Trevor Noah and Offensive Comedy: Confirming or Undercutting Stereotypes

Like many people, I spent some time watching great video clips of Trevor Noah’s standup routines (compiled here by Vox) and laughing. I certainly enjoyed his first appearance on the Daily Show, which I happened to catch live (I don’t watch the show routinely, but like many people consume clips via the internet the next day).

Today, I became aware of the controversy around a series of anti-semitic, fat-shaming, misogynistic tweets. They are pretty bad – standard stuff for many comics, perhaps, but the position of Daily Show host (thanks to John Stewart) has become something of a higher stature and visibility than the usual comic position.

Here’s what’s going to happen. People are going to express outrage (ongoing). Then defenders are going to defend Noah as edgy, as pushing the envelope, and blame critics as “censoring” or trying to decide what is or isn’t funny. I recommend, should you dabble in these discussions, thinking about comedy in terms of reinforcing or undercutting prejudice.

Last summer, I wrote a CNN piece about jokes involving Down syndrome and intellectual disability, then had a phone call with Wyatt Cenac about comedy. He suggested that instead of thinking about punching up vs punching down (my language), which of course involved subjective assessment of power dynamics, or “offensive speech,” which likewise is subjective, that there’s better framing. I wrote:

In our conversation, Cenac acknowledged that for someone like me, inside the Down syndrome community, the piece could easily have come off as offensive. Most comedy risks being offensive, but his goal is never to do it “at the expense” of marginalized people or “in a way that promotes continued insensitive behavior.” He talked about his experiences, as a kid, hearing people make a joke at the expense of a group of people, and thinking, “what would they be saying if I wasn’t in the room?” He doesn’t want to make those kinds of jokes and it definitely wasn’t his goal here.

What I took from this is that comedy can promote and perpetuate stereotypes and prejudice or it can fight against them.

Noah’s stand-up clips are mostly the latter. He talks about race, identity, perceptions of Africa, and so forth in ways that undercut stereotypes.

These tweets do the former. And that’s the problem. The Daily Show host succeeds by mocking power, mocking prejudice, mocking convention. These are conventional jokes that reinforce the dominant, rather than attack it.

And undercutting stereotypes makes for good comedy! It’s the surprise when you think something is going in a bigoted way, then suddenly switches directions, that gets the laugh.

UPDATE: Noah has tweeted a “statement” of sorts.

“Jokes that didn’t land” implies that the problem of making fun of fat women and Jews is that not enough people laughed. That’s not the problem.

Three Premises: Language and Power

Premise #1: There is no way for a powerful white man to critique the public voice of women on the grounds of tone without replicating patriarchal “silencing” discourse.

Premise #2: There is no appropriate way for a powerful white man to question why someone invokes the race of another powerful white man.

Premise #3: Sometimes, holding to these two above premises mean that rude women go un-chastised or that the race of a white man is invoked unfairly. I can live with that. The alternative – silencing of women, denying the power of racial privilege, is worse. 

Here’s the context behind these three general premises. As a writer on language, power, and privilege, I find the general more interesting than the specific, but the specifics do matter. As I wrote about last weekInside Higher Ed blogger and Dartmouth online education director Joshua Kim, chastised Audrey Watters and Sara Goldrick-Rab for being too rude in their review of Kevin Carey’s new book. I understand that this is all very inside-baseball to the non-higher-ed readers, hence leading with the three premises that apply more broadly.

Note – I am not suggesting in any way that Rab or Watters was rude or unfairly invoked race. Only that it is abstractly possible for people to be unjustly rude or unfairly bring up race.

Over on IHE, Joshua Kim has penned a defense. You should read it in full and not rely on my summary. It asserts his status as a feminist activist dad. It asks for “evidence” before anyone is accused of sexism. I left this comment:

Joshua – Your response to Watters and Rab was sexist. That is not a “casual” statement. The evidence you are looking for is twofold. 1) Your critique. 2) Their response.

You are writing here to talk about your intentions and your sense of self as a feminist activist dad. I believe you. I do. But that doesn’t change what you said or how these two female academics experienced it.

