A Tale of Two Videos: Contrasting the Likely Reaction in the Legal Academy to a Hypothetical Undercover Video Displaying Institutional Racism With That to the Planned Parenthood Videos

Suppose, hypothetically, that a non-profit organization concerned about racial justice and equality in the American economy conducted a series of undercover operations targeted at leading national banks. They secretly recorded video of banking executives making racially insensitive statements and generally exhibiting a callous attitude toward minorities in urban communities who struggle to pay their mortgages or start businesses.

On one video, let us say, the white executive of a major bank is caught saying to a lending committee that, while the bank’s brochures may tout diversity and non-discrimination, the bank really had no interest in providing financing for business projects in minority communities because “none of them have any work ethic.” Other members of the committee nod vigorously.

On another of these hypothetical videos, the head of urban residential loans for another major bank is depicted looking through a document showing the bank’s increase in mortgage lending in a minority neighborhood. He then remarks, with a chuckle, “they’ll never be able to pay off those mortgages for those over-priced houses. But we’ll take our profit and be outta there when the mortgages get sold in the secondary market.”

Other videos are in the same vein, showing similar troubling attitudes about race and minority communities in a number of leading American banking institutions. Again, this is all hypothetical.

The response in the American legal academy to these hypothetical videos can be imagined:

“The Banking Videos” likely would be incorporated into classroom teaching in courses on race and the law and in a number of courses on banking and commercial transactions. Students would be encouraged to prepare advanced writing papers dissecting the videos and suggesting new banking regulations to promote economic justice. Law journals would host symposia devoted to the legal and cultural issues raised by “The Banking Videos.”

The annual meeting of the Association of American Law Schools probably would host a plenary and well-attended session focused on “The Banking Videos.” The President of the AALS would devote a column in the AALS News observing that “The Banking Videos” remind us that the path to racial equality is still a long one, while insisting that legal education is at the forefront in highlighting the presence of structural racism in the American economy.

To be sure, classroom discussions and symposia presentations would have to address complaints that the hypothetical racial justice organization had used subterfuge to gain access to these insider banker meetings, as well as accusations that the videos had been edited in a misleading way. But such objections would not overshadow the larger issues or much divert attention from the shocking nature of some of the comments recorded and attitudes expressed — which “context” hardly softens.

By the end of the year, there’d hardly be a law student in the country who had not been exposed to the “The Banking Videos.”

It would have become a nationally-prominent “teaching moment.”  And rightly so.

By contrast, consider the not-hypothetical undercover videos of Planned Parenthood leaders talking about late-term abortions and examining fetal remains.

In one video, Planned Parenthood’s senior director for medical services sips wine while saying to the undercover actors who claim to be seeking fetal organs:  “We’ve been very good at getting heart, lung, liver, because we know that, so I’m not gonna crush that part. I’m gonna basically crush below, I’m gonna crush above, and I’m gonna see if I can get it all intact.”

On another video, featuring the vice president and medical director for Planned Parenthood Rocky Mountains, we watch technicians crack fetal skulls to extract intact brains and pick through legs, abdomens, and other remains. One Planned Parenthood employee says in a jocular tone:  “Here’s some organs for you. Here’s a stomach, kidney, heart.” Another Planned Parenthood employee jokes as she examines dismembered aborted fetuses:  “And another boy.”

For “A Quick and Easy Guide to The Planned Parenthood Videos,” Mollie Hemingway’s guidebook at "The Federalist" is invaluable and offers these and other direct quotations in context while also providing direct links to both important excerpts andthe full videos.  (Warning — these videos are disturbing and some are graphic.)

Let's set to one side the debate whether the videos provide any “smoking gun” evidence on actual violations of the laws restricting sale of human fetal body parts. Indisputably, even to the point that the President of Planned Parenthood apologized for tone, the videos portray a shockingly callous attitude. We hear casual dinnertime comments about “crushing” living unborn human beings and see Planned Parenthood personnel lightheartedly rooting around in the remains of dismembered fetuses while joking that they’ve found this or that organ or encountered “another boy.”

So how much attention have “The Planned Parenthood Videos” received in the typical law school?

In courses on human rights or professional responsibility, are they being used to show the danger of becoming desensitized and losing a sense of human dignity? Are we as legal educators addressing the danger that character may be corrupted when someone too easily assimilates into an institutional setting? Have we used these videos as examples of how ideology may blind one to the horrors in which one is participating?

In constitutional law classes, are “The Planned Parenthood Videos” being offered as a counterpoint to the politically-favored narrative that Roe v. Wade is an uplifting advance for gender equality and an unalloyed victory for human rights? When people fall back on comfortable slogans like “the right to choose,” is the reality of dismembered fetal bodies being picked over by technicians like butchers at a meat packing plant shown to suggest that perhaps what is being “chosen” is termination of fellow human beings, at least with respect to late-term abortions?

In sum, is there really any debate occurring at the typical law school about the legal and cultural (much less moral) significance of these videos? Or, instead, are legal academics generally ignoring the videos or declaring uncritically that the videos don’t really portray what they obviously do show to anyone who watches them? Are we as a community of educators betraying our oft-touted mission to honestly address even that (especially that?) which makes us uncomfortable? Or, when it comes to “reproductive rights,” is the real message that diversity and critical reflection on this issue is not welcome in the American legal academy?