Friday, May 19, 2017
Friday, May 12, 2017
The House of Representatives’ vote to repeal the Affordable Care Act (ACA), also known as Obamacare, will be harmful to all Americans. But it is literally a matter of life and death for people of color.
The Congressional Budget Office estimates that 24 million Americans will lose their health care coverage if the ACA is repealed. Many of these will be people of color. Prior to the ACA, uninsured rates for people of color were exceptionally high. In 2012, 41.8 percent of Latino adults and 22.4 percent of African American adults were uninsured. (For comparison, only 14.3 percent of whites 18-65 lacked insurance.) After Obamacare, the uninsured rates for African American and Latino adults fell by one-half and one-third, respectively. The ACA clearly worked to reduce the racial disparities in health coverage.
Children of color also benefit from the ACA. The ACA provided additional funding for government-funded insurance programs for children. But the ACA’s expansion of private insurance did far more to reduce the number of uninsured children of color.
In 2014, less than one-half of one percent of the increase in insured children of color came from government insurance programs. By contrast, nine times as many children were newly covered under private insurance. This result is not surprising because when adults become insured, they usually insure their children under the same plan. So, the ACA was the driving force behind the reduction.
The reduction in uninsured rates for people of color is only one reason to fight to protect the ACA. Frankly, people of color need healthcare more than whites. While Americans of all races need and deserve quality healthcare, communities of color suffer from debilitating diseases at much higher rates than whites. As such, the lack of adequate healthcare can have life-threatening consequences.
Per the CDC, only 7.6 percent of whites have diabetes. By contrast, nine percent of Asian Americans, 12.8 percent of Latinos, 13.2 percent of African Americans, and 15.9 of Native Americans have the disease.
While heart disease is equally present in all racial groups, the outcomes are not consistent among all racial groups. The American Heart Association reports that African Americans are 33 percent more likely than other races to die from cardiovascular diseases. Native Americans are twice as likely as other races to die from heart disease before age 65.
The American Heart Association also found that rate of high blood pressure is about 1.5 times higher in African Americans than in whites. In addition, African Americans are three times more likely than whites to die because of high blood pressure.
Diabetes, high blood pressure, and heart disease would all be deemed pre-existing conditions under the new health care bill.
While Republican leaders have promised that insurers will still cover those with pre-existing conditions, they have also pledged that insurers will be allowed to charge more for covering those with these illnesses. Will people of color, who make less money and suffer more illnesses than whites, be able to afford adequate care under the proposed system? It seems unlikely. Sadly, it seems far more likely that the planned changes will cause uninsured rates for people of color to rise to pre-Obamacare levels – or perhaps even higher.
Obamacare is far from a perfect system. Even with Obamacare, people of color are, for the most part, still underinsured compared to whites. But the ACA was still a major step in the right direction. Obamacare has given adults and children of color access to health care that they desperately need. We must fight to keep the gains received under Obamacare. We must oppose efforts by the Senate to pass any version of the health care bill.
Repealing Obamacare is a bad prescription for all Americans. But for people of color, losing access to health care will be a bitter pill to swallow indeed.
Tuesday, May 2, 2017
Announcing: Critical Race Spatial Analysis: Mapping to Understand and Address Educational Inequality
Deb Morrison, Subini Ancy Annamma, and Darrell D. Jackson, eds.
From the book webpage:
How does space illuminate educational inequity?
Where and how can spatial analysis be used to disrupt educational inequity?
Which tools are most appropriate for the spatial analysis of educational equity?
This book addresses these questions and explores the use of critical spatial analysis to uncover the dimensions of entrenched and systemic racial inequities in educational settings and identify ways to redress them.
The contributors to this book – some of whom are pioneering scholars of critical race spatial analysis theory and methodology – demonstrate the application of the theory and tools applied to specific locales, and in doing so illustrate how this spatial and temporal lens enriches traditional approaches to research.
The opening macro-theoretical chapter lays the foundation for the book, rooting spatial analyses in critical commitments to studying injustice. Among the innovative methodological chapters included in this book is the re-conceptualization of mapping and space beyond the simple exploration of external spaces to considering internal geographies, highlighting how the privileged may differ in socio-spatial thinking from oppressed communities and what may be learned from both perspectives; data representations that allow the construction of varied narratives based on differences in positionality and historicity of perspectives; the application of redlining to the analysis of classroom interactions; the use of historical archives to uncover the process of marginalization; and the application of techniques such as the fotonovela and GIS to identify how spaces are defined and can be reimagined.
The book demonstrates the analytical and communicative power of mapping and its potential for identifying and dismantling racial injustice in education. The editors conclude by drawing connections across sections, and elucidating the tensions and possibilities for future research.
Read the TOC and more and order here.
Monday, May 1, 2017
LatCrit XXI Biennial Conference & Related Events
LATCRIT/SALT FACULTY DEVELOPMENT WORKSHOP SEP. 28, 2017
BIENNIAL CONFERENCE: SEP. 29 – 30
2016: What Next?
Outsider Jurisprudence and Progressive Formations at a Crossroad
Given the moment and trends, it is time to ask hard questions and think of new answers. LatCrit and other critical outsider formations in the legal academy face a new crossroad. After twenty-one years of critical scholarship and progressive community building, LatCrit, like many organizations that focus on liberation, anti-subordination, and social justice, faces ever-morphing challenges and hurdles. In recent years, the “crisis” in legal academia—in which private actors like law firms, nonprofits, and government agencies have divested their roles in training young lawyers while shifting these costs to law schools and students—has meant the increasing adoption of selective austerity measures, the vilification of the professoriate, and attacks on critical scholarship. Access to education, like access to justice, increasingly erodes. The values exemplified by social justice oriented movements in legal scholarship, movements which have as their objective the demystification of the status quo and the dismantling of power hierarchies, are the first targets of this crisis-driven rush to selective austerity. In their place, neoliberal values like rent-seeking and concentration of wealth, and the accompanying mythologies of meritocracy and U.S. exceptionalism, have filled the void. And in the law school environment, the historically most vulnerable continue to suffer the most. Increasingly, students, support staff, adjunct professors, clinical faculty, and writing faculty join the youngest without tenure (and many of the oldest)—all without clout, and pushed into a new class of disposable workers within legal academia. As all this happens, private financial actors and the federal government continue to profit from an all-loan based approach to financial aid, and those with the richest endowments and the most resources continue deploying them to re-inscribe inequality across the profession. Nonetheless, everyone hopes that things will improve . . . somehow, eventually.
