December 16, 2014

New Yorker Letter: Thinking Fast and Slow in Ferguson

I recently had a letter published in The New Yorker (here it is).  Here's the story of how I came to write the letter (which, in my opinion, is more interesting than the letter itself)....

I have been reading Daniel Kahneman's book, Thinking Fast and Slow, which is about the way our minds work - specifically, biases in how we consider things.  As the recent events in Ferguson unfolded, I was struck by the ways in which the book connected with the conversations about race that Ferguson was triggering - and how unproductive those conversations seemed to be.  I wrote the following essay with some of those thoughts...

--> One thing observers of the ongoing drama in Ferguson seem to agree on is that there is a need for frank conversations about race and criminal justice.  However, discussions about the decision not to indict Officer Darren Wilson and the resulting riots in Ferguson have been largely unproductive.  It seems at times that people are not even talking about the same event.  The disconnect between the various perspectives – and the impact that disconnect has on our ability to honestly address the situation with the seriousness it deserves – reminded me of an experiment from the Nobel economist Daniel Kahneman’s book about our minds, Thinking Fast and Slow.
Try the experiment yourself.  Begin at the top of a sheet of paper and draw a vertical line without using a ruler down to the point you think is 2 ½ inches from the bottom of the page.  Next, without looking at the line you’ve already drawn, start at the bottom of the page and draw a line going up 2 ½ inches - you are aiming for the same point on the page, just starting from the opposite direction.  If you are like most people, you did not stop at the same place in these two attempts.  Most likely, you stopped too early in both cases, leaving a gap between your two lines.  That gap can be called the zone of uncertainty.  You have a general sense of where 2 ½ inches from the bottom of the page would be, but your tendency is to go no further once you get the feeling you are in the ballpark.  When you are coming from two different directions, the lines do not meet.
What does the zone of uncertainty have to do with Ferguson?  Think of the top and bottom of the page as stereotypes that may be at play in a situation where a police officer interacts with a black male: racist police officers and dangerous black males.  Stereotypes like these are certainly not pretty, but they are part of how our minds work – pretending they do not exist or wishing them away only muddles an already difficult dialogue.  How you evaluate any particular interaction between a police officer and a black male depends in large part on which stereotype you begin from.
Saying that you begin from a “racist police officer” stereotype does not mean that you actually think police officers are racist – rather, it means that if you are given no facts other than that a police officer interacted with a black male, your initial reaction (your bias) would be to take the side of the black male.  You would have no facts upon which to make such an initial judgment, but you would make the judgment regardless.  Fortunately, as new facts are provided, you would be able to move off of your initial reaction to evaluate a particular case more fairly.  However, where the “true” answer is unable to be definitively ascertained, your movement is likely to stop at the edge of the zone of uncertainty closest to the side you began from.  The same thing is happening for those who begin from the dangerous black male stereotype.  The two types of people are thus stopping at opposite edges of the zone of uncertainty and their lines never meet.
Unfortunately, from what may be a small zone of uncertainty, a much larger chasm opens up as we grow increasingly frustrated that others aren’t seeing things as we do.  Feeling that we have reached our own conclusion absent bias cleanses our own perspective and sullies disagreement as prejudiced.  Rather than accept the zone of uncertainty, we instead form a negative opinion of those with whom we disagree and begin to harden our own beliefs – asserting them even more strongly than we initially felt them.
This, of course, is not a path to a constructive conversation about race.  A first step toward a productive Ferguson conversation is acknowledging that there may be a zone of uncertainty between how this story is being experienced by different people.  By accepting that we come to the conversation with some bias, we can unlock useful discussions about the undercurrents making a situation like Ferguson possible – and so explosive.  We can even address how troublesome stereotypes like racist police officers and dangerous black males are formed.  Those undercurrents run deep into our national history and have been persistent trouble spots in our evolution into a more perfect union. 
Engaging with these topics – getting to that point 2 ½ inches from the bottom of the page – requires an open mind, an honest assessment of one’s own biases, and a willingness to accept that others may see things differently.  Even though such conversations seem to be what many of us want, our fast thinking might be making that engagement slow to come by.

I submitted that essay to various places, but received no responses.  Then, I saw the cover of the December 8, 2014, issue of the New Yorker.  I was struck by how much it reflected the idea of the zone of uncertainty described in my essay... I wrote a condensed version of the essay and sent it along.  The relevant portion of the letter, as published is:

Perhaps the break in Staake’s arch is not a break at all but a reflection of the fact that people approach these discussions from different perspectives. As we move toward meaningful engagement, we are likely to stop at the edge of our own uncertainty. Connecting the arch requires an open mind, an honest assessment of one’s biases, and a willingness to accept that others may see things differently.

September 17, 2014

Director Daniel Kiel Shares Lessons of the Memphis 13

Director Daniel Kiel Shares Lessons from the Memphis 13 from Daniel Kiel on Vimeo.

At a program marking the opening of a new exhibit at the Ned McWherter Library at the University of Memphis, law professor Daniel Kiel shares lessons learned from The Memphis 13, the first students to desegregate Memphis schools as first graders in 1961.

February 16, 2014

Lessons from the Memphis 13

Lessons from the Memphis 13: What 13 First Graders Have to Teach About Law, Life, and the Legacy of Brown

Abstract: Fifty years after desegregating schools in Memphis as first graders, the pioneering students shared their stories for the first time. The resulting film, The Memphis 13 (2011), brought a largely overlooked episode in the civil rights movement into the broader movement narrative. In this essay, the film’s director – who also happens to be a law professor – combines a first-person account of the intellectual journey involved in meeting the pioneering students and their families with a scholarly analysis of the implications of the students’ stories. Specifically, the essay describes the intense isolation the students experienced both during their experience desegregating schools and in the decades that followed and questions the responsibility that lawyers and movement leaders have to foot soldiers who are participating in a social movement through no choice of their own. Looking back, the students took widely divergent lessons from their experience, demonstrating the complexity of crafting a meaningful remedy even for individuals in the post-Brown era. The essay thus utilizes these personal narratives to critique the choices made during the desegregation effort. This real world testimony provides a fresh perspective on longstanding debates that too often discount the experiences of those most directly affected.

This article appeared in the Thurgood Marshall Law Review of Texas Southern University Thurgood Marshall School of Law.  The full article is available here.