| Aaron Goldstein
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?"
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