory damages and $1 million in punitive damages. The 11th Circuit wiped out the jury verdict.

Among the most shocking of the court's decisions was its determination that the white supervisor's reference to Hithon as "boy" carried no racial significance. Instead the use of this term by the white supervisor was, according to judges Carnes and Pryor, simply "ambiguous stray remarks." It's telling that the black employee's wife, who was with her husband on one of the occasions when his white supervisor called him "boy," immediately retorted, "He's not a boy; he's a man!"

In what world — in what Southern city — is it possible for two federal court judges — both sons of the South themselves — to be unaware of the racial significance of the well-known use of the term boy to de-masculinize black men? Even if the judges themselves purport to be unaware of the apparent racial connotation of the "boy" reference, how should we assess the judges' decision to supplant how two successive Alabama juries (not known for being particularly sympathetic to plaintiffs in employment-discrimination cases) saw the facts? Are these the umpire judges calling balls and strikes that U.S. Supreme Court Chief Justice John Roberts so sanguinely spoke of during his confirmation hearings?


The 11th Circuit's decision in the Ash case is a textbook example of why we need greater diversity on our nation's courts. Judicial decision making involves more than just a mechanical application of the law. Judges must also use judgment in applying law to the facts of a case. Judges from different backgrounds and experiences see the strike zone in different places. In fact, the third judge in the Ash case — a visiting judge from Ohio — dissented from the majority's decision to throw out the jury's findings. The 11th Circuit covers appeals from federal trial courts in Alabama, Florida and Georgia — all states with large black populations. But there has only ever been one black judge serving on the 11th Circuit at one time. No black woman has ever been appointed to this circuit.

It's hard to imagine that a black male or female judge in Alabama or Georgia could fail to understand why a white supervisor's reference to a black man at his workplace as "boy" is loaded with racial content. Moreover, judges Carnes and Pryor might themselves benefit from serving with black judges who might, as Thurgood Marshall did with his colleagues on the Supreme Court, provide the context, historical grounding and common-sense interpretation of race that would offer a dynamic counter-narrative to the strained analysis offered by white judges who prefer not to see racism when it's staring them in the face.


This is not the stuff of semantics and posturing about judicial appointments. Two successful jury verdicts have been wiped out for a black high school graduate who worked his way up the ranks, first hanging and then killing and deboning chickens to become superintendent on the night shift. His decision to challenge a system that denied him the opportunity to move up to the position of shift manager was a courageous one.

After his long 15-year litigation battle, this loss must be more than just dispiriting. The jurors whose deliberations and decisions were reversed in this case are also losers. But so are we all, if the reality of racism in the workplace is denied by judges who can't or won't see it and won't allow jurors who do see it to hold defendants accountable.


Sherrilyn A. Ifill is a professor of law at the University of Maryland and a regular contributor to The Root.

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