Monday, October 18, 2021


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Excerpted From: Pedro A. Malavet, The Accidental Crit III: the Unbearable Lightness of Being ... Pedro?, 22 Rutgers Race & the Law Review 247 (2021) (110 Footnotes) (Full Document)


PedroAMalavetThis is my third use of the “Accidental Crit” moniker to describe my “reluctant, difficult and ultimately accidental gravitation towards LatCrit theory,” as well as other types of Critical Race Theory. These writings are part of my process of coming to terms with the promotion and tenure process that I endured through a type of scholarly catharsis; in this essay I review my continued presence in the legal academy from the safety of post-tenure academic life, but while immersed in the openly racist climate of the presidency of Donald Trump.

A few years ago, when I had started the earlier draft of this piece, a professor who had been denied tenure shot six of her colleagues at the University of Alabama at Huntsville. Three survived. The three who died, “Gopi K. Podila, department [of Biological Sciences] chair, and Maria Ragland Davis and Adriel D. Johnson Sr., both associate professors,” were persons of color. The metaphorical use of the terms “safety” and “survival” together with “tenure” might seem ironic in the context of American gun violence, especially given the discussion following the massacre of students at Marjory Stoneman Douglas High School and the consciousness-raising of Black Lives Matter. But, luckily, metaphor it is.

This article began as a draft of a book chapter for a planned anthology that was unfortunately never published. After putting down the original manuscript for a number of years, I have now converted it into a law review article. It is fascinating to come back to a project like this after so long. The experiences that I detail here seem very distant to me now as I finish my twenty-sixth year of teaching here at the Levin College of Law at the University of Florida. Nevertheless, I am glad that I wrote about these experiences and that they should be published. The timing comes in two rather different contexts. First, it now follows the very interesting discussion generated by the anthology “Presumed Incompetent: The Intersections of Race and Class for Women in Academia.” This book led to multiple panels at the AALS Annual Conference and was also featured in a panel discussion at the Biennial LatCrit Conference in 2019, and a second volume has now been published. The second context of course is the Trump Presidency and its empowerment of quite overt American white racism.

The subtitle of this article describes the complex constitutive principle of my academic experience, that I will endeavor to illustrate for the reader: regardless of phenotype, if your name is “Pedro,” you cannot be white in the racial scale of the normative United States generally and of law schools in particular. This is especially true in the Age of Trump, where all Latinas/os have been essentialized by a toxic political discourse into the simple stereotype that we are all undocumented Mexican immigrants, despite the fact that two out of three Hispanics in the U.S. are native-born citizens and a majority of the rest are naturalized citizens or documented permanent residents. Paradoxically, colleagues have occasionally classified me as “Caucasian” in discussions of race at my school, in an ignorant or cynical attempt to deny that I am the subject of discrimination; but I would always become a “minority” when illustrating our law school's “diversity” and the general absence of racism. Perversely and hypocritically, a few might view my Latino identity, my CRT scholarship, and my allegiance with African American colleagues as a type of racial betrayal--the rejection of the modest amount of white privilege that they might have been willing to grant me at their convenience and for their own purposes--making me deserving of the punishment due a “race traitor.” ¡Ay bendito! (Oh Lord!), I do not think I can win here.

Imagine the following scene: You are being addressed by a student, a secretary or someone who works in the mailroom at the law school at which you work as a professor while you are in the company of colleagues. The students walk by and say, “Hello, Professor Smith,” “Hello, Professor Johnson,” “Hello, Mr. Malavet.” The secretaries and other staff will address the same group of faculty by saying, “Hello, Professor Smith,” “Hello, Professor Johnson,” and “Hello, Pedro.” At the doctor's office in the University's home town, the receptionist calls out the names of the next patient that the doctor will see: “Ms. Johnson,” “Mrs. Smith,” “Mr. Jones,” “Mr. Brown,” and “Pedro.” Even at Sam's Club, where cashiers are clearly trained to address people by their last name, the same thing happens. “Malavet” becomes unpronounceable when preceded by “Pedro.” These daily micro-aggressions are merely an illustration of the racialization--the process of becoming the “other” by a Latino law professor in a small southern college town.

These appear to have only become worst in the Age of Donald Trump who seems to have encouraged and indeed, at least for himself, created a world in which racist, misogynistic, religiously-intolerant public expressions are entirely acceptable. As I sat in a medical waiting room a few months ago the nurse assistant called my name. When I walked towards her and asked if she had called the name Malavet, an older white female retorted, with a rather exasperated tone, that “Pedro, Pedro, she called Pedro.” She made my name sound very much like the epithet that she seemed to regard it as.

The micro-aggressions are accompanied by a constant petty hostility, displayed or delivered with surprising discipline, such as colleagues who never acknowledge your presence in the public spaces of your schools, or addressing you without ever using your name. Allow me just one example: a senior colleague walks by when I am speaking to another person in the hallway. I say “Hello [name]”; he does not acknowledge my greeting and walks on, but then turns around and says “Hello, [name]” (using the name of the person with whom I was speaking, with heavy emphasis on her name, apparently to highlight that he is ignoring mine).

