Monday, October 25, 2021

A Win for Law School DEI, US News Rejects “Scholarly Impact” in Annual Rankings (Prof. Riaz Tejani)

 

What makes a law school “good” and who wants to know? This was the most basic question behind a recent decision from US News and World Report (USNWR) to reject a new “Scholarly Impact” metric in its annual rankings of law schools. The decision was met with applause by the Law and Society Association (LSA)—and with good reason.

An LSA committee, led by Rachel Moran, Elizabeth Mertz, and Richard Lempert, examined the effects such a metric would have on law schools and strongly advised its abandonment. “Since the metric was focused very heavily on law reviews,” Moran told me, “there was a concern that it would marginalize the contributions of [Law and Society] scholars. On a separate front, we also knew that it would potentially marginalize people who tend to be undervalued by these quantitative counts, people of color and women, just because they tend to be cited less, for reasons that may have to do with our hierarchies in legal and higher education. These researchers also tend to work in fields where the citation rates are not as high. We were concerned that this might undervalue them.”

One idea, foregrounded in this debate, was that “good” faculty are what make a “good” law school. But what does this mean? One might plausibly expect that quality among law professors is measured by teaching ability—and indeed there has been a healthy increase of attention to teaching and learning outcomes. But there has also emerged in the past few decades greater interest in bibliometrics, or citation counts, as the measure of law school faculty quality. “We wanted to be sure that this wasn't adopted and integrated into the general law school rankings,” Moran continued, “because even if you critique the rankings, you have to acknowledge their impact. We were very concerned that this might have an effect on hiring and promotion, and as a result, it would affect the future construction of knowledge, since some fields would be privileged because of the current quantitative patterns of citation. That might actually perpetuate disparities and inequalities—it would entrench even further the preferences for that kind of work and the individuals who do that work. We were concerned and we wanted to express those concerns.”

 

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Perhaps the best-known current aggregator of bibliometric data into law faculty rankings is Brian Leiter.  The periodic release of his specialty lists always brings mixed reactions.  In my research into the ethical priors of Law and Economics, I found the Leiter list a great starting point because, when examined closely, it revealed gender inequities among second and third wave lawyer-economists. Being on these lists is extremely impressive. But only one-in-fifteen of those listed is a woman, providing a stark picture of how these citation-based professional reputation rankings can perpetuate already extant gender imbalances. 

Is respect (and the associated attention) among one’s peers a good indicator of professional quality in legal education? In the U.S. academy, citations interpreted as a marker of peer respect obscure the way that articles published by women and persons of color, except in a few specific fields, are more likely to be ignored. Put more bluntly, this reminds us that respect can be a proxy for unstated gender and ethnic preferences in who should generate new legal knowledge. And to what extent is a good academic researcher/writer a good contributor to law school culture, citizenship, social responsibility? Most of us probably know both the high-impact scholar who is a poor teacher/colleague, as well as the prolific writer who is exceedingly generous toward students and fellow faculty. With both often present in the same frame, is it possible to say generally that a high-impact faculty increases the quality of a law school in any experiential way? Probably not, but maybe the point is that, in the realpolitik that characterizes legal academia, a “good” law school is whatever people say it is. Which returns us to the second half of the question above: “who wants to know”?

In the past, when law was a profession newly open to women and people of color, the latter groups might have been presumed to be grateful for entrée into the profession at any level. This was still the case when I conducted my research into for-profit law schools from 2011 to 2016 and found that they were largely viable because so many minority students had few other options in legal education. Although derived from an extreme example, the general observation was that minority students were often in a weaker position to choose a school based on rankings. In more recent years, thanks to the expository work of writers like Brian Tamanaha and Deborah Merritt, and activists like Kyle McEntee, more and more students have become aware of the other vital considerations that should guide student choices: debt to income ratios, employment rates, bar pass rates, etc.  In light of all this, a focus on “reputation” as a proxy for quality or value might be seen as a luxury only the most elite students can afford.  Less privileged students need less rather than more obfuscation about “quality,” if USNWR is to be of help to them. As Moran said, “[Reputational ranking] entrenches certain privileges and preferences, because schools with strong reputations get to continue to benefit from those year after year after year, almost like an echo effect. It makes it hard for schools that are actually doing highly valued scholarship as measured by these quantitative metrics to get recognized if they are newer schools or haven't yet broken through in terms of their visibility.”

These remarks, and the report more generally, raise questions about using raw quantitative data to draw conclusions about law in society and the legal profession. For years, the New Legal Realist movement—a prominent Law and Society subgroup extending the Classic Legal Realism of the last century, has advocated combining quantitative and qualitative accounts in both legal research and policymaking. A demonstrated benefit of multi-method, theoretically driven empirical research of the kind LSA and NLR have encouraged is more nuanced research results.  This added nuance permits empirical research to take better account of the particular experiences of women, racial minorities, LGBTQ+, and people with disability--those often most in need of legal protection or assistance. In that regard, USNWR’s decision is more than just a victory for contemporary Legal Realism, or for the Law and Society Association. It is a win for law school diversity, equity, and inclusion across the board.

 

-- Riaz Tejani is Associate Professor of Business Ethics at the University of Redlands. His work investigates the interaction of legal and business ethics with interests in race and class inequality, distributive justice, and cultures of economic rationality. 

October 25, 2021 | Permalink | Comments (0)

Tuesday, October 19, 2021

Pledge of Allegiance Revisited: Requiring Parental Consent (Prof. Caroline Corbin)

 

Since the Supreme Court decided West Virginia State Board of Education v. Barnette in 1943, free speech law has been clear: public schools may not force students to recite the Pledge of Allegiance. Nevertheless, in two states – Texas and Florida – students may decline to participate only with parental permission. The Eleventh Circuit Court of Appeals upheld the law on the grounds that the parental requirement furthered parents’ substantive due process right to control the upbringing of their children.

American Flag


The Eleventh Circuit decision is flawed both in its understanding of the First Amendment right to be free of compelled speech and the substantive due process rights of parents. These mandatory pledge laws are viewpoint-based and therefore presumptively unconstitutional. While the free speech rights of students are more circumscribed than adults, none of the established justifications for curtailing student speech rights at school apply in this case. On the contrary, forcing students to pledge against their will exemplifies all the harms of compelled speech. Finally, parents’ constitutional right to control the upbringing of their children is meant to protect parents from the state, not to empower parents to trample on the rights of their children. In the end, the parental permission rule is simply a pretext for the state’s own viewpoint-based compulsion.

To read the full article forthcoming in the Indiana Law Journal by Professor Caroline Mala Corbin, click here.

 

October 19, 2021 | Permalink | Comments (0)

Saturday, September 25, 2021

LatCrit, Inc./SALT Faculty Development Workshop: October 7, 2021

The LatCrit, Inc./SALT Annual Faculty Development Workshop (FDW) will take place on October 7, 2021, the day before the 2021 LatCrit Biennial Conference “Resistance and Transformation: Mapping Critical Geographies and Alternative Possibilities in Legal Scholarship and Praxis for the Next Twenty-Five Years.” The Conference is sponsored by the University of Denver Sturm College of Law.

The FDW is designed for those who are planning to enter or who have recently joined the legal academy.  The day-long workshop includes sessions on topics facing prospective, junior, and pre-tenured faculty, while providing opportunities to network and form mentoring relationships with established faculty.  The FDW is an invaluable learning and professional development opportunity!

Registration for the FDW is free for attendees of the LatCrit conference.  Please feel free to e-mail Professor Ron Hochbaum at rhochbaum@pacific.edu with any questions.

For more information about the LatCrit Conference, please visit https://latcrit.org/latcrit-2021-biennial-conference-and-related-events/.

September 25, 2021 | Permalink | Comments (0)

Thursday, August 5, 2021

Critical Race Theory Summer School

 
The African American Policy Forum is hosting a five-day course on Critical Race Theory that will feature leading critical race scholars providing accessible instruction in a mixed-presentational format. 
 
What is Critical Race Theory and why has it become the center of an intense political attack? How are the central ideas of CRT being distorted and to what end?  To what extent is the attack on CRT part of a broader effort to recast anti-racist teaching, learning, and political organizing as racism? How can we mobilize against this ongoing assault and save our democracy?
 

Desiree Adaway: What exactly is Critical Race Theory?

 

Join fellow teachers, journalists, labor unions, parent groups, students, researchers, DEI practitioners, faith-based organizers, and others in exploring these questions and helping to shape a movement for a robust multiracial democracy.  Daily sessions will feature plenaries with leading CRT experts from the law, education, community organizing, policy and other fields as well as breakout sessions to give participants opportunities to share and develop strategies and practices to expand multiracial democracy and justice. 

