Like many people in this country, I was chagrined to see, yet again, what is altogether too common--an "innocently" offensive playing out of what is an unconscious part of the larger socio-cultural landscape of this Republic. A close look at the picture suggests the innocence--the effort to invoke items of clothing associated with the people of the Mexican Republic. It also, however, slaps the viewer with its quite conscious offensive meanness, one rooted in racism and ethnocentrism (even if mindlessly so)--the reference to the willingness of people, whose common denominator appears to be these items of clothing, to exchange thankless menial labor (in which they have traditionally been exploited in the U.S.) for marijuana. The double offense is clear--violators of immigration and drugs laws, a lawless group fit only for humor and expulsion.
This innocent double offense is also quite perverse. It is well known that demand in the United States drives the drug trade with respect to which Mexico sadly serves as a gateway if only because of its geographical connection to the United States. Worse, it suggests an understanding of economic relationships with immigrants that is grounded on the assumption that base exploitation is both expected and acceptable. It damns a people and a culture with the wrongs--social, moral and legal--of those doing the damning.
The picture struck home to me quite personally. That sort of humor was quite common when I came to this country as a young immigrant from another humorously exploitable nation--Cuba. I well remember the mindlessness with which people of my parents generation would generate "humor", humor that almost invariably crossed from the good natured to the deliberately mean and mean spirited. I watched my peers learn to mimic their parents and to absorb their bad behavior and even more perverse attitudes masked by the "innocence" of humor. But my family and I knew precisely what was going on--and so did these "humorous folks". The young adults in this picture are the heirs to a tradition that continues to sting those of us who came here only a few generations after their own ancestors. We understand the point and "get" the humor. We feel the insult nicely buffered by a smile and a laugh. We continue to feel the way this humor is meant to reinforce and remind some of us of our "real" place in the social and economic (and perhaps even the moral) order of this Republic. We know the "place" reserved for us very well. We are less willing to pay the price of earlier generations who hoped that laughing along with this sort of innocent thing is a "price" that we are expected to pay for getting along and moving up. I am not a probationary member of this country and neither are many of the people who were the object of this humor.
So, even decades later, when I am well protected form this sort of thing, "this sort of thing" still hurts, and it still threatens. I appreciate the sensitive efforts of our administration to both condemn and protect these young adults. Their "Open Letter to the Penn State Community" is reproduced below. It is both heartfelt and sensitive to the legal context in which a large institution like Penn State operates. Yet I believe that it is worth emphasizing that though these young adults are the bearers of constitutional rights in which we all believe and which we all dedicate our professional and personal efforts to protect--they are also burdened with a host of social responsibilities that they have violated consciously and deliberately and with little consequence other than the need to make an apology. This is not to suggest that punishment is in order--I suspect that punishment would merely reinforce the cycles of antagonism that produces, in this most benign form, the sort of meanness that produced the event and the photo. But it does suggest that the social responsibilities of these young adults and students ought to lead them to something more than a "sorry." Some sort of public expression of a "lesson learned" and an understanding of the problem might be in order, the specifics of which are not for me to say.
As Chair of the Penn State University Faculty Senate I join with President Erickson and his administration colleagues in the "Open Letter." I am grateful for their sensitivity and for the content of that letter. I expect that many of my colleagues on the Senate will also join in. Yet, as someone who has been the target of this innocent "playfulness" and whose family, some of whom are more darkly complected and less able to navigate the English language, have suffered more when innocent play becomes something more ominous, I hope that these young adults do more than find comfort in their constitutionally protected rights.
Larry Catá Backer
W. Richard and Mary Eshelman Faculty Scholar &
Professor of Law,
Professor of International Affairs
2012-13 Chair University Faculty Senate
Pennsylvania State University
Among the most important work of the People of Color Scholarship Conferences is their mentoring for people seeking entry into the legal academy, and then mentoring young scholars to enhance the prospects of career success. I was delighted to contribute in some way to that work at a Workshop for Law Teaching Aspirants--"How to Become a Full Time Law Professor"--at the 4th National People of Color Scholarship Conference, joining an impressive group of colleagues--Craig Konnoth (Colorado), Melinda Molina (Capital), Anita Sinha (American), and moderated by the great Alfreda Robinson (George Washington). 
