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Our reader Michael Hershey has identified this as the cause of the USC Business School “neige” debacle. But I think it might be better labeled an argument ad homonym.

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I wrote on Thursday about USC Business School professor Greg Patton (who, among other things, is a specialist on business in China) being taken out of his business communication course, and being replaced by a different professor. Prof. Patton’s offense: In a discussion of “filler words,” such as “um” and “er,” he gave the Mandarin “neige” (literally, “that”) as a foreign example—and he pronounced the word, as do many other Mandarin speakers, similarly to “nigger.” The word is apparently indeed used, routinely, as a filler word in Mandarin.

The USC business school dean’s actions, and his abject apology for Prof. Patton’s actions, has been met (rightly, I think) with a good deal of criticism. I blogged about one example, a letter from nearly 100 USC graduates who say the school’s actions “cast[] insult toward the Chinese language.” But here I want to suggest that the “Black MBA Candidates c/o 2022” letter demanding the action, and in particular this passage, actually risks harming the employment prospects of black students:

Our mental health has been affected. It is an uneasy feeling allowing him to have the power over our grades. We would rather not take his course than to endure the emotional exhaustion of carrying on with an instructor that disregards cultural diversity and sensitivities and by extension creates an unwelcome environment for us Black students. His careless comment has impacted our ability to focus adequately on our studies.

Let’s consider a rational employer who is wondering whether to hire a black applicant to work in China, or anywhere else where the applicant would have to work around Mandarin speakers (whether those speakers form most of the environment or only a modest portion). And let’s assume the employer actually believes the factual claims in the letter.

The employer, I take it, will wonder: How will the applicant be able to effectively function around Mandarin speakers, who say the same thing the professor said, except much more often? (To be sure, the word is apparently pronounced differently depending on the speaker’s regional accent, but it often will be pronounced this way.)

The applicant’s mental health, the employer has heard, will be affected. The applicant will be emotionally exhausted. The applicant will be unable to focus adequately on his job. The applicant will feel that the Mandarin speakers are disregarding cultural diversity and his sensitivities (presumably in the process having little interest in their cultural diversity).

Will the applicant be able to work effectively with the Mandarin speakers? Smile and sell products or negotiate deals with them? Be enthusiastic about a job that, by hypothesis, is affecting his mental health, that is emotionally exhausting him, and on which he is unable to focus?

Now say even that the employer reads the letter as limited to relatively high-status, powerful people like a professor saying the word, and thinks that ordinary coworkers or clients’ saying it will have zero effect on the applicant’s mental health and emotional state. (Not clear why there would be such a sharp difference based on the speaker’s power, rather than perhaps a gradient, where ordinary speakers’ saying the word would just have a slighter effect on mental health and cause a slighter degree of emotional exhaustion and a lesser loss of focus; but say this is so.) Still, the applicant might have to hear the word when his superiors say it while talking Mandarin; or when a powerful customer of the business says it; or when it’s said by teachers speaking Mandarin in a training session within the company.

And the employer may well conclude that it’s perilous to try to sort black applicants who have this reaction from those who don’t. Imagine the employer decides to try to do such sorting, by asking each interviewee this:

Many of our employees, business partners, and clients are Mandarin speakers, and we have read that some people find it affects their mental health, emotional composure, and ability to focus when they hear Mandarin speakers say a particular word that sounds somewhat like a racial slur. [In the atmosphere we see at USC, of course the employer will have to speak in this indirect way.] Are you a person who would be affected that way? Or would you be able to ignore such a word, knowing that the similarity is just an accident of the sort that happens with two such wildly unrelated languages?

Do you think the employer will feel safe asking this, and confident in the answer? Or will the employer be afraid that even asking such a question would lead to massive public outrage, or perhaps a discrimination claim by someone who says that, yes, his mental health would be affected by hearing the word?

So if the employer believes the USC students’ letter, it seems to me the employer has three options:

1. Demand that all the Mandarin speakers in the employer’s workforce, and among the employer’s clients, contractors, and others, change their way of saying utterly commonplace things in their native language. That’s 900 million native speakers—all of them who deal with the employer will have to change the speaking habits of a lifetime, in the name of “cultural diversity and sensitivities.”
2. Not make any such demand, and hire the black applicant, expecting that the applicant will be often suffering damage to his mental health, emotional exhaustion, and loss of focus (and perhaps that the applicant will make similar complaints, to the government, to the public, or to others, when that happens).
3. Quietly find some way to avoid hiring black applicants, who (he has been assured) suffer from this sort of mental and emotional condition that makes it hard for them to effectively work around the employer’s employees and customers.