 To fall back on academese: Your letter fell into standard forms of patriarchal discourse that silences female public voices through questioning their ability to handle their emotions appropriately. I’m a fan of Mary Beard’s relatively recent explication of this phenomenon on the public voice of women, but the bibliography here is vast. Would footnotes and citations persuade you? I suspect the cognitive dissonance of what you said versus who you are is very difficult to overcome. I sympathize. I genuinely do.

The problem with this post is that you continue to deny the validity of Rab’s and Watters’ response to your scolding. They have lived experience as women in our patriarchal culture. Your letter, telling them to be nicer, reinforced patriarchal norms. Their tweets made it clear that they understood it this way. That’s real. You are now falling back on intention, but that doesn’t erase either the content of your critique or Rab’s and Watters’ understanding of it.

So when you write: “Is there some way we can agree that — until there is evidence of dishonorable goals or a pattern of attacking women (or some other group) — we can evaluate ideas based on their merits, and not just accuse people of being sexist or otherwise dishonorable?”

Yes, we can agree on that. But the evidence /is/ your critique as part of a constant barrage of discourse telling women to be nicer if they want to be part of the public conversation. It’s not about who you are, but what you said.

It sucks. I’ve been there. Good luck.

I really have been there. It really does suck when our actions conflict with our identity.

But again, see premise #1. To me, no matter his intentions, it is not possible for him to critique Rab and Watters on the grounds of tone without replicating patriarchal silencing discourse. That does not make him a sexist. It does mean his critique operates within sexist norms whether or not he intended it to do so.

And that’s the power of culture. We all consume patriarchal culture. It wants us to replicate it in our speech and actions. We have to push against the grain. We have to hold ourselves and each other accountable when we mess up. And when I mess up, I try to resist being defensive, but instead say – Crap. Patriarchy (or whatever oppressive system I have inadvertently contributed to) is powerful and pernicious. I’ll try and do better next time.

Being the Target of a Boycott – Indiana and Lessons from UIUC

A month or so ago, UIUC professor Susan Koshy wrote a piece on being the target of a boycott. She supports the candidacy of Steven Salaita. She’s angry at the administration for their conduct. She writes (behind the paywall. I will quote as extensively as seems reasonable):

For someone like me, who is inside the university and supports Salaita, the boycott represents an experiential impasse. I find myself in the impossible position of being the target of a boycott as a member of an institution whose actions I and many others here have challenged. Unlike faculty members outside Urbana-Champaign whose safe target is another university, our target is our own. The frequently repeated joke here—How do we boycott ourselves?—captures this problem. How do you oppose your own institution yet protect valuable parts of it at the same time?

There’s been a lot of shouting about the Indiana bill, with “boycott” as a major part of the strategy to punish the state for its prejudice. I get it. I recommend Melissa McEwan’s piece “Stop” on why this is a bad idea.

The boycott is a blunt tool. Koshy writes:

First, in most boycotts, the relationship between external and internal groups is crucial to the campaign’s efficacy. Various arrangements are set up to enable the two groups to coordinate strategies and organize actions together, and to provide support for those on the inside. Throughout, the concerns of those within the boycott help determine the choice of tactics. By contrast, the actions and narrative of this boycott have been shaped mostly by those on the outside. Outside actors have taken the lead in organizing it and defining its stakes, sometimes without sustained input from those on the inside, although often in stated symbolic solidarity with them.

Second, boycotts typically are only one tactic among many—and usually one of last resort—in a multipronged political strategy to bring about change. Boycotts usually work in tandem with economic sanctions and protests that reinforce the boycott’s effects. 

Koshy talks about discourse and the way that the internet, focusing on star political bloggers (I assume this is a veiled call-out at Corey Robin), shape the understanding of the boycott from the outside, with less attention given to the narrative from the inside. She concludes:

Finally, while the primary focus in the last few months has been on the negative actions of the boycott—what outsiders will not do for the university or its faculty and students—affirmative actions, or what outsiders will do for those inside, have been few or largely symbolic.

It has become too easy to support the boycott from the outside—to share, “like,” and forward one’s political commitments; to update oneself through the musings of star boycott bloggers; and to “give up” invitations that one could hypothetically receive from the university. Meanwhile, on the inside, the costs are steep and mounting.