The Summer School core faculty are Kimberlé Crenshaw, Devon Carbado, Sumi Cho, Luke Charles Harris, Daniel Martinez HoSang, and Gary Peller. Associate faculty will include Jennifer Chacón, Anthony Cook, Justin Hansford, Cheryl Harris, Tanya Hernández, Emily Houh, CJ Hunt, Gloria Ladson-Billings, Viet Thanh Nguyen, Priscilla Ocen, Russell Robinson, Kirsten West Savali, David Stovall, and Ezra Young.

Registration is available at: https://www.aapf.org/crtsummerschool 

 

August 5, 2021 | Permalink | Comments (0)

Wednesday, July 21, 2021

Social Justice is a Marathon (Prof. Benjamin Davis)

 

Let me speak plainly.

I do think that this little vignette of irrational critical race theory protests in West Virginia is only one of the hundreds or thousands of these vignettes going on at all levels of our society to foist on all of us repression of basic human rights. 

It is in the interest of those who are used to and like the autocratic rule of the private sector in an at will environment to make the public arenas of our constitutional order reflect that autocratic vision in which they are certain they will prosper even more.  So they relentlessly wield their power to build an autocratic movement.

Madisonian double protection of the rights of the people in this vision is double protection of the rights of certain people and - as Martin Luther King said in 1967 - dictatorship for the rest who are viewed as the enemy.

And as the enemy but still citizens, they are deemed to have rights but the hurdles to their enforcement or vindication are raised so that those rights are effectively eliminated.

Injustice Anywhere

As a Professor Emeritus, I feel I am a has been with little or no duty to continue to be in these spaces and point these - what seem evident to me - things out.  I feel that it is the burden that passes to each generation of us. Yes, as you get older, you get tired.

I just hope that in the privileged positions in academia in which we have the honor to sit, that those still on the field of battle continue to come up with ways of being and ways of thinking that combat theis anti-human rights-for-all agenda.

At times it may seem a quixotic quest. Yet imagine the situation where there is silence in response - where the advocates of this abysmal vision of life are the only ones being heard.

It is convenient to go along to get along I know, but the thing is repressing that sense of experiencing horrendous contradiction in yourself is merely internalizing the repression that is ambient. And I would suggest it is soul destroying even though this may provide a means to creature comforts.

I sincerely but no doubt naively hoped that the Gaudio translation of the 1478 Papal Bull/Letter I have published (with its origin story for the idea of white supremacy it reveals) would be a historical comfort to those who fully recognize the bizarreness of that false consciousness intuitively and out of a sense of human dignity.

I have been so excited by that translation (the first in 550 years in English) and enamored of that piece that I had the temerity to submit it to the Harvard Law Review where it awaits decision.

To me it is such a powerful translation that identifies the moment when ecclesiastical power was invoked and terrestrial power was implemented in a sick vision of building a new world that - at its core - was without the faith or the God that it professed. It merely was greed and subjugation at play again out of fear.

At the same time, we should recognize that 550 years of that idea has worked for some, particularly some with power and who are jealous of maintaining and enhancing that power. Those the idea benefits are smart and ruthless about that and in every generation, they can find smart, ruthless and blindly ambitious persons to reinforce their efforts at dominance. With each generation, they are the ones who want to be a member of the dominant club imbibing the ideology in a self-destroying denial of the monster they have become.

So what do we do every day to turn back the tide of repression knowing full well that the power and money that seeks to repress vastly outnumbers and outweighs us?

I come back to Hans Fallada’s Every Man Dies Alone about an ordinary German couple that protested Hitler in Berlin in 1942 by placing little notecards or protest in public places.  There is a quote that I use to quote at the bottom of my signature.

“The main thing is, you fight back.”

You just have to fight back wherever you sit – whether alone or with others.

But fighting is tiring and at some point, we should be able to acknowledge to ourselves that it is ok to get off the battlefield. It is not a question of courage or temperament as much as it is just a question of one’s own human frailty.  The worry will always be that you did not do enough. That you did not find that way to change the world. That you just beat your head against walls spattered with the blood of others screaming at the insanity.

I don’t know really what to say. But what I do know is that the alternative of silence in the face of the horror does nothing good.  And we should all hope to do some good – whatever our status or stature or human frailty.

-- Benjamin G. Davis, Emeritus Professor of Law, University of Toledo College of Law

 

July 21, 2021 | Permalink | Comments (0)

Thursday, July 15, 2021

The ACA’S NINE LIVES. IMPACT ON MINORITY POPULATIONS. By Chris Ogolla.

On June 17, 2021, the Patient Protection and Affordable Care Act, aka ACA, survived yet another challenge at the Supreme Court. As originally enacted, the ACA had several key provisions, three of which merit mentioning here. The first is the individual mandate, which requires most Americans to maintain “minimum essential” health insurance coverage or else pay a penalty.[1] The second provision of the Act is the Medicaid expansion. The ACA expands the scope of the Medicaid program and increases the number of individuals the states must cover. The third provision provides access to insurance for individuals with pre-existing conditions. The metaphor of a three-legged stool has often been used to describe the ACA. Leg# 1, providing access to insurance for uninsured Americans with pre-existing conditions (aka “guaranteed issue and community rating”). Leg# 2,  to insure a nationwide pool, a mandate that every individual in the country buy health insurance or else pay a financial penalty with their tax return, and leg#3, creating a system of tax credits, or subsidies, to enable middle- or lower-income people to afford health insurance offered in “Exchanges” set up by the federal government or states.

            Naturally, these key provisions have spawned the principal lawsuits. In National Federation of Independent Business v. Sebelius,[2] the Court was presented with the question whether the individual mandate is a constitutional exercise of Congress’s power to levy taxes. The majority held that although the mandate is not authorized under the Commerce Clause or the Necessary and Proper Power Clause, it is nonetheless a valid exercise of Congress’s power under the Taxing Clause. Next was the contraception mandate challenge in Burwell v. Hobby Lobby.[3] There, the issue was whether the Religious Freedom Restoration Act of 1993 (RFRA) permits the United States Department of Health and Human Services (HHS) to demand that three closely held corporations provide health insurance coverage for methods of contraception that violate the sincerely held religious beliefs of the companies’ owners. The majority held that the regulations that imposed this obligation violated RFRA. Hobby Lobby was followed by King v. Burwell,[4] where the Court decided the question whether individuals in states that opted not to build their own exchanges are eligible for health insurance subsidies. There the Court determined that the plain language of the Act extended tax credits to federally created exchanges as well as those created by the states. Finally, in June 2021, the Court decided (more like punted) another ACA case. In California v. Texas,[5] the Court was presented with the issue of whether the ACA’s §5000A(a)’s minimum essential coverage provision is unconstitutional as a result of 2017 Amendments effectively nullifying the penalty for not having insurance to $0. In a majority opinion, Justice Breyer found that the challengers did not have standing to challenge §5000A(a)’s minimum essential coverage provision because they did not show a past or future injury fairly traceable to the defendants’ conduct, enforcing the specific statutory provision they attacked as unconstitutional.

            So, does the ACA have the mythological nine lives because it keeps surviving these challenges at the Supreme Court? And if so, what are the impacts on minorities? To quote Bob Dylan, “the answer, my friend, is blowin' in the wind.”

            The ACA’s impact on minority populations cannot be gainsaid. For example, “studies show that Medicaid expansion states experienced significant coverage gains and reductions in uninsured rates among the low-income population broadly and within specific vulnerable populations.”[6] More significant is that as of the time of this writing, “twelve states have refused to expand Medicaid, leaving millions of poor Americans without health coverage.”[7] It goes without saying that most of these poor Americans are minorities. The states that have not adopted Medicaid expansion are Alabama, Florida, Georgia, Louisiana, Kansas, Mississippi, North Carolina, South Carolina, South Dakota, Tennessee, Texas, Wisconsin, and Wyoming.[8] Some of these states (Alabama, Florida, Georgia, Louisiana, Mississippi, North Carolina, South Carolina, Tennessee, and Texas) have large minority populations. All of the non-expansion states are controlled by Republicans, except Kansas, North Carolina, and Louisiana, which have Democratic governors, but have Republican state legislative majorities. I leave it to you dear reader, to draw your own conclusions.

