“No Interracial Couples”: On religious liberty in Indiana

Even as an atheist, I strongly support the preservation of religious freedom from most kinds of state intrusion.

You should be able to wear your religious head covering of choice, even in driver’s license photos. Prisons should provide kosher or halal meals and allow prisoners to keep their beards. Native American tribes that use peyote in their traditional religious ceremonies should be exempted from the laws against that substance. Thankfully, this norm is generally and increasingly used to settle these questions.

One major problem with the Indiana Religious Freedom Restoration Act, however, is that it also includes disputes that are exclusively between private parties. Section 9 reads, in part:

A person whose exercise of religion has been substantially burdened, or is likely to be substantially burdened, by a violation of this chapter may assert the violation or impending violation as a claim or defense in a judicial or administrative proceeding, regardless of whether the state or any other governmental entity is a party to the proceeding.

This means that it will not only give heft to plaintiffs who seek to overturn state actions that substantially burden religion. It will also apply to civil actions between private citizens — including companies — giving a potential fig leaf defense to obviously noxious and discriminatory behavior.

The cliche example floating around is the bakeshop being forced to make a wedding cake for gay couples despite religious objections to the wedding itself. There are far, far more substantial issues in play than dessert, but even if we keep it at the level of the admittedly less-than-life-or-death, it’s easy to see the problems here.

Imagine a Christian bakeshop that refused to bake a cake for a Jewish or Muslim wedding. Imagine that’s it’s someone who sincerely objects to interracial marriage, on religious grounds — and yes, while this was far more common half a century ago, I’m sorry to report that these people still exist.

While racial animus is less accepted today, it’s still sincerely held by many and religiously grounded for some. Just because that’s passé and anti-gay sentiment is still held by a substantial portion of the population, is the legal and moral question any different? Is the discriminatory potential — and, let’s be frank, intention — clear yet?

Imagine bakeries with “No Interracial Couples” signs in their windows, or even an implicit policy to that effect. Offended yet? Even though this might be motivated by sincere religious belief? Would you object to a law that tells the victims of such discrimination that state courts are likely closed to them?1)The obvious intent and far more likely outcome of this law is to gut local ordinances that provide LGBTQ protections. Yet it would at least re-open the question of racial and religious discrimination in the context of any applicable state laws. Religiously-motivated racial, ethnic, religious, and gender discrimination might be permitted by state law, at least in some contexts, and we wouldn’t know until the courts sorted it out. In less life-or-death contexts, such as refusing to bake a cake for a Jewish wedding, some judges might find the state interest to be insufficiently compelling. Do you want to tell that couple, “It’s federal court or bust.”? I sure don’t. My broader point, however, is obviously that this provides an analogy, bringing the battles of the mid-20th Century to bear on today’s civil rights battle. Good, that means you’re a decent human being.

Now, let’s get out of the bakeshop, because this will likely grant a hall pass for discrimination in far more serious contexts.

There is no federal protection for LGBTQ folks and no statewide protection in Indiana. Even in the towns where there are protections, however, this bill essentially guts those — a transparent intent behind the bill.

Thus, imagine hoteliers turning away LGBTQ couples. In the context of racial discrimination, this was decided 51 years ago, but it’s now an open question in Indiana.

Imagine realtors refusing to work with people whose lifestyles they find morally objectionable. Imagine bankers turning down loan applicants and even would-be account holders. Imagine teachers refusing to meet with parents in same-sex relationships.

All of these might now be legally sanctioned as long as they are motivated by religious (rather than secular) animus.

These acts of discrimination need not even be grounded in religious tenets that are central to one’s faith. The act clarifies:

Sec. 5. As used in this chapter, “exercise of religion” includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief.

Talk about a free pass. Any exercise of religion counts, even if it’s as transparently silly as a Pastafarian head covering — but, you know, used for discriminatory rather than parodic effect.

This means that, except where state or federal law provides otherwise, even the thinnest veneer of religious objection will excuse wanton, explicit discrimination. It also means that these religious fig leaves will also force a plaintiff and/or the state to re-establish how compelling the state interest is in all the laws that ban discrimination.

No wonder thirty legal scholars signed a letter opposing the bill (pdf). They warn that the law will

likely create confusion, conflict, and a wave of litigation that will threaten the clarity of religious liberty rights in Indiana while undermining the state’s ability to enforce other compelling interests. This confusion and conflict will increasingly take the form of private actors, such as employers, landlords, small business owners, or corporations, taking the law into their own hands and acting, in ways that violate generally applicable laws on the grounds that they have a religious justification for doing so. Members of the public will then be asked to bear the cost of their employer’s, their landlord’s, their local shopkeeper’s, or a police officer’s private religious beliefs.

In other words, this bill will wreak havoc on the legal order in the state of Indiana, and the stakes are heck of a lot bigger than wedding cakes.

The only good news about this bill is the backlash it has engendered. Indiana is getting pushback from athletes, celebrities, and CEOs — but also sports organizations like the Pacers, the NCAA, and even NASCAR. NASCAR!

Despite this backlash, however, the Arkansas legislature has just put a very similar bill on the desk of Governor Asa Hutchinson. We will soon know whether the pull of the reactionary right outweighs the voices for equity, to say nothing of the rapidly growing chorus of opponents in the business world.

Arkansas-based Walmart — which may make more money from both homophobes and from LGBTQ people than any other company in the country — has weighed in against that state’s bill. If it passes, though, I wonder if they’ll try to find a way to argue that their religion forbids collective bargaining.

Footnotes   [ + ]

1. The obvious intent and far more likely outcome of this law is to gut local ordinances that provide LGBTQ protections. Yet it would at least re-open the question of racial and religious discrimination in the context of any applicable state laws. Religiously-motivated racial, ethnic, religious, and gender discrimination might be permitted by state law, at least in some contexts, and we wouldn’t know until the courts sorted it out. In less life-or-death contexts, such as refusing to bake a cake for a Jewish wedding, some judges might find the state interest to be insufficiently compelling. Do you want to tell that couple, “It’s federal court or bust.”? I sure don’t. My broader point, however, is obviously that this provides an analogy, bringing the battles of the mid-20th Century to bear on today’s civil rights battle.

How to Solve the Vaccination Problem: Two Politically Feasible Proposals

My last post, “Is It Constitutional and Desirable to Require Vaccinations?“, asked serious questions about what at this rate is still probably not necessary. Here, I make two proposals that would be good policy right now, and would also be politically palatable.

After all, roughly 92% of American children are getting their MMR vaccine. How do we deal with the other 8%? This matters to everyone because vaccines are not 100% effective, and infants and some other folks can’t get vaccines for health reasons.

