Oregon State Bar Bulletin — MAY 2006


We’re Not There Yet
I was perplexed with the cover of the April 2006 Oregon State Bar Bulletin. What message was the Bulletin sending by showing the back of a black man in a business suit with a ball and chain?

For centuries, black people in America were in actual or virtual bondage. Neither the Emancipation Proclamation nor the Civil Rights Act of 1964 delivered full freedom to African Americans. For centuries, the media — newspapers, TV and film — have depicted blacks as ignorant, silly or evil. If a newspaper wanted a stock photo to depict a criminal, what was often selected? A photo of a black man. If the purpose was to depict poor or uneducated people, black people were chosen. If the goal were to present good—as in good or evil—what was the preferred group?

A friend once noted that photos of African-Americans in the press usually indicate that the story deals with sports or crime. The Bulletin’s choice of photo or drawing is the sort of standard stereotyping that understandably enrages African-Americans.

What motivated the Bulletin to use this photo to illustrate a point in bankruptcy law? Would it have been appropriate to depict a Fagin-like person with a hawk-nose? Would that have offended Jews? Stereotypes are what racism is all about. One person thinks that a person of another race is inferior because of his or her race. Perhaps the editors thought that Bulletin readers are truly color-blind, that the photo of a black man in a business suit to accompany the bankruptcy article would be as appropriate as a photo of a white man or woman.

We’re not there yet. Because racial minorities continue to suffer inequalities as a result of their color —in earnings, housing, healthcare, hiring, promotions, and yes, in the courts — of course they would be offended by a photo that perpetuates the white stereotype. Should the Bulletin explain its decision to its readers? More importantly, can we learn from this event?

Edwin J. Peterson

Editors’ note: In illustrating the article on changes to bankruptcy law and practice (“Debt Doubts,” April 2006) it was our intention to depict a professional person, one who could be taken to be any lawyer, and who is not only in a new landscape but who has been held back by a constraint beyond his or her control (two of the metaphors of the original article). We regret if this was unclear or if it was perceived otherwise.

What Wouldn’t Qualify?
“Have the Courts Done Enough (To Salvage Their Integrity)?” (Advertisement, February/March 2006). It could have been a purloined excerpt from the Colbert Report or the Daily Show: an accredited CLE symposium entitled “Disentangling Church & State” in which a bevy of the enlightened would tackle the question “Have the courts done enough?” But no. If that question portends an inquiry rooted in the judiciary’s historic mangling of the Establishment Clause, then it borders on the ludicrous — as does the notion that CLE credits might be had for such uneducational frivolity. Appropriate questions would instead read something like: “Have the courts done enough to salvage their integrity?” or “Do the courts have any idea how wrong they have been?” But a question that implies that the courts have thus far loosed insufficient havoc smacks of whimsy.

“Done enough?” Good grief. That “question” necessarily accredits one of the most egregious fictions ever propagated by this nation’s judiciary, a fiction unleashed when the U. S. Supreme Court flunked history miserably in 1878, again in 1947, and effectively re-cast the first 10 words of the First Amendment without as much as a courtesy nod to the amendatory process prescribed by Article V of the Constitution.

The term “establishment” bore a well-understood meaning in the colonies in the 1600s and 1700s within the context of religion: a single church (or denomination, faith, sect, creed or religious society) that enjoyed a government-preferred, government-sanctioned, government-financed and government-protected status, and which assumed governmental functions and represented an indistinguishable union with government. But the courts know Establishment Clause history like they know rocket science.

When a court imagines that the provision of “field trip transportation” to students of nonpublic schools somehow implements an “establishment” (Wolman v. Walter), and when a court conceives that a recurring holiday display on public property, consisting of a creche depicting the Christian nativity scene and a Hanukkah menorah, yields an “establishment” for the former but not the latter (Allegheny County v. ACLU (who else?)), then only the mischievous mind of a Lewis Carroll (or a Stephen Colbert, or a Jon Stewart) might muse whether the courts have indeed “done enough.”

The MCLE Rules mandate that a “CLE activity” must furnish “legal and professional education.” Although the rules supply no definition of “education” (oddly enough), they do ordain that a “group” activity bear a “primary objective of increasing the participant’s professional competence as a lawyer(.)” How a symposium’s fanciful excursion through a world of fiction might augment an attorney’s “professional competence” remains a question whose answer eludes me. What would not qualify for CLE “education” credit?

Barry Adamson
Lake Oswego

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