WCL Glushko-Samuelson IP Clinic

Prepared by Natasha Dhillon, Justin Hemmings, Maggie Scales, and William Stanley, Student Attorneys

Yesterday afternoon, Washington College of Law’s Sports & Entertainment Law Society held its first annual Sports Law Symposium featuring a panel discussion of the debate around whether the Daniel Snyder-owned D.C. pro football team should change its name and mascot. Panelists included Jesse Witten from Drinker Biddle & Reath, David Hinojosa of the San Antonio Express-News, and D.C. Councilmember At-Large David Grosso. A point of contention at the panel, and in the on-going name change debate generally, was reference to surveys and public opinion polls about the issue, including the oft-cited result of a 2004 poll conducted by the Annenberg Public Policy Center of the University of Pennsylvania. The Annenberg Study has been cited by Dan Snyder in support of Pro-Football’s position that the team name is not disparaging to Native Americans.

In response to the continued citation of that survey, the Glushko-Samuelson I.P. Law Clinic has prepared a list of eleven reasons to question the Annenberg Study’s results and making the case for why that survey should no longer be cited in defense of the team name.

The survey in question was, well, questionable.  Big time.  It is used as a conclusive statement that “90% of Native Americans are not bothered by the name Redskins,” when there is evidence to the contrary.  It’s past time that we stopped taking this survey seriously as an authority on the subject.  Here are eleven reasons why:

     1. The Survey is Too Old to Matter

Back in 2004 Linkin Park and Evanescence (Who? Oh right) were two of the hottest bands in the world.  Just chew on that for a second.  Those bands figured prominently on the Billboard Top 100 charts throughout that year.  Today?  Not so much.

The point is, ten years can change a lot, which is one reason why pollsters don’t take a Presidential opinion poll at inauguration, then pack things up, pat each other on the back and say “Let’s do this again sometime.”

Citing old studies is a dangerous business unless you are citing them for the prevailing opinion at the time.  By continually citing an (already flawed) study from 2004, Dan Snyder & Co. do an excellent job of telling us that, in 2004, 9% of self-identified Native Americans that probably don’t live on a reservation and only use a landline were offended by the team name “Washington Redskins,” and everyone else was maybe or maybe not bothered by the name.  There are a lot of reasons we shouldn’t take a poll from 2004 as evidence for much more than that (see No. 6 below for some great examples).

 2. Context Matters

If this really is the be-all and end-all of surveys on the offensive nature of the Redskins name, then it should have been the focus of the survey.  Instead, a single question was asked as part of a series of unrelated questions covering a variety of topics.

Picture yourself at home one evening, unwinding after a long day, maybe you’re watching a favorite show or preparing for dinner, when one of these survey-takers calls you.  You didn’t hang up?  Kudos to you sir (ma’am).  So now that you’ve agreed to take the survey (why?!) you realize the person you’re speaking with is asking far more questions than you anticipated.  Now you’re just thinking of the quickest way to get off the phone.  You consider hanging up, but settle for responding with short, quick answers in the hope that this nightmare will end.

The point is, you aren’t focusing like you would in something like a job interview, where each answer is important.  No, instead you know your answers don’t really matter, so it is easy to toss off the first thing that jumps to mind, an opinion that could easily change with a moment’s reflection or a shred of additional information.  (You might even tell the pollster something other than the truth if it’s what you think they want to hear, or what you think you ought to say.  More on that below at No. 8.) You are giving the simplest possible answers as quickly as possible to an anonymous pollster.  For surveys to be effective measurements of public opinion, the individuals being surveyed should be carefully answering the questions.  Instead, Dan Snyder & Co. are using hurried responses to a single question and labeling it as the definitive voice of the Native American people.

     3. The Self-Identification Problem

 The survey asked people if they were Native American, but did not follow up the answer with any additional questions to discern tribal membership or level of heritage.  If you walk up to a random person and ask about his or her ancestry, nearly everyone will give you an answer without hesitation, let’s say Irish.  Don’t get us wrong, most of those people would probably have some Irish ancestry, but it is likely that they don’t know what city or village their ancestors hailed from, their great-grandparents names or last names, etc.  Perhaps at some point in elementary school, they were tasked with figuring out their heritage, and their parents told them, “you’re Irish.”  From then on, they told people they’re Irish with little to no basis for that claim.  While this is common practice, it’s difficult to take those types of people and make them the definitive voice of a national or racial minority.