1. Eliminate, or at least harden, non-medical exemptions for school students

There are already two states, Mississippi and West Virginia, that only accept medical exemptions for public schools — not even religious exemptions. Little wonder, then, that Mississippi has a 99.7% MMR vaccination rate among kindergartners. It has been more than 20 years since either state had a case of measles.

This is good policy, and it should be adopted by the other 48 states. If your personal or religious beliefs are so strong that you insist on ignoring the advice of the collective, virtually unanimous opinion of medicine writ large, fine. You have to find another way to educate your children, at your own expense.

There is a bill in the California state legislature to do exactly this.

It’s getting some pushback from vaccine fear mongers, of course, but also from libertarian types. Here’s the thing, though: You don’t get to take advantage of a public service,  provided at public expense, and then tell the body politic that some very reasonable conditions placed on that service are a violation of your individual liberty.

It’s against policy to smoke anywhere on a K-12 campus in most if not all states — including in North Carolina, for G-d’s sake — and this infringement of liberty has come about with broad if grudging acceptance even among the gravelly-voiced crowd.

If you believe in this extreme of a version of personal liberty, you’re probably a follower (at least indirectly) of Ayn Rand. So take that reasoning to its conclusion. Rand didn’t even think public schools should exist. Until we abolish public schools and live in an objectivist utopia, then, there are just some times — from vaccines to seat belts to food safety inspections — that your liberty to do things “your way” might be curtailed.

Again: It’s constitutional to require vaccines, period, on penalty of a sizable fine. Requiring vaccines as a condition of using a public service? Sorry, not a violation of your basic rights.

But, you might say: What about private schools? Won’t all these well-off anti-vax families just pony up to send their kids elsewhere? A number surely will. The state should therefore also make private schools publicize their vaccination policies, exemption rates, and number of confirmed cases of vaccine-preventable diseases per year for the last five years. They should have to share this, in writing, with all current students’ parents and with any potential new students’ families.

A number of softer-hearted souls have proposed merely hardening the rules on personal exemptions — making it harder for parents to get the forms, making them resubmit every year, making them complete online learning modules, and so on. This has been partially effective, but it does not go far enough in my view.

“Resisting vaccination isn’t a matter of laziness; it’s actually time-consuming and expensive,” writes Whet Moser. Which means the same kind of parent who clings to anti-vax believes is also the kind of parent who will do “anything” for their kid. (Except, you know, make the single easiest decision a parent can make.) Instead of daring these folks to jump through more hoops, just keep the kids out of public schools, period.

If you want to compromise on the religious exemption, that is more reasonable — or, at least, less subject to the whims of changing opinions. I would, however, add a mechanism for sniffing out sham churches set up for this purpose.

I don’t feel particularly compelled to give on even this point, however. We have all sorts of rules in public schools that might conflict with a sincerely held religious belief, from mixed-gender classrooms to not letting kids get out of biology class because they don’t believe in evolution. If parents want something different on these counts, they have to find a school that meets their beliefs, and putting vaccinations on this list is perfectly reasonable.

2. Medical Isolation

Many people are talking about school policy changes, but I’m also concerned about infection at the doctor’s office — where you’ll find a disproportionately large share of infants and immunity-compromised children.

Thus, I propose that all medical offices have to post their vaccination policies prominently, and those caught not sticking to theirs are subject to a serious fine.

Imagine walking into the office and seeing this:

Statement of Office Policy on Vaccinations

XThis office only accepts patients that are up to date on their vaccinations (barring medical exemptions), and we verify.
This office only accepts patients that are up to date on their vaccinations (barring medical exemptions), but we do not verify.
X(If either of the above is checked) This office has after-hours "catch up" vaccinations.
This office accepts patients regardless of their vaccination status.

In today’s climate, that would be very reassuring to see. And if I make an appointment, show up, and instead it’s Box 4 that’s checked? My kid and I are going elsewhere.

If I discover this, I should leave, and I shouldn’t be forced to pay a cancellation fee. Such an office should also have to get written assent to this choice from all patients before they can bill for dollar one.

Box 2 would probably work well enough as long as patients/parents have to sign a statement, under penalty of perjury. Which brings up another important point: Verification would work best if states require that all immunizations be submitted to the state database. Vaccinating doctors are not required to submit this information in some states, such as (I’m very sorry to see) California, so it would be a good bit of extra work to be a Box 1 office.

I would probably be comfortable taking my child to a Box 2 medical office, but he’s 10, vaccinated, and healthy. If I had an infant or other especially vulnerable child, though, I’d really try to find a verified-immunization office.

It would be hard to find a doctor who’s willing to advertise to their patients that the unvaccinated are explicitly welcome in their office. Sure, even the occasional anti-vax quacks can be found, but it’s becoming hard to find doctors who will even see anti-vax parents. (Even without a mandate, if I were a doctor, I’d post a prominent “must be vaccinated” notice in my office, and I suspect we’ll start to see this soon in any case.)

So that’s my proposal: No public school without vaccinations or a valid medical excuse, and mandatory notice about medical office policies.

If you’re not vaccinating your children, you’re free-riding on herd immunity (to say nothing of harming your own child!), and the herd should try to limit the damage that your adorable little disease vector can do to the rest of us.

 

 

 

 

 

 

 

Is It Constitutional and Desirable to Require Vaccinations?

(This is the first of two posts, in which I ask if it’s desirable and constitutional to require vaccinations as a matter of law. My more pragmatic policy proposals are in part two.)

As with many others, I’ve been on an anti-anti-vax rampage on social media.

(I should perhaps rethink my strategy, but it’s not clear that there is a good strategy for dealing with someone once they’re in that camp. It’s not the first such example, either. How do you argue with a Scientologist? How do you convince congressional Republicans that we won’t eliminate the deficit without either raising taxes or seriously harming the economy? There aren’t a lot of good solutions here.)

Thus, one of my more libertarian friends (who gets all her kids’ shots, thank G-d, but who thinks you should use an alternative vaccination schedule that delays vaccinations) posted on my wall to ask if I would really support an infringement on individual liberty in the form of forcing folks to get vaccinated.

To which I say: Hell yes! I would support it, and it would even be constitutional. Which is not the same thing as supporting such a policy as politically pragmatic — but I have an answer for that, too.

As for my personal preference for whether we should force people to get vaccines against airborne pathogens — when they have been proven safe and effective, winning near-universal support among medical experts: Yes, I do want to live in that world.

I suppose I’d allow an exemption for truly anti-modern-culture isolationists who agree to keep away from broader society. (The Amish seem not to qualify on either count, by the way, with the majority getting vaccinated AND their willingness to participate in commerce with outsiders. Zippers no, shots mostly yes. Who knew?))

