Friday, September 8, 2017

Teaching Dred Scott in the Era of Trump


I taught Dred Scott v. Sanford this week. As a teacher and scholar of civil rights, it’s my job to teach the constitutional canon and how Dred Scott, and cases fairly called its progeny, misshaped our idea of equality. And while it is unsurprising to teach this canon in a course at Marquette Law on “Contemporary Perspectives on Civil Rights,” or in any civil rights or constitutional law course, what was different this time is that I taught Dred Scott for the first time in the Era of Trump.

Of course, I’ve taught the case before in first-year Property, in my Race Racism & American Law seminar, in public lectures at WVU Law, and in seminars on three different continents. I’ve written about Dred Scott in articulating my view of “tiered personhood” and blogged about its contemporary relevance. And it is fair to say that, after teaching for over 10 years, on some level, I was used to rehearsing the case often called “pure constitutional evil.”

But this time was different.

I walked into class, ready with my practiced confrontation of this intellectual monument to Chief Justice Roger Tawny. And after answering follow-up questions from last class about a case that enforced the racial classification system on which slavery depended, I began Dred Scott by reminding my students that we were studying the origin story of American white supremacy.

But before opening the casebook, I recalled that a student suggested we frame the conversation by watching a recent viral video of Univision News journalist Ilia Calderón. I had attempted to show the video in the class prior, but due to technical difficulties, this video prefaced our discussion of Dred Scott—which was not my original plan but proved more than appropriate for discussing the case in today’s political climate.

After the video ended, I found myself dumbstruck. This Klansman and his wife had the audacity to claim his superiority based purely on the color of his skin (which echoed the race classification cases from last class). He called her a “mongrel” and a “n**ger” and threatened to burn her out of his land. And despite their claims of racial superiority, religious exceptionalism, and entitled grievance, accompanied by threats of rebellion against a government that attacks their heritage and takes their stuff, the couple claimed they are not racist and the Klan is not a hate group.

In that moment, I remembered that Dred Scott is more than precedent. It is the anti-gospel of slavery, echoed anew by this Klansman, as an effort to tell Ms. Calderón (and all of us who can imagine her situation) to keep our place or be ready to burn. My own anger welled up, and my sadness too because that Klansman’s words reminded me of the times I had been called “n**ger” by white people, or told during an internship that “deliveries were around back,” or called “Big boy” by a white senior partner in front of my peers. Watching this Klan couple’s loathing reminded me that their hearts are full of twisted grievance and their minds are the heirs of the racial hierarchy enforced by Dred Scott.

To calm myself after the video ended, I had to let silence overcome the room. As far as I could tell, the students felt some mix of anger, pity, and shock. After this pause, I explained in both legal and moral terms that the structures of racism and the ideology of white supremacy cannot be thought of in isolation. The anti-gospel of the Klan and the words of Chief Justice Tawney must be thought of as parts of a whole.

Indeed, to read Dred Scott is to read a blueprint for structural racism. American citizenship is defined to exclude all black people. Slaves are a property that can be treated with near impunity. People of color do not belong in the American political community. A black person was “so far inferior that they had no rights which the white man was bound to respect.” These are the lessons of Dred Scott, which followed through on the seeds sown in the Constitution of 1789, and which took amendment and 160 years of activism, struggle, and needless death to reverse.

And though the law has changed, the reversal is incomplete. This era—these times we live in now—echo that evil. The boundaries of personhood continue to be drawn to exclude not only race, but also gender and sexual orientation. The borders of the political community are being redrawn to wall off children who live up to the egalitarian American creed but have imperfect immigration status. The Klan and Nazis march with the impunity offered through mealy-mouthed accommodation from the White House. The structures of mass incarceration, disenfranchisement, and police brutality were built according to the same blueprint of white supremacy as Dred Scott, yet there are those who defend these still-functional monuments to slavery and Jim Crow as “law and order.”

Dred Scott and its ideological and doctrinal progeny are still with us. As much as we have moved away from being an apartheid state, as much as we have asserted through the Constitution and laws that we believe in equality, there are those of us who, by their torches, their twisted ideologies, and their policies seek to bring us back to that time. Their fire and fury—both cultural and legal—still try to burn out equality in the name of nativism and racial superiority. This is the era in which we live.

September 8, 2017 in Current Affairs | Permalink | Comments (0)

Wednesday, August 30, 2017

President Trump Should Be Impeached for Pardoning Joe Arpaio (Ian Haney Lopez)

by Professor Ian Haney Lopez

Like Donald Trump, Joe Arpaio made his name in politics through aggressive race baiting, repeatedly winning election as the sheriff of Maricopa County, home to Phoenix, by that means. Arpaio’s political strategy involved systematically going after the city’s Latino residents, using Latino appearance as the predominant reason for stopping and detaining people until they could prove their right to be in the United States.

Arpaio claimed his goal was to enforce immigration laws. But the pervasive targeting of folks based on their “Mexican” appearance made it clear that his deeper goal was to publicly stigmatize Latinos, citizens or otherwise, as perpetual foreigners in Arizona. In effect, he used racial harassment to grandstand politically.

In 2011, a federal court issued a stinging rebuke of Arpaio, making clear that the Constitution prohibits going after Latinos based on a presumption that we are in the country illegally. This sort of racial profiling, the court warned, was unconstitutional and had to stop.

Arpaio refused, and indeed made a point of flaunting his disdain. He ordered his officers to continue detaining and harassing people principally on the basis of Latino appearance.

Finally, this July, the federal court responded again and held Arpaio in criminal contempt for his refusal to obey the law. Compared with the damage he had done to thousands of people over his 25 years in office, Arpaio faced a slap on the wrist—a mere six months in jail, at most. Nevertheless, his conviction sent a powerful message about the law’s duty and power to protect people from abusive government officials.

Then Trump pardoned Arpaio, siding with someone guilty of violating the 14th Amendment’s bedrock command of racial equality and of mocking a federal court’s order that he desist.

There’s some discussion, for instance in a recent op-ed in The New York Times, of the possibility that Trump’s pardon could be rejected by the courts. The logic is that in using his pardon to dismiss a conviction for violating a court order, Trump has effectively gutted the capacity of the courts to serve as a “check and balance” against executive power. He has done that. But it’s doubtful the courts will limit the president’s ability to grant pardons on that basis. After all, the pardon power by its very nature hamstrings court power.

There are a number of points in constitutional law in which the judicial branch confronts an inevitable truth: Democracy does not depend on courts or laws themselves, but on respect for the rule of law. When that respect is lacking among other branches of government, the courts can do little on their own to save democracy.

At these points, the courts often defer—to the abuser, in the short run, but ultimately to us, the people. At the end of the day, it is the public that must decide what is acceptable—and what trammels democracy. The president is answerable, a court might say, “in his political capacity.”

One way the president can be made answerable is through electoral process. Another is through impeachment by the people’s representatives in the House.

In pardoning an official who spat upon the 14th Amendment right to racial equality and who treated the federal courts contemptuously, Trump abused his presidential powers. He enabled a racist to trash our country’s core values and subvert the rule of law and face no consequences for these actions.

With courts powerless to stop this double assault on democracy, Trump must be held to account politically. This is precisely the situation for which impeachment was designed. The Constitution speaks of impeachment for “high crimes and misdemeanors.” This term refers not to some narrow set of enumerated crimes but broadly to abuses of public power that threaten the democratic order.

