Wesley Dempster

29 November 2007

Race, Class, and the Case of Brenda Nesselroad-Slaby

On August 23, 2007, two-year-old Cecelia Slaby died of a heat stroke in the parking lot

of Glen Este Middle School in Clermont County, Ohio—located just east of Cincinnati—where

her mother was Assistant Principle. Cecelia’s mother, Brenda Nesselroad-Slaby, a forty-year-old,

affluent white woman, had left the girl in her car for eight hours on a day when “the temperature

soared into the upper 90s” (Kinney). Nesselroad-Slaby, who claimed to have forgotten her child

was in her car, was not charged with a crime. The decision of (the aptly named) Clermont

County Prosecutor, Don White, not to file charges met with a maelstrom of controversy

throughout the Greater Cincinnati area. Some supported White’s decision, arguing that

Nesselroad-Slaby simply made a tragic mistake that could have happened to anyone. Others,

outraged that Cecelia’s death would go unpunished, expressed disbelief that a mother could

forget her child for an entire day. In this paper, however, I do not engage these aspects of the

Nesselroad-Slaby controversy. Rather, I focus on the role that race—and, to a lesser extent,

class—played in both the decision not to prosecute Nesselroad-Slaby and the discourse which

that decision engendered. I deploy the tools of critical theory1 to argue that, regardless of

whether Nesselroad-Slaby ultimately should have been prosecuted for the death of her child,

when considered alongside similar cases involving black women, it is evident that Nesselroad-

Slaby’s position within the economic and racial hegemony afforded her preferential treatment by

both the mainstream media and white Cincinnati area prosecutors.

1
As I understand it, critical theory is an approach to rhetorical analysis that seeks to unmask the
various ways in which social, political, and economic systems of power operate in support of
dominant ideologies while marginalizing nonfavored groups and ideas.
 Dempster 2

Cincinnati’s atmosphere of racial tension supplies the backdrop against which the

Nesselroad-Slaby case played out. The geographical position Cincinnati occupies, on the border

of a former slave state,2 mirrors its complex and ambivalent history with respect to race relations

between whites and blacks. In recent years, Cincinnati—which, according to the U.S. Census

Bureau, “is the sixth most segregated city in the nation” (Maag)—has been a nexus of racial

antagonism between whites and blacks. For example, throughout the 1990’s, the Ku Klux Klan3

would mark the winter holiday season by placing a cross on Cincinnati’s Fountain Square. Early

in the new millennium, Cincinnati’s racial discord manifested in a nationally publicized race riot

that broke out after a white Cincinnati police officer shot and killed the unarmed, nineteen-year-

old black man, Timothy Thomas. The Timothy Thomas killing was the culmination of a series of

fifteen shooting deaths—from 1995 to 2001—of black men by Cincinnati police officers. (Only

seven of these fifteen men were armed with guns when they were shot.) Critics of the Cincinnati

police department noted that its officers were more likely to use deadly force against armed

black men than against armed white men (CCD).

Some claim that, since 2001, progress has been made toward deinstitutionalizing racism

in Cincinnati. They note, for example, the inclusion of blacks in the city’s visible power

structure. Witness the selection of Marvin Lewis as the Bengals’ first black head coach in 2003;

the election of Mark Mallory, the city’s first black strong-mayor, in 2005; and, in October of

2007, the selection of Dusty Baker as the first black manager of the Reds.4 However, as

sociologist Eduardo Bonilla-Silva notes, “Systems of racial domination […] are not static. Much

like capitalism and patriarchy, they change due to external and internal pressures” (Bonilla-Silva

2
Kentucky.
3
The KKK has deep historical roots in Ohio.
4
The Cincinnati Reds were once owned by the notoriously racist Marge Schott, who infamously
called the team’s star center fielder, Eric Davis, her “million-dollar nigger.”
 Dempster 3

485). In his article, ‘“New Racism,’ Color-Blind Racism, and the Future of Whiteness in

America,” Bonilla-Silva argues that in response to such pressures as might result from, say,

nationally publicized race scandals, systems of racial domination will morph into something less

easy to recognize, but equally pernicious. A system of racial domination, then, might preserve

itself through “the incorporation of ‘safe minorities’ (e.g., Clarence Thomas, Condeleeza Rice, or

Colin Powell) to signify the nonracialism of the polity” (485). The question of whether Lewis,

Mallory, and Baker are the sort of safe minorities of whom Bonilla-Silva writes lies beyond the

scope of the present paper. Nevertheless, the Nesselroad-Slaby case suggests that Cincinnati’s

system of racial domination persists while blacks occupy ostensibly powerful—and highly

visible—positions within the city.

