Monday, January 16, 2017

A Colorable Claim of Discrimination (by Professor Vinay Harpalani)

On December 22, 2016, the New York Court of Appeals issued a landmark civil rights ruling.  In People v. Bridgeforth, the Court of Appeals held that skin color discrimination is cognizable for Batson challenges to juror exclusion.  Defendant Bridgeforth, who is a dark-skinned African American, was convicted of robbery at trial.  The prosecutor had employed peremptory strikes to exclude a number of dark-skinned women from his jury pool.  One of these prospective jurors was South Asian American, and the prosecutor did not offer any explanation for striking her.

It was the exclusion of this juror that was the basis of the appeal in Bridgeforth.  What made the case unique was that Bridgeforth did not argue that the South Asian American woman was stricken because of her race.  Rather, he contended that she was excluded as part of a group of dark-skinned jurors.  Thus, while race and color are usually considered together, with race taking the primary role, Bridgeforth’s theory of discrimination separated the two and focused directly on skin color.

Mr. Bridgeforth was represented by Tammy Linn of Appellate Advocates Inc.  The Fred T. Korematsu Center for Law and Equality filed an amicus brief in support of Mr. Bridgeforth, assisted by pro bono counsel from Akin Gump Strauss Hauer & Feld.  Thirty-two individual law professors joined the brief, as did the Society of American Law Teachers (SALT).  Additionally, 20 civil rights organizations joined, including NAACP Legal Defense & Education Fund, Inc. and Anti-Defamation League (ADL).  Among these organizations were many Asian and South Asian American bar associations—who recognized that Bridgeforth was important not only for addressing skin color discrimination broadly, but also for confronting discrimination against South Asian Americans. 

The trial and intermediate appeals courts in New York both upheld the prosecutor’s peremptory strike.  However, the Court of Appeals reversed unanimously and ordered a new trial for Mr. Bridgeforth.  Six of the seven judges held that skin color is a cognizable category under Batson v. Kentucky (1986).  The majority opinion cited various social science studies and law review articles to show that skin color discrimination is a prominent phenomenon in the U.S.  Moreover, the majority noted that New York’s Constitution and civil rights laws cover discrimination based on color.  Many sections of the Civil Rights Act of 1964 contain language about color, with most actual cases brought under Title VII’s prohibition of discrimination in employment.  Skin color discrimination has also been recognized under the Fair Housing Act. 

Additionally, the U.S. Constitution provides grounds for addressing discrimination based on color.  The Fifteenth Amendment explicitly states that the right “to vote shall not be denied or abridged … on account of race, color, or previous condition of servitude.”  The Civil Rights Act of 1866, upon which the Fourteenth Amendment was based, included language precluding color discrimination.  In the late 19th century, several U.S. Supreme Court opinions involving the Fourteenth Amendment noted that African Americans faced discrimination based on “race” and “color”—sometimes demarcating them separately.  During the 20th century, however, Supreme Court opinions in major cases began using only the language of “race”—and the Court has never held that “race” and “color” are separate for equal protection purposes. 

Nevertheless, in Bridgeforth, for the first time, a court ruled that the Equal Protection Clause applies specifically to color discrimination—at least in the context of Batson challenges.  The case is binding only in New York, but it does open the door for wider acknowledgment of skin color biases.  The Court of Appeals correctly recognized that while colorism is often subsumed under racism, it can also be an independent phenomenon that the law should address directly.

Vinay Harpalani is Associate Professor of Law at Savannah Law School, where he teaches constitutional law, civil procedure, and employment discrimination.  He served as of counsel on the Korematsu Center’s amicus brief.

January 16, 2017 | Permalink | Comments (0)

Wednesday, January 11, 2017

EEOC Seeks Public Input on Proposed Enforcement Guidance on Harassment in the Workplace

In light of the increasingly polarized partisan political climate and apparent balkanization of American society along racial and ethnic lines, below is an important opportunity for members of the public to ensure these troubling trends do not infect our workplaces.   
 
EEOC SEEKS PUBLIC INPUT ON PROPOSED ENFORCEMENT GUIDANCE ON HARASSMENT
 
WASHINGTON – The U.S. Equal Employment Opportunity Commission (EEOC) announced today that it has voted to release for public input a proposed enforcement guidance addressing unlawful harassment under the federal employment discrimination laws. The proposed Enforcement Guidance on Unlawful Harassment is available for input until February 9, 2017 at https://www.regulations.gov/docket?D=EEOC-2016-0009.
 
This proposed guidance, which is the product of extensive research, analysis, and deliberation, explains the legal standards applicable to harassment claims under federal employment discrimination laws. The laws enforced by EEOC protect individuals from harassment based on race, color, religion, sex, national origin, disability, age, or genetic information.
 
Between fiscal years 2012 and 2015, the percentage of private sector charges that included an allegation of harassment increased from slightly more than one-quarter of all charges annually to over 30% of all charges. In fiscal year 2015, EEOC received 27,893 private sector charges that included an allegation of harassment, accounting for more than 31% of charges filed that year. In the same year, federal employees filed 6,741 complaints alleging harassment – approximately 44% of complaints filed by federal employees that year.
 
“Harassment remains a serious workplace problem that is the concern of all Americans. It is important for employers to understand the actions they can take today to prevent and address harassment in their workplaces,” said Chair Jenny R. Yang. “The Commission looks forward to hearing public input on the proposed enforcement guidance.”
 
Preventing systemic harassment has been one of EEOC’s national enforcement priorities since 2013. The Commission reaffirmed this priority in its Strategic Enforcement Plan for 2017-2021.  At a public meeting in January 2015, the Commission established a Select Task Force on the Study of Harassment in the Workplace to analyze workplace harassment and identify innovative and creative prevention strategies. Chaired by Commissioners Chai R. Feldblum and Victoria A. Lipnic and comprised of academic experts, legal practitioners from the plaintiff and defense sides, employers, employee advocacy groups, and organized labor, the Select Task Force met 10 times between April 2015 and June 2016 to hear and consider testimony and public comments. At a June 2016 public meeting, Commissioners Feldblum and Lipnic presented their Report of the Co-Chairs of the Select Task Force on Harassment in the Workplace  (“Harassment Prevention Report”) with findings and recommendations about harassment prevention strategies.
 
“I am pleased that we are able to follow up on the recommendations in our Harassment Prevention Report with this release of the draft enforcement guidance on unlawful harassment,” said Feldblum.  “This guidance clearly sets forth the Commission’s positions on harassment law, provides helpful explanatory examples, and provides promising practices based on the recommendations in the report.  I believe it will be a helpful resource for employers and employees alike, and I look forward to receiving comments from the public.”
 
 “As we learned from the Harassment Prevention Report this past year, 30 years after the U.S. Supreme Court laid down the law in this area, harassment charges and cases remain a far too dominant part of the work of the Commission,” said Lipnic. “I am pleased the Commission is offering an updated version of its positions on the important legal issues on this topic and look forward to the public input.”
 
The public is invited to submit input about the proposed Enforcement Guidance on Unlawful Harassment via www.regulations.gov. Alternatively, members of the public may send written feedback to: Public Input, EEOC, Executive Officer, 131 M Street, N.E., Washington, D.C. 20507.  Please provide input in narrative form and do not submit redlined versions of the guidance document. Input will be posted publicly on www.regulations.gov, so please do not include personal information that you do not want made public, such as your home address or telephone number. The deadline for submission of public input is February 9, 2017.
 
After reviewing the public input, the Commission will consider appropriate revisions to the proposed guidance before finalizing it.
 
EEOC advances opportunity in the workplace by enforcing federal laws prohibiting employment discrimination. More information is available at www.eeoc.gov.  Stay connected with the latest EEOC news by subscribing to our email updates.
 

 

January 11, 2017 | Permalink | Comments (0)

Thursday, December 29, 2016

Postcard from Egypt During Christmas 2016

After a divisive presidential election year with the purported threat of terrorism from the Middle East dominating the news cycle, spending Christmas in Egypt was refreshing. Completely contradicting the xenophobic stereotypes of Arabs as violent and religiously intolerant, I leisurely walked with Egyptians along the boardwalk of the tranquil Red Sea decorated with Christmas trees and holiday lights. Meanwhile, in the hotels and open-air cafes, middle and upper class Egyptian Christians and Muslims friends dined and socialized together during the holiday weekend.   It was a refreshing reality, far removed from the vitriol of Islamophobia, racism, and xenophobia that infects American post-election discourse.

My Christmas visit to Egypt brings to light the reality that what we read in the media about the Middle East is so narrowly focused on violence – real, exaggerated, or imagined – that it is no surprise that Americans are easily manipulated by the politics of fear. We expect all Middle Eastern countries to look like ISIS-controlled territory. We are indoctrinated to believe that we must fight “them” because they want to kill “us.” We are tricked into consenting to spending billions of dollars on military endeavors that have little to do with our public safety and a lot to do with propping up dictators; we do not question our politicians’ false claims of a clash of civilizations between East and West, between Muslim and Christian.

Yes, there is real violence in Syria, Yemen, and part of Iraq where proxy wars are destroying societies. But the day-to-day activities of the other hundreds of millions of people who live in the Middle East does not consist of actively resisting Western democracy or sympathizing with terrorist organizations on social media sites. Most people spend their time thinking about how to make ends meet in stalled economies. As inflation slices salaries in half, more than sixty percent of their income is spent on buying food. They fret over how they will pay the private school fees for their children because the public school system is reputed to graduate students who can barely read. They worry for their sons who cannot get married because they cannot afford to move out of the family home. For the lucky few who can afford a holiday at Egypt’s beautiful Red Sea, they spend quality time with their families away from the stress of urban life in Cairo and Alexandria.

What Middle Easterners are not doing is conspiring to kill Americans or plotting how to join terrorist groups. The over 90 million people in Egypt have other more important things to think about than appeasing Americans and Europeans’ Orientalist racial tropes of the Muslim terrorist. They are looking to work, expand their businesses, and improve their family’s lot in society. And when their authoritarian regimes (most of whom are supported by Western governments) attempt to distract them with conspiracy theories of American plots to destroy the economy – they are not taking the bait. Having suffered from decades of poor governance, they know all too well that these are common ploys deployed to shirk responsibility.

So as our leaders distract us with foreign boogeymen to blame for American politicians’ failures in governance and economic policies, we should learn from our counterparts in the Middle East. Like us, Muslim and Christian Arabs want jobs, decent wages, good infrastructure, and government accountability. Sharing our contempt for terrorism, they view the tiny minority of terrorists in the Middle East as obstacles to their aspirations for personal and societal prosperity.