            As a result of the COVID-19 pandemic, millions of people lost their jobs as well as their employer-based health insurance benefits. For many of those who lost their jobs, Medicaid was the only way of gaining health coverage. However, for non-expansion states, Medicaid eligibility for adults remains limited. This is because some uninsured poor adults have incomes above their state’s eligibility for Medicaid but below poverty, the minimum income eligibility for tax credits through the ACA marketplace.[9] Although the March 2021 COVID-19 relief legislation, aka the American Rescue Plan Act of 2021, addresses some of these coverage gaps, it is a temporary fix lasting for two years, retroactive to January 1, 2021. The bottom line is that the ACA has provided subsidized health insurance for millions of uninsured Americans, improved health outcomes for many minorities, increased coverage for young adults, emphasized prevention as opposed to treatment, and ensured that those with preexisting conditions can no longer be denied care, to mention but a few.

          Were the ACA to be held invalid, millions would suffer, and minorities would be particularly harmed. So, like the mythological cat, the ACA has cheated death four times. Five more to go?

[1] 26 U.S.C. § 5000A (2014). Congress Amended the Act in 2017 by setting the penalty to $0, effective 2019.

[2] Nat'l Fed'n of Indep. Bus. v. Sebelius, 567 U.S. 519 (2012).

[3] Burwell v. Hobby Lobby, 573 U.S. 682 (2014).

[4] King v. Burwell, 576 U.S. 473 (2015).

[5] California v. Texas, 141 S. Ct. 2104 (2021).

[6] See Madeline Guth et al., The Effects of Medicaid Expansion under the ACA: Studies from January 2014 to January 2020, Kaiser Fam. Found. (March 17, 2020), https://www.kff.org/medicaid/report/the-effects-of-medicaid-expansion-under-the-aca-updated-findings-from-a-literature-review/.

[7] Sarah Kliff, Obamacare’s Survival Is Now Assured, but It Still Has One Big Problem, N.Y. Times (June 28, 2021), https://www.nytimes.com/2021/06/28/upshot/medicaid-expansion-democrats-obamacare.html.

[8]Status of State Action on the Medicaid Expansion Decision, Kaiser Fam. Found. (June 29, 2021), https://www.kff.org/health-reform/state-indicator/state-activity-around-expanding-medicaid-under-the-affordable-care-act/?currentTimeframe=0&sortModel=%7B%22colId%22:%22Location%22,%22sort%22:%22asc%22%7D.

[9] Rachel Garfield et al., The Coverage Gap: Uninsured Poor Adults in States that Do Not Expand Medicaid, Kaiser Fam. Found. (Jan 21, 2021), https://www.kff.org/medicaid/issue-brief/the-coverage-gap-uninsured-poor-adults-in-states-that-do-not-expand-medicaid/.

July 15, 2021 | Permalink | Comments (0)

Monday, July 12, 2021

Nikole Hannah-Jones Statement: Dancing on the Violence of the Glass Ceiling (Prof. Benjamin Davis)

 
“Oh what a feeling! Dancing on the (glass) ceiling!” 
 
Tuesday the saga of Nikole Hannah-Jones tenure process at the University of North Carolina came to an end with a statement she wrote declining the offer of tenure
 
Like any excellent Professor, she neither got mad or got even but rather wrote.
 
Historians, artists, athletes, activists: Nikole Hannah-Jones controversy  at UNC part of 'rising tide of suppression' :: WRAL.com
 
Every university and college administrator, faculty or staff person in this country should read her statement.  In fact, it is something that should be read by every American for it gives us a look into the violence of the glass ceiling.
 
No it is not guns, knives, ax handles, or bats violence.  It is killshot e-mail attempts, sudden manipulation of agendas, public or closed sessions, weird silences on what is going on, and at the end the process creators who put in place this macabre charade characterizing themselves as the victims!  It is a story in donor pressure on a university to subvert academic freedom because they do not like the particular scholarship of the person acclaimed by the academic community that wished to welcome them to their midst.
 
It is the fun of the little machinations done to sabotage her candidacy, the creation of an alternative to the normal process just for her,  and the desperate effort to play what I have long called the X + 1 game.
 
The X + 1 game is that the candidate presents all their materials - we will call them X. These materials represent the normal extraordinary package of evidence of the worth of the candidate for the position.  It provides an extensive yet all too brief view into the remarkable nature of the candidate.
 
But someone does not like the candidate and so begins the process of calling for the “+1”.  The plus one is something that is not in the materials presented by the candidate which all of sudden becomes the crucial thing for their appointment or hiring for the position.
 
This is true in academia of course but this game is played all over the society.
 
The “plus one” is the knife stuck in the candidacy of the person who wishes to be considered on their merits. The perversion of the process of selection is then the twisting of the knife.
 
The “plus one” is engineered to put the candidate on the defensive. They are made to doubt themselves for not having done enough to truly merit the position. When denied, they think about doing that one more paper, or getting that one more certificate or experience so that they could succeed the next time. Or they are convinced that accepting less than what they were seeking is the best they can expect due to the now colossal inadequacy revealed that they lack the -heavens!- “plus one.”
 
Whether for a first job or all the way up to the top positions in any industry, I dare say this X + 1 game is endemic to our systems.
 
And playing this game must be something that at least some of the deciders relish. As a head of a major multinational corporation said to me when I asked him if he had fun at his job, “because of the terrible things I have to do, I have to have fun.”
 
But let us be clear that what is wonderful about Ms. Hannah-Jones statement is that it lays out in great detail the violence of the gatekeepers as they reinforce the glass ceiling to keep someone with merit but seen as undesirable from getting the brass ring.
 
I have seen this game happen to so many people over my career that I took the liberty of highlighting this perversion to the graduating students that I spoke to at my last commencement this Spring.  I felt it my duty to warn them of this perversion that they might experience at some point or might have already experienced and not realized how they had been played by someone.
 
And, in fact, this game is so old that the late President Benjamin E. Mays talked about it in his chapel lectures to the students at Morehouse.  He would say that when the President of the United States is looking for someone in your field, let it not be for your lack of preparation or your lack of integrity or your lack of diligence or some other lack that the President does not select you. Let it be for some other reason than your excellence in your field that the President does not select you.  The “some other reason” of course in segregation was forced to be narrowed by the excellence to finally one thing (the plus one) that we can not have a black person in that role no matter how excellent, no matter their merits. It would be just too much to allow that one through the glass ceiling. We need to make sure they stay in their place. We do not need anyone daring to have the temerity to think they merit the position be allowed to get it for that would enshrine uppitiness which must be quashed by any means necessary.
 
The statement does the civic duty of bringing into the present the violence to which the candidate is being subjected. At the same time, Ms. Hannah-Jones documents the amount of countervailing forces that came to support her either from spontaneous shock and dismay at the shabbiness of the treatment she was receiving or as a skillfully deployed counter force to the X + 1 gamers who prefer to do their dirty deeds in the dark. It is quite a remarkable list and one thinks about all the poor saps out there who are not able to deploy such forces and find when they go to court that the rules are rigged against them getting relief for the violence they are experiencing.
 
So her statement brings light to the violence that is inherent in that anodyne term “glass ceiling.” The violence of those who impose such glass ceilings on those who they consider undesirables.
 
Yet, what is truly amazing in the statement is that in her own way, Ms. Hannah-Jones found a way to dance on the violence of the glass ceiling rather than succumb to its oppression. She has called out the game and after beating her detractors, listens to her own voice to take her in another way with a tinge of regret as well
as a sense of coherence with who she is.
 
And that is really something quite beautiful. Like a rose in Spanish Harlem that reaches up through the concrete of oppression to bask in the warm glow of the sunlight of all our respect.
 
- Benjamin G. Davis, Emeritus Professor of Law, University of Toledo College of Law
 

July 12, 2021 | Permalink | Comments (0)

Friday, July 9, 2021

Approaching Deadline: Yale Law Journal invites submissions on the Law of the Territories

The Yale Law Journal invites submissions on the Law of the Territories, covering the broad range of local, federal, and international issues arising out of and affecting the U.S. territories and their people, for Volume 131’s Special Issue. The deadline for submissions is July 15, 2021.

The Law of the Territories is an emerging field that explores novel legal questions facing residents of the U.S. territories. More than 3.5 million people—98% of whom are racial or ethnic minorities—live in American Samoa, Guam, Puerto Rico, the Northern Mariana Islands, and the U.S. Virgin Islands. They are unable to vote for President and lack voting representation in Congress, even though Congress exercises plenary power over their communities. In the last five years, the Law of the Territories has experienced a resurgence of activity before the Supreme Court not seen since the Insular Cases, a series of controversial decisions from the early 1900s that endorsed the United States’s annexation and governance of its colonies. The Court’s holdings in the Insular Cases have received broad criticism for their racist underpinnings and departure from foundational constitutional principles. But the Court has hesitated to either overrule them or fundamentally reconsider its territorial jurisprudence. Meanwhile, each of the territories has developed its own distinct body of law—and the people of the territories have pressed with increasing urgency for self-determination and decolonization through both domestic and international processes.