But in the general population — among those healthy enough to be vaccinated, of course — yes, I would support forcing folks to get their shots. If you’re not willing, I would gladly levy a stiff fine. (I mean, I’m not proposing that we lock unvaccinated families in a tent inside a hospital in Newark where they have to poop in a bucket or anything. That would be inhumane.) This would be especially effective if it had a high ceiling and explicit instructions to judges that it should be proportional to income — since, you know, being an anti-vaxxer seems primarily to be a disease of privilege.

The Supremes ruled on this over a century ago, by the way, in Jacobson v. Massachusetts. In 1905, the court ruled that Massachusetts was within its power to fine Jacobson five dollars (equivalent to roughly $130 today) for failing to get vaccinated, at zero cost to himself, against smallpox.

The Wikipedia article is mostly accurate — relative to my skim of the case (IANAL, as always) — but read some of what the Supremes have to say on the matter. Pretty convincing, and definitive, stuff:

… the liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good. On any other basis organized society could not exist with safety to its members. Society based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy. Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others.1)Court footnote 7

Not a lot of wiggle room left there. Watch them apply it to this specific question:

Upon the principle of self-defense, of paramount necessity, a community has the right to protect itself against an epidemic of disease which threatens the safety of its members. It is to be observed that when the regulation in question was adopted smallpox, according to the recitals in the regulation adopted by the board of health, was prevalent to some extent in the city of Cambridge, and the disease was increasing. If such was the situation,—and nothing is asserted or appears in the record to the contrary,—if we are to attach, any value whatever to the knowledge which, it is safe to affirm, in common to all civilized peoples touching smallpox and the methods most usually employed to eradicate that disease, it cannot be adjudged that the present regulation of the board of health was not necessary in order to protect the public health and secure the public safety. …

 

If the mode adopted by the commonwealth of Massachusetts for the protection of its local communities against smallpox proved to be distressing, inconvenient, or objectionable to some,—if nothing more could be reasonably affirmed of the statute in question,—the answer is that it was the duty of the constituted authorities primarily to keep in view the welfare, comfort, and safety of the many, and not permit the interests of the many to be subordinated to the wishes or convenience of the few.2)Court footnote 8

The court goes on, at length, in a way that might make the Ayn Rand followers of the world a bit uncomfortable. I feel no obligation to assuage their feelings, however. If what you’re doing might harm or kill me, the state has a right to stop you from doing it — even if it’s something as banal as forcing restaurant employees to wash their hands. Ditto foolish self-harm, such as with seat belt and helmet laws.

The decision is also a fantastic read for some historical context on exactly how far back the consensus on vaccines really reaches. For instance:

[Jacobson’s arguments] in the main seem to have had no purpose except to state the general theory of those of the medical profession who attach little or no value to vaccination as a means of preventing the spread of smallpox, or who think that vaccination causes other diseases of the body. What everybody knows the court must know, and therefore the state court judicially knew, as this court knows, that an opposite theory accords with the common belief, and is maintained by high medical authority.3)Court footnote 10

It is therefore the law of the land that, when confronted with a deadly infectious disease that is reliably and safely vaccinated against, a state or municipality may affirmatively compel the populace to be immunized.

This has been the definitive law of the land for 110 years, and the medical consensus behind — and safety of — vaccines has only increased.

This decision is many times more remarkable because it is from an era (the start of the Lochner era — Jacobson was published just two months before Lochner v New York) where the Court had a much, much more restricted view of what the state is allowed to do under the Constitution. This is the same session when the court held it unconstitutional for a state to tell employers how many hours a worker could work, and yet it held mandatory inoculation against deadly disease to be fully constitutional and consistent with American values.

I agree on both counts — constitutionality and consistency with our values. This is doubly so when it comes to children. They’re not your property. If you starve them or assault them or psychologically torment them, the state can and should intervene.

On the affirmative side, you have to send them to school or educate them in some comparable way, period; the value of education is not up for debate. When parents won’t do what’s demonstrably in a child’s best interests, the state can intervene and — when the risk is serious — should seriously consider doing so.

Thankfully, there are less invasive policy choices that would likely lead to the same desirable outcome of a return to near-100% childhood vaccination. That is the subject of my next post.

Footnotes   [ + ]

1. Court footnote 7
2. Court footnote 8
3. Court footnote 10

On DeflateGate, Statistics, and Reasonable Inferences

[I’m not a sports analyst, and this is not a sports blog. We’re scholars, especially of political communication, politics, and media policy. But I do crunch numbers, and I thought I could help add something to this debate.]

[Also, corrections and updates at the bottom, appended Jan 28, 2pm-ish.]

We’ve all spent the last week hearing a lot about Tom Brady’s balls. Patriots fans and Pats haters are fighting online with a viciousness that’s hard to overstate. A good number of you have also seen the use of statistics to try to sort out whether the Pats have a measurable advantage in something that would be directly related to the inflated pressure of footballs — namely, fumble rates. Statistical analysis is only good, however, if the data are correct, if we are testing what we think we are testing, and if we are using the right statistical tools for the job. In this case as in so many, we need more good analysis that asks the right questions and uses the correct data.

This post has a lot to say, so here’s a summary: Continue reading

Posted in Fun

Bill Simmons and ESPN’s Ombudsman: Is Goodell enough of a “certified liar”?

In his column on Bill Simmons’ suspension, ESPN Ombudsman Robert Lipsyte comes off as blissfully unaware of how ESPN’s action looks — parroting and even sanitizing the company line.

For those who missed the details, Judd Legum nicely sums up the silliness of the suspension: “ESPN Suspends Bill Simmons For Calling [NFL Commissioner] Roger Goodell A Liar, After ESPN Reported Roger Goodell Is A Liar.”

What really happened is the network suspended him primarily for taunting and thereby implicitly criticizing his superiors, but more on that in a bit.

As for whether Simmons should be allowed to call Goodell a liar, Lipsyte insists that, until there’s “a smoking gun that proves when the NFL viewed the Ray Rice video” (emphasis added), Simmons is off base. Until and unless such a smoking gun emerges, Roger Goodell is not a “certified liar”, Lipsyte argues.

Contrast this with what Simmons actually said on his podcast: “Goodell, if he [says he] didn’t know what was on that tape, he’s a liar.” (Emphasis added.)

There is a major difference between seeing a video and knowing what is on the video, and conflating the two is exceptionally sloppy for an award-winning journalist.

To help illustrate: Thanks to several young children, I know a great deal about “Frozen”, despite not having seen the film.

If I watch Frozen this weekend and say, “Wow, I had no idea it would have so much singing!”, I would be a liar. If I were to claim that I had desperately wanted to see the film earlier, but before that point, I had had no way to see the film — you know, as opposed to deliberately having avoided some pretty clear opportunities — I would be a liar. Just like Roger Goodell is a liar. A lying liar who lies.

(Also, I dare Roger Goodell to sue me for libel.)