As global citizens with the same fundamental human aspirations, I hope we in the West will recognize the recent anti-Muslim and xenophobic discourse for what it is – a tool of political manipulation used to persuade Americans to be complicit in the same policies and violence that led us all to this point.

As I write this postcard during Christmas in Egypt, I am inspired by Egyptians’ resilience and tenacity despite challenging economic times and a failed revolution.   I will follow their example to remain optimistic for 2017 as I return to a polarized America split apart by a historically divisive presidential election.

December 29, 2016 | Permalink | Comments (0)

Monday, December 12, 2016

CFP: Innocence Network Conference 2017

Call for Papers Innocence Network Conference:

The Innocence Scholarship Committee of the Innocence Network is seeking high quality social science and legal scholarship for presentation at the 2017 Innocence Network Conference in San Diego, California on March 24-25 (http://www.innocencenetwork.org/conference). 

Areas of research are open but should touch upon the multifaceted causes, implications, and/or remedies of wrongful conviction. International papers are welcome but must be submitted in English. Please submit a title and paper proposal to the Innocence Scholarship Committee at this Gmail account: innocencescholarship@gmail.com by February 1, 2017. Paper proposals must be no more than 200 words. Completed drafts must be submitted to the Committee by March 17, 2017. 

The Innocence Scholarship Committee is actively seeking publication for those papers accepted for Conference presentations in a law review symposium edition. More information about that is forthcoming. 

The Innocence Scholarship Committee is composed of the following Members: Professor Aliza Kaplan, Oregon Innocence Project, Lewis & Clark School of Law, Portland, Oregon; Professor Valena Beety, West Virginia Innocence Project, West Virginia College of Law; Professor Keith Findley, Wisconsin Innocence Project, University of Wisconsin Law School; Professor Stephanie Roberts Hartung, New England Innocence Project, Northeastern Law School; and Associate Clinical Professor Paige Kaneb, Northern California Innocence Project at Santa Clara Law.

December 12, 2016 | Permalink | Comments (0)

Still Recovering, But Not Surprised (Professor Ediberto Roman)

After reading all of the post-presidential election excuses concerning the reasons for the failure of Hillary Clinton to win the White House which virtually all seem to center on the failure of democrats, , to find solutions to the White working class in so many rejoins in the country, see for example https://www.brookings.edu/blog/fixgov/2016/11/16/economic-marginalization-reality-check/ , I remain disappointed with a reality many people of color were reminded of on November 8th.  Donald Trump ran and won because of the power of hate, bigotry, and White Supremacy.

As a reasonable thinking person of color that was mortified by the weekly disqualifying statements by Trump, aimed at virtually every vulnerable minority group in this country: i.e., the physically disabled, Arabs, Muslims, Latinos, African-Americans, and women, just to name a few, I sincerely believed reasonably-thinking people would come out in huge numbers to reject bias. I thus volunteered hundreds of hours on the Clinton Campaign, doing everything from poll watching, to phone banks to writing op-eds both in English and Spanish. My sense was that Democrats, and People of Color in particular were motivated to reject the hateful rhetoric stemming from the other side. Indeed, I perhaps foolishly, like so many other pundits, predicted in both English and Spanish the Latino electorate would come out in massive numbers to reject bias and bigotry. See for example, http://www.huffingtonpost.com/ediberto-roman/our-moment-nuestro-moment_b_12769670.html and http://www.univision.com/noticias/opinion/ahora-es-nuestro-momento-latino-para-proclamar-en-voz-alta-con-nuestros-votos-ya-basta 

Like millions of others, and virtually every news account and prognosticator in the country, I was dead wrong on the election results and what actually was reasonable thinking in our times. What the days since have reminded me was the place, People of Color in general and Latinas and Latinos specifically, we currently hold in this society. Many of us were lulled into thinking our world had changed, perhaps in part due to the two-term election of Barak Obama as our President. We believed our world and country had progressed and would act rationally to reject the cornerstone of the Trump campaign—rhetoric centered on White Nationalism. What our collective Psyche failed to appreciate was that the White majority in fact acted rationally—they came out like locust to reject the inclusiveness of the progressive agenda of Obama, the Democrats, and other left of center groups throughout the land. Through the annals of time, leaders from Gloria Steinem, Malcolm X, Cesar Chavez to Harriet Tubman have noted that both freedom and power is not given up freely, it has to be fought for and taken.

On November 7, 2016, the vestiges of self-interest, hegemony (perhaps explaining why so many White women were okay with such an embarrassing misogynist candidate, and how 18% of Latinas and Latinos were okay with the unprecedented hateful and demeaning words directed at them and their brothers and sisters) showed its strength to reclaim “their America.”

For the rest of us, I have a response, perhaps to give us a moment of optimism as we prepare to face challenging days ahead: to use the vernacular of my old inner city New York neighborhood: “no worries, I got you.” You see, I, along with all reasonably thinking progressive people, know the era of successful institutional bias is in the midst of ladder chapters of the annals of U.S. history. You see, the demographics of our populous and in fact the power of education is not with them.  We know an ill-equipped egomaniac unqualified candidate running on his nauseating ego and the interim power of hate will not succeed. Yes, he will be the president, but his self-interest, vanity, and shameful arrogance will hurt millions. We, however, will still be present ready to stand up for the voiceless and be “presente,” using that old Caribbean sentiment to be counted upon to ensure our narrative of inclusion, love, and reasonable thinking will be this country’s lasting legacy after the failure of hate.

by Ediberto Roman, Professor of Law, Florida International University School of Law

-- This is the final blog in the online symposium hosted by the Race and the Law Profs Blog examining the implications of a Trump administration on women, racial, religious, and ethnic minorities, immigrants, LGBTQ communities, disabled persons, and other historically subordinated groups.  Other blogs can be viewed here

Thank you to our contributors and readers.

December 12, 2016 | Permalink | Comments (0)

Sunday, December 11, 2016

Call for Papers: Examining the Post-Obama Era (SESW People of Color Conference)

Change We Can Believe In? Examining the Post-Obama Era
2017 SESW People of Color Conference
Call for Proposals
March 16th-18th, 2017
Charlotte School of Law
Charlotte, North Carolina
Please submit Proposals by December 15, 2016
The Planning Committee for the 2017 SESW People of Color Conference invites you to submit proposals for discussion  and works-in-progress at the conference, which will take place from Thursday evening, March 16th through Saturday, March 18th at the Charlotte School of Law in Charlotte, North Carolina.
 
We welcome proposals for concurrent sessions, plenaries, workshops, and works-in-progress devoted to our theme. At recent conferences, concurrent sessions have run for about 60-90 minutes. We welcome ideas for shorter formats, flash or lightening talks. We expect to offer sessions of varying lengths intermingled with plenary discussion and opportunities for free-form discussion and networking.
 
In January 2009, the world witnessed the inauguration of Barack Obama as the first black president of the United States, following his hard-fought campaign promising “Change We Can Believe In.”  As the sun begins to set on this historical presidency we will consider the legacy he leaves and the significance of his administration on the future for people of color.
Particularly, we will look back and explore some of the hallmarks during President Obama’s term, including progress that was made and setbacks that occurred.  Primarily, we will examine how race relations were impacted as a result of his presidency. We have seen a significant rise in the number of acts of violence born out of bias and racism. Is this the result of having a black president or despite having one?
What did the impact of our country’s first African American President have on immigration policies, health care reform, economic concerns? What bearing did his term have on Congress’s ability to function in a cohesive manner? Were sound policies subverted due to some prejudices or were policies implemented despite this? Most importantly, how did President Obama impact public perception of what equality is and what it requires?
As we face a Trump presidency, we must explore the question of whether he is, as some believe, the answer to the public’s consternation with the current regime, or will he inhibit the progress made during President Obama’s term? Have we seen a rise in far left views and platforms such as those expressed in the Sanders campaign as a result of having President Obama in office? We will explore some of these questions as we continue our dialogue on the struggle for equality and how this struggle will be impacted with the new presidential regime.
We already have three approved panels in the areas of:
 
1.      Title IX: Impact on Sex discrimination and Transgender issues.
2.      The Education Dilemma Post-Obama
3.      Voter Identification and Suppression
 
Please let us know if you would like to join one of the established panels.
 
A suggested list of topics include:
·         Politics
·         Immigration Reform
·         Estate Planning
·         Economics
·         Artists Rights
·         Housing/Real Estate
·         Education
·         New opportunities/limitations for Millennials with first African American President 
·         Obama Care
·         Criminal Procedure/Police Conduct
 
Other topics related to our theme are welcome.
 
Please submit your proposals for panels to Mindy Sanchez at msanchez@charlottelaw.edu and Kellyn McGee at kmcgee@savannahlawschool.org with the subject line, 2017 SESW Conference Proposal.  Works-in-Progress should be directed to Professors Stephanie Ledesma and Lydia Johnson at ssledesma@tsu.edu and lydjohnson@tmslaw.tsu.edu.  Proposals should include presenter or author’s name, title of paper or presentation, institutional affiliation, and an abstract of no more than 250 words.
Please submit your proposal by December 15, 2016. Scholars whose submissions are selected for the conference will be notified no later than January 15, 2017.  We encourage early submissions as there are limited spots available.
For any other questions about the conference, please feel free to email me, SESWPOCC 2017 Conference Chair, at cmatthews@charlottelaw.edu.

 

December 11, 2016 | Permalink | Comments (0)

Monday, December 5, 2016

Backlash in the Name of Inequality (Professor David Troutt)

The presidential election that was too vulgar for us to write about, with accusations too inarticulate to describe policies, and an intimidating atmosphere of racist, nativist and sexist extremism inflaming every imaginable social division, finally received the emotional outcome it created. Donald Trump beat Hillary Clinton in a historic upset destined to be known as the ultimate political demand for change.  For those dedicated to working against structural inequality, this may be the transformative change we never imagined.  The U.S. will now be run by a Republican president, Congress and a conservative Supreme Court majority.

Cut through the sum of post-mortem line drawing—the country’s coasts, the educational attainment of its voters, where they fit on the metropolitan grid, their race, gender and citizenship status—and we see the power of inequality, upside down. 

The angriest, most betrayed and forgotten constituency was not comprised of the African American, Latino and immigrant communities targeted by institutional discrimination and the continuing effects of the Great Recession, but working-class and blue-collar whites whose position has slipped under the rapid constraints of globalization.  We have always known the economic instability was blind to color in the United States, especially in the last fifteen years.  However, we had not anticipated the strength of its frustration—both its politically fed up and its racially weaponized forms.  Trump’s policies are not clear.  His symbolism, however, is getting clearer.  The tone—which is what we will all live with until the policies kick in—is zero sum.  This suggests a steep climb, if not a repudiation, of some of the core beliefs underlying CLiME’s work—mutuality, the progressive power of changing demographics and the persuasive weight of factual evidence.  We have some reckoning to do.

