In order for the 14th Amendment to regulate private actions, those actions have to be sufficiently entangled with some action by the state. This is important because the ruling in The Civil Rights Cases, which essentially ended Reconstruction and ushered in Jim Crow, highlighted the ability of private actors to legally segregate and discriminate. I tell you this because these cases began a section of class reading that was somewhat uncomfortable, as that age old topic of race and discrimination reared its ugly head.
Within these cases, the judicial opinions are colored with the language used during that time period. Words like “Negro” are thrown about with less care than they are now, simply because that’s what blacks were known by (well, it’s universally understood that we were known by less agreeable terms, so I guess the Court could be commended for using the most complimentary available term to describe the newly freed slaves, but I digress…). This can prove problematic for a professor who necessarily needs to remain specific to the text in order to properly teach (something a constitutional law professor has to do). This can prove especially problematic for an ultra-liberal, awkward man like Professor Payne. It was clear from jump that Payne struggled in trying to figure out how to say “Negro” in a way that remained true to the text but also doesn’t offend.
Side note: I can’t speak for all black folks (and the rest of this story will prove that point correct), but the term “Negro” does not offend me, especially when it’s spoken in the context of a constitutional law class. “Nigger” is offensive; “Nigga,” at present date, can only be spoken in public under very specific circumstances, and even that statement is questionable. “Negro” is just an old term. In fact, it’s an old term that was used in order to speak highly (given the time period) of black people. While that description of the term may seem like a back-handed compliment, it also points to the fact that the term never embraced the same venom as “nigger,” or even the present-day use of “nigga.”
Fast-forward a few classes, and visualize Payne in his customarily awkward self, struggling through his usual “errs” and “ehhs,” and then gathering the inner strength to say “Negroes” as if he were breaking bad news to his child. He went through this process many times, to the point that I was beginning to feel sorry for him. Roe, sitting in the front of the class, raised her hand and then explained in a very mature manner that she would rather Payne use a term other than “Negro” (I point out her maturity, as I can think of quite a few black females who, being offended by the term, would show their asses while telling the professor that his words were unpleasant). She went on to explain that the continual use of the term serves only to convey its acceptance, and she is against such approval.
Payne, now looking even more awkward (before this moment, I had only heard of folks turning “beet red,” thinking this to be hyperbole of some level. Thanks to Payne, I now have seen the perfect combination of red and purple on a person's face that also creates the unique hue of a ripe beet; canned, not fresh.), attempted to explain the difficulty in coming up with a word to describe the entire Pan-African race, as many Caribbean folks take offense to being called African-American, as do native Africans (this highlights an usually under-the-radar issue that African-Americans deal with: African-Americans are often looked down upon by others of similar hue. Don’t get me started…). He finally said that “black” would probably be the universal term of choice at present moment. Finally, he made the point that it is important to use terminology of the text, as it properly dates the opinion and gives the opinion proper meaning. He ultimately apologized for using the term and said he’d attempt to avoid its use.
Of course this confrontation led to plenty of debate, and on a campus full of lawyers-in-training, debate can become a mess. In an effort to hear from folks who don’t organize their opinions based on the IRAC system, I ask you: was Payne wrong in using the term? Was Roe wrong in confronting Payne?