We seek Articles and Essays that address unresolved debates, emerging controversies, and unexplored problems related to the Law of the Territories, including, but not limited to: 

  • the relationship between federalism and empire; 
  • the challenge of cultural accommodation within the United States’s constitutional framework; 
  • the relevance of international models of association to the debate over territorial decolonization, and more broadly, the light that comparative perspectives might shed on the issues surrounding self-determination; 
  • the intersection of race, gender, and class inequality in the context of U.S. colonial governance; 
  • and the promises and pitfalls of territorial autonomy.

The deadline for submissions is July 15, 2021. For more information, please see our announcement.

July 9, 2021 | Permalink | Comments (0)

Monday, July 5, 2021

Cleaning House for the 4th of July and the Fireworks of Anti-racism (Prof. Tanya Hernandez)

 

Let’s be honest – before the pandemic we never cleaned our homes as thoroughly as when we were expecting guests.  Visiting in-laws meant a zenith level of cleaning.  While it might not pass every snooping cousin’s white-glove test, we did our best to create a hospitable environment for fellowship and joy. 

An essential truth of housecleaning is that spraying some temporary floral scent over the smell of a dirty home does not create a congenial environment.  Throwing all our garbage behind a locked closet doesn’t quell the stench either.  Yet these basic tenets of creating and sustaining community are all obliterated by the movement to censor much needed discussion of anti-racism in public schools and spaces.

Anti-Racism Housecleaning

 

Anti-anti-racism disinformation proponents in a growing number of states (Arkansas, Florida, Georgia, Idaho, Iowa, Montana, Oklahoma, Tennessee and Texas) have enacted racial and gender equity prohibitions that disallow our teachers from exposing students to our nation’s full history of struggle to be a true egalitarian republic.  And more copycat bills are being introduced across the country as well as congress, under the “trumped up” banner of demonizing Critical Race Theory (CRT) like a boogeyman we should eviscerate.  The concocted vision of CRT as a curse word to erase from public discourse, is like a pungent floral spray that seeks to cover up the bad smell of our histories of racism rather than actually cleaning our way to a better nation.

The tragic irony is that CRT and substantive teaching of all parts of our history, is the best Lysol level disinfectant product that we have for cleansing our nation of the stinking consequences of racism.  Why?  Because CRT goes beyond the traditional interrogation of race and racism that is limited to the image of badly-intentioned individuals.  It instead seeks to reveal and transform the relationship among race, racism and power with an examination of structural and systemic barriers to inclusion for designing effective solutions.  The anti-anti-racism elimination campaign not only wants CRT abolished but also any discussion of racism in our schools and workplace diversity sessions.

Our school teachers know that censorship is detrimental to learning, and that learning is essential for forming an informed citizenry.  As we celebrate the birth of our democracy this July 4th, with joyous gatherings of friends and loved ones, let’s commit to continuing the important work we’ve begun in cleansing the nation of its systemic racism.  This means rejecting the well-funded organized appeals for gag orders on honest discussion and free speech.  Our democracy deserves more than a cheap spritz of floral spray over our dirty laundry.

-- Tanya Hernandez, Archibald R. Murray Professor of Law at Fordham Univ. School of Law; and Author of Forthcoming Book Racial Innocence: Unmasking Latino Anti-Black Bias and the Struggle for Equality (Beacon Press).

-- This article was originally published at: https://professortkh.medium.com/cleaning-house-for-the-4th-of-july-and-the-fireworks-of-anti-anti-racism-a9391c16fe7

 

July 5, 2021 | Permalink | Comments (0)

Thursday, June 17, 2021

Nikole Hannah-Jones May Have a First Amendment Case (by Nareissa Smith, Esq.)

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The Harvard University motto - “Veritas” - means “Truth” in Latin. Morehouse College’s Latin motto, “Et facta est lux,” translates to, “Let there be light.” The frequent appearance of “lux” and “veritas” in college mottos across the nation reminds us that universities are places where students go to be enlightened by truth.

For that to happen, however, faculty must be free to speak truth without repercussions. That’s why the University of North Carolina’s recent decision regarding Nikole Hannah-Jones is so troubling.

Hannah-Jones, a graduate of UNC-Chapel Hill, has covered the stubborn persistence of racial segregation in America, including its public schools. Her efforts have earned her a Pulitzer Prize and a MacArthur “Genius” Grant.

Because of her stellar qualifications, UNC offered Ms. Hannah-Jones the Knight Chair in Race and Investigative Reporting. However, unlike past Knight Chair recipients, the school refused to offer Hannah-Jones tenure. The decision came because of conservative objections to Hannah-Jones’ work with The 1619 Project, an effort to commemorate the arrival of the first enslaved Africans and highlight the role that slavery played in America’s past.

Hannah-Jones is considering a lawsuit against the university. Her attorneys – including some from the NAACP Legal Defense Fund – gave the university until June 4 to offer Hannah-Jones tenure. They have yet to do so. If a lawsuit is filed, it could raise serious First Amendment issues.

The First Amendment forbids federal, state, and local governments from passing laws or taking actions that abridge the freedom of speech. The Supreme Court has noted that both universities and professors have academic freedom rooted in free speech rights. This gives the UNC System the authority to make hiring choices, but it also prevents them from singling out faculty who teach controversial doctrines or subjects.

As a First Amendment scholar, my initial thoughts regarding this case were not favorable to Hannah-Jones. One of the great ironies of First Amendment jurisprudence is that courts are quite willing to protect hate-speech directed against people of color but have historically been less inclined to defend people of color who exercise their free speech rights. However, three things could weigh in Hannah-Jones’ favor.

First, the First Amendment doesn’t like bullies. The First Amendment’s academic freedom cases arose from the McCarthy Era. In the 1950s, academics across the nation were labeled as “subversive” because they advocated communism or refused to say that they did not. The Supreme Court protected the professors and refused to let universities dismiss them. The Constitutional protection for those who teach controversial subjects helps Hannah-Jones.

Second, while courts have decided many cases involving professors with controversial opinions, very few cases involve professors being punished for providing objective facts. While people can debate the merits of various economic systems, philosophical questions, or religious beliefs, it’s harder to debate history. Slavery happened. These may be truths that some Americans would prefer to forget, but inconvenient truths remain true just the same. It would be odd for a court to side against a professor who has done nothing more than tell the truth.

Finally, while court cases usually focus on the school and the faculty, the Supreme Court has written that academic freedom “is of transcendent value to all of us.” Hannah-Jones’ work and scholarship is particularly valuable. Over the past year, the death of George Floyd, the COVID-19 pandemic, the Jan 6 insurrection and other events have placed race front and center in America. It seems unlikely that courts would support a university’s attempt to quash information that is highly relevant to this critical moment in our history.

University professors enlighten their students and the public by helping both groups grapple with difficult facts. UNC-Chapel Hill’s motto - “Lux Libertas” - means “Light and Liberty.” But if the UNC System denies its faculty the liberty to speak the truth, there will be no light and everyone in the state will be poorer for it.

 
This article originally appeared in the Charlotte Observer on 6/14/21. Read it here.
 
Nareissa Smith is an attorney, former law professor and freelance writer.


 

June 17, 2021 | Permalink | Comments (0)

Wednesday, June 9, 2021

New Article: "Why BIPOC Fails" -- by Prof. Meera Deo

Professor Meera Deo of Southwestern Law School has published Why BIPOC Fails in the Virginia Law Review Online.  The abstract is given below, and the full article is available right here: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3858825

Abstract

This Essay initiates a discussion about how we should critically examine which issues and data are most relevant to our arguments and advocacy efforts and how we should match language to the particular groups at the center of those priorities. This will mean aggregating groups at times, and naming them separately at others. This Essay argues that whether finding community through unity or standing separately to highlight distinctions, either of these options is better than utilizing the term BIPOC. Particular examples showcase the failures of the term BIPOC, both in theory and in practice, including ways in which it can be misleading, confusing, and contribute to the invisibility of the very groups that should be centered in particular contexts. Instead, allies, advocates, and academics should not simply use whatever term is currently in vogue but instead critically examine the language we use and carefully match it to our data, priorities, and conclusions.