Other grounds for impeaching Trump have been advanced and, given his temperament as well as on-going investigations, others will surely emerge. Likewise, with respect to his aligning himself with racists, the bill of particulars against Trump is long and growing, from his birther lies to his coddling of the Charlottesville white supremacists. Finally, this is unlikely to be Trump’s last abuse of pardon power. Pardons for family members, and even for himself, may come all too soon.

As a technical matter, these swirling and deepening transgressions are independent of Trump’s pardon of Arpaio, which could stand on its own as a basis for impeachment. But the case for impeachment should not be read narrowly. It is, at root, a political judgment. At its most mystical—in the aspirational sense of the word—impeachment is the people’s power. This power should be exercised based on concrete abuses, to be sure, but should also look broadly at the president’s behavior, past and probable.

Of course, impeachment is most often mystical in a much less flattering sense, as an ideal rarely honored but instead typically mired in petty party politics. It’s overwhelmingly likely the current Republican House majority will refuse to impeach Trump. In this circumstance, the people must elect a majority that will impeach—one that honors racial equality, protects the rule of law, and thereby saves democracy.

-- Ian Haney Lopez is the Earl Warren Professor of Public Law at the University of California-Berekeley School of Law

This article was originally published in The Nation here


August 30, 2017 | Permalink | Comments (0)

Wednesday, August 23, 2017

On Overstating the Case for Confederate Monuments


Robert Edward Lee statue in Emancipation Park

It is overstatement to say that by removing monuments to Confederate generals one is erasing all history. Commentators have wondered aloud whether this will become a long-term movement towards total eradication of history of the South. The president even suggested this by asking when this will stop. He called the removal of Confederate monuments the destruction of culture. These claims incorrectly conflate crafting historical memory with the fact that honorific statuary in public places signals the values of the modern-day community.

Memory of the Civil War and its aftermath will not suddenly be completely erased forever because statues are torn down, street names changed, buildings renamed, and the like. Culture will not be destroyed. (And as an aside, one should ask, "Who's culture is being protected by protecting these monuments?") The consequences of the Civil War, for good and ill, linger. Moreover, history's memory is a lot longer than the beginning and ending of a statue, and history will continue to be useful as long as scholars, schools, and society have open and honest conversations about the past.

History is dynamic. Honorary statues are not. Communities change and values evolve and those who are honored yesterday may be disfavored tomorrow. Think about it this way--when the American Revolution concluded, as my friend and Marquette colleague Edward Fallone points out, no one objected that the history of British rule over the colonies would be erased forever when the statues of George III were torn down. Two hundred forty one years later, we literally still sing songs to sold-out audiences about the American Revolution. And Hamilton the Musical! still gets the facts right.

The communal choice of determining who is and who is not to be honored in the present day is a completely different conversation than one about the state of history. We shouldn't confuse the two.

Who gets honored in community space ought to be a democratic conversation for each generation. Before the revolution, George III was King. After the Revolution, George III did not represent what America means anymore to the majority of Americans, so statues to him had to go. Similarly, if the representatives of the public and private will in twenty-first century America have arrived at the decision that the twentieth century images of those who committed treason and insurrection to protect nineteenth century chattel slavery no longer deserve public places of honor because those communities see themselves as dedicated to egalitarian democratic values, then it does not follow that for some sense of static history the statues should not come down. That would privilege the ideology of the nineteenth century over the reality of the voices of the twenty-first. (And, as evidence is showing, the statues at issue now went up precisely to signal the ascendancy of white supremacy, both in the 1920s at the height of Jim Crow and 1950s in mass resistance to the racial integration demanded by Brown v. Board of Education.)

One may object that the judgments of history are cruel. The vicissitudes of the future may be such that one day, Martin Luther King, Jr. memorials and street names may be arbitrarily torn down, that today's egalitarian heroes may end up tomorrow's villains. The people who win this argument today and see the statues torn down, the argument goes, will end up losing the argument tomorrow. That slippery-slope reasoning misses the point. To quote Hamilton the Musical, once you and I are extinct, neither of us has control over "who tells our story." That's just the reality. All we can do is live our lives now in a way that makes our values clear and be content to let history be the judge of that.

It is that values question we should really be asking. As far as I can tell, those who object to the removal of the statutes seem to be saying that those Confederate generals who defended slavery, secession, and white supremacy represent the values of a twenty-first century America that is becoming more egalitarian and diverse.

As to that, all I can say is those folks have a lot of convincing to do. I think I have made clear that I'm not persuaded by this. But, in the spirit of free speech, those who support the statues get to make the argument. And short of turning the protest to violence—which they did—they even get to light their citronella tiki-torches and march in Charlottesville, Boston, and wherever else. And those of us who disagree should do so, and peacefully point out the error of their ways. (Remember: the First Amendment may protect your right to object from state sanction, but it doesn't protect you from the consequences of disagreement.)

But as the supporters of letting the legacy of the Confederacy continue to be central to our twenty-first century places of honor make that argument, my advice is to not overstate the claim by saying the removal of the Confederate generals' statues erases history. That argument will likely cost you a lot of your audience. And they won't forget.

August 23, 2017 | Permalink | Comments (0)

Wednesday, August 16, 2017

Claiming the South--and All of Its History

I had kind of a surreal moment in Forsyth Park the other day--one that is still on my mind. Forsyth Park is in historic Savannah, Georgia, just a few blocks from where I live--and right across the street from Savannah Law School, where I work.  I was walking by the large monument with the statue that is right in the middle of the park. There was a Black family taking pictures in front of the monument, and just as I walked pass them, one of them said to the others, "I wonder what this is."

I normally don't interfere in other people's family conversations, but I know full well what that monument is, and I had to tell them. So I got their attention and said bluntly, "It is a Confederate monument." I pointed to the inscription on the bust of Francis S. Bartow (which they were photographing), right where it says "Georgia Volunteers Confederate States Army." I thought of engaging them in further conversation, but they looked a bit stunned and embarrassed, and I did not want to exacerbate those feelings. They thanked me, and I walked away, feeling like I don't know what. I have many different thoughts about this stuff, and it has taken me a few days to process them.

Savannah has more than its fair share of Confederate landmarks, but what is interesting is how subtle there are. The statue in the middle of the monument in Forsyth Park is not a statue of Jefferson Davis or Robert E. Lee, but rather Major General Lafayette M. Laws. Neither he nor Bartow is someone that most people have heard of. I see tourists taking pictures of it all the time, and at first I presumed that they were celebrating the Confederacy. Over time, however, I have become convinced that they just see this nice statue (which it is) in the middle of the park and, like any other nice work of art, they take pictures in front of it.

Personally, I knew exactly what the monument was even before I moved to Savannah. I have walked by it hundreds of times, and literally every time, the thought has come in my head that it should be removed. But I also realize that like the tourists, I have walked by similar landmarks and even taken pictures of them without thinking much about it. Although one can usually find out by reading the inscriptions, most people don't do that. It seems that Savannah strives to keep these Confederate landmarks, but not to make them too conspicuous--lest they offend some of the many tourists who are always in the city. In my three plus years living in downtown and historic Savannah, rarely have I seen a Confederate flag--a much more obvious symbol of the Confederacy. There have been a few occasions, but far less than one might expect in a city where many are still resentful of General Sherman. 

There are plenty of other Confederate relics here that people might not be aware of. Right on Gwinnett and Drayton Streets, two blocks from Savannah Law School, there is a bed-n-breakfast called the Confederate House. It has rooms named after Jefferson Davis, Robert E. Lee, and Stonewall Jackson. According to its website, it was actually voted "the most romantic inn in Savannah" in 2013 by But unless you looked at the website or really paid attention, you would not know about it.