Simmons’ actual claim — that Goodell knew what was on the video and is lying when he says otherwise — were already well-documented by the fine investigative piece by Don Van Natta Jr. and Kevin Van Valkenburg published on Sep. 19 — that is, days before Simmons’ Sep. 23 podcast for which he was suspended.

Goodell fibbing about whether he knew what was on the tape is only part of what Van Natta and Van Valkenburg identify as “a pattern of misinformation and misdirection employed by the Ravens and the NFL since that February night.”

Of course, to accuse someone of a “pattern of misdirection and misinformation” is to call them a liar, albeit using five-dollar words.

In a now-infamous CBS interview, Goodell says explicitly that he had no idea what was on the video. Not only has ESPN reported that several insiders say otherwise, as Simmons himself pointed out in a Sep. 11 column, “back in July, two well-connected reporters (Chris Mortensen and Peter King) reported what NFL sources had told them happened in that second elevator video … and they got the details correct.”

Follow those Mortensen and King links (reproduced from Simmons’ column). For those of you who couldn’t stand to watch the video but wanted to know what was on it, Mortensen’s account is startlingly accurate. Again, this is from July and based on his insider access to league sources.

What Peter King wrote should, in hindsight, be viewed as an even bigger deal than what Simmons implies:

There is one other thing I did not write or refer to, and that is the other videotape the NFL and some Ravens officials have seen, from the security camera inside the elevator at the time of the physical altercation between Rice and his fiancée. I have heard reports of what is on the video… (emphasis added)

King walked back this claim on Sep. 8, after the video was leaked and the league denied that anyone had seen it earlier:

Earlier this summer a source I trusted told me he assumed the NFL had seen the damaging video… The source said league officials had to have seen it. This source has been impeccable, and I believed the information. So I wrote that the league had seen the tape. I should have called the NFL for a comment, a lapse in reporting on my part. The league says it has not seen the tape, and I cannot refute that with certainty. No one from the league has ever knocked down my report to me, and so I was surprised to see the claim today that league officials have not seen the tape.

Again, he wrote in July that the league and team had seen the inside-the-elevator tape. Then, over a month elapsed without anybody pulling him aside and correcting him.

To understand how significant this is, you have to know Peter King’s place in the NFL universe: one of the least critical, best-connected reporters whose rolodex of sources is a close approximation of “everyone”. King regularly takes calls from, and casually calls, league sources all year. He’s widely known as a friendly mouthpiece. (This is mostly true of Mortensen as well.)

If Peter King says something that the league doesn’t think is accurate, or even something they would like to add to or clarify, to any degree, King is essentially guaranteed to receive — and take, and respond to — a call from an insider.

The last sentence from King’s Sep. 8 correction is as close to damnation as we are likely to see from him on this point. It rightfully implies that (especially coming from him), “No one from the league has ever knocked down my report to me” pretty much speaks for itself.

Thus, Roger Goodell is a liar, on this and many other counts. Simmons says as much. Then, alluding to his past troubles with ESPN, he dares them to discipline him, and they take the bait.

Little wonder the network is being excoriated all around the web. Deadspin points out that Simmons was merely “restating conventional wisdom.”

Business Insider fairly characterizes it as a hint “at the idea of corruption and censorship” at the network.

As if on cue for their entry as the protagonist in a Greek tragedy, management has enacted a suspension that proves Simmons’ implicit point splendidly. They’ve provided pretty good evidence that certain people (management) cannot be criticized, and that others (NFL leadership) should generally be criticized only in the most high-brow language — five dollar words only, please, and only when the evidence is incredibly overwhelming.

The suspension is feeding already-extant skepticism about the network’s ability to consistently (as opposed to intermittently) allow their talent to reach their own conclusions and share these publicly.

It is reminding many fans and writers of the network’s 2013 decision to pull out of its partnership in the “Frontline” documentary about concussions in football. Right now, Google News shows 788 results for [Simmons suspended Frontline documentary].

The message to Simmons was, undoubtedly, “You can’t criticize us publicly like this.” That is chilling enough. A substantial portion of the population, though, hears (at least in part), “You can’t criticize our content partner like this.” Even if that’s not the real motivation, the optics are (to quote Charles Barkley) just turrible.

This is where an Ombudsman is supposed to provide an outsider’s corrective — a reassurance to the reader that well-founded outside criticism will always have at least one ally in the building.

The more defensible (and, in reality, motivating) reason Simmons was suspended was for dissing management. While Lipsyte alludes to this (implying that the suspension is also due to management’s “thin skin”), he opens and closes by insisting that this story is really about whether Simmons had the goods for his claim — and he concludes that Simmons didn’t have the goods.

That takes real chutzpah from somebody who substantially misrepresents the claim in question.

Even as the hordes crash at the gates in Bristol, the Ombudsman — the Ombudsman — writes to reassure us that management basically got this one right, without even deigning to rebut claims that this sure looks like a result of the network’s conflict of interest. “Obviously I disagree” with such critics is all we get. When the very integrity of the network is being questioned, blowing off those questions is tone deaf indeed.

Goodell is a liar. Simmons was correct in calling him a liar. And ESPN was some combination of corrupt and petulant to discipline him for it.

If even the Ombudsman is this tone deaf, ESPN still has a lot of tuning up to do.

#FreeSimmons

News Coverage of Economic Immobility: Free of Historical Context

A recent Harvard study has found that economic mobility has not changed substantially in the last couple decades.

This has been framed repeatedly in the media as “mobility has not declined.” The Times headline is literally, “Upward Mobility Has Not Declined, Study Says”.

The NPR headline, “Study: Upward Mobility No Tougher In U.S. Than Two Decades Ago“, captures that story’s spin. Over at the New Yorker? “Social Mobility Hasn’t Fallen: What It Means and Doesn’t Mean“.

The reason for this framing is surely that political leaders of several stripes have contended that mobility actually is going down. Remarkably, this has included not only by Obama and other Dems, but also visible Republicans like Paul Ryan.

Still, just because political leaders are wrong does not justify using their claims as a starting point. A more accurate headline would be, “Study Finds Economic Mobility Remains Low”. Economic mobility has been remarkably low in the US since the middle of the 20th century. The new Harvard study is a valuable addition to the literature, but it is consistent with years-old studies suggesting that we’ve plateaued near the bottom of the scale.

Here’s a graph from a 2007 study using Social Security data, showing how mobility dropped sharply in the 1940s and ’50s, and has stayed low since then. (Click for a larger version.)

Graph: Decrease in Economic Mobility

Even the 1960s and ’70s had slightly more variability in mobility and were (on average) higher in mobility. The Harvard study, however, covers the working years of those born in the 1970s and later — that is, roughly the last twenty years.