There are probably enough people in the United States that consider themselves part Native American that they could form their own heavily populated tribe.  How many times have you heard something like, “Well I’m 1/16th Cherokee, but it’s on my mother’s father’s side.”  Okay buddy, sure.  There may be some truth to it, just as with all those Irish people, but the thing is, tribes have specific membership requirements.  Most tribes either require proof that an ancestor was a tribal member, or that you are at least a 1/8th member of the tribe — meaning at least one grandparent was a full-blooded tribal member.  Don’t worry though, this hasn’t stopped people from self-identifying as Native Americans even when their purported lineage isn’t up to snuff with current membership standards.

In 1990, the United States Census reported 1.8 million people self-identifying as American Indian, while official tribal membership at the time numbered 1.14 million. Almost 40% of the people who self-identified were not members of any tribe.  That trend has only continued since then, and may even have grown as people look for an edge in diversity scholarships, hiring, or simply because they think it is “cool” to be part Native American.

To keep it simple, if you want the opinion of a racial or national minority, look to their representation.  In this case, a great source would be the National Congress of American Indians.  They despise the name by the way.

4. Who Even Uses Landlines?!

That’s right folks – in one of the more troubling and somewhat hilarious portions of the survey, the NAES only contacted people with a landline telephone.  Even in 2004, the number of landlines in the United States was on the decline.  The immortal Nokia 5110 debuted in 1998, and for a steady six years the people (and especially the youth) of America had been using cell phones to call, text, and play snake throughout the day.

Perhaps more importantly, a 2005 statistical brief by the U.S. Census Bureau reported that 53.4% of Native Americans living on reservations didn’t even have a landline.  If the purpose is to get the opinion of Native Americans, then Annenberg was missing a significant subset of that population by only using landlines to conduct the survey.

With the increasing popularity of cell phones, and the discontinued use of landlines, the survey-takers may have missed a good number of individuals, especially younger people.

5. Didn’t the Question Wasn’t not but is was Confusing

Did you get that?  Probably not.  From the NAES press release itself, the question posed was: “The professional football team in Washington calls itself the Washington Redskins.  As a Native American, do you find that name offensive or doesn’t it bother you?”

The phrasing of this question, as you may have guessed, is less than ideal.  The question asks if you find the name offensive, then immediately follows it up by asking if it bothers you.  Has a friend explained something to you and then asked, “doesn’t it make sense?”  If you answered yes, that means you thought it made sense, not the opposite.  If you had said no, they probably would’ve explained it again.  So the survey question really asked people if the name offended them or if it bothered them.  If you say “yes” then what question did you say yes to?  If there was a one second lapse, was it a yes to offensive, but anything longer and you were saying yes to “doesn’t it bother you.”  What if I ask you: “Do you like pizza and hate puppies?”  What does a yes or no mean then?  When you ask an imprecise question, you are going to get imprecise answers.

So if you’re counting at home, at this point the reported results of this survey consist of (1) a single confusing question, (2) asked without context or reflection, (3) of people who self-identify as “Native American or Indian,” (4) via a mode of communication less than half of Native Americans on reservations at the time were using.  Great start!

6. Social Progress is the True Measurement

As public awareness grows, perceptions change.  Not surprisingly then, some of today’s most widely-supported human rights movements have started out as “niche” issues with a modicum of support.  Two of the most polarizing in recent years have been interracial marriage and same-sex marriage.

