Plessy v. Ferguson, 163 U.S. 537, 551 (1896).
The 11th Circuit has once again reversed a verdict finding racial discrimination a Tyson Foods factory, holding (among other things) that the evidence whereby a White supervisor had called the Black plaintiff "boy" was insufficient to provide evidence of discriminatory bias.
This case had already been up to the Supreme Court once, where they reversed a prior 11th Circuit decision holding that "boy" could never be evidence of racial prejudice unless accompanied by a modifier like "Black" or "White". The Supreme Court chastised the lower court:
Although it is true the disputed word will not always be evidence of racial animus, it does not follow that the term, standing alone, is always benign. The speaker's meaning may depend on various factors including context, inflection, tone of voice, local custom, and historical usage.
Not taking the hint, the 11th Circuit continues insist that there was simply not conceivable way a jury could have interpreted the usage of "boy" as evidencing a discriminatory attitude.
Obviously, it's true that whether "boy" is malevolent or benign depends on the factors the court laid out. And you know who is, if not really good at examining those factual elements, then at least is legally tasked with sorting them out? Juries! They're the ones who know the most about local custom, and inflection, and tone of voice, and how comparable "boy" is to the n-word. Not, say, three judges on the 11th Circuit reviewing trial transcripts after the fact.
I will not comment on the merits. Rather, I find it outrageous that a decision that (1) disposes of a case in which the Supreme Court issued a ruling, (2) contains a full-blown discussion of the law, (3) discusses a subject of great public interest, and (4) draws a dissent is marked "Not for publication."
ReplyDeletetroll_dc2,
ReplyDeleteI rather find the use of the not for publication approach wrong-headed, period. It allows Courts to abuse existing precedent, making it anything and nothing at all without regard to the substance of precedence. In a way, it is something of a star-chamber approach to law.
Precedent, that is.
ReplyDeleteI certainly will not disagree with you. The practice originally began because F.2d (as it was then) was filling up too fast with a lot of junk that added nothing to anyone's understanding of the law. But that idea morphed into a presumption against publication unless certain factors were present. You can see the rules of the various circuits in the U.S.C.A.
ReplyDeleteA lot of important rulings were covered up entirely until the creation of Fed.App'x (the citationability of which I am not sure). I used to run a case service, and any number of times I contacted courts of appeals to try to persuade them to release opinions for publication. I did that at least a dozen times. Imagine an appeals court rejecting the views of another appeals court and not publishing the decision or a court not publishing a decision in which, at great length, it discussed and adopted a decision by a district court not in its circuit on an issue that the appellate court had never ruled on before. That is madness.
You know who's legally tasked with determining when a jury's decision is unreasonable in light of the evidence? Appellate judges!
ReplyDeleteYou have to have the facts to know whether the jury was right OR whether the judges here were right. Each is legally tasked with an evaluation of the facts.
Upper-case Joe,
ReplyDeleteBut the appellate court is not in a position to observe the demeanor of witnesses in evaluating their credibility. The only factual inquiry for the 11th Circuit here is whether the verdict is possibly supportable, and we know from the Supremes that the use of "boy" can indeed support such a finding. That's why this is an apparent intrusion on the prerogative of the trier of fact.
That said, I'm not sure I buy that federal judges are less likely on the whole than pseudo-randomly selected jurors (who are only "local" in federal cases in the sense that they're from somewhere in the same state) to impartially understand the racial dynamics at issue. And if they are less likely, it speaks more to the kinds of judges Republicans appoint (when they themselves are democratically elected) than some great font of populist wisdom. I mean, Tim Wise would be out of a job if we just assumed the "man on the street" is specially suited to recognizing (and condemning) racist speech and employer practices.
troll_dc2,
ReplyDeleteI am well aware of the stated reasons. I think it a bad idea.
The books fill up with a lot of stuff. However, I have had experiences where unpublished decisions, had they been published, that would have been better precedent than published decisions.
And, so what that the books are filled with similar decisions? That, to me, is a non-reason.
¨I mean, Tim Wise would be out of a job if we just assumed the "man on the street" is specially suited to recognizing (and condemning) racist speech and employer practices.¨
ReplyDeleteI don´t think that´s true, given Wise´s focus on speech and practices that reinforce structural racism, rather than the kind of individualized instances that are well-suited to be adressed by litigation and juries. Admittedly I read Wise only occasionally, but the article of his that I remember best was the first one I read, for a college course, that was ripping the Southern Poverty Law Center for obsessing over marginal hate groups instead of doing something about actual Southern Poverty.