Look again at the graph. There is about a 3% chance that somebody in the bottom 40% will climb to the top 40%, and vice-versa, in a given year. Through 1950, the odds of moving up from the bottom to the top 40% were at least 6%, and as high as 12%, depending on the year. Compared to that range especially, the Reagan years basically saw everyone cemented in place.

When mobility is already so very low, and has been for decades, the key finding of this study is not that it has failed to drop further. This is akin to a sports section headline of “Cubs Fail to Win World Series”. Nobody would write that headline. “Cubs Wrap Another Miserable Year” is more like it.

This would likely be true even if the GM had promised a title at the start of the year — though the New York Post would probably go with throwing that promise back in his face. Sadly, the reporters who cover economics research know far, far less about that subject than sports reporters do about the games.

These headlines are a good example of political coverage only taking place within the boundaries set by policy leaders, even when the facts should militate otherwise. Political reporters and editors don’t know whether economic mobility has gone up or down over the 20th Century; they only know what Paul Ryan and Barack Obama say about it. That’s shameful, of course, when good information is publicly available — much of which is readable to the outsider.

Shouldn’t reporters be fact checking whether mobility really has gone down? Asking politicians where they got their data? Reading enough books and scholarly articles (or at least the darned abstracts) to have at least a semblance of an idea where to start looking for such an answer? Regardless, they are not doing so, and it takes the PR flacks at Harvard (who have apparently done their job very well this week) to put such research on their desks.

Thankfully, both the paper and the coverage have put this finding in the broader context of growing concentration of wealth. On this question there is widespread agreement that inequality is (a) worse in the US than in any other industrial country, and (b) growing. Here’s the relevant chart from the 2007 study linked above that shows the growth of inequality:

Graph: Rising Economic Inequality

This graph depicts the “Gini Coefficient,” which is a measure of economic inequality. Inequality dipped after the war, and it has climbed steadily since then. This graph stops in 2004, but it has continued unabated in the decade since as well.

The study and the coverage are also right to highlight important geographic differences in mobility. A kid who grows up in the bottom fifth in San Francisco or New York City is over twice as likely to reach the top fifth as a similarly positioned kid growing up in Atlanta or Charlotte. (Could it possibly be that collective investment leads to greater mobility?) Check out the Times‘ really cool interactive map of economic mobility.

This wealth of great detail notwithstanding, the new Harvard study’s framing in the news headlines and leads is disappointing. “Cubs Not Champions” is not the right frame; this is a lot closer to “Cubs Continue Futility”.

P.S. Thankfully, economic inequality is now being treated as an economic problem. In that vein, we should be looking at the political explanation for inequality — which brings me, for the umpteenth time, to Winner-Take-All Politics by Jacob Hacker and Paul Pierson. If you have not read this book and give a gram of care about inequality, go read it now. Even for those with no training in economics or political science, it’s a very accessible — and persuasive — read.

Johns Hopkins Gets It Right: Let’s Have Fewer PhD Students

In an effort to begin to address the glut of overqualified adjunct instructors, Johns Hopkins has announced that it is planning to cut its PhD enrollment by 25% and raise the stipend (read: salary) of the remaining graduate employees from $20,000 a year to $30,000.

Hundreds of current Hopkins PhD students are protesting, but they shouldn’t be, and in her writeup at Slate, Rebecca Schuman hits the nail squarely on the head — so much so that I’d like to elaborate a bit on how very right she is.

Generally speaking, a PhD — at least, one earned in the reasonable expectation of getting a “real” faculty job — is becoming a worse bet every year. Schools keep accepting more (and more schools keep creating new PhD programs in more disciplines), while colleges at all levels are relying ever-more-heavily on non-tenure track faculty. This includes adjuncts and (drumroll please) grad students.

This makes tremendous sense as a strategy for a given research university. Adjuncts and grad students (even if you count the tuition waiver) are way cheaper, more disposable, and easier to push around than full-time faculty. The star tenure-track faculty then get to teach more grad seminars. Advise more dissertations. Have more potential co-authors and research assistants floating about. Teach fewer lower-level undergrad courses.

The problem here, though, is that universities acting individually are not acting in the best interests of the academy overall or the nation in general. Collectively, PhD programs are burning through — and burning out — many of the nation’s best and brightest, then turning those same former rising stars into a lurking labor revolt.

Too often today, the people who did the best in undergraduate courses are becoming the burned-out, uninsured, woefully underpaid faces of college education to first- and second-year students. This makes college less valuable in a direct way. It’s hard enough to teach well when you’re paid fairly, have a reliable office, and teach 3 or 4 courses per semester while trying to do research and service. It’s damn near impossible when you’re teaching 5 or 6 courses, on multiple campuses, with little or no office space, little institutional support, and unsure how you’re going to pay your electric bill this month.

This system is also a poor advertisement for the product itself and even the “life of the mind” mentality that college is supposed to foster. If that’s what “too much” college education leads to, students might wonder if they should err on the side of too little. If the mastery of core liberal arts skills like critical thinking, reading difficult texts, and making sophisticated arguments has the appearance of leaving one broke, why should I put my best efforts into reading this book? Writing this essay? The savvy undergrad might think, “Give me the credential and let me get started at a ‘real’ job before your love of knowledge infects me and I wind up in your shoes.”

You know the “correction” the field of law just went through? The one with lots of freshly-minted JDs saying “I just spent a bajillion dollars and 3 years, and there are way too many candidates for every job”? We’ve been doing that in slow-mo in academia for heaven knows how long. It’s taking longer to sink in, of course, because compared to what you earned in whatever crap job you had during your BA, $15k/year and no tuition bill sounds like a great deal. Folks can’t or don’t account for opportunity costs, such as tens of thousands in lost salary, and heaven knows how much in lost opportunity to learn & rise up in other sectors.

More strikingly, nobody (not their undergrad faculty who graduated many moons ago, and certainly not the PhD programs who want as many apps as possible) tells these best-and-brightest about the real costs, benefits, and risks. Undergrad faculty in particular should be much more honest with themselves and their students about how much less repeatable their career trajectory is today versus 10+ years ago and how much depends on raw luck.

We’re also afraid to tell would-be applicants about the importance of the sub-discipline studied. Here, in my jauntiest department chair voice, is what the academy tells PhD students (outside STEM fields):

You there, doing critical cultural studies? And you there, doing detailed historical/archival/anthropological work? Welcome to the adjunct office! You’ll be here until you decide you want to own a home. Or get health care. Or not have your ability to pay rent be contingent on whether a tenured professor gets sabbatical.

You, however… You, with the experience working on a giant grant-funded data-collection-and-article-production machine? With lots of statistical savvy, who can teach the research methods and (field-specific quant) classes that befuddle and/or bore most of your soon-to-be colleagues? We’d really like to talk to you! Pay no attention to those poor souls all crammed into that tiny office there. Their working conditions are the just and fair recompense for their recalcitrant poststructuralism. Now, let me introduce you to our grant support staff.

