Wednesday, November 15, 2017
--by Professor Tanya Hernandez
With the growth of a mixed-race population in the United States that identifies itself as “multiracial,” legal commentators have begun to raise concerns about how employment discrimination law responds to the claims of multiracial plaintiffs. The U.S. Census Bureau began permitting respondents to simultaneously select multiple racial categories to designate their multiracial backgrounds with the 2000 Census. With the release of data for both the 2000 and 2010 census years much media attention has followed the fact that first 2.4% then 2.9% of the population selected two or more races. The Census Bureau projects that the self-identified multiracial population will triple by 2060. Yet mixed-race peoples are not new. Demographer Ann Morning notes that their early presence in North America was noted in colonial records as early as the 1630’s .
However, the presence of fluid mixed-race racial identities within allegations of employment discrimination leads some legal commentators to conclude that civil rights laws are in urgent need of reform because they were built upon a strictly binary foundation of blackness and whiteness. Building upon the social movement for recognition of multiracial identity on the census and generally, these commentators conclude that courts misunderstand the nature of discrimination against mixed-race persons when they do not specifically acknowledge the distinctiveness of their multiracial identity. Even United States Supreme Court litigation has begun to associate the growth of multiracial identity with the obsolescence of civil rights policies. Particularly worrisome has been the judicial suggestion that the growth of multiracial identity undercuts the legitimacy of affirmative action policies that have long sought to pursue racial equality.
The supposition that the multiracial experience of discrimination is exceptional, and not well understood or handled by present anti-discrimination law, is evident in the publications of multiracial-identity scholars like Ken Nakasu Davison, Leora Eisenstadt, Tina Fernandes, Nancy Leong, Camille Gear Rich, and Scot Rives. I coin the term “multiracial-identity scholars” to refer to authors whose scholarship promotes the recognition of the distinct challenges that multiracial identity now presumably presents for civil rights law.
The crux of the multiracial-identity scholar critique of the emerging cases is that courts often reframe multiracial plaintiffs’ self-identities by describing mixed-race plaintiffs as “monoracial” minority individuals. Specifically, in many cases, judges refer to mixed-race complainants as solely African American or black. These scholars take issue with this characterization, arguing it hinders the recognition of the racial discrimination that multiracial individuals experience. This essay disputes that premise because the cases themselves illuminate the disjuncture between the theoretical critique they make and the actual adequacy of the judicial administration of the claims.
A close examination of such claims indicates that in an overwhelming number of the cases scholars rely on, the facts present a complainant whose description of the alleged discrimination includes pointed, derogatory comments about non-whiteness and blackness in particular. The overarching commonality in the cases is the exceptionalism of blackness and non-whiteness, rather than multiraciality, as subject to victimization. Although the plaintiffs may personally identify as multiracial persons, they present allegations of public discrimination rooted in a specific non-whiteness and often black bias that is not novel or particular to mixed-race persons, nor especially difficult for judges to understand. For instance, the employment discrimination case of Marlon Hattimore in Richmond v. General Nutrition Centers, Inc, No. 08 Civ. 3577(LTS)(HBP), 2011 WL 2493527 (S.D.N.Y. June 22, 2011), presents a paradigmatic illustration of the adequacy of current law to address the racial discrimination that multiracial-identified persons encounter.
--This is an excerpt from Professor Tanya Hernandez's article What Emerging Multiracial Plaintiff Cases Suggest About Employment Discrimination Law published in the New York Law Journal
Tuesday, November 14, 2017
Buchanan v. Warley (1917) was the first case won by the NAACP. One hundred years ago, America was entrenched in Jim Crow segregation. In this context, why did the U.S. Supreme Court strike down a Louisville, Kentucky ordinance that prohibited Black Americans from living on majority-White blocks and vice versa? Because it violated the property rights of White homeowners--it did not allow Charles Buchanan (a White man sympathetic to the plight of Black people) to sell his home. Buchanan v. Warley was a test case cleverly orchestrated to pit White property rights against Jim Crow. Professor Elizabeth A. Herbin-Triant of the University of Massachusetts Lowell discusses it further right here.
Monday, November 13, 2017
I remember my first time seeing Derrick Bell in person and hearing him speak, just a few years before he passed away. I was in awe of him for many reasons, but primarily for two reasons. First, I noted from watching him with his devoted students, how mutual was the devotion coming from him—devotion to them as people and as those who would surely carry on his great work of seeking to forge equality in America and beyond. And second, I was in awe of him because of his devotion to the elimination of racism, while at the same time commenting in some of his writings the sad permanence, it seems, of racism and other -isms.
Reflecting on those two lessons from Professor Bell, I think we can both pay homage to him, and further the cause by considering his exemplary devotion-- to his students and to the cause of the eradication of isms ---by empowering ourselves to serve within oppressed communities, as an additional advancement for racial progress.
Recently, I attended the LatCrit Biennial academic conference where academics of color wondered aloud where are safe places that allow the thriving-- and even just surviving-- of academics of color to carry on the work of Professor Bell and others who fought tirelessly for us to have the positions we now have in America. Some of us feel under attack in our own schools and in the proliferation of national and state policies that hinder full equality.
Although I, too, am greatly concerned about the future of education and equality in America, I firmly believe we can find safe spaces, which allow us to further follow Professor Bell’s legacy, through embracing practical ideals.
We can find space spaces to evolve by serving in spaces where we are needed most and are welcomed. When I was a new faculty member trying to get tenure over 20 years ago, I felt unsafe . . . frequently. Works of scholars like Professor Bell assured me that my voice had purpose. Yet, there were few nonwhite faculty members at my institution. I was the only faculty member writing and publishing about race and gender. Many of my law students had never had a black professor and found my presence unfamiliar. In the midst of this all, some faculty announced they would aim to heighten the tenure standards. Needless to say, it was difficult for me to find a safe space within my institution…to even do the work I felt called to do.
Just a few miles from my school in the city was a public elementary school that was almost all black (from decades of white flight and other de facto segregation). I started to volunteer at that school. I would work with the students, many had never engaged with a lawyer. I helped the teachers who had large and busy classrooms. I attended programs and events with the overworked parents, who were struggling to be engaged. And, I cheered for the successes of the students and the school.
In the midst of my volunteer efforts, I learned more about teaching. From these skilled and hardworking black public school teachers, I learned so much about pedagogy. I found a safe space, where I was needed and welcomed, where I could be myself and further social justice. And, I got tenure at my law school, while maintaining a sense of well being and purpose. Feeling safe and welcomed with my extended time volunteering, I was able to be even more productive as a teacher and scholar at my institution.
I thought of this as I reflected on Professor Bell and how kind he was toward his students, how engaged he was, and how all of that commitment enhanced, not diminished, him as a scholar. Finding space spaces by visiting and serving in spaces, and with young people, where we are needed most and welcomed is a way to survive and thrive in academia, and a way to continue Professor Bell’s enduring mission of eradicating the -isms that seem so permanent, especially now in 2017.
-- Professor Angela Mae Kupenda is Professor of Law at Mississippi College.
Saturday, November 11, 2017
Professor Camille Walsh of the University of Washington Bothell has come out with a book entitled RACIAL TAXATION. Professor Walsh explores the history of taxation as it relates to citizenship and public policy. She argues that both "taxpayer identity" and tax policy were built on "foundations of White supremacy." To support her thesis, she considers various policy initiatives throughout the history of American public education, including school funding and desegregation efforts. By integrating various disciplinary traditions and analyzing a variety of sources, Professor Walsh illustrates how taxation and citizenship are related to each other and have served as axes of racial oppression and inequality.