The ¨man on the street¨ may not be good at recognizing that calling African American adult men ¨boy¨ is part of a social structure intended to keep those men in the position of children, but he usually can tell you that it´s a term a white man will only use when he wants to put a black man down and not something that a white man uses toward all people generally and without distinction on the basis of race.
joe,
ReplyDeleteYou're fudging two different questions:
(1) Question 1: Can "boy," unaccompanied by "white" or "black," ever be evidence of racial prejudice? (SCOTUS answered this--yes)
(2) Question 2: Was the evidence in this case sufficient to support a jury finding of discrimination?
The 11th Circuit's analysis is exactly the analysis required by the Supreme Court's decision--an analysis of the word "boy" in the context in which it's used.
Obviously the standard for judgment as a matter of law is higher than the standard for a jury decision, but you can't just say "oh, the court shouldn't grant judgment as a matter of law because the jury is really, really good at factual determinations." You have to apply the standard.
David doesn't even begin to engage with the merits of the court of appeals' analysis here, and pretends that what they're doing is somehow outside they're legal mandate--he's not arguing that they reached the wrong conclusion about the evidence but that they shouldn't be asking about the evidence, because that's the jury's job. But it's just not true.
In fact, unless David's done additional research into the record to learn facts not reported by the 11th Circuit (certainly possible), this case appears to be the textbook case of a situation in which a reasonable jury could not have reached the conclusions it did--the very sort of case in which we mandate that courts of appeals overturn jury verdicts.
ReplyDeleteI disagree -- I think the facts as reported by the 11th Circuit are a textbook case of when the jury verdict deserves deference. The jury is a far better position to evaluate the state of mind of the speaker of "boy" than an appeals court reading transcripts. Contrary to the court's assertion, the testimony of the plaintiff's as to the meaning and impact of "boy" is illustrative of factual question, particularly given the SCOTUS' admonition that local custom and context matter -- the plaintiffs, of course, are in a perfectly solid position to explain what "boy" means to them and hence the meaning that the speaker was intending to place upon it when he uttered it.
ReplyDeleteJoe (with the upper case J),
ReplyDeleteI agree with David, when he writes: "The jury is a far better position to evaluate the state of mind of the speaker of 'boy' than an appeals court reading transcripts." However, there do need to be some facts that a reasonable jury could reach a conclusion. Such facts are something which David seems unwilling to provide.
I thus ask David, in response to his comment "the testimony of the plaintiff's as to the meaning and impact of 'boy' is illustrative of factual question," which statements of testimony do you have in mind? And, how do they make a question for the jury to decide?
The jury is a far better position to evaluate the state of mind of the speaker of "boy" than an appeals court reading transcripts.
ReplyDeleteThis is of course true and of course irrelevant in this case. There was no evidence presented that was probative of the speaker's state of mind; alternatively, there was no evidence presented that, even if he was using the word derogatorily, the hiring decision was based on racial animus.
the plaintiffs, of course, are in a perfectly solid position to explain what "boy" means to them and hence the meaning that the speaker was intending to place upon it when he uttered it.
But the speaker's state of mind does not follow automatically from the plaintiffs' state of mind.
Nothing can "automatically" reveal a speaker's state of mind aside from the speaker's own testimony (which is part of why subjective intent is such an annoying doctrine). That's why the SCOTUS asked to look at context, history, and local usage/understanding -- all elements the plaintiffs are in perfect position to testify towards, and which are legitmately probative towards a speaker's state of mind.
ReplyDeleteWhich means their testimony is admissible. Whether it's a sufficient basis for a jury verdict is a question of law for the court to determine.
ReplyDeleteIn any case, the court of appeals doesn't determine that the remarks weren't racist or that they didn't evince a racist attitude (they find that they're ambiguous, which leaves open the possibility that, if the remarks were the actual issue, a jury might reasonably find that they were racist). They determine only that the remarks are insufficient to support a finding that the hiring decision was racially motivated.
David,
ReplyDeleteAnd the testimony about the "context, history, and local usage/understanding" was what, exactly? And, moreover, the reason that a jury would, listening to the statements made that used the word "boy" and that supposedly addressed context, history and local usage/understanding, be better than the 11th Circuit was what, exactly?
