The Fairness Ellipse
Fairness is one of those words that we all know what it means generally, but it’s really hard to actually define the concept. Dictionaries give two meanings for “unfair.” It’s either something that’s “not just” or something that’s “not kind.” Those are two very different denotations, and I picture the overarching connotative definition of “fairness,” as an ellipse with those two concepts, “Justice” and “Kindness,” as the foci.
In college, I took a seminar on Politics and Literature, and one of our areas of study was Apartheid and post-Apartheid South Africa. We spent a lot of time thinking about what it would mean to form a body of laws not based on justice, but on fairness. Mandela’s idea for the Truth and Reconciliation Commission embodies this well.
The 2016 U.S. election and its aftermath have made me think back on this idea of fairness vs. justice, and how relative those concepts are. For me, the election was like someone kicking over a rock and revealing the true ugliness of America that happy, white liberals like me had just been ignoring. But those anti-immigrant, tribal instincts that have been a part of America from the very beginning are still there, and they leak out everywhere in our society like radioactive fuel. It was just so shocking to me how the worldview of basically half the country could be so far from mine and basically all the people I know.
The truth is that our society is inherently unfair in all these ways that are totally insane, but because it is how it has been for so long, we’ve just grown accustomed to it. The rest of this post I want to dedicate to a list of all the things big and small that just strike me as patently unfair in our society:
1. Public schools are funded by local property taxes, so if you live in a wealthy community, your kids get to go to better schools. If that doesn’t prove our country is rigged, I don’t know what is.
2. “Public” universities get less than 10% of their funding from the government. My parents paid $12/quarter to attend UC schools, because the people of California thought higher education and young people were worth investing in.
3. The more you need something like a loan or a low-fee bank account, the less likely you are to get it. Those payday loan places—how is that a legal thing that exists? If you believe in “Christian” values, how do you reconcile that with the fact that Jesus’s only overt political stance was to throw the moneychangers out of the temple. Even he couldn’t turn the other cheek on those payday loan people.
4. Capital gains are taxed at about half the rate that regular income is. Working and middle class people just get fleeced on this, and I don’t understand why this isn’t considered scandalous.
5. The “public” airwaves are controlled by monopolies and privately owned companies, but they are held to seemingly no standards. What happened to the Fairness Doctrine? What happened to equal time?
I feel like this just scratches the surface of injustices or unfairnesses in our society, but I've run out of time, but will have to keep adding to this list.
You Want Me To Write About What??!?
None of it was my doing, but I somehow was born a straight, white male in the United States, so I get a pass on something like 90% of the unfairness going around.
I often use to joke when we went to Chinese restaurants that what was written on the menus included a message that if you can read this, mention it for 25% off the price of your order. I think I came up with that one after reading about those people getting tattoos in Asian languages that didn’t, exactly, say what the customer thought they did,
That said, I am often a seething cauldron of anger at the unfairness of life. It doesn’t usually affect me, personally, but it does affect many of those I love and care about. I don’t have a daughter, but I wince quite often when I see what women go through and how they’re treated. I don’t think I need to have an actual daughter not to wish that a hypothetical one would get a fair shake.
I don’t remember where I got it from, but early in my life I heard a line about a woman carrying the burden of beauty, and I’ve thought of that ever since. Being an attractive woman must present challenges I can’t even imagine, and I say that knowing how a lot of guys think about women. It would be a weight and, again, it’s not always something that’s entirely under her control.
That’s unfair, and it bothers me.
I don’t think it’s fair to call people stupid, either, and that gets me in lots of trouble. The thing is, I don’t think of “smart” or “stupid” the way most people seem to. I think most people think about those, if they think about them at all, in terms of some total mass of knowledge, which I think is better described in terms of ignorance. You may be aware of lots of things that I have no idea about, but that doesn’t seem to me to be what we mean when we say someone is smart.
I think of it more in terms of sheer brain horsepower. The ability to learn, if you will, and I’m convinced that much like our height or eye color, that’s something we’re born with and isn’t under our control. I don’t make fun or criticize people who aren’t as tall as I am, and I don’t see any reason to do that to people based on how well their brains work.
Calling someone dumb, then, strikes me as real unfair. Or, at least rude.