Race was not a focal point in the media’s interest in the Nesselroad-Slaby case until the

head of the Cincinnati chapter of the NAACP, Christopher Smitherman, publicly contrasted the

case with one in which a black woman, Lavonn Smith, had been jailed for leaving a dog to die in

the heat of her back yard.5 Smitherman said,

It’s outrageous, because it shows you have a justice process that has one face for the

African-American community and another face for the white community [….] If

(Nesselroad-Slaby) was African-American she would be locked up right now, but instead

here we have Miss Smith locked up for two weeks because of a stray dog somebody had

brought onto her property. (qtd. in Coolidge)

In the Cincinnati Enquirer article in which Smitherman’s comparison between the Nesselroad-

Slaby case and the Smith case was reported, it was further noted that NAACP members “said

that Smith is a single mother of four, works long hours at a fast-food restaurant and would never

5
Reported in The Cincinnati Enquirer on September 7, 2007—2 weeks after Cecelia Slaby’s
death.
 Dempster 4

hurt anyone” (Coolidge). Apparently wanting to legitimize Smith’s imprisonment, the Enquirer

reporter added, “They did not mention Smith’s prior criminal record, including a conviction 10

years ago for child endangering when she left her children alone while she went drinking, and

another in 1993 on a charge of drug abuse” (Coolidge).

If Smitherman is right about the two faces of justice in Cincinnati, Smith’s criminal

record may be interpreted as a reflection of Cincinnati’s practice of criminalizing blacks. In her

article, “Race and Criminalization,” Angela Davis argues that the disproportionate number of

black people in the criminal justice system suggests that the black population has been

systematically targeted for exploitation by what she terms “the punishment industry.” She writes,

“This out of control punishment industry is an extremely effective criminalization industry, for

the racial imbalance in incarcerated populations is not recognized as evidence of structural

racism, but rather is invoked as a consequence of the assumed criminality of black people”

(Davis 267). The criminal justice system, by targeting blacks for criminal prosecution,

naturalizes the perception of blacks as criminals, which in turn justifies the targeting of blacks

for criminal prosecution.

It is important to note the role that mainstream media plays in the naturalization of blacks

as criminals when, for example, a major newspaper publishes the more than decade-old criminal

record of a black woman as soon as a question arises as to whether she is unfairly targeted for

prosecution in a case which bears no relation to those on her record. Compare with the treatment

Nesselroad-Slaby received in the press. Apropos, one newspaper article6 essentially gives

Nesselroad-Slaby a free public relations forum. Without further commentary by the reporter, she

is quoted saying things like, “I felt like I had to be super-mom,” and, “My life has always been

doing something for kids” (qtd. in Krailler). Likewise, The Cincinnati Enquirer ran an article

6
“Exclusive: Mother speaks for the first time since child’s death” (Krailler)
 Dempster 5

entitled, “Slaby turns to faith: Trying to get family through tragedy” (Brunsman). Why is it news

that Nesselroad-Slaby goes to church? I do not know whether Lavonn Smith attends church, but

if she did, I am confident I will not read about it in the Enquirer.

Not surprisingly, despite the prima facie analogue between the Nesselroad-Slaby and

Smith cases, Smitherman’s comparison between them came under immediate attack. An editorial

appeared in the Cincinnati Enquirer that begins, “There is no situation so horrible it cannot be

made worse by political posturing and race baiting”7 (Bronson). The white editorialist, Peter

Bronson, accuses the NAACP and their supporters of “using a tragedy like a dull knife to open

old race wounds.” Bronson’s ad hominem attacks against Cincinnati’s black leadership not

withstanding, he does make a fair legal point in the editorial. He observes that, according to Ohio

law, the standard for animal cruelty is negligence, while child endangering has the higher

standard of recklessness. This skewed pair of legal standards offers a way to account for the

disparity between the respective outcomes in the Nesselroad-Slaby and Smith cases. Thus,

Cincinnati’s Hamilton County Prosecutor, Joe Deters, went on record to support White’s

decision not to prosecute Nesselroad-Slaby, “If you believe she didn’t know the kid was in the

car,” Deters said, “it’s not a crime” (qtd. in Bronson, emphasis mine). Interestingly, though, he

went on to say, “If a poor black woman truly forgot her child in a car, she would not be charged”

(emphasis mine). These word choices—If you believe… versus, If a poor black woman

truly…—suggests that, on Deters’ view, a poor black woman must have truth on her side, 8 while

a woman like Nesselroad-Slaby (i.e., affluent and white) need only rely the good faith belief of

prosecutors of her own race and economic class.

