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The legal erasure of black families

Enslaved parents had no custody over their children. Remnants of that powerlessness endure today

July 26, 2015 2:00AM ET

In his new book “Between the World and Me,” Ta-Nehisi Coates recounts taking his four-year-old son, Samori, to a movie theater in Manhattan’s reputedly progressive Upper West Side. Coates and Samori are riding an escalator to exit the theater. Samori, who is doe-eyed beautiful, moves too slowly to suit a white woman on the escalator; the woman pushes him and says, “Come on.” Her tone is not described, but Coates reports his furious response in vivid detail. His rage leads to a loud argument with the woman and then with bystanders who come to her defense. Coates pushes one of the defenders, to which the defender responds, “I could have you arrested!”

Coates is a black man, a member of a socially constructed people who, he points out, have existed in America longer as slaves than as free citizens. And while it might be tempting to interpret the woman’s push and her words as ambivalent, or perhaps even as benevolent, for Coates they must have been stunningly resonant with the social disregard and legal erasure that black parents endured in slavery and in post-slavery apprentice systems — in which black children were apprenticed to former masters, sometimes against their parents’ wishes — and that they continue to endure in the racially disproportionate surveillance of clumsy child welfare systems.

As slaves, Coates’ people lived what sociologist Orlando Patterson calls a social death. A slave had no legally recognized family status. Slaves were the property of owners rather than the children of parents. Enslaved parents had no legal right to supervise, or even to keep custody of their children — who could be disciplined at will by owners or sold at any time to distant masters. We can only imagine the psychological consequences of the slave parent’s legal and social incapacity, but we have historical records and slave narratives to guide us.

We have a letter written by a freedman to the governor of North Carolina in 1869 to ask how he could bring to justice a white man who ordered his son about and then beat and cursed the father for protesting. We have the autobiography “My Life in the South,” published in 1879, in which Jacob Stroyer reports that when he was “too small to work” he was given chores in a stable and beaten when he was unable to mount a horse properly. The child ran crying to his biological father, but the father could do no more than say, “Go back to your work and be a good boy, for I cannot do anything for you.” We have an interview in which a former slave recalled a time when a master tied his father up, “pulled down his breeches and whipped him right before Mammy and us children.” We have James Pennington’s memoir “The Fugitive Blacksmith,” first published in London in 1849, in which he recalls having seen his father given “fifteen or twenty” lashes that ended with the words, “I’ll make you know that I am the master of your tongue as well as of your time.” The sight, Pennington wrote, “created an open rupture” within his family.

The escalator push may also have resonated for Coates with contemporary stories of child welfare systems that interrupt, rather than support, the efforts of black mothers and fathers to raise their children. I think of a devoted father whose child was removed from his care because a $5 bag of marijuana was found in his room by staff of the shelter where father and child were living. I think of mothers who lost custody of their children because the mothers themselves had been subjected to domestic abuse. In his autobiography, Malcolm X recounts being placed in a foster care system that he came to perceive as “modern slavery.”

A mature person of color is supposed to know how to respond calmly to those seemingly ubiquitous microaggressions, from the clutching of a purse to the disciplining of a stranger’s child.

“I could have you arrested!” can be a stunning statement for a black person to hear.  It can inflame an ever-present fear in a world in which black men, women and children know that we must always be prepared to modulate every word and gesture to address persistent risks of arrest or shooting. A world in which an official misjudgment can carry the same risk as the misjudgment of an adolescent gang member watchful for signs of disrespect — the risk of injury or death. Coates gives no defense of his actions in that Upper West Side movie theater. He appears to blame himself for mismanaging the stressor. A mature person of color should know how to absorb or finesse microaggressions, how to assess and respond in a safe, healthy way to those seemingly ubiquitous events that may — or may not — be the result of a stereotyped and insultingly pejorative judgment: the clutching of a purse, the oversimplification of an instruction, the spontaneous discipline of a stranger’s child.

But what should Coates have done when a stranger corrected his child? The psychiatrist and Harvard Medical School professor Chester Pierce was the first of many to point out that managing the risk of stereotyped pejorative misjudgment can be a source of intense psychological stress. Social psychologist Claude Steele has led a small army of researchers who have established that the fear of negative stereotyped judgment can drain and psychologically distract people in ways that significantly impair academic and professional performance. More recent social psychological research in the Steele school looks at the other side of perceived microaggressions to discover that people in dominant groups are inhibited by fear of being judged as bigots, just as people of color are inhibited by fears of being judged as incompetent and in need of discipline.

This research suggests that fear of misjudgment on each side of an encounter, such as the one on the movie theater escalator, leads to social distance.  What researchers once thought of as the “stereotype threat” experienced by subordinated people they now speak of as “identity threat” that affects us all. Perhaps the woman on the escalator is a supremacist. Perhaps she has seven black grandchildren whom she loves respectfully and addresses exactly as she addressed Samori. Perhaps both things are true. Should we hold her to a duty to be sufficiently conscious of our shared history that she anticipates and avoids unintended insult? Or should we judge Coates as harshly as he seems to judge himself and insist that he keep the social waters calm?

Perhaps there is a third option. It would disrupt the appearance of peace that is created when an insulted father retreats at the threat of arrest, but it might bring a measure of social health. Coates is famously and understandably prone to counsel against believing in dreams of harmony and equality. But he does believe in struggle. It may therefore be safe to assume that he would embrace — and that perhaps it has been his purpose to start — calm, candid dialogue to bridge the social distance that identity threat creates. Perhaps this kind of bridging talk is a small part of what it means to be, in Coates’ own memorable words, “a conscientious citizen of this terrible and beautiful world.” 

Peggy Cooper Davis is the Shad Professor of Lawyering and Ethics at New York University Law School. A former New York Family Court Judge, she writes frequently about the law’s impact on marginalized families.

The views expressed in this article are the author's own and do not necessarily reflect Al Jazeera America's editorial policy.

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