We now have judicial notice that making jokes about the president and fried chicken is probably racist.
Granted, “all these years, I thought I liked chicken because it was delicious.” But living up north, it’s pretty well-established that suggesting black people have a predisposition for eating chicken is prima facie racist and likely to start a fight. That’s not because I’m “sensitive” or “playing the race card.” It’s because generalizing about the foods black people eat has been used as a tool for racial stigmatization for a long time in this country.
That history somehow escaped Judge Lynn Hughes.
We’ve written about Hughes before. He’s a guy who can throw a benchslap. He’s also a guy who has been described as “[u]nquestionably the single worst judge in the Southern District of Texas” on The Robing Room (where lawyers can post anonymously about judges).
But one of his flippant remarks to an African-American plaintiff drew the ire of the Fifth Circuit, even as they were affirming his ultimate result.
You know that you have strayed a little too far from the flock when the Fifth Circuit (Texas, Louisiana, and Mississippi) is schooling you on racial sensitivity….
Judge Hughes’s stupid comments arose from a case in which an African-American plaintiff, Albert Autry, alleged he didn’t get a job at a school because of racial discrimination. One of his allegations was that a manager at the school district was later overheard saying that if Obama is elected president “they’re going to have to take the Statute of Liberty and put a piece of fried chicken in [its] hand.”
Do I have to explain why that’s racist? Here’s a good little test of whether or not a joke or statement is a little bit racist: can you replace the main character in your witticism with a similar person of a different race and have the thing make sense? Here, nobody would say, “If Bill Clinton gets elected, they’re going to have to take the Statute of Liberty and put a piece of fried chicken in its hand.” And I’m pretty freaking sure that Bill Clinton LOVES fried chicken.
Judge Hughes didn’t see it that way. From the ABA Journal:
“No black individually and no blacks collectively owns [sic] the sensitivity rights to fried chicken or anything else,” he said.
When Autry’s lawyer suggested the alleged reference to fried chicken was “a long-standing racial slur,” Hughes replied, “That’s really surprising to Colonel Sanders.”
I don’t know what Judge Hughes is even trying to say there. What in the hell is a “sensitivity right”? The question is not whether racial slurs hurt somebody’s feelings, the question is whether making a racial slur is indicative of having discriminatory hiring protocols. Autry wasn’t playing a card here, he was saying, “Hey, this guy said something racist, could you maybe take a look at it?”
And I don’t even know why Hughes thinks he has the right to speak for Colonel Sanders. Why is the judge assuming that the Colonel is as racially insensitive as he is? I’ll tell you this, I bet if you asked YUM Foods, which owns Kentucky Fried Chicken, they’d probably agree that replacing the Statute of Liberty’s torch with a piece of chicken in honor of the first black president would be pretty freaking racist. You know what I’m saying, the people who SELL CHICKEN wouldn’t want that kind of “product placement.”
(At least I hope they wouldn’t, because I already can’t eat at Chick-Fil-A anymore and I don’t want to be down two chicken joints.)
The good of all of this is that Judge Hughes’s boneheaded statements forced the Fifth Circuit to put the chicken debate on the record. They smacked Judge Hughes around even while affirming his opinion that Autry hadn’t sufficiently shown that he was racially discriminated against:
Autry also testified that shortly after his October 2008 job interview, Mario Carrera — one of the committee members present at the interview — told Autry that Johnson had said that “[i]f President Obama’s elected, they’re going to have to take the Statute of Liberty and put a piece of fried chicken in his [sic] hand.” While FBISD challenged the statement as rank hearsay, the district judge rejected it as political, observing that “no black individually and no blacks collectively owns [sic] the sensitivity rights to fried chicken or anything else.”
The district judge’s comment misses the mark, as it overlooks the racial component of Johnson’s alleged statement. However, we must agree with FBISD (and the district court’s implicit ruling) that Autry’s deposition testimony was without force in the face of a motion for summary judgment.
In a footnote, the court suggested that the chicken remark is similar to calling a black person “boy”:
Cf. Ash v. Tyson Foods, Inc., 546 U.S. 454, 456 (2006) (holding that the term “boy” may be evidence of racial animus, depending on the context in which it is used). When Autry’s lawyer tentatively suggested that Johnson’s alleged reference to fried chicken was “a long-standing racial slur,” the district judge rejoined that “[t]hat’s really surprising to Colonel Sanders.”
Tex Parte Blog reached out to Judge Hughes about this decision, but he has not responded with comment.
I doubt that Hughes has learned any kind of larger lesson here. I can’t wait for the case where some black person is called a “spade” and Hughes says, “Black people don’t have a sensitivity right over common gardening implements.” I just hope that next time, the Fifth Circuit explains why Hughes is a “tool.”
Judge who dismissed racial slur claim as ‘surprising to Colonel Sanders’ gets sensitivity lesson [ABA Journal]
5th Circuit has to explain a “long-standing racial slur” to U.S. District Judge Lynn Hughes [Tex Parte Blog]