I’ve been on the wrong side of lots of decisions and happenings, and when that happens I get mad sometimes or annoyed or whatever, but after some reflection I almost always see what part I played in getting that treatment and that gets rid of any notion of unfairness. No, maybe it isn’t fair that someone else gets that job I want, but they knew someone I didn’t or may have chanced upon the right answers during the interview and were a better match for what the person hiring wanted. And, fair or not, there’s not much I can do about that.
The main thing that keeps me from being perpetually outraged is that I’m excessively easy going. Most things just don’t bother me. When I was growing up we called it “laid back,” and I’ve perfected that. I love looking at things, perceiving things, and thinking about them, but I’m not big on judging (seeing differences more than some ranking), and maybe that keeps me unaware of lots of unfairness.
I don’t think it’s fair that grandchildren of someone who wrote a hit song get an easier ride than I had, but there’s nothing I can do about that except fume. So, yeah, I see plenty of unfairness, but I guess that’s how more people want the world to be.
So, rather than personal, most of the unfairness I see and think about is more intellectual or theoretical, and that’s not very interesting. :-(
The Athlete as God
I work in a school that essentially caters to athletes. If a boy is looking to go D1, the world revolves around him. This country has elevated the athlete to god-like status, leaving mere mortals behind and often without a place at the table.
I am speaking, specifically, of college. During the 4 years I have worked at this school, which I do love even if some aspects of the school and its culture anger me greatly, I have seen boys with lower grades, poorer test scores and more money than we have, get into the colleges my son would love to attend, with a fully paid ride. It feels tremendously unfair that a student who is described, at times quite accurately, as a brick is able to get into a college that won't look twice at a decently smart, but not over the top candidate. Dartmouth comes to mind.
A couple of years ago, we had a small number of boys applying to Dartmouth. One of them barely scraped by getting a 3.0 taking ridiculously easy classes. (The curriculum carved out for Athletes checks all the boxes but is easy to sleep-walk through). His test scores were the bottom of acceptable but his arm!! That boy could THROW a ball. He got in, fully paid for even though Ivy Leagues don't pay for athletes. Somehow this boy won a merit scholarship. That boy's classmate who also applied, but wasn't an excellent baseball player, was denied admittance. His other two brothers at this school were wait listed, but the list expired before they were chosen. Would the athlete end up doing better things for the school that the scholars who were turned down? We will never know.
A little closer to home, I have seen significant discrepancies in how the school handles students who get in trouble. Often the boys are getting into trouble for things that, if they were living at home and going to their public schools, no one would notice or care about, but given their choice in school, certain things will land you in very hot water.
Three students went off campus to one of the boys' homes, and they threw a party. Now, aside from the fact that these boys clearly need to watch more John Hughes films because they would have known this little jaunt from campus would not end well if they had, the whole experience left many boys down for the count. Three boys were suspended, one was expelled.
Curiously enough, there was one of our high profile football commits at the party as well - because word spreads and in the land of Uber, getting off campus is as simple as tapping an app. But there was video footage of this boy at the party, video and photographic evidence he was drinking. These things alone would earn you an invitation to sit in front of the discipline committee, but this boy escaped the chamber of fear. His coach swept it under the rug. "boys will be boys' and all that. And while I agree that boys are less likely to think through the consequences of their actions than girls are, this is not a hard and fast rule. But what angers me most was the lack of both clarity and uniformity in how they handled discipline. The Penn commit could very easily have had his offer revoked, but I find unfair is that his admission is guaranteed because he has an arm and can plow through a group of people. If our jobs as educators is to educate the boy when he screws up, what lesson did my Penn commit get from his outing? Not nearly enough.
Bootjack and the Killing of Raymond Battle
On a July afternoon in 1976, in the District of Columbia, William Pierce is at a party with his wife. He is a good-looking 30 year-old, with a close-cropped goatee. Short and stocky, he has a muscular build earned as a deliveryman. Everyone calls him “Bootjack.”
Also at the party is Raymond Battle, whom William has known since boyhood in North Carolina. Others at the party are also from the same town in North Carolina and most of the people present know each other. William and Raymond start “having words,” which quickly leads to a heated argument. Raymond says to William, “Look, I know the real reason you are arguing with me. You think I have my eye on your wife.” William then leaves the house, and Raymond goes to his car and returns with a pistol tucked into his belt.
