Dear 11th Circuit: Someone Doesn't Like You!

We previously covered the 11th Circuit's most recent "boy" opinion back in late August, but for whatever reason the NYT has finally got around to it in a blistering piece by Adam Liptak:

Notwithstanding the nudge from the Supreme Court, a different panel of the 11th Circuit overturned the second verdict last month.

The judges had not seen the testimony and so had to infer “inflection” and “tone of voice” from a transcript. They probably knew less about “local custom and historical usage” than the jurors did. But the judges in the majority nonetheless ruled that “a reasonable jury could not have found” race discrimination.

The court went further, criticizing Mr. Hithon’s lawyers for eliciting testimony likening the word “boy” to the most charged of racial epithets, saying that their conduct had been “highly improper.”

But U. W. Clemon, who was a civil rights lawyer before becoming Alabama’s first black federal judge in 1980, said in an interview that the two terms had the same force.

Mr. Clemon, who resigned from the bench last year, said he had followed the Hithon case closely. He added that he knew something about the “local custom and historical usage” of the word “boy,” having grown up in the segregated South.

“It’s the same as calling him a nigger,” the retired judge said.

Stephen B. Bright, president of the Southern Center for Human Rights, said the Atlanta appeals court was an outlier among the federal appeals courts, one that is consistently hostile to suits from people claiming racial discrimination.

“There is no such thing as racial discrimination in employment in the 11th Circuit,” Mr. Bright said, adding that the court’s response to the Supreme Court’s ruling in the Hithon case amounted to “outright defiance.” 

Tapped takes it one step further, noting -- as others have -- the lack of diversity on our appellate bench:

More broadly, this puts further lie to the conservative claim that judges can be impartial "umpires" calling "balls and strikes" in their application of the law. The 11th Circuit Court is dominated by older white men of the South. Conservative hostility to claims of racial discrimination aside, is it really any surprise that the court failed to see the racial implications in calling an African American employee boy?

Again I think this criticism goes too far, but these are not the kind of national headlines you'd like to see generated for our (mostly) benign overlords in Atlanta.

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