Friday, November 10, 2017
As the 2009-10 Derrick Bell Fellow at New York University (NYU) School of Law, I had the honor and privilege of working closely with Professor Derrick Bell to organize and teach his classes. From this experience, I have many cherished stories to tell about Professor Derrick Bell as a teacher, and this is one.
As one of the founders of Critical Race Theory (CRT), the late Professor Derrick Bell set into motion one of the most influential scholarly movements that the legal academy has seen. But while his impact on the academy was profound and undeniable, Professor Bell’s view of CRT went far beyond scholarship: it was a way of living one’s life. When asked what Critical Race Theory was, Professor Bell used to half-jokingly: “I don’t know … [t]o me, it just means telling the truth, even in the face of criticism.” And while he had strong, well-defined views on many issues, Professor Bell also recognized that being “critical” meant analyzing all perspectives—particularly those that were marginalized in the mainstream discourse. He told his own version of truth, but as a teacher, he also recognized the validity of other perspectives.
The second part of Professor Bell’s quote on Critical Race Theory—“even in the face of criticism”—was even more important to him than “truth.” Professor Bell wrote a book entitled Confronting Authority, which he took quite seriously as a philosophy of life. He wanted students to confront his authority in the classroom—to sincerely tell their own version of the “truth,” even if it went against his views. On more than one occasion, I saw Professor Bell encourage conservative students to challenge him in class. Sometimes they did, and when progressive students criticized conservatives in response, Professor Bell stood up for the latter, even if his own views were more in line with the former. Professor Bell said that he had the utmost respect for anyone who had the courage to stand up to authority, to go against the crowd, and to say what he or she believed. When Professor Bell was the authority that meant being “critical” of him. And just as he became a founding figure in CRT by confronting authority and by “just…telling the truth[,]” Professor Bell wanted his students to stand up to authority and tell their own truth, even in the wake of criticism, and even if he disagreed with them. It was not just about him telling his truth, but rather about everyone having the courage to tell their own truths.
For Professor Bell, CRT was as much a humanistic endeavor as it was a scholarly enterprise or a progressive activist movement. His scholarly works and his activism told his truth—which is well known to us as CRT. But his kindness to those who disagreed with him, his desire that they confront him, and that they too have their voices heard, were all just as important to Professor Derrick Bell, and were part of his Critical Race Theory.
For more of my stories about Professor Derrick Bell as a teacher, see:
Vinay Harpalani, “Gifted with a Second-Sight”: Professor Derrick Bell the Teacher, in Covenant Keeper: Derrick Bell’s Enduring Education Legacy 17 (Gloria J. Ladson-Billings & William F. Tate eds. 2016).
Vinay Harpalani, From Roach Powder to Radical Humanism: Professor Derrick Bell’s“Critical” Constitutional Pedagogy, 36 Seattle U. L. Rev. xxiii (2013).
Thursday, November 9, 2017
Call for Papers:
SLAVERY PAST, PRESENT & FUTURE: 3rd Global Meeting
Indiana University Europe Gateway, Berlin, Germany July 10 & 11, 2018
Throughout history, slavery (the purchase and sale of human beings as chattel), enslavement (through conquest, and exploitation of indebtedness, among other vulnerabilities), and similar extreme forms of exploitation and control have been an intrinsic part of human societies.
Is slavery an inevitable part of the human condition?
Controversial estimates indicate that up to 35 million people worldwide are enslaved today. This modern re-emergence of slavery, following legal abolition over two hundred years ago, is said to be linked to the deepening interconnectedness of countries in the global economy, overpopulation, and the economic and other vulnerabilities of the individual victims and communities.
This conference will explore slavery in all its dimensions and, in particular, the ways in which individual humans and societies understand and attempt to respond to it.
The varieties of contemporary forms of exploitation appear to be endless. Consider, for example, enslavement or mere “exploitation” among:
- fishermen in Thailand’s booming shrimping industry,
- children on Ghana’s cocoa plantations,
- immigrant farmworkers on U.S. farms,
- truck drivers in the port of Los Angeles.
- prostituted women and girls on the streets and in the brothels of Las Vegas,
- the dancing boys (bacha bazi) of Afghanistan,
- the sex workers of The Netherlands’ Red Light Districts and in Italian cities,
- Eritrean and other sub-Saharan Africans fleeing to Israel and trafficked and exploited in the Sinai,
- Syrian refugees in Jordan, Turkey, and Lebanon, and
- migrant workers from Southeast Asia and other countries who flock to the oil rich Gulf States for work.
Does the persistence and mutations of different forms of extreme human-of-human exploitation mean that the world may not have changed as much as contemporary societies would like to believe since worldwide abolition and the recognition of universal individual and collective human rights? Like the ‘consumers’ of past eras, such as early industrialization, are we dependent on the abhorrent exploitation of others?
Potential themes and sub-themes of the conference include but are not limited to:
- Defining Slavery:
- What do we mean when we talk about “slavery”
- Using “slavery” to obscure other endemic forms of exploitation
- Teaching and learning about historic slavery and contemporary forms of exploitation
- Slaveries of the Past
- Classical (Egyptian, Greco-Roman, etc.) slavery
- Conquests and colonizations – Aboriginal Australians, indigenous peoples of the New World, dividing and colonizing Africa and Asia
- Slaveries in Europe before the Trans-Atlantic Slave Trade and Industrialization, such as villeinage and serfdom
- Trans-Atlantic Slavery and the trans-Atlantic Slave Trade
- Systems of slavery in tribal and traditional societies
- WWII and post-WWII forced labor camps
- Human Trafficking and other Forms of Contemporary Exploitation
- Types of human trafficking
- Organ trafficking
- The focus on sex trafficking: reasons, purpose, effects
- Can nation states enslave?
- Is human trafficking “slavery”
- Contemporary usage and depictions of slavery
- Civil society anti-trafficking activism
- Anti-trafficking policies and legislation
- Assessing contemporary anti-trafficking and/or anti-“slavery” Initiatives
- Systems and Structures of Enslavement and Subordination (historic and contemporary)
- Role of slavery in national and global economies
- Economic, political, legal structures – their role in enslavement and exploitation
- Slavery’s impact on culture
- Cultural impacts of historic slavery
- Voices of the Enslaved
- Slave narratives of the past and present
- Descendants’ interpretation of their enslaved and slave-holding ancestors
- Legacies of slavery
- Identifying and mapping contemporary legacies – economic, social, cultural, psychological
- Assessment of slavery’s impact – economic, political, other
- Commemorations of enslavers and/or the enslaved
- Debating reparations
- Anti-slavery movements:
- Economic compensation
- Restorative justice
- Teaching and learning about slavery
- Relationship to the global racial hierarchy
- Abolitionism and law: effects and (in)effectiveness
- The role of media and social media
Submissions to this conference are sought from people from all genders and walks of life, including academics (from multiple disciplines, such as art, anthropology, sociology, history, ethnic studies, politics, social work, economics) and non-academics; social workers, activists, and health care professionals; government representatives and policy makers; former slaves and indentured laborers; members of at-risk populations such as migrant and guest workers, non—regularized immigrants, and refugees.