 

June 9, 2021 | Permalink | Comments (0)

Monday, June 7, 2021

New Article: "Technological Tethereds: Potential Impact of Untrustworthy Artificial Intelligence in Criminal Justice Risk Assessment Instruments" -- by Prof. Sonia Gipson Rankin

Professor Sonia Gipson Rankin of the University of New Mexico School of Law has published Technological Tethereds: Potential Impact of Untrustworthy Artificial Intelligence in Criminal Justice Risk Assessment Instruments in the Washington and Lee Law Review.  Below is the abstract, and the full article is available right here: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3662761

Abstract

Issues of racial inequality and violence are front and center in today’s society, as are issues surrounding artificial intelligence (AI). This Article, written by a law professor who is also a computer scientist, takes a deep dive into understanding how and why hacked and rogue AI creates unlawful and unfair outcomes, particularly for persons of color.

Black Americans are disproportionally featured in criminal justice, and their stories are obfuscated. The seemingly endless back-to-back murders of George Floyd, Breonna Taylor, and Ahmaud Arbery, and heartbreakingly countless others have finally shaken the United States from its slumbering journey towards intentional criminal justice reform. Myths about Black crime and criminals are embedded in the data collected by AI and do not tell the truth of race and crime. However, the number of Black people harmed by hacked and rogue AI will dwarf all historical records, and the gravity of harm is incomprehensible.

The lack of technical transparency and legal accountability leaves wrongfully convicted defendants without legal remedies if they are unlawfully detained based on a cyberattack, faulty or hacked data, or rogue AI. Scholars and engineers acknowledge that the artificial intelligence that is giving recommendations to law enforcement, prosecutors, judges, and parole boards lacks the common sense of an 18-month-old child. This Article reviews the ways AI is used in the legal system and the courts’ response to this use. It outlines the design schemes of proprietary risk assessment instruments used in the criminal justice system, outlines potential legal theories for victims, and provides recommendations for legal and technical remedies to victims of hacked data in criminal justice risk assessment instruments. It concludes that, with proper oversight, AI can increase fairness in the criminal justice system, but without this oversight, AI-based products will further exacerbate the extinguishment of liberty interests enshrined in the Constitution.

According to anti-lynching advocate Ida B. Wells-Barnett, “The way to right wrongs is to turn the light of truth upon them.” Thus, transparency is vital to safeguarding equity through AI design and must be the first step. The Article seeks ways to provide that transparency, for the benefit of all America, but particularly persons of color who are far more likely to be impacted by AI deficiencies. It also suggests legal reforms that will help plaintiffs recover when AI goes rogue.

June 7, 2021 | Permalink | Comments (0)

Monday, May 24, 2021

Racial Reckoning is Shifting US Public Opinion on Palestine

 

Not since the 1960s has the United States been as racially charged as it is today. The rise of the Black Lives Matter (BLM) movement is forcing Americans to confront centuries of systemic state abuse of African Americans. As a result, younger Americans no longer believe the myth that their society is colour-blind.

 

Palestine Protest in NYC

 

Like the Civil Rights Movement of five decades ago, BLM has brought to light the common causes of systemic oppression against Black people as well as Latinx, Native Americans, and Muslims. This moment of racial reckoning also encompasses a people consistently demonised in American media, politics, and textbooks: Palestinians.

Youth and progressives, who now are exposed to the voices and experiences of Palestinians through social media, no longer uncritically accept politicians’ unconditional support of Israel. They realise the Israel-Palestine “conflict” is not just complicated, it is asymmetric and racist. Progressives see the parallels between their own critique of America’s settler-colonial past and Israel’s abuse of Palestinians.

Through citizen journalism by Palestinians on the ground, Americans are forced to reckon with the reality that US military aid to Israel contributes to a systematic dehumanisation of Palestinians, just as militarisation and impunity contribute to the oppression of Black people in the US.

Thus, the current response to Israel’s forced removal of Palestinians from their homes in occupied East Jerusalem and bombings of civilians in Gaza brings into sharp relief the gradual shift in American public opinion.

Opinion polls conducted between 2001 to 2011 consistently showed strong public support for Israel: Gallup found that more than 50 percent of Americans had sympathies towards Israel while less than 20 percent did so towards Palestinians. When disaggregated by political party, sympathy for Israel increased to nearly 80 percent among Republicans as compared with nearly 60 percent among Democrats; just 7 percent of Republicans and 24 percent of Democrats expressed sympathy for Palestinians.

But starting in January 2018, according to a Pew Research Center poll, sympathy for Palestinians and Israelis among Democrats began to equalise at approximately 25 percent. Meanwhile, Republican voters’ sympathy for Israel remained high, at 79 percent. These numbers signalled a growing gap along partisan lines in Americans’ views on Palestinian human rights.

The timing is not coincidental. In 2018, Trump had been president for a year, during which Americans witnessed the troubling mainstreaming of far-right views. By then, more and more murders of unarmed Black men by police officers had been caught on video, debunking the age-old racist stereotypes that Black men are dangerous, violent, and aggressors.

Meanwhile, Trump’s Muslim Ban, separation of Central American refugee families at the border, and unashamedly xenophobic rhetoric breathed life into a progressive, anti-racist movement that was no longer willing to accept mainstream Democrats’ colourblind view of domestic politics.

This led to the “Blue Wave” of progressive candidates elected to Congress in the 2018 mid-term elections. These new members of the US legislature have a clear mandate from their diverse constituents: Be the voice of the oppressed and dismantle racist systems rather than merely reform around the edges.

There is also increasing pressure from their constituencies to not let Israel off the hook for its crimes against Palestinians. In a March poll, some 34 percent of all respondents and 53 percent of respondents who identified as Democrats expressed a desire to have the US government pressure Israel into making compromises on Palestine – up from 25 and 30 percent, respectively, in 2018.

These growing attitudes within the American electorate have prompted progressive members of Congress to vocally criticise unconditional US support of Israel amid the latest escalation of violence and condemn the Israeli army’s killing of civilians and disproportionate use of force in Gaza.

On May 13, House Representative Alexandria Ocasio-Cortez criticised President Joe Biden in her speech in Congress, bluntly stating “The president and many other figures this week stated that Israel has a right to self-defence. And this is a sentiment that is echoed across this body. But do Palestinians have a right to survive? Do we believe that? And if so, we have a responsibility to that, as well.”

House Representative Rashida Tlaib, the first Palestinian American elected to Congress, decried the US government’s blatant disregard for Palestinian life. She asked colleagues in Congress, “How many Palestinians have to die for their lives to matter,” and declared that, “The freedom of Palestinians is connected to the fight against oppression all over the world.”

Tlaib articulated the sentiment held by a growing number of young, progressive Americans of all races and religions when she stated, “We must with no hesitation demand that our country recognise the unconditional support of Israel has enabled the erasure of Palestinian life.”

Concurrent to public statements, 21 members of Congress are co-sponsoring the bill “Defending the Human Rights of Palestinian Children and Families Living Under Israeli Military Occupation”. The bill would impose more oversight and end-use restrictions on how Israel can use US aid. One of the bill’s leading co-sponsors, Betty McCollum succinctly stated the objective behind the bill, “Not one dollar more of US military aid can be used to demolish Palestinian homes, annex Palestinian lands, and torture or kill Palestinian children.”

Such rhetoric by US elected officials was unheard of just five years ago. Indeed, defending Palestinian rights was often fallaciously equated with anti-Semitism. Although this pressure still exists, changing attitudes on race and race relations have had a profound impact on attitudes towards Palestine.

A 21st-century anti-racism movement is schooling Americans on how the powerful manipulate media, politics, and economics to oppress entire groups of people, while blaming those same people for their hardships. As these lessons are increasingly applied to Palestine, the question is when, not whether, US foreign policy will finally come to value Palestinian life.

-- This commentary was originally published on Al Jazeera here.

May 24, 2021 | Permalink | Comments (0)

Monday, May 3, 2021

Black Prosecutors Inspired Trust and Hope at the Derek Chauvin Trial--We Need More of Them (by Prof. Njeri Mathis Rutledge)

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Kamala Harris took heat for being a prosecutor, but lawyers of color should not avoid this noble calling. Prosecutors are powerful and should be diverse.

I had no idea I was holding my breath until I let out a deep exhale when I heard the jury had found Derek Chauvin guilty on all counts in killing George Floyd. It was a great day to breathe deeply for Floyd, Eric Garner, Tamir Rice, Aiyana Stanley-Jones, Philando Castile and countless other men, women and children of color who were killed by police but did not receive justice.   

Before we move on from the historic Chauvin verdict, I want to highlight an aspect of criminal justice reform that does not get sufficient attention: diversity within the criminal justice system. Reforming this system requires a diversity of voices in positions of power. And I am convinced that there is no greater position of power within the system than that of the prosecutor. 

