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New York City’s unpopular, but supposedly “effective” crime-reducing program, “Stop, Question, and Frisk” or (“Stop-and-Frisk” for short), was ruled unconstitutional on Tuesday. The program entails the following: “a police officer who reasonably suspects a person has committed, is committing, or is about to commit a felony or a Penal Law misdemeanor, stops and questions that person, and, if the officer reasonably suspects he or she is in danger of physical injury, frisks the person stopped for weapons.”
The judge, Shira A. Scheindlin of Federal District Court in Manhattan, ruled that NYC police officers were systematically stopping people with little cause for suspicion. (In this particular case, police officers were stopping individuals thought to be trespassing on a Bronx apartment complex property.) In reviewing police training, she further noted that this evidence “strengthens the conclusion that the N.Y.P.D.’s inaccurate training has taught officers the following lesson: Stop and question first, develop reasonable suspicion later.”
“Because any member of the public could conceivably find herself outside a TAP building in the Bronx, the public at large has a liberty and dignity interest in bringing an end to the practice of unconstitutional stops at issue in this case,” the judge wrote.
In a way, this is exactly what NYC major Michael Bloomberg and other advocates of the “stop-and-frisk” program call for. In exchange for the universal possibility of being stopped by a police officer, residents of NYC see a significant reduction in crime and gun possession. While there have been notable declines in the crime rate (but few seizures of guns), many have argued that this purported exchange is not enjoyed universally. Rather, an overwhelming majority of those stopped by police over the past two years were Black and Latino men. Judge Scheindlin took note of one role of race (and racism) in her decision:
As a person exits a building, the ruling said, “the police suddenly materialize, stop the person, demand identification, and question the person about where he or she is coming from and what he or she is doing.”
The decision continued: “Attempts at explanation are met with hostility; especially if the person is a young black man, he is frisked, which often involves an invasive search of his pockets; in some cases the officers then detain the person in a police van.”
Many civil rights and anti-racist activists have criticized the “stop-and-frisk” program due to the overrepresentation of men of color in police stops. Indeed, in practice, the program is a form of institutional discrimination — in this case, as disparate impact discrimination. That is, while the program does not target a particular disadvantaged group — men of color — by design, it does, in practice, disproportionately burden them.
Typically, disparate impact discrimination is deemed otherwise innocent in terms of intention or bias; these are merely programs or policies that have been unfair in practice. Yet “stop-and-frisk” actually operates as a legal door for racial profiling by both those unintentionally and those intentionally targeting Black and Latino men. Some say the racial and ethnic imbalance is merely a product of geography: greater surveillance of predominantly black and brown areas of the city (this, of course, is problematic, too!). In light of stories of being stopped many times in one’s life, others suggest the “stop-and-frisk” program legally allows police to use one’s blackness/brownness as suspect. “You’re Black/Latino, so you must be up to no good!”
Even if police stops were equally burdensome for every racial group (and police were evenly hostile to “suspicious” people), the experience of being stopped, questioned, and searched by police is fundamentally racialized. Given the history of racism, including racist violence and harassment by police or by others yet ignored by police, no white person can ever fully experience the feelings of anger, humiliation, and powerlessness that follow being targeted by police as a person of color.
Further, programs like this one, Arizona’s “show-me-your-papers” law that unfairly targets Latina/o people, among others are just the tip of the racist iceberg of the US criminal justice system. From interaction with the police, to arrest, to court, to prison, racial inequality exists at every step and every facet of law enforcement and criminal justice. Unfortunately, the narrow view of the law cannot handle the reality that racism shapes the core and operation of every social system and institution, including law enforcement.
Legalized Homophobia And Transphobia
It may have come as a surprise to some that lesbian, gay, bisexual, and transgender (LGBT) groups joined the chorus of anti-racist and civil rights organizations that rallied against the “stop-and-frisk” program. Beyond advocating for racial equality, these groups took issue with the disproportionate number of LGBT people of color who have been stopped by police. Often, young Black and Latino LGBT people are stopped as suspects for sexual crimes (e.g., public sex, sex work). In these stops, many are sexually harassed or assaulted by police.
Parallel to blackness and brownness as suspect, LGBT people are legally targeted through the “stop-and-frisk” program often because of their gender expression. LGBT people, especially transgender and gender non-conforming people, are deemed suspicious because their “appearance transgresses gender norms embraced by mainstream society.” It turns out that stops based on suspicion of sexual crimes has already been deemed illegal, again by the same judge:
In 2010, in a decision dripping with outrage, US District Judge Shira Scheindlin held New York City in contempt for failing to end enforcement of loitering laws held unconstitutional decades before. One of the laws at issue was the “loitering for sex” statute that Lambda Legal had succeeded in getting struck down in 1983 by New York’s highest court, shortly after it threw out the state’s sodomy law.
