So there was a law professor at Georgetown who was a racist.

And now she's gone, but wait -- what do we mean by "racist" these days? And why am I a heretic to even ask the question and want real answers?

A law professor at Georgetown Law School, Sandra Sellers, has been fired because she is racist. She revealed her racism in a Zoom conversation with her colleague David Batson who nodded along to what she said. Batson is now on leave.

Racism is everywhere, it’s our job to stamp it out, and Sellers’ racism was smoked out. She’s out. Social justice has been done.

Sandra Sellers is a racist because she said this:

“I hate to say this. I ended up having this, you know, angst every semester that a lot of my lower ones are Blacks. Happens almost every semester. And it’s like, ‘Oh, come on.’ You know. Get some really good ones but they’re also usually some that are just plain at the bottom. It drives me crazy.” 

Sellers said this in a rather unfiltered manner. The term “Blacks” is hardly a slur but is unideal, for example. She didn’t know anyone was listening.

However, the idea that what she said was racist, and the idea casually aired among Georgetown’s black law students that she is a racist, illustrates an extremely vague usage.

It’s a common one, also, and bears some examination. We are taught not to do this, to assume that if black people and their “allies” call something racist then it just is. Part of this is the idea that impact trumps intent. It doesn’t matter what you (didn’t) mean – what matters is how it felt to me.

But what are the reasons here for the impact felt? If racism is such a defining factor of our society, might we not at least share a certain clarity on what racism is?

And the truth is that as grimy as that Zoom exchange with Sellers is, the idea that what she said is “racist” is not as clear as we are being taught to pretend it is.

* * *

First things first, though.

I am assuming that Sellers was saying that black students are represented disproportionately at the lower end of the grade scale in her classes. I am assuming that she was not simply complaining that “some” black students are “plain at the bottom” in the same proportions as some white students are.

We must not get stuck here, since some will indulge in rather remarkable logical gymnastics to seal the argument that Sellers is a bigot, and so I will explain.

First, surely we don’t think that she was complaining that black students had no business invading the cherished sanctum of the bottom of the class.

Second, we also know she wasn’t saying “How dare some black students not do well?” while having no problem with some white and Asian students not doing well. This, of course, would make no logical sense of a racist or anyone else – it’d just be cognitively insane.

So: the implication of her complaint is that black students are disproportionately at the bottom of her classes.

* * *

So back to our topic. How was what she said “racist”? Here are some reasons one might suppose that it was.

What she said is racist because it’s a lie. But she is hardly the only law professor to make this kind of observation, where amidst the outcry there was no denial of the basic facts. This includes the widespread condemnation of University of Pennsylvania law professor Amy Wax for her observation in 2018, as well as UCLA law professor Richard Sander’s exhaustive study in the 2000s showing that at 163 law schools, about half of black law students end up in the bottom 10% of their class while only about 6% of white law students do. However we feel about the fact of these professors airing the facts, we cannot pretend that they are simply making them up. So – sadly, we can safely assume that Sellers was not simply lying.

It is rude to point out such facts about black students, and therefore racist. If the idea is that the disproportion is real but to speak of it is a racist act, then our dialogue must be more explicit. We need an explicit defense as to why it should impermissible to point out the existence of a discrepancy, especially when usually we point them out as a prelude to solving the problem. Legions of people looking on are wondering why it is “racist” to observe a fact, and a societal discussion that denies them an explanation is, quite simply, fake.

It’s racist to point out the discrepancy without noting that the discrepancy itself is due to racism. This gets closer to sense.

Here we get into Ibram Kendi territory – the idea that all black-white discrepancies are due to racism in some form. One idea might be that the reason for the disproportion is because of the effects of systemic racism on black students, such that it is unjust to expect them to perform at the level of other students.

It must be noted that this would be a tough argument to make really go through for those seeking proof rather than moral absolution. For example, it has been argued that black students are done in by “stereotype threat,” where a looming sense that black people are considered dim leads one to underperform out of discomfort. However, a riposte to that argument re law school (by Richard Sander) revealed that the extent to which stereotype threat has been shown to affect student performance is dwarfed vastly by the discrepancies in class rankings that face us.

However, note also the general argument that the discrepancy is due to societal racism is scarcely heard amidst the din. Rather, the proper response is just to call Sellers “racist” and dare anyone to ask for a real explanation. To borrow the parlance of the youngs these days, Shit ain’t right!

Or – is the idea that Sellers’ racism made it hard for black students to truly excel in her class? Here some students are saying just this – but we lack specifics, and it is not white supremacist to seek some. To simply allow that Sellers must have been a palpably and cripplingly “racist” presence in her classes because some people say so is taking us back to the Salem witch trials if no one is made to explain exactly how she was racist. What exactly did she do or say? And was it something that would plausibly depress the performance of most of the black students in classes year after year?

And let’s face it – not infrequently, claims along these lines are hardly watertight. Let us recall that right now there are black law students in Chicago who would say that it was “racist” to see “n*****” on a law school exam and are seeking to ruin the career of a white professor who had been using that same question for years to no comment from students of any color. And no, that episode is no fluke – many of us have watched episodes like that at law schools occurring nationwide for twenty-plus years now.

And note that in the eyes of many, here I am just asking too many questions. I just don’t “get it” – but if I ask what I don’t “get,” the response is suspiciously dominated by buzzwords unsupported by fact, statistics diagonally related to the topic, and in live interaction, impatient, appalled half-sentences you can’t help wondering the person could actually complete in a convincing way.

Our national discussion of matters like these is crabbed and fake.

