Friday, January 15, 2021
For a variety of reasons, Muslims in America are in the public spotlight. As a result, the demand for information and analysis on Muslims and Islam in the United States has risen. In an effort to provide a resource for academics, advocates, journalists, and others, we created this bibliography of over 250 books published between 1965 and 2020 focused on Muslims and Islam in the United States. We did not include books that focus primarily on Islam and/or Muslims outside of the United States.
The bibliography is categorized by subject matter and chronologically with the most recent publications first. The categories include anthropology, biography, health, history, law, political science, reference, and sociology. If you find any relevant books are not included in this list, we welcome you contacting us with the citation of your suggested book addition.
The latest version of the bibliography with books published in 2020 is now available here.
Wednesday, January 13, 2021
They Want to See the Manager: Mistaking Democracy for Consumption
The events of January 6, 2021 have been a fertile source of discussion for many legal scholars and experts. As Congress attempted to certify the election of President Joe Biden in Washington, D.C., mobs of right-wing agitators stormed the Capitol and forced their way inside. The rioters had been whipped into a frenzy during a rally held by President Trump and his surrogates. Bursting through barricades and climbing over walls, the mob, entered the halls of Congress. They brought guns and weapons. They broke windows and entered private offices, destroying and looting government property as they went. Five people, including one police officer, died as a result of the riots.
It was really an exercise in White invulnerability as well. Fascinating how when your life matters, authorities manage not to shoot you with bullets or blind you with bean bags, or spray tear gas at you. Mostly. There was also a perception that President Trump’s loss is a loss for White privilege and White supremacy in the United States is likely and underlying motivator for those who participated. This mob was overwhelmingly white, seen sporting Confederate flags and shirts, and carrying banners endorsing White supremacy and Anti-Semitism. The mob was also comprised of fairly middle class and even upper-class people, with one individual flying to the protest in a private jet.
It was a stunning display of how White privilege accords safety, security, and the benefit doubt to individuals even when they are in the wrong. It provided crucial information about who has the right to protest and how this protest should be received, as Professor Eddie Glaude pointed out in an interview with NPR.
By this time, there has been a lot of popular commentary on what the Times of India dubbed the Coup Klux Klan. Commentators have focused on the mob’s disdain and disregard for democracy, the halls of Congress, and our national democratic institutions.
Some have focused on Republican complicity and the subsequent bipartisan disavowal of the rioting and looting mob in the wake of the crisis. Still others have examined the violence deployed by the individuals who entered the Capitol Building. And others have focused on the seeming lack of security, and the uneven enforcement of “law and order” that would have been vigorously and forcefully applied if the individuals storming the Capitol were Black, Latino, or Muslim.
Throughout the commentary, I kept thinking about how familiar the hostile entitled violence looked and felt. Of course, unhinged White mob violence will look familiar to those who study the history or race in the United States. Rabid hostility about the possibility of a multiracial majority coalition organizing together to exercise power in the United States spurred White mob violence during Reconstruction, and violence and hostility that continued into the Jim Crow Era. It would also look and feel familiar to those for who understand how Black communities, businesses, and homes were destroyed by White Mob violence in late 19th and early 20th Century incidents like the Springfield Massacre of 1908 in Illinois, the Tulsa Race Riots of 1921 in Oklahoma and the Rosewood Massacre of 1923 in Florida, among others. But as critical race commentators have also pointed out, such rambunctious displays of wanton violence, looting, and rioting by White people, typically perceived as harmless, also occur when sports teams win or lose.
But to me, as a survivor of low wage large department store retail work, the violent mobs of looting angry White people besieging the capital reminded me of something else: Black Friday. In the United States, “Black Friday,” is the “first” Christmas shopping day after the “Thanksgiving Celebration.” On Black Friday, people in the United States follow a celebration that mythologizes our violent colonial past, which is painful for many indigenous people in the United States, with a day in which centers finance capitalist consumption. Because people are often desperate to obtain consumer goods at low prices, a sort of frenzy emerges on Black Friday which often results in injury and rioting over televisions, slippers, and other Christmas presents.
The echoes of Black Friday mobs, large groups of desperate but entitled mostly White persons demanding to be heard and served, placed into sharp relief the nature of President Trump’s attempted coup. I started thinking about how the mob of disgruntled angry White people were reminiscent of a pissed off group of customers demanding that their coupon for 1 Free Republican President be honored. I don’t think I was alone in seeing this. Anyone who has worked a low wage public facing customer service job in food service or retail or those who have worked a low wage patient facing job in health care recognize the cut of the mob’s jib. What I saw was what I often feared as a young worker, what I still cringe to see as an adult: angry economically privileged White people who are demanding to see a manager.
The Karens and Terrys (which may be the male equivalent of Karen) did not get what they wanted. The idea that making your voice heard gives you license to engage in violent abusive behavior no matter the cost reduced the Capitol building to an Olive Garden and Congress to the errant managers that needed to be dressed down. While some may say this trivializes what happened last week, we must understand how difficult, how volatile, how dangerous customers in retail and service can potentially be.
These are the people who wander around Target openly carrying a gun when the store policy is no firearms on the premise. And there are no consequences. They are the people who violently bully the retail associates asking them to wear masks at the door. They are the people who yell at service employees over small things. These people live in a have it your way world where they are petty despots.