Option 3, it seems to me, is the more likely. That’s especially so since it’s much harder for plaintiffs to prove discriminatory failure to hire (given that the great bulk of all applicants of all races aren’t hired) than to prove discriminatory firing or discriminatory treatment on the job. And beyond that, some applicants will be applying for jobs with foreign companies in foreign countries, where U.S. antidiscrimination law doesn’t apply.

Now all that is if the employer believes the claims of effect on mental health, of emotional exhaustion, and of loss of ability to focus. I must say that I’m quite skeptical of such claims, which seem to me like political assertions made in a political document (“political” in the sense of politics within the educational institution) and not demonstrable claims about mental health.

If anyone has any real studies that show that hearing a foreign word (whether from a professor or anyone else) that is a homonym for a racial slur actually affects mental health or causes emotional exhaustion, I’d love to see them; but I know of no such studies. My sense is that, just as black criminal lawyers and employment lawyers deal professionally and calmly with having to routinely see and hear (and sometimes write and say) the actual word “nigger” in witness interviews, briefs, oral arguments, and more, so black MBAs who have to routinely hear Mandarin speakers say “neige” aren’t really mentally or emotionally damaged by the process.

But presumably the letter was written to be believed. And is it really a good idea for organizations of black students to make assertions that, if believed, will make black graduates less appealing to many rational employers?

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From an opinion by Judge Katherine Polk Failla in Doe v. Indyke (S.D.N.Y.), decided in late June, but just mentioned in the Westlaw Bulletin:

To begin, Defendants seek dismissal of Plaintiff’s punitive damages claim on the ground that New York law bars such claims in personal injury suits against representatives of a decedent’s estate. The statute in question, § 11-3.2(a)(1) of New York’s Estates, Powers and Trusts Law (“EPTL”), provides:

“No cause of action for injury to person or property is lost because of the death of the person liable for the injury. For any injury, an action may be brought or continued against the personal representative of the decedent, but punitive damages shall not be awarded nor penalties adjudged in any such action brought to recover damages for personal injury.”

As three recent cases in this District, presenting similar claims against the same Defendants, have recognized, this provision clearly prohibits the award of punitive damages in the situation at hand. See Mary Doe v. Indyke, 2020 WL 2036707 (S.D.N.Y. Apr. 28, 2020); Lisa Doe v. Indyke, 2020 WL 3073219 (S.D.N.Y. June 9, 2020); Doe 15 v. Indyke, 2020 WL 2086194 (S.D.N.Y. Apr. 30, 2020) (“New Mexico common law as announced by the state supreme court, like EPTL § 11-3.2(a)(1), bars punitive damages in a personal injury action against a tortfeasor’s estate.”). Both federal courts addressing constitutional-tort claims under New York law, and state courts in personal injury actions governed by New York law, have concluded similarly. See Mary Doe, 2020 WL 2036707, at *2 (collecting New York federal and state cases).

This position is also reflected in the majority of United States jurisdictions, as the Restatement (Second) of Torts indicates. See Restatement (Second) of Torts § 908 cmt. a (Am. Law Inst. 1979) (“Punitive damages are not awarded against the representatives of a deceased tortfeasor.”). The common justification for the majority rule is that “punishment and deterrence—the recognized bases for imposing punitive damages on a tortfeasor—are not advanced by imposing punitive damages on his or her estate.” Mary Doe, 2020 WL 2036707, at *3; see also Blissett v. Eisensmidt, 940 F. Supp. 449, 457 (N.D.N.Y. 1996) (brackets and citation omitted) (“There is a strong policy against the assessment of punitive damages against an estate on account of wrongful conduct of the decedent.”).

The court also held, consistently with past decisions, that New York law applied, because

Plaintiff was domiciled in New York. All of the alleged torts took place in the home Epstein maintained in New York. Further, Plaintiff chose to sue in New York, where her causes of action are timely pursuant to the New York Child Victims Act…. These facts, taken together, demonstrate that New York’s interest in applying its punitive damages rules to this case outweighs the USVI’s interest, which exists only because of Epstein’s decision to probate his estate there. If anything, it is the USVI, and not New York, that has a “merely fortuitous relationship with the case,” minimizing its interest in governing punitive damages.