Before we do, consider this much that we know objectively about the vote for change from various news sources.  Working-class whites from Rust Belt states overwhelmingly supported Donald Trump, especially men.  Hillary Clinton barely won the woman’s vote; 53% of white women voted for Trump.  In battleground states, many white Democrats also voted for Trump, a lot of whom had voted for Obama.  The expected Latino voter surge occurred, but exit polls showed 29% voted for Trump (the same percentage as Asian voters).  African Americans voted overwhelmingly for Clinton, but failed to vote at 2008 and 2012 levels in key electoral states. Non-college educated whites, especially older voters, remain a significant voting bloc, and they are either angry at or dissatisfied with Washington and desperate for an outsider who will hear their calls for change.  They did not trust Clinton to deliver that.

There’s a lot of uncertainty about the president-elect’s actual policies, but we can begin to make objective sense of the implications this election will have on how and whether we can effectively reduce structural inequality.  Obviously, if Trump’s tax and trade policies can remake the terms of a labor economy restructured over the last forty years or more—that is, if his administration can increase the manufacturing sector everywhere it’s contracted and drive up wages in the service sector—that might stabilize household income and community wealth for a broad, multiracial swath of working-class and lower middle-class people, reducing inequality.  But overturning such tides of globalization may take much more than Republicans will deliver.  And it will not reach the structures of inequality rooted in discrimination.

This much seems clear about inequality and the election:

  1. It was a repudiation of President Obama. Some of this was intended by Trump supporters, some a result of disaffection with Hillary among Democratic voters.  Neither campaign emphasized the growth of the economy or job creation under Obama, nor the first increase in middle-class wages and reduction in poverty rates.  The objective gains of the Obama administration were at risk, and the result will mean many will be dismantled or transformed beyond recognition—Obamacare, executive orders on immigration and climate change and, most critically for CLiME’s work, the federal courts and the Department of Housing and Urban Development.  In an interview, Trump was quoted pledging to rescind the HUD rule on affirmatively furthering fair housing.
  1. Civil rights advocacy will assume a defensive stance again, and strategies for progressive change will probably avoid federal arenas in favor of local ones. Donald Trump has already signaled his contempt for many federal agencies, and his intention to nominate conservative judges from the Supreme Court on down.  Those facts alone counsel against federal strategies to reduce structural inequality.  The risks of bad precedents are already great.  A refocus to states will also be challenging, given conservative control of many statehouses, declining budgets and—as this election reinforced—profoundly stratified state electorates.  Thus, we will be forced to smaller regionalism and larger localism as the footprint for reforming the institutional arrangements that reproduce structural inequalities.  The electorate’s mood—which was roundly misread—may augur little hope for integration strategies.  Remember, widespread economic inequality was expressed in terms more hostile than unified.
  1. Colorblindness, that myth, has been eviscerated again by the reprise of white identity politics. Pundits and journalists roundly admonished the nation for forgetting about the pains and needs of disaffected white people.  The explosion of explicit racism that became the undercurrent of Trump’s campaign to these voters fueled and legitimated not just their status as economically struggling people, but their entitlement to feel angry about it and to project that anger onto others.  Whatever form of white nationalism this took—I hate that you forgot about me or I hate because you forgot about me, the lesson is clear: white votes matter.  This explicit racialization, routinely fanned by conservative media, makes it hard to argue post-racialism with a straight face. 
  1. Misogyny is a force. “On paper” the canyonesque disparities in presidential qualifications between Hillary Clinton and Donald Trump have long been acknowledged by people of good will.  But in context, the Trump campaign’s rhetoric fanned a different fire we were making progress on dousing, which amounts to this: Lots of people, including many, many women, will hold a woman candidate for president to an almost impossible standard of ethical rectitude and trustworthy leadership than a man—even a vulgar, politically non-experienced, intemperate and truth-challenged man like Donald Trump.  Whatever her flaws, the hatred of Hillary Clinton transcended Hilary Clinton.
  1. The post-modern death of shared facts imperils evidence-based change. This election showed the extreme relativism in much of the public’s reading of evidence as fact.  A Fox news “fact” is not an MSNBC “fact.”  An NPR “fact” is the inaudible and irrelevant whisper of elites.  Throw in Facebook, Twitter rants and all of our selective blogs, and “the public” has lost more than a common basis for truth.  We don’t even share the same standards for determining what’s true.  It’s not at all clear how we will soon coalesce behind a common faith in fact-telling.  If you cannot count on people’s rational capacity to hear your evidence fairly, the ground beneath your arguments is quick sand.

If those are fair observations of what the 2016 election means to ending structural inequality, let me end with some more interpretive thoughts about race, class, gender and the prospects for mutuality.  Mutuality, CLiME friends may recall, is that progressive notion of interdependency first asserted nationally by Dr. Martin Luther King, who proclaimed “We are tied in an inescapable network of mutuality.”  Despite our spatial, racial and economic balkanization, we are wrapped in a common destiny of cause and effect.  What happens to some of us, affects all of us in important ways.  Yet it is the recognition of these social physics that promises a beloved community.

That promise suffered mortal blows last Tuesday.  What we saw was a prime example of worried and wounded Americans expressing their economic alienation in accusatory and divisive ways rather than seeing the commonality of their misfortunes.  The working class, after all, is disproportionately people of color.  Their economic status has been marginal for generations, and they have benefited very little from anything an Obama Administration targeted at them alone.  As CLiME’s work and that of countless researchers have shown, the struggles of people of color to attain stable middle class status have been confounded mainly by two factors: powerful institutional racial and economic discrimination and structural changes in the post-industrial economy, like globalization.  Working-class blacks and Latinos die sooner, make less money, have less wealth, suffer more poverty and unemployment, fear more crime and violence, attend weaker schools and enjoy fewer resources of an abundant nation’s bounty—even in the same places where whites have struggled.  The white working class, on the other hand, has suffered mainly at the hands of only one of these factors—structural changes that lowered wages, displaced manufacturing and favored capital investors. 

What might have been a moment of broad voter recognition of mutual interests in policies that stabilize all families instead devolved quickly, loudly and sometimes violently into an us-versus-them game of non-evidence-based blame.  I am not suggesting that all Trump voters express the invective aimed at Mexican and Muslim immigrants, the demeaning of blacks, the tacit KKK support and the open “Trump that Bitch” misogyny.  I am saying that they accepted it as part of their vote and have now frustrated the chance to stop it.  It is an indelible part of who and what won last Tuesday, separating us farther from each other than actual facts about social standing and economic vulnerability would indicate.  This is the toxic palliative of inequality, an addictive opioid of fleeting pleasure that separates the desperate interests of people with common concerns, a fix with no easy cure.

This blow to mutuality relied on a powerfully familiar and divisive trope: a hierarchy of vulnerability, entitled on the one hand and discredited on the other, “givers and takers.”  In this frame, white economic alienation is the entitled kind, something we had all better fear and placate, to “take back” from the outsiders inflicting that vulnerability as of right.  That view of vulnerability risks, like the Southern Strategy of Nixon’s era or the Reagan Democrats of the 1980s, being racialized, privileged and institutionalized by the new president, Republican Congress and the federal judiciary.  The minority objects of conservative scorn—whose statistical deficits, rather than supposed gains, remain the canary in the country’s coalmine—are discredited (again), their shared pain and unstable futures deemed something Other, stuck in stereoptyped incompetence and self-victimhood that is not in the national interest to solve right now.  They voted for Hillary.  They had their chance under Obama.

This is fundamentally the wrong premise for a nation tired of inequality.  More than ever, we still need each other’s success.  We still pay the costs of each other’s failures.  The hope had been that we would continue to find new ways not only to show this in our research and advocacy, but to demonstrate effective ways to use policies of mutuality in our common interest. 

Everyone should have the resources to reach their potential.  Everyone should be able to live in decency and with respect.  Everyone of us should have a life and a voice that matters to those who govern and distribute our nation’s immense wealth.  Continue to hope.  It is still in us to change for the better.  But we will have work even harder.  There is no other way.  Keep hope alive.

(this article was originally published with the Center for Law in Metropolitan Equality (CLiME))

by David D. Troutt, Professor and Justice John J. Francis Scholar, Rutgers School of Law

-- --This blog is part of an online symposium hosted by the Race and the Law Profs Blog examining the implications of a Trump administration on women, racial, religious, and ethnic minorities, immigrants, LGBTQ communities, disabled persons, and other historically subordinated groups.

 

December 5, 2016 | Permalink | Comments (0)

Friday, December 2, 2016

Trump’s Double Assault on Women of Color (Dr. Deirdre M. Bowen and Dylan Johnson)

Donald Trump’s reality TV-style campaign ushered in permission to “see” and confront race again. As bad as the “post-race” claims were with the election of Obama, the new era of confrontational identity politics will be far worse—and particularly for women of color. Women of color face an ever-increasing threat of overt racism in their daily lives with the onset of a Klu Klux Klan endorsed president-elect and the cultural shift his campaign laid bare. But the ramifications of the policies he promises to enact will create far-reaching damage to the health and safety of women of color. Indeed, the fear Trump created for women of color is evident in the way that they voted. Only 6% for him.

Trump’s cultural revolution dismantled the last shreds of civil discourse to be sure. It has also emboldened a certain segment of the population. It is the segment that never engaged in subconscious or implicit bias, but rather sequestered its overt racism to the back rooms where like-minded individuals gathered. Now, Trump’s rhetoric creates a license to bring this racism to the forefront of American life. Reports of hate crimes increased significantly after the election, according to the Southern Poverty Law Center.

But what about sexual assault? Where is the data tracking the increases in sexual assault? You will not see it. You will not see this data because when the president-elect openly brags about assaulting women, and in turn, others normalize his speech as “locker room talk,” it has a chilling effect. Reporting a sexual assault of one’s body has always been fraught. The cost of reporting such crimes includes the currency of blame and judgment. And this currency gets traded generously on the stereotypes of women of color. Women of color are much more likely to internalize these stereotypes of promiscuity and blame themselves. Whites, too, are much more likely to blame the victim when the victim is a minority woman. Never mind that minority women are already disproportionately attacked and experience police reporting differently from Whites.

By: Deirdre M. Bowen, J.D., Ph. D. (Associate Professor of Law, Seattle University School of Law) and Dylan Johnson

--This blog is part of an online symposium hosted by the Race and the Law Profs Blog examining the implications of a Trump administration on women, racial, religious, and ethnic minorities, immigrants, LGBTQ communities, disabled persons, and other historically subordinated groups. 