An hour later, William returns with a gun. Raymond Battle is leaving the party and he and William resume the argument, William from inside his car. William fires first—though both he and his wife claim that Raymond reached for his gun—hitting Raymond in the back of the head as Raymond tries to take cover. Raymond falls to the pavement. In the police photo, Raymond lies dead in a pool of blood with his silver plated .38 caliber pistol at his side. Another witness testifies that Raymond never reached for his gun because he was too busy taking cover.
William, already on parole for armed robbery a decade earlier in North Carolina, is arrested. He can't afford a lawyer and the court appoints one. The prosecutor offers William a deal; plead guilty to second degree murder and receive a sentence of up to twenty years. If not, he will be tried for first-degree murder—he left the scene and returned with a weapon and the premeditated intent to kill Raymond—and face a life sentence with a mandatory incarceration of 20 years before eligibility for parole.
The trial is over quickly after William’s lawyer offers little evidence. William is convicted of first-degree murder and begins serving the sentence, unable to afford bail during the appeal process.
It is 1978, and Larry Singer and I have just moved our new law firm, consisting of just Larry and me, to a suite we can’t afford unless we rent some of the other ten offices. Right then I get called by the appeals court and told I have been appointed to represent William Pierce. With thousands of lawyers in Washington, D.C., and lots in big firms with criminal experience, of which I have next to none, how can it be that I get a murder case that won’t pay anything compared to the time it will take to represent William?
But as I learn more about the case, I think William might have a chance to get a new trial. Among other problems, his inexperienced appointed trial lawyer relied on a court-appointed investigator to develop evidence, but little work had actually been done on William’s behalf. After talking with William, I find several witnesses willing to testify that Raymond Battle had a history of violence and was known to carry a gun. This strengthens William’s case that he had a gun to protect himself because he knew—like many others—Raymond was dangerous and carrying a gun, not because he premeditated killing him.
In the end, after much more work than I thought possible, the appeals court finds that William’s first trial had been unfair and awards him a new trial.
When it is time for his new trial, this time William pleads guilty to second degree murder. The new trial judge is unimpressed with William’s case and gives him a long lecture about the perils of guns before sentencing him to the maximum of 20 years. But the new sentence converts hard time to easier time and makes William eligible for work release, and other programs, as well as parole. After sentencing, he heads back to the prison and I never hear from him again.
1223 days, 18 hours and 15 minutes left
"Write about something that strikes you as really unfair."
What, you mean *besides* the Trump presidency?
I kid, I kid...well, maybe I half-kid. In the current climate, rounding the corner on to the last part of 2017, so many things strike me as "really unfair," that it's hard to approach this question in any way that would not leave me either crying or fuming if I weren't already so tired of the controversies. I feel like the country is settling into a huge case of "outrage fatigue." We all knew it would come; hell, sometimes I am surprised we lasted this long.
Oh, of course people are still getting outraged...I just see fewer and fewer people expecting that anything will happen as a result of the outrage. We began so strongly on January 21 with the Women's March, and followed it up strong with the gatherings at major airports to protest the detention of those affected by Trump's illegal travel ban. I went down to LAX on that Sunday and waved a sign for four hours, and ended up marching around the entirety of the Departures level. I can't lie: it was pretty fun to feel so caught up in something and to feel such solidarity and fervor of purpose with the people around you, and to actually suspect that your protest was having an effect on something in real time.
But now we're into the Fall: past Russia-gate, past the Pee Tape, past the firings, past Sean Spicer hiding in a bush. Any one of these things would have been fodder for weeks of news cycles, but in 2017
And god love them for their crucial and desperate part in keeping our democracy alive, but it's the less-noble aspects of the news media that have made us this tired. "If it bleeds, it leads," and our whole country is hemorrhaging. The same impulse that would have made any one of Trump's actions in the White House of Horrors spin on the news cycle for weeks, now has an even more constant stream content feeding it, and we relish it even as we loathe ourselves. We are the the collective Sad Man on the couch, shame eating pizzas and crazily snarfing Hostess cupcakes in the dark.
And yet, it is the individual injustice that makes up a part of the emergent total injustice. We have to keep our eyes open to the local and the present, the things we see happening in our own individual spheres on a daily basis. If we just bury our heads in our Twitter feeds and in the scroll along the bottom of CNN, we will continue to get drained by the big unfairnesses, and then we won't have the gumption to take action on the smaller things in our own backyards that we might actually have power over.