The more serious aggressions are the organized attacks on your very survival in the legal academy, often led by senior colleagues and often aided, with more or less intent, by the law school or university administration. The atmosphere created by this conduct is debilitating and can be quite purposely career-ending to mention soul-crushing. Luckily, I have survived such conduct by colleagues, many of whom are now retired, and several administrations, to achieve the rank of full professor and tenure status. Reaching these milestones, and the accompanying experiences, have taught me to enjoy the many benefits and opportunities afforded by the full-time legal academy and to learn to keep the negatives at bay. No crushed soul here, but rather a lot of experience in the politics of legal academia.

The editors of the intended but unpublished anthology put together a series of provocative and insightful questions in order to guide the essayists in producing their narratives about academic survival. The use of an article rather than a book chapter allows me to expand the content beyond the usual limitations of edited anthologies. Nevertheless, the questions were well-thought-out, and the remainder of this article is dedicated to answering them by narrating my personal travels through the academic tenure track. I have divided the questions into two sections that address two fundamental inquiries: first, how did I get to my current position at my school? and, second, why did I stay? The first and more substantial section addresses how I was hired onto the tenure-track and how I navigated the promotion and tenure process. The second section discusses why I chose to remain in spite of the significant pain and suffering inflicted by the process.

[. . .]

I was on sabbatical when I came back to work on this article. One of the purposes of a sabbatical is the production of scholarship, which this article of course is. Another perhaps just as important purpose of a sabbatical is to be re-energized. As it turned out, health problems delayed the intended effects of this particular sabbatical. But, I am happy to say that after several years of physical therapy I am feeling much better. Moreover, the time, rest and research that I conducted during that sabbatical have not gone unused. I have written plainly, perhaps bluntly, in many parts of this article not to be shocking, but rather to be honest with myself. As I stated in my introductory paragraphs, this is the continuing process of academic catharsis that I have been undergoing through a series of writings that started over a decade ago. I find it enormously liberating and energizing to be able to do so.

I hope that those who come after me will not have it as tough, but if they do, I hope that they will find here a roadmap not just to academic survival, but also for an academic type of the pursuit of happiness. I would also recommend that the reader write as much as possible while maintaining good class preparation. But my most important message is that you must stay in the academy because you like your job.

Quitting a bad job is always an option and during my darkest days I seriously thought about doing so. After all, like most of us who teach law, I am a member of the bar, and going back to the practice of law--which, unlike many others in the academy, I did not hate--was possible. Initially I chose to stay because I would not be run off. I stayed because I did not want “them” to get away with the hostility, isolation and alienation. I stayed because I knew how to do my job and how to play by the rules they made for me. But I really stayed because, in the final analysis, I like teaching and writing about the law.

The biggest reward of surviving to tenure and the rank of full professor is that I am allowed to indulge my inner law geek by studying the law at a high level, and I am even able occasionally to impress upon students the importance of doing so (I admit that using ZOOM to teach during the hopefully once-in-a-lifetime pandemic has been strange, but, judging by my most recent set of exams, still pedagogically effective). I am able to write about the subjects that really interest me. Academic age, or at least, mileage, also allow me to revisit subjects and themes. This article is an example of a draft that I set aside for a long time and I am now able to revisit and update, with the benefit of the things learned and experienced in the meantime, and the platform to discuss each and every one. My contribution to our Cuba symposium published in 2017 allowed me to link my work on colonialism and culture, characteristic of much of my more recent scholarship, with my very early work on comparative methodology. It also allowed me to write and to deliver my ponencia (prepared scholarly presentation) in Spanish in a conference that allowed me to engage with colleagues in a fully bilingual discussion. It was wonderful! Presenting this paper at the 2019 LatCrit Biennial Conference in Atlanta, as well as speaking about the origins of LatCrit at the dinner in honor of our colega Francisco Valdés were also precious opportunities for LatCrit praxis.

Simply put, I stayed because I let go of my anger at the tenure process and realized that I enjoyed my job and could do it well. The fact that my very presence is a daily reminder of their failure for those who would have me leave is icing on the cake! But spite should not be a response to spiteful behavior. That type of emotion would only damage you. As a late very good friend used to put it in Spanish: la victoria no te dá derecho a ser canalla--victory does not give you the right to be despicable (deplorable?)--but you should savor it.

Now it is time to spend my research time on the most recent Supreme Court cases about the legal relationship between the United States and Puerto Rico, and the ongoing catastrophes that are Hurricane Maria, Hurricane Trump and the economic crisis that was already consuming the island before the “storms,” and the intersection of juror bias and Latina/o racialization in the United States today.

Professor of Law, The University of Florida, Fredric G. Levin College of Law. J.D. and LL.M., Georgetown University Law Center.

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