I’m glad to have postponed my higher earning years to have chosen what is (for me) a highly rewarding career, even with the substantially diminished long-term earnings potential — versus, e.g., becoming a private-sector IP attorney. I love researching in an environment where research productivity is celebrated but not fetishized. I’m happy to have the chance to shape students’ lives, despite students’ highly varying levels of college readiness. I love teaching, despite the occasional class disruption due to our building’s mouse infestation. (Wish that was a joke.) That should be the expectation for more faculty, further up and down the prestige chain, and it should be a more likely outcome for a smaller set of PhD students.

Even though I’m quite happy where I’m at, there was a point where I realized how very in-doubt this outcome was. I was lucky to have picked communication; I believe we hire a larger portion of our PhD grads as tenure-track faculty than pretty much any other comparable discipline. I was lucky to get into Penn — by acclamation, the top program in media studies in the country, and the co-sponsor (along with Annenberg USC) of the party that all party crashers crash at the conference.

Despite this good fortune, even during my coursework at mighty Annenberg U Penn, I realized that I had only the thinnest grasp on what a Plan B (other than law school — and even more debt and postponed earnings) might look like. I realized that most potential Plan B employers would see my PhD as having little additional value versus an MA. More stunningly, I realized how very far from certain Plan A was from working out.

I don’t blame anyone for not telling me all of the above, not least because I think awareness on this point was much lower when I started my PhD program ten years ago. But today, in late 2013, programs and research faculty and teaching faculty and would-be students all need to come to the same conclusion as Hopkins. We should have fewer, not more, PhD students.

And while we’re at it, how about we work on making a BA more valuable, more broadly taught by tenure-track faculty, and (the horror) harder to earn?

The Real Threat to the US Economy

In the majority of media coverage about the shutdown and debt ceiling, the press has bent over backward to imply that there is plenty of blame to go around. This is false equivalency of the highest order, and I’m here to correct the record.

The number one threat to the US and world economy is congressional Republicans and, by implication, the reactionary extremist voters who put them in power. They’re about to blow up the financial system in vengeance because they lost the presidential election — and this largely over a policy first implemented by their own presidential candidate.

Today, we learn that House Republicans are still clinging to proposals to scale back the ACA. For the umpteenth time: That was decided in November. Grow up and move on.

And don’t say, “What about the debt?” If they were serious about that, they’d try to keep interest rates low and GDP high. (They’d also take seriously the idea of more revenue…) If we default, though, interest rates will skyrocket and GDP will crater. (That’s not just my opinion, btw; follow the link to see the stark terms used by Mark Zandi of Moody’s Analytics.) Think “rates on my credit card” (instead of the near-zero rates we enjoy now) and “next Great Depression”. That’s a helluva debt trap (expenses way up, income way down) to try to claw our way back out of.

Even the credible threat to default has short term rates rising and people nervous to make long term investments. Would you buy US Treasury bonds right now? Would you open or expand a business right now (or even during the negotiations, assuming a bill passes)? (Zandi estimates the current standoff has already cut $20 billion off GDP.) If I had money to move, it’d be leaving the US economy post haste.

This isn’t “Let’s compromise because everyone has some valuable ideas” time. This is “Either you jerks come to your senses, or you’ll drive our government and economy off a cliff.” And I don’t have a lot of faith in the former.

I really hope Obama is willing to declare unilateral executive power to continue borrowing if it comes to that. The alternative starts to look like an even more extreme, self-inflicted version of the Greek collapse. But with way more guns. What could go wrong?

Blurred Lines: Offensive, but Probably Not Copyright Infringement

At least in my circles, it’s pretty much taken for granted that Robin Thicke’s megahit “Blurred Lines” is shamelessly offensive.

I can’t imagine telling a woman “You the hottest bitch in this place!” I definitely can’t get behind the song’s no-means-maybe-means-yes message. The video is practically a parody of itself. (Here’s an actual parody that reverses the genders; much better.)

I also think it’s safe to say that Marvin Gaye gets a good bit more love and respect, even if nobody’s calling him a great feminist thinker. Further, “Blurred Lines” is just the latest example in a loooooong tradition of white artists appropriating musical styles developed by minority artists.

So, as forward-thinking people looking at the ongoing copyright dispute between the artists, it should be a slam dunk all-around agreement that, considering the striking similarity between “Blurred Lines” and the classic Gaye song “Got to Give It Up”, we should all hope that Gaye’s team sues Thicke for all he’s worth — or, at least, much/most/all of the truckloads of cash “Blurred Lines” has hauled in. (And let’s throw in Pharrell Williams, too, for producing and co-writing this bit of musical larceny.) Right?

Not so fast.

Before beginning a (brief) legal analysis, let’s set aside the very valid critiques of the gender politics in Thicke’s song and video (to say nothing of the shameful gender politics and troubling racial messaging of the Thicke/Miley Cyrus VMA performance).

If there’s one thing Larry Flynt got right about free speech law, it’s that we are better off if free speech protections also extend even to scumbags like Larry Flynt.

Under current law, “Blurred Lines” is probably not infringing, assuming no samples were used — that is, assuming that all the sounds were independently re-recorded for the new song, and Thicke and Farrell claim not to have sampled Gaye’s song.

Without sampling, an infringement case here requires proof of “substantial similarity” between the original and the newer work. Here’s a Billboard article where you can listen to both “Blurred Lines” and “Got to Give It Up”, side by side.

The rhythmic similarities are substantial, but according to literally every expert on musical similarity in copyright that I’ve ever read/heard/spoken with, that counts for very little — again, assuming the sounds were independently re-recorded. Here’s a bit from the Music Copyright Infringement Resource, a joint project of the law schools at Columbia and USC, explaining how melody is the key to establishing substantial similarity between two musical compositions:

A work’s melody is what we consider the tune of a piece. Indeed it is most usually the melody of a piece that we hum when trying to recall it; a piece’s melody is typically its most distinctive and memorable feature. As such, melody is the musical element that most easily lends itself to claims of originality. …

Melody is overwhelmingly the single most important feature of a musical work in evaluating the merits of copyright infringement claims. The entire corpus of judicial opinions in the area of music copyright infringement dwells on melody as the single most idiosyncratic element of the works in question, and almost entirely the locus of the economic worth of a song. Accordingly, the more melodically similar two works are, the more likely a court will determine that the later created work infringes upon the earlier.

So, for evaluating the question of musical infringement, the drums and backup instrumentals all take a way-in-the-back backseat to the melody. (We’ll come back to whether this should be the case in a bit.) With all this in mind, go back and re-listen to each song. A brief bit of each will do.