Security guards and police had trouble subduing them or just failed to take action in many moments. And members of Congress hid from them. Even the Republicans who were pretending to be their allies barricaded themselves in their offices when they were the managers sought by Karen and Terry. But understand that retail workers and service workers subdue frothing at the mouth angry individuals like this on a regular basis – often whole groups of them.
Rioting angry insane entitled White people like the ones at the Capitol are what retail associates, waitresses, bouncers, and bartenders deescalate all the time in the United States. And it is good to remember this as many of us seem willing to say that retail workers and service workers do easy jobs. When Karen and Terry climbed the walls and demanded to see the manager the police and Congressmen, who are paid way more than workers in the restaurant industry, retail, or customer service, were afraid to engage with them and deescalate the situation.
None of this removes the reality that the mob of rioters and looters seemed deeply sympathetic to White Supremacy and conspiracy theories. And this analysis does not excuse the fact that if Black or Brown people had engaged in similar behavior, barging into a secure government building and damaging property, breaking windows, stealing, and looting, we would be speaking about blood flowing down the steps of the Capitol building. While there have been some consequences in terms of arrests and job losses, had the protestors been Black, Brown, Latino, or Queer, we would be mourning a situation in which the National Guard and Washington, D.C. police would have murdered or injured many people.
What my analysis above does provide, however, is the revelation of how class privilege and White supremacy allow some people to perceive foundational democratic institutions as matters of consumer choice and privilege. It also reveals how Whiteness and class privilege intersect to create systemic forms of protection and security for some people, while denying it to others. And it reveals how class privilege and White Supremacy function together in ways that marginalize working people across lines of class solidarity.
In closing, the following caveat is in order. There are historical reasons why Black persons and other people of color are not part of the group of demanding consumers labeled as Karens and Terrys. There are bad individual customers among minority groups, but the systemic exclusion of people of color from stores and places of public accommodation has rendered their relationship to retail and service more precarious. But that is another post.
- Saru M. Matambanadzo, Moise S. Steege, Jr. Associate Professor of Law, Tulane University School of Law
Monday, January 11, 2021
In recent weeks, Americans and the world have gotten a racial and religious double-dose of the double standards that fuel law and policy in this country. While many would like to think that equality and egalitarianism are the order of the day, recent events prove otherwise. Just a quick look at the Christmas bombing in Tennessee and the Capitol riot in Washington D.C. lay bare the two Americas that exist for Muslims and racial minorities.
It was just hours into Christmas day when a suicide bombing detonated an RV in downtown Nashville. To grasp the gravity of this event altogether, consider the rarity of a suicide bombing in the United States. Most would associate such behavior with Muslim terrorists abroad, but this was a home-grown American. Yet this shocking and startling event hardly made headlines—and when the came, they were not the type that one might have seen had the bomber been Muslim.
The problem is, no one ever really learned about this man’s religion. In a scathing opinion piece, If the Nashville bomber were Muslim, he would be called a Terrorist, Dean Obeidallah notes that the fact we did not learn of his religion means that it is safe to assume was not Muslim. For if he were, that would have been the first thing we learned. Instead of “terrorist,” “extremist,” or “religious fanatic,” the media used terms like “loner,” “recluse,” and “quiet life” to describe the individual. As the author describes, “Of course, if [he] were Muslim, there’s no way there would be a nuanced analysis of his motivation like the one we’ve seen in headlines. Nope, it would be assumed by most that since he’s Muslim, he had to have a political agenda.”
Muslims have felt the sting of this double standard, particularly the sensationalism of a suicide bombing hardly getting media play. Meanwhile, back when Timothy McVeigh bombed a federal building in Oklahoma, many in the media automatically assumed it was the work of Muslims. Underlying this harsh double-standard is a logic that assumes Americans cannot be religious extremists or take the shape of what was formerly believed to be the provenance of fanatics from the Middle East.
Not to be outdone by the Christmas bombing, On January 6, 2021, rioters inspired by the words of the sitting president, stormed the Capitol Building in D.C. In the process they wreaked havoc on the building itself, breaking windows and doors, and ransacking offices of congressmembers. At least 5 people died in the event, including a pregnant woman who was shot and a police officer who died as result of the melee. There had not been such an attack on the Capitol in the modern era.
Perhaps the most noticeable fact of the events was that the police were woefully outnumbered and underprepared for what unfolded. Despite that the president had been riling up his base to attend the protest weeks in advance, despite that on social media there were all sorts of indications that the protest would turn violent, and despite that just prior, the president made a speech that prodded his followers to march to the Capitol Building and to “show strength,” the cops were overrun in just minutes.
It is here that the spectacle begins. One need only remember the George Floyd protests, just the summer before. Images of police running down protestors, pushing, kicking, and beating, firing rubber bullets, and hardly hesitating to use pepper spray were a permanent fixture on the news. In the very same city. From those protests, if there were any clear message sent to the groups of Black Lives Matter organizers and protestors, it was that “we will use lethal force.” Here it is backwards as this image shows how police responded to Black protest.
Fast forward to the Capitol riots, and the joke becomes obvious.