A long way from the OJ Simpson trial 

The importance of Black prosecutors is frequently ignored. There was tremendous significance in seeing Minnesota Attorney General Keith Ellison and Jerry Blackwell — two Black attorneys — prosecuting the case against Chauvin. Ellison, the state's first Black attorney general, earned the trust of the Black community. Blackwell took a lead role in examining witnesses and gave the rebuttal closing argument. As a former prosecutor myself, watching Blackwell have the last word in a case about the killing of an unarmed Black man was therapeutic and a moment of great pride.   

We have come a long way from former prosecutor Christopher Darden and the O.J. Simpson trial that occurred while I was in law school. Darden was frequently vilified for being both a Black man and a prosecutor, as if those identities were mutually exclusive. 

Before I started law school, I vividly recall telling a date that I was going to law school to become a prosecutor. I found his response disturbing: So you want to put Black men in jail? he asked.   

I ultimately fulfilled my career goal of becoming a prosecutor, and I was proud to do so. Not because I "put Black men in jail," but because I believe my devotion to duty made a positive contribution to our endless struggle to align the aspiration of equal justice under law with reality. Why then wouldn’t we want prosecutors with an experience-based appreciation of the flaws in that system?  

In retrospect, I should not have been surprised. Vice President Kamala Harris was harshly criticized by some for decisions she made as a prosecutor and as California attorney general. Black prosecutors are routinely accused of being a tool in a biased system by some and of being too lenient about criminal justice reforms by others. The reality is that there are few actors in the criminal justice system who have more influence on both respect for law and reform of the process than prosecutors.  

Bringing commitment and empathy

Aspiring lawyers interested in civil rights and justice should consider serving as prosecutors. Prosecutor’s offices need to reflect the diversity of their communities. So far, that is not the case. For instance, only 1.8% of lead prosecutors are women of color. And when there is diversity, sadly, it is not appreciated by everyone. Black female prosecutors, like Baltimore State’s Attorney Marilyn Mosby, have been the target of racist threats and hate mail. 

Black prosecutors bring a unique perspective to their duties, a perspective that ideally helps bridge the chasms between the law enforcement community and the public. Black prosecutors lend credibility to a system where Black Americans are frequently accused of crime. This is because justice is more complex than simply applying a criminal code. It requires an understanding and, yes, an empathy for those caught up in the system. But most important, it requires a commitment to do justice.  

It was that call to do justice that inspired me to serve in an overworked, underpaid yet personally fulfilling job. I lament that so many of my law students, Black and white, fail to see the nobility of this calling. I am grateful that Ellison and Blackwell have made a difference as prosecutors. May they inspire a new generation to serve as well. 

Njeri Mathis Rutledge is Professor of Law at South Texas College of Law Houston. Follow her on Twitter: @NjeriRutledge

This article was originally published at USA Today on 4/28/21. You can read it here.

May 3, 2021 | Permalink | Comments (0)

Wednesday, April 28, 2021

The Entire Country Needed a Guilty Verdict in Chauvin Case--But Laws Still Need to Change (by Prof. Njeri Mathis Rutledge)

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Convicting a police officer is rare.   

Juries are hesitant to second-guess split-second decisions. The killing of George Floyd was unique. This case did not involve a split-second judgment call on whether to shoot. Instead, video evidence showed that rather than a split-second decision, Derek Chauvin made a 9-minute-and-29-second decision while Floyd and traumatized bystanders pleaded with Chauvin to stop.  

Moreover, the decision for the police chief and other officers to cross the blue line and speak out against Chauvin’s behavior was nothing short of historic.

Chauvin’s callous action of placing his weight on Floyd’s neck traumatized a nation.  It was so horrific to watch and so blatant that it turned people from around the world into allies.  

Even police officers were seen taking a knee and joining protesters. It was truly a watershed moment where a large part of the community said "enough." Sadly, the country has a long history of injustices being committed by the police against people of color without accountability in court.

The country needed a guilty verdict. So did the family, the communities of color and law enforcement.  

The guilty verdict validated Floyd as a human being who deserved to be treated with dignity regardless of his past flaws or mistakes. For others, the verdict is overshadowed by the most recent victims of police violence, 13-year-old Adam Toledo and 20-year-old Daunte Wright. Despite protests and calls for reform, the body count of unarmed children and adults killed by police continue to grow.  

For practical purposes, a guilty verdict means accountability. The jury had the opportunity to consider three charges: second-degree murder, third-degree murder and second-degree manslaughter.  The jury could have returned a verdict of guilty on any or all of the three charges. The jury chose to convict the defendant on all charges.  

To convict the defendant of any charge, the jury had to determine whether Chauvin’s actions were justified by the use of reasonable force. The reasonable officer standard usually favors the accused police officer, but this case was different. In this case, several police officers took the stand to support the point that Chauvin’s actions were not reasonable and not in line with police policy.  

The jury had to also conclude that Chauvin’s actions were a substantial causal factor in Floyd’s death. The law did not require that Floyd had to be in perfect health.

For practical purposes, the fact that Chauvin was convicted in Minnesota will have no binding impact on the laws in other states. In fact, the uniqueness of Chauvin’s case combined with the rarity of a conviction might only reinforce the belief that the police may act with impunity unless there are multiple surveillance videos and police officers willing to testify against the defendant.

Unless the law changes, the public should not expect an increase in convictions involving police misconduct. Most state laws allow the police to use deadly force if a suspect poses a serious threat to others or the officer. In the rare instance that charges are filed and there is a trial, the issue tends to focus on whether the officer’s fear of harm was reasonable.  

Many legal experts expected Chauvin to be found guilty of something. The disturbing fact is 98.3% of police killings failed to trigger criminal charges. One case in point was the killing of 12-year-old Tamir Rice in Cleveland. Although the city settled the civil lawsuit, the officer who killed Rice was never held accountable in a courtroom.

When charges are brought, officers are rarely convicted.  According to the Police Integrity Research Group, only four out of the more than 100 nonfederal officers charged in a person’s death were convicted of murder; 18 were convicted of manslaughter or reckless or negligent homicide.

True change cannot come from jury verdicts but through legislation. Recently, President Joe Biden has signaled his support of the George Floyd Justice in Policing Act, which would include banning certain police practices like chokeholds and federal no-knock warrants and reform qualified immunity laws.  

The story of Floyd cannot merely end with a jury verdict. If we are to make the statement by Floyd’s daughter, 6-year-old Gianna, true that her “daddy changed the world,” we must change policing by changing the law.  

 

Njeri Mathis Rutledge is Professor of Law at South Texas College of Law Houston. Follow her on Twitter: @NjeriRutledge

This article was originally published at USA Today on 4/20/21. You can read it here.

 

 

April 28, 2021 | Permalink | Comments (0)

Tuesday, April 27, 2021

Religion's Challenge to the Carceral State

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Review of Garrett Felber, Those Who Know Don’t Say: The Nation of Islam, the Black Freedom Movement, and the Carceral State (2020).

Garrett Felber’s book, Those Who Know Don’t Say, offers a fresh and fearless new intellectual and activist history of the Nation of Islam (NOI), which situates a critique of the carceral state as central to the Black Freedom movement. Felber is a historian, who has become a recent cause celebre among academics for his firing by the University of Mississippi as retaliation for calling out the school’s allegiances to racist donors over public service. His firing has been a buckshot warning that academic freedom and free speech are not as free as we might think. In response, over 5,000 scholars and professors signed on to an “open letter” to his school demanding he be reinstated.

While Felber might be viewed as terminable by his home institution, his research is anything but, and instead, opens up academic study in new and exciting directions. Grounded in excavations of archival sources, court documents, and religious records, he offers meticulous, high-caliber scholarship that revises a portion of civil rights history and the NOI’s place in that history. The author shows that Muslims in America have been subject to surveillance and Islamophobia for decades.  This, in turn, has helped fuel the Muslim community’s decisively antagonistic view of the prison system.

The book is styled as a vehicle through which to explore forgotten sites and forms of Black struggle confronting the carceral state. Its central claim is that challenges to policing and prisons were central to the postwar Black Freedom movement—and that the NOI was the at the forefront of these struggles. The carceral state, in turn, expanded through what the author calls a “dialect of discipline,” a phrase that intends to describe the relationship between disciplined Black dissidence and state penal discipline. To combat Black protest, the state responded with new, carceral modes of surveillance, punishment, and ideological knowledge production.

Accordingly, these developments laid the groundwork for the modern carceral state and the movements that oppose it. The dialectics played out in multiple arenas of Black protest, including prisons, courtrooms, and in the street.  These collective efforts elicited harsh responses by police, prison guards, and other agents of the state. The tension between resistance and surveillance thus came to define the relationship between Black resistance, often led by NOI leadership, and state authorities.