I’m not a trained musician, but I mixed house and drum & bass records for years (at the tail end of when it meant mixing actual vinyl records), so I notice rhythmic similarities much more readily than melodic similarities. In terms of rhythmic elements, the speed and the drum patterns are so similar as to be “I could mix these two songs together in my sleep” close, which most non-DJs would describe as the two songs “feeling” very similar.

The rhythmic similarities are the bedrock of the two songs’ similar feel. They’re well within the same genre, and it’s not at all shocking to hear Thicke say that he was deliberately trying to recreate the groove of Gaye’s song. Yet even in terms of drum patterns — where the similarities are the strongest, even if the impact in a potential infringement suit is smallest — there are real differences.

I can hear (and can even visualize, as would be represented in a step sequencer) a host of differences. Most folks could probably hear the differences, though it may take some patience to listen to each song enough times; it took me a few listens each.

Melodically, the two songs are substantially more different. They are still well within the same genre here as well, but the melody should be transparently different even to the untrained ear. I should know, because I have just such an untrained ear (ask my karaoke victims, er, audiences) and I can hear the differences pretty easily.

In the case law, the closest analog I know of is Bright Tunes Music v. Harrisongs Music, 420 F. Supp. 177 (S.D.N.Y. 1976). The plaintiff, Bright Tunes, held the copyright in the composition of the doo-wop hit “He’s So Fine” — written by Ronnie Mack, who died of cancer as the Chiffons recording of his song was rocketing up the charts in 1963.

When George Harrison wrote and recorded “My Sweet Lord” in 1970, “He’s So Fine” was not at all on his mind, but he wound up creating a melody very similar to the older tune.

The similarities are striking, and importantly for the copyright question, it is the melodies of the two songs that are so similar. Here, somebody has helpfully created a mashup of “He’s So Fine” and “My Sweet Lord”, so you can listen to them simultaneously. They don’t line up perfectly, but it’s pretty clear that the melodies are pretty similar.

Harrison didn’t realize the similarities, but once they were pointed out to him, he says, “I thought, ‘Why didn’t I realize?’ It would have been very easy to change a note here or there and not affect the feeling of the record.” (Again, this isn’t part of the legal analysis, but I actually give Harrison much more credit here than I do Thicke on the “How badly is this white musician exploiting black musical culture” question. Intent matters for ethical and cultural criticism, but how much we like people and think they’re doing the “right” thing is not the same question as whether or not the law is on their side.)

Anyway, Harrison was essentially found to have subconsciously infringed on Mack’s song — to have infringed without having done so deliberately. This even though the two melodies are not identical — just very similar.

In light of all of this case law, for songwriters to have a deliberate intent to borrow is, if anything, helpful for them. Thicke and Pharrell surely know that it’s the melody that gets you in trouble — and they definitely acted accordingly. It doesn’t take much imagination to listen to the Gaye and Thicke songs and hear the latter’s notes as deliberately dissimilar to the former — thus, creating far more daylight between the two melodies than in the Bright Tunes case.

There’s actually an art to this that can pay handsomely if one composes music for TV commercials. If a songwriter wants too much to license a hit song that an advertiser covets, the advertisers can just hire a composer to bang out a not-quite-copy for a fraction of the price. This happens all the time; here are just a few examples.

Anyway, I hope it’s pretty clear by now why “Blurred Lines” really isn’t infringing. Don’t believe me? Three independent industry insiders also hold this view.

I’ll end with a few words about whether the similarity standard we have now really should be the case. (Can you smell the journal article burning? What follows is the “This is a blog post and I need to go to bed” version.)

I don’t want a copyright system where I can’t create a song (or book or movie) that has a similar overall feel to anything that’s been done in the last hundred years. Because, guess what: If that’s the rule and it’s enforced at even a moderate rate (say, 10% or more), then creativity either comes to a screeching halt or goes largely underground. Building on previous cultural milestones is how culture works.

I’m even disturbed by the Bright Tunes standard: If we put two otherwise dissimilar songs next to each other, at just the right points, are most of the notes of some parts of the melody the same? Consider how scary this standard is in light of the musical simplicity of pop melodies. If this is the standard, are there any songs that aren’t infringing left to be written? I’m scared there may not be.

If Bright Tunes-style plaintiffs get just a bit more of a toehold in the case law, what’s to stop copyright trolls from buying up old songs that are just-similar-enough to big hits and demanding exorbitant payments? The ownership of the copyrights in studio recordings is more consolidated (mostly, these copyrights are owned by labels), but the rights to compositions are everywhere and can often be bought for relatively low prices.

If a hobbyist composer hopes to make it big but looks at this landscape in my not-unlikely-enough dystopian near-future, shouldn’t s/he be scared and consider maybe not even to bother? After all, even the mighty George Harrison claims never to have made a single dollar on one of his most beloved songs — all because he accidentally made the melody too similar to a very different song. What hope is there for somebody just starting out, who’s not also an expert musicologist walking around with a century of musical knowledge?

The Bright Songs standard is already too easy for plaintiffs. If Gaye’s heirs were to win a decision that “Blurred Lines” is infringing, it would send a pretty discouraging message to today’s would-be musical composers.

I say all of this as somebody who has a bone to pick with the “melody is everything” theory of musical composition that guides our law today. Distinctive rhythms can make or break a song, and the drums can themselves be the most memorable, marketable part of a song. (See: Stubblefield, Clyde.)

There are also unfortunate racial connotations to this paradigm. It’s not too far down the chain in the Apollonian/Dionysian dichotomy, where Apollo represents mind/discourse/melody/whiteness and Dionysus represents body/movement/rhythm/blackness.

Don’t think this still carries water today? Then why does popular discourse still treat blacks so prominently as athletes and dancers, generally discarding what they have to say? And why is it really important to hear what white people have to say, even when the very basis for their fame is a physical gift? (See: Tebow, Tim) Why is music from non-white parts of the world called World Beat and African music generally sold as AfroBeat?

The racial critique of this emphasis on melody is valid and important, but I still don’t want a copyright system where “Blurred Lines” is infringing, even though I just spent a whole paragraph arguing that the part where it’s most like “Got to Give It Up” shouldn’t be treated as so relatively unimportant by the law. While some have tried to reconcile this melody/rhythm inequity by pushing copyright in the direction of broader protection for rhythmic elements, I think the better solution is to put less emphasis on melody as separated from the whole composition and instead to put the whole composition in context.

Looked at as an entire composition, “My Sweet Lord” is pretty different from “He’s So Fine”. The lyrics are 100% different. The instrumentation is pretty different. The sound and feel are remarkably different. It’s only the focus on melody that led the court into what I think was a mistake.

On the other side, “Blurred Lines” and “Got to Give It Up” are more similar on most counts except lyrics and melody. They sound and feel very similar, though even the drum pattern is clearly not identical. Looked at holistically they’re still pretty different songs, built in large part on the very different lyrics and melody.