And then November 8th changed all paradigms; seemingly suddenly, entrenched notions of slow-but-steady progress through true-and-patient struggle made little sense.
In the wake of the 2016 election, with its surreal outcome, our political process (finally) has confirmed beyond deniability how hyper-nationalism, white supremacy, misogyny, homophobia, xenophobia, oligarchy, and hate are essential to contemporary “conservative” movements. The masking of these trends behind such double-speak as the “alt-right movement” has also emboldened those who seek to promote violent forms of intolerance to step out of the shadows and into the light. The poor and economically marginalized struggle with increasingly exploitative neoliberal forms of welfare, privatized for the profit and protection of the powerful financial class. The fight against these powerful forces, in the classroom, in the courtroom, and in our daily lives, has poured into the streets as we struggle to navigate the onslaught of executive orders, legislation, and appointments designed to divide and conquer democracy itself. If any doubt remained previously, the post-2016 world makes plain every day that unbridled power trumps even fundamental principles with growing impunity. This extreme zeitgeist demands correspondingly fresh critical thinking – and action.
Fortunately, critical and outsider communities in legal academia have been planning strategically for the long term. LatCrit, for example, developed a strategic plan to prioritize generational transition, acquire a physical campus, Campo Sano, to host programs and workshops, and develop a critical justice course book for the varied classrooms and uses. This approach enables veteran and rising generations to emphasize these strategic priorities while maintaining other cornerstones of our established Portfolio of community projects—such as the biennial South-North Exchange (Antigua, Guatemala 2018), the annual Junior Faculty Development Workshop, our periodic Study Space projects, and upcoming programs at Campo Sano. But inter-national events since November 8th have made increasingly plain that our ongoing efforts to remain nimble are no match for the intensified perfidies of the post-2016 world.
This year, then, we consider another strategic transition, from the anchor event we began in 1996 with the LatCrit I annual conference in La Jolla to the next generation and phase of our ongoing programmatic collective work. Responding directly to the moment, the LatCrit community will focus and decide, together, how we will respond programmatically to this moment. Rather than flinch or crouch, we instead choose to re-group, re-think, and re-affirm our commitment to long-term work that transcends moments, persons, or events. Determined to match the exigency of this moment, critical and outsider networks will gather at the Twenty-First Biennial LatCrit Conference in Orlando, Florida, to mobilize our resources and address innovatively the intensified challenges facing our diverse networks and communities.
At this historically urgent juncture, we invite papers, panels, roundtables, workshops and works in progress across disciplinary boundaries and from all constituencies that center the key, basic questions: What next? How do we reverse the forces that triumphed last November? What does critical solidarity require now of us in terms of organizing and mobilizing? How do lawyers, organizers, academics, students, and allies move forward communally, centering systematic patterns of group injustice, preserving hard-fought gains from our ancestors, and forging ahead into a freer future? How can each of us best use our respective training and talents for this common struggle? What is the role of identity and education moving forward? What part will critical outsider jurisprudence and pedagogy have to play in formal and public education in the future? How do we make a difference now, and going forward, through personal and collective action?
If we do not answer these urgent questions now, the forces of regression will do so for us. Join us in Orlando for this forward-looking, action-focused, cross-disciplinary exchange. Join us in helping to envision and secure the future we aim to live.
Paper, Panel, Roundtable, Workshop proposals and Works In Progress (WIPS) on all topics related to systemic subordination and organizing resistance are welcome.
DEADLINE: Please submit an abstract and your contact information by May 15, 2017.
Please make your submission at http://www.latcrit.org/latcrit2017-online-submission-form/.
For general information and questions about the event please email Saru Matambanadzo at firstname.lastname@example.org.
Saturday, April 29, 2017
For Black "Intellectuals" Who Championed Jill Stein When Hillary Clinton was Enough - An Essay Reflecting on Trump's First 100 Days
Make no mistake – the individual that has been taking up space in the Oval Office for the past 100 days rose to power on the wings of good old-fashioned American racism. However, attacks on Hillary Clinton by Black “intellectuals” were a powerful wind beneath those wings.
Even though the 2016 election was decided months ago, as we reflect on the past 100 days, there are several reasons why we must discuss who is to blame for the outcome. First, a problem is unsolvable until its causes are identified. A major factor in Clinton’s loss was low turnout by Black voters. If people of color had shown up in Michigan, Ohio and Pennsylvania, Hillary Clinton would be president. But rather than encouraging people of color to turn out for Clinton, these Black “leaders” encouraged the third-party option long after it was responsible. Though it was crystal clear to most that a Trump victory would be disastrous for Black America, too many Black “intellectuals” with public platforms used their voices to mock Hillary Clinton, tell their audiences that Hillary Clinton and Donald Trump were one and the same, or to praise Jill Stein, the candidate preferred by the patron saint of lost causes. These continued and relentless attacks on Clinton were likely enough to convince wavering voters– particularly young Black voters – to stay at home.
This is particularly distressing because when Black folks show up, Democrats usually win handily. However, Democrats usually lose ground in midterm elections because their core constituencies – young people and people of color – are less likely to vote in off year elections. Meanwhile, the GOP’s older and whiter base continues to turn out in force.
It is critical that the Democrats regain control of both houses of Congress in 2018. The White House will remain in hostile hands, but a solidly Democratic Congress can stop Trump from implementing his agenda. But if those who encouraged people to stay home or vote third party in 2016 continue to spout the same reckless nonsense over the next eighteen months, it could prevent a Democratic victory in 2018 – and perhaps even 2020. This cannot happen.
Second, while several factors caused the results in 2016, Black “intellectuals” must take responsibility for their role in creating the current political quagmire. Each of the past 100 days has presented a new nightmare for marginalized people. The White House has rolled back protections for LGBT people, particularly transgendered persons. The Attorney General plans to weaken the consent agreements entered into by police departments across the nation. The newest Supreme Court justice will likely provide the vote that will kill the Voting Rights Act – or at least put it in a permanent vegetative state. Immigrants – including children who had no say in the decision to move here - are being deported. Support for private prisons has been increased. Plans for the border wall are progressing. And while Obamacare is safe for now, at any point, the GOP could pass a bill to repeal it.
None of these things would have happened under President Hillary Clinton.