It may also be this type of subtlety that allows Savannah to thus far avoid the protests against racism that we are seeing in many other Southern cities. The prominent influence of SCAD--the Savannah College of Art and Design--is one of many factors that intersect with Savannah's history and make the city a unique and interesting confluence of cultures. But that same confluence also helps to mask Savannah's racist history.

I am glad to see that, in light of recent national events, people in the city are at least beginning to have a dialogue about these things.  Although the city of Savannah insists that only the state can rename bridges or order monuments to be removed, we need to start somewhere.  On Tuesday, September 5, there will be a free public forum to discuss renaming the Eugene Talmadge Bridge--which many say is the most prominent landmark in Savannah to be named after a reprehensible figure.  Talmadge was born after the Civil War, but he was a White supremacist and staunch segregationist Governor of Georgia in the late 1930s and early 1940s -- but yet another person that most visitors probably have not heard of.  Even if it does not lead directly to the renaming of the bridge or removal of Confederate monuments, this type of conversation can prompt people to recognize what is being displayed around them.

Nevertheless, there is another important point that I have to make--one that was on my mind even before these recent events. In spite of everything I said above, I do cringe when the first thing I hear out of Northerners' mouths is a diatribe about how racist the South is. One implication of such comments is that the North is somehow devoid of racism or at least less racist--a dubious proposition. Just because something is less visible does not mean it is less salient--as I pointed out above.

But even more importantly, when you view the South exclusively in terms of White supremacy, you are ignoring and erasing the struggle of Black people in the South--and thus using a White racist lens yourself. More Black people live here than anywhere else, and they are not an inconsequential part of the South's legacy. Remember that the struggle for racial equality began in the South and has deeper roots here than anywhere else in America. It was Black Southern civil rights leaders--national figures like Rev. Martin Luther King, and local leaders like Savannah's Rev. Ralph Mark Gilbert--who also define the South's history. Their legacy is as much a part of the South as is Jim Crow or the Confederacy. And as far as I am concerned, to forget the struggle of the Black South, or even to relegate it to the background, is to disrespect those who fought and died here for equal rights.  I realized this fully when I visited the Ralph Mark Gilbert Civil Rights Museum in Savannah earlier this summer.  Everyone who visits Savannah should go to this museum, which documents an equally important part of the Savannah's history--and the South's history.  And when the Confederate monument in Forsyth Park finally does come down, we should put up a statue of Ralph Mark Gilbert in its place.

I am glad that cities across the South are beginning to acknowledge its racist history and the legacy of White supremacy that is still with us. My experience at Forsyth Park the other day shows just how important this acknowledgment is. But let us not forget the struggle of the Black South against such White supremacy--a struggle which continues to this day, and which is the very impetus that is leading us to have these conversations and take these actions right now. 

August 16, 2017 | Permalink | Comments (0)

Wednesday, August 2, 2017

Trump Administration Plans to Attack Affirmative Action

The New York Times reported yesterday that the Trump Administration is planning to attack affirmative action.  The Times noted that it received an internal announcement from the U.S. Department of Justice, Civil Rights Division, which sought attorneys to explore “investigations and possible litigation related to intentional race-based discrimination in college and university admissions.”

As with many other issues, Trump has flip-flopped on affirmative action, taking whichever position is politically expedient.  During his Republican primary campaign, he stated on “Meet the Press” that he was “fine with affirmative action.”  And after the oral argument in Fisher v. University of Texas at Austin II (2015), Trump criticized remarks by the late Justice Antonin Scalia which questioned the utility of race-conscious admissions policies

Of course, few people took these statements seriously.  It is not surprising that, in the wake of Republicans’ failure to repeal the Affordable Care Act and the Trump Administration’s many other problems, Trump wants to distract us from the GOP’s many shortcomings.  Last week, he tweeted out a proposal to ban transgender individuals from serving in the military.  This week, his administration leaks its plan to challenge race-conscious university admissions policies. Trump is thus pursuing a long-standing Republican strategy of appeals to bigotry and racial animus.

This development raises red flags for universities even higher.  Affirmative action has long been a charged and divisive issue.  In June 2016, the U.S. Supreme Court upheld the use of race in college admissions by a 4-3 vote in Fisher II.  Justice Anthony Kennedy surprised many observers, including me, by voting in favor of University of Texas at Austin (UT) race-conscious admissions plan.  Kennedy had never before voted to uphold such a policy, but he continued a general trend of swing Justices casting surprising votes in such cases.  In Regents of the University of California vs. Bakke (1978), Justice Lewis Powell voted to strike down UC Davis Medical School’s set-aside plan for minority students, but he did note in his concurrence that universities could use race as a “plus factor” in admissions.  Twenty-five years later, in Grutter v. Bollinger (2003), Justice Sandra Day O’Connor endorsed the University of Michigan Law School’s flexible, holistic policy, writing the majority opinion in a 5-4 ruling.  Like Kennedy, Justice O’Connor had never before voted to uphold a race-conscious policy.  Fisher II had given conservatives hope to overturn or seriously curb back Grutter, and they were very disappointed with the ruling.

Nevertheless, although Fisher II left in place Grutter’s core framework for race-conscious university admissions, by no means did Justice Kennedy give universities a free pass.  To the contrary, his opinion made clear that UT has an “ongoing obligation to engage in constant deliberation and continued reflection regarding its admissions policies.”  Kennedy acknowledged that in the past, UT “had no reason to keep extensive data”—but he made clear that this was no longer the case.  

Here is where the Trump administration could have its major impact.  The burden is on universities to show that they really need to use race and that “race-neutral” admissions criteria, such as socioeconomic status, will not produce sufficient diversity.  UT met this burden, as data show that Texas’s Top Ten Percent Law is insufficient in this regard.  But in the future, the Trump Administration could challenge UT and other universities on the necessity of using race.  It could find that universities are not sufficiently justifying their need, prompting more lawsuits.  Moreover, simply compelling universities to release information could spur such lawsuits, as opponents of affirmative action can always spin such data to argue that a university’s race-conscious policy is unconstitutional. 

While I do not think that universities will abandon their race-conscious admissions policies directly in response to the Trump Administration’s proposed attack, they will feel more pressure and have to think more carefully about how to defend these policies.  During the Obama Administration, the Civil Rights Division issued guidance to help universities make sure their race-conscious admissions policies were constitutional.  Trump's Justice Department could effectively do the opposite: tell universities that their policies are unconstitutional and should be eliminated.  More than ever before, universities need to be firm, diligent, and proactive in defending their admissions policies and ensuring that their student bodies are racially diverse.

August 2, 2017 | Permalink | Comments (0)

What Makes Americans Support Ethnic Profiling of Arabs?

For over fifteen years, a critical mass of Americans have been calling for profiling Muslims and Arabs in immigration, anti-terrorism enforcement, and surveillance.  A 2009 study by Professor Deborah J. Schildkraut at Tufts University provides some insights into who is more likely to support ethnic profiling of Arabs and Arab Americans post-9/11.  Her study makes the following conclusion:

"This study examines support for ethnic profiling in the United States as a counterterrorism tactic. It first compares support for counterterrorism profiling with support for profiling Black motorists. Then, it investigates whether the status of the profilee as a U.S. citizen of Arab or Middle Eastern appearance or as an immigrant alters either support for profiling or the determinants of that support. In both sets of analyses, the study investigates how competing ideas about the meaning of American identity shape opinions about profiling. Particular attention is paid to liberalism’s emphasis on the rights of citizenship and ethnoculturalism’s emphasis on the ascriptive boundaries of American identity.

