FIGHTING RACISM WITH SANISM
By John Weston Parry
Nowhere in American life are stigmas, biases, and prejudices based on mental disabilities more pronounced than in the world of athletics, particularly with our most popular spectator sports. “Sanism” has a strong influence on our athletes, coaches, managers, owners, and leagues, which reflects a broader and more pernicious problem throughout our society. Sports not only mirror, but intensify, “sanism” in America. Having a mental disability is about the worst thing that can happen to an athlete or coach, which is why normally it is such a guarded secret. In today's sports world, as with society more generally, what would be clearly labeled as inappropriate if it involved any other type of illegal or illicit discrimination is embraced without much dissent if it involves mental disabilities. The disturbing Donald Sterling affair illustrates this bias.
Sterling, the disgraced owner of the Los Angeles Clippers National Basketball Association (NBA) team, is by most public accounts an unpleasant and racially insensitive man. He was transformed from an impending N.A.A.C.P. community service award recipient to racist villain, based on his private views that were recorded without his permission. Otherwise, his money and social status would have ensured that he received that award and continued to own his team and the social standing that brought him, even though it was strongly suspected that he held views that were racially suspect, if not actually racist. Instead, he became one of a slew of sports personalities, including Jimmy the Greek Snyder and Marge Schott, who have seen their elevated social standings disappear and been threatened with the loss of employment or other economic sanctions, after they uttered public words that were considered to be, or were, racist.
There is a definite line in polite society that cannot be crossed when it comes to race and ethnicity, gender, and lately sexual preference. No such line exists with respect to disability generally, and mental disabilities most of all. Sanist language rarely creates a public outcry. If Sterling had told his girlfriend not to bring her “psycho” or “retarded” friends to games because he was convinced they would have made him look bad, in all likelihood nothing of consequence would have happened.
Whether anyone should lose their possessions or be deprived of their economic interests due to their private discriminatory words pits anti-discrimination against privacy rights and freedom of speech. Reasonable people can embrace varying positions in trying to resolve this conflict between important social values. Assuming the answer is yes, however, as was the sports public's verdict in the Sterling affair, it is regrettable that a “sanist” double standard is being employed in order to attempt to civilly punish him for his offensive words.
What the NBA and much of the sports public and media wanted was for Sterling to go away by forcing him to sell his interest in his team. This would allow the other NBA owners to minimize the public relations damage and move on, while avoiding any potentially embarrassing questions about other racial inequities and insensitivities involving NBA teams, their owners, and the league. There was an important reason why the newly-installed NBA Commissioner, Adam Silver, was very careful not to say that the league was taking away Sterling’s interest in his team when Silver banished the Clipper’s owner from attending or participating in NBA games and events for life. Legally, it appeared very likely that the decision whether and how to sell his interest in the team was Sterling’s to make, regardless of what the NBA, its players, and the fans believed would be the best thing for him to do.
Yet, his having these seemingly inalienable legal rights did not really end the matter. It turns out that controlling interest in the team was not owned by Sterling himself, but rather a family trust that he had established with himself as trustee in order to mine certain short and long-term tax advantages. One of the major beneficiaries in this trust was his estranged wife, Rochelle, as well as other members of his extended family. Without securing Donald Sterling’s consent, Rochelle, who after Donald held the most power under the trust, unilaterally tried to sell the Los Angeles Clippers to Steve Ballmer, who once was the chief executive at Microsoft, for a reported $2 billion. She did this by declaring that her husband was mentally incompetent, making herself the acting executor of the trust. This shrewd business maneuver was hailed throughout the sports world and in much of the media. The unfortunate irony was that one form of pernicious discrimination, based on mental disability, was being used to justify popular retribution for another type of pernicious discrimination based on race.
One of the most disturbing aspects of American law is that the rights of persons with mental disabilities have been consistently shortchanged. There have been too many instances in which people who are legally competent have been deprived of their right to make decisions for themselves based on allegations of mental incapacity; or when people are found to be legally incompetent, someone else makes a decision for them, which ignores the stated preferences of the person with the mental disability in order to satisfy someone else’s agenda. This is exactly what Rochelle Sterling is trying to do to her estranged husband with the complicity of the sports media, and perhaps the courts. In the more distant past, it was usually the husband who deprived his wife or children of their legal rights based on dubious or entirely inaccurate allegations of mental incompetency. Apparently, this is a new form of gender equality.
