Equal protection in the key of respect.

• Author: Hellman, Deborah
• Position: The Meaning of the Civil Rights Revolution

ESSAY CONTENTS INTRODUCTION I. HUMILIATION A. Challenging Professor Ackerman's Conception of Humiliation B. Is Humiliation the Right Concept at All? II. CHALLENGING PROFESSOR ACKERMAN'S DESCRIPTIVE ACCOUNT OF BROWN III. WRONGFUL DISCRIMINATION AS DEMEANING ACTION A. Social Meaning, Sphericality, and Sociological Jurisprudence B. The Power of Demeaning IV. COMPLICATING THE ACCOUNT A. The Content of the Expressive Action B. Too Demanding C. Respect and Expression CONCLUSION: ANTI-DISCRIMINATION LAW IN THE KEY OF RESPECT INTRODUCTION

If we read Chief Justice Warren's opinion in Brown v. Board of Education on its own terms and take its reasoning seriously, counsels Bruce Ackerman, we will recognize its oft-neglected insight that segregating school children violates equal protection precisely because it is a form of institutionalized humiliation. (1) "There is great wisdom in Warren's opinion," Ackerman writes, "but a single master-insight will suffice for now: the Court's emphasis on the distinctive wrongness of institutionalized humiliation." (2) This essay will interrogate Ackerman's argument and its component claims. Ackerman claims that the Brown opinion grounds the wrongness of school segregation in the fact that it humiliates black school children (the descriptive claim), that Brown's distinctive contribution has been largely missed (the intellectual history claim), and that both Brown and the civil rights statutes that build on this important insight are correct that humiliation is at the core of what makes segregation a denial of equal protection (the normative claim).

In what follows, I argue that there is both something correct and something not quite right about each of these claims. While the essay may therefore seem critical in tone, let me state clearly at the start how much I admire Professor Ackerman's book and how much I learned from it. My engagement below is offered as a sort of friendly amendment to the theses he offers in Chapter 7.1 will focus my discussion on the normative claim, though I will say something about the other two claims along the way. Ackerman joins a growing chorus of scholars who emphasize that treating people as equals requires recognition and respect. (3) Or, to put the point in the negative, humiliation and its related cognates--demeaning, degrading, insult, shaming, etc.--may well involve a failure to treat people as equals in a manner that has normative and constitutional significance. As I am among those who agree that wrongful discrimination involves some sort of failure of respect, I think Ackerman is largely right to celebrate Brown's insight along these lines. But the hard work going forward lies in articulating and exploring this view. Is humiliation the central or core wrong? If not, how might we refine the insight? Ackerman himself suggests, near the close of the chapter, that Brown's emphasis on humiliation is only a starting point, and that it won't get us all the way to the sort of equality aimed at by later civil rights statutes: the "civil rights revolution ... has left us a complex legacy of anti-humiliation and more ambitious egalitarian principles requiring a sophisticated array of legal techniques for their successful realization." (4) In this essay, I hope to take up this invitation to think more about whether humiliation does capture the distinctive wrong of both Jim Crow segregation and discrimination as it occurs today.

1. HUMILIATION

   A. Challenging Professor Ackerman's Conception of Humiliation

   In order to assess Professor Ackerman's claim that the distinctive wrong of school segregation is that it constitutes institutionalized humiliation, we must know what humiliation is. Ackerman provides an answer both by telling us to consult our everyday experiences of humiliation (5) and by offering us the following definition: humiliation is a "face-to-face insult in which the victim acquiesces in the effort to impugn his standing as a minimally competent actor within a particular sphere of life." (6) Let's therefore take this definition, isolating its component parts, and assess it with reference to our own experiences of humiliation. The definition consists of five parts.

   1. Humiliation requires a face-to-face encounter.

   2. Humiliation is an insult, by which I take it that Ackerman is emphasizing the expressive aspect of humiliation.

   3. In order for an action or situation to be humiliating, the victim must acquiesce in, rather than defy, the humiliating treatment.

   4. Humiliation requires that the humiliating treatment or situation be intentionally produced. If the victim must "acquiesce[] in the effort to impugn his standing" (my emphasis), this suggests that the humiliating treatment is produced by virtue of some effort or intention.