While the George Floyd protests in D.C. were peaceful, the capitol rioters were violent—and had weapons. They came to fight. Yet it is almost as if the police gave them a free pass. No bullets, no rubber bullets, no baton beating, sparingly-used pepper spray, and very little armed force was used. Instead, there is a photo of a police officer taking a selfie with one of the protestors. Law professor Anthony Farley noted the irony and asks why these protestors were not treated to drone strikes as in other parts of the world:
As unpalpable as these events are for our society, they do the uniquely good work of showing us who we are. As another law professor, Khaled Beydoun described in a tweet:
Thursday, January 7, 2021
Renuka Rayasam of Politico recently wrote an interesting article entitled "The Southern state where Black voters are gaining in numbers, but not power". She contrasts Georgia with Mississippi and provides insight on how Black voters can shape the Democratic Party's future in the South, if the Party can earn their trust and support.
Tuesday, January 5, 2021
Triaging Public Health Services Based on Race: What Are The Legal Challenges? By Christopher Ogolla.
According to the CDC, race and ethnicity are risk markers for other underlying conditions that affect health including socioeconomic status, access to health care, and exposure to the Covid-19 virus. For example, American Indian or Alaska Natives are 4 times more likely to be hospitalized for Covid-19 and 2.6 more times to die, compared to White non Hispanic persons. Black or African American non Hispanics are 3.7 times more likely to be hospitalized and 2.8 times more likely to die from Covid-19 compared to White non-Hispanic persons. The disparate impact of the Coronavirus has drawn national attention to how public health resources are used in times of emergency. In light of these circumstances, if states were to prioritize racial minorities in public health emergencies, such as distribution of vaccines during a pandemic, for example, would that focus survive equal protection challenge? Put succinctly, can we triage public health services based on race?
As an example, California’s Covid-19 vaccination plan includes this statement: “One of the primary efforts of the Community Vaccine Advisory Committee will be to help ensure vaccine planning supports all Californians, but particularly for individuals in communities that are disproportionally impacted, including Latinos, African, Americans, Native Hawaiians, Pacific Islanders, and other Asians including Filipinos.” Will this plan pass constitutional muster?
The Supreme Court has countenanced the use of race in public programs when it is narrowly tailored to achieve a compelling governmental interest. The downside of this standard of review is that public health agencies, particularly those offering services to the underprivileged or victims of poverty, may be barred from giving preferential treatment in services to groups based on ethnicity, even if those groups may be in dire need of those services.”
Professors Schmidt, Gostin and Williams, writing on whether it is lawful and ethical to prioritize racial minorities for Covid-19 vaccines, note that “there is no direct precedent in which courts have considered race in allocating scarce health care resources. They write that “[s]trict judicial scrutiny would not permit vaccine priority strategies. First, a healthcare worker could not give priority to vaccinating persons from minority groups, for instance, by skipping White people waiting in line at a health care facility. Second, public health agencies could not provide vaccines exclusively, or in large shares, to geographic areas identified by race alone.” Nevertheless, they suggest that a vaccine distribution formula could lawfully prioritize populations based on factors like geography, socioeconomic status and housing density status that would favor minorities de facto, but not explicitly include race.”
The geographic/ proportional distribution suggested by Schmidt et al., would be consistent with other race neutral suggestions or solutions for other affirmative action-based programs, such as school admissions. In Fisher v. University of Texas at Austin, 136 S.Ct. 2198 (2016) (Fisher II), the Court affirmed diversity in higher education as a compelling state interest, and held the race-conscious admissions program in use at the time of petitioner's application lawful under the Equal Protection Clause. We could analogize the geographical distribution to University of Texas, Austin's use of top 10% plan, where the university used a race neutral method of equalizing the structural inequities by guaranteeing acceptance of students who graduate in the top 10% of their graduating class. This plan cures the obstacles that minorities often face in getting admitted to elite universities: parental educational background, attending under-resourced schools because they are located in economically depressed neighborhoods, kids having to work to support the family, language barriers, low socio-economic status, etc.
However, this legal analogy flounders in times of a pandemic. Unlike the school admission cases (where the lack of diversity that elite schools are trying to improve is a self-inflicted wound), Covid-19 is an emergency, a disaster of epic proportions. As of this writing, there are over 21 million confirmed cases and over 356,000 deaths in the United States. During a pandemic, there is more urgency and a race neutral alternative might not be as equally effective. For example, vulnerable populations might slip through the cracks while waiting for their priority groups. One can conclude that race-based policies have the greatest chance of passing strict scrutiny during pandemics. But will they? This will depend on how the Justices view racial inequalities during a pandemic. For example, after acknowledging the serious nature of the pandemic, Justice Kavanaugh, in his concurring opinion in Roman Catholic Diocese of Brooklyn, New York v. Cuomo writes, “[B]ut judicial deference in an emergency or a crisis does not mean wholesale judicial abdication, especially when important questions of religious discrimination, racial discrimination, free speech, or the like are raised.”