I don’t think we should set up a copyright system where “very rhythmically similar” is, by itself, grounds for a finding of infringement. The change I’m advocating is that we should also apply that standard to melodic similarity.

Just as inventors really want to keep the lawyers out of the lab, I really want to keep them out of the music studio. If the price of being able to compose without an attorney on retainer is that, sometimes, crass capitalists push the line of exploiting the feel of successful works, it’s a price I think we as a society should pay.

If we swing the other way, to the point that something like “Blurred Lines” equals legal hot water, that means pretty much all popular music puts you in legal hot water. Which would mean that only those who can afford attorneys — in advance — will have any business making music. And that’s a far higher price for we as a society to pay.

P.S. Speaking of prices paid, I hope we forward-thinking folks can all agree not to pay for “Blurred Lines.” If you like that song’s groove, allow me to suggest a Marvin Gaye tune I know. It’s not exactly the same; it’s better.

Crime, News Coverage, and Institutional Racism

If there’s anything that pretty much everyone should agree on in light of the George Zimmerman/Trayvon Martin story, it’s that the story shows how deeply divided we remain as a country.

At least as reflected by posts on Facebook, 100% of my liberal intelligentsia friends are outraged that Martin is dead and Zimmerman is free, and the debates between us (to the extent that there have been any) have been about which people in the criminal justice system get which share of the blame.

Along with outrage, ethnic minorities and African Americans in particular also express a collective hurt and fear that I will never truly understand.

Yet others (here is where I’m grateful that not all of my friends and family are in the liberal intelligentsia) are miffed at the race-focused attention by the media and the political push to make the case into a symbol of broader issues. While I needn’t say it, let’s be explicit about the fact that nearly 100% of these folks are white. (I’m not Facebook friends with Clarence Thomas, and even if I were, I wonder if he posts more than once every seven years.)

While not all of these white, “Why the fuss?” crowd would admit it if probed, I think a good bit of this discomfort with the attention paid to the Zimmerman/Martin case comes from the implicit finger being pointed at them. If blacks are held down in schools, the job market, and the criminal justice system, surely somebody’s doing the holding. If minorities have unfair disadvantages, then the surplus unfair advantage is going to white people. If the system is racist, and you believe in the system, doesn’t that make you racist?

The good news is that the failure to be outraged over Trayvon’s death doesn’t make one a bigot, but the bad news is that this is because the answer is way more complicated than that. I hope to reassure my white, politically centrist or right-of-center friends that I’m not calling them racist or bigoted. Yet there are little things that we all do — you and me, blacks and whites, powerful and disempowered — that play into an incredibly intricate system of racial inequality.

I give you institutional racism.

The bigotry need not be in (y)our hearts; it can be in the mortgage you grant or don’t, the education policies you adopt, or the policing tactics you support. Mayor Bloomberg is obviously comfortable around racial minorities and would surely never dream of not hiring somebody due to their race, but he remains tone deaf to the incredibly not-race-neutral (and, frankly, not constitutional) nature of his policing strategies.

Which brings us back to Martin and Zimmerman. The justice system, as a whole, is heavily biased against minorities. Blacks are very over-represented in the criminal justice system; less than 1% of white men are imprisoned, while for black men, it’s 1 in 15, or almost 7%.

This happens at every step of the criminal justice system, from police investigation through trial. As the Times notes:

A 2005 study by the Justice Department found that while Hispanic, black and white drivers were stopped by the police about as often, Hispanic drivers or their vehicles were searched 11.4 percent of the time and blacks 10.2 percent of the time, compared with 3.5 percent for white drivers. Data collected from state courts by the Justice Department also shows that a higher percentage of black felons than white felons receive prison sentences for nearly all offenses, and also that blacks receive longer maximum sentences for most offenses.

Even in murder trials where defendants claim self defense, race is a major factor. See this graphic.

Versus the baseline of white-on-white violence, black defendants are far less likely to be found to have acted in self-defense, and it’s many times again less likely when the victim is white. In contrast, white defendants are many times more likely to be found to have acted in self-defense when the victim is black.

That’s institutional racism.

Yet it goes farther. Many of the white “Why the fuss?” crowd might even acknowledge the racial bias in the courts (though too few are familiar with the staggering specifics), but they object to all the political outrage over Trayvon and wonder where the sympathy and coverage are for white crime victims, especially when the accused perpetrators are black.

It turns out, though, that the news media are also afflicted with institutional racism. This goes well beyond the genuine hacks like Bill O’Reilly. Rather, it’s the whole system — the one largely staffed by left-of-center reporters and editors.

An analysis of scholarly studies of the representation of race in crime coverage is telling. As summarized here, “75 percent of the studies found that minorities were overrepresented as perpertrators, [and] over 80 percent of the studies found that more attention was paid to white victims than to minority victims.”

A somewhat newer study, which includes a representative national sample of television newscasts, finds similarly striking results, cutting in the same direction.

Even the portrayal of black female victims is far too rare — this even though female victims are more likely to be seen on the news than male victims overall.

In the aftermath of a major story about a black victim, killed by a white shooter, we’re hearing a good bit of “Why the fuss?” and “Where’s the attention to white victims and/or black perpetrators?” With no disrespect to any victim, whites have nothing to worry about when it comes to folks who look like them being shown on the news as victims of serious crimes. No news outlet can cover every story, but over time, white victims and black perpetrators have been and certainly will continue to be overrepresented.

On this count, Martin and Zimmerman are symbols for the broader problem of institutional racism in this country. Nobody needs to be energetically or even consciously racist for the major racial disparities we see to continue. Continuing racial inequity doesn’t need the next George Wallace; Michael Bloomberg will do just fine.

If you’re on the happy side of these inequalities, I think you should at least be honest with yourself and the world about the thousands of little ways in which your life is that much easier because of it. This isn’t to diminish the countless things you’ve undoubtedly done right, the hard work you’ve done, the substantial degree to which you’ve earned your place.

As white Americans, though, let’s at least all agree to be honest with ourselves and each other that we get at least a small leg up in pretty much every institution in society with which we deal.

That every right decision is likely to get us just a bit farther along than it would for an African American.

That we have at least a bit more room to make mistakes before being fired, evicted, jailed — or killed. 

That the few places where we don’t have every advantage clearly pointed in our direction (college admissions and scholarships come to mind) are the exception and, regardless of what one thinks of them as policies, will never outweigh the much larger forces that cut the other direction.

That, yes, there are a few rich blacks and many poor whites, and class inequality is also a major issue that needs to be addressed — but that this doesn’t disprove any of the above.

Then, please join me in a quest to fight those disparities, one institution at a time. Not by making life harder for whites, of course, but by extending the same understanding, opportunities, and benefit of the doubt to all.