While I tend to bend over backwards on real racial discrimination and while there may, in fact, be real discrimination in this case, the use of the word "boy" in the sentence “Boy, you better get going” requires twisting the meaning of the sentence's most likely meaning - hence, real evidence of the context in which it was used (and, of which, there appeared to be nothing in the record), not just the fact that the word "boy" is often a slur word used to mean "black."
The second use, "hey, boy," is a different story, one in which the prior word, "hey," ought, as I see it, to have been sufficient evidence to create a presumption - but not, evidently, to the Supreme Court. Notwithstanding my personal view, in that instance, the Supreme Court set an impossible test. While evidence might have been introduced about how such language is intended in the relevant community, requiring evidence of context provides an automatic escape hatch that could not be met in any imaginable case (unless there is a film or something of the sort showing how the persons in issue speak to each other about "boys"). So, I think the problem here is the Supreme Court decision.
Be that as it may, the 11th Circuit has a strong point where it indicates that evidence was not really provided by which any jury could investigate the context of the statement - something that would be necessary based on the requirements set forth by the Supreme Court. As such, I really do not see why you think the 11th Circuit is wrong.
N. Friedman:
ReplyDeleteThe plaintiff did testify that "everybody knows" in the South that "boy" is racially offensive. This could be evidence that the word is, in social/cultural context, evidence of racial bias.
But the plaintiffs have to show not just that, but that the word is so probative of racial bias that it's sufficient to show that the hiring decision--a completely separate incident--was racially motivated. This requires a high degree of certainty about the use's indicating bias, because it has to be high enough that it can support a finding that the hiring decision was racially motivated. Even if a reasonable jury could find a 60% chance that the word signifies racial bias, that just won't cut it, because that would only show to a much, much lower certainty that the hiring decision was racially motivated.
Joe (with the upper case "J"),
ReplyDeleteYou write: "The plaintiff did testify that 'everybody knows' in the South that 'boy' is racially offensive." That is not real evidence of context. And, everybody, in the North and South, knows, without the need for any evidence, that "boy" can be racially offensive to blacks. The Court, in any event, noted that the issue was whether it was intended to be racially offensive, not how it was understood. In its words, at 37:
The only additional evidence presented at the retrial was Ash’s and Hithon’s testimony about how and why the use of the term “boy” is offensive to them, but the issue is not what was in their mind when they heard the term but what was in Hatley’s mind when he used it, and there was no new evidence about that.
So, the hiring decision question was never really reached, with reference to the word "boy."
I actually disagree with you here, though I agree with you overall.
ReplyDeleteIf I say "everybody knows" that the word X is racially offensive, that is evidence that any particular use of the word X was done knowing it was racially offensive. A knowingly racially offensive use of a word is more likely than an unknowingly racially offensive use of a word to be racially motivated. Therefore evidence that everyone in a culture knows a word is racially offensive is evidence (not conclusive, but it is evidence) probative of racial bias in the user.
Joe,
ReplyDeleteBut that is not quite what the evidence was. The evidence was directed to how the listener understood the word "boy," according to the Court. That is not evidence that everyone knows that "boy" is offensive.
I do not think that it is reasonable to say that "boy" is always offensive when spoken to blacks - just that it often is and surely can be offensive. As noted: the first sentence in issue seems to be one where it is not all that reasonable to say, absent evidence of the speaker's intent, we know the speaker's intent. The second statement, "hey, boy," is a better case but, even then, the context of what was said is still, according to the Supreme Court, necessary information to know. Otherwise, I see no reason, given the Supreme Court's opinion, why the jury needs to hear non-existent evidence. Perhaps, our gracious host David can explain it.
Read the whole transcription the court provides. They testified to what "everybody knows" in "the South" about the import of the term.
ReplyDeleteBottom of page 35 in slip opinion.
ReplyDeleteJoe,
ReplyDeleteThe answer was how the word is understood to blacks. Here is what the transcript says:
Q. Can you explain to the ladies and gentlemen of the jury why that comment was offensive to you, Mr. Ash?
A. Because, you know, being in the South, and everybody know being in the South, a white man says boy to a black man, that’s an offensive word.
Note the words, which I emphasized, "to you." The words were offensive "to you" because that is how blacks understand such language. But, as the Court noted, that is not at issue. What is at issue is the meaning of the word to the person who spoke the word.
I suppose that is evidence of part of the context - i.e. how the word would be understood by the listener. It is just not enough of the context to get out the intention of the speaker, whether we are speaking more likely than not or a higher burden. What we have is evidence about how the speaker could have intended the language. That, however, is not enough, as the law was set down.