All in all, focusing on vulnerable populations in vaccine distribution is likely to succeed only if it doesn’t explicitly use racial categories. Even though using a race neutral distribution plan presents little or no constitutional challenges, if success (and here success is defined as getting the vaccine to the most neediest people to reduce the pandemic) means focusing on vulnerable groups, whether delineated by race or socioeconomic status, shouldn’t such a distribution plan be countenanced? Put differently, if admission to colleges and universities based on race can be narrowly tailored to achieve a compelling governmental interest, then surely a plan that benefits a race can be upheld on the basis of urgency due to COVID-19. Then again, maybe not. In July 2020, Oregon state lawmakers passed the Oregon Cares Fund. This state fund was meant to steer coronavirus relief money directly to black Oregonians and black-owned businesses. The state earmarked $62 million of its $1.4 billion in federal Covid-19 relief money to provide grants to black residents, business owners and community organizations enduring pandemic-related hardships. However, a Mexican-American and two white business owners sued the state, arguing that the fund discriminated against them. Although the lawsuit has not been decided yet, the outcome will have far reaching implications on any state planning to distribute vaccines or any public health services based on racial categories.
 CDC COVID-19 Hospitalization and Death by Race/Ethnicity, available at https://www.cdc.gov/coronavirus/2019-ncov/covid-data/investigations-discovery/hospitalization-death-by-race-ethnicity.html (Updated Nov 30, 2020).
 See Covid-19 Vaccination Plan, State of California. Interim Draft, 14-15 (Cal. Dept. Pub Health, 10-16-2020).
 Christopher Ogolla, Will The Use of Racial Statistics Survive Equal Protection Challenges? A Prolegomenon for The Future, 31 N.C. Cent. L. Rev, 1, 19 (2008).
 Harald Schmidt, Lawrence Gostin & Michelle Williams, Is it Lawful and Ethical to Prioritize Racial Minorities for Covid 19-Vaccines? 324 JAMA 2023 (Nov. 2020).
 Id., at 2024.
 Professor Eang Ngov, Barry University Dwayne O. Andreas School of Law. (Pers. Comm., Dec 6, 2020).
 Ngov, supra note 8.
 Roman Catholic Diocese of Brooklyn, New York v. Cuomo, 2020 WL 6948354 * 8 (Nov. 25, 2020) (Kavanaugh, J., concurring).
 Dirk VanderHart, Fund to help Black Oregonians cope with Covid-19 put on hold. OPB Dec. 18, 2020. https://www.opb.org/article/2020/12/18/oregon-cares-fund-black-community-business-covid-19/
 John Eligon, A Covid-19 relief fund was only for black residents. Then came the lawsuits. N.Y. Times Jan. 3, 2021. https://www.nytimes.com/2021/01/03/us/oregon-cares-fund-lawsuit.html
Sunday, January 3, 2021
If you have a way to inoculate against the pandemic of COViD-19, do you have a vaccine against the virus of racism? Do you have a way to crush racism and the overt/subversive tactics used to silence/belittle/demean/marginalize/kill black and brown folks? And do you have a way to crush the pedantic racism masquerading as legal commentary?
What does pedantic mean?
In frequently asked questions about the word "pedantic," the Merriam Webster Dictionary explains, "Pedantic is an insulting word used to describe someone who annoys others by correcting small errors, caring too much about minor details, or emphasizing their own expertise especially in some narrow or boring subject matter."
In short, welcome to the academy. Welcome to higher education. Welcome to the upper echelons breeding racist thought processes.
The word, "pedantic," arrives in Middle English via French in 1580's/1600's in the midst of the Renaissance period during the Elizabethan and Jacobean ages.
The word is also said to have origins from Latin via Greek. According to the Latin Lexicon:
paedagōgus, i, m., = παιδαγωγός, lit. a slave who took the children to school and had the charge of them at home, a governor, preceptor, pedagogue (cf. praeceptor).
So while the definition and usage of pedantic have expanded and constricted from ancient times to the post-modern era, what has remained the same is the idea of a pedantic person not being someone particularly welcome. Someone who quibbles over small matters losing sight of the big picture.
Pedantic racism entails people walking around not realizing they are being racist as well as those who are racist and don't feel inclined to correct themselves.
Now 2.5 days into 2021, I realize the pedantic racism will continue to fester even as the end of the pandemic nightmare is in sight.
Professor David Bernstein (George Mason Law) writes in The Volokh Conspiracy, "Diversity" Nonsense Cost Tens of Thousands of Lives. Professor Bernstein teaches Constitutional Law, Evidence, Expert and Scientific Evidence, Products Liability, and Torts and is considered an expert in Constitutional Law, Product Liability, Torts, and Tort Reform. Professor Bernstein's extensive scholarly record would confirm such. Yet in his recent blog post addressing delays in the Moderna Vaccine, he may have considered conducting a search on Google. For legal scholars, Google often serves as a point of initial assessment. Conducting a preliminary Google search may have provided more insights to his pedantic legal musing published in the Volokh Conspiracy blog.
Professor Bernstein was concerned that "Moderna Delayed its Vaccine Trials to Ensure it had 'Enough' Minority Representation." He then goes on to question the delay on account of failure to include an array of racial and ethnic groups in the testing sample. He writes:
This is particularly egregious because apparently Moderna felt the need to ensure sufficient representation of Hispanic Americans. Even if you buy the dubious notion that there is a significant chance that vaccines will have significantly different effects by "race," what race are Hispanics supposed to be, exactly? The average American Hispanic is about 3/4 European by descent, based on DNA studies. Essentially, then, Moderna allowed tens of thousands of people to die to ensure that "enough" white people who happen to have Spanish-speaking ancestors were included.