Whether or not Donald Sterling is mentally incompetent cannot be reasonably assessed based on hearsay opinions of mental health experts, who reportedly believed that he may have a mental impairment. Mental incompetency is a serious legal determination that ultimately should be made by a court of law based on clear and convincing evidence submitted by both the respondent, whose rights are in jeopardy, and the party who is alleging the person is incompetent. The burden of proof is on the party alleging incompetency. Proving mental incompetency to make basic contractual and business-related decisions normally is a high threshold to meet. The minimum standard for individuals to retain their contractual rights is very low. Merely because Sterling reportedly has a “mild cognitive impairment consistent with early Alzheimer’s disease,” is not nearly enough to establish his mental incompetency as a legal matter. In fact, that description strongly suggests that he is not legally incompetent and his estranged spouse is trying to use her influence to undermine his legal rights.
In California, as in many states, even if a person is found to be mentally incompetent, it is typically incumbent upon the court – or a substitute decision-maker – in making a decision on behalf of the incompetent person, to determine what that individual would have wanted. In this case, it should be pretty obvious from his public statements that Sterling has indicated in no uncertain terms that he does not want his interest in the team to be sold without exhausting all of his legal remedies, unless he gives his consent. Simply because most of America despises the man, does not mean he should lose his legal rights with regard to the Clippers, even if he were mentally incompetent, which apparently he is not.
Two billion dollars is what may bring Sterling to his senses, not unfortunate court theatrics that are unlikely to withstand judicial scrutiny on appeal should the lower court decide to allow the team to be sold by the Sterling Family Trust against the clearly-stated wishes of Sterling himself. Reportedly, two Los Angeles-based mental health experts, one a neurologist and the other a geriatric psychiatrist, retained by Rochelle Sterling, concluded that Donald lacked the capacity to serve as trustee of the family trust. They reportedly based their opinions in part on CT and PET scans, even though those “tests” have never been shown to be reliable in drawing this type of legal conclusion. In addition, the neurologist was a social acquaintance of Rochelle and is alleged to have based her opinion in part on what transpired when Donald took them all out to dine at the Polo Lounge in Hollywood, which if true would be unethical.
Let us suppose that Donald Sterling actually has had certain significant medical issues related to his mental condition. That would place his private “ravings, which became public, in an entirely different context. Even if his alleged impairments fell far short of meeting the legal threshold for establishing contractual incompetency, they could plausibly explain why an 80-year-old white man was so insecure about his lover’s social involvement with younger African-American athletes that he felt compelled to extrapolate on why she should not associate with them. He tried to bolster and defend his position using outrageous racist analogies, including the difference between white Jews and black Jews.
In the tape recordings of what he said, reproduced by Deadspin, Sterling never maintained that his racial beliefs were based on what was right or wrong. He discounted morality entirely. He emphasized that his views were all about how, in his mind, society viewed blacks as being inferior to whites, and there was little he could do about that. “I don’t want to change the culture, because I can’t.” According to Deadspin, his were the words of “a doddering racist….”
Logically, Donald Sterling either is responsible for his utterances and more than competent enough to make his own business decisions, or he is of questionable competence and only partially responsible for the views that were made public. The media and the courts should not have it both ways, but in our society that is what typically happens. Persons with a presumed mental disability receive little or no reduction in their culpability for their behaviors, but are punished or sanctioned more harshly or deprived of more rights than if they had no mental disorder at all. This is a basic theme in American law that is detailed in Mental Disability, Violence, Future Dangerousness: Myths Behind the Presumption of Guilt (Rowman & Littlefield, October 2013). Brief excerpts without references enlarging on various mental disability aspects that apply to the Sterling affair appear below in bold italics, along with other observations based on this book.