The chilling effect, however, becomes an all out freeze effect when one considers the policy message Trump sent with the nomination of Jeff Sessions to head the Department of Justice. Senator Sessions’ remarks could hardly be shrugged off as locker room talk. When asked if the grabbing of women’s genitalia constituted sexual assault, Sessions observed that it was not clear how it could be. Thus, when the nation’s potential lead prosecutor does not view such action as assault, it is difficult to imagine how women, but particularly women of color, would calculate a cost-benefit analysis in which reporting sexual assault would inure a single advantage. It sends an advantageous message to the perpetrator, however. He is likely to get a free pass under this administration. In fact, Fox news reports that college campus groups representing men accused of sexual assault are hopeful that a Trump administration will role back the Obama administration policies on sexual assault prevention and response on college campuses.

One need look no further than the effect of a federal loop hole that does not allow native American tribal courts jurisdiction over non-native criminals. Native American women who live on reservations are two and half times as likely to encounter sexual assault particularly by white men. Why? Because these perpetrators are never prosecuted. With Trump and Sessions in power, a machismo cultural shift has occurred in which men are free to assert themselves over women with impunity. Trump bragged repeatedly of the ways in which he viewed women as objects to be used. And what has become of these woman who came forward? They arrived in time for guest appearances in the reality TV style campaign season only to disappear when the “show” ended. What message does the media send when no follow up on the consequences of Trump’s actions appear forthcoming.

The dehumanization of women certainly did not begin with Trump, but it has taken on new life with his rhetoric and choice of Attorney General. The cultural backlash against women cannot be dismissed as mere “locker room talk.” The consequences are real for women. And the burden will disproportionately be borne by women of color. The question remains whether this backlash is a last gasp of a cohort of men watching their position of power give way to hierarchy inclusive of women and people of color or a retrenchment that promises to survive for generations?

December 2, 2016 | Permalink | Comments (0)

Thursday, December 1, 2016

Combatting "Deeply Intertwined" Discriminatory Harassment in our Schools Post-2016 Elections (Professor Nancy Chi Cantalupo)

In 1970, African-American lesbian feminist civil rights lawyer and Episcopal minister Pauli Murray wrote that “racism and sexism in the United States… are so deeply intertwined in the country’s institutions that the successful outcome of the struggle against racism will depend in large part upon the simultaneous elimination of all discrimination based upon sex.”  Five years earlier, Murray and a co-author advised that “sex discrimination can be better understood if compared with race discrimination and … the similarities of the two problems can be helpful in improving … the legal status of women.”

After a campaign where the now President-Elect poured forth slurs against many underrepresented groups and the press uncovered a recording of him bragging about sexually assaulting women, this wisdom from a great civil rights activist could not be more relevant or prescient.  In the weeks since the election, the flood of reports of harassment and violent threats against individuals in these same groups by self-proclaimed Trump supporters has burst forth across the nation, including on college and university campuses like the University of Pennsylvania, where virtually immediately following the election, all black Freshmen received messages containing racial epithets and a “daily lynching” calendar.  Particularly when combined with other in-person harassment at Penn that week, many students talked about feeling unsafe, sounded traumatized, and are likely experiencing all the disruption to their educations that inevitably occurs as a result of such fear and discrimination.

The Penn incident brings to mind several connections that Reverend Murray would recognize.  At Dartmouth College in 2014, a “rape guide” posted online targeted a first-year woman student who later reported that she was assaulted at the first party she attended after the posting appeared.  Her experience apparently fit a common pattern of such harassment and threats directed at women Dartmouth students via the website.  The next year, a leader of “Feminists United” at University of Mary Washington was murdered by a fellow student after Feminist United members had been repeatedly threatened and harassed over a social media app called Yik Yak.  Even though no one in either case appears to have alleged a direct connection between the violence and the pattern of harassment and violent threats leading up to it, the potential connections undoubtedly helped bring national attention to these cases.

The larger phenomenon that the Dartmouth, UMW, and now Penn cases exemplify provide lessons for all of us to—as Reverend Murray might say—better understand how to improve our campus communities’ responses to discriminatory harassment directed at many vulnerable groups, not only harassment of women.  Many colleges and universities have recently improved their campus sexual harassment and violence prevention systems by, for instance, recognizing how fear and trauma can disrupt students’ educations in a discriminatory way and by adopting trauma-informed practices to minimize that disruption as much as possible.  Those insights should inform campuses’ responses to student victims of all forms of discriminatory harassment, including the Penn students targeted last week. 

In addition, these incidents remind us of how “deeply intertwined” all variations of discriminatory harassment are and why we need to resist efforts to treat some forms of such discrimination more seriously than others.  Since August, over 100 law professors have signed a White Paper supporting steps taken in recent years by the U.S. Department of Education’s Office for Civil Rights that reinforce its commitment to combat disability-based, gender-based, racial and sexual harassment equally strongly.  Post-2016 election, all of us in education must do our part to reach Reverend Murray’s goal: the “simultaneous elimination of all discrimination,” including all discriminatory harassment against students in our schools.

by Nancy Chi Cantalupo, Assistant Professor, Barry School of Law

--This blog is part of an online symposium hosted by the Race and the Law Profs Blog examining the implications of a Trump administration on women, racial, religious, and ethnic minorities, immigrants, LGBTQ communities, disabled persons, and other historically subordinated groups.

December 1, 2016 | Permalink | Comments (0)

Wednesday, November 30, 2016

The Tragedy of Race and Democracy: Relying on Good White People

 

You know those movies where a character goes back in time to the occurrence of some avoidable tragedy earlier in their lives, only now they're invisible, or a ghost, or otherwise incapacitated from interfering, and they're forced to watch helplessly as the same horrible tragedy repeats itself? That's what I'm feeling like in this post-Trump election season. No level of knowledge gained from hindsight and the critical race understanding of systems and institutions of racism is of any use. We just have to sit here and watch. 

Background: the narrative of worthiness. 

What I'm going to describe is not White supremacy or the permanence of racism as those terms are commonly understood. I'm talking about ordinary behavior by ordinary people of all races, and how they produce a racial tragedy. Here's what I mean:

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November 30, 2016 | Permalink | Comments (0)

Call for Submissions: 50 Years of Loving: Seeking Justice Through Love and Relationship

From Prof. Palma Joy Strand, Creighton Law School:

CALL FOR SUBMISSIONS

50 YEARS OF LOVING:

SEEKING JUSTICE THROUGH LOVE AND RELATIONSHIP

Symposium, March 23-24, 2017

Creighton School of Law, Omaha, Nebraska

The Creighton Law Review, Creighton’s 2040 Initiative, and the Werner Institute invite you to contribute to the Law Review’s June 2017 issue and/or to attend the 50 Years of Loving symposium hosted by the 2040 Initiative and the Werner Institute at the Creighton School of Law. The symposium will explore how the 1967 U.S. Supreme Court decision of Loving v. Virginia has influenced U.S society institutionally, demographically, and relationally.

Race in the United States has historically been socially constructed through interlocking cultural narratives, including law, and cultural practice, including institutions. Racism is a social system enacted and perpetuated by the interactions and relationships of individual people. Exploring the disruptive effects of the interracial “mixing” protected by Loving v. Virginia offers an opportunity to deepen understanding of systemic racism and to develop systems-based strategies for continuing the struggle for social justice. At a time when the demographics of the U.S. are shifting away from a white majority, deconstructing systemic racism is an essential project.

Loving v. Virginia, 388 U.S. 1 (1967), ended legal prohibitions against interracial marriage in the U.S. By eliminating of longstanding legal sanctions against “miscegenation,” Loving disrupted the pre-existing social system. Loving rejected racial separation and hierarchy and endorsed relationships across previously uncrossable racial lines. Since Loving, the number of interracial marriages has grown significantly: “Nearly 15 percent, or one in seven, of all new marriages in 2008 were between people of different races or ethnicities.”*

The effects of these marriages extend beyond those who are themselves married. “[M]ore than a third of all adults surveyed reported having a family member whose spouse is of a different race or ethnicity – up from less than a quarter in 2005.”* Since Loving, the proportion of the U.S. population with multiple racial heritages has grown dramatically. Moreover, the children born as a result of Loving also have disrupted the social construction of race itself, with more people self-identifying as of more than one race, biracial, multiracial, or mixed.

The Law Review seeks submissions exploring these issues – to range from reflections (up to 1000 words) and essays (approximately 2500-3000 words) to articles (no more than 7000 words, not including references and footnotes). Draft abstracts of up to one page and queries may be addressed to Research Editor Sean Nakamoto at seannakamoto@creighton.edu no later than January 15, 2017. Final submissions will be March 20, 2017. There will be an opportunity at the symposium for selected authors to discuss their submissions at the 50 Years of Loving symposium at Creighton University in March, 2017.**

Authors are also encouraged to join the moderated online discussion on the effects of the Loving decision on our society hosted by the 2040 Initiative and ADRHub at http://blogs.creighton.edu/creighton2040/50-years-of-loving-moderated-online-discussion. Selected excerpts from this discussion will also be featured in the June 2017 Creighton Law Review edition. Discussion entries should respond to the following question: From the perspective of your academic discipline or professional institution, what are the questions, issues, or tensions that have arisen out of 50 Years of Loving?

___________

*john a. powell, Racing to Justice (2012)

** Contact Amanda Guidero at AmandaGuidero@creighton.edu for more information on the symposium and opportunities to present your work.

November 30, 2016 | Permalink | Comments (0)

Tuesday, November 29, 2016

Trump, the Meme of Voter Fraud, and the Risk to American Democracy

Despite losing the popular election by somewhere over two million votes, Donald Trump won the Electoral College. He is the President-Elect. Those are facts. Yet, in a tweet storm Sunday that was the opposite of presidential, Trump claimed that if one deducts the votes of millions who voted illegally, he did not lose the popular vote. He even went on to announce with no evidence "real voter fraud" in Virginia, New Hampshire, and California.

What Trump has done repeatedly is to use the meme of voter fraud to impugn elections and voters in this country. His rhetoric is Internet trolling at its loudest, but the consequence of this rhetoric may be to once again distort policy, endanger political minorities, and imperil democracy.

In a paper called The Meme of Voter Fraud, I warned against the voter fraud meme. I explained how a meme is a picture, idea, or narrative that replicates and evolves without regard for its truthfulness. Memes empower their believer, and the believers then spread the idea. This repetition takes the appearance of truth but a meme doesn’t need to be true to replicate. It simply needs to persuade by resonating with the worldview of people who will spread it. A meme can galvanizes extreme responses in line with the meme—not the truth—and that runs the risk of leading people to disruptive (and unjust) action.