Even if it was somehow reasonable to think that Trump and Clinton were identical on racial issues prior to the election (spoiler alert: it wasn’t), the past 100 days have conclusively proven that this is not the case. As such, anyone who says that the Democratic candidates in 2018 and 2020 are no different than their GOP counterparts deserves to be ignored like a call from a telemarketer.
Third, the logic of these “intellectual” left much to be desired. The most common argument offered was some variation on the “voting my conscious” theme. This is a dangerously cavalier attitude. We have learned the hard way over these past 100 days that voting has consequences far beyond the individual. Prioritizing the self over the community in this instance was not an act of conscience, but of ego. Conscience dictates that we do what is best for others even when it may not be best for us. Ego drives us to do what is best for ourselves even when it harms others. If these talking heads continue to prioritize themselves and their agendas over what is best for the most marginalized, they deserve to be ignored like a piece of mail addressed to “Occupant.”
Another problem with the logic employed in 2016 is that the folks in question savaged a perfectly good candidate in the outlandish hopes that a “perfect” candidate would win. Settling for the good is not as emotionally satisfying as crusading for the perfect. But we live in serious and dangerous times. Such times call not for frivolous crusades, but for relentless practicality. Being practical is not exciting, but the time for childish pipe dreams is over. In this current climate, we must devote our energy into preventing any further harm to immigrants, the poor, women, people of color, and other marginalized populations.
It is critical that we remember not to sacrifice the good for the potentially perfect going forward. The Democrats are not perfect. They are going to make mistakes. They are going to frustrate us. This result is inevitable because no one is perfect. But while the Democrats are not perfect, they are good. In the past 100 days, though they have had very little power to stop Trump, they have done what they can to frustrate his efforts and to speak for those that he is attempting to harm. That is good. And for now, good will have to be good enough. Anyone who says otherwise in 2018 or 2020 must be ignored like an e-mail from a Nigerian prince seeking help with his fortune.
Over the past 100 days, it has become clear that all but the wealthiest and whitest Americans will suffer greatly under the current regime. There is only one way to stop this suffering. We should protest, but protests won’t stop deportations. We should boycott stores that sell Trump products, but that won’t change the Supreme Court. We should continue to mock Trump mercilessly, but what he has done in the past 100 days is no laughing matter. The only way to begin to repair the damage Trump has done is to use our votes to limit his power in 2018 and then to kick him out of office in 2020.
Anyone who tells you otherwise deserves to be ignored for the next 100,000 days.
Monday, April 24, 2017
ClassCrits at Ten: Mobilizing for Resistance, Solidarity, and Justice
Call For Papers and Participation
Sponsored by the Tulane University School of Law
New Orleans, LA * * * November 10 & 11, 2017
Ten years ago, a group of scholar-activists organized a series of conversations about law and economic class. Building on “outsider” jurisprudence that has moved inequalities of race, gender, and sexuality from the margins to the center of law, the group proposed a jurisprudence of economic inequality. To foreground economic justice, the group sought to critique mainstream law and economics and to focus on the lives of poor and working class people.
Rejecting the neoliberal ideology of scarcity, and reclaiming the possibilities presented by the commons and by collective action, ClassCrits was born. Our name, “ClassCrits,” reflects our ties to critical legal analysis and our goal of addressing economic class in the multiple intersecting forms of subordination. We confront the roots of economic inequality in divisions such as race and gender and in legal and economic systems destructive to the well-being of humanity and the planet.
Alternative visions and solutions have become even more essential in the contemporary moment. In the United States, 2017 has begun with historic dangers, global protests, and major constitutional litigation against the new federal administration. The 2016 presidential election has exposed deep rifts in the foundations of law, economy, and society, reflecting a broad and deep discontent with neoliberal globalization. Decades of bipartisan policies have focused on privatization and de-regulation of economic power. Perceptions that established systems of law and economy are “rigged” against ordinary people have led to demands for change. Some blame liberal “identity” politics for giving short shrift to those harmed by economic disruption. Others rationalize increased inequality and insecurity as the inevitable results of innovation and potential growth that necessarily skews rewards to a privileged few.
What we cannot deny is the reality we are facing: A counter-democratic revolution. In response to this discontent, the prevailing response has been to take the neoliberal vision further. In place of principles and practices of law, democracy, and public service, this vision idealizes unaccountable authority aimed at unequal private gain. Policy proposals include selling off public lands, privatizing the already fragile public education system with vouchers, and permitting private interests to foul the air and water held in common as fundamental to health and life on earth. Promises to “Make America Great Again” seem to entail a rollback of civil rights protections for people of color, women, immigrants, religious minorities, and LGBTQ persons, along with an increase in militarization and an expanding carceral state, in the name of never ending foreign threats and geared toward hands of private profiteers.
The new dangers of oligarchy and authoritarianism risk fostering hopelessness and cynicism. Many of us grope around silences to find reasoned words of persuasion. Many struggle to find strategies for scholarship, teaching and advocacy sufficient to address emerging threats.
At the same time, this moment has sparked new voices and energy. Whether it is attending town hall meetings, calling or writing democratically elected representatives, engaging in numerous strikes and protests, or filing lawsuits, a resurgence of public dissent and collective action suggests the possibility of alternative solutions. Protests by indigenous persons at Standing Rock, by diverse groups of women marching in cities all over the world, by workers of color in the “Fight for Fifteen,” and by immigrants speaking out against the rising xenophobia and racism have inspired support and action challenging established boundaries of identity, interest, and policy.
During this exciting moment of possibility and struggle, we invite participants to submit applications to present at the 10th Annual ClassCrits conference, held at Tulane University Law School. We invite panel proposals, roundtable discussion proposals, paper presentations, poetry and fiction reading, and art that speak to this year’s theme, as well as to general ClassCrits themes. We are also interested in receiving proposals from law clinicians who engage in activist lawyering as a core part of their curriculum design. See the following page for details.
Finally, we extend a special invitation to junior scholars (i.e., graduate students and non-tenured faculty members) to submit proposals for works in progress. At least one senior scholar, as well as other ClassCrits scholars, will provide feedback and detailed commentary upon each work in progress in a small, supportive working session at this year’s workshop
The general themes of ClassCrits, include:
- The legal and cultural project of constructing inequalities of all kinds as natural, normal, and necessary.
- The relationships among economic, racial, and gender inequality.
- The development of new methods (including the interdisciplinary study and development of such methods) with which to analyze and criticize economics and law (beyond traditional “law and economics”).