Many colleagues outside the university have posted their rejections of university invitations on their Facebook pages, blogs, or websites, or have written open letters to the chancellor condemning the university’s actions. These actions are invaluable in exerting pressure on the university. But despite a few calls to invite Urbana-Champaign faculty and students to their campuses to counter the debilitating isolation those on the inside are facing, few have followed through on those proposals.

Perhaps colleagues could post with as much passion on their Facebook pages the affirming actions they have taken to support the boycott—listing the graduate students they have hired from our university, or the professors they have invited, or the collaborations they have undertaken with groups here.

There are specific issues with the university boycott. But I think Koshy also raises important points about boycotts in general. They can be effective tools, but they have to work WITH the people on whose behalf one is boycotting, and they have to be paired to specific, direct, affirmative actions to support those people.

Calls to boycott Indiana have not, to my knowledge, included affirmative actions to support LGBTQ and other progressive movements within the state. Until that happens, keep me out of your boycott.

Cult of Compliance: Boy with Down Syndrome Forced to Remove Letter Jacket

USA Today Sports has a new piece on a boy with Down syndrome forced to remove a letter jacket. His mother had bought him the jacket, he loved it, but because he’s not a “real” varsity player, the principal made him take it off. From the story:

Michael Kelly is a high school student who plays on Wichita East’s special needs basketball team. His mother bought Kelly a letter jacket and a varsity letter to show his participation. But when Kelly, who has Down syndrome and autism, wore the jacket to school, he was forced to remove it and put on a sweatshirt instead.

According to school principal Ken Thiessen, it’s because Kelly isn’t actually on the varsity team.

“Teachers told the parents they would prefer he not wear the letter on his jacket,” Thiessen told WKSN TV adding that he would not allow special needs teams to have letters. “We have considered it, and our decision was no. We decided that it is not appropriate in our situation because it is not a varsity level competition.”

This is not just a story about special needs and cruelty (though it is also that), but about the ways that disability often points at the power of hierarchy and compliance in our school system (and beyond). By existing and demanding inclusion, people with disabilities reveal the ways in which we accept all kinds of inequality in other circumstances.

This is the power of the cult of compliance. It pushes people like this principal to enforce rules against individuals clearly not trying to game the system, but who just want to belong, because to do otherwise would betray the principle that compliance is the highest virtue.

For those readers unfamiliar with the “cult of compliance” – Start here. Then search “compliance” on the blog for much much more.

Edit: Apparently it was another parent who complained and prompted this. I have no printable words for that parent.

Open Letter to Joshua Kim – Own up; Apologize; Try to do Better

Preamble: I make mistakes

Sometimes, I make mistakes. Often, those mistakes emerge from my privilege – straight, white, tenured, able-bodied, neurotypical, married, etc. I say something or do something that is exclusionary, hurtful, or simply wrong.

If I’m lucky, someone calls me on it.


If I’m very lucky, after I apologize and try to make it right, I get re-admitted into the community I betrayed. For example, I made an OCD comment to a man whose son is greatly struggling with OCD. I apologized. He accepted. I will not do that again. I drew three lessons from this experience.

Lesson 1: When you screw up, and you will screw up, own it. Apologize. Try not to do it again.
Lesson 2: No one is entitled to have their apology accepted.
Lesson 3: On the other hand, one mistake (rather than a pattern of repeated bad behavior) can become an opportunity for dialogue and strengthening community, rather than sundering it.

In that post, of course, I wasn’t talking about my slip at the Thanksgiving table, but about Daniel Handler, Barilla, Matt Taylor, and all the other privileged people who have recently made mistakes, apologized, and tried to do better. They’ve been let back into their communities. This is in opposition to those who either don’t apologize, or apologize because the less-privileged party was offended, putting the blame on the less-privileged party for being so thin skinned.

Context: The End of College

There’s a new book out by Kevin Carey on The End of College. It’s been criticized by lots of people, men and women alike, for many different reasons. It’s been praised by lots of people, men and women like, for other reasons. I am not, in this post, going to engage with the book in any detail.