Karen E. Bravo (Indiana University Robert H. McKinney School of Law, IN, USA) David Bulla (Augusta University, GA, USA) Sheetal Shah (Webster University, Leiden, The Netherlands) Polina Smiragina (University of Sydney, Australia)
Submitting Your Proposal
Proposals should be submitted no later than Friday, March 2, 2018 to:
Karen E. Bravo, Indiana University Robert H. McKinney School of Law, Indianapolis: email@example.com
E-Mail Subject Line: Slavery Past Present & Future 3 Proposal Submission
File Format: Microsoft Word (DOC or DOCX)
The following information must be included in the body of the email:
- Affiliation as you would like it to appear in the conference program
- Corresponding author email address
The following information must be in the Microsoft Word file:
- Title of proposal
- Body of proposal (maximum of 300 words)
- Keywords (maximum of ten)
Please keep the following in mind:
- All text must be in Times New Roman 12.
- No footnotes or special formatting (bold, underline, or italicization) must be used.
Evaluating Your Proposal
All abstracts will be double-blind peer reviewed and you will be notified of the Organizing Committee’s decision no later than Friday, 16 March 2018. If a positive decision is made, you will be asked to promptly register online. You will be asked to submit a draft paper of no more than 3000 words by Friday, 01 June 2018.
Thursday, November 2, 2017
The Society of American Law Teachers (SALT) has announced its award winners for this year.
The recipients of the 2017 Junior Faculty Teaching Award, which "recognizes an outstanding recent entrant (seven years or fewer) into legal education who demonstrates a commitment to justice, equality and academic excellence through his or her teaching[,]" are Professor Katie Eyer of Rutgers University-Camden School of Law and Professor Lua Kamal Yuille of the University of Kansas School of Law.
The recipients of the 2018 M. Shanara Gilbert Human Rights Award for "an exceptional person or institution whose struggle for human rights requires recognition" are Professor Robert S. Chang and the Fred T. Korematsu Center for Law and Equality at Seattle University School of Law, where Professor Chang is the Executive Director of the Korematsu Center.
The recipient of the 2018 Great Teacher Award, which "recognizes individuals or institutions that have made especially important contributions to teaching, legal education, and mentoring[,]" is Professor Jeffrey Selbin of the University of California, Berkeley, School of Law.
Congratulations to all of the winners. SALT will present the awards at its Annual Awards Celebration on Friday, January 5 at 4:30 pm at California Western School of Law, 350 Cedar Street, San Diego, California 92101. Tickets can be purchased online at https://www.saltlaw.org/events/2018-salt-annual-awards-celebration/
Monday, October 16, 2017
Perhaps you have read about the recent incident involving a Banana Republic employee in West Chester, NY that is making the rounds on social media and digital news outlets? The story concerns a young black woman who works as a sales associate in the Banana Republic store in the West Chester Mall and who was told by her manager that she could not continue to work in the store if she did not remove the “box braids” from her hair. In the words of the manager the hairstyle, which is generally worn by and associated with black women, was “unkempt” and too “urban” for the store’s image. The woman tried explaining to her manager that she wore the braids in an effort to protect her hair from the harsh cold of the winter weather, but her manager was unmoved. The manager responded by suggesting that she try putting shea butter on her hair instead.
Rather than accept the manager’s ultimatum to remove her box braids or risk her job, the woman did what so many do in our digital age to express public and private outrage; she took the issue to social media. She posted about the incident on Facebook. In her post she described the encounter as both “humiliat[ing] and degrad[ing].” In the warp speed of electronic media, her story was picked up by others and eventually published in online news outlets. Her story was also posted to the Banana Republic Facebook page, where it received a prompt reply from a corporate representative asking the woman to reach out to the company’s employee relations department so the matter could be pursued further. And indeed it was pursued further. Within days news reports indicated that it was the manager who instructed the woman to remove her box braids, not the woman herself, who was fired by Banana Republic. Despite the fact that this complaint was made by a black woman about mistreatment for her uniquely black hairstyle, what can be credited for this prompt and curative response by Banana Republic is not its obligation to enforce anti-discrimination law forbidding race discrimination in employment, but instead its commitment to workplace diversity and inclusion.
As Professor D. Wendy Greene has written in numerous articles, Title VII (the federal statute prohibiting workplace discrimination) does not generally recognize cultural affects, such as hairstyles, as giving rise to actionable claims of racial discrimination. Instead, finding that hairstyle is a mutable characteristic, not an intrinsic aspect of racial identity, courts have routinely declined to recognize disparate treatment claims by black women alleging that an employer engaged in racial discrimination by adopting grooming standards disfavoring certain black hairstyles, such as braids, cornrows or locs. In other words, under Title VII, Banana Republic likely would have no legal liability for demanding that this black woman remove her box braids. So why did Banana Republic fire the manager who demanded that this employee remove her box braids? The answer, it seems, lies not in the company’s concern for Title VII enforcement, but in their corporate commitment to diversity and inclusion. Banana Republic is owned and operated by Gap, Inc. The following is an excerpt from the Gap, Inc. corporate website about its commitment to diversity and inclusion:
At Gap Inc. inclusion and equality is woven into our DNA. As a global company, we know that appreciating and understanding the diversity of our customers, employees and partners around the world helps us succeed. . . . We maintain our commitment to diversity with workplace policies that ensure we do what's right, and treat our customers—and each other—with integrity and respect. . . regardless of appearance, skin color, gender, or any other such distinction.
Notably, “appearance” is not a trait that is protected under Title VII. Nor does Title VII require that employers value the “diversity” of their employees or otherwise treat them with “integrity and respect.” Gap, Inc. adopted this policy as part of its commitment to diversity and inclusion because of its belief, as widely shared in corporate America, that such a policy is good for business. It not only helps Gap, Inc. and other corporations to better serve their diverse clients and customers, but it also ensures that they attract and retain the best talent, who themselves will inevitably be diverse. Frequently diversity critics question the sincerity and efficacy of workplace diversity and inclusion efforts. Many wonder if they do any good on behalf of the diverse employees they are ostensibly designed to help, and worse still if they can even incur harms to these employees rather than engender benefits by focusing on business benefits rather than anti-discrimination compliance. This incident is indicative of the ways that workplace diversity and inclusion efforts do aid in creating more equitable and inclusive workplaces. Diversity did what anti-discrimination law could not do. As this Banana Republic employee can now attest, diversity and inclusion efforts may be good for business, but they are also, very often, good for employees too.
by Professor Stacy Hawkins, Rutgers Law School
Monday, October 9, 2017
In a recent commentary for the Hastings Center, Professor Deleso Alford highlights an important historical fact unknown to most medical students - enslaved black women were subjected to numerous experimental surgeries to perfect the speculum commonly referred to as "the Sims."
As such, Professor Alford recommends cultural competency courses in medical school curriculums that "include narratives of vulnerable women whose bodies have been used for and affected by medical research and advancement—stories that have been neglected in the annals of medical history. Addressing cultural competency from a critical race-feminist perspective would help equip medical doctors to “see” their diverse patients as humans with a history and a “her-story,” not simply potential subjects of scientific advancement in reproductive health care."
Her recommendation is based on the article Critical Race Feminist Bioethics: Telling Stories in Law School and Medical School in Pursuit of ‘Cultural Competency where Professor Alford argues "the particularized and unique experiences of enslaved Black women have been traditionally viewed as extracting assets from her body in the form of a “crop of human labor” in the historically referred to role as a so-called “breeder." The focal point of this article is to explore a means to address the impact of continuing to tell the narrative on the development of the medical specialty of gynecology in the United States without the benefit of a “herstorical” lens."
To read the full commentary in at the Hastings Center, click here.
To read Critical Race Feminist Biotheics, click here.