7
See further discussion on the practice of discrediting black leaders below.
8
She would also, presumably, have to have a way to prove that the truth is on her side?
 Dempster 6

Nevertheless, soon after Bronson’s editorial appeared, Cincinnati blogger Bill Sloat

reported on a case involving a black woman that, in all relevant respects, bears an isomorphic

relationship to the Nesselroad-Slaby case. In July of 1999, Kathleen Morton9 of Colerain

Township—a suburb of Cincinnati—left her three-week-old foster child, Tylisha, in a car while

she shopped at Wal-Mart. Like Nesselroad-Slaby, Morton claimed to have forgotten that the

baby was in the car, but unlike Cecelia, Tylisha lived. While Nesselroad-Slaby was not charged,

though her baby died, the black woman was charged, and convicted of a first degree

misdemeanor, even though the baby was not seriously hurt. Apparently, the justification for the

conviction in the Morton case hinged on the court’s opinion that Morton’s “failure to ascertain

the whereabouts of Tylisha constituted a heedless indifference to the consequences of leaving the

child in the vehicle” (qtd. in Sloat). In other words, even if Morton had forgotten that the child

was in the car, the onus was on her to remember. Hence, the legal standard that White and Deters

applied with respect to the affluent white woman, Nesselroad-Slaby, was clearly different than

the standard to which Morton was subjected in her conviction, even though the same Ohio laws

were in effect.

White’s decision not to prosecute Nesselroad-Slaby looks even more spurious in light of

two key points made in an editorial10 by Christo Lassiter, a black University of Cincinnati Law

Professor. First, Lassiter notes that on the day her child died in the car, Nesselroad-Slaby

“repeatedly returned to her Mercedes-Benz to unload eight dozen doughnuts for a staff meeting”

(Lassiter). Second, “Teachers who had previously witnessed Nesselroad-Slaby’s reckless

behavior in leaving her child unattended in the car had warned her against this practice”

9
I can find nothing to verify Kathleen Morton’s economic class, so I make no claim that she is
“poor” in addition to being black, but I would draw the reader’s attention to the fact that she was
shopping at Wal-Mart when the incident occurred.
10
“Bring federal charges against mom in heat death” (Lassiter)
 Dempster 7

(Lassiter). In fact, based on Nesselroad-Slaby’s multiple trips to her car on the day her child

died, her known history of leaving her child in the car, and the heat alert that had been issued that

day, the investigating police officer recommended a charge of child endangerment (Lassiter). As

Lassiter notes, however, White ignored these factors when he decided not to press charges.

On Aug. 24, before receiving the police investigation report, White stated: ‘I am certain

that whatever happened was an accident.’ Certain! How? Why? The Union Township

police interview conducted Aug. 23 suffers the same bias. At the outset of the police

interview, Detective Pavia repeatedly assures Nesselroad-Slaby: ‘We know this was not

done on purpose.’ Know! Evidence? (Lassiter)

In short, it seems that Cincinnati area prosecutors will grant an affluent white woman the benefit

of doubt when a child dies in her care. On the other hand, the Morton case suggests that a black

woman under similar circumstances will be saddled with the burden of proof, even when no

harm comes to the child in her care.

In response, White accused Lassiter of race baiting (à la Peter Bronson11). In his editorial,

“Law professor’s column on heat death wrong,” White asserts, “Lassiter would like to prosecute

Brenda Nesselroad-Slaby because she is white” (White). Angela Davis has observed that black

leaders are often discredited “through the invocation of, and application of the epithet ‘black

racist’” (Davis 265). It seems that Bronson and White deploy a similar rhetorical strategy—

invoking the accusation of “race baiting” whenever an issue of racial inequality is raised—in an

effort to marginalize leaders of Cincinnati’s black community.

Although I believe that both Smitherman and Lassiter are reasonable to think that

Nesselroad-Slaby should have been prosecuted, in this paper it has not been my intention to

11
See Peter Bronson quoted above: “There is no situation so horrible it cannot be made worse by
political posturing and race baiting.”
 Dempster 8

argue in support of such a proposition. I only suggest that the Nesselroad-Slaby case, when

considered alongside the Smith and Morton cases, indicates that whites—especially affluent

whites—in Cincinnati can expect different (i.e., better) treatment from the legal system than

blacks. At the very least, Nesselroad-Slaby can be sure that her skin color did not disadvantage

her with respect to the way the system dealt with her. Morton and Smith, on the other hand, have

every reason to suspect that their skin color had something—if not everything—to do with their

respective convictions.