- The relationship between material systems and institutions and cultural systems and institutions.
- The concept and reality of class within the international legal community, within international development studies and welfare strategies, and within a “flattening” world of globalized economics and geopolitical relations.
Proposal Submission Procedure and Deadline
Please submit your proposal by email to email@example.com by June 1, 2017. Proposals should include the author’s name, institutional affiliation and contact information, the title of the paper to be presented, and an abstract of the paper to be presented of no more than 750 words. Junior scholar submissions for works in progress should be clearly marked as “JUNIOR SCHOLAR WORK IN PROGRESS PROPOSAL.”
The venue for the gathering is Tulane University School of Law in New Orleans, LA. The workshop will begin with continental breakfast on Friday, November 10 and continue through the afternoon of Saturday, November 11. Arrangements are being made for conference hotels. The registration fee is $210.00 for all conference attendees who are full-time faculty members from the Global North. Registration is free for students and activists. Participants who do not fit into these categories, and/or who for individual reasons cannot afford the registration fee, should contact us at firstname.lastname@example.org. Workshop attendees are responsible for their own travel and lodging expenses.
Conference Organizing Committee:
Chair and Host, Saru Matambanadzo, Tulane University Law School, email@example.com
Tonya Brito, University of Wisconsin Law School, firstname.lastname@example.org
Kim Clark, Pacific School of Religion and Graduate Theological Union, email@example.com
Angela Harris, U.C. Davis School of Law, firstname.lastname@example.org
Danielle Hart, Southwestern Law School, email@example.com
Lucy Jewel, University of Tennessee College of Law, firstname.lastname@example.org
Martha McCluskey, University of Buffalo School of Law, email@example.com
Athena Mutua, University of Buffalo School of Law, firstname.lastname@example.org
René Reich-Graefe, Western New England Law School, email@example.com
Matthew Titolo, University of West Virginia School of Law, firstname.lastname@example.org
ClassCrits is a network of scholars and activists interested in the critical, interdisciplinary and international analysis of law and economic relations. Please visit our website at www.classcrits.org for more about ClassCrits.
Wednesday, April 19, 2017
Professor Llezlie Green Coleman offers an insightful thesis in her article Rendered Invisible: African American Low-Wage Workers and the Workplace Exploitation Paradigm published in the Howard Law Journal. She states:
"The narrative of low-wage worker exploitation has increasingly narrowed in focus to reflect the experiences of undocumented immigrant workers whose immigration status makes them particularly vulnerable to wage theft and other denials of their substantive workplace rights. Indeed, much of the scholarship in this area rests solidly at the intersection of immigrant justice and employment law.
This article disrupts this paradigm by arguing that this limited narrative has rendered African American low-wage workers invisible. It also draws from the voices of low-wage worker advocates who have borrowed from current activism to announce that #BlackWorkersMatter. Given the role of paradigms in defining which issues merit our attention, analysis, and assessment, this article argues for a shift in the scholarly conversation to consider not only the historical reasons for the distancing of African Americans from worker advocacy, but also the current dynamics that have facilitated this phenomenon.
Despite the reality that low-wage workers in this country are predominantly white, images and narratives of African Americans historically dominated the images and narratives of low-wage work, particularly where that work involved the labor of farm workers (sharecroppers) and domestic workers. In recent years, however, the focus on low-wage workers has shifted toward Latino workers: often recent immigrants and sometimes undocumented. This shift in our attention, however, is not based upon a mass departure of African Americans from the low-wage workforce. While the number of African Americans engaged in low-wage work has decreased as a result of immigration patterns, African Americans continue to occupy a significant number of low-wage jobs.1
Nevertheless, the standard narrative of low-wage work has shifted to one that is inextricably linked to the exploitation of immigrants. Given the particular vulnerability of our immigrant population and the resulting high levels of wage theft and other workplace exploitation in the immigrant community, targeted efforts to address the intersections of these issues is both important and necessary. In the midst of this change, however, the experiences of African American workers have received very limited attention in the media, and even less attention in the academy. Indeed, the more common narrative of the African American work experience has become one of unemployment, rather than low-wage employment.
This article draws from critical race theorists’ black/white binary analysis to consider whether there exists an immigrant/non-immigrant binary paradigm in the analyses of low-wage worker exploitation. Finally, it considers the particular vulnerabilities and disadvantages this paradigm creates for African American workers."
A copy of the full article is available here.
Thursday, April 6, 2017
With the troubling rise in hate groups in America, Professor Vinay Harpalani's article "Safe Spaces" and the Educational Benefits of Diversity offers a timely defense of campus safe spaces in the broader framework of diversity programming in higher education. The following is an abstract of his article, forthcoming in the Duke Journal of Constitutional Law and Public Policy.
"This Article analyzes and defends “safe spaces” on university campuses. Safe spaces are campus programs and organizations that are devoted to the needs and experiences of marginalized groups — especially students of color. The Article argues that safe spaces are vital to the educational benefits of diversity — the compelling interest upheld in Grutter v. Bollinger (2003) and Fisher v. University of Texas at Austin II (2016) to justify universities’ use of race-conscious admissions policies. Safe spaces provide valuable support mechanisms for students of color at predominantly White universities.
The Supreme Court has recognized that these students can often feel “isolated or like spokespersons for their race,” and safe spaces can help them with social and cultural adjustment. Additionally, safe spaces also provide unique educational benefits for both students of color and for White students. Contrary to popular discourse, safe spaces do not promote balkanization or racial separatism on campuses. Even safe spaces that focus on one group, such as residential programs devoted to Black heritage and experiences, are open to students of all backgrounds. Some of these spaces have very diverse student participation. Safe spaces illustrate that immersion within one group’s experience is compatible with cross-racial understanding, not antithetical to it. These spaces provide valuable opportunities for students of color to engage issues of salience within their own groups, and for White students to learn about issues that would not come up in predominantly White settings. The conversations and debates that occur between students turn safe spaces into miniature “marketplaces of ideas,” where unique cross-racial exchanges can occur. Such exchanges epitomize the educational benefits of diversity upheld in Grutter and Fisher II."
To download Professor Harpalani's article, click here.
Monday, April 3, 2017
The Boston Review featured a series of articles by legal scholars and lawyers on the legal, social, and political implications of the rise in Islamophobia in the United States. Over the next few weeks, we will highlight the essays within this thought provoking and timely series.