Friday, September 29, 2017
Professor Wendy Greene's recent article in the University of Miami Law Review highlights the legal fiction of the immutability doctrine as it applies to African American women's hair. In Splitting Hairs, The Eleventh Circuit’s Take on Workplace Bans Against Black Women’s Natural Hair in EEOC v. Catastrophe Management Solutions, Professor Greene argues federal court decisions in race-based discrimination cases challenging grooming codes misguidedly only protect afros but not naturally textured hair donned in braids, twists, or locks. Such contradictory results arise from judges' ignorance of the close nexus between myriad natural hairstyles beyond an afro and black racial identity.
Below is the introduction to Professor Greene's article and the full article is available here.
"In 2010—like many if not most job seekers—Chastity Jones, an African American woman, searched online for employment. Ms. Jones submitted a job application with Catastrophe Management Solutions (“CMS”), a company based in Mobile, Alabama that provides customer service support to insurance companies’ claims processing. She applied for a Customer Service Representative position, which required handling customer inquiries via telephone and basic computer knowledge. Along with thirty other applicants, CMS invited her to interview for the position. Jones wore a blue business suit, black pumps, and her hair in locks to the interview. After an initial assessment of the required skills, CMS extended a job offer to Ms. Jones. Jones then met privately with CMS’ human resources manager, Jeannie Wilson, to reschedule required lab tests. As Ms. Jones departed the meeting, Ms. Wilson asked her if she was donning “dreadlocks,” to which Jones replied in the affirmative. Ms. Wilson informed Jones that she could no longer hire her if she continued to wear locks, explaining “they tend to get messy, although I’m not saying yours are, but you know what I am talking about.” Ms. Wilson added that previously an African American male applicant was asked to cut off his locks to secure a position with CMS. Ms. Jones refused this condition of employment, returned her initial paper work to Ms. Wilson, and left the building.
Regrettably, Ms. Jones’ encounter with grooming codes discrimination at the intersection of race and gender is not an isolated incidence. Countless employers have instructed African descendant women to cut off, cover, or alter their naturally textured hair in order to obtain and maintain employment for which they are qualified. Like Ms. Jones, other African descendant women have endured a barrage of offensive, stereotypical perceptions, denigrating their naturally textured hair as “messy,” “unkempt,” “dirty,” and “unprofessional,” not only during the hiring process, but also during the course of their employment. As a result, in lieu of donning twists, locks, braids, or afros, many African descendant women don straightened hairstyles to avoid the stigmatization of their natural hair, which often engenders harassment, unfavorable performance evaluations, as well as loss or denial of employment. Notably, federal courts have not treated these instances of grooming codes discrimination, uniquely and commonly affecting African descendant women,19 as unlawful race and/or gender discrimination under federal law—except when employers regulate or ban afros adorned by African descendant women."
The full article is available here.
Friday, September 8, 2017
I taught Dred Scott v. Sanford this week. As a teacher and scholar of civil rights, it’s my job to teach the constitutional canon and how Dred Scott, and cases fairly called its progeny, misshaped our idea of equality. And while it is unsurprising to teach this canon in a course at Marquette Law on “Contemporary Perspectives on Civil Rights,” or in any civil rights or constitutional law course, what was different this time is that I taught Dred Scott for the first time in the Era of Trump.
Of course, I’ve taught the case before in first-year Property, in my Race Racism & American Law seminar, in public lectures at WVU Law, and in seminars on three different continents. I’ve written about Dred Scott in articulating my view of “tiered personhood” and blogged about its contemporary relevance. And it is fair to say that, after teaching for over 10 years, on some level, I was used to rehearsing the case often called “pure constitutional evil.”
But this time was different.
I walked into class, ready with my practiced confrontation of this intellectual monument to Chief Justice Roger Tawny. And after answering follow-up questions from last class about a case that enforced the racial classification system on which slavery depended, I began Dred Scott by reminding my students that we were studying the origin story of American white supremacy.
But before opening the casebook, I recalled that a student suggested we frame the conversation by watching a recent viral video of Univision News journalist Ilia Calderón. I had attempted to show the video in the class prior, but due to technical difficulties, this video prefaced our discussion of Dred Scott—which was not my original plan but proved more than appropriate for discussing the case in today’s political climate.
After the video ended, I found myself dumbstruck. This Klansman and his wife had the audacity to claim his superiority based purely on the color of his skin (which echoed the race classification cases from last class). He called her a “mongrel” and a “n**ger” and threatened to burn her out of his land. And despite their claims of racial superiority, religious exceptionalism, and entitled grievance, accompanied by threats of rebellion against a government that attacks their heritage and takes their stuff, the couple claimed they are not racist and the Klan is not a hate group.
In that moment, I remembered that Dred Scott is more than precedent. It is the anti-gospel of slavery, echoed anew by this Klansman, as an effort to tell Ms. Calderón (and all of us who can imagine her situation) to keep our place or be ready to burn. My own anger welled up, and my sadness too because that Klansman’s words reminded me of the times I had been called “n**ger” by white people, or told during an internship that “deliveries were around back,” or called “Big boy” by a white senior partner in front of my peers. Watching this Klan couple’s loathing reminded me that their hearts are full of twisted grievance and their minds are the heirs of the racial hierarchy enforced by Dred Scott.
To calm myself after the video ended, I had to let silence overcome the room. As far as I could tell, the students felt some mix of anger, pity, and shock. After this pause, I explained in both legal and moral terms that the structures of racism and the ideology of white supremacy cannot be thought of in isolation. The anti-gospel of the Klan and the words of Chief Justice Tawney must be thought of as parts of a whole.
Indeed, to read Dred Scott is to read a blueprint for structural racism. American citizenship is defined to exclude all black people. Slaves are a property that can be treated with near impunity. People of color do not belong in the American political community. A black person was “so far inferior that they had no rights which the white man was bound to respect.” These are the lessons of Dred Scott, which followed through on the seeds sown in the Constitution of 1789, and which took amendment and 160 years of activism, struggle, and needless death to reverse.
And though the law has changed, the reversal is incomplete. This era—these times we live in now—echo that evil. The boundaries of personhood continue to be drawn to exclude not only race, but also gender and sexual orientation. The borders of the political community are being redrawn to wall off children who live up to the egalitarian American creed but have imperfect immigration status. The Klan and Nazis march with the impunity offered through mealy-mouthed accommodation from the White House. The structures of mass incarceration, disenfranchisement, and police brutality were built according to the same blueprint of white supremacy as Dred Scott, yet there are those who defend these still-functional monuments to slavery and Jim Crow as “law and order.”
Dred Scott and its ideological and doctrinal progeny are still with us. As much as we have moved away from being an apartheid state, as much as we have asserted through the Constitution and laws that we believe in equality, there are those of us who, by their torches, their twisted ideologies, and their policies seek to bring us back to that time. Their fire and fury—both cultural and legal—still try to burn out equality in the name of nativism and racial superiority. This is the era in which we live.
Wednesday, August 30, 2017
by Professor Ian Haney Lopez
Like Donald Trump, Joe Arpaio made his name in politics through aggressive race baiting, repeatedly winning election as the sheriff of Maricopa County, home to Phoenix, by that means. Arpaio’s political strategy involved systematically going after the city’s Latino residents, using Latino appearance as the predominant reason for stopping and detaining people until they could prove their right to be in the United States.
Arpaio claimed his goal was to enforce immigration laws. But the pervasive targeting of folks based on their “Mexican” appearance made it clear that his deeper goal was to publicly stigmatize Latinos, citizens or otherwise, as perpetual foreigners in Arizona. In effect, he used racial harassment to grandstand politically.