The results show that support for counterterrorism profiling is higher than support for profiling Black motorists, that people are more supportive of profiling immigrants than they are of profiling U.S. citizens, and that how people define what it means to be American is a powerful predictor of such support. The perspective promoted by the increasing number of radical activists on issues related to immigration—that being American means being a White European Christian—is the most powerful predictor of support for profiling. A liberal understanding of being American can offset some, but not all, of that support."

Her article The Dynamics of Public Opinion on Ethnic Profiling After 9/11: Results From a Survey Experiment is available here.



August 2, 2017 | Permalink | Comments (0)

Friday, July 28, 2017

Unequal Pay for Women Normal in US

When the BBC published the salaries of its highest paid actors and presenters, female employees were shocked to learn they were systematically paid less than their male colleagues. Nearly fifty years after equal pay acts were passed in the UK and the US, gender pay disparities remain entrenched. 

In my research, I compare civil and human rights in Middle East nations with the United States and other Western self-described "liberal societies". A common flaw in the comparative literature is the Orientalist depictions of Middle East societies as illiberal and oppressive, particularly in the ways they treat women.  

Western governments and their citizens frequently assume Arab and Muslim women are unique in facing gender discrimination. But pay inequality in the US and Europe is a troubling reminder that Western liberalism has also failed women.

Let's look at some Western nations who proclaim their liberal values in comparison to countries in the Eastern and Southern hemispheres. In 2015, a female employee in the US was paid on average 80 cents for every one dollar earned by her similarly situated male colleague. In the UK, a woman is paid only 86 percent of her similarly situated male coworkers' salaries. In France, women earn 15 to 20 percent less than their male coworkers.

Recent high-profile cases remind us that, despite advancements in gender equality in education, pay disparities remain tenaciously entrenched. Despite spending $150 million in diversity efforts, Google was ordered to release its pay records to the US Department of Labor because a preliminary investigation found the giant tech company was systemically discriminating against women in pay.

In the United Kingdom, the BBC pay records revealed large differences in pay between male and female journalists. In learning they were paid less than their male colleagues for the same work, forty-two women journalists issued a letter calling out the BBC for commenting that they would "'sort' the gender pay gap by 2020".

"The BBC has known about the pay disparity for years," they wrote. "We all want to go on the record to call upon you to act now."

These news reports do not reveal any surprises. Pay inequality between women and men in the West has been well documented for decades.

To read the full article published in The New Arab, click here


July 28, 2017 | Permalink | Comments (0)

Thursday, July 27, 2017

What Justine Damond and R. Kelly Can Teach Us About Blackness and Innocence

Damondkelly collage



One is a blonde, blue-eyed Australian woman fatally shot down weeks before her wedding.  The other is an African American man from Chicago known for pursing musical success and underage girls with equal enthusiasm.      

At first blush, it might seem that the two have little in common.   However, each news story proves that race and gender distort our view of who should be considered “innocent” in our society. 


Justine Damond

Justine Damond called the police because she thought she heard a woman being attacked near her home.  When the police arrived, Ms. Damond, unarmed and wearing pajamas, was shot and killed.  Robert Bennett, the attorney for Ms. Damond’s family, told the Minneapolis Star-Tribune that Ms. Damond was “the most innocent victim” of police brutality shooting he had ever seen.

I do not object to Mr. Bennett’s statement.  By all accounts, Ms. Damond was innocent. However, I do object to the fact that Black victims of violence are almost never referred to as innocent. 

When a Black person is killed, the victim’s transgressions – whether serious or trivial – are laid bare for all to see.  People reach for these facts as if to say, “Aha!  This guy was a thug!  It’s a good thing the police got him!”  The sad part is that it doesn’t take much to reach this point because, in America, there is a constant presumption against Black innocence. 


R. Kelly

Robert Kelly’s transgressions against young women began with his marriage to 15-year-old singer Aaliyah in 1994.  After tapes surfaced showing him violating a young girl, he was charged with child pornography and later acquitted.  Last week, allegations surfaced that Kelly had been holding young women in a cult-like environment. 

Despite decades of allegations against Kelly, last week, many Black men rushed to defend him.  “What kind of girl goes to a singer’s room at night?”  “He’s no worse than Hugh Hefner!”  “She was young, but she knew what she was doing!” 

As I listened to these feeble defenses, I could only think of how they were subtle (and not so subtle) ways of not only defending the perpetrator, but blaming the victim.  But the reaction was not entirely surprising because in America, when a woman is raped, she is rarely considered innocent. Indeed, in this country, a woman’s morality is judged by her sexual past.


The Common Thread

The Justine Damond story illustrates society’s reluctance to view Black people as innocent.  R. Kelly’s story demonstrates society’s failure to view women as innocent.  Sadly, when these beliefs combine, Black women are the least likely to be considered innocent, especially when the crime is rape and the perpetrator is a Black man. 

Black men forcefully object when police victims are demonized – particularly Black males.   Nevertheless, these same Black men vilify Black women that accuse Black men of rape.  Ironically, the attacks they thrown at these women are identical to those aimed at the victims of police brutality.  Saying, “He shouldn’t have worn that hoodie,” is the same as saying “She shouldn’t have been wearing that skirt.”  Saying, “He should have listened to the officer,” is no different than saying, “She should’ve known what she was getting into.”  Dredging up the criminal record of a male police brutality victim is degrading and unnecessary, but discussing a rape victim’s sexual history is equally so.   

These dismissive Black male attitudes are particularly problematic because Black women are more likely to experience rape than white women, Asian women, or Latinas.  Sadly, these macho attitudes likely explain why for every sixteen Black women that are raped, only one will report her attack.  

 When Black men fail to see sexism, Black women are left without one of our most important allies.  Therefore, when Black women suffer sexual violence, we suffer alone.  Because we suffer alone, we do not get the support and respect that we need and deserve.  

Obviously, not all Black men defend those that harm Black women.  I am heartened by the number of Black men who have denounced R. Kelly, Bill Cosby, and other men accused of crimes against Black women.  But the thousands of holdouts prevent real progress on this issue.  I encourage the Black men who have been challenging their brothers to keep the conversation going because it is an important first step.

Black women carry the weight of racism and sexism.  It would be wonderful if Black men helped to alleviate our burdens rather than adding to them.   

July 27, 2017 | Permalink | Comments (0)

Thursday, July 20, 2017

Can We FINALLY Stop Saying that Black People Don’t Value Education?


Little rock nine e eckford

Caption:  Elizabeth Eckford braves a crowd to enter Little Rock Central High.  Source: NPR.


Last week, the Pew Research Center released survey results wherein a majority of Republicans polled – 58 percent – indicated that colleges and universities have a negative effect on our nation.    

In 2017, college – the place where people literally go to learn things – is a bad thing in the Republican mind.  Since 86 percent of Republicans are white, apparently, a solid number of white folks do not value higher education.    

This survey provides further proof that the “acting white” theory promoted by Black and white conservatives should be forever discredited and abandoned.  

For the uninformed, the “acting white” theory operates as follows:  Low-achieving Black youth taunt their more academically gifted peers by accusing them of “acting white.”  As a result, the intelligent youth fail to achieve academic success. 

If this sounds suspicious to you, it should.  The theory has never been proven in any meaningful way.  (See Dr. Ivory Toldson’s epic takedown of the theory here.)  Yet, the myth of “acting white” endures.

The persistence of this myth is problematic for many reasons, but I’ll focus on three.

First, the “acting white” myth perpetuates a most insidious form of white supremacy.  In this myth, white folks are uniformly good, smart, and hard-working – so much so that Black folks envy their superior intellect and industriousness.  This knowledge motivates the jealous Black children to tear down their smart peers for “acting white” because, after all, the children know that to be Black is to be ignorant.   