(The court also concluded that Virgin Islands law would likely also preclude punitive damages against dead tortfeasors, but in any event New York law definitely precluded such damages, and it was New York law that applied.)

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In this month’s issue, we draw on decades of Reason journalism about policing and criminal justice to make practical suggestions about how to use the momentum of this summer’s tumultuous protests productively. Check out Damon Root on abolishing qualified immunity, Jacob Sullum on ending the war on drugs, Sally Satel on rethinking crisis response, Zuri Davis on restricting asset forfeiture, C.J. Ciaramella on regulating use of force, Alec Ward on releasing body cam footage, Jonathan Blanks on stopping overpolicing, Stephen Davies on defunding the police, and Nick Gillespie interviewing former Reasoner Radley Balko on police militarization.

“One of the major obstacles standing in the way of privatizing police operations or even substituting civilians for uniformed employees in nonpatrol positions is opposition from the police unions. Although many police organizations rally behind the cry that only a police officer can do a police officer’s job, the fact is that often they are simply trying to protect ‘uniformed’ slots and create as many openings as possible for fully trained police officers.”
Theodore Gage
“Cops, Inc.”
November 1982

In 2018, as a gunman murdered 17 students at Marjory Stoneman Douglas High School in Parkland, Florida, Sgt. Brian Miller, a deputy with the Broward County Sheriff’s Office, hid behind his police cruiser, waiting 10 minutes to radio for help. For his failure to act, Miller was fired. The official cause was “neglect of duty.”

In May 2020, however, Miller was reinstated and given full back pay. His 2017 salary was more than $138,000. Miller had challenged his firing, and he had done so with the full backing of his union.

Miller’s reinstatement is notable in that it relates to a high-profile case. But the essential story—an officer performs poorly, with fatal results, and the union comes to his defense—is all too common. That is what police unions do: defend the narrow interests of police as employees, often at the expense of public safety. They start from the premise that police are essentially unfireable and that taxpayers should foot the bill for their dangerous, and even deadly, negligence. And although unions are not the only pathology that affects American policing, they are a key internal influence on police culture, a locus of resistance to improvements designed to reduce police violence. To stop police abuse and remove bad cops from duty, police unions as we know them must go.

In case after case, police unions have defended deadly misdeeds committed by law enforcement. In 2014, for example, New York City police officer Daniel Pantaleo put Eric Garner in a chokehold for selling loose cigarettes. As a result of Pantaleo’s chokehold, Garner died, gasping the words, “I can’t breathe.”

The incident, caught on video, helped galvanize the Black Lives Matter movement. A grand jury declined to indict Pantaleo, but five years after Garner’s death, he was fired from the force following a police administrative judge’s ruling that the chokehold was, indeed, a violation of department policy.

Pantaleo had violated his police department’s policy in a way that resulted in the death of a man who was committing the most minor of offenses. Yet when Pantaleo was finally fired, Patrick Lynch, the president of the Police Benevolent Association, Pantaleo’s union, criticized the city for giving in to “anti-police extremists” and warned that such decisions threatened the ability of city police to carry out their duties. “We are urging all New York City police officers to proceed with the utmost caution in this new reality, in which they may be deemed ‘reckless’ just for doing their job,” Lynch said.

In essence, the police union’s position was: Officers of the law should not be punished for using prohibited techniques in ways that result in the deaths of nonviolent offenders, because to do so would unduly inhibit police work. A deadly violation of department policy is just police “doing their job.”

Too often, when police wantonly use deadly force, their unions slow or prevent justice. In March, plainclothes police raided a Louisville, Kentucky, home. They used a battering ram to break down the door in the middle of the night and then fatally shot one of the occupants, an unarmed emergency room tech named Breonna Taylor. Police were investigating two men believed to be selling pot out of another home, but a judge also allowed police to search Taylor’s home, because they believed the men were using it for package delivery. The raid was executed under a no-knock warrant that gives police permission to break into a private residence without announcing themselves.

Taylor’s death resulted in calls for the officers involved to be fired, but Louisville Mayor Greg Fischer warned that the process would be slow. A significant part of why he expected it to take so long, he said, was the city’s collective bargaining agreement with the police union. Fischer lamented the process, saying he recognizes “the system is not a best practice for our community.”