In 2011, a federal court issued a stinging rebuke of Arpaio, making clear that the Constitution prohibits going after Latinos based on a presumption that we are in the country illegally. This sort of racial profiling, the court warned, was unconstitutional and had to stop.
Arpaio refused, and indeed made a point of flaunting his disdain. He ordered his officers to continue detaining and harassing people principally on the basis of Latino appearance.
Finally, this July, the federal court responded again and held Arpaio in criminal contempt for his refusal to obey the law. Compared with the damage he had done to thousands of people over his 25 years in office, Arpaio faced a slap on the wrist—a mere six months in jail, at most. Nevertheless, his conviction sent a powerful message about the law’s duty and power to protect people from abusive government officials.
Then Trump pardoned Arpaio, siding with someone guilty of violating the 14th Amendment’s bedrock command of racial equality and of mocking a federal court’s order that he desist.
There’s some discussion, for instance in a recent op-ed in The New York Times, of the possibility that Trump’s pardon could be rejected by the courts. The logic is that in using his pardon to dismiss a conviction for violating a court order, Trump has effectively gutted the capacity of the courts to serve as a “check and balance” against executive power. He has done that. But it’s doubtful the courts will limit the president’s ability to grant pardons on that basis. After all, the pardon power by its very nature hamstrings court power.
There are a number of points in constitutional law in which the judicial branch confronts an inevitable truth: Democracy does not depend on courts or laws themselves, but on respect for the rule of law. When that respect is lacking among other branches of government, the courts can do little on their own to save democracy.
At these points, the courts often defer—to the abuser, in the short run, but ultimately to us, the people. At the end of the day, it is the public that must decide what is acceptable—and what trammels democracy. The president is answerable, a court might say, “in his political capacity.”
One way the president can be made answerable is through electoral process. Another is through impeachment by the people’s representatives in the House.
In pardoning an official who spat upon the 14th Amendment right to racial equality and who treated the federal courts contemptuously, Trump abused his presidential powers. He enabled a racist to trash our country’s core values and subvert the rule of law and face no consequences for these actions.
With courts powerless to stop this double assault on democracy, Trump must be held to account politically. This is precisely the situation for which impeachment was designed. The Constitution speaks of impeachment for “high crimes and misdemeanors.” This term refers not to some narrow set of enumerated crimes but broadly to abuses of public power that threaten the democratic order.
Other grounds for impeaching Trump have been advanced and, given his temperament as well as on-going investigations, others will surely emerge. Likewise, with respect to his aligning himself with racists, the bill of particulars against Trump is long and growing, from his birther lies to his coddling of the Charlottesville white supremacists. Finally, this is unlikely to be Trump’s last abuse of pardon power. Pardons for family members, and even for himself, may come all too soon.
As a technical matter, these swirling and deepening transgressions are independent of Trump’s pardon of Arpaio, which could stand on its own as a basis for impeachment. But the case for impeachment should not be read narrowly. It is, at root, a political judgment. At its most mystical—in the aspirational sense of the word—impeachment is the people’s power. This power should be exercised based on concrete abuses, to be sure, but should also look broadly at the president’s behavior, past and probable.
Of course, impeachment is most often mystical in a much less flattering sense, as an ideal rarely honored but instead typically mired in petty party politics. It’s overwhelmingly likely the current Republican House majority will refuse to impeach Trump. In this circumstance, the people must elect a majority that will impeach—one that honors racial equality, protects the rule of law, and thereby saves democracy.
-- Ian Haney Lopez is the Earl Warren Professor of Public Law at the University of California-Berekeley School of Law
This article was originally published in The Nation here
Wednesday, August 23, 2017
It is overstatement to say that by removing monuments to Confederate generals one is erasing all history. Commentators have wondered aloud whether this will become a long-term movement towards total eradication of history of the South. The president even suggested this by asking when this will stop. He called the removal of Confederate monuments the destruction of culture. These claims incorrectly conflate crafting historical memory with the fact that honorific statuary in public places signals the values of the modern-day community.
Memory of the Civil War and its aftermath will not suddenly be completely erased forever because statues are torn down, street names changed, buildings renamed, and the like. Culture will not be destroyed. (And as an aside, one should ask, "Who's culture is being protected by protecting these monuments?") The consequences of the Civil War, for good and ill, linger. Moreover, history's memory is a lot longer than the beginning and ending of a statue, and history will continue to be useful as long as scholars, schools, and society have open and honest conversations about the past.
History is dynamic. Honorary statues are not. Communities change and values evolve and those who are honored yesterday may be disfavored tomorrow. Think about it this way--when the American Revolution concluded, as my friend and Marquette colleague Edward Fallone points out, no one objected that the history of British rule over the colonies would be erased forever when the statues of George III were torn down. Two hundred forty one years later, we literally still sing songs to sold-out audiences about the American Revolution. And Hamilton the Musical! still gets the facts right.
The communal choice of determining who is and who is not to be honored in the present day is a completely different conversation than one about the state of history. We shouldn't confuse the two.
Who gets honored in community space ought to be a democratic conversation for each generation. Before the revolution, George III was King. After the Revolution, George III did not represent what America means anymore to the majority of Americans, so statues to him had to go. Similarly, if the representatives of the public and private will in twenty-first century America have arrived at the decision that the twentieth century images of those who committed treason and insurrection to protect nineteenth century chattel slavery no longer deserve public places of honor because those communities see themselves as dedicated to egalitarian democratic values, then it does not follow that for some sense of static history the statues should not come down. That would privilege the ideology of the nineteenth century over the reality of the voices of the twenty-first. (And, as evidence is showing, the statues at issue now went up precisely to signal the ascendancy of white supremacy, both in the 1920s at the height of Jim Crow and 1950s in mass resistance to the racial integration demanded by Brown v. Board of Education.)
One may object that the judgments of history are cruel. The vicissitudes of the future may be such that one day, Martin Luther King, Jr. memorials and street names may be arbitrarily torn down, that today's egalitarian heroes may end up tomorrow's villains. The people who win this argument today and see the statues torn down, the argument goes, will end up losing the argument tomorrow. That slippery-slope reasoning misses the point. To quote Hamilton the Musical, once you and I are extinct, neither of us has control over "who tells our story." That's just the reality. All we can do is live our lives now in a way that makes our values clear and be content to let history be the judge of that.
It is that values question we should really be asking. As far as I can tell, those who object to the removal of the statutes seem to be saying that those Confederate generals who defended slavery, secession, and white supremacy represent the values of a twenty-first century America that is becoming more egalitarian and diverse.
As to that, all I can say is those folks have a lot of convincing to do. I think I have made clear that I'm not persuaded by this. But, in the spirit of free speech, those who support the statues get to make the argument. And short of turning the protest to violence—which they did—they even get to light their citronella tiki-torches and march in Charlottesville, Boston, and wherever else. And those of us who disagree should do so, and peacefully point out the error of their ways. (Remember: the First Amendment may protect your right to object from state sanction, but it doesn't protect you from the consequences of disagreement.)
But as the supporters of letting the legacy of the Confederacy continue to be central to our twenty-first century places of honor make that argument, my advice is to not overstate the claim by saying the removal of the Confederate generals' statues erases history. That argument will likely cost you a lot of your audience. And they won't forget.
Wednesday, August 16, 2017
I had kind of a surreal moment in Forsyth Park the other day--one that is still on my mind. Forsyth Park is in historic Savannah, Georgia, just a few blocks from where I live--and right across the street from Savannah Law School, where I work. I was walking by the large monument with the statue that is right in the middle of the park. There was a Black family taking pictures in front of the monument, and just as I walked pass them, one of them said to the others, "I wonder what this is."