“The human toll, of course, has been borne by the tens of thousands of individuals who have, at once, had their constitutional rights violated and been swept into the penal system,” Scheindlin wrote. “More disturbing still, it appears that the laws — which target panhandling, remaining in a bus or train station, and ‘cruising’ for sex — have been enforced particularly against the poor and gay men.”
Missing The Complex Reality Of Discrimination Today
The above discussion points to the inability for the law, in its present state, to fully appreciate the complex reality of discrimination today. One challenge is to prove that a law or program — instances of institutional discrimination — disproportionately affect a particular group (without just cause). This sidesteps the matter of proving biased or prejudiced intentions, a matter central to cases of unfair treatment; however, the narrow view of the law fails to account for the systemic, wide-reaching influence of systems of oppression such as racism, homophobia, and transphobia. Indeed, it can be argued that discrimination within one institution (e.g., criminal justice) mutually reinforces discrimination in other systems (e.g., education). The true challenge, then, is proving when discrimination is not at play, at least indirectly.
The other important matter that is systematically overlooked is the simultaneous, interconnected operation of multiple systems of oppression. “Stop-and-frisk” reflects the practice of both racism and homophobia/transphobia by police and the criminal justice system. What, on the surface, appears to be a matter of racial inequality has turned out to disproportionately affect Black and Latina/o queer people. Another instance of legalized discrimination, the US military’s “Don’ Ask, Don’t Tell” policy, had its greatest effect on Black women. And, given the greater number of Black same-gender couples who have children, Black LGBT people hold a greater share of the burden created by laws that prohibit or hinder same-gender marriage and adoption.
Of course, greater attention should be paid to the reality that some people are victimized by multiple forms of discrimination (e.g., racist and sexist discrimination). Yet, discrimination cases that pursue such claims are ultimately less successful in court, probably because the court is unable to apprehend this level of complexity.
The days of explicit, unapologetic racist discrimination are (mostly) gone, and great progress has been made toward equality for LGBT people. Yet, the task remains to better understand prejudice and discrimination in the new millennium. There is a great deal of complexity to discrimination that we consistently miss when attending to the discriminatory actions of a few bigoted apples. We will never achieve full equality, whether in opportunities or outcomes, without an appropriately comprehensive understanding of what discrimination is, how it operates, and how to prevent it.
For one obvious reason, disadvantaged groups are often called “minorities” — the groups are smaller in size than another group. In this sense, people of color (or racial and ethnic minorities) and lesbian, gay, and bisexual people (or sexual minorities) are numerical minorities. However, these groups, as well as women, are also minorities by virtue of having less power in society than their majority counterparts: whites, heterosexuals, and men. Unfortunately, this latter point is often forgotten; look, for example, at the hope that racial equality will be realized once people of color outnumber whites in the US. Indeed, the history of Apartheid in South Africa serves as evidence that a group’s minority status in terms of power is not the mere product of being a numerical minority.
Minority Status: The Roles Of Size And Power
The size of a minority group is an important component that plays a role in shaping the experiences of minority group members. In particular, by virtue being a member of a smaller group, minority group members theoretically have a lower chance of seeing other minority group members across various contexts. Whereas non-Hispanic whites make up two-thirds of the US population, white people have the greatest chance of any racial or ethnic group of seeing other white individuals at work, the grocery store, church, on the street, at the doctor’s office, and so forth. In these terms, women and men have roughly the same chance of seeing other women and men, respectively.
However, the unequal allocation of power, resources, and opportunities also plays a role in shaping minority and majority group members’ experiences. In terms of gender, despite slightly outnumbering men in the US, women are often underrepresented in many contexts. Take as a very important example the US Congress: there are 76 congress women in the US House of Representatives (compared to 362 men), and 17 in the US Senate (compared to 83 men). Do the math. Women make up roughly 50 percent of the US population, yet only 17 percent of congresspeople are women! Though 10 percent of congresspeople in the House are Black, not a single member of the US Senate is Black. Indeed, other factors play roles in the outcomes of elections, including — I add emphatically — prejudice and discrimination. But, it is safe to say that something other than a numbers game is at play when there is such a stark underrepresentation of women and people of color in one of the most important institutions in this country.