Civil Rights' Injustices
In America, injustices against persons with mental disabilities are well-entrenched both in the fabric of society and our laws based on legal, psychiatric, psychological, and governmental structures and public opinion... Even overwhelming [social science and empirical] evidence [that mental status expert evidence and testimony is] unreliable and discriminatory will be met with skepticism and broad-based resistance. To paraphrase the theoretical physicist, Lawrence Krauss, “unless science, [empirical evidence] and data become central to informing our public policies, our [nation] will [continue to] be hamstrung.
For people with mental disabilities their inability to think or act rationally is generally ignored in terms of assessing their culpability, while their mental conditions are used as justification for applying harsher penalties and deprivations of rights. This occurs in both the criminal and civil justice systems. Typically, such bias arises not only because these individuals are presumed to be particularly dangerous to others and themselves, but also because they are presumed to be mentally incompetent to make decisions for themselves. This is part of a long and often deplorable history of discrimination in the United States....[F]or over two centuries now most Americans with serious mental disabilities [or thought to have such disabilities] have been subjected to stigma, prejudice, abuse, neglect, and/or inadequate or nonexistent treatment....Such callousness toward people with mental disabilities has been a product of ...“sanism,” which... is no less, and often even more, pernicious than racism.
The language we continue to use in referring to persons with mental disabilities is dehumanizing and subjects them to blatant injustices especially in the legal system. Unlike racism and sexism, which generally are condemned when made public and subjected to heightened constitutional scrutiny..., sanism is practiced rather openly and its manifestations are ...subject to less judicial scrutiny....[O]ur legal system has adopted special rules for the admission of unreliable psychiatric and psychological evidence, which place persons with mental disabilities at a serious disadvantage.
Over the years, the language used to disparage and demean persons with mental disabilities has changed somewhat to keep up with the times. Nevertheless, our popular culture is still littered with terms like “retards”... “mental defectives... “going postal,” and other derogatory, stigmatizing, inflammatory, and alarming references targeted exclusively at persons with...mental disabilities..... While polite society scrupulously avoids such discriminatory references for other categories of people..., these...references continue to be commonly used to improperly describe or categorize people with mental disabilities.
Loss of Decision-making Rights
Historically, people who were institutionalized based on their mental disabilities lost their basic rights of citizenship....including personal and financial decision[making]...and privileges...such as voting, holding elected office, and driving. Many of their decision were made for them by [g]reedy, ill-informed, and/or unprincipled relatives [and] friends... [who] could, and often did, deplete the patients' estates, steal their possessions, or consent to highly questionable medical procedures....
Today, many different types of civil injustices based on prejudices and stereotypes about persons with mental disabilities remain in place. Donald Sterling was pretty much impervious to any legal attacks for his racist language, until issues regarding his mental competency were raised based on unreliable expert evidence, including purported CT and PET scan results. He was transformed from a man who uttered despicable words into a victim of sanism.
Michael Perlin defines sanism to mean “an irrational prejudice, due to a person's mental or emotional disability, that is `based predominantly on stereotype, myth, superstition, and deindividualization,' which infects ... our jurisprudence....” Sanist language disparages persons with mental disabilities by communicating that those negatively labeled individuals are somehow less worthy as human beings, and thus [may] be...treated differently from the rest of society to their detriment, particularly in our legal system.
CT And PET Scans
The use of neurologists, who depend on CT and Pet scans to make legally relevant diagnoses, is an emerging practice that has no sound empirical basis. As a scientific matter, such conclusions are bogus if used to prove a person's dangerousness or mental incompetency. The notion that Donald Sterling could lose his decision-making rights founded in part on such spurious evidence would be an indictment of our legal system. Such evidence should never be allowed to go forward in a court of law to prove a person’s mental status. Hopefully, such flawed neuroimaging results will not prove determinative in this case because, if they do, it not only will represent a miscarriage of justice in Sterling's case, but it will set a terrible legal precedent.
This use of “neuroimaging,” based on various types of brain scans, presumes that there is some meaningful correlation between perceived damage and irregularities in certain parts of the brain and [various].... types of behaviors.... The actual correlations appear to be very low, even as applied to large groups of people, much less particular individuals....[Overwhelming]practical limitations negate the legal value of trying to identify areas of the brain in specific individuals that are damaged or irregular.