For example, in 1958, a Gallup poll found that only 4% of voters approved of interracial marriage.  Ten years later that number had risen to 20%, likely due to an increase in social awareness after the Supreme Court’s 1967 decision of Loving v. Virginia a year earlier.  But this wasn’t just a blip on the radar.  Public opinion continued to shift and the approval numbers rose:

In 1996, Gallup began polling the public by asking them:  “Do you think marriages between homosexual (changed to “same-sex” after 2005) couples should or should not be recognized by the law as valid, with the same rights as traditional marriage?”  The respondent could answer with “should be valid” or “should not be valid.”  First off, that is one heckuva well-phrased polling question.  That first poll in 1996 reported only 27% of voters supporting same-sex marriage.  But once again, the approval numbers grew.  The polling over the past 17 years :

This isn’t to say that a shift in public opinion is always the correct shift, but for human rights issues, history is encouraging.  What’s more notable is that opinions can and will change substantially over the course of ten years, and reliance on a ten-year-old poll is not likely to give a proper diagnosis of current public opinion.

7. Size Matters

The Annenberg survey polled a mere 768 self-identifying Indians or Native Americans, and didn’t survey data from Hawaii or Alaska.  According to the reported results, only 9% of those individuals found the name “Redskins” offensive.  Even glossing over the identification problems, this means that only 0.04% of Native Americans were polled.

Now we aren’t stupid; we know nearly all polls rely on small-sample extrapolation to estimate opinions.  What we find hard to conceptualize is why the survey is still cited so definitively when there is readily available evidence that many, many more Native Americans support changing the Washington team’s name.

The lawsuit against the Washington football team was supported by several organizations, including the Cherokee, Comanche, Oneida, and Seminole tribes, as well as the National Congress of American Indians, the largest intertribal organization.  Collectively, these organizations represent more than 250 groups with a current combined enrollment of 1.2 million Native Americans.  It is hard to see how those numbers don’t overwhelm what the NAES.  You can take the word of Annenberg and its extrapolation of 768 self-identified Native Americans, or you can look at the over 1 million Native Americans that have decried the Washington football team name.

8. People Tell Pollsters What They Think They Want to Hear

All polling is subject to a phenomenon called “social desirability bias,” in which respondents tell pollsters what they think is the socially appropriate answer rather than giving their honest opinion.  This bias had a high profile in 2008 when a particular version of it, known as the “Bradley Effect,” seemed to be skewing exit polls in majority-white districts in favor of Barack Obama despite actual primary results favoring his rival Hillary Clinton.  The Bradley Effect posits that white voters who intend to vote for the white candidate will nevertheless tell pollsters they are undecided, or even that they plan to vote for a minority candidate, because they think that is the “right” answer.

In our case, ask yourself whether a Native American person who honestly feels offended or demeaned by the R-word would feel comfortable saying so to a pollster.  There is very real social pressure on minorities to be “tough,” or to just get over it, rather than to express legitimate discomfort or offense at demeaning words or acts that seem to have the blessing of the majority.  Indeed, when people like Dan Snyder and his allies say that the word represents a cherished tradition (see below at No. 10) and many happy childhood memories, it puts real pressure on others to swallow their own misgivings and yield to the apparent will of the team’s non-Native American fans.  This is a kind of bullying behavior that sends a clear message:  our values and memories are more important than yours.  We should take seriously the prospect that, intentionally or not, this seeming zeal for the R-word has silenced substantial numbers of Native Americans who are injured by its use but fear the potential backlash of saying so.

9. Should we be Okay Severely Offending 9% of a Populace?

Let’s say we accept the Annenberg study as the gospel truth — a terrible idea by the way — do you really think it’s okay to severely offend people as long as the group offended is in the minority?  Shouldn’t we be concerned when any group feels marginalized or denigrated?  The most powerful observation about this comes from the Annenberg survey’s political director himself, Adam Clymer.  In an article written by Mike Wise of the Washington Post, Mr. Clymer said:

“Look, let’s suppose my numbers were 100 percent right, that 90 percent of American Indians were okay with it and that the people on the other end of the phone were actually what they said they were,” he said.  “Given that, what if you had a dinner party and you invited 10 people.  And by the end of the night it’s pretty clear that nine of them have had a tremendous time and really enjoyed the food and company.  But one of them you managed to completely insult and demean, to the point where people around them noticed and it was uncomfortable.  So, ask yourself: Were you a social success that night?”

