Research & Action Report Fall/Winter 2009
by Monica Driggers, J.D.

This past summer, few of us could escape the media’s relentless coverage of the controversy surrounding the nomination of Sonia Sotomayor to the U.S. Supreme Court. Perhaps not surprisingly, the controversy centered on her racial background rather than on her long and impeccable record as a judge, or on her peers’ opinions of her abilities.

Her status as a Puerto Rican woman became the subtext for discussions of her qualifications. These discussions later morphed into rhetorical jousting matches about her statement, “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a White male who hasn’t lived that life.” The subsequent fever-pitch debates about racism forced the Obama administration and Sotomayor herself to temper the import of that single statement in order to secure her appointment. Ultimately, Sotomayor’s credentials impressed even her detractors, and I celebrate her groundbreaking success.

But the defensive rush to ensure Sotomayor’s ascendance may have led us to set a bad precedent. Did the political strategy that downplayed Sotomayor’s statement put a lid on her unique body of knowledge as a “wise Latina woman?” If so, one wonders if the next nominee to the federal bench, or any bench, will dare to speak proudly about his or her racial or ethnic background. Or did Sotomayor’s opponents, who steadfastly maintained that socio-cultural influences embedded in her analytical framework have led her to make law rather than interpret it, have a valid point? More simply put, are cultural knowledge and sensitivity legitimate ingredients
in sound judging?

Answering this question is a complicated endeavor, but we might begin by examining what happens when judicial processes overlook cultural competence in doling out justice. That was what we set out to do when we investigated reports from battered minority and immigrant women about court insufficiencies that cause devastating consequences for them and for their children. This work is part of the research project, What Do Abused Women of Color and Immigrant Women Experience During Family Court Proceedings? Uncovering the Causes and Effects of Discrimination-Based Human Rights Violations in Family Court Proceedings.

Since 2003, I have received countless communications from individuals and organizations echoing observations first documented by the Battered Mothers’ Testimony Project. Information gathered during that work (1998-2003) cast the first light on the racial differences in the Massachusetts family courts’ treatment of battered mothers. Minority study participants offered evidence that populations of color have a wider and deeper range of grievances against family courts than do their White counterparts.

Over the years, I have fielded continuing complaints from battered minority women as research reports confirming that women of color suffer disproportionately high rates of domestic violence have multiplied. The U.S. Department of Justice has reported that African-American women experience intimate partner violence at a rate 35 percent higher than White females. Other studies have established high rates of domestic violence in Latina and Asian populations.

In 2007, we began conducting in-depth interviews with experienced civil-legal advocates who work exclusively with domestic violence survivors to explore these claims and their underlying causes. A methodical analysis of the interviews yielded results that confirmed some of the anecdotal claims. For example, the cumulative evidence from interviewees indicates that racial and gender biases intersect with stereotypes about immigrants, social class, and non-English speakers, effectively pigeonholing a litigant and overshadowing factual evidence. And, to confirm the suspicions of African-American women, advocates have observed that the operation of racial biases is not uniform across races, such that stereotypes are more overtly applied to Black women and, notably, to women in mixed-race couples.

Some results, however, were unexpected. I did not anticipate finding racial or gender biases that would skew to the advantage of battered women of color. Yet, in situations where biases against men are stronger than the biases against women, battered women might actually benefit. Most of my interviewees observed that women with non-White partners experience some advantage in being believed about their claims of abuse because of stereotypes about minority and immigrant men. One very experienced advocate noted that a positive stereotype exists for Muslim women that, when coupled with prevailing notions about the violent tendencies of Arab men, results in a significant advantage for these women when they seek custody of their children. The observation that non-White men are seen as more likely to be violent stands in stark contrast to perceptions about White males. Findings from the Battered Mothers’ Testimony Project indicate that the majority of the White female participants experienced difficulty convincing court personnel that a White male partner can be violent.

Given that every interviewee vividly described incidents of racial and gender bias in the courts, I was most surprised to learn that they have independently yet uniformly come to the conclusion that these biases result more from passive cultural ignorance and negative feelings about non-English speakers, immigrants, and the poor, rather than from active discrimination. They pointed out that the level of unawareness extends even to such simple matters as a woman’s dress in court, which can be misunderstood as a clue to undisclosed wealth, moral deficiency, or lack of maternal dedication. For example, the traditionally dressed South Asian woman might be perceived as a better mother than the short-skirted Latina, regardless of what is in the case file. Interviewees collectively concluded that court proceedings and victim safety can be profoundly affected by the cultural insensitivity of court personnel. So, there is good evidence to draw a direct relationship between cultural illiteracy among judges and the personal safety of their charges.

Here it’s worth noting that of the 45 family court judges in Massachusetts, only two are non-White. And these 45 judges are handling heavier caseloads and escalating numbers of self-represented litigants. Case review time and investigative resources are shrinking at the same time that cases are becoming more complicated. All of these factors combine to increase the burden on a judge’s personal bank of knowledge as he or she tries to understand an individual’s complicated personal, family, and community situation.

But improving cultural competency either for court personnel or for litigants has not yet become a priority in most court systems. And I mention litigants purposefully, for cultural competency is a two-way street. Even the most disadvantaged litigants have some responsibility to try to understand U.S. court processes and standards. Our interviewees reported that across groups, minority and immigrant women have little or no understanding of court processes and this ignorance fuels their fear and mistrust of the justice system, which then leads to unreported domestic violence and poor case outcomes. Our concern about this side of the cultural competence equation has led us to begin developing information-dissemination tools for advocates to use with their clients. As we build a community of practice among advocates and litigants to combat cultural ignorance, we hope that this community’s influence will inspire changes in the family courts’ institutional attitudes.

So, based on the evidence given us by experienced professionals, what can I conclude about the importance of cultural competence for judges? Is cultural knowledge a legitimate qualification for being a good judge? Certainly, our exploratory research indicates that overlooking cultural differences has led to enough unjust outcomes for minority and immigrant litigants that we risk creating a class of people who expect dissatisfaction in the courts. Given that the goal of any court system in a democracy is to deliver justice equally to all people, we clearly have a problem that requires serious attention.

Which leads me back to Justice Sotomayor’s observation about being a “wise Latina woman” and the calculated efforts to diminish that statement’s significance. Most dispassionate observers agreed that she was not holding herself up as a more qualified judge than her White colleagues. Sotomayor herself has stated unequivocally that no racial, ethnic, or gender group has an advantage in sound judging. But she was making a very important point about recognizing the experience ofthe minority — both the numerical minority and the racial minority. If knowledge is the better part of judgment, then gaps in knowledge, whether legal or social, can lead to gaps in judgment. And those gaps in judgment, however small, can have profound effects on the one who is being judged.

The cultural knowledge that Sotomayor derived from her upbringing is one qualification we can add to her long list of qualifications and it is an intellectual resource that will now be tapped by her fellow justices. It is not a superior qualification, but it is not something that should not have
been vilified and hurriedly swept under the rug. In many cases cultural competence may make the difference between delivering a just result and an unjust result. I feel that we, as a nation, may thus come to regret demoting the importance of Sonia Sotomayor’s unique intelligence.

But I suspect that Justice Sotomayor will make every effort to regain the ground that has been lost and transform the hallowed halls of the U.S. Supreme Court in the process. After all, she once wisely remarked, “Whether born from experience or inherent physiological or cultural differences, our gender and national origins may and will make a difference in our judging.”