The city’s police union, meanwhile, has expressed outrage that a city council member described Taylor’s boyfriend, who fired on police during the raid, as a hero. This is the union’s focus: not demanding justice for a woman killed by police in her home but demanding an apology from a local politician who had the temerity to praise a citizen for defending himself and his girlfriend during a botched police operation. The union’s focus has been on protecting the police from public criticism, not on protecting the public from bad policing.

These are anecdotes, but other evidence bears the point out. The Police Union Contract Project, which collects and compares police union contracts across the country, notes that the agreements are generally designed to make it difficult to hold police accountable, in part by giving them privileges that are not afforded to the broader public. For example, the contracts often prevent officers from being questioned quickly after incidents and often give them access to information not available to private citizens. Cities are often required to shoulder the financial burdens of officer misconduct, and disciplinary measures are often restricted. Forthcoming research out of the University of Victoria’s economics department finds that the introduction of collective bargaining does not correlate with a reduction in total crime, but it does eventually correlate with higher numbers of killings by police, especially of minorities.

In other words, the research finds roughly what one would expect given a public sector workforce with unions set up to protect police officer compensation while limiting discipline and oversight. Police get paid more, yet the public is no safer—and it’s at greater risk of violence by police.

For a study in the ways that police unions can foster cultures of corruption and self-protection at the expense of public safety, consider the case of Camden, New Jersey. For decades, the city was among the most violent in the country, plagued by one of America’s highest murder rates and commensurate levels of property crime. In 2012, The New York Times reported, with the murder rate approaching record highs, police acknowledged “that they have all but ceded these streets to crime.” City officials said the police union was to blame. Union contracts made hiring officers prohibitively expensive. The cops on the payroll were being paid too much, and they weren’t getting the job done.

So the city made a novel decision: Fire the police. All of them. That year, Camden began the process of terminating hundreds of officers and hiring a new force, controlled by the county and initially made up of less expensive, non-union labor.

It was a decision meant to address both budget and crime problems. Naturally, the police union opposed the plan, saying it was “definitely a form of union-busting.” City officials, the union said, were relying on a reform that was “unproven and untested,” putting faith in an agency that did not yet exist.

By many measures, however, the unproven and untested new police force worked. After Camden disbanded the city police department and reorganized it under the county with lower pay, while adding a focus on rebuilding trust with the community (which is among the nation’s poorest), murders declined. The city is still dangerous compared to some others, but there’s been clear progress in reducing crime and improving community relations. In May, as residents took to the streets to protest disparate and abusive treatment in black communities, Camden police officers marched with the protesters.

Eight years after the shakeup, Camden police are once again represented by a union. But the new labor representation signed off on a use-of-force policy that is aimed at de-escalation. Police unions have tended to object to such proposals: In 2016, for example, after a think tank put forward a de-escalation policy suggesting that cops think about how the public might react to the use of violence by police, the vice president of the Association for Los Angeles Deputy Sheriffs called it “a ridiculous piece of claptrap,” and the Fraternal Order of Police and the International Association of Chiefs of Police collaborated on a joint statement opposing the idea.

Unions aren’t the only problem plaguing American police forces; there are plenty of other reforms worth pursuing, from demilitarization to ending qualified immunity. But unions have consistently proven to be a force of organized resistance to calmer, safer, less aggressive policing, in part because of how they perceive the nature of the job.

That has been true in Minneapolis, where the police killing of George Floyd has sparked nationwide protests this year. Bob Kroll, the president of the city’s police union, wrote a letter to fellow officers describing Floyd, who was not resisting as an officer pressed a knee into his neck for nearly nine minutes, as a “violent criminal.” Kroll has also referred to protesters as part of a “terrorist movement”; argued that officers were wrongly made to hold back on using “gas munitions and less-lethal munitions” to suppress riots; and complained that the officers fired for their involvement in Floyd’s death were “terminated without due process.”

Like other police union leaders, Kroll has resisted efforts to rein in police aggression. After Minneapolis Mayor Jacob Frey banned “warrior training” courses that teach violent confrontation, Kroll decried the ban and struck a deal for city cops to take the course anyway. In an interview with STIM radio in April, Kroll lamented the emphasis on training cops to de-escalate tense situations and cast the job as one for people who have a high threshold for violence: “If you’re in this job and you’ve seen too much blood and gore and dead people, then you’ve signed up for the wrong job.” These are the kinds of attitudes that police unions extol and reinforce. They contribute to a workplace culture that views policing as a job for individuals who are unbothered by the results of violence.