Like many before him, Trump’s tweet storm relies on this the meme of voter fraud: the fallacious belief that elections are under threat because of a mass (invisible, unproven) conspiracy of unworthy voters. Some scholars and policy makers have argued for over a decade (one example here) that this threat is real and present (despite the absence of evidence) to justify stricter regulations for voting. This claim nonetheless has supported the passage of strict voter identification laws, the curtailment of early voting, and proof of citizenship laws.

Trump used his own version of the meme - his rigged election argument - throughout the campaign. He suggested to his supporters that they should engage in voter intimidation and subversion of the rule of law. Recall that Trump claimed that fraud by millions of wrongful voters would thwart his candidacy. Both he and now Vice President-elect Mike Pence called for their supporters to monitor polls and challenge voters they suspect. And in that final debate, apparently because of his belief that the election was going to be rigged (and that he might lose), Trump said he would keep us in suspense about whether he would accept the result of this election. His voter fraud claim of Sunday simply echoed this campaign-long narrative.

To claim a conspiracy of massive voter fraud, especially after one actually won the election, is preposterous. One famous recent study shows that credible in-person voter impersonation has happened only 31 times out of one billion votes cast this century. And professional election scholars agree that a vast voter fraud conspiracy to overthrow a national election is simply a myth.

Trump’s narrative is in apparent response to the recount efforts in battleground states spearheaded by the Green Party in response to claims of discrepancies between the electronic vote count and the paper vote count. While some experts observe such recounts would be pointless, others argue that thousands of Trump votes were padded, though neither the Clinton campaign nor the White House have claimed that there has been evidence of mass voter-caused voter fraud. There are versions of the meme of voter fraud across the political spectrum.

But Trump’s voter fraud meme does something far more dangerous than trigger a recount. Trump's meme seeks to rig our thinking about democracy. Because a meme persuades through appeal rather than logic, evidence is irrelevant when the story is too good. This doesn’t matter much with cat videos on social media, but Mr. Trump’s voter fraud memes are dangerous because they detach us from facts as our basis for making real-world decisions.

To believe that the votes of millions of are illegitimate simply because someone says so is to trade in an ideology of exclusion of those voters. America did this for the majority of its history with the effect of excluding women, African Americans, and naturalized immigrants in favor of property-holding white men. Court decisions, constitutional amendments, and the Voting Rights Act of 1965 democratized voting and made clear that just because of one’s identity, one was not a fraudulent voter.

To claim that our elections are rigged by saying without proof that rightful vote are illegitimate is to harken back to this racist, sexist vicious voter narrative. We saw this in Trump’s claims for voter vigilantes, in his claim of ready defiance to the election results, and now in his lie that he’s more of a winner than he actually is.

If history teaches us anything, it is that this kind of rhetoric will serve as excuse to vilify the people he deems his enemies and diminish the institutions designed to serve all the people. This rhetoric will continue to paint a target on his political opponents generally (since supposedly all the alleged illegitimate votes were cast by his opponents). The rhetoric will reinforce the racist, sexist ideology of exclusion, thus compounding the doubt minority voters and other who have suffered historical disenfranchisement suffer.

His claim of voter fraud in the millions also suggests that election structures that validate and tabulate our elections have no legitimacy. His meme preposterously implies that thousands of election officers across this country either were duped or were in on the scheme. And this rhetoric signals further threat to the already-imperiled Voting Rights Act and other laws that make our elections democratic. Why keep the VRA and other inclusivity promoting laws if they allegedly lead to polluted election results? Indeed, even White House Chief Strategist-designate Steve Bannon once suggested that the vote should be restricted to property owners. Were that law, the effect would be that minorities would be disproportionately segregated out of the right to vote - a return to the political America of 1896 (or 1787).

These are the potential consequences when a baseless, discriminatory meme becomes the ground of policy.

To make specious allegations of fraud undermines the legitimacy of our political institutions and, ironically, the legitimacy of Trump’s own election. It tears down the political system purely to pursue apparent pettiness. And like any meme, this rigged election rhetoric seeks detaches us from facts, and that will enable those who wish to resort to racialized segregation to exclude the “vicious voter.” Is that the America we want?

November 29, 2016 | Permalink | Comments (0)

Monday, November 28, 2016

Why the Japanese Internment is Wrong (Professor Frank Wu)

A few years ago, I had the honor of drafting a “hypothetical” fact pattern for a moot court competition in which law students advocate for each side as if it were a real case. My problem for the would-be lawyers was criticized, because it seemed outlandish and complicated. I was inspired by actual precedent to imagine a scenario involving another internment, without quite preceding to the extreme of mass incarceration. The possibility turns out to be both plausible and simple.

In teaching about the subject, I have challenged students who would condemn the World War II prison camps for Japanese Americans — called “concentration camps” in official documents when that was a technical term for holding civilians during military conflict, before the Nazi horrors were widely known. They typically have wanted to denounce the program, approved by President Franklin Delano Roosevelt, ratified overwhelmingly by Congress, and upheld by a majority of the Supreme Court, as “racist.” 

I do not doubt that it was. But that label is a conclusion without persuasive power. People who are open-minded will engage in dialogue. I am always willing to talk.

To be clear, I am convinced the internment was wrong. Appreciating democracy, I am certain that any of us who agrees it should be prevented will be compelled to explain why it was wrong. Here are a half dozen reasons. (This essay is the third of a trilogy. The earlier installments offered background on the hatred of Japanese Americans at the time and the sentiments about the internment since then.)

First, we sometimes forget the single most important objection. Since the Pacific War was called a “race war” without qualms, it is easy to see how concern about this homefront policy focuses on race. The debate over the internment is typically framed as a balance between national security and civil rights, whether protection of the homeland demands sacrifice of its principles. 

Yet before entertaining any such compromise, we should ask if the idea would even be successful for its stated purpose. If it won’t work, then there isn’t any need to proceed further. That prompts the necessary question: what is the point? 

The ostensible motivation for the internment and its precursors (such as a curfew) is preventing crime and terrorism. As a tactic, requesting that transgressors cooperate with you may not generate the desired result though (mis)identifying potential informants likely impairs your investigation. It is underinclusive of the threat; overinclusive of the innocent. The ineffectiveness of a measure counsels against it. The violation of ideals merely confirms the folly. 

Thus a utilitarian calculation of the speculative benefits against the definite costs suggests that there also might be other intentions not to be articulated. It might be as much the signal that is sent, of who belongs and who doesn’t, the stigma that is to be affixed to a community, as any legitimate law enforcement objective. 

Second, the internment relied on an inaccurate picture of Japanese Americans as a whole. They were eager to assimilate, so much so that among the most popular pastimes in the camps was baseball. 

A generation after the war, a Japanese American sociologist wrote a monograph about the population. He opened with a line that became famous, namely that if you scratch a Japanese American you would find a white Anglo-Saxon Protestant underneath. The internment likely accelerated that tendency. But it was there before in ample display.

When a man named Takao Ozawa tried to naturalize, bringing his claim to the Supreme Court in 1922, the Japanese immigrant observed that he had converted to Christianity, spoke English only, and was employed by an American company; his wife was similarly attached to these new customs, and they were raising their children to be loyal to their adopted land. The Justices rejected his application, earnest though he may have been, erecting a racial requirement for citizenship: you had to be a “free white person” to qualify, and Asians were not “white” — the next year, refusing a South Asian who came before them to beseech them similarly, they continued that Asians were not “Caucasian” either.

Third, the internment lacked due process as to any individual Japanese American. There were approximately 120,000 persons affected. Two-third of them were native-born citizens (thanks to a Chinese American who established that Constitutional right, against the opposition of the United States government, which had contended if a Chinese could be a citizen then it was not worth possessing citizenship). They included men, women, children, the elderly, and the disabled. 

None were given hearings. Those in charge stated that it would be impossible, because of the deviousness of Oriental psychology, to determine who was telling the truth. (One of the earliest decisions of the California Supreme Court had decreed that Chinese witnesses had to be corroborated by white witnesses, because the former were not credible.)

The unfairness of the internment was revealed by how mixed-race couples were classified. Anti-miscegenation laws in many states prohibited Asians and whites from marrying. The few such unions were characterized by gender. A white man could confer citizenship on an Asian woman. An Asian man would strip citizenship from a white woman. There are reports that the internment proceeded accordingly. A white male-headed household was protected, but not an Asian male-headed counterpart. Adoptees and orphans were included.

Fourth, the internment did not make sense on its own terms. Japanese Americans in Hawaii were not subjected to internment. If the fears of Japanese treachery were well-founded, then the priority would be pre-empting it on the islands where Pearl Harbor had occurred, in the theatre of active conflict, where the “enemy” was numerous. 

Yet the commanders on the ground there were averse to taking action against the Japanese who surrounded them. They had a better sense of their safety. They were not unaware that the plantation economy depended on Japanese laborers.

Fifth, the internment was selective. German Americans and Italian Americans were not subjected to internment. Germany and Italy were the other Axis powers. America was at war with them. A handful of Germans and Italians were arrested. The scale of their situation was not comparable. (This issue deserves more detailed discussion, presented in this postscript.)

Sixth, the internment was all about race. The hostility toward Japanese Americans did not spring up the day after the Pearl Harbor attack. The proposition that logical deliberation from facts, assessing the odds, led to the internment is preposterous, belied by ample pre-existing prejudice. 

The hatred had been calmly codified in law and reflected by everything from political campaigns to popular culture. In addition to the racial bar on naturalization and anti-miscegenation statutes, there were the Alien Land Laws prohibiting acquisition of property and shameless segregation. Many Japanese American college graduates were turned away for jobs. Companies didn’t hire their “kind.” They were relegated to ethnic enclaves or domestic service.

Racial denial has no limits though. When the Supreme Court took up the case of Fred Korematsu, a blue-collar Californian of Japanese descent who wished to stay behind with his Italian American girlfriend, Justice Hugo Black, a former Ku Klux Klan member, said that Korematsu was being kept away from the war zone not because of race but due to the conflict with Japan. That rationalization is spurious. 

The nexus is race. That is how Korematsu is related to Japan. Absent his bloodline, he is just another citizen. He cannot be distinguished from the next person on the street. (Race then is what ethnicity is now; people spoke of the “Japanese” race as they would the “German” race — we might substitute “ethnicity,” but no matter, because it’s all about ancestry anyway.)

Even were a racial generalization by some means devoid of animus, an inference from statistics, there is the racial foundation that cannot be overcome. The law, and our social norms, have evolved away from racial assumptions regardless of any insistence about their purity. We have been chastened from a series of negative experiences. Racial images are too uncertain, except in the resentments they provoke. We have declared that we will avoid them. The pledge has become integral to our social contract, if occasionally respected in the breach.