When questioned on his initial post about the scientific evidence of this discussion, he updates his post as follows:
UPDATE: Some readers have questioned where I got the notion that American Hispanics are, on average, mostly European in origin. The answer is from this study, published in the American Journal of Human Genetics: "On average, we estimate that Latinos in the US carry 18.0% Native American ancestry, 65.1% European ancestry, and 6.2% African ancestry." That's a bit off from the 3/4 I cited but:
(a) those figures add up to only 90%, the rest is assumedly unknown, so if you add 10% or so to each, you get up to 71.5%. Maybe it's a bit lower, maybe a bit higher. And
(b) then you have to consider the fact that the study uses the "Latino" category, whereas I (and FDA-approved studies like Moderna's) use "Hispanic." Hispanic Americans include non-Latinos whose ancestors (or themselves) immigrated from Spain, and who are 100% or so European in origin. Plus, you have self-described "Hispanos," Americans in the Southwest descended from Mexicans who lived in the territories conquered by the US in 1848. Their origins are overwhelmingly Spanish, and they generally don't consider themselves Latinos, but would likely identify themselves as "Hispanic." So between Spanish immigrants and their descendants and Hispanos add a percentage point or two, and you get that the average self-identified Hispanic American is "about 3/4" European by descent. If someone is aware of alternative estimates published in scientific journals, please let me know.
Professor Bernstein is asking the wrong questions and ignoring the bigger issue about ensuring the effectiveness of the vaccine in wider subsets of the population to improve its efficacy, in fact, for Caucasians. I am not an expert in product liability or torts like Professor Bernstein, but I can safely claim a better understanding of environmental health and epigenetics than Professor Berstein. I have also conducted a Google query of how racial and ethnic differences impact vaccine uptake. The reason why a larger subset of the population is needed is because in the past vaccines, such as as the flu vaccine, were more effective in some groups versus others. Those variations in uptake have not been fully investigated. To make sure the vaccines work well across broader groups of Caucasians, it is essential to test the vaccine across diverse racial and ethnic groups. That would mean the delay occurs not only so that diverse racial and ethnic groups have access, but that Caucasians also have a vaccine that is MORE effective for them. Please don't fault diversity for trying to give white people a better vaccine. Don't make diversity the excuse as to why one encountered a delay or received less vaccines - by one week. The entire year, week after week, day after day has been death and devastation. The same way science was avoided in responding to the pandemic, science should also not be ignored in recovering from the pandemic.
The Actual Medical Literature
In 2015, Peng-jun Lu, MD, PhD, Alissa O-Halloran, MSPH, Walter W. Williams, MD, MPH, Megan C. Lindley, MPH, Susan Farrall, MPH, and Carolyn B. Bridges, MD, published findings of their study on Racial and ethnic disparities in vaccination coverage among adult populations in the American Journal of Preventative Medicine. They analyzed a 2012 National Health Interview Survey (NHIS) of adult vaccination by race/ethnicity for six commonly recommended vaccines, including influenza, Tetanus, pneumococcal, human papilloma virus, and zoster vaccines. They used a "multivariable logistic regression analysis ... to identify factors independently associated with all adult vaccinations." They concluded:
Racial and ethnic differences in vaccination levels narrow when adjusting for socioeconomic factors analyzed in this survey, but are not eliminated, suggesting that other factors that associated with vaccination disparities were not measured by the NHIS and could also contribute to the differences in coverage. Additional efforts including systems changes to ensure routine assessment and recommendations for needed vaccination among adults for all racial/ethnic groups are essential for improving vaccine coverage.
Another reason to develop a broader subset of diverse test groups for the vaccine test sample is because of the overrepresentation of people of color among frontline workers, both healthcare personnel and essential workers. These are the people who will have highest contact rates with the subset of the population, which is out and about, so it would make sense to inoculate them and make sure such inoculation is effective.
In The Impact of Vaccine Concerns on Racial/Ethic Disparities in Influenza Vaccine Uptake Among Health Care Workers, Rohit P. Ojha, DrPH, Sericea Stallings-Smith, DrPH, Patricia M. Flynn, MD, Elisabeth E. Adderson, MD, Tabatha N. Offutt-Powell, DrPH, and Aditya H. Gaur, MD, published their research in the American Journal of Public Health. Below is graph displaying their results.
The researchers concluded the difficulty in analyzing a small subset of the population of health care workers (HCW), because the group is isolated and cannot provide "an inadequate sociocultural perspective for understanding barriers to vaccination." The normative response to these findings would be not to ignore the racial and ethnic disparities in vaccine uptake, but to understand the causes and investigate them further. Dr. Ojha and his colleagues found that "Multilevel perspectives such as the socioecological model of health promotion recognize that individuals cluster in social networks and that social networks cluster in communities." They noted:
Monday, December 28, 2020
In 1903, Jackson W. Giles filed a lawsuit alleging that the board of registrars of Montgomery County, Alabama had engaged in widespread disenfranchisement of Black voters. The case, Giles v. Harris, eventually landed on the desk of Supreme Court Justice Oliver Wendell Holmes, a Union army veteran who fought in the fiercest battles of the Civil War.
Holmes refused to fashion a remedy that would protect Mr. Giles’s voting rights. Holmes predicted that the Montgomery County registrars would ignore a contrary ruling, conceding the Court’s authority in the face of Southern intransigence. In a frank admission of judicial incapacity, Holmes wrote, “If the conspiracy and the intent exist, a name on a piece of paper will not defeat them.” With that, the Court excluded Jackson Giles and thousands of Black Alabamians from another piece of paper: Montgomery County’s voter roll.