I normally don't interfere in other people's family conversations, but I know full well what that monument is, and I had to tell them. So I got their attention and said bluntly, "It is a Confederate monument." I pointed to the inscription on the bust of Francis S. Bartow (which they were photographing), right where it says "Georgia Volunteers Confederate States Army." I thought of engaging them in further conversation, but they looked a bit stunned and embarrassed, and I did not want to exacerbate those feelings. They thanked me, and I walked away, feeling like I don't know what. I have many different thoughts about this stuff, and it has taken me a few days to process them.
Savannah has more than its fair share of Confederate landmarks, but what is interesting is how subtle there are. The statue in the middle of the monument in Forsyth Park is not a statue of Jefferson Davis or Robert E. Lee, but rather Major General Lafayette M. Laws. Neither he nor Bartow is someone that most people have heard of. I see tourists taking pictures of it all the time, and at first I presumed that they were celebrating the Confederacy. Over time, however, I have become convinced that they just see this nice statue (which it is) in the middle of the park and, like any other nice work of art, they take pictures in front of it.
Personally, I knew exactly what the monument was even before I moved to Savannah. I have walked by it hundreds of times, and literally every time, the thought has come in my head that it should be removed. But I also realize that like the tourists, I have walked by similar landmarks and even taken pictures of them without thinking much about it. Although one can usually find out by reading the inscriptions, most people don't do that. It seems that Savannah strives to keep these Confederate landmarks, but not to make them too conspicuous--lest they offend some of the many tourists who are always in the city. In my three plus years living in downtown and historic Savannah, rarely have I seen a Confederate flag--a much more obvious symbol of the Confederacy. There have been a few occasions, but far less than one might expect in a city where many are still resentful of General Sherman.
There are plenty of other Confederate relics here that people might not be aware of. Right on Gwinnett and Drayton Streets, two blocks from Savannah Law School, there is a bed-n-breakfast called the Confederate House. It has rooms named after Jefferson Davis, Robert E. Lee, and Stonewall Jackson. According to its website, it was actually voted "the most romantic inn in Savannah" in 2013 by CityofSavannah.com. But unless you looked at the website or really paid attention, you would not know about it.
It may also be this type of subtlety that allows Savannah to thus far avoid the protests against racism that we are seeing in many other Southern cities. The prominent influence of SCAD--the Savannah College of Art and Design--is one of many factors that intersect with Savannah's history and make the city a unique and interesting confluence of cultures. But that same confluence also helps to mask Savannah's racist history.
I am glad to see that, in light of recent national events, people in the city are at least beginning to have a dialogue about these things. Although the city of Savannah insists that only the state can rename bridges or order monuments to be removed, we need to start somewhere. On Tuesday, September 5, there will be a free public forum to discuss renaming the Eugene Talmadge Bridge--which many say is the most prominent landmark in Savannah to be named after a reprehensible figure. Talmadge was born after the Civil War, but he was a White supremacist and staunch segregationist Governor of Georgia in the late 1930s and early 1940s -- but yet another person that most visitors probably have not heard of. Even if it does not lead directly to the renaming of the bridge or removal of Confederate monuments, this type of conversation can prompt people to recognize what is being displayed around them.
Nevertheless, there is another important point that I have to make--one that was on my mind even before these recent events. In spite of everything I said above, I do cringe when the first thing I hear out of Northerners' mouths is a diatribe about how racist the South is. One implication of such comments is that the North is somehow devoid of racism or at least less racist--a dubious proposition. Just because something is less visible does not mean it is less salient--as I pointed out above.
But even more importantly, when you view the South exclusively in terms of White supremacy, you are ignoring and erasing the struggle of Black people in the South--and thus using a White racist lens yourself. More Black people live here than anywhere else, and they are not an inconsequential part of the South's legacy. Remember that the struggle for racial equality began in the South and has deeper roots here than anywhere else in America. It was Black Southern civil rights leaders--national figures like Rev. Martin Luther King, and local leaders like Savannah's Rev. Ralph Mark Gilbert--who also define the South's history. Their legacy is as much a part of the South as is Jim Crow or the Confederacy. And as far as I am concerned, to forget the struggle of the Black South, or even to relegate it to the background, is to disrespect those who fought and died here for equal rights. I realized this fully when I visited the Ralph Mark Gilbert Civil Rights Museum in Savannah earlier this summer. Everyone who visits Savannah should go to this museum, which documents an equally important part of the Savannah's history--and the South's history. And when the Confederate monument in Forsyth Park finally does come down, we should put up a statue of Ralph Mark Gilbert in its place.
I am glad that cities across the South are beginning to acknowledge its racist history and the legacy of White supremacy that is still with us. My experience at Forsyth Park the other day shows just how important this acknowledgment is. But let us not forget the struggle of the Black South against such White supremacy--a struggle which continues to this day, and which is the very impetus that is leading us to have these conversations and take these actions right now.
Wednesday, August 2, 2017
The New York Times reported yesterday that the Trump Administration is planning to attack affirmative action. The Times noted that it received an internal announcement from the U.S. Department of Justice, Civil Rights Division, which sought attorneys to explore “investigations and possible litigation related to intentional race-based discrimination in college and university admissions.”
As with many other issues, Trump has flip-flopped on affirmative action, taking whichever position is politically expedient. During his Republican primary campaign, he stated on “Meet the Press” that he was “fine with affirmative action.” And after the oral argument in Fisher v. University of Texas at Austin II (2015), Trump criticized remarks by the late Justice Antonin Scalia which questioned the utility of race-conscious admissions policies.
Of course, few people took these statements seriously. It is not surprising that, in the wake of Republicans’ failure to repeal the Affordable Care Act and the Trump Administration’s many other problems, Trump wants to distract us from the GOP’s many shortcomings. Last week, he tweeted out a proposal to ban transgender individuals from serving in the military. This week, his administration leaks its plan to challenge race-conscious university admissions policies. Trump is thus pursuing a long-standing Republican strategy of appeals to bigotry and racial animus.
This development raises red flags for universities even higher. Affirmative action has long been a charged and divisive issue. In June 2016, the U.S. Supreme Court upheld the use of race in college admissions by a 4-3 vote in Fisher II. Justice Anthony Kennedy surprised many observers, including me, by voting in favor of University of Texas at Austin (UT) race-conscious admissions plan. Kennedy had never before voted to uphold such a policy, but he continued a general trend of swing Justices casting surprising votes in such cases. In Regents of the University of California vs. Bakke (1978), Justice Lewis Powell voted to strike down UC Davis Medical School’s set-aside plan for minority students, but he did note in his concurrence that universities could use race as a “plus factor” in admissions. Twenty-five years later, in Grutter v. Bollinger (2003), Justice Sandra Day O’Connor endorsed the University of Michigan Law School’s flexible, holistic policy, writing the majority opinion in a 5-4 ruling. Like Kennedy, Justice O’Connor had never before voted to uphold a race-conscious policy. Fisher II had given conservatives hope to overturn or seriously curb back Grutter, and they were very disappointed with the ruling.
Nevertheless, although Fisher II left in place Grutter’s core framework for race-conscious university admissions, by no means did Justice Kennedy give universities a free pass. To the contrary, his opinion made clear that UT has an “ongoing obligation to engage in constant deliberation and continued reflection regarding its admissions policies.” Kennedy acknowledged that in the past, UT “had no reason to keep extensive data”—but he made clear that this was no longer the case.