The choice among the critiques of the internment, which are not exclusive, is more than an academic exercise. Saying that one plan is wrong doesn’t indicate whether another plan might be right. You might tolerate an internment of aliens but not citizens. If you believe, for example, that the internment was a mistake because Japanese Americans in the aggregate were not dangerous, you would be consistent in allowing another internment of a different demographic category that you deemed on the whole to present a risk. If you think, instead that the internment was an error because there were not individual hearings for Japanese Americans who were suspected, then you would regard the handling of German and Italian Americans as no less offensive, and, presumably, you would acquiesce to an alternative that offered an opportunity to present a defense.

When a team of law professors proposed a textbook on the internment, which has enough legal complexities for a whole course, we thought the subject was historically important. We began our work in the last millennium, when current law students were only being born. We did not anticipate that our pedagogical project would have such contemporary relevance. Yet from our past is born our future.

May we see that our destiny is shared.

(this article was originally published in the Huffington Post)

-by Frank Wu, Professor of Law, University of California Hastings College of Law

--This blog is part of an online symposium hosted by the Race and the Law Profs Blog examining the implications of a Trump administration on women, racial, religious, and ethnic minorities, immigrants, LGBTQ communities, disabled persons, and other historically subordinated groups.

 

November 28, 2016 | Permalink | Comments (0)

Wednesday, November 23, 2016

Implications of a Trump presidency for Minorities and Women in America (Dr. Nyla Ali Khan)

The election of Donald Trump as the next United States president has generated stimulating and vibrant debates across the country, particularly with regard to the treatment of minorities.  My attempt is to analyze the intersection of law and race, religion, gender, sexual orientation, disability, and national origin within the current political context.
 
In a post 9/ 11 world, political and cultural edifices have been entrenched by imperial discourse sanctified the convenient first world-third world dichotomy. Institutional politics and policies have facilitated the construction of the “third world” subject as an eternally feral being whose essential savagery is not amenable to socio-cultural conditioning. The rationale provided for the invasion of Afghanistan and Iraq, for instance, is those territories’ purportedly dehumanized condition that cries out for enlightenment, underscoring the constructed bestiality of non-Western, other cultures.
 
The construction of the “first world-third world” dichotomy in the wake of military interventions overseas vitiated progressive political and social change. This befouling of institutional politics insidiously bled into the dominant political discourse in the United States and was used to promulgate Islamophobia.
 
Although governance is a different ballgame, the rhetoric deployed and legitimized by Trump while on the campaign trail purported to create a totalizing or homogenizing center. In particular, non-Western cultural, religious, political, and social epistemologies were dismissed as “marginal” or reductively “fanatical by the discourse generated during the campaign. Some of the epistemologies that were demonized are institutions and modes of thought created by contemporary nationalisms; the consciousness of political, social, and cultural place that offers a critical perspective from which to formulate alternatives to an insulated modernity and its concomitant defeatism of developing nations; and the ushering in of an era in which a nation is  NOT constructed around a common language, religion, culture, patriarchal image of womanhood, and an ethnically pure majority.
 
The increase in polarization and fragmentation that we witnessed in the wake of the presidential campaign and the election of Donald Trump as the next president of the US undermined the traditional notion of self-determination, rule of law, a return to the process of internal political dialogue, negotiations, and political accommodation in a democratic nation. In a nation that prides itself on women’s selfhood, autonomy, and ability to self-actualize, the blatant infantilization and objectification of women brought to the fore, among other things, that misogyny and racism are not things of the past. We still have a lot of work to do in order to repair schisms.

Democracy does not limit itself to numbers or majoritarian rule, but to substance. There is no room for the subjection of religious minorities to a centralized and authoritarian state in a democratic nation. Self-promotion in the name of democracy, which is a given in autocratic and oligarchic forms of government, must be strongly discouraged by constitutional means and methods. In the recent presidential campaign, democracy was brazenly deployed to promote centralization and majoritarianism to the detriment of democratic growth and evolution.

Trump’s success lies in bringing out of the woodwork all those who have been frustrated with the establishment and the Davos set and getting them to vent their anger on those who are “different” either racially, ethnically, or in terms of gender and religious affiliation. The absolute urgency of revivifying economic growth and opportunities for people across the board is undeniable, but that cannot be accomplished at the cost of cultural diversity and the incorporation of cultural/ racial/ gender/ religious differences into our polity and history.
 
In the space of globalization/ transnationalism, cultures undergo a dialectical interplay and create interlayered and mixed identities. This process necessitates the reconception and cultural and linguistic differences into our sense of identity.

 
--This blog is part an online symposium hosted by the Race and the Law Profs Blog examining the implications of a Trump administration on women, racial, religious, and ethnic minorities, immigrants, LGBTQ communities, disabled persons, and other historically subordinated groups.

November 23, 2016 | Permalink | Comments (0)

Tuesday, November 22, 2016

Solicitation for MAPOC Faculty Awards for 2017

In anticipation of this year’s Mid-Atlantic People of Color Legal Scholarship Conference (MAPOC) this January 27 and 28 at George Washington University Law School, Washington, DC, the MAPOC Awards Committee is soliciting nominations for the Franklin D. Cleckley Award for outstanding faculty contributions and the Banks-Haddon Junior Faculty Award.

Details about the awards, qualifications, and the nomination process are below. In brief, please include the following in the nomination:

  • A nomination statement that identifies the nominee, the award for which they have been nominated (Cleckley Award or Banks/Haddon Award), the nominee’s academic institution, and the nominee’s title at that institution;
  • A narrative describing how the candidate meets the criteria for the award (explained below) for which they have been nominated; and
  • An up-to-date curriculum vitae (C.V.) for the nominee.
  • Additional letters of support (up to three) are welcome but not required.

All nominations must be by email. Please state “Cleckley Award Nomination” or “Banks-Haddon Award Nomination” in the subject line. Please send all nomination emails to atiba.ellis@mail.wvu.edu.

The deadline for nominations is January 10, 2017.

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November 22, 2016 | Permalink | Comments (0)

The Lessons of the Internment: “A Better American in a Greater America” (Professor Frank Wu)

The internment of Japanese Americans during World War II happened because many people, likely most of them, believed it was right. Since then, many people, maybe most of them, have concluded it was wrong. For those of us who are convinced it was an act of racism and a betrayal of our great principles, it would be a mistake to assume that the majority of our co-workers, neighbors, and friends agree with us. We have to explain, even if we wish that need had passed.

Following December 7, 1941, the Day of Infamy, as President Franklin Delano Roosevelt (FDR) called it in his appeal for a declaration of war, almost all persons of Japanese ancestry, whether born overseas or here, regardless of language or loyalty, was rounded up and sent to “internment camps.” Men, women, children, the elderly, and the disabled alike, two-thirds of them citizens of this nation, were suspected of being secret agents of a foreign empire, who might commit sabotage or treason. There was no due process, findings of guilt; there were not even opportunities to prove innocence. The relationship between these individuals and an enemy power was blood: their lineage, heritage, race, ethnicity.

It was as simple as stereotyping could be. Japanese roots were equated with increased risks.

The internment was widely supported by non-Japanese Americans. During that time period of “separate but equal,” racial equality remained downright radical. Legal segregation was the norm in the South. Socially-enforced segregation was the norm elsewhere. The Supreme Court decision in Brown v. Board of Education, striking down these vestiges of slavery, would not be decided until just about a decade after V-J Day. The Congress passed the Civil Rights Act another decade after that.

Across the political spectrum, Japanese Americans, like other Asian Americans (a term not yet invented), were despised. Racism was open. White supremacists did not hesitate to call themselves by that name. They were motivated by fear, not that Asian immigrants and their Americanized descendants would be failures, but the opposite. They wondered whether Asian Americans would be too successful, the vanguard of an invasion, the specter of Yellow Peril.

Like the Chinese before them, who were excluded in a series of federal statutes expanded over time to create an “Asiatic Barred Zone,” Japanese faced formal restrictions on everything from intermarriage to property ownership to fishing licenses. The efforts to force them out, even or especially when they farmed fields their rivals would have left fallow, preceded the internment.

The attack by the Japanese Imperial Navy on Pearl Harbor intensified the feelings. Public officials called for a roundup. They said Japanese Americans could form a “reprisal reserve” to be taken out and shot if any American POWs were harmed. Some asserted that assimilation was another trick. They called the plans “concentration camps” before the horrors of Auschwitz and Dachau were revealed. Others suggested Japanese Americans would be motivated to strike back for prior prejudice toward them.

The most aggressive proponent of the internment was Lt. General John L. DeWitt, commander of the Western Defense, who summarized his sentiments: “A Jap’s a Jap, and that’s all there is to it.” He denied the possibility, even given time, of sorting the sheep from the goats, because he, like experts, believed Asians were inscrutable. They were, as a people, inherently untrustworthy.

He was not alone. FDR signed Executive Order 9066. It gave Japanese Americans two days to report to assembly centers, with only what they could carry. They lost everything: jobs; savings; liberty; and dignity. Earl Warren, then the immensely popular California politician, was another voice against this community. He would later be Chief Justice, renowned for advancing the protection of minorities. (In his memoirs, he expressed regret for his actions.)

The American Civil Liberties Union (ACLU) was divided. The national headquarters wanted to back FDR and the war effort. The California chapters had to dissent on their own.

Even other Asian Americans disassociated themselves from Japanese Americans. Chinese Americans wore buttons and put up signs in their shops to explain their own origin. They wanted to be identified with an ally. The handful of Korean Americans advocated successfully to be treated as distinct from Japan. Korea had been taken over by Japan well before the global conflict had begun.

Japanese Americans had internal conflicts. The Japanese American Citizens League (JACL), founded in 1929, took a course of action that caused considerable controversy, continuing to this day. It urged its members to obey the government and the military. The JACL Creed expressed their philosophy.

It opened as follows:

I am proud that I am an American citizen of Japanese ancestry, for my very background makes me appreciate more fully the wonderful advantage of this nation.
I believe in her institutions, ideals, and traditions; I glory in her heritage; I boast of her history; I trust in her future.
She has granted me liberties and opportunities such as no individual enjoys in this world today.

It continued with forbearance and forgiveness:

Although some individuals may discriminate against me, I shall never become bitter or lose faith, for I know that such persons are not representative of the majority of the American people.
I am firm in my belief that American sportsmanship and attitude of fair play will judge citizenship on the basis of action and achievement and not on the basis of physical characteristics.