Holmes’s opinion in Giles admits a rarely spoken truth in American law: the judiciary depends on the other branches of government to enforce its rulings. Holmes refused to exercise the Court’s power when it became obvious that Montgomery County would ignore a judicial order curbing racist voter restrictions. That Montgomery County was engaged in a campaign to deny Black people the vote in post-Reconstruction Alabama made no difference to Holmes; tacit surrender of the Court’s independence was preferable to the ignominy of an unenforced holding. Holmes implicitly endorsed Southern oppression; the Civil War veteran would not sign a piece of paper that white Southerners would ignore.
Sixty years later, Justice William Brennan was assigned the majority opinion in Baker v. Carr, another voting rights case. The facts were depressingly familiar. A Southern state—Tennessee this time—had refused to reapportion its legislative districts for sixty years, even as predominantly Black districts grew in population. The result? Black people in urban districts had far less political power than rural whites. Disenfranchisement was alive and well in Tennessee.
Unlike Holmes, Brennan recognized the value of judicial authority. Words on a page carry significant weight when authored by a Justice of the Supreme Court, even if those words might not be enforced. Brennan was acutely aware of the Court’s power to influence not only legal thought, but the lives of the nation’s most vulnerable citizens. Brennan confronted voter disenfranchisement head on, despite the political questions inherent in redistricting disputes. Baker’s holding restrained the impulses of racist Tennessee legislators, using the Constitution to defend individual liberty from Southern oppression. In stark contrast with Holmes, Brennan concluded that voter disenfranchisement could be remedied by an independent judiciary. The Court’s authority prevailed: Baker was enforced, and Tennessee’s legislative districts were redrawn.
Americans deserve a judiciary that protects their rights—that respects their inherent human dignity. Judges must recognize that people are more than names on a page. The judiciary must possess the moral clarity to acknowledge its own power, and more importantly, its own independence.
Thursday, December 17, 2020
“I am writing to inform you that I have recommended to the Dean of the College of Liberal Arts that you receive a one-year notice of nonrenewal pursuant to the University of Mississippi’s Termination of Untenured Faculty policy." These are the cowardly words that were written to Professor Garrett Felber by the chair of the history department, Noell Wilson. She continued, “Your employment with the University will end on December 31, 2021, and your employment contract will not be renewed after that date. At the pertinent time, I will notify you of your assigned responsibilities for the fall 2021 academic semester.” Despite being on leave for a one-year fellowship at the W.E.B. Du Bois Research Institute at Harvard University’s Hutchins Center for African and African American Research, Prof. Felber was dinged for allegedly not being in responsive to communications with his chair.
In the termination letter, Wilson referred frequently to what she claims was Felber’s refusal to speak with her, concluding in the letter: “Respectfully, your effort to dictate or restrict the means by which I communicate with you is untenable. Your repeated refusal to talk with me makes it impossible for me to maintain a productive working relationship with you or supervise your faculty responsibilities.” Despite that Prof. Felber was communicating with his chair via email, for whatever reason this was not to her liking.
While this may be the pretext for the dismissal, previously, Felber had helped garner a grant for the department for a program called “Study and Struggle,” a political education project on mass incarceration and immigrant detention. Two days after this $57,000 grant was publicized, the chair contacted Felber to notify him that the grant would have to be rejected since the project was political rather than historical and could potentially harm the history department’s ability to procure funding. In a tweet Felber swung back: “The real issue is that [the school] prioritizes racist donors over all else. So it’s not some mythic politics v. history binary, but that this antiracist program threatens racist donor money. And racism is the brand. It’s in the name.”
By all means it appears that the grant upset external donors, which ultimately got Felber fired. The termination has sent a chill though the campus and has undermined the bedrocks of free speech and academic freedom. But all is not lost for a number of prominent academics, including Cornel West have vowed to boycott involvement with the university until there is a full accounting of the firing. He and an army of scholars have banded together and sent a scathing letter to the University Chancellor and Wilson. The letter is printed in its entirety below.
What is even more shocking in the dismissal of Garrett is that we are talking about a first-rate academic, whose work is high caliber, cutting edge scholarship on African-American history, Islam, and prisons. He is the author of award winning books, and has contracts for other books that are forthcoming. He sits at the top of the scholarly food chain as a pre-tenured faculty, yet for the flimsiest of reasons, the university has seen it fit to let him go--despite that they are unlikely to recruit an intellectual and publishing machine like him again. While I've seen some egregious firings in my day, nothing compares to this since the school itself is likely to come out the biggest loser. Stay tuned for further developments.
Chancellor Glenn Boyce
University of Mississippi
Professor Noell Wilson
Chair, Department of History
Dear Chancellor Boyce and Chair Wilson:
We write to express our shock and dismay at the firing of Professor Garrett Felber from the History Department at the University of Mississippi, which has every appearance of being both politically motivated and retaliatory. Garrett Felber is a highly respected scholar and educator. His monograph, Those Who Know Don’t Say: The Nation of Islam, The Black Freedom Movement, and the Carceral State (University of North Carolina Press, 2020), is widely praised as a definitive political and intellectual history of the Nation of Islam during the Civil Rights Era. In the few months since its release, the book has already been shortlisted for a national book award from the Museum of African American History. He is a public figure active in prison abolition and carceral studies, and a cofounder of the Study & Struggle project, a political education project on mass incarceration and immigrant detention, for which Felber garnered a significant grant that university administrators forbade him to accept. We construe his firing as a chilling example of the university’s attempt to suppress academic freedom.