Instead, I want to talk about Joshua Kim, blogger for Inside Higher Ed and director of online learning at Dartmouth. He wrote a comment on book called “Dear Kevin,” in which he spoke in a chummy, man-to-man, peer-to-peer, sort of way to Carey. According to his picture, Kim is a white man. He works for a very wealthy institution in a highly desirable field. I bet he makes a lot more money than almost everyone I know in academia. He is, in short, privileged in important ways.

Then, later in the day, Kim went after two of Carey’s detractors. Audrey Watters and Sara Goldrick-Rab are two high-profile, respected, higher-education writers. They attacked Carey’s book in their review, also for Inside Higher Ed, called – Techno Fantasies, It is a devastating review, undermining Carey’s evidentiary basis and assumptions in ways that I find effective. I have read only excerpts of Carey’s book and some of his interviews, so I cannot fully judge. Still, Rab and Watters have certainly pushed back hard against Carey’s intentional polemic.

Kim seems to have decided to defend “Dear Kevin,” not on substance, but on tone. He chastises Rab and Watters for attacking. He asks why it’s relevant to bring up Carey’s race (white)? He expresses a wish that Rab and Watters had been “more constructive.” In other words, he tone polices them. He does not engage with the substance of the critique, but merely wishes they had been nicer.
This is typical a typical sexist pattern of behavior. I am NOT saying Kim is sexist. I’m saying his decision to tone-police two prominent female academics, engaging their abrasive language and not the substance of their ideas, falls into a sexist tradition of demanding women stay demure and kind. Moreover, given that there has been other severe critiques of The End of College, including this essay by a fellow white male on Inside Higher Ed itself, his decision to attack the tone of Rab and Watters suggests the presence of unconscious bias.
And that’s the thing about unconscious bias – it’s there without us intending for it to be there. And when it rears up, and we get called on it, there are only a few things we can do. See lessons 1, 2, and 3 above.
Unasked For Advice

I tweeted my thoughts about the column. I know Kim has read them. First, he was online long enough to tweet out his link to his piece on Twitter this morning, but he hasn’t otherwise engaged the criticism (not in the comments either, to my knowledge). Second, I got this message this morning.
So if you’re listening, Joshua, here’s some unasked for advice from a fellow privileged sinner. Man-to-man (not really peer-to-peer).
1. Race, class, gender, institutional affiliation, and so forth always matter. Carey is being accused of ignoring the issues for non-elite students. Non-elite students generally correlate to students of color and students who are lower class, and then race and class intersect, students are especially vulnerable. That’s why they bring up Carey’s race – his argument serves his own privileged position. But here’s the real kicker – as a white guy, you don’t get to ask non-white-guys why they bring up race. Just take that question out of your lexicon. 
2. There have been other critiques of Carey that are equally aggressive, and you have not to my knowledge called them out for being shrill and abrasive. They were, of course, written by men. I’m sure you didn’t intend to be sexist, but that’s not relevant. Your actions, your writing, falls into paternalistic and sexist patterns of discourse. You messed up.
3. The only path out of out of this is to apologize. To say – I should not have engaged with Rab and Watters by questioning their tone, but only by engaging with their content. In short, you should do exactly what you want Rab and Watters to do with Dear Kevin’s book.
4. Then you wait and see if your apology is accepted. If it is, you try to re-enter community by thinking hard about the response to your piece, thinking hard about why you wrote the way you did, and then trying to do better in the future. Because people will be watching.
In my life, I have been called out for being ableist, sexist, and classist, I have surely displayed other forms of prejudice in actions or speech in my life. I thank the people who call me out. I try to do better. I hope they accept my apologies. I do not demand that they accept my apologies. 
It sucks when we mess up. But if we’re lucky, we rejoin community a better person than when we left it.
Good luck.

The Conundrum of Achievement and Disability

One response to ableism, eugenic ideology, or just plain ignorance is to tout the achievements of people with disabilities. Sometimes it can veer into inspiration porn or cuteness porn, but I’ve long thought that there’s a bigger problem. 