So, whenever someone deploys the “acting white” theory, what they are really saying – implicitly or explicitly - is that if Black kids embrace whiteness and its positive attributes, they will succeed.  Conversely, their Blackness – and the laziness, stupidity, and inferiority that comes with it – must be avoided or discarded altogether.

Although it goes without saying, I’ll say it:  These assumptions are incredibly racist.  White people do not have a monopoly on intelligence or hard work.  Any theory that is so deeply rooted in false assumptions about white superiority must be rejected. 

Second, the “acting white” theory is not rooted in facts.

Contrary to what “acting white” advocates say, Black youth have positive attitudes about education.  In his analysis of data on student attitudes, Dr. Toldson found that Black males were the most likely to consider high-achieving students “cool.”  Moreover, 95 percent of Black girls said that they would be proud to tell their friends about their academic achievements – the highest percentage of any group.  Black girls were the least likely to avoid telling friends about academic triumphs; white males were the most likely to do so.  Finally, Black females were twice as likely as white males to report that their friends would support their choice to study even if it meant delaying plans to have fun. 

Black people are not anti-intellectual.  Black people are more likely to read than whites.  Compared to whites, Black parents are twice as likely to believe that college is extremely important for their children’s futures.  The number of Black and Latino students earning bachelors, masters, and doctoral degrees has been steadily increasing for the past forty years. 

Clearly, the data paint a far different picture than that put forward by the “acting white” mythologists. 

Finally, “acting white” theory diverts our attention from the real cause of Black students’ academic woes – racism.  “Acting white” didn’t keep children of color in segregated classrooms until 1954. “Acting white” didn’t make white folks fight bussing in the North or close public schools in the South.  “Acting white” didn’t create racially exclusive private schools as alternatives to integrated public schools.  “Acting white” didn’t make Republican politicians cut public school funding to the bone.  “Acting white” didn’t cause the poverty that creates the problems that students bring into the classroom. 

The “Acting white” myth, like a good NBA point guard, misdirects our attention while the real target – racism - remains untouched.  

Black youth don’t need to change their attitudes toward education – but society does.  When asked about barriers to attending college, Black students did not cite a fear of “acting white,” but did indicate financial concerns.  Rather than blaming Black children for failing to escape a system rigged against them, we would do better to change the system.  We need a structure that provides meaningful and affordable educational opportunities for all children.  Until that system is in place, I encourage conservatives to stop fabricating myths that keep us from solving the very real problems caused by racism.   

July 20, 2017 | Permalink | Comments (0)

Wednesday, July 19, 2017

Why I am not “Asian” and Other Reflections on Asian American Identities

The experiences of Asian Americans in the legal world are gaining attention—a long overdue development.  This week, Yale Law School published a comprehensive report entitled “A Portrait of Asian Americans in the Law.” The report covers a variety of issues—Asian Americans’ experiences in law schools, clerkships, law firms, government, judgeships, and legal academia, along with the various obstacles that we face.  Shortly after the Yale report was released, the Washington Post published an article on this topic, drawing from the report. 

Just last month, the Law School Survey of Student Engagement (LSSSE) also published a report focusing on the experiences of Asian and Asian American law students—especially diversity among these students.  I was invited by LSSSE Director Aaron Taylor to write the Foreword for this report.  LSSSE wanted to address the proper terminology to refer to various Asian American groups, and my Foreword discussed that issue.  Drawing from my discussion with Aaron, I noted that racial terminology is inherently problematic, but that it is necessary to discuss race, and that we have to accept imperfect solutions.  Nevertheless, I do believe that discussing the nuances of this terminology can help rebut stereotypes of Asian Americans and help us understand distinctions within the group.

The Yale report notes that it “use[s] the term ‘Asian American’ and ‘Asian’ in accordance with their usage by cited sources” … but also acknowledges that the terms are not necessarily interchangeable[.]”  I was glad to see the report highlight this tension. Many sources use the terms interchangeably to reduce word counts and avoid repetition.  In one sense, that is understandable.  However, it has long given me pause that people view the terms as synonymous: they often drop the “American” and refer to Asian Americans as just “Asians”—without critical reflection.  The “American” part is really important to many of us.  Throughout our history, Asian Americans have been viewed as perpetual foreigners who can never be “real Americans.”  Simply calling us “Asian” only reinforces that stereotype and erases a core aspect of our identities.  Moreover, lumping different groups together under the rubric of “Asian”—a term that includes 4.5 billion people—obscures far too many differences.

The Yale report also notes that “the term ‘Asian’ may include foreign nationals[.]”  The implication then is that the term “Asian American” may not include such foreign nationals.  My personal view is that anyone who is living in America is “American” regardless of citizenship, nationality, or intent to remain.  I hold this view even more strongly in the context of the Trump administration’s attacks on immigrants. 

Additionally, some people prefer the term “Asian Pacific American” so that Pacific Islanders are included.  Others think that Pacific Islanders should be identified separately from Asian Americans.  The U.S. Census Bureau takes this latter position: its racial categories include “Asian” and “Native Hawaiian or Other Pacific Islander.”  And within Asian American circles, there are distinctions made between South Asian Americans (those descended from the Indian subcontinent), East Asian Americans (those of Chinese, Japanese, and Korean descent), and Southeast Asian Americans (those from Vietnam, Laos, Cambodia, etc.). 

These distinctions are especially confusing to people outside of our communities.  Often, when I present my research on South Asian American racial ambiguity to academic audiences, a fellow scholar who is not Asian American will come up to me afterwards to talk about my presentation.  Although I used the term “South Asian American” dozens of time during the presentation, the person will say something like “your work on Southeast Asians is really interesting”—despite the fact that I did not use the term “Southeast Asian” at all.  Of course, I realize that this is a perfectly innocent mistake, but it does reflect a general lack of familiarity with Asian Americans, even among some scholars who are interested in race.

I hope those who are unfamiliar with Asian American identities will take the time to learn about these basic distinctions; and also about the salient issues which affect all Asian American communities.  Discourse on race is such a balance between such commonalities and distinctions, and Asian Americans are no different.  I encourage everyone to read the Yale and LSSSE reports and the Washington Post article … and also my articles

Acknowledgement: Thank you to my colleague Shakira Pleasant for her helpful feedback on drafts of this post.

July 19, 2017 | Permalink | Comments (0)

Monday, July 17, 2017

Giving Voice to the Incarcerated

I recently came across a powerful resource that gives voice to those incarcerated in America's massive prison system - The American Prison Writing Initiative.  With all of the news coverage about America's mass incarceration system, this project gives voice to those directly affected by the myriad flaws with the criminal justice system - the prisoners.  As Mari Matsuda's seminal article, Looking to the Bottom, reminds us "those who have experienced discrimination speak with a special voice to which we should listen."

As such, the APWAs goal is:

"to replace speculation on and misrepresentation of prisons and imprisoned people with first-person witness by those on the receiving end of American criminal justice. No single essay can tell us all that we need to know. But a mass-scale, national archive of writing by incarcerated people can begin to strip away widely circulated myths and replace them with some sense of the true human costs of the current legal order. By soliciting, preserving, digitizing and disseminating the work of imprisoned people, we hope to ground national debate on mass incarceration in the lived experience of those who know jails and prisons best. This is the mission of the APWA."