Police are public servants granted enormous power over the citizenry. They are tasked with protecting the public and serving their interests. Police unions, in contrast, are tasked with protecting police and serving their interests—even in direct contravention of serving the public. That distinction makes them a barrier to reforms aimed at improving public safety and increasing oversight of law enforcement. If union busting is what it takes to reduce this pernicious influence on policing, then it’s time to bust some police unions.

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9/6/1983: The City of Richmond solicited bids for installing plumbing fixtures at the city jail. The J.A. Croson Company’s bid was denied because it did not meet the “set-aside requirement” for minority contractors. The Supreme Court declared this decision unconstitutional in City of Richmond v. J.A. Croson Co. (1989).

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In early July, a group of linguistics researchers published an open letter calling for the Linguistics Society of America (LSA) to revoke the organization’s distinguished fellow status from linguist and cognitive psychologist Steven Pinker, author of The Language Instinct, The Better Angels of Our Nature, and Enlightenment Now.

The signatories, many of them graduate and undergraduate students, pointed to years-old tweets of Pinker’s that they claimed revealed his racist and sexist biases. Almost immediately, a group of established scholars leapt to his defense. “The letter shows no familiarity with Pinker’s work, and takes statements out of context in a way that, with the merest checking, are seen to be represented duplicitously,” wrote Jerry Coyne, an evolutionary biologist at the University of Chicago. Academics from across the disciplinary and political spectrum joined Coyne in rebutting the letter, including linguist (and Reason contributor) John McWhorter, leftist firebrand Noam Chomsky, and formal semantics pioneer Barbara Partee.

In a conversation with Reason Science Correspondent Ronald Bailey on the day the LSA announced it would not take any action against him, Pinker explained what efforts like the LSA letter tell us about the state of debate in America’s elite institutions.

Q: This LSA letter is an astonishing document. 

A: I think it’s part of a larger mindset that does not see the world as having complex problems that we fail to understand and ought to try to understand better to diagnose and treat, but rather as a kind of warfare between powerful elites and oppressed masses. In the classic Marxist analysis, these would be economic classes, but they’ve been transformed to racial and sexual classes.

In this mindset, analysis, debate, evidence are just tools—propaganda exercised by those in power. What has to happen is not a deeper understanding of social problems, but a wresting of power from elites and redistributing it to the disenfranchised.

Q: You’ve said the letter wasn’t specifically about you, but it was quite targeted. 

A: It was quite targeted, but it’s part of a larger movement seeking monsters to destroy. That is, to look for prominent people and do “offense archeology,” which is to troll through tweets and statements seeking to find evidence, however tortured, that there’s some kind of prejudice behind them.

Q: The writers of the letter said that by challenging the claim that police are more likely to kill black people than to kill white people, you showed a “willingness to dismiss and downplay racist violence regardless of any evidence.” 

A: That’s completely wrong. It’s an open question to what extent police are racially biased. As a social scientist, I consider it my responsibility to try to understand that in light of the facts. You’re literally committing a logical blunder if you hold a belief that police are more likely to shoot unarmed African Americans and you don’t count up all the people police shoot. That is by no means a denial of the existence of racism.

There’s a distinct question of whether African Americans are subject to more sublethal harassment, and I think your former colleague Radley Balko wrote a very good summary for The Washington Post that shows there is evidence of racial discrimination in harassment and man-handling and arrests. But when it comes to lethal incidents, the evidence suggests that there isn’t.

Q: I’m trying to get a sense, from your point of view, of why your critics would misread what you are doing.

A: [There’s a] mindset that we evaluate what people mean based on whether the underlying idea is likely to be true or false; that we should use evidence in doing so; that all of us, in large part, start from a position of ignorance when dealing with social problems; and that the imperative is to understand their causes and therefore arrive at the best possible solutions.

There’s an alternative mindset in which the content of someone’s statements and attempts to evaluate them with respect to evidence are beside the point. The imperative is not to examine ideas that may be true or false; it is to maximize passion and solidarity. Because the elites are already in a position of power and the downtrodden have only their own solidarity and emotional passion as countermeasures, therefore anything that undermines the passion and solidarity is harmful in the struggle. And it is a struggle! It’s a kind of warfare that is zero-sum, and the imperative is to change the power balance.

This interview has been condensed and edited for style and clarity.

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