Then it concluded with patriotism:

Because I believe in America, and I trust she believes in me, and because I have received innumerable benefits from her, I pledge myself to do honor to her at all times and in all places, to support her Constitution, to obey her laws, to respect her Flag, to defend her against all enemies foreign or domestic and to actively assume my duties and obligations as a citizen, cheerfully and without any reservation whatsoever, in the hope that I may become a better American in a greater America.

History teaches us. Or it should.

by Frank Wu, Professor of Law, University of California, Hastings College of Law

(this article was originally published in the Huffington Post)

--This blog is part an online symposium hosted by the Race and the Law Profs Blog examining the implications of a Trump administration on women, racial, religious, and ethnic minorities, immigrants, LGBTQ communities, disabled persons, and other historically subordinated groups.

 

November 22, 2016 | Permalink | Comments (0)

Friday, November 18, 2016

The Nightmare Court Scenario (Professor Paul Boudreaux)

 

For decades, the creed of the Republican Party was Reaganism, with its wariness of big government, deference to state prerogative, and intellectually based trust in free markets.  But the election of Donald Trump, a nouveau Republican with an embrace of political zealotry, threatens to overturn the conventional thinking. With the possibility that the next four – or eight – years will enable Trump to appoint a controlling majority of the U.S. Supreme Court (there is one opening and four others justices are over 65), we may witness a revolution in American law.  Trump’s appointees might well be like him: rogues with little grounding in Reaganism.  They might not even be judges.  In the realm of individual rights, consider three examples – abortion, affirmative action, and gay rights – in which the once-unthinkable might become reality.

Mainstream conservatives have argued consistently since Roe v. Wade that the states, not the U.S. Supreme Court, should hold the power to make the moral decisions surrounding abortion.  But Trump, with little apparent knowledge of federalism, has asserted that he will appoint “pro-life” justices.  We might witness a Republican Congress, invigorated by the new President, enacting a federal law criminalizing abortion across the nation (and perhaps, to boot, making it a crime to return to the United States after having had an abortion elsewhere).  Although such a law would contradict the conservative principle of federalism, Trump-appointed justices might both discard the “right to privacy” and revive the notion of unlimited congressional power to criminalize, which conservatives tried to restrain in United States v. Lopez.  We could see the prosecution of women and doctors from New York to Los Angeles.

The debate over “affirmative action” has been relatively constrained for many years, with Reagan Republicans succeeding in making quotas unlawful, but deferring to organizations to grant some lesser benefits for minorities and women.  But one can imagine Trump-appointed justices, with little respect for stare decisis, overturning the affirmative action decisions in United Steelworkers v. Weber and Regents of the University of California v. Bakke.  The Court might decree that “all forms of government ‘affirmative action’ are unlawful under the equal protection guarantee of the Fourteenth Amendment.”  It could go further to hold that “any consideration of race by private parties” – including such seemingly benign measures such as Microsoft’s or Walmart’s diversity programs – “is unlawful discrimination ‘because of race’ under the Civil Rights Act of 1964.”

As to gay rights, mainstream Republicans, informed by libertarianism, have reasoned that government has no business interfering with individual freedom of behavior, but tried to prevent government imprimatur – an effort that ended with 2015’s Obergefell v. Hodges, which declared that same-sex couples hold a constitutional right to marriage.  With new justices, we might see emboldened state legislatures enacting anti-gay laws – perhaps not returning to criminalization at first, but rather, for example, prohibiting the employment of gay people in any job that involves interaction with children.  A Trump court might well conclude: “Because homosexual behavior is conduct, not an immutable trait, those who in engage in it receive no constitutional protection under the Bill of Rights, and the state laws are upheld as rational responses to perceived state interests.”

Did Americans who voted for Donald Trump consider such possibilities?  Perhaps some did and approved, while perhaps many others did not.  But it is time to imagine legal upheavals that seemed impossible until the election of 2016.

Paul Boudreaux is a professor who teaches the law of Legislation and other topics at Stetson University College of Law in Gulfport and Tampa, Florida.

--This blog is part of an online symposium hosted by the Race and the Law Profs Blog examining the implications of a Trump administration on women, racial, religious and ethnic minorities, immigrants, LGBTQ communities, disabled persons, and other historically subordinated groups.

November 18, 2016 | Permalink | Comments (0)

Thursday, November 17, 2016

We do Violence to our Children (Professor Christie Matthews)

We do violence to our children. Make no mistake— the election of Donald Trump is a betrayal of their innocence and an affront to their sense of self-worth, well-being, and personal safety.

My daughter, who was away on a college campus tour during the election, sent me a text after receiving the news that Donald Trump had won. She simply wrote, “I’m so upset.” I called her immediately, and she said, “I don’t understand what happened.” She paused. Then she said dejectedly, “Well, I do know what happened.”

In that pause, she discovered the betrayal.

In the time it takes to blink, she came to the realization that what many commentators, including myself, thought was a fringe, hate-filled constituency propping up one of the most baffling presidential campaigns in recent history was, in fact, more widespread than ever imagined. On the precipice of beginning her adult life, my daughter was having to quickly come to terms with the fact that the country was not heading towards a “more perfect union.” That the colorblindness that many of her millennial buddies naively embraced, was instead a smokescreen. That despite the election of the first black president, despite the recent progress towards tolerance in the form of marriage equality, and despite legislation to help women better fight for equal pay and to help improve greater healthcare access, the odds for some groups of people—groups to which she belongs— are still very, very long.

I smiled into the phone, reminded her that God still trumps all, and that I love her. “Enjoy the rest of your tour,” I said. I cried inside.

We do violence to our children.

Post-election there are young girls, children of color, Muslim children, and children with disabilities who are, like my daughter, coming to terms with the fact their humanity was betrayed by adults who voted for someone who dismissed, derided, and mocked them. Political commentators may call it a vigorously fought campaign, two parties engaging in the democratic process, a cry of voiceless, hurting, uneducated whites to be heard— but to many of our children it was violence. Trump assaulted their minds with divisive rhetoric and insensitive language. He undermined their sense of safety with threats to rip apart their families with extreme immigration policies. He assassinated their character with associations of race to criminality. He stole their appreciation for their bodies by objectifying and debasing women. And all of this was magnified and consecrated when America rubber-stamped his behavior by electing him to the highest office in the country, arguably in the world.

We do violence to our children.

As adults we see the world in shades of gray. We split hairs, argue nuances, and try to see both sides. We’ve learned to equivocate and compromise in pursuit of the “so-called” bigger picture— “I’ll trade you a sexist remark for a tax cut,” or, “I’ll overlook your xenophobia for a promise of a job.”

But children have a more focused sense of justice, of right and wrong. They know bad behavior when they see it, and this election is creating great cognitive dissonance for many of them. We as adults tell them to share and treat others as they would want to be treated. Play nice and not use bad words. We teach that everyone matters and not to be a bully. Yet Trump stands for the exact opposite. Many adult minds cannot comprehend what just happened on November 8, much less a still-developing child’s brain. This dissonance many of our children are feeling now is magnified by the knowledge that many heretofore well-meaning adults in their lives— many of whom are their teachers, their health care providers, their friends’ parents, their church leaders, their own parents—voted for someone who undercuts their own humanity.

If I had a nickel every time I heard a well-meaning Trump supporter say, ”It’s going to be okay,” or heard a commentator explain the election results on non-racist, non-sexist, “hurting,” “voiceless,” white, poor people, I’d be richer than Trump’s trumped-up riches (still waiting on those tax returns). And when our children hear this— juxtaposed against Trump’s behavior— it does not assuage the knowledge that their dignity and sense of self-worth was up for barter.

It is not alarmist to understand the consequences of giving such power to a misogynistic, racist, xenophobic, ableist, who, incidentally, shows clear signs of being a narcissistic autocrat. It is an illusion to think that somehow our children are immune to this tectonic shift in America’s landscape when it comes to difference. New narratives are now being drawn, fueling narratives of old that many rights activists have fought long and hard to mitigate.

Think how many times our young girls have heard their now-President-elect say, he can grab women by the “pussy” and they let him do so because he’s rich. Or refer to women as “pigs,” “nasty,” or allow even his own daughter to be referred to as “a piece of ass.” It turns many grown women’s stomachs to hear such talk. Think of what this must be doing to our young girls who are still struggling with body image and how to navigate relationships with boys. But, Trump will be our next president.

Our young Latino boys have heard the President-elect speak of “rapist” immigrants, “bad hombres,” wall-building, and en masse deportation; yet, still Trump’s elected.

Our African American youth have heard repeated associations by Trump of blacks with our “inner city hells” that need more law and order, which even our youth know is yet another association of criminality with being black. Our black children have seen that the KKK openly supports him. The KKK. Still, he’s elected.

Our physically-challenged children, who already disproportionately struggle with bullying and self-esteem, have seen Trump openly mock a disabled reporter in the worst way. But, America chose Trump for president.

Our Muslim children are absorbing that their religion equates to terrorism in the eyes of the new President (and by extension, the American people who elected him), so much so, that everyone of their faith should be banned from even entering the country. They see that even dying as a war hero for America is not enough, as evidenced by Trump’s shameful put-downs of the Khan family. These Muslim children know they have been branded non-Americans—no, anti-Americans.

We do violence to our children.

The violence is not just to girls, African American and Latino children, physically-challenged youth, and Muslim kids; it’s to ALL youth. The students who passed out “deportation papers” to their classmates are not okay. The students who chanted “white power” and “build a wall” and called black classmates “cotton pickers” are NOT OKAY. The tragedy in a Donald Trump presidency is that it normalizes hate and divisiveness, and our children are conditioned by the norms of the society in which they are raised. While certainly the hate has always been there, bubbling up even before the election, having a leader who embodies such hate only serves to embolden supremacists and provides justification for their hatred. Yet stoking flames of hate not only engulfs the hated, but the hater as well. So, our white, Christian, male, able-bodied children who are displaying hate—they, too, are not okay.

We do violence to our children.

So what do people who are enlightened to the violence this election has done to our children do? We must resist excusing Trump’s behavior. Very clearly call hate and divisiveness out for what it is. We fight the normalization of hate by insisting that we adhere to a sense of dignity and respect in our communications and dealings with others, and require that of them. As business owners, very clearly and unequivocally align policies and practices with equity and inclusiveness. As workers, demand that our companies respect that as well. As teachers, clearly discuss expectations of respect in the classroom and do not cower from addressing the inevitable student excuse, “But the President did it,” with “The President was wrong and is not a role model.” Do not give Trump supporters a pass, even if they are your friends or family members; hold them accountable for the negative societal outcomes come next election. Hold your legislative representatives accountable. If this election showed nothing else, it’s that when it comes to power, even decency is up for sale. For those elected officials who sold out, work to get them out—out of office next election.