If we define the worth of an individual by what they do, and then say – look, people with disabilities can do many things – what about those people who do less? Have we devalued them? By adopting the epistemology of “do” = “worthy,” we implicitly reinforce disability hierarchies.


My son Nico is a wonderful, talented, smart boy. He has profound verbal delays in expressive speech, and in our society, expressive verbal ability tends to place limits on inclusion. If we presume achievement in neurotypical norms is the pathway to asserting value, Nico loses in that contest. Instead, we have to reject that epistemology and assert value based on broadening our perception of shared humanity.

I write this because of a powerful essay by Liz Rouch in The Mighty. Have you read The Mighty? It’s an awesome site, featuring essays mostly by parents in the special needs community, run by long-time media professionals, trying to create space for new kinds of essays. And here’s one by Rouch.

News stories abound everywhere on social media, like Facebook, Instagram and Twitter, with pictures galore of children and adults with Down syndrome, autism or other disabilities. In these pictures the children are participating in athletics like cheerleading, basketball and wrestling for their school teams, graduating from high school with their diploma in hand, modeling for Target, Nordstrom or Toys ‘R Us catalogs, getting a job or even being a bat boy for the Cincinnati Reds.

 These are all amazing achievements from awe-inspiring individuals, and we all go “ooooh,” and “aaaah,” and smile. Maybe we even shed a few happy tears watching the videos, hearing the stories and seeing the pictures. Especially those of us who have a child with the same disability. We revel in it, all the while probably secretly, or even outwardly, hoping, yearning and praying for the same or higher accomplishments and recognitions for our child.

Now don’t get me wrong, I think it’s wonderful these people are all able to participate in something they love and excel at it. And I really do enjoy seeing their happy faces beaming with the pride of what they’ve achieved with a lot of hard work. There are so many individuals exceeding expectations, goals and misconceived mindsets, and it is a sight to behold. Of course they should celebrate and share their accomplishments, but I think we as a society desire the “higher functioning” child

What about those so-called “lower functioning” individuals? What place do they have? Shouldn’t the child quietly sitting in a wheelchair deserve as much recognition and acceptance for their abilities, whatever they may be or as minor as they may seem?

This is my conundrum too. How to celebrate without excluding. Read the whole essay. She finishes:

I want these people to be valued and praised as much as the ones who can run, talk, dance in recitals, score a touchdown, shoot a winning 3-point-shot, earn their high school diploma or graduate from college by the time they’re 16. I’d also love to see a child with Treacher Collins syndrome or a cleft palate (repaired or not) grace the pages of a department store catalog.

If you’re promoting the acceptance of disabilities, then please embrace and include everyone — the lower functioning, the mid-functioning and of course the higher functioning. They all have a story and need to be celebrated because in the end all life is precious, no matter the functioning level.

I share the concerns. I see the “get disabled kids into advertising” campaigns mostly succeeding in putting conventionally cute white children into advertisements. I see the “high functioning” label being used to segment and divide. These results are unintentional. They are also true. What do we do? How do we fix this?

So again I say, as I do almost every day – fight disability hierarchies. Parents, high functioning individuals, people with physical but not intellectual disabilities, white people with disabilities, wealthy people with disabilities – we are atop the disability hierarchy. We have power and privilege.

Use it to change the epistemology.

The Rise of Neo-Primitivism

I’ve become increasingly interested in nostalgia, especially when used as political discourse (following the scholarship of my friend Matthew Gabriele (@prof_gabriele), a professor at Virginia Tech).

It reminded me of this recent essay from Andrew Potter, the editor of Ottawa Citizen, on the “Rise of Neo-Primitivism.” Potter describes the “neo-primitives” imagined by speculative fiction author William Gibson, and links these fictional people to moderns. He writes:

From the paleo diet to the “ancestral health” craze to the criminals leading the anti-vaccine movement, we live in neoprimitivist times, in precisely the manner sketched by William Gibson. A disturbingly large segment of society has adopted a highly skeptical and antagonistic relationship to the main tributaries of modernity. But as in The Peripheral, these people are not opting out of modernity, going off the grid or deciding to live in caves. Instead, they are volunteering for “another manifestation” of modernity, living in the modern world, without being entirely of it, or even understanding it.