Felber details how the NOI often had to struggle along two different lines. In addition to confronting police and prisons, the NOI also contended with Black leaders who saw the group as violent and pro-segregation. As such, the NOI often had to defend its civil rights struggles not simply against the carceral state, but also against other Black leaders who saw the NOI’s agenda as an obstacle to their own, especially their efforts to end segregation. Malcolm X was once called the most dangerous man in America, but he was not feared by whites alone.

What emerges from these struggles is the NOI as the most active and vociferous antagonist of the carceral state. Indeed, the litigation efforts alone reveal an organization dedicated to appropriating courts to challenge state oppression. In many ways, litigation by Muslims in prison advanced the status of prisoners in a way that paralleled civil rights struggles on the outside. This legacy of incarcerated Muslims taking their protest to court has impacted prison law and policy so profoundly that any discussion of prisoners’ rights in America would be incomplete without recognizing the contributions made by NOI followers.

One individual highlighted in the text is Martin Sostre, a convert to the NOI, who embodies practically all aspects of the dialectics of discipline thesis. Sostre became active in prison and worked to advance the rights of Muslims and other prisoners. His efforts earned him extra punishment in solitary confinement, but his mistreatment only fueled his determination. He would study law in prison and go on to become one of the fiercest jailhouse lawyers the country has ever known, garnering federal court victories, including rulings that curbed the use of solitary confinement and allowed Muslims greater religious freedoms. He also drafted legal templates that were used by others in prison for their own lawsuits. When released from prison, Sostre opened a revolution-themed bookstore that extended his resistance into the streets. Reinforcing the dialectic, the police would later raid the bookstore and Sostre would ultimately be returned to prison.

As such profiles suggest, there is a long-lost history that this book brings to life. It is must-read material for students of African-American history, criminal justice, Islam in America, and scholars of social movements that tells a sordid story that links to current protests led by the Black Lives Matter movement. Through its pages we learn that the carceral state did not expand without cause, but instead, the expansion was part of the reactionary measures to control Black protest. In outlining Black resistance in America and the growth of the American penal system, Felber has uncovered a definitive political and intellectual history of the NOI and its relationship to the broader civil rights movement.

 

This article was originally published on 4/26/21 at JOTWELL Criminal Law. Read it here.

April 27, 2021 | Permalink | Comments (0)

Monday, April 26, 2021

Identity Crisis

Belonging.  To Be. To Long for.  To long to belong in a space where one feels safe, wanted, normal. 

Is to belong to be normal? Who is normal?  Who decides? Who sets the norm? for you, for me, for us. 

But for us to exist, there must be a them

So does belonging axiomatically require exclusion, boundaries, insiders, outsiders,

                                              us versus them?

Belonging. A word in every culture’s lexicon; a word whose definition is rarely questioned.  You know it when you feel it.  When you feel dignity, equality, respect – you belong. 

The affective component of belonging, however, can blind you to the material consequences of (not) belonging     though the two cannot be disconnected.

So what do we mean to belong? More importantly, what do we want it to mean?

In law, we look beyond the affective.                                The most reductivist definition:              citizenship.

Your passport officially declares that you belong to this nation, this geography, this culture, this people. The piece of paper is frail and meaningless.

                                                              unless you and I are not just citizens of the same state, but also equal citizens. 

So long as we are equal, we both belong, right? 

                Equal but Separate schools,

                       Equal but Separate neighborhoods,

                                Equal but Separate experiences in the same nation.

With the same passport, The same citizenship. 

So we both belong.     wrong.

But we all have the same rights under the law, don’t we?  The U.S. Constitution applies to all of us.  The law protects all of our civil rights.  Isn’t that enough to belong, for everyone in the same geographical space defined by artificial borders be a collective “us.”

NO – a resounding no –

                                    cries George Floyd when he begs for his life as the White police officer murders him under his knee.

NO – a resounding no-

                                    cries Eric Garner when he begs for his life as the White police officer chokes him to death.

NO – a resounding no –

                                    proclaim the Muslims who cannot see their spouses, mother, father, and children banned from setting foot on U.S. soil,

                                                                               banned from soiling our soil with their very presence

NO – a resounding no – say the Black and Brown children in public schools under-resourced as compared to white children across the country.

But, maybe just maybe, if you behave yourself the way “we” want “you” to, just maybe we will grant you the permission to belong,

Conditionally, Revocably

The first rule: English only.

We are a reasonable people, for we make exceptions to our rules. In this case, only upper middle-class people of European origin may speak other languages – for that makes them competitive in the neoliberal, global capitalist economy in the 21st century.

    But no Spanish for Mexican Americans.

         No Arabic for Arab Americans.

             No Urdu for Pakistani Americans. 

                  No Hindi for Indian Americans. 

English only, or else you have betrayed this nation. You have decided you do not want to belong, so you can’t blame us for making you part of “them.” And while we are on the topic of blame, how dare you come to our country – the land of the free, the home of the brave – and criticize it. 

Our criticism is constitutionally protected dissent, patriotic. 

Your criticism is treason, disloyal.   Your decision that you do not want to belong. 

We let you in, and this is how you thank us – by speaking these foreign languages we cannot understand, eating these foreign foods that we cannot digest, wearing these foreign clothes and using foreign names we cannot pronounce.

This is how you thank us? By threatening our identity, our hegemonic culture, as we define it.

If you want to belong, you cannot be different. From us.  We can be different among ourselves, because there is no question that we belong.  But you must constantly persuade, convince, prove that you belong. 

               Everyday, with every word, every action.

               Assimilate, emulate, copy, be the same

as Us

We don’t care where you came from, for we are proudly a nation of immigrants, but we most certainly care how you behave, look, talk, eat, and live now that you are here.  Now that you want to belong here, with us, you must accept us as superior, smarter, more beautiful, more civilized.

America is the land of Belonging.       To Be. To Long for opportunity, the pursuit of happiness. 

But can you belong without dignity?  Without respect?  Can you belong when legal rights apply only to some in practice?  Can you belong when your very skin color reminds the powerful of your difference?

Belonging is identity.

Spoken Word Version of Identity Crisis (Sahar Aziz)

 

-- by Sahar Aziz, Professor of Law and Author of The Racial Muslim: When Racism Quashes Religious Freedom

April 26, 2021 | Permalink | Comments (0)

Tuesday, April 20, 2021

Except for Palestine: The Limits of Progressive Politics

 

At a recent book talk hosted by the Rutgers Center for Security, Race and Rights, Marc Lamont Hill and Mitchell Plitnick discussed a question percolating among American progressive political circles: why are so many progressives not applying their commitments to counter racism, settler-colonialism, and human rights violations to Palestinians?  What explains what is commonly known as PEP - Progressive Except for Palestine?  Hill and Plitnick's book Except for Palestine: The Limits of Progressive Politics wrestles with these questions.

Watch their book talk here and below.

 

 

April 20, 2021 | Permalink | Comments (0)

Monday, April 12, 2021

Call for Proposals for the Third Annual Equality Law Scholars’ Forum

Below is a message from Professor Tristin Green about submitting proposals for the Third Annual Equality Law Scholars' Forum.  I participated in this event back in 2017, and I would strongly encourage any young scholars working in the relevant areas to submit a proposal.  It is a great opportunity on many levels.

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Last year, we had to cancel our two-day, in-person Spring 2020 Equality Law Scholars’ Forum scheduled at the University of San Francisco Law School (we held a small feedback session virtually for several junior scholars in Fall 2020), but we’re back in full for Fall 2021!   Building on the success of the Inaugural Equality Law Scholars’ Forum held at UC Berkeley Law in 2017 and at UC Davis Law in 2018, and in the spirit of academic engagement and mentoring in the area of Equality Law, we (Tristin Green, University of San Francisco; Angela Onwuachi-Willig, Boston University; and Leticia Saucedo, UC Davis) announce the Third Annual Equality Law Scholars’ Forum to be held in Fall 2021.  We are planning for the even to be held in person at the Boston University School of Law. 

This Scholars’ Forum seeks to provide junior scholars with commentary and critique and to provide scholars at all career stages the opportunity to engage with new scholarly currents and ideas.  We hope to bring together scholars with varied perspectives (e.g., critical race theory, class critical theory, feminist legal theory, law and economics, law and society) across fields (e.g., criminal system, education, employment, family, health, immigration, property, tax) and with work relevant to many diverse identities (e.g., age, class, disability, national origin, race, sex, sexuality) to build bridges and to generate new ideas in the area of Equality Law.  