In her letter of December 10, History Department Chair Wilson implied, although she did not directly state, that Professor Felber was being fired because he refused to meet with her in-person (on-line) on three separate occasions, and instead demanded that she communicate with him in writing. There is no evidence provided in the letter that Professor Felber failed to properly fulfill the responsibilities of his position, to teach his classes and conduct his research. Indeed, Professor Felber was on leave as a 2020-2021 Fellow at Harvard University’s Hutchins Center when Professor Wilson was insisting on meeting with him over Zoom.
Simply put, the stated reasons for Professor Felber’s firing are both arbitrary and nonsensical.
According to Professor Felber, the precipitating cause of his conflict with Professor Wilson was her refusal to allow him to accept a grant he had received to fund a prison education program based at the university (cf. Twitter thread). Given the climate of mistrust between the faculty and administration prevailing at the university as well as the documented influence of overtly racist donors in setting the terms under which the university administration operates, it seems only reasonable for Professor Felber to have requested that any discussion with his Chair about the withdrawal of support for his grant be in writing.
Indeed, the only publicly available reason provided for the firing beyond Professor Wilson’s assertion that she was unable to properly “supervise” his work (while he was on leave from the university), is the statement by the university’s Chief Marketing and Communications Officer Jim Zook that Felber “did not follow the appropriate process for seeking external funding” in seeking funding for the prison education program. Felber’s mistake, according to the university itself, was running afoul of the development office in seeking to raise money to educate some of the state’s most vulnerable and immiserated citizens.
In the absence of a fuller account of the actual circumstances of Professor Felber’s firing, we understand the firing as an attack on Professor Felber’s commitment to anti-racist political organizing as well as his well-documented history of demanding accountability from the university administration and wealthy donors.
We further note that there is every reason to suspect that Professor Felber’s firing is retaliatory, given his forthright and public criticism of both of the university and its prominent donors.
We, the undersigned scholars, demand a full and transparent account of the circumstances leading up to Professor Felber’s firing, including:
- A full and transparent account of the university administration and development office’s response to Felber’s decision to move the Making and Unmaking of Mass Incarceration conference from the Overby Center for Southern Journalism and Politics on the grounds that the center’s titular donor was a member of the board of Core Civic, a private prison company.
- A full and transparent account of the university administration and development office’s response to Felber’s effort to house the Study and Struggle prison education grant in the History Department, including the substance of the “consultation [among] the relevant campus offices” mentioned by university spokesperson Jim Zook.
- A full and transparent account of the consultation between the university administration, the development office, the Dean of the College of Liberal Arts, and the Chair of the History Department leading up to the firing of Professor Felber.
We finally demand that, unless the university can fully demonstrate that Professor Felber’s conduct in any of these matters was, in the words of the university’s policies and procedures governing the dismissal of untenured faculty, “contumacious” (that is, wilfully resistant), rather than reasonable, rightful, and anti-racist, we finally demand that:
- Professor Felber’s immediate reinstatement as Assistant Professor of History be assured.
We collectively pledge to refuse all invitations to speak at, conduct professional service for, or otherwise be associated with the University of Mississippi (outside the terms of full-time employment) until this egregious assault on academic freedom is reversed.
Sunday, December 13, 2020
- Hon. Bernice B. Donald – Circuit Judge, U.S. Court of Appeals for the Sixth Circuit
- Sarah E. Redfield – Professor of Law, University of New Hampshire
- Mark Schickman – Principal and Founder, Schickman Law; Section Delegate, ABA Section of Civil Rights and Social Justice
- Ted Small – Principal Consultant, DEI Facilitation & Consulting
- Beth K. Whittenbury (Moderator) – Principal and Founder, Beth K. Whittenbury & Associates; Chair-Elect, ABA Section of Civil Rights and Social Justice
Thursday, December 10, 2020
While the federal government has been recently ramping up efforts to carry out a number of federal executions before the departure of Donald Trump from the White House, something different is happening on the other side of the country. Earlier this week, the Los Angeles County District Attorney's office issued a startling directive on December 7, 2020 that orders county prosecutors to stop seeking the death penalty at trials and to stop seeking the execution of individuals already sentenced to death. Although California has been a death-penalty state since 1972, in the last half century it has carried out only 13 state executions.
This remarkable directive marks a critical turning point in the death penalty for California. Whereas neither the state legislature nor the state courts have found the fortitude to recognize the inequalities and unfairness that plague the death penalty in California, it is the executive branch that is stepping up to do the dirty work of standing against this oppressive killing regime.
What makes the order particularly striking is that the rationale is premised on the disparate application of the death penalty to ethnic minorities. As the directive states, "[r]acism and the death penalty are inextricably intertwined" and numerous studies have shown that race is a prominent influence on who is sentenced to die, including both "the race of the defendant and the race of the victim." The directive states:
"Los Angeles County has historically been one of the nation’s most prolific death penalty counties, and it exemplifies how racism infects death penalty proceedings. There are currently 215 people on California’s death row who were sentenced to death as a result of capital prosecutions in Los Angeles County. An astonishing 85% of those people are people of color. This makes Los Angeles County an outlier even within the state’s flawed system; the rest of California’s death row is populated by 59% people of color."