It’s an interesting essay throughout, talking about the faux authenticity ascribed to “natural” and “nature” in this modern world, and the consequences.

The philosopher Bertrand Russell once noted that the misfortunes that can befall humanity can be sorted into two broad categories: things that are inflicted by nature, and things that are inflicted by humans. For most of our history, a great deal of suffering was due to natural causes such as famine, disease, and disaster. But as we have developed in knowledge and skill, the class of harms inflicted upon humans by other humans has come to occupy a greater chunk of the total. Put simply, there is less disease but more war, and as a result, we’ve come to believe that “nature” is relatively benign, while “civilization” is increasingly a threat.

Nothing could be further from the truth. Yet we are caught in the grip of a fierce nostalgia, where the thought of contracting a disease like the measles is not something to be feared, but to be welcomed as a sign of our profound connection to nature.

We live in neoprimitivist times. Authenticity seeking wedded to technophobic irrationalism has led us to a bizarre situation where we are increasingly ignorant and suspicious of the scientific and technological underpinnings of our world. It’s like fish deciding that water is their enemy.

I don’t know that I agree with all his conclusions – some of the mistrust of technology is learned, rational, behavior. But I like the concept of nostalgic neo-primitivism.

Academics Talk About Money

Recently, I’ve seen a positive trend – Academics talking bluntly about money.

Talking about money doesn’t besmirch intellectual activity; rather, being paid fairly enables more and better intellectual activity.

We exist in a profession in which talking about money is gauche. We’re supposed to work because we love it (read this essay on the exploitation built into the concept of “do what you love“) and, of course, our institutions’ financial structures positions tend to be secretive and haphazard.

I believe that silence about money keeps academics from thinking of their work as work. Wanting to be paid fairly for our work is not betraying a higher intellectual calling; rather, being paid fairly is what enables us to pursue our callings.

Here are some recent pieces on this theme. I don’t agree with everything said in all of them, but I’m thrilled the conversation is happening:

The conversation is being driven, appropriately, by people writing about the non-tenure-track and alt-academic careers. They have no choice but to think explicitly about finances, but are still part of a culture that discourages it. That’s why we, as a profession, are so fortunate to have such outstanding alt-academic and post-academic writers.

I start with excellent column by Katie Rose Guest Pryal​ (one of my absolutely favorite Chronicle writers) on “the university as a client” for “freelance academics.” Pryal writes:

It begins with a shift of mindset—from that of employee to that of freelancer. As a freelancer, your institution is just one of your many clients. That means you need to spend your extra time and energy on projects that earn you money and respect outside of one particular institution. 

I love the “one of many clients” language for the freelance academic. The relationship may be different for the full-time professor, in that we may have fewer clients, but even so, we can think like a savvy freelancer and benefit from it, as discussed in this next piece.

Pryal’s call was taken up in another Chronicle piece (not by me) on marketing yourself as a freelancer while a tenured professor. The author, a humanities professor writing under the pseudonym “Sam Johnson,” talks about the tenured entrepreneur.

Here’s the line in [Pryal’s] essay that really caught my eye: “If you are a tenure-track professor … and you’ve noticed that higher education might not be able to sustain you either, then I’m also talking to you.”
I came to that exact realization a few years ago, after receiving my last promotion and struggling through several years without so much as a cost-of-living raise. The resulting epiphany has changed the way I look at my work, revitalized my career, and improved my life immeasurably.

Once Johnson realized that their skills – “teaching, training, speaking, writing, editing” – had monetary value, marketing followed, then significant income. The piece writes about making the leap both conceptually and pragmatically, including how one draws boundaries between oneself and one’s main employer.

Meanwhile, “The Tenured Radical” wrote a blog post called “How we make money from books.” She seems to be responding to debates about how stringently to fight for a bigger advance/royalties from academic publishers. Her argument is – don’t. Academic book publishing is structurally designed not to make money for authors in almost all instances (not textbooks), but she’s not saying we should write for love. Rather, books make us money in other ways – i.e. getting jobs, speaking fees, etc. What I like about this piece is that the basic premise – money matters – isn’t in dispute. The question is how to maximize one’s returns, and that’s a fine subject for debate.

