Excerpted from Aaron Goldstein, Intentional Infliction of Emotional Distress: Another Attempt at Eliminating Native American Mascots , 3 Journal of Gender, Race and Justice 689-713, 689-691 ( Spring 2000)
Native racial imagery is prevalent in our popular culture. Whether Native American racial imagery appears on cars, food, drink, or as mascots, it is difficult to go one day without seeing some sort of Native American racial imagery.
This Note will analyze the prevalence and impact of Native American mascots and Native American racial imagery in general and use a common law cause of action, intentional infliction of emotional distress (IIED), as a possible legal attempt to eliminate the mascots. After summarizing the common law of IIED this Note will apply the law to the facts surrounding these mascots to examine if there is a cognizable claim. The current understanding of the law makes it very difficult to succeed in a claim for IIED against the use of a Native American mascot. Finally, policy arguments will be discussed for expanding the notion of IIED to incorporate racial slurs such as mascots. For policy reasons, IIED must lower the bar in its standard of "extreme and outrageous" conduct to include racist imagery and harassment.
Many of the arguments in support of Native American mascots have been coded in terms of "political correctness." It should also be made clear that there are those who know and intend to project images, particularly on a mass level, in order to maintain a system in which those in power remain in power. Most importantly, it is critical to understand that this country was created with the intent that certain groups of people be placed at the bottom of society. One need not look any further to find this intent than this country's highest Court or its most sacred document: "The basic question to be asked of such overall White Indian imagery and conception is not, therefore, why its invention in the first place but why its continuance or perpetuation, for so many succeeding centuries?"
Vernellia R. Randall
Founder and Editor
Professor Emerita of Law
The University of Dayton School of Law