Here is where the Trump administration could have its major impact. The burden is on universities to show that they really need to use race and that “race-neutral” admissions criteria, such as socioeconomic status, will not produce sufficient diversity. UT met this burden, as data show that Texas’s Top Ten Percent Law is insufficient in this regard. But in the future, the Trump Administration could challenge UT and other universities on the necessity of using race. It could find that universities are not sufficiently justifying their need, prompting more lawsuits. Moreover, simply compelling universities to release information could spur such lawsuits, as opponents of affirmative action can always spin such data to argue that a university’s race-conscious policy is unconstitutional.
While I do not think that universities will abandon their race-conscious admissions policies directly in response to the Trump Administration’s proposed attack, they will feel more pressure and have to think more carefully about how to defend these policies. During the Obama Administration, the Civil Rights Division issued guidance to help universities make sure their race-conscious admissions policies were constitutional. Trump's Justice Department could effectively do the opposite: tell universities that their policies are unconstitutional and should be eliminated. More than ever before, universities need to be firm, diligent, and proactive in defending their admissions policies and ensuring that their student bodies are racially diverse.
For over fifteen years, a critical mass of Americans have been calling for profiling Muslims and Arabs in immigration, anti-terrorism enforcement, and surveillance. A 2009 study by Professor Deborah J. Schildkraut at Tufts University provides some insights into who is more likely to support ethnic profiling of Arabs and Arab Americans post-9/11. Her study makes the following conclusion:
"This study examines support for ethnic profiling in the United States as a counterterrorism tactic. It first compares support for counterterrorism profiling with support for profiling Black motorists. Then, it investigates whether the status of the profilee as a U.S. citizen of Arab or Middle Eastern appearance or as an immigrant alters either support for profiling or the determinants of that support. In both sets of analyses, the study investigates how competing ideas about the meaning of American identity shape opinions about profiling. Particular attention is paid to liberalism’s emphasis on the rights of citizenship and ethnoculturalism’s emphasis on the ascriptive boundaries of American identity.
The results show that support for counterterrorism profiling is higher than support for profiling Black motorists, that people are more supportive of profiling immigrants than they are of profiling U.S. citizens, and that how people define what it means to be American is a powerful predictor of such support. The perspective promoted by the increasing number of radical activists on issues related to immigration—that being American means being a White European Christian—is the most powerful predictor of support for profiling. A liberal understanding of being American can offset some, but not all, of that support."
Her article The Dynamics of Public Opinion on Ethnic Profiling After 9/11: Results From a Survey Experiment is available here.
Friday, July 28, 2017
When the BBC published the salaries of its highest paid actors and presenters, female employees were shocked to learn they were systematically paid less than their male colleagues. Nearly fifty years after equal pay acts were passed in the UK and the US, gender pay disparities remain entrenched.
In my research, I compare civil and human rights in Middle East nations with the United States and other Western self-described "liberal societies". A common flaw in the comparative literature is the Orientalist depictions of Middle East societies as illiberal and oppressive, particularly in the ways they treat women.
Western governments and their citizens frequently assume Arab and Muslim women are unique in facing gender discrimination. But pay inequality in the US and Europe is a troubling reminder that Western liberalism has also failed women.
Let's look at some Western nations who proclaim their liberal values in comparison to countries in the Eastern and Southern hemispheres. In 2015, a female employee in the US was paid on average 80 cents for every one dollar earned by her similarly situated male colleague. In the UK, a woman is paid only 86 percent of her similarly situated male coworkers' salaries. In France, women earn 15 to 20 percent less than their male coworkers.
Recent high-profile cases remind us that, despite advancements in gender equality in education, pay disparities remain tenaciously entrenched. Despite spending $150 million in diversity efforts, Google was ordered to release its pay records to the US Department of Labor because a preliminary investigation found the giant tech company was systemically discriminating against women in pay.
In the United Kingdom, the BBC pay records revealed large differences in pay between male and female journalists. In learning they were paid less than their male colleagues for the same work, forty-two women journalists issued a letter calling out the BBC for commenting that they would "'sort' the gender pay gap by 2020".
"The BBC has known about the pay disparity for years," they wrote. "We all want to go on the record to call upon you to act now."
These news reports do not reveal any surprises. Pay inequality between women and men in the West has been well documented for decades.
To read the full article published in The New Arab, click here
Thursday, July 27, 2017
One is a blonde, blue-eyed Australian woman fatally shot down weeks before her wedding. The other is an African American man from Chicago known for pursing musical success and underage girls with equal enthusiasm.
At first blush, it might seem that the two have little in common. However, each news story proves that race and gender distort our view of who should be considered “innocent” in our society.
Justine Damond called the police because she thought she heard a woman being attacked near her home. When the police arrived, Ms. Damond, unarmed and wearing pajamas, was shot and killed. Robert Bennett, the attorney for Ms. Damond’s family, told the Minneapolis Star-Tribune that Ms. Damond was “the most innocent victim” of police brutality shooting he had ever seen.
I do not object to Mr. Bennett’s statement. By all accounts, Ms. Damond was innocent. However, I do object to the fact that Black victims of violence are almost never referred to as innocent.
When a Black person is killed, the victim’s transgressions – whether serious or trivial – are laid bare for all to see. People reach for these facts as if to say, “Aha! This guy was a thug! It’s a good thing the police got him!” The sad part is that it doesn’t take much to reach this point because, in America, there is a constant presumption against Black innocence.
Robert Kelly’s transgressions against young women began with his marriage to 15-year-old singer Aaliyah in 1994. After tapes surfaced showing him violating a young girl, he was charged with child pornography and later acquitted. Last week, allegations surfaced that Kelly had been holding young women in a cult-like environment.
Despite decades of allegations against Kelly, last week, many Black men rushed to defend him. “What kind of girl goes to a singer’s room at night?” “He’s no worse than Hugh Hefner!” “She was young, but she knew what she was doing!”
As I listened to these feeble defenses, I could only think of how they were subtle (and not so subtle) ways of not only defending the perpetrator, but blaming the victim. But the reaction was not entirely surprising because in America, when a woman is raped, she is rarely considered innocent. Indeed, in this country, a woman’s morality is judged by her sexual past.
The Common Thread
The Justine Damond story illustrates society’s reluctance to view Black people as innocent. R. Kelly’s story demonstrates society’s failure to view women as innocent. Sadly, when these beliefs combine, Black women are the least likely to be considered innocent, especially when the crime is rape and the perpetrator is a Black man.
Black men forcefully object when police victims are demonized – particularly Black males. Nevertheless, these same Black men vilify Black women that accuse Black men of rape. Ironically, the attacks they thrown at these women are identical to those aimed at the victims of police brutality. Saying, “He shouldn’t have worn that hoodie,” is the same as saying “She shouldn’t have been wearing that skirt.” Saying, “He should have listened to the officer,” is no different than saying, “She should’ve known what she was getting into.” Dredging up the criminal record of a male police brutality victim is degrading and unnecessary, but discussing a rape victim’s sexual history is equally so.
These dismissive Black male attitudes are particularly problematic because Black women are more likely to experience rape than white women, Asian women, or Latinas. Sadly, these macho attitudes likely explain why for every sixteen Black women that are raped, only one will report her attack.
When Black men fail to see sexism, Black women are left without one of our most important allies. Therefore, when Black women suffer sexual violence, we suffer alone. Because we suffer alone, we do not get the support and respect that we need and deserve.
Obviously, not all Black men defend those that harm Black women. I am heartened by the number of Black men who have denounced R. Kelly, Bill Cosby, and other men accused of crimes against Black women. But the thousands of holdouts prevent real progress on this issue. I encourage the Black men who have been challenging their brothers to keep the conversation going because it is an important first step.