Bonilla-Silva argues that what he calls “new racism” is practiced in a way that tends “to

be covert, subtle, institutional, and apparently nonracial” (Bonilla-Silva 492). As a result, “the

average white person does not see ‘racism’ or is less likely than ever to understand minorities’

complaints” (492). Thus, in the article “Slaby turns to faith,” Nesselroad-Slaby complains to a

reporter that she hates “that we’re in a community that everything comes down to class and race”

(qtd. in Brunsman). In what reads as a crass allusion to Rodney King, she then added, “Why

can’t we just care about each other?” (qtd. in Brunsman). Peggy McIntosh, in her article, “White

Privilege: Unpacking the Invisible Knapsack,” follows in a similar vein as that traced by Bonilla-

Silva. McIntosh argues that racism is naturalized in society through systems that confer racial

dominance on whites invisibly, so that many whites fail to appreciate the fact that they hold

unearned advantages over non-whites. McIntosh’s article includes a list of fifty conditions of

white privilege that often go unnoticed by the whites who benefit from them, such as, “I can be

pretty sure that if I ask to talk to the ‘person in charge’, I will be facing a person of my race”; “If

a traffic cop pulls me over or the IRS audits my tax return, I can be sure I haven’t been singled

out because of my race”; and, “I can be sure that if I need legal or medical help, my race will not

work against me” (McIntosh). In light of the Nesselroad-Slaby case—vis-à-vis the Smith and

Morton cases—I might add: If I am white, and a child or animal in my care dies because I left
 Dempster 9

the child or animal exposed to the summer heat in a car or backyard, I can be pretty sure that a

prosecutor of my own race will handle my case; further, I can be sure that my race will not count

against me when the prosecutor decides whether to press charges. Morton and Smith, however,

had no such assurance.

————————————
Works Cited

Bonilla-Silva. “‘New Racism,’ Color-Blind Racism, and the Future of Whiteness in America.”

Intersections of Gender, Race, and Class. Eds. Marcia Texler Segal, Theresa A. Martinez.

Oxford University Press. 2007. 483-493.

Bronson, Peter. “The Neglected dog, the forgotten baby and Ohio’s law.” The Enquirer.

(8 Sept. 2007). 8 Nov. 207. < news.enquirer.com/apps/pbcs.dll/article?AID=/20070908/

COL05/709080350/-1/all>.

Brunsman, Barrett J. “Slaby turns to faith: Trying to get family through tragedy.” The Enquirer.

(16 Sept. 2007). 8 Nov. 2007. <news.enquirer.com/apps/pbcs.dll/article?AID=/

20070916/NEWS01/709160446/1077/COL02>.

“Cincinnati Civil Disorders (2001).” Ohio History Central: An Online Encyclopedia of Ohio

History. 8 Nov. 2007. < http://www.ohiohistorycentral.org/entry.php?rec=1647>.

Coolidge, Sharon. “NAACP says sentencing in dog case was racist.” The Enquirer.

(7 Sept. 2007). 8 Nov. 2007. <news.enquirer.com/apps/pbcs.dll/article?AID=/20070907/

NEWS01/709070417/-1/all>.

Davis, Angela Y. “Race and Criminalization: Black Americans and the Punishment Industry.”

Intersections of Gender, Race, and Class. Eds. Marcia Texler Segal, Theresa A. Martinez.

Oxford University Press. 2007. 264-279.

 Dempster 10

Kinney, Terry. “Mother of toddler won’t be charged.” The Cincinnati Post. (5 Sept. 2007).

8 Nov. 2007. < news.cincypost.com/apps/pbcs.dll/article?AID=/20070905/NEWS01/

709050368&template=printpicart>.

Krailler, Krystan. “Exclusive: Mother speaks for the first time since child’s death.” The

Community Press. (13 Sept. 2007). 8 Nov. 2007. <news.communitypress.com/apps/

pbcs.dll/article?AID=/20070913/NEWS01/709130344 >.

Lassiter, Christo. “Bring federal charges against mom in heat death.” The Enquirer.

(11 Sept. 2007). 8 Nov. 2007. <news.enquirer.com/apps/pbcs.dll/article?AID=/

20070911/EDIT/709110331/-1/all>.

Maag, Christopher. “In Cincinnati, Life Breathes Anew in Riot-Scarred Area.” The New York

Times. (25 Nov. 2006). 8 Nov. 2007. < http://www.nytimes.com/2006/11/25/us/

25cincy.html?_r=1&oref=slogin>.

McIntosh, Peggy. “White Privilege: Unpacking the Invisible Knapsack.” The Lilith Gallery of

Toronto. 8 Nov. 2007. < www.lilithgallery.com/feminist/modern/WhitePrivilege

MalePrivilege.html>.

Sloat, Bill. “Tylisha’s Forgetful Foster Mom Was Convicted.” The Daily Bellwether.

(7 Sept. 2007). 8 Nov. 2007. <thebellwetherdaily.blogspot.com/2007/09/

ohio-prosecutors-nifong-moment-iii-in.html>.

White, Don. “Law professor’s column on heat death wrong.” The Enquirer. (12 Sept. 2007).

8 Nov. 2007. <news.enquirer.com/apps/pbcs.dll/article?AID=/20070912/EDIT01/

709120317/-1/all>.