   5. Humiliation requires that the actor or institution be attempting to impugn the victim's standing as a minimally competent person in that particular sphere. In other words, if humiliation is expressive action (#2), the content of what is expressed is that the person humiliated is not even minimally competent in the particular sphere at issue.

   Let's explore this proposed definition. In this first Section, I hope to suggest that Ackerman's definition of humiliation is too narrow to capture familiar instances of humiliation. In particular, I wonder whether an intent to humiliate is required for an action to be an instance of humiliation and whether what is expressed must be that the person humiliated is not even minimally competent in the particular sphere. Some humiliation may have quite different expressive content.

   As the parent of a budding teenager, my most recent and familiar experiences with the concept of humiliation come not from examples of social injustice but rather from more prosaic events. But Professor Ackerman did instruct his readers to assess his definition by comparing it with everyday experience, and one can hardly get more everyday than the teenager's complaint to her parent that "you're humiliating me." Consider, for example, a teen who asserts that her parent is humiliating her by dancing (albeit awkwardly) in front of the teen and her peers. Does this reference to humiliation fit with Ackerman's definition? While the dancing parent presents a face-to-face encounter with the teen, and possibly expresses that the "victim" is not minimally competent in a particular sphere (i.e., not even remotely cool, given the mother's dorky behavior), and involves acquiescence (or at least potentially so), what is decidedly missing is the effort or intent to humiliate by the perpetrator, in this case, the parent.

   While this example may seem somewhat flip in the context of the important topic at hand, it raises a significant ambiguity about the relevance of intention to humiliation (and also to violations of equal protection). If we think intentions matter, do we mean the intention to do the action in question (in this case, to dance), or do we mean the intention to humiliate the child? Here, the parent clearly intends to dance, but she does not intend to humiliate the child thereby. Ackerman appears to suggest that one must intend to humiliate, rather than simply to do the action (which happens to humiliate); the actor must make an "effort to impugn" the standing of the other person. Yet this example shows that a person can humiliate another without intending to do so.

   Another familiar use of the concept of humiliation shows that no intentional action need be present at all. An older person who loses the ability to maintain continence might describe that situation as humiliating. (7) Suppose the other people present do everything they can to lessen the embarrassment. Still, the visible loss of competence in this sphere may be humiliating to the person affected even though no intentional action by anyone brings about this result. If these points are right, then humiliation may be broader than the phenomenon Ackerman wishes to emphasize as the core wrong that Chief Justice Warren described in Brown.

   A second reason to think that the wrong of segregation highlighted by Chief Justice Warren in Brown is not humiliation is that sometimes humiliation may be justified and in fact supportive of the equality concerns vindicated in Brown. Rachel Bayefsky makes this argument, emphasizing that Southern whites, in both the First and the Second Reconstruction, complained of the humiliation occasioned by having to associate with blacks on terms of equality. (8) If interacting with blacks was humiliating to Southern whites by virtue of their beliefs in racial hierarchy, this humiliation was a welcome humbling that brought them down to their rightful status as moral equals with, rather than superiors to, the African-Americans with whom they resented associating.

   Perhaps, then, Ackerman's conception of humiliation does not capture the familiar conception of humiliation drawn from our common experience. However, we might revise it and develop a conception of humiliation that both accords better with common understandings of what humiliation is and captures the distinctive wrong highlighted by Chief Justice Warren in Brown. In the next Section, I offer a few reasons to think that even a revised conception of humiliation is not up to the task and thus that humiliation is not the right concept to focus our attention upon.

   B. Is Humiliation the Right Concept at All?

   Professor Ackerman claims that humiliation requires that the victim acquiesce in her humiliation. For this reason, Rosa Parks was not humiliated when she refused to go to the back of the bus and was later arrested. (9) While I have some doubts about whether acquiescence is necessary for humiliation (perhaps one can be humiliated even when one does not acquiesce), I would agree that Rosa Parks was not humiliated in the moment when she refused the order of the bus driver to move to the back. Writing this soon after the death of Nelson Mandela, I can't help but draw on...