* * *

It may seem that my point here is simply to idly point out that black students cluster at the bottom of the class rankings and leave it there. Leaving it there is what makes statements like Sellers’ and Wax’s so repulsive to many, and this is understandable in that it leaves an implication that the people are just saying that black students are dumb. Or maybe my point is to scold, shaking a finger and saying “Try harder, dammit!”

I mean no such thing. An intelligent take on this issue need not stop somewhere like that. But plenty of people have taken it further over the years, only to be ignored for the apparent sin of even bringing up the discrepancies at all.

How about this? Systemic racism does affect how well all but a very few black students are prepared to excel in top-ranked law schools. Why would it not, given black people’s history in this country? Not to mention racist white teachers, in the wake of desegregation of public schools, alienating black students in the 1960s to the point that in synergy with the new Black Power ideology, a new element was introduced into black culture of seeing nerdiness – i.e. what you need to do well in law school – as “white.” The effects of this could be subtle – an invaluable study showed black fifth graders more likely to say homework was for the teacher while white ones were more likely to say it was for their parents – but powerful.

However, our culture of racial preferences requires that top law schools admit most black students under different standards of grades and LSAT scores, out of quest for a proper amount of diversity in the school. Some will insist that this isn’t true, but it has been resoundingly proven time and again, such as in the Grutter v. Bollinger decision where it was allowed that the University of Michigan law school admit black students according to “holistic” evaluation that included a point bonus for skin color.

Richard Sander argued in 2004 that when black law students were instead admitted to schools where all students had the same general level of dossier, they perform at a higher level, were much more likely to graduate, and were 50% less likely to fail the bar exam. In such schools, comments like Sellers’ and Wax’s are vastly less likely.

This study was later paralleled by studies such as that by Duke economist Peter Arcidiacono, with Esteban Ausejo and Joseph Hotz, showing that the “mismatch” of black students to schools actually decreased the number of black students who chose and stuck with majors in STEM subjects.

Now, Sander’s thesis naturally elicited a great deal of the same kind of criticism as Sellers’ comment, complete with the idea that to even mention the discrepancies in question constituted “racism,” an interesting charge in Sander’s case as he was a former black community activist who had written for housing desegregation, married a black woman and started out in favor of racial preferences until he saw their effects over years of teaching. I will never forget watching Sander, during a panel discussion, accused by a black law professor of being an heir of William Shockley and his dismissal of black intelligence, in utter disregard of anything Sander had written, or even just said during this discussion.

You may be told, in the wake of people like that, that Sander was “refuted.” An issue of the Stanford Law Review was touted as disproving Sander’s claims, but quite simply did not. I invite anyone interested to read all of the rebuttals and then Sander’s riposte. He left the critiques in a smoking ruin. Critiques of Sander continue to this day over 15 years later – and in no sense deep-six his basic claims. It’s more that a lot of people consider his observations a kind of heresy (yes, à la my argument that The Elect are a religion) and thus cannot bear their airing. This is something different from reasoning.

* * *

One model of making real progress is that black law students whose grades and scores are parallel to those of white students admitted to second- and even third-tier schools are admitted to those schools rather than brought into first-tier ones for their “diversity.”

We might, in a “Modest Proposal” vein, ask law school administrators to consider that their current modus operandi, entailing what they title “inclusiveness” and such, only seems to lead to a critical mass of black students hitting the ground insisting upon any challenge that the law school “is racist.”

How about a great many of the same students being instructed in a way that reaches people who haven’t gone to elite prep schools, had test prep practically since birth, and grew up in book-lined homes? At law schools which, though they don’t have the cachet of the top twenty or so, are sterling institutions whose faculty would be justly injured to be dismissed as somehow dismissible for not being at Yale or U. Michigan.

These black law school grads are then in a position to present great grades to employers – grades matter in deciding who gets jobs in law-related professions after law school --  including not needing multiple tries to pass the bar (which also matters) — and thereby furnish their children with the capital to be able to achieve easily at top-ranked law schools. In a brave new world not even so far in the future, there would be no especial disproportion of black students at the bottom of even top-level law schools’ classes.

* * *

Note that what I am saying fully acknowledges the existence of systemic racism, and also points the way towards a better future for black people.

And yet to many, what’s key is to simply call people racists, for pointing out what any unbiased observer would see as a problem in need of solution.

And amidst all of this, it would appear that “racist” means “anything that a black person doesn’t like for some reason,” and we are to bow down and accept this as post-Enlightenment, morally binding truth because black people have a hideous history.

That is not a real discussion. It renders black people something less than human, in feigning that we are beyond serious critique. We are lying to one another and nervously hoping nobody will blow the whistle on what we are told to pretend is about “social justice.”

But lowering standards is not “social justice,” nor is pretending that the standards have no value and calling for their elimination. Take a trip back in time and run that by Zora Neale Hurston, Mary McLeod Bethune, Martin Luther King, or Maya Angelou.

Nor is it “social justice” to dragoon black students into a diversity diorama and then watch them complain about being foisted with the responsibility of representing their race, while also assailing the school for not addressing their “diversity” in the right way, when what really should have happened is that they settled in at schools prepared to teach them effectively.

Do I think Sellers should have been fired? Well, all I can say is that in our current climate I don’t see how she could teach effectively, although I’m not sure if that’s fair, because I cannot know whether she is “a racist,” because what she said did not demonstrate that at all, even if not said with optimal grace. (Is gracelessness “racist”? – if so, that’s a whole new discussion we must have.)

What I do know is that claims that what I have just written is simply “There he goes defending a racist as usual” are nonsense. I am seeking to find some sense in things. I’m afraid the Sellers story as we are being given it does not, in the true way, make sense.