Professor Sudha Setty exmaines how bipartisan consensus about the government's powers in matters of national security bolsters surveillance of Muslims, as well as other groups deemed suspect by the state. She writes:
"Even if President Trump’s January 27 executive order barring or delaying immigration from seven Muslim-majority countries is deemed unconstitutional, the administration will continue implementing its plan to target Muslims. Trump has promised to ramp up the “respectful” surveillance of mosques and, if history serves as a guide, we should not expect popular, political, and judicial resistance to such measures to match recent furor. Since September 11, 2001, Muslim life in the United States has entailed burdens that the majority of U.S. citizens simply ignore because they do not affect us and, unlike the recent executive order, we are not privy to seeing them in action. Moreover, a high percentage of Americans are indifferent to or even supportive of Muslim citizens being watched closely by the government in the name of national security—despite the fact that at least some of the surveillance is legally indefensible and there is no evidence that it significantly improves national security.
Long before the Trump presidency, government surveillance targeted U.S. Muslims at their colleges, mosques, charities, and community centers. These shadowy practices are carried out under the umbrella of national security and exist largely beyond the reach of legal accountability. In late 2005 the New York Times disclosed the existence of a secret surveillance program against U.S. Muslims, put in place by the Bush administration in 2001. This led to public anger and accusations that the program undermined the constitutional rights of Muslims. However, rather than backing down, the Bush administration lobbied Congress to grant the legal authority to continue the program, and Congress obliged by voting overwhelmingly to enact the Foreign Intelligence Surveillance Act Amendments Act of 2008. The act retroactively authorized broad surveillance and immunized telecommunications companies and the government from lawsuits or future government investigations. Lest we forget, both chambers were controlled by Democrats, and then–Senator Obama voted for the bill."
To read Professor Setty's article in full, click here.
Tuesday, March 21, 2017
The Boston Review featured a series of articles by legal scholars and lawyers on the legal, social, and political implications of the rise in Islamophobia in the United States. Over the next few weeks, we will highlight the essays within this thought provoking and timely series.
Professor Wadie Said addressed the reality that nearly all terrorism prosecutions since 9/11 have involved individuals who do not represent a genuine threat of violence.
"In May 2016 Sajmir Alimehmeti was arrested in the Bronx and charged with providing material support to the Islamic State, along with one count of passport fraud. The authorities began their investigation of him shortly after he was denied entry to Britain on two occasions in 2014. On the second trip, British authorities searched his phone and computer to discover multiple images of the Islamic State and various attacks it had carried out. Once back in the United States, three undercover agents approached Alimehmeti, soliciting his help in leaving the United States to join the Islamic State in Syria. In the roughly nine-month period between his being approached by the agents and his arrest, Alimehmeti made numerous statements indicating his support for the terrorist group. But where does the U.S. government draw the line drawn between espousing hateful, yet legal, views and actually acting on them? And, subsequently, how do they establish legal culpability before an act of terror has been committed?
Shortly after 9/11, then–Attorney General John Ashcroft announced a new plan for investigating and prosecuting suspected terrorists. The Department of Justice would focus on stopping terror plots before they came to fruition, instead of merely prosecuting individuals for acts of violence already committed. This shift seemed both logical and necessary. And the fear and confusion associated with acts of terror offered a compelling incentive for the government to seek to prevent them, not just punish their perpetrators after the fact.”
To read the full article, click here.
Tuesday, March 14, 2017
The Presumed Innocence of Racial Vigilantes
Jamie Longazel, Nikita Srivastava, and Ruth Thompson-Miller
The incident that recently sparked protests in Anaheim, California allegedly began when Kevin Ferguson, an off-duty Los Angeles police officer, confronted a young girl about cutting through his lawn on her way home from school. According to a witness, a 13-year-old Chicano boy stood up for his friend, telling the man “I’m going to sue you.” The man apparently misheard him, thinking he said, “I’m going to shoot you.”
Onlookers filmed the entire encounter, which appears to show the man grabbing the young boy by his sweatshirt and dragging him across a lawn. The boy remained in the man’s grasp for several minutes. On a few occasions, the boy’s friends attempted to free him by shoving the man. One such shove propelled him, with the boy still firmly in his grasp, over a shrub. When he got back on his feet, it appears as though Ferguson pulled a handgun from his waistband and fired a shot. This sent the relatively large group of youth who had gathered fleeing in fright.
While we can certainly categorize this case as yet another instance of police violence captured on video, the details evoke memories of one incident in particular: the murder of Trayvon Martin.
George Zimmerman killed the seventeen-year-old Martin, who was Black, almost exactly five years prior, setting off protests and a national conversation about race and police / vigilante violence that remains robust. Thankfully, the 13-year-old boy in Anaheim escaped unharmed. Yet, like Martin, he found himself accosted by a grown man with a quasi-judicial, vigilante orientation after engaging in the otherwise routine act of walking home from school.
We have been analyzing the closing argument that George Zimmerman’s attorney, Mark O’Mara, delivered to the jury leading up to his acquittal, and our findings shed light on the racist ideology underlying cases like this.
Attention to deeply-rooted racism, we contend, helps explain both why this happens and why convictions are so elusive when it does. (Although Ferguson’s actions are currently under investigation, it is notable that police took only the boy and one of his peers into custody following the incident; and as of this writing, Ferguson still has his job and is not facing charges).
Sociologist Joe Feagin’s concept of the white racial frame captures what we mean by deeply-rooted racism. Rather than surface-level discussions of things like prejudice, bias, or stereotyping, Feagin suggests that in order to understand the constant recurrence of racist events, we must view racism as a systemic problem.
One component of the white racial frame is its depiction of people of color as subhuman and dangerously animalistic. According to Feagin, “among the outrageous stereotypes and images common in the white racial frame today is the old view of black Americans as being linked to apes and monkeys… black Americans are still often unconsciously or half-consciously, [viewed] by whites as animal-like and not fully human” (pg. 102).
He references numerous examples throughout U.S. history where whites frame people of color as “savages” and “treacherous.” “[In the] eighteenth century,” Feagin writes, “colonists framed Indians as animals—’beasts of prey’... or as ‘animals vulgarly called Indians’” (p. 61).