One problem in academia is that we valorize certain kinds of money making activities and not others. Clearly, the pseudonymous Chronicle author is concerned that their outside activities might violate a contractual position on secondary employment, even as their wages stagnate and expenses mount. Or maybe, they just don’t want to get criticized for “selling out.” Here’s my advice to artists and intellectuals – sell out. You’ll do better art when your bills are paid.

And it’s not confined to academia – writers of all types have been posting essays on getting paid. I think it’s health. Here’s Jim Hines, an SFF novelist, posts his writing income every year. Ann Bauer, at Salon, talked about the way her writing is supported by her husband’s salary and why it’s essential to be open about that. “Who pays writers” is an anonymous crowd-sourced list of rates from Scratch Magazine. There are others, but that’s a good sampling of the kind of non-academic writing on money that’s out there.

I am a freelance journalist. It took me ages – dozens of essays – to embrace the word freelance, because freelance suggested that I am writing for the money.

I am not writing for money. If I were writing for money, though, that would be fine, as we could use the money. I could recite long list of unimpeachable expenses relating to child and elder care, but I won’t, because frankly if I were writing to make money to make car payments on my HumVee, that would be fine too (seriously people, I do not have a HumVee. I drive a 1997 minivan with 200K miles on it).

I started writing because I thought I had some things to say and I found venues to say them in, almost all unpaid. I finally learned to ask the question, “what is your rate for freelancers.” It turns out that almost all publications have them, they are not negotiable at my level, but they’re mostly fine. And when people say they can’t pay, no matter how interesting, I don’t write for them (I do sometimes allow them to re-publish my blogs).

This has all made it easier to do more writing. I am a disciplined writer because it’s work. I market myself, increasing my visibility, and thus making it possible to land more visible writing gigs. I work harder for $400 essays than for $100 essays (that’s basically the range for me), especially in terms of the research and interviews that lie behind them.

Being paid has helped me invest in my writing – a better phone for interviews and recording conversations. I’m going to buy a better voice recorder soon though. A landline for when I am intereviewed. Cable (I’m reviewing some cable TV shows). Books with relevant information.

Last year I published about 45 essays. I would have had to publish about 350 essays to make anywhere near my current salary (which is very low on the AAUP scale of what professors make).

I am now learning to quote a speaking rate comparable to other journalists, though between you and me, I’m always ready to undercut myself and come talk to anyone who wants to listen. If you have the money, though, you should pay your speakers well.

Again, here’s the principle – Fair pay for work makes it possible to do more and better work, and there’s lots of work that needs doing. Academics need more blunt talk about pay.

The Arguments – Sheehan vs SF

The arguments for Sheehan vs SF are a little weird. Predictions, always fraught for the Court based
Monty Python: The Argument Clinic

on oral arguments, are going to be even harder in this case, because the city changed their brief between cert (when SCOTUS took the case) and filing.

From the arguments, it’s clear that the court took the case so they could rule on the extent to which the ADA applies to arrest, particularly of a potentially violent individual with a known disability. They were not especially interested in the Fourth Amendment issues. The ADA question is vital.

However, after cert, perhaps due to pushback from the ACLU and other groups, the city changed their brief. Scalia launched in at the SF attorney (Christine Van Aken, who I interviewed for my Al Jazeera piece) saying that she had pulled a bait and switch, arguing a big point in the petition, and changing it to a narrow one in her brief.

Here’s an excerpt from the arguments [my emphasis]:

JUSTICE SCALIA: Your petition for ­­ for writ of certiorari, and it was a petition that had your name on it, said on ­­ on the reasons for granting the petition, this Court should resolve whether and how the Americans with Disabilities Act applies to arrests of armed and violent suspects who are disabled. The circuits are in conflict on this question. The question presented is recurring and important, and Title II of the ADA does not require accommodations for armed and violent suspects who are disabled, and that’s the issue on which there is a circuit conflict.