That was the question, but the answer went beyond the question. The answer doesn't depend on the witness's race: it says "All X know Y. I am X, therefore I know Y." Where "X" is not "black" but "in the south."
ReplyDeleteCapital Joe- I'm pretty sure David does know about directed verdicts and standards of review. I'm also skeptical that the Supreme Court reversed the 11th with no eye to changing the eventual outcome of the case. But I guess they always keep an eye out for potential disputes as to intent behind use of the word "boy."
ReplyDeleteLittle joe; David may be familiar with standards of review, but his post doesn't reflect that familiarity.
ReplyDeleteIn any case, if the Supreme Court wants to change the outcome in a case, it has the option of deciding the question for itself.
The 11th Circuit does not have a duty to try to divine the Supreme Court's preferred result in any particular case.
ReplyDeleteJoe (with an upper case "J"),
ReplyDeleteYou write: "Read the whole transcription the court provides. They testified to what 'everybody knows' in 'the South' about the import of the term."
I read that and it was part of what I quoted to you. However, it was in response to a specific question and, so far as I know, courts are supposed to consider answers in the context of the question asked, not in the abstract. Otherwise, any answer could be said to be anything.
If the answer's impermissible opposing tourneys can move to strike it. If it's part of the record when it gets to the court of appeals, it's evidence. You can't interpret it to not mean what it clearly means; the context here doesn't do anything to change that meaning.
ReplyDeleteJoe,
ReplyDeleteI understand that an unresponsive question can be objected to and that, if it is not, the answer is in evidence. That is not the issue at hand. The issue here is how the answer, which is in evidence, can be construed. And, notwithstanding your view, the answer simply cannot be construed in the abstract. It must be construed with reference to the question asked.
That is true, by the way, even for purposes of summary judgment where the evidence is to be construed in the manner most favorable to the non-moving party. Otherwise, answers would have unlimited flexibility, something courts normally do not permit.
This answer doesn't have any flexibility. The witness said "Everyone in the South knows X." That's evidence that the defendant knew X. There's no way to "construe" it differently.
ReplyDeleteAnd no, courts don't permit answers to have limitless flexibility--that's what striking them from the record is for. You acknowledge this at the beginning of your comment, and then seem to ignore it in the last line. Limitless flexibility is not a problem in a world in which answers may be struck from the record.
Joe,
ReplyDeleteThe Court, however, did exactly what I indicated, namely, it interpreted the answer in the light of the question asked. The Court, notwithstanding your view that the answer makes sense on its own, followed the law. You, however, are re-writing it to allow an answer to be considered without reference to the question in issue.
Wait, where is "the law" that says you have to "construe" an answer in the record not to imply something (and thus be evidence of it) that it implies?
ReplyDeleteJoe,
ReplyDeleteIt is black letter law, which I learned in my first year of law school - more than 30 years ago. And, here is where the Court explained itself on the point: "The only additional evidence presented at the retrial was Ash’s and Hithon’s testimony about how and why the use of the term “boy” is offensive to them, ..." And, the Court, quite properly, continued: " but the issue is not what was in their mind when they heard the term but what was in Hatley’s mind when he used it, and there was no new evidence about that." And that was the basis for the holding - which is beyond question, in my view, a correct statement of the law.
Can you share the source of this "black letter law"?
ReplyDeleteMaybe you did not notice or realize why the Court interpreted what appeared to be an abstract statement about how people interpret things to being how the people in question interpret such things.
ReplyDeleteI might add: an abstract answer, taken as you would take it, would probably have to be the product of expert testimony.
Joe,
ReplyDeleteTry reading a hornbook on evidence. The issue rarely comes up because there it is an obvious point, one that almost never results in a citation.
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ReplyDeleteJoe,
ReplyDeleteI think that my statement about how courts interpret testimony requires some clarification, so that it will be understood. The law, as I understand it, is that responsive answers must be interpreted as being given in reply to a question, not in the abstract. Non-responsive answers are viewed in light of the question asked but may be, in some instances, examined on their own (e.g. for determining whether there has been perjury by means of clever statements) for their own truth value. However, in the normal circumstance, if the statement can be interpreted in view of the question asked, it is supposed to be interpreted as a response to that question, not in the abstract.
And, no. I cannot give you a citation. However, I can tell you what happens if you tell a judge that an intelligible answer to a question should be construed without reference to the question asked. You will have one angry judge.