Applied here, the white racial frame depicts the very existence of young bodies of color as threatening. When addressing the jury in Florida v. George Zimmerman, O’Mara linked Martin to the wider pattern of black criminality that the white racial frame assumes is ever-present, pointing out that Martin “just so happened to match the description of the most wanted criminals” in an area where people convicted of burglary “happened to be black.”
Elsewhere in his closing statement, O’Mara uses animalistic imagery to describe Martin, making Zimmerman, by contrast, appear desperate for safety, and, indeed, heroic given that he managed to prevail. He described Martin’s activity the evening of his death using phrases like “lurking” and “lying.” His argument concludes even more callously, with a rejection of the notion that Martin was an innocent youth and an insistence on his savage dangerousness. “How many times was it said Trayvon Martin was not armed,” O’Mara rhetorically asked, as he picked up a block of cement and carried it in front of the jury...
That’s cement. That is sidewalk, and that is not an unarmed teenager with nothing but Skittles trying to get home… [Martin] used the availability of dangerous items from his fists to the concrete to cause great bodily injury. Not just there for self-defense, but there to cause great bodily injury to George Zimmerman… Any suggestion by the state... that [cement] cannot cause great bodily injury is disgusting.
In contrast, this framing depicts whites as the potential victims of such perceived threats, and, importantly, as not as liable for any subsequent violence they inflict when they “fend them off.”
O’Mara described Zimmerman as a noble man who simply wanted to do good for his community. Zimmerman, he said, “did want to be a cop. He also wanted to be a prosecutor. He wanted to be a lawyer. And he wanted to continue his education and he wanted to help his community… yes, he wanted to be involved.”
Notice how this frame makes Zimmerman’s use of a firearm to kill Trayvon Martin appear justified, in sharp contrast to the savagery of the teenager’s reliance on “dangerous items… to cause great bodily injury.” “In fact, George Zimmerman was armed with a firearm,” O’Mara admitted, “We know he had the right to have it.” In this telling, Zimmerman was not an adult who murdered a child, he seems to imply, but rather someone bravely protecting his neighborhood from predators.
Part of what makes this frame so powerful is that it is so entrenched in our culture, representing far more than an instance of bias mistakenly rising to the surface. The white racial frame is a “vantage point,” with its assumptions widely accepted as “common sense.” Accordingly, it would not be a stretch to assume that O’Mara’s presentation influenced the jury – comprised of all white women – who found Zimmerman not guilty.
We still do not know all the details surrounding the Anaheim case, but from the video that has been circulating, there appear to be several graphic and disturbing similarities. Like Zimmerman, the unnamed cop was extra-judicially protecting “white space” – his neighborhood / property.
Both perpetrators seemingly viewed the boys as predators with little, if any, evidence to validate their fears. Granted, we don’t know what the LAPD officer actually heard and there is no use speculating on his motives, but we can nevertheless ask whether he would have so easily mistaken “sue” for “shoot” had the “intruder” not been a young person of color.
Ferguson’s particular actions are also telling: He, in effect, traps the boy as if he were an unwanted rodent and then, in an apparent display of dominance, fires his gun to scare off the boy’s peers. (“My son shot his gun because they’ve got about 15 people,” the officer’s father, who arrived on the scene and called 911, can be heard saying on the video).
These cases are even more egregious when we consider that these are grown men involved in physical altercations with children. (Twelve-year-old Tamir Rice, who police shot and killed in Cleveland, also comes to mind here.) “I’m only like 13,” the Anaheim boy says at one point in the video, pleading for mercy. The bag of Skittles Martin was carrying at the time of his death likewise became a powerful reminder that he was just a kid.
Yet with racism so deeply rooted, their youth offers no protection from racialized vigilantism. And the legal system fails to hold such men accountable again and again. (Absent charge, the LA Times reports that the boy’s family has filed a civil suit, alleging “that Officer Kevin Ferguson violated the boy’s civil rights and caused the plaintiff emotional distress. It also claims that Ferguson assaulted and falsely imprisoned the boy.”)
Cases such as these demonstrate that policy proposals like increased training for police officers or requirements that officers wear body cameras are insufficient solutions. What we really need is the courage to admit that the problem runs far deeper than that. There are, and long have been, entitled white men all over the country – police officers and otherwise – who see it as within their purview, if not as their obligation, to “protect” themselves and their communities from threats that exist only in their minds. Meanwhile, boys of color struggle to get home from school or to go out for a snack without putting their lives on the line.
Jamie Longazel is an Assistant Professor of Sociology and a Human Rights Center Research Associate at the University of Dayton and the author of Undocumented Fears: Immigration and the Politics of Divide and Conquer in Hazleton, Pennsylvania.
Nikita Srivastava is a law student at the University of Cincinnati College of Law. She has Bachelor’s Degrees in Criminal Justice Studies and Political Science from the University of Dayton, and is currently a Fellow at the Ohio Innocence Project.
Ruth Thompson-Miller is an Assistant Professor of Sociology at the University of Dayton and the co-author (with Joe Feagin and Leslie Picca) of Jim Crow’s Legacy: The Lasting Impact of Segregation.
Friday, March 10, 2017
President Donald Trump and senior members of the Trump administration have recently mischaracterized basic points of American racial history. While Trump supporters defend these remarks as innocent, these “missteps” show a willful ignorance about American white supremacy aimed at generating a post-racial ideology of success and a complacency about our challenges connected to the legacy of slavery.
In comments to his department, Housing and Urban Development Secretary Ben Carson compared the experience of slaves in the Transatlantic Slave Trade with the experience of willing migrants to to the United States. According to the Washington Post, Carson said:
"That's what America is about. A land of dreams and opportunity. There were other immigrants who came here in the bottom of slave ships, worked even longer, even harder for less,” said Carson, speaking extemporaneously as he paced the room with a microphone. “But they, too, had a dream that one day their sons, daughters, grandsons, granddaughters, great-grandsons, great-granddaughters might pursue prosperity and happiness in this land."
In comparing slaves to immigrants, Carson equated the two as dreamers, but conveniently ignored the Transatlantic Slave Trade’s subordination of the enslaved. Yet, as the Post reported, attendees to Secretary Carson’s remarks did not believe he was making any untoward comments. Carson himself denied any intention of denying the realities of slavery. And in defense of the comparison between slavery and immigration, Eugene Volokh went so far as to quote a number of legal scholars as having compared chattel slavery and voluntary immigration. Conservative critics have even called those objecting to Carson’s comments “hypocritical” and argued that President Obama made a similar comparison.
