R. Kyle Alagood

Pro-Black, anti-racist, queer feminist lawyer, policy guy, and former food stamp & Medicaid kid.

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The Malinowski Files: Skin Color, Genitals, and Diversity

After LSU Law Center students called for diversity policy reform in 2014, the school’s faculty and administration internally debated the merits of my October 2014 letter on race and discrimination the Law Center. One professor’s responses shed light on how the mere mention of diversity may spark division and defensiveness.

“Have we really come to this—Is this where we are, where skin color and genitals spells diversity?”  – LSU Law Professor Michael J. Malinowski

In early November 2014, Professor Michael J. Malinowski (Yale Law School ’91) wrote to Chancellor Jack M. Weiss and Vice Chancellor Cheney C. Joseph about my letter and the Huffington Post editorial I co-wrote with LSU Black Law Students Association President Andrew Hairston. Malinowski characterized the letter and editorial as an “attack,” which Malinowski said was “unfair, to say the least.” Malinowski implied Hairston and I did not fairly recognize Weiss had “moved mountains to infuse diversity into the Law Center.” Malinowski closed his analysis by asking Weiss and Joseph (rhetorically speaking), “Have we really come to this—Is this where we are, where skin color and genitals spells diversity?”

MalinowskiWhile I disagree with Malinowski’s conclusion of unfairness, sparking meaningful conversations about diversity and the Law Center’s record was an underlying goal the letter and editorial. It is the legal academy’s nature to debate, dissect, and scrutinize. That is what lawyers do, and it is good for democracy. But personalization and reductionism undermine the integrity of democratic processes and, in discussions relating to diversity, risk further marginalizing victims of discrimination. Malinowski’s rhetoric and its philosophical underpinnings are worthy of discussion among faculty and students. So, too, are administration’s responses—Joseph’s “thanks” and Weiss’s “much appreciation”—to Malinowski’s email without considering the implications of reducing a serious issue to nothing more than “skin color and genitals.”

I reached out to Malinowski, offering to provide him with statistics and educational material to aid his understanding of diversity and higher education. As I explained, “skin color and genitals have, in fact, been two of the pAlagood-to-Malinowskirimary determinants for access to higher education in the United States, particularly in the South.” Malinowski never responded.

As more than a dozen LSU Law Center professors—not including Malinowski, Weiss, or Joseph—wrote in a letter to the editors of The Daily Reveille and The Civilian, “The mark of an open and inclusive community is not how few incidents of discrimination occur, but rather what happens when they do. A true commitment to increasing diversity recognizes that culture must change and marshals the institution to create spaces where disclosure and deliberation can occur. Indeed, we have work to do.”

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In April and May 2015, LSU Law Center Vice Chancellor Raymond Diamond offered for faculty consideration two proposals relating to diversity and the use of racial epithets among Law Center students. Responding to Diamond’s proposals, Malinowski fired off a series of erratic emails to his colleagues. In the first, Malinowski opened with a serious, meaningful question to colleagues: “To what extent is diversity [a] serious reflection about the substance of actually diversifying in relation to society or how society identifies with one’s skin color, gender.” But Malinowski then proceeded down the similar path of reductionism, finger pointing, and denial he had taken in his November 13 email to Weiss and Joseph. Pertinent excerpts follow. The series of emails from Malinowski to the LSU Law faculty listserv are available here. For background on Diamond’s proposals and the Murchison Report describing troubling instances of discrimination among students, see LSU Law Info.

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Excerpts from the Malinowski Files

Editor’s Note:

Any bold-faced font was added for editorial emphasis.
Due to the emails’ stream-of-consciousness style,
I have elected to let typographical and other errors remain.
The full emails are here.

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“I went to Yale Law School paying my own way where diversity was race, color, sexual orientation, and gender.  All of my close classmates, non of which matched me on meeting textbook credentials for academia access (e.g., skipped law review, skipped federal clerkships, never published before applying) but who were women, even Caucasian, had, relative to me, great access to law academia–one has been and is Dean of BU Law School, another got an immediate academic job with University of Washington in Seattle (though she just got by at law school).”

Editor’s Note: Malinowski is a 1991 graduate of the Yale Law School. “BU Law School” appears to reference the Boston University School of Law. BU Law is led by Dean Maureen A. O’Rourke, whose CV lists the Yale Law School as her alma mater.

“I had as law school friends and law review colleagues many overly-privileged white males, but also, exceedingly so relative to the former, a number of similarly or more overly-privileged “minority” females who sky-rocketed into whatever positions they applied for.“

“Frankly, I feel the most sorry for our students who work nonstop and who are white males from socio-economically deprived backgrounds and may say ignorant things out of frustration and some racism reflective of their backgrounds . . . . “

Editor’s Note: Malinowski’s statement here is what Sykes and Matza would describe as neutralization by the denial of responsibility. See Gresham M. Sykes & David Matza, Techniques of Neutralization: A Theory of Delinquency, 22 AM. SOCIOLOGICAL REV. 664-70 (1957).

“Frankly, I can tell you from experience, popping from my background situation into very privileged hire education, undergrad and graduate school, which I paid for myself, that I always thought of myself as a minority and I think still do–from this experience, I can tell you that some of the most racist people I have met and continue to meet come from the most diverse core when it comes to the substance of growing up as a minority on all levels, including socio-economic levels.“

Editor’s Note: Earlier in the email, Malinowski described growing up “within an extended family of very uneducated first-generation people” in a small factory town where many did not speak English at home. Malinowski described his father as struggling to read and his extended family as having “extensive financial insecurity.” 

“I truly do not believe the guts of diversity are appreciated.  Skin color and genitals alone, or even disabilities (and my life has been committed to health law), do not innately deliver diversity at its substance.”

“As much as I adore Ken [Murchison], I believe that the Law Center’s approach to diversity misses this fundamental mark. I like and respect Ken immensely, but I think the entire project over evaluating and responding to “diversity” issues was a miss for the Law Center. Vote for what you will, but nothing that has come out of this process, based upon the work product, addresses diversity on a fundamental level. True diversity is not reduced to genitals, skin color, or what misguided fool however substantively diverse she or he is, says. It is about substance. Yes, I am “racist” to all of those who are privileged from the start–I have learned to live with that and check myself constantly. If you go with the Law Center “fix” that is your choice. It is short-sighted at best and, in my opinion, has no depth to really resolve festering problems. It all should be about substance if you want to take the topic on–not genitals, skin color, or “stupid” (in my mind) comments. I think the Law Center should be bigger than this if it wants to truly address the topic. With that in mind, I am very disappointed in the way this was handled and sorry that you all think it was done well enough to sign off on it at the next faculty meeting. Again, true diversity runs much more deeply than skin color and genitals, or flippant comments from people who may just not know more–isn’t our mission to educate? How are we really doing that regarding true diversity at the Law Center? We are all better than this if we want to truly address the issue of diversity substantively. My last comment on this.”

Editor’s Note: Malinowski is addressing the Murchison Report on Incidents of Demeaning Speech at LSU Law, which was the result of Professor Emeritus Kenneth (“Ken”) Murchison’s months-long investigation into demeaning speech and conduct at the LSU Law Center. Murchison documented that many students reported having been victims of racial, homophobic, and misogynistic speech and conduct at the Law Center. He called on the school to “do more to empower its students to respond to racial and homophobic intolerance.” For more background on the Murchison Report and related issues, click here.