The over 1200 essays by prisoners can be accessed at:


July 17, 2017 | Permalink | Comments (0)

Tuesday, July 11, 2017

Remembering the Real American Patriots – Black Women




Black woman with flag

Source:  National Archives
Untitled painting of a black woman sewing an American flag, by O, Vereisky, 1964



I have never liked the Fourth of July.  As a child, sparklers and fireworks terrified me.  As I grew older, the more I learned more about America’s complicated history with people that look like me, the less likely I became to wave Old Glory. 

But this year, I had a realization. 

The problem with Fourth of July is not patriotism, but rather that patriotism has been too narrowly defined.  For far too many Americans, patriotism means unquestioning, automatic praise of America.  Criticizing America’s past or present is tantamount to treason. But this need not be the case.  The Oxford English Dictionary says that a patriot is one “who vigorously supports their country and is prepared to defend it against enemies or detractors.”  

When most think of America’s enemies, they think of those from foreign lands that would harm Americans.  But we must beware of all enemies, whether foreign or domestic.  A man who advocates a freedom of religion that applies to some, but not all, has surely harmed Americans and done violence to the First Amendment.  A man who has shown nothing but contempt for our cherished freedom of the press is surely no friend to the nation or its constitution.  A man who delights in his refusal to vigorously protect our redwood forests, Gulf stream waters, and beautiful, spacious skies surely cannot love America.  A man who advocates sentencing millions of Americans to ill health – and perhaps even death - by denying them health care is no friend to those Americans.

If you truly love something, you want to protect everyone and everything in it.  A person who is actively working to harm Americans and American institutions can only be considered an enemy to America.  

No one has done more to defend this nation against its greatest domestic enemy in recent memory, Donald Trump, than Black women.

Please do not misunderstand.  Black women are not the only patriots in America right now.  There are Black men, white women, Latinos, Arabs, Asians, and many others who are standing against Trump.  However, as a group, Black women have been the most vigorous in their opposition and need to be recognized for this loyalty to their country. 

Black women did everything possible to stop Trump from taking office.  A staggering ninety-four percent of Black women voted for Hillary Clinton.  By contrast, sixty-two percent of white men voted for a man who ran a horribly racist campaign and promised to violate the Constitutional rights of their fellow citizens.

Exit poll pic




One could argue that some GOP voters mistakenly believed that Trump was simply making brash campaign promises.   But now, almost six months in, we can clearly see the damage Trump is doing at home and abroad.  Despite this knowledge, post election,  58 percent of white men continue to support him.  Meanwhile, just 14 percent of Black women approved, the lowest of any group in the survey.    

Nbc approval ratings pic


Source: news


Really, which group loves Americans more?

It’s ironic that Trump supporters claim to love America, but praise a man actively working to harm large groups of Americans.  It seems, then, that Trump voters only love parts of America.  But Black women have shown a more expansive love.  We love America even though, after enduring centuries of both racism of sexism, we likely have more reason to hate America than any other group.  We endured the same chattel slavery, Klan violence, and Jim Crow segregation as Black men while suffering the same gender indignities as white women.  Yet, we continue to do what is best for America.  Like Sojourner Truth, Harriet Tubman, Rosa Parks, and many less famous women, we show America her flaws and even help her to fix them.  We continue to lift her up, push her forward, and help her be a better version of herself even when we are rebuked at every turn. 

If that isn’t patriotism, I don’t know what is.

If all Americans adopted the expansive vision of patriotism adopted by Black women and their allies, we would have a government that cared for children, women, the poor, the elderly, the LGBT community, Muslims, Jews, atheists, and all other non-male, non-straight, non-WASP segments of our nation instead of a government devoted to inventing new ways to exclude and dismiss their fellow Americans.    

In short, the view of patriotism adopted by Black women would move us ever closer to achieving the goal of a nation with liberty and justice for all. 

Next year, I think I’ll buy a pack of sparklers.

July 11, 2017 | Permalink | Comments (1)

Wednesday, July 5, 2017

Race, Gender, and Age Discrimination Among Attorneys

A recent article in the Social Science Quarterly, entitled Intersecting Disadvantages: Race, Gender, and Age Discrimination Among Attorneys, conducts a "systematic study that takes an 'intersectional' approach to understanding how attorneys experience discrimination by their professional peers." 

Professors Todd Collins, Tao Dumas, and Laura Moyers "analyze original survey data from over 2,000 practicing attorneys to investigate whether women of color are more likely than other race-gender cohorts to perceive that they are treated unfairly by other attorneys, and what impact such perceptions may have on their satisfaction with their careers." 

The article finds that "minority women are more likely than others to perceive unfair treatment based on race, gender, and age. This also contributes to lower career satisfaction for attorneys who are women of color than for other groups."

The authors proffer that "the findings have important implications for understanding attorney relationships and potential barriers for minority groups within a profession’s culture. These obstacles not only impact attorneys, but could also influence attorney choice for citizens and the prospects for a representative judiciary."

The full article is available at Download Collins_et_al-2017-Social_Science_Quarterly


July 5, 2017 | Permalink | Comments (0)

Monday, July 3, 2017

CFP: Is it Time for Truth & Reconciliation in Post-Ferguson America?

Call for Papers

"Is It Time for Truth & Reconciliation in Post-Ferguson America?"

Sponsored by Michigan State University College of Law

Ever since Europeans first settled the continent over four hundred years ago, racial injustice has existed in North America.  Human bondage was formally recognized in the United States for nearly a century following the Nation's birth in 1776.   While the Thirteenth Amendment officially abolished slavery in 1865 and the Fourteenth Amendment mandated equal protection in 1868, nearly another century passed before "separate but equal" was repudiated and some progress was made.  Today we still see persistent racial inequities throughout American society.   The criminal justice/prison complex disproportionately targets, captures and incarcerates persons of color; and police shootings of unarmed black victims - such as of Michael Brown in Ferguson, Missouri in Aug. 2014 - are grimly commonplace.  It is difficult to deny, in light of this history, that America has a major problem of race. What can be done?   Truth and Reconciliation is a process that has been used effectively in other nations and cultures (e.g., South Africa; native nations) following times of deep racial discord/violence.    The idea is that true healing can begin only when past atrocities and injustices are first acknowledged and addressed.

The Symposium Committee, in conjunction with the University's administration, seeks to convene leading activists, scholars, policymakers, and thought-makers for 1-2 days of discussions and conversations on the topic of the Nation's responsibility to account for the history of racial injustice in America.  Selected submissions will be presented at the Law Review Symposium in March 2018, and published in a special symposium issue of Michigan State Law Review.

To be considered, please send an abstract (300 – 500 words) outlining your proposed paper to Professor Catherine Grosso at and Marie Gordon at by August 15, 2017.   Don’t hesitate to contact us if more information would be helpful. 

Faculty Co-Sponsors:  Tiffani Darden; Matthew Fletcher (Director of Indigenous Law & Policy Center); Kate Fort (Director of Indian Law Clinic); Brian Gilmore (Director of the Housing Clinic); Catherine Grosso; Michael Lawrence (Foster Swift Professor of Constitutional Law); Barbara O'Brien (Editor, National Registry of Exonerations); Wenona Singel (Assoc. Director of the Indigenous Law & Policy Center)



July 3, 2017 | Permalink | Comments (0)

Thursday, June 29, 2017

Racism in the Credit Card Industry

A new article by Professor Andrea Freeman examines how credit card companies exploit the economic necessity of owning a credit card to engage in discriminatory and predatory practices against Black and Latino customers. 