But this mischaracterizing doesn’t stop with Secretary Carson. Earlier this year, President Trump commented that Frederick Douglass was someone “who’s done an amazing job and is getting recognized more and more,” implying that he wasn’t acquainted with the nineteenth century anti-slavery icon. And Secretary of Education Betsy DeVos called Historically Black Colleges and Universities (HBCUs) “pioneers” of “school choice” while ignoring the fact that HBCUs were created because segregation forbad black students from attending white colleges and universities. Like Carson, DeVos’s comments have been pilloried and defended as innocent misstatements.
The defenses of “lack of evil intent” and “hey look, liberals (or academics) do it too” completely miss the point. These comments by Trump, DeVos, and Carson, read against the rhetoric and agenda of the administration, come off as tone-deaf about the history of the striving for racial equality and equal opportunity in the United States.
Tuesday, March 7, 2017
Last week, the Boston Review featured a series of articles by legal scholars and lawyers on the legal, social, and political implications of the rise in Islamophobia in the United States. Over the next few weeks, we will highlight the essays within this thought provoking and timely series.
"In his inaugural address, Donald Trump vowed to eradicate “radical Islamic terrorism . . . completely from the face of the earth.” This pledge—not the first of its kind from an American president—is not as anodyne as it may first seem. It mobilizes a longstanding dichotomy between acceptable and radical Islam, between good and bad Muslims. For too long we have accepted our government’s ability to discern the difference. We have acquiesced to a wide-ranging set of government policies toward Muslims in the United States and around the world to root out the “dangerous ones.” And we have trusted that all of this is necessary for our collective good.
Meanwhile the government has enacted an interlocking system of domestic and foreign policies that reflect, codify, and reenact suspicion of Muslims globally: wars and targeted assassinations named and unnamed; deportations, prosecutions, and policing; a regime of surveillance that goes from sea to shining sea and then wraps around the rest of the world; Countering Violent Extremism programs aimed at shaping the very ideas that Muslim communities discuss and debate, effectively marking certain forms of religious practice or critique of U.S. policies as criminally dissident. The cost of silence—of our failure to scrutinize, question, or resist—is now clear. It is not too late to wake up, but it will take far more than resisting Trump’s Muslim ban."
To read the full article, click here.
Monday, February 13, 2017
For all of his anti-establishment rhetoric, President Trump’s stance toward immigrants and Muslims is more of the same. Orientalism and Manifest Destiny have long animated American foreign policy and domestic treatment of its racial and religious minorities.
Trump’s executive orders on Friday, effectively barring immigrants from seven majority-Muslim countries, harks back to an era when holy wars were the currency for mass mobilization by the ruler.
In the eleventh century, for example, Pope Urban II called on his people to defend the Byzantine Empire from encroaching Muslim armies. What became known as the First Crusade in European history books solidified the image of Muslims as fanatical followers of a false religion and a threat to Christendom. Medieval romances and legends of battles between Christian and Muslim warriors nurtured the perception of a dangerous and violent Islam.
Over time, the stereotype of the Muslim savage animated the West’s domination, restructuring, and deculturalization of the Middle East.
British colonists brought with them Orientalism, which coupled with the ideology of Manifest Destiny, was used to justify the conversion or termination of Native Americans, enslavement of Africans, and exploitation of the Chinese. As nonwhite and non-Christian, these groups were deemed biologically inferior. As such, it was the white man’s burden to teach, civilize, and save them from their savage nature.
-- This is an excerpt of an op-ed I published on FoxNews available here
Tuesday, February 7, 2017
Below is a non-exhaustive list of links to formal statements by various American universities pertaining to Trump's Executive Order (also known as "the Muslim Ban") targeting immigrants and nonimmigrants from 7 Muslim-majority countries (Libya, Somalia, Sudan, Syria, Iraq, Iran, Yemen).
Association of American Universities - http://www.aau.edu/news/article.aspx?id=18366
Association of Public and Land Grant Universities - http://www.aplu.org/members/councils/strategic-communications/immigration-actions/
Brown (Provost) - https://news.brown.edu/articles/2017/01/immigrationorder
California State University (Chancellor)) - http://www.rochester.edu/newscenter/message-from-jane-gatewood-vice-provost-for-global-engagement-on-recent-immigration-news-213242/
Catholic University (President) - http://www.cua.edu/news/2017/executive-order-statement.html
Columbia (President) - http://news.columbia.edu/content/1559
Cornell (President) - http://statements.cornell.edu/2017/20170129-immigration-exec-order.cfm
Dartmouth (President & Provost) - http://news.dartmouth.edu/news/2017/01/letter-president-hanlon-and-provost-dever-executive-order-immigration?utm_source=twitter&utm_medium=social&utm_campaign=institutional
Duke (President & Provost) - https://today.duke.edu/2017/01/message-president-and-provost-federal-immigration-restrictions-updated
Georgetown (President) - https://president.georgetown.edu/message-immigration-jan-2017
Harvard (President) - http://www.harvard.edu/president/news/2017/we-are-all-harvard
Michigan (President) - http://www.wmich.edu/president/statement-immigration-executive-order
Pittsburgh (Chancellor) - http://chancellor.pitt.edu/news-story/chancellor-gallaghers-message-us-immigration-decisions
Princeton (President) - http://www.princeton.edu/main/news/archive/S48/57/21I82/?section=topstories
Texas A&M University (President) - http://president.tamu.edu/messages/response-to-white-house-executive-order-travel-ban.html
University of Texas (President) - http://president.utexas.edu/messages/recent-executive-order?utm_source=twitter&utm_medium=referral&utm_campaign=UTAustinSocial
University of Pennsylvania (Provost, Vice President, and Vice Presidents) - https://news.upenn.edu/news/messages-about-executive-order-immigration
University of Massachusetts (Chancellor) - https://www.umass.edu/gateway/federal-actions
University of Virginia (Faculty Senate) - http://facultysenate.virginia.edu/faculty-senate-general-faculty-council-statement-immigration-executive-order
University of California (President and Chancellors) - https://www.universityofcalifornia.edu/press-room/statement-uc-president-janet-napolitano-and-chancellors-about-recent-executive-order
University of Houston (President) - http://www.uh.edu/president/communications/communicae/houston-community/013017travel-ban/index
University of Arkansas (President) - http://www.nwahomepage.com/news/fox-24/university-of-arkansas-releases-statement-on-trumps-executive-order/647303966
University of Connecticut (President & Provost) -
Wednesday, January 25, 2017
The next week will be momentous for our country as we recognize a monumental public figure who challenged the U.S. government and society to create the more perfect union that the Constitution demands. On Monday, January 16, the nation remembered Rev. Martin Luther King, Jr. on the official holiday that commemorates his legacy. Notably, too, on Friday, January 20, we will mark the end the President Barack Obama’s two-terms as the first African American president, and begin the presidency of Donald Trump.