Van Aken replied that the issue is to what extent Title II applies, not whether it applies, but Scalia and the other justices, both liberal and conservative, seemed eager to weigh in on that question. 

If you’re interested, I highly recommend reading the transcript. It’s conversational, not filled with much technical legalese, and fascinating. 
Basically, the court might just make a narrow ruling, based on the actual briefs, and move on. Or they might decide to weigh in on Title II protections anyway. That would, I suspect, be bad (Roberts, Alito, Scalia, and Thomas are no friends to the ADA, based on my reading of the record. Again, though, I am not a Supreme Court expert).
It was, though, the Solicitor General’s comments that demonstrate this to me – the ADA will never be the tool that really helps stop police violence against people with disabilities. At best, it might mitigate behavior in very specific circumstances in which the disability is known ahead of time – and the Sheehan case meets that bar. But that’s the limitation.

JUSTICE ALITO: But in the case I posited, there would be an issue about whether the officers should have known that this person was behaving bizarrely, had a mental illness?

MR. GERSHENGORN: We don’t believe that should have known is the standard in the ADA. So it’s not a should have known standard with respect to the disability.

This is the problem. The ADA medicalizes even though it emerged from the social model of disability. Instead, we need to reform police tactics to apply to all situations, not just for the Sheehans.

That said, Sheehan’s case remains strong to me. SF’s case is based entirely on hypotheticals. I hope the hypotheticals don’t carry the day.

Sheehan vs SF: Waiting on Transcripts

Oral arguments for Sheehan vs San Francisco will begin at the Supreme Court in a few hours (it’s the

second case of the day). It will provide the opportunity for the court to do a number of things.

Here are the questions before the court:

Whether Title II of the Americans with Disabilities Act requires law enforcement officers to provide accommodations to an armed, violent, and mentally ill suspect in the course of bringing the suspect into custody; and

Whether it was clearly established that even where an exception to the warrant requirement applied, an entry into a residence could be unreasonable under the Fourth Amendment by reason of the anticipated resistance of an armed and violent suspect within.

What might the court do? They could …

  1. Affirm or severely limit the protections of the ADA for people with disabilities as they apply to policing.
  2. More clearly define the limits of qualified immunity (the Fourth Amendment issue).
  3. Carve out a narrow ruling that sends the case back to the Ninth Circuit and doesn’t establish wide precedent either way.
Three, I think, is the best we can hope for. I am not a lawyer nor a Supreme Court expert, but I did talk to a lot of lawyers, though, previewing the case for Al Jazeera America yesterday. I argued: “This case will determine to what extent police can be held accountable to the best practices of their profession.” Please consider reading and sharing my piece.
There are best practices. The police did not follow them. Their claims as to the “public safety” risk that Sheehan presented consistently run counter to the facts, but the law in fact allows them to make up what a “reasonable officer” might have imagined, even if neither officer at the time believed it. 
Here’s a very useful preview, especially in its summary of the US Government position on the ADA. My emphasis:

The United States’ ADA argument asks the Court walk a line between the Petitioners’ and Respondent’s arguments. Title II requires officers to provide reasonable accommodations during the arrest of mentally disabled individuals. Yet, if objective evidence causes concerns about public or police safety, then it might not be reasonable for police to provide accommodations (i.e., delay immediate entry to arrest). In those situations, safety can outweigh accommodations. And despite the importance of safety, the United States refused to make the safety exception ironclad, arguing that a plaintiff “should remain free to show that special circumstances rendered a modification reasonable.” (U.S. Amicus Br. 7.) For this case, the United States asked the Court to pass on rendering judgment on the reasonableness of the officers’ actions by instead remanding the case to the Ninth Circuit to determine whether Respondent, who would bear the burden of proof establishing that “special circumstances” were present, was owed reasonable modification despite the safety risks she posed.

In terms of the ADA, that’s pretty much what I hope for. That the court affirms the right of a person like Sheehan to argue that she was owed a reasonable accommodation. I’d prefer a much stronger position from the government and for the court to enhance the power of the ADA, but I don’t expect that.

More later once the transcript is up. Also, I continue to maintain it is ludicrous that SCOTUS isn’t live-streamed.