The following is a summary of the article:

“In a social and financial climate characterized by deep racial and socioeconomic divide, racism against credit card applicants and consumers is a core piece of the systemic inequality that perpetuates dramatic disparities in wealth, employment, health, and education. Over several decades, credit cards have evolved into an essential tool for lower- and middle-class families to maintain financial stability through strategic balancing between debt and disposable income. Now, without a credit card, many households cannot manage to meet the basic needs of their families. Credit card companies take advantage of this reality, imposing exploitative fees, interest rates, and other conditions on consumers who have no choice but to use the companies’ products. Even worse, the companies do so in a racially discriminatory way, burdening Black and Latino customers with the worst credit card terms, often unrelated to credit risk. This type of consumer racism dates back to the Reconstruction era and reflects an unbroken chain of laws and policies cementing racial economic inequality. Social norms and stereotypes make the resulting inequality appear cultural and personal instead of systemic and structural. 

This Article is the first to apply a critical race theory analysis to the problem of racism against credit card consumers. After describing the role that history and stereotyping play in allowing credit card corporations to discriminate against consumers, it identifies fatal flaws in the two laws designed to address racial discrimination and inequality in credit, the Equal Credit Opportunity Act and the Community Reinvestment Act. It then proposes amendments to the Consumer Accountability Responsibility and Disclosure Act based on rehabilitative reparations theory and slavery disclosure laws that would require credit card companies to make significant investments into the communities they harm.

The full article can be downloaded here.


June 29, 2017 | Permalink | Comments (0)

Friday, June 16, 2017

Stop Blaming “Fatherlessness” for Destroying the Black Community

Black dad and baby

Image credit - Shutterstock via Think Progress

Father’s Day is a time to celebrate the special men in our lives who furnish us with bad jokes and good advice.  But in the Black community, Father’s Day has become a time fret about the impact that fatherlessness is having on our community. 

I am so tired of people – and by people, I mean Black conservatives, White conservatives, well-meaning White liberals, “concerned” Black men, and anyone else – blaming fatherlessness for all that is wrong in the Black community. 

The fatherlessness narrative isn’t fully rooted in reality.  It is true that just over seventy percent of African American children are born to unmarried parents.  However, when cohabitating parents, stepfathers, and other living arrangements are considered, the number of Black children living without a father drops to about fifty percent.  While this number may seem high, non-custodial Black fathers spend more time with their children than fathers of other races.   So, the number of Black children who are truly fatherless is much lower than reported. 

The fatherlessness argument also ignores the Black family structure.  Traditionally, our families have been intergenerational and have leaned on one another for support.  If a child is truly fatherless, it is likely that there is a grandfather, uncle, or cousin willing to provide care and support.  The absence of a father does not necessarily mean a complete absence of male guidance. 

The fatherlessness argument is also a subtle way to blame Black women for the plight of the Black community.  This may seem counterintuitive, but it is a short jump from “there are no fathers” to “these women are failing at raising our youth.”  Even more troubling, the not-so-subtle implication of the fatherlessness argument is that if Black men somehow returned to their “rightful” place in the family, the problems facing the Black community would immediately disappear.  This logic is extremely insulting to Black women.  Black women have been the backbone of our race for centuries.  Though we rarely get credit for it, we have been at the forefront of every movement to uplift our race from abolition to Black Lives Matter.   To argue – even indirectly – that Black women are the reason the race is failing is a grave insult. 

Finally, blaming fatherlessness for the woes of the Black community lets the real culprit off the hook.  The problem is for the Black community is not a lack of marriage liscenses, but an excess of racism.  Structural racism is at the root of every evil the Black community faces.  Yes, each person should take responsibility for his or her own choices.  However, we cannot ignore the fact that racism reduces most choices to an option between rocks and much hard places.  Perhaps marriage rates would be higher in the Black community if Black men were not incarcerated at such high rates or if Black men earned as much as their white counterparts.  Racism, not responsibility, is where our efforts must be focused.       

For those that doubt the role of racism, I offer two points in support. 

In 1960, roughly two-thirds of Black children lived in two parent homes – almost the exact inverse of today’s statistics.  Also in 1960, African Americans could not vote, could not stay in certain hotels or restaurants, and could not move into certain neighborhoods.  Our high marriage rates did not translate into political rights.  Do those touting fatherlessness as the cure-all truly believe that if every black child came from a married home that we would never again hear about police officers shooting an unarmed black child or chocking a suspect until he yells, “I can’t breathe?”  I doubt that this is the case. 

Second, the percentage of Latino children living in two-parent homes is about double that of African American children.   Yet, the number of Latino children in poverty is only slightly lower than that of African Americans.  If marriage was a social silver bullet, shouldn’t Latinos have a lower poverty rate?   Moreover, why is it that married Black and Latino couples have half the wealth of white single parents?   Perhaps the structural racism that affects people of color is the real culprit after all. 

This Father’s Day, the Black community should celebrate all fathers and father-figures in our lives.  Our time would be better spent buying hideous ties than worrying about how “fatherlessness” is destroying our community. 

June 16, 2017 | Permalink | Comments (1)

Monday, June 12, 2017

What the "Loving Day" Celebrations Really Need (Prof. Tanya Hernandez)

Monday, June 12, 2017 marks the 50th anniversary of the Loving v. Virginia, the Supreme Court decision which invalidated interracial marriage bans in the United States. Recently, the Pew Research Center reported that since the 1967 Loving decision the rate of intermarriage has increased more than five fold, from 3% of newlyweds who were intermarried to 17% in 2015. In recognition of this increase, “Loving Day” annual events celebrate the court decision. Primarily organized by multiracial persons as social events, communities across the nation gather on Loving Day to celebrate the existence of multiracial families. The celebrations are part of a larger campaign to have the federal government create an official Loving Day federal holiday.


No other Supreme Court case, let alone a civil rights case, has its own designated federal holiday. However entire multiracial community websites are dedicated to lobbying the government for a Loving Day holiday. This is because much more is at stake for these activists than commemorating a legal case. Validating mixed-race families and in particular multiracial persons, is the fundamental aim of the Loving Day federal holiday campaign. However, the rhetoric of mixed-race racial distinctiveness used by the campaign has begun to be drawn into judicial questioning of racial integration policies in ways that counter Loving Day celebrations of diversity.


The lobby for a federal Loving Day holiday is part of the larger push for legal recognition of a separate multiracial identity as embodied by the earlier exhortations in the 1990s for a separate multiracial racial category on the census. In 2000, the Census Bureau began to quantify multiracial identity by soliciting respondents to designate as many races as apply, but refused to request to add an official “multiracial” category to the list of races.


Absent a multiracial census category, a federal Loving Day holiday can be viewed as an alternative route to official public recognition of a presumably racially distinctive population. While it is certainly laudable to demand respect for however individuals choose to personally identify themselves, the public discourse of distinctiveness that accompanies much of the lobbying for federal recognition relies upon the trope of being a new people with distinctive racial problems. Yet, in my own examination of discrimination cases filed by multiracial claimants I find that the racism they describe is very much part of the historic disparagement of non-whiteness in any form, rather than a new “mixed-race” mode of discrimination.


Nevertheless rhetoric has consequences. United States Supreme Court litigation has begun to associate the growth of a distinctive multiracial identity with the obsolescence of civil rights policies. Particularly worrisome has been the judicial suggestion that the growth of multiracial identity undercuts the legitimacy of affirmative action policies that have long sought to pursue racial equality. Supreme Court Chief Justice Roberts directly posed questions regarding the implication of mixed-race candidates for affirmative action programs, when the University of Texas’ consideration of race in its affirmative action plan was challenged in 2013.