Many citizens find this transition in U.S. presidential leadership more portentous than promising and have mobilized multiple demonstrations, not in celebration, but in protest and anxiety that the incoming administration portends to undo the measured progress has been made to realize the constitutional promise. These bookended events should give us great pause to think deeply about what – and perhaps even more important, who – is America, and the continuing relevance of Dr. King’s vision in answering these questions.
In my work as co-director of the Cold Case Justice Initiative at Syracuse University College of Law, I am intimately involved in the racial and social dynamics of the civil rights era of the 1960s and 1970s, in which the U.S. was steeped in discord and violence, as Black people sought full civil rights and were frequently met with hostility and death. Many victims of the violence of this era remain unidentified, cases remain unsolved, and perpetrators remain unpunished. For these reasons, the Emmett Till Unsolved Civil Rights Crimes Reauthorization Act was passed by the last Congress and signed by President Obama to continue to seek justice in these cases. These earlier cases continue to resonate in the present as the calls for justice bellow in the spate of racially motivated killings by law enforcement and private actors of mostly unarmed Black and Brown people.
The demand for justice in these circumstances – then and now – is reflected in Dr. King’s critical statement, “Why We Can’t Wait,” and his critical question, “Where Do We Go From Here: Chaos or Community?” During his own time, Dr. King understood that the burgeoning Black Power Movement and impatience and dissatisfaction with non-violent practice was in response to societal intransigence and impunity of state and private violations of Black people’s rights and safety. He knew that Black lives mattered and that Black rage was justified. ”It cannot be taken for granted that Negroes will adhere to nonviolence under any and all conditions,” he stated. As Dr. King further recognized, “Social justice and progress are the absolute guarantors of riot prevention. There is no other answer.” In other words, Dr. King, admonished American society, “No justice. No peace.” While he was implacably committed to nonviolent resistance, he found, “It is purposeless to tell Negroes they should not be enraged when they should be…Mass civil disobedience can use rage as a constructive and creative force.”
The U.S. Department of Justice just released a damning report of longstanding institutional racial violence by the Chicago Police Department against mostly Black persons in that city – often lethal. The City of Baltimore recently entered a consent decree with DOJ regarding systemic police violence and abuses along the same lines. Dr. King would have recognized these psychic, physical, and legal harms at the hand of the state and the uprisings they generated.
When King was asked about the 1967 riots in Newark, Los Angeles, Detroit, and Memphis, he responded, “In the final analysis, a riot is the language of the unheard. And America has failed to hear that the promises of justice and equality have not been met.” In today’s environment, Ferguson, Dallas, Baltimore, Chicago…all would be known to Dr. King.
The President-elect campaigned on a platform that was divisive; one that ridiculed and vilified society’s most vulnerable people. Women were singled out for gross debasement in public discourse and behavior that the candidate sought to minimize. Immigrants and undocumented workers were singled out as criminals and leeches.
LGBTQ communities, Muslims, disabled people and other marginalized populations question whether the destructive tenor and actions of the incoming administration augur greater discrimination and violation of rights. Thus far, the President-Elect has evinced a remarkable lack of conciliation overtures to bring the nation together and reassure that the American ideals of equal rights, equal justice, and equal value of all persons will be observed. As we pause to remember Dr. King, these contrasting visions of America and American values could not be starker.
Dr. King also exhorted the country to “make America great.” This was the meaning of the “Dream” speech, given on the one-hundredth anniversary of the Emancipation Proclamation. Dr. King urged the country to end the crippling inequality that affected people across racial, geographical, and economic divides. He sought unity, commonality, and appreciation of each other’s unique struggles for justice and inclusion.
Dr. King accepted the Nobel Peace Award in 1964 “with an abiding faith in America and an audacious faith in the future of mankind.” He found justice wounded and wanting, but declared, “I have the audacity to believe that peoples everywhere can have three meals a day for their bodies, education and culture for their minds, and dignity, equality and freedom for their spirits.” For King, it was an unshakable faith that gave him courage to go on “to face the uncertainties of the future.” Dr. King was motivated by faith, conscience, selflessness and humility. He believed that we could be better, individually and collectively as a nation. His as yet unfulfilled vision of a just and equal society is one in which greatness is measured by what we give, not by what we take. By serving, not by being served. And by love, for all people.
Dr. King’s vision was uplifting and he believed in protest as ennobling. As we enter into this uncertain future, we should remember that we are stronger when we are together. So, as we look toward a future that seems fraught with divisiveness and shameful behavior, we must ask what and who is America? We must maintain the audacity of hope.
Thursday, January 19, 2017
For readers following the charter school movement and consequent debates, you may find of interest a new article by Heather Bennett and Steven Nelson entitled Are Black Parents Locked out of Challenging Disproportionately Low Charter School Board Representation? Assessing the Role of the Federal Courts in Building a House of Card.
Here is the abstract for the paper:
This paper discusses the role of Shelby County v. Holder in removing protections for minority influence(s) in the school board selection process. The paper cites and analyzes federal case law to support the theory that the Court’s limitations on Section 2 and rollback of Section 5 of the Voting Rights Act as well as the Court’s illusory promise to regulate appointed boards via the Equal Protection Clause allows for the limitation of minority participation and influence in the political process, specifically the selection of school boards members. Specifically, this paper argues that charter school movement results in decreased minority political voice and participation in education policy decisions. Moreover, this paper finds that traditional civil rights laws fail to protect the right of Black parents to participate in education policy processes and the politics of education. New Orleans – the epicenter of the charter school movement – is a ripe case study for this investigation. With nearly every public school student in New Orleans enrolled in a charter school, it is important to analyze the policy impact(s) of the displacement of predominately Black policymakers with predominately White policymakers.
The article is published in the Duke Journal of Constitutional Law and Public Policy (2016) and available for download here.
Monday, January 16, 2017
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.
Wednesday, January 11, 2017
Thursday, December 29, 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.