It is in light of this unequal application of the death penalty to minorities and the extraordinary amount of harm to the moral authority of the justice system that the directive was created. In addition, the letter notes that there is no penological purpose that the death penalty serves, including its lack of deterrent and retributive value. There is also the issue of cost, which the directive mentions is high when it comes to California, a state that has spent more than $5 billion dollars since 1978 to prosecute death penalty cases, defend death judgments, and maintain the state's death row. In addition, the directive mentions, is the real risk of executing innocent people.
Due to the myriad problems with trying and executing death penalty sentences, the D.A.'s office has taken this extraordinary measure, which puts in unequivocal terms its intent and purposes:
"A sentence of death is never an appropriate resolution in any case. The office will strive to ensure that all actions taken are consistent with this policy, including refraining from filing letters stating an intention to seek the death penalty, filing briefs, seeking discovery, or making arguments in court that indicate that the death penalty is an appropriate sentence."
Only time will tell if other offices or branches of government will have the courage to step up and say enough is enough. You can read the directive in its entirety here.
Monday, November 30, 2020
As law schools wrestle with defining their role in a national anti-racism movement, few seem to be focused on the incestuous, elitist model of faculty hiring prevalent at most top law schools. For if an institution is serious about having its law professors incorporate the role of race, gender, disability, sexual orientation and other subordinated identities into legal education, then it would behoove law schools to hire faculty who both value this pedagogical goal and collectively possess the diverse life experiences to shatter the rigid, elitist intellectual frame through which most American law students are taught.
But as Eric Segal and Adam Feldman warn in The Elite Teaching the Elite: Who Gets Hired by the Top Law Schools?:
"Do you want to teach at a Top Ten-ranked law school? If so, you had better excel at something you will encounter years before you even consider applying to be a law professor. Something that has no relationship at all to the skills academics need. You better score extremely high on the Law School Admissions Test (LSAT) (or now at some schools the GRE). If you don’t score toward the very top, you will likely not be admitted to a Top Ten-ranked law school. And if you don’t attend a Top Ten-ranked law school, no matter what you accomplish during your time at the school you do attend (even one ranked among the top twenty) or afterward, your chances of teaching at a Top Ten-ranked law school are virtually nonexistent. The reality is that by far the most important credential one needs to teach at a Top Ten-ranked law school is to attend a Top Ten-ranked law school. The elite teaching the elite, who will then teach more elites."
A reader may read their article and ask: “Is it important that the twenty-five top-ranked schools hire eighty percent of their faculty from the Top Ten-ranked schools?” to which Professors Segal and Feldman have a persuasive response—if a law school is committed to exposing students to the diverse experiences of their prospective clients including racial and religious minorities, indigent people, immigrants, and other groups who are not proportionately represented among America’s elites.
Professors Segal and Feldman state:
"We think it is. By limiting their hiring to the most elite schools (and just two, Harvard and Yale, account for more than fifty percent of all faculty in these schools with U.S. law degrees), these schools limit the range of pedagogical choices they adopt and provide for their students. There are many ways to teach law and set priorities for law students. The top-ranked schools do not have a monopoly on the best legal education methods. Moreover, for better or worse, how these schools teach future lawyers has a great impact on the other 165 or so accredited law schools, but the law school experiences of their faculties are mostly limited to ten law schools. This inbreeding stunts creativity, experimentation, and growth, and might even prioritize the theoretical over the practical to the detriment of the legal profession. Moreover, since law schools do not teach law students how to teach, professors at Top Ten-ranked schools have only their shared experiences to rely on, which likely makes it difficult to improve how they teach their students."
Some readers may rightly respond that law schools deserve praise for the changes in student populations over the past four decades. Approximately fifty-three percent of American law students are women, thirteen percent are Hispanic (nearly double the numbers from 1999), eight percent are Black and six percent Asian. Assuming these changes are based on law schools’ intentional recruiting strategies, as opposed to changes in the American population and external market pressures, such changes are noteworthy.
However, most law students in the highest ranked law schools are from upper middle-class and wealthy families which again limits access to law schools, and by extension law school teaching, to the elite.
Segal and Feldman provide one explanation.
“The LSAT also results in a huge class bias. An article in The Atlantic put this sad but true statement in its title: “How the LSAT Destroys Socioeconomic Diversity.” To do well on the LSAT, preparation classes are extremely important, and their average cost for in-person sessions is $1300. According to this article:
“While law schools are steadily becoming more racially and ethnically diverse, they remain overwhelmingly upper-middle class. Only 5 percent of students at elite law schools come from families that fall in the bottom half of the socioeconomic spectrum—a number that has hardly changed since the 1960s. The Logic Games section [of the LSAT] contributes to this lack of socioeconomic diversity. If you can’t afford to adequately prepare, it’s a lot harder to earn the LSAT score you need to get into a Top 14 school. The vast majority—180—of the 200 accredited U.S. law schools can’t find jobs for 80 percent of their graduates. That means that a low score on Logic Games might stop you from becoming a lawyer.”
As hiring committees and deans conduct their annual hiring searches and law faculties vote on