Black women carry the weight of racism and sexism. It would be wonderful if Black men helped to alleviate our burdens rather than adding to them.
Thursday, July 20, 2017
Caption: Elizabeth Eckford braves a crowd to enter Little Rock Central High. Source: NPR.
Last week, the Pew Research Center released survey results wherein a majority of Republicans polled – 58 percent – indicated that colleges and universities have a negative effect on our nation.
In 2017, college – the place where people literally go to learn things – is a bad thing in the Republican mind. Since 86 percent of Republicans are white, apparently, a solid number of white folks do not value higher education.
This survey provides further proof that the “acting white” theory promoted by Black and white conservatives should be forever discredited and abandoned.
For the uninformed, the “acting white” theory operates as follows: Low-achieving Black youth taunt their more academically gifted peers by accusing them of “acting white.” As a result, the intelligent youth fail to achieve academic success.
If this sounds suspicious to you, it should. The theory has never been proven in any meaningful way. (See Dr. Ivory Toldson’s epic takedown of the theory here.) Yet, the myth of “acting white” endures.
The persistence of this myth is problematic for many reasons, but I’ll focus on three.
First, the “acting white” myth perpetuates a most insidious form of white supremacy. In this myth, white folks are uniformly good, smart, and hard-working – so much so that Black folks envy their superior intellect and industriousness. This knowledge motivates the jealous Black children to tear down their smart peers for “acting white” because, after all, the children know that to be Black is to be ignorant.
So, whenever someone deploys the “acting white” theory, what they are really saying – implicitly or explicitly - is that if Black kids embrace whiteness and its positive attributes, they will succeed. Conversely, their Blackness – and the laziness, stupidity, and inferiority that comes with it – must be avoided or discarded altogether.
Although it goes without saying, I’ll say it: These assumptions are incredibly racist. White people do not have a monopoly on intelligence or hard work. Any theory that is so deeply rooted in false assumptions about white superiority must be rejected.
Second, the “acting white” theory is not rooted in facts.
Contrary to what “acting white” advocates say, Black youth have positive attitudes about education. In his analysis of data on student attitudes, Dr. Toldson found that Black males were the most likely to consider high-achieving students “cool.” Moreover, 95 percent of Black girls said that they would be proud to tell their friends about their academic achievements – the highest percentage of any group. Black girls were the least likely to avoid telling friends about academic triumphs; white males were the most likely to do so. Finally, Black females were twice as likely as white males to report that their friends would support their choice to study even if it meant delaying plans to have fun.
Black people are not anti-intellectual. Black people are more likely to read than whites. Compared to whites, Black parents are twice as likely to believe that college is extremely important for their children’s futures. The number of Black and Latino students earning bachelors, masters, and doctoral degrees has been steadily increasing for the past forty years.
Clearly, the data paint a far different picture than that put forward by the “acting white” mythologists.
Finally, “acting white” theory diverts our attention from the real cause of Black students’ academic woes – racism. “Acting white” didn’t keep children of color in segregated classrooms until 1954. “Acting white” didn’t make white folks fight bussing in the North or close public schools in the South. “Acting white” didn’t create racially exclusive private schools as alternatives to integrated public schools. “Acting white” didn’t make Republican politicians cut public school funding to the bone. “Acting white” didn’t cause the poverty that creates the problems that students bring into the classroom.
The “Acting white” myth, like a good NBA point guard, misdirects our attention while the real target – racism - remains untouched.
Black youth don’t need to change their attitudes toward education – but society does. When asked about barriers to attending college, Black students did not cite a fear of “acting white,” but did indicate financial concerns. Rather than blaming Black children for failing to escape a system rigged against them, we would do better to change the system. We need a structure that provides meaningful and affordable educational opportunities for all children. Until that system is in place, I encourage conservatives to stop fabricating myths that keep us from solving the very real problems caused by racism.
Wednesday, July 19, 2017
The experiences of Asian Americans in the legal world are gaining attention—a long overdue development. This week, Yale Law School published a comprehensive report entitled “A Portrait of Asian Americans in the Law.” The report covers a variety of issues—Asian Americans’ experiences in law schools, clerkships, law firms, government, judgeships, and legal academia, along with the various obstacles that we face. Shortly after the Yale report was released, the Washington Post published an article on this topic, drawing from the report.
Just last month, the Law School Survey of Student Engagement (LSSSE) also published a report focusing on the experiences of Asian and Asian American law students—especially diversity among these students. I was invited by LSSSE Director Aaron Taylor to write the Foreword for this report. LSSSE wanted to address the proper terminology to refer to various Asian American groups, and my Foreword discussed that issue. Drawing from my discussion with Aaron, I noted that racial terminology is inherently problematic, but that it is necessary to discuss race, and that we have to accept imperfect solutions. Nevertheless, I do believe that discussing the nuances of this terminology can help rebut stereotypes of Asian Americans and help us understand distinctions within the group.
The Yale report notes that it “use[s] the term ‘Asian American’ and ‘Asian’ in accordance with their usage by cited sources” … but also acknowledges that the terms are not necessarily interchangeable[.]” I was glad to see the report highlight this tension. Many sources use the terms interchangeably to reduce word counts and avoid repetition. In one sense, that is understandable. However, it has long given me pause that people view the terms as synonymous: they often drop the “American” and refer to Asian Americans as just “Asians”—without critical reflection. The “American” part is really important to many of us. Throughout our history, Asian Americans have been viewed as perpetual foreigners who can never be “real Americans.” Simply calling us “Asian” only reinforces that stereotype and erases a core aspect of our identities. Moreover, lumping different groups together under the rubric of “Asian”—a term that includes 4.5 billion people—obscures far too many differences.
The Yale report also notes that “the term ‘Asian’ may include foreign nationals[.]” The implication then is that the term “Asian American” may not include such foreign nationals. My personal view is that anyone who is living in America is “American” regardless of citizenship, nationality, or intent to remain. I hold this view even more strongly in the context of the Trump administration’s attacks on immigrants.
Additionally, some people prefer the term “Asian Pacific American” so that Pacific Islanders are included. Others think that Pacific Islanders should be identified separately from Asian Americans. The U.S. Census Bureau takes this latter position: its racial categories include “Asian” and “Native Hawaiian or Other Pacific Islander.” And within Asian American circles, there are distinctions made between South Asian Americans (those descended from the Indian subcontinent), East Asian Americans (those of Chinese, Japanese, and Korean descent), and Southeast Asian Americans (those from Vietnam, Laos, Cambodia, etc.).
These distinctions are especially confusing to people outside of our communities. Often, when I present my research on South Asian American racial ambiguity to academic audiences, a fellow scholar who is not Asian American will come up to me afterwards to talk about my presentation. Although I used the term “South Asian American” dozens of time during the presentation, the person will say something like “your work on Southeast Asians is really interesting”—despite the fact that I did not use the term “Southeast Asian” at all. Of course, I realize that this is a perfectly innocent mistake, but it does reflect a general lack of familiarity with Asian Americans, even among some scholars who are interested in race.
I hope those who are unfamiliar with Asian American identities will take the time to learn about these basic distinctions; and also about the salient issues which affect all Asian American communities. Discourse on race is such a balance between such commonalities and distinctions, and Asian Americans are no different. I encourage everyone to read the Yale and LSSSE reports and the Washington Post article … and also my articles.
Acknowledgement: Thank you to my colleague Shakira Pleasant for her helpful feedback on drafts of this post.