We will select five relatively junior scholars (untenured, newly tenured, or prospective professors) in the U.S. to present papers from proposals submitted in response to this Call for Proposals. In so doing, we will select papers that cover a broad range of topics within the area of Equality Law.  Leading senior scholars will provide commentary on each of the featured papers in an intimate and collegial setting.  The Forum will take place all day Friday through lunch on Saturday.  Participants are expected to attend the full Forum.  The Equality Law Scholars’ Forum will pay transportation and accommodation expenses for participants and will host a dinner on Friday evening.  

This year’s Forum will be held on November 12-13, 2021 at the Boston University School of Law

Junior scholars are invited to submit abstracts of proposed papers, 3-5 pages in length, by June 1, 2021.

 

Full drafts of papers must be available for circulation to participants by October 29, 2021.

Proposals should be submitted to:

Tristin Green, University of San Francisco Law School, tgreen4@usfca.edu.  Electronic submissions via email are preferred.

April 12, 2021 | Permalink | Comments (0)

Wednesday, April 7, 2021

RELIGION, RACE AND IMMIGRATION. WHAT ABOUT THE IMMIGRATION AND NATIONALITY ACT? By Christopher Ogolla

The recent surge of migrants in the southern border has thrust the issue of immigration to the forefront of public discourse. It is so much so that House Republican leader Kevin McCarthy and Republican members of Congress visited the border in March 2021 to highlight the crisis.[1] During the Trump Administration, it used to be the Democrats who visited the border to highlight the migrant crisis. To quote Yogi Berra, “its déjà vu all over again.” But I digress.

On February 18, 2016, Pope Francis, while on a trip from Mexico to Rome, was asked by reporters about the then-presidential candidate Donald Trump’s plan to build a wall along the U.S. Mexican border, if elected. The Pope responded, “A person who thinks only about building walls, wherever they may be, and not building bridges, is not Christian. This is not the gospel."[2]

On January 27, 2017, President Trump signed an Executive Order[3] banning foreign nationals from seven predominantly Muslim countries from visiting the U.S. for 90 days. Additionally, the Order suspended entry to all Syrian refugees indefinitely and prohibited any other refugees from coming into the country for 120 days.[4] This Order became popularly known as the Muslim ban.[5] In an amicus brief supporting a lawsuit filed by Washington State Attorney General Bob Ferguson seeking to have key provisions of the Executive Order declared unconstitutional, the American Civil Liberties Union (W.A.) argued that the Order gave preference to the processing of Christian refugees over Muslim refugees.[6] The Supreme Court later upheld the Order in Trump v. Hawaii.[7]

In April 2018, the then-Attorney General Jefferson Sessions announced a zero-tolerance policy “for offenses under 8 U.S.C. § 1325(a), which prohibits both attempted illegal entry and illegal entry into the United States by an alien.”[8] This policy was in response to an increase in the number of immigrants crossing the southwest border. The hallmark of this policy was the family separation practice that caused public outrage and opposition from some members of Congress.[9] On June 14, 2018, in a speech to law enforcement officers in Fort Wayne, Indiana, Sessions defended the zero-tolerance policy by citing the Bible to justify immigrant family separations. He said, "I would cite you to the Apostle Paul and his clear and wise command in Romans 13, to obey the laws of the government because God has ordained them for the purpose of order".[10] In a nutshell, Sessions was saying that “the practice of separating families is consistent with the teachings of the Bible because persons who violate the law of our nation are subject to prosecution.”[11]

Responding to Sessions’ use of the Bible to justify family separation, New York Cardinal Timothy Dolan said, “I appreciate the fact that Attorney General Sessions refers to the Bible. The quote that he used from St. Paul might not be the best. For one, St. Paul always says that we should obey the law of the government if that law is in conformity with the Lord's law. No pun intended, but God's law trumps man's law. I don't think we should obey a law that goes against what God intends that you would take a baby, a child, from his or her mom. I mean, that's just unjust. That's un-biblical. That’s un-American. There could be no biblical passage that would justify that."[12]

These examples show that religion and immigration are inextricably intertwined. But that is of little novelty. What is more telling is that the Immigration and Nationality Act (“The Act”) does not speak much on religion. Religion only appears in three sections of the Act, one as a ground for asylum, second as preferential treatment for special religious workers, and a third on naturalization requirements. Regarding asylum, the Act defines a refugee as “any person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.[13] The Act also allows an alien, who- has been a member of a religious denomination having a bona fide nonprofit, religious organization in the United States to enter the country and work as a minister for a religious denomination, in a religious vocation in a professional or nonprofessional capacity, or a religious occupation either in a professional or nonprofessional capacity.[14] Finally, to complete the naturalization process, a non-citizen is required to swear an oath of allegiance to the United States.[15] The oath ends with the words, “so help me God.”[16] A non-citizen is allowed to waive this part of the oath. Part of the rule provides that when a petitioner or applicant for naturalization, by reason of religious training and belief or for other reasons of good conscience, cannot take the oath with the words “on oath” and “so help me God” included, the words “and solemnly affirm” shall be substituted for the words “on oath,” the words “so help me God” shall be deleted, and the oath shall be taken in such modified form.[17]

So, despite the paucity of religious edicts in the statute, why resort to religion to explain the zero-tolerance policy? This could be partially explained by the fact that race, religion, and nationality matter in immigrant selection. They are still used in the contexts of admission and enforcement to serve different purposes, such as border security.[18] Even though the Establishment clause prohibits the government from favoring one religion over the other, immigration presents an area where the government can favor or disfavor a religious group. For example, in Trump v. Hawaii, even though the proclamation said nothing about religion, it overwhelmingly targeted Muslim nations.[19] The Majority found that even though five of the seven nations in the proclamation had Muslim-majority populations, that alone did not support an inference of religious hostility. Naturally, this leads to the question, does the Act allow for discrimination based on religion? Sadly, the answer is yes, if nationality is equated with religion.

[1]Mariam Khan & Ben Gitlleson, GOP Lawmakers Slam Biden After Visit to Migrant Detention Center at Border, ABC News (Mar. 15, 2021), https://abcnews.go.com/Politics/gop-lawmakers-slam-biden-visit-migrant-detention-center/story?id=76476391.

[2] Daniel Burke, Pope Suggests Trump ‘is Not a Christian’, CNN (Feb 18, 2016), https://www.cnn.com/2016/02/18/politics/pope-francis-trump-christian-wall/index.html.

[3] Exec. Order No. 13769, 82 Fed. Reg. 8977 (Jan. 27, 2017).

[4] Timeline of the Muslim Ban, ACLU, https://www.aclu-wa.org/pages/timeline-muslim-ban (last visited Apr. 3, 2021).

[5] Id.

[6] Brief for the ACLU-WA as Amicus Curiae, Washington v. Trump, 858 F.3d 1168 (2017) (No. 2:17-cv-00141), file:///C:/Users/cpogolla1130/Downloads/026-1._aclu_amicus_brief%20(1).pdf.

[7] Trump v. Hawaii, 138 S. Ct. 2392 (2018).

[8] See Press Release, Jeff Sessions, Attorney General, DOJ, Announces Zero Tolerance Policy for Criminal Illegal Aliens (Apr. 6, 2018), https://www.justice.gov/opa/pr/attorney-general-announces-zero-tolerance-policy-criminal-illegal-entry.

[9] See, e.g., The Trump Administration’s Zero Tolerance Immigration Enforcement Policy, Cong. Res. Serv. 1, 2 (Feb. 26, 2019) (noting that “The family separations have garnered extensive public attention.”).

[10] Richard Gonzalez, Sessions Cites the Bible to Justify Immigrant Family Separations, NPR (June 14, 2018), https://www.npr.org/2018/06/14/620181177/sessions-cites-the-bible-to-justify-immigrant-family-separations.

[11] Diocese of Savannah, Bishops Across U.S. Condemn Separation, Detention of Migrant Children, Southern Cross, June 21, 2018.

[12] Jennifer Hansler, Cardinal Dolan: There is No Bible Passage to Justify Family Separation, CNN (June 16, 2018), https://www.cnn.com/2018/06/16/politics/cardinal-dolan-family-separation-cnntv/index.html.

[13] INA § 101(a)(42).

[14] INA § 101(a)(27)(C).

[15] INA § 337.

[16] 8 CFR§ 337(a)(1).

[17] 8 CFR§ 337(b).

[18] Liav Orgad & Theodore Ruthizer, Race, Religion and Nationality in Immigration Selection: 120 Years After the Chinese Exclusion Case, 26 Const. Comment. 237, 261 (2010).

[19] Trump v. Hawaii, 138 S. Ct. 2392 (2018).

*Christopher Ogolla is an assistant professor of law, Barry University School of Law. 

April 7, 2021 | Permalink | Comments (0)