Representation: Why Group Composition Matters
There are a host of reasons why the extent to which a subgroup is represented matters. Continuing with the example of the gender and racial and ethnic composition of the US Congress, it is important to note that the House and Senate, with their underrepresentation of women and people of color, is making important decisions that impact the lives of every person in the US. So, two groups that consists primarily of white middle-class heterosexual men — many whom are only interested in the needs and desires of other white wealthy heterosexual men — are making decisions right at this moment on behalf of people of color, working-class and poor people, LGBT people, women, and other disadvantaged groups. In fact, the leadership of every organization and institution in the US — most which are also dominated by white heterosexual middle-class men — is making decisions as I write this post that impacts the lives of every person of every race, ethnicity, gender, sexual orientation, and class-standing. Indeed, the decisions these individuals are making has great influence in guaranteeing that the next generation of leaders will also be white middle-class heterosexual men.
So, in a big way, what a group produces is shaped by the composition of the group. Since individuals can only truly speak from their own experiences, the contributions of women and people of color systematically excluded from important decision-making processes. But, the composition of a group also shapes the interactions among the groups’ members. For example, a recent study on the gender composition of small groups found that the presence of fewer women is associated with less contribution from women group members:
When voting by majority decision, women deferred speaking if outnumbered by men in a group. However, when voting unanimously, the researchers found that women were much more vocal , suggesting that consensus building was empowering for outnumbered women. The researchers also found that groups arrived at different decisions when women did participate. These findings, however, are not simply limited to business settings.
In this case, when women are underrepresented in a group, especially where reaching a consensus is the primary goal of the group, they are less likely to contribute to group decision-making. And, the group loses out on what could be a unique contribution and voice not offered by male group members. Because so many important, powerful groups include few or no women, the contribution of women is systematically excluded in important decision-making. I would say the most shameful of these exclusions is the absence of women in important conversations about women’s health (e.g., contraception for women!).
Unfortunately, it seems that the challenges that arise from being a member of a minority group are sometimes exacerbated when one is also in the numerical minority in a group. I would suggest one factor that contributes to women’s underparticipation in groups that are dominated by men is the stress associated with being the token woman. Social scientists, including professors Cate Taylor , Pamela Braboy Jackson, and Peggy Thoits, in Sociology at Indiana University, have examined the stressfulness (and resultant problems for health) of being “the only X” or token in groups and organizations that are heavily white and/or male. The uneasiness one may experience as the token woman, token Latino person, or token lesbian, can contain so many different concerns and feelings, ranging from the discomfort of always being evaluated as a woman, Latina, or lesbian, to the discomfort of feeling that one is perceived as speaking on behalf of their entire group, to feeling that one has to contribute the perspective of a member of one’s group. I can think of many discussions where I have been overwhelmed by anxiety that stemmed from being the only person of color or queer person present or, more often, from feeling the urgent need to interject that the group has systematically overlooked the importance of race, sexuality, and/or gender.
The importance of representation extends beyond small groups and decision-making processes. The visibility of minorities in the media is an extremely important arena of representation, one that has been extensively studied and debated. For example, each year the Gay and Lesbian Alliance Against Defamation (GLAAD) analyzes the representation of lesbian, gay, bisexual, and transgender people in film and television each year. The positive portrayal of women, people of color, immigrants, LGBT people, same-gender couples, interracial couples, working-class people, people with disabilities, fat people, and so on is crucial so that people are aware of diversity, but also appreciate and celebrate that diversity.
Specifically for the members of minority groups, seeing oneself reflected in the media is crucial, particularly in the face of prejudice, discrimination, and the constant barrage of invalidating comments and actions. In fact, there was a recent study featured in the media this summer that finds evidence of a self-esteem boosting effect of television for white boys, but self-esteem damaging effects for white girls, black girls, and black boys. One primary reason? White boys see lots of white boys and men in the shows they watch. And, not just that, but they regularly see these characters and actors in positive, powerful, and central roles. This is less so the case for other kids.
Though less frequent for members of minority groups, to see a face or body that looks like your own is powerful in its effect to simply validate you as a worthy human being. I can think of the range of emotions I saw or heard about in people of color, especially Black Americans, when President Barack Obama was elected in 2008. Some had tears streaming down their faces simply because they were overwhelmed with joy, hope, and likely some sense of relief. I am not ashamed to admit that I get this feeling in terms of race and ethnicity in the media, but also sexuality. To not only see LGBT people on my television screen — again, I emphasize positive portrayals — but to see them loved by others, or in love, is sometimes emotionally overwhelming because these images are new to me. I am disappointed, however, that I have to feel such joy just to see someone who looks like me — a joy whites, men, heterosexuals, and other privileged groups do not experience because their representation is the norm and, as a result, their presence is treated as the default.
Though things have changed, and are continuing to change, there is still much work to be done until we stop seeing systematic underrepresentation and hearing about “the First African-American X” or “the First Woman to Y.”