In Fisher v. Texas (Fisher I) the Court affirmed the process of considering race as a factor among others in a public university’s admission efforts to achieve a more diverse student body. But the Court also narrowed the ability to use affirmative action by stating that in the judicial assessment of whether a particular admission policy satisfies the strict scrutiny standard of being narrowly tailored in pursuit of the goal of diversity, the university is not entitled to deference or a presumption of good faith in its operation of their programs.  Justice Roberts questioned how compelling the university pursuit of a diverse student body could be if a candidate who was “one-quarter Hispanic” or “one-eighth Hispanic” is allowed to identify on the admissions application as Hispanic. For Justice Roberts, mixed-race applicants are a cause for generating skepticism about the integrity and ability of affirmative action to truly achieve racial diversity.


Nor is this skepticism limited to Justice Roberts. When the Supreme Court re-examined the University of Texas affirmative action policy three years later in Fisher II, Justices Alito, Roberts and Thomas opined that the affirmative action program was faulty because “as racial and ethnic prejudice recedes, more and more students will have parents (or grandparents) who fall into more than one of UT’s five [enumerated racial] groups.” Such judicial weaponizing of multiracial personal identity to undermine the pursuit of racial justice is a perversion of Loving Day celebrations of racial diversity.


One possible antidote to the misappropriation of multiracial identity is for Loving Day celebrations to focus upon what was the ultimate civil rights objective of the Loving v. Virginia decision – the impermissible pursuit of what the Supreme Court there termed “White Supremacy.” This is because interracial bans only prohibited interracial marriage involving white persons. Fifty years later, after the Loving v. Virginia decision, interracial marriage bans no longer exist, but White Supremacist violence and rhetoric still flourish. Whether or not Loving Day ever becomes an official federal holiday, it is to be hoped that its celebrations will specifically commemorate the decision’s fundamental civil rights concern with racial hierarchy.


Tanya Katerí Hernández is a Professor of Law at Fordham University School of Law and the author of the forthcoming book from NYU Press, “Multiracials and Civil Rights: Are Mixed-Race Stories of Discrimination a New Kind of Multiracial Racism.”


June 12, 2017 | Permalink | Comments (1)

Thursday, June 8, 2017

Playing While White

Professor David Leonard of Washington State University has just come out with a book entitled PLAYING WHILE WHITE: PRIVILEGE AND POWER ON AND OFF THE FIELD.  In different but related ways, race and sports are two of American's biggest obsessions.  The two intersect frequently, because of the racial demographics of participation in various sports; the prevalent racial stereotypes surrounding athletic performance, mental abilities, and masculinity/femininity; the power dynamics involved in athletic competition on and off the field; and many other factors.  Although sports can sometimes be a venue where racial divisions are transcended, they are equally or more often reflective of the racial hierarchies that pervade American society.  Professor Leonard delves into the ubiquity of White privilege in the sports arena, showing how White athletes are often treated more favorably than Black athletes in similar situations.  He uses examples from a variety of professional sports and critically examines the discourse on athletic competition, highlighting its subtle racial inequities.  

June 8, 2017 | Permalink | Comments (0)

Monday, May 29, 2017

The Black Panthers - A Documentary

In an era where grassroots protesters, including the Black Lives Matter, are subjected to government surveillance and mischaracterized by some as thugs, hooligans, and criminals, the 2015 documentary Black Panthers: Vanguard of the Revolution is worth watching. 

The homepage of the movie (also available on Netflix) describes it as follows:

"Change was coming to America and the fault lines could no longer be ignored—cities were burning, Vietnam was exploding, and disputes raged over equality and civil rights. A new revolutionary culture was emerging and it sought to drastically transform the system. The Black Panther Party for Self-Defense would, for a short time, put itself at the vanguard of that change.

THE BLACK PANTHERS: VANGUARD OF THE REVOLUTION is the first feature length documentary to explore the Black Panther Party, its significance to the broader American culture, its cultural and political awakening for black people, and the painful lessons wrought when a movement derails. Master documentarian Stanley Nelson goes straight to the source, weaving a treasure trove of rare archival footage with the voices of the people who were there: police, FBI informants, journalists, white supporters and detractors, and Black Panthers who remained loyal to the party and those who left it. Featuring Kathleen Cleaver, Jamal Joseph, and many others, THE BLACK PANTHERS: VANGUARD OF THE REVOLUTION is an essential history and a vibrant chronicle of this pivotal movement that birthed a new revolutionary culture in America."


May 29, 2017 | Permalink | Comments (0)

Friday, May 19, 2017

Interracial Marriage and Latino/a Racial Identity (Prof. Tanya Hernandez)

Yesterday the Pew Research Center released a report announcing the dramatic increase of intermarriage in the United States.  Looking at data since the United States Supreme Court struck down interracial marriage bans with its 1967 Loving v. Virginia decision, Pew discovered that since 1967 intermarriage amongst newlyweds has increased fivefold from 3% to 17%.   Examined in isolation the data point that one in six U.S. newlyweds are now married to someone of a different race, appears quite astounding.  However the role of Latino/a racial identity is a missing piece of the picture that serves to question the real rate of intermarriage.
The largest driving factor in the apparent increase in U.S. intermarriage rates is the pattern of intermarriage between Latinos/as and White Anglos.  Pew reports that the largest amount of intermarriage between opposite sex couples is that between what it terms “Whites and Hispanics.”  The  White/Hispanic combination represents 42% of intermarriage, while in comparison the White/Asian combination represents only 15%, the White/Black combination 11% , the Hispanic/Black combination 5%, and the Hispanic/Asian combination 3%.  Notably, the Pew report neglects to discuss the role of “Hispanic” racial appearance and identity.
For a number of Latinos/as, our African and indigenous ancestry is more prominent than it is for Latinos/as whose European ancestry is more pronounced.  In fact, Latin America and the Caribbean have long histories of subordinating those of African and indigenous ancestry (see “Racial Subordination in Latin America” by Tanya Katerí Hernández). Moreover, research shows that darker-skinned Latinos/as are perceived with less favor than their lighter-skinned group members in the United States.   
So data about White Anglos marrying non-racially identified “Hispanics” tells us very little about the real rate of intermarriage in the U.S.   Are these marriages with Latinos/as who identify or appear as Afro-Latino/a or of indigenous ancestry?  Or are they primarily with Latinos/as who identify or appear as White?  White Anglos marrying White identified Latinos/as is not quite as significant a racial crossing as the Pew Report suggests.  But because the report lumps together Latinos/as of all racial identities and appearances, we have no way of gauging what real racial progress has been made in this country.
Treating Latino/a ethnicity as if it did not also encompass distinct racial identities, as the Pew Report has done thus comes with the risk of extrapolating inaccurate conclusions about the status of race relations today.  Disturbingly, the U.S. Census Bureau’s recent proposal to discontinue collecting census data about Latino/a racial identity in lieu of treating the Hispanic category as a race in of itself, will only magnify the challenge of trying to monitor racial disparities.  Just as assessments about “race-less” Latinos/as can skew our picture of the racial significance of intermarriage, data about “Hispanic” access to opportunity will veil the extent to which darker-hued Latinos/as are treated differently than European-looking Latinos/as.  In short, being more attentive to the specifics of how Latinos/as are racialized in the United States is important not only to gathering an accurate understanding of racism against Latinos/as, but also our nation’s overall racial progress.
-- This commentary was originally published in the Huffington Post
Tanya Katerí Hernándezis a Professor of Law at Fordham University School of Law and the author of the forthcoming book from NYU Press, “Multiracials and Civil Rights: Are Mixed-Race Stories of Discrimination a New Kind of Multiracial Racism?”

May 19, 2017 | Permalink | Comments (0)