Lastly, and most importantly, we need to love on our children. We must remind them that they are beautiful, wonderfully-made, whole as they are, innately worthy of dignity and respect, and that they are not to be defined by the agendas of the fearful and the cowardly. We must remind them that they are not a reflection of Trump hatred. Rather, they are the antidote.

(this article was originally published in the Huffington Post)

by Christie Stancil Matthews, Assistant Professor of Law, Charlotte School of Law

--This blog is part of an online symposium hosted by the Race and the Law Profs Blog examining the implications of a Trump administration on women, racial, religious and ethnic minorities, immigrants, LGBTQ communities, disabled persons, and other historically subordinated groups.

November 17, 2016 | Permalink | Comments (0)

Wednesday, November 16, 2016

General Trump's Cold Civil War (Professor Terry Smith)

"I love war. I’m good at war. I’ve had a lot of wars of my own. I’m really good at war. I love war in a certain way, but only when we win.”—Donald J. Trump, Nov. 2015

The election of Donald Trump as President of the United States is the most audacious act of mass racial aggression since the American Civil War. To understand how the election of an American president can summon such a comparison, consider that, according to Pew Research, a majority of Americans believe that the Civil War is still relevant to American politics and political life. Donald Trump’s epically racialized ascension to the presidency makes the War of Rebellion especially germane now.

Students of history will remember the Civil War as a “hot” conflict that cost more than 600,000 American lives, or roughly 2 percent of what was then America’s total population. Trump, himself, has threatened a revivification of such political hostilities. Trump has condoned the use of violence against our Republic: “Hillary wants to abolish—essentially abolish—the Second Amendment. If she gets to pick her judges, nothing you can do, folks. Although the Second Amendment people, maybe there is. I don’t know.”

To my knowledge, Trump is the only major party candidate in the history of the Republic to invite citizens to assassinate his opponent: “I think that her [Clinton’s] bodyguards should drop all weapons, they should disarm, right? I think they should disarm. Immediately, what do you think? Yeah, take their guns away. She doesn’t want guns. Take their–let’s see what happens to her. Take their guns away, OK? It’ll be very dangerous.”

The Civil War, however, was most importantly a war of ideology because President Abraham Lincoln, abolitionists, and many others understood that the institution of slavery was incompatible with democracy. So, too, is racism. And when a candidate gains office by naked appeals to racism, his election is not democratic because in a democracy how one wins is as important as the fact that she won. Democratic legitimacy is not just about the result, it is about how one achieved that result.

Thus, Americans who opposed candidate Trump are under no patriotic, moral, or logical duty to recognize the legitimacy of President Trump because in embracing racism, nativism, and chauvinism, Trump and his supporters have cast aside too many of our treasured civic mores born of the blood of the Civil War, the first Reconstruction, the movement for women’s franchise and equality, and the Second Reconstruction.

At an even more basic level, President Trump is due neither respect nor legitimacy because he spent the past eight years attempting to de-legitimize the duly elected leader of the Free World, Barack Obama, for no other reason than the fact that Obama is black. If Donald Trump didn’t respect the office of the presidency enough not to cast baseless aspersions on his predecessor’s place of birth and eligibility to occupy the Oval Office, why would any rational American accord President Trump such respect?

Trump and his troglodytes are counting on the same mealy-mouthed liberals who abetted the Democrats’ catastrophic defeat at the polls to now play nice. But folks like former Obama campaign strategist David Axelrod should lose all credibility and respectability when they claim, against an over-abundance of evidence, that Trump is not a racist.

And those Democratic politicians who are interpreting the election results with clichés like “The American people want Democrats and Republicans to work together to find solutions to our common problems,” are conveniently ignoring the fact that partisan polarization in Congress has been asymmetrical. It’s not that both sides have been moving equally from the political center—the Republican Party has lurched much further to the right than Democrats have to the left, and their movement to the right has been accompanied by a rejection of the constitutional norms that bind us together as a union. Look no further than the Republican Senate’s unprecedented refusal to hold hearings on Obama Supreme Court nominee Merrick Garland, breaking the record for the longest gap between nomination and confirmation.

For any Democrat to fantasize about “working together” when Republicans have consistently shown Democrats the backs of their hands is foolhardy, naïve, and pusillanimous. What is called for at this moment in our history is a political mobilization and resistance proportionate to the cancer that President-elect Trump and his supporters have sown in our body politic. This resistance should start with every Democratic congressmen and senator boycotting Trump’s maiden State of the Union address, or if they must attend, they should stand with their backs turned to Trump.

Candidate Trump threatened that there would be a “constitutional crisis” if Hillary Clinton were elected president instead of him. If progressives have any backbone, they’ll make President Trump live through his own.

by Professor Terry Smith, Professor of Law, DePaul University School of Law

(this article was originally published in the Huffington Post)

- This blog is part an online symposium hosted by the Race and the Law Profs Blog examining the implications of a Trump administration on women, racial, religious, and ethnic minorities, immigrants, LGBTQ communities, disabled persons, and other historically subordinated groups.

 

 

November 16, 2016 | Permalink | Comments (0)

Tuesday, November 15, 2016

A Remembrance Day proposal for Ab(normalizing) Torture (Professor Ben Davis)

It has been reported in Politico on November 10, 2016 that the Trump team has warned President Obama not to make major moves on foreign policy.  At the same time it has been reported that President-elect Donald Trump intends to bring back torture with John Yoo, General Flynn, Stephen Hadley and Jose Rodriguez (all Bush era torturers) being bruited as possible persons to be in the top jobs in the national security space.

This unfortunate state of events would not have happened if - in addition to the low-level soldiers that were court-martialed or received administrative discipline for Abu Ghraib, or the one contractor prosecuted for torture in Iraq - both Bush and Obama Administration prosecutors had had the courage to criminally prosecute the then high-level appointees and/or military generals who put in place the 54 country torture regime. 

Clearly the Senate Armed Services Committee devastating 2008 report and the Senate Select Committee on Intelligence still classified but devastating torture report of 2015, the multiple cases brought in US courts by those tortured that have been dismissed on procedural grounds for essentially the entire period, the attempts at prosecutions for the torture in Spain and Germany that have been blocked, the in absentia conviction of a CIA operative in Italy, the statements of American Bar Association Presidents since 2004, the ban by the American Psychological Association for psychologists to participate in national security interrogations, the efforts at professional discipline of lawyers and psychologists who enabled the torture, and the condemnations of Poland and Lithuania by the European Court of Human Rights for their aiding of the torture of specific detainees have not been sufficient deterrent to keep the torture barbarians from rearing their heads again as they seek access to the levers of power with the complicity of the President-elect.

These developments are not the normalization of torture in the United States.  Torture has a long history in America (let us imagine the 250 years of slavery for example as a torture regime).  As I detailed in my 2008 article, Benjamin G. Davis, Refluat Stercus: A Citizen's View of Criminal Prosecution in U.S. Domestic Courts of High-Level U.S. Civilian Authority and Military Generals for Torture and Cruel, Inhuman or Degrading Treatment, 23 St. John's J. Legal Commentary 503 (2008), prosecution of low-level soldiers for torture has happened but not the high-level US Civilian Authority or military generals.  What has changed has been that this "different spanks for different ranks" or "misfeasance at the top, malfeasance at the bottom" approach to governance has had to intersect with a fear-driven Bush Presidential commitment in the post 9/11 period to put in place a 54 country torture regime. 

When the pot of ugly roses was revealed, the devastating revelations led to some legislative fixes as well as some legislative reports in the United States but also a relentless effort by the national security establishment to preserve the impunity of anyone at or near the top.  The result has been that the only thing persons near the top have had to  fear was getting a paper cut in their drafting of their memoirs.  John Rizzo's Company Man (2014) is emblematic of the brazen description of who did what when without any fear of any adverse action occurring to him in the United States (though I understand he does not travel abroad).

So, in this interregnum as the Obama Administration winds down and the Trump Administration ramps up, let me propose something for President Obama to do to attempt to short-circuit President-elect Donald Trump's effort to not so much normalize torture as to extend the process of abnormalization in the United States of torture.  This process of abnormalization of torture has been ongoing since the Bush Administration and in at least one political party's Presidential and Legislative Candidates (Republican candidates with the exception of John McCain have shown a particular affinity to torture) and the body politic. 

One must start with understanding that the normal view of torture is that it is an international crime of the highest order.  The abnormal view is where we have gotten to in the United States over the past 15 or so years.

So, let me suggest that President Obama do the following:  on this day I would ask that President Obama on behalf of the United States formally apologize to the world for the United States having put in place a 54 country torture regime during the War on Terror. 

A formal apology is a form of remedy in international law. 

A formal apology by a sitting President might be difficult for any subsequent President to "unapologize for."

A formal apology resets the marker on torture in our polity and internationally. 

A formal apology is an idea that I shared with the National Security Working Group of the current Administration this past  summer precisely because their focus with respect to torture and UN human rights reporting was on mistakes having been made and process having been imperfectly  followed without acknowledging that in fact crimes were committed (whether or not the Justice Department prosecutes those crimes).

It is a way for President Obama in the waning days of his administration to keep our honor clean (anyone remember that?).

It is a way to remember the soldiers at Abu Ghraib who were court-martialed or received administrative discipline for the torture they did while the leaders and instigators of that 54 country torture regime are now jockeying for posts in the Trump Administration and have never faced any more discipline than writing their memoirs.

If we can remember the adage "shit rolls down hill"  we can make sure that shit rolls up hill in the future. Refluât Stercus.

Is it too much to ask that we remember the tortured who live on with the physical and psychic wounds of that torture throughout the Muslim world, at Gitmo, and maybe at secret locations like where an American citizen was held by the FBI  (Meshal v/ Higginbothem).   Is it too much to ask that we remember the dead?

It is too much to ask that we remember the lack of redress by the American legal system for any torture victim who has brought a claim for what was done to his/her body in the War on Terror.

And, as a way to inoculate us from the kind of torture that occurred in Chicago of black men or for what is alleged to be going on in a law free zone in Homan Square in Chicago even today, is it possible to make this part of the new deal for black America, for America as a whole, and for America in the world?

President Obama has the power to do this.  I am not sure he has the will.


By Benjamin G. Davis, Professor of Law, University of Toledo College of Law
Former Member ABA Standing Committee on Law and National Security

--This blog is part of an online symposium hosted by the Race and the Law Profs Blog examining the implications of a Trump administration on women, racial, religious and ethnic minorities, immigrants, LGBTQ communities, disabled persons, and other historically subordinated groups.

November 15, 2016 | Permalink | Comments (0)