Perhaps the most subtle insult of all is that Annenberg states prominently and definitively that “Most Indians Say Name of Washington ‘Redskins’ is Acceptable.”  That is a very different question than asking people if they are personally offended.  If you were at this same dinner party, maybe you weren’t directly offended, but you wouldn’t say that the actions of the host were perfectly acceptable.  In what world is that a success?

10.  What Can We Do to Fix it?

For one thing you can’t.  Polls are conducted and the data is essentially set in stone.  What we can do is to stop giving the 2004 NAES credit as any definitive measure of the offensiveness of the term “Redskins,” especially in 2013.

One thing that could be done is to conduct some sort of new survey to gauge how people feel.  Wait, what?  This has been done?  On Wednesday, October 16, 2013 the Oneida Nation released the results of a poll they conducted of residents in the Washington, D.C. Metro area.  Turns out that 44% of people polled thought the name should be changed once they realized that the dictionary defines the word as offensive.  Perhaps more telling, 66% of those polled agreed that Dan Snyder should not use the term “Redskins” if he were to meet face-to-face with Native American leaders. If you can’t say a word to someone’s face, how is it acceptable to make that word a ubiquitous name for a hugely popular sports team in the nation’s capital?

Another option is to conduct an entirely new nationwide poll.  Many activists have called for a new poll to replace the Annenberg as one poll to rule them all.  Suzan Harjo is one such activist, and she has a few questions she would ask a participant in order to ascertain whether he or she can speak for all Native Americans.  These include: (1) Are you a tribal person?; (2) What is your nation?; (3) What is your tribe?; (4) Would you say you are culturally or politically Native?  Without such information, it is difficult to know whether a participant can speak confidently for all Native Americans.

The recent lawsuit to strip the team name of its trademark registration brings up another interesting point. In trademark law, the issue focuses on whether the word is “disparaging” or may bring a group into “contempt or disrepute,” not whether people find it personally offensive. The policy behind this standard is that the government should not grant valuable privileges to insults and socially divisive words.  There is quite a slippery slope if they were to do that. That approach should apply beyond trademark privileges; it’s common decency. Even if something does not rise to the level of being “offensive,” if the word is in fact demeaning and insulting, shouldn’t we as a society demand better? Because of social desirability bias and other social pressures, it is quite possible that respondents would be unwilling to admit being “offended,” but may nevertheless agree that the word is “disparaging” or that it treats Native Americans with “contempt.” A better poll would ask these more specific questions.

To accurately get the collective pulse on this issue, a survey or a focus group consisting of Native Americans should ask:

1. Do you find “Redskins” as a team name to be disparaging or demeaning?
2. Does use of the word as a team name treat Native Americans with contempt?
3. Do you believe other Native Americans would find “Redskins” disparaging or contemptuous as a team name?
4. Would you call a Native American a “Redskin” to his or her face?
5. Do you believe that the federal government should protect the trademark of “Redskins”?
6. Do you know that the dictionary defines “Redskin” as an offensive term?
7. Do your answer to questions 1 through 5 change at all?
8. Do you believe that the federal government should protect disparaging trademarks?

11.  Does the Survey Even Matter?

In your heart of hearts, do you really think the name should stay?  If you do, let us drop one last bit of knowledge on you.  This is a name that was bestowed upon the Washington team by unequivocally the most racist team owner the NFL has ever seen.  He refused to allow black players on his team, so Shirley Povich, a popular Washington Post writer at the time, regularly used to use phrases such as “Jim Brown, born ineligible to play for the Redskins, integrated their end zone three times yesterday.”  So it wasn’t surprising that the federal government had to step in and order a professional sports team to desegregate for the first time ever.  In finally acquiescing, Marshall then tried to draft and sign the first black player in the team’s history, Syracuse all-American Ernie Davis, but Davis refused to sign because he “[wouldn’t] play for that S.O.B.”

There is little reason to believe that the name was created to honor anyone.  If you still believe that he changed his tune after so many years, then we leave you with this: upon his death, the infamous George Preston Marshall created a charitable foundation with but one non-negotiable condition — no money was to be used for “any purpose which supports or employs the principle of racial integration in any form.” If that’s honor and respect for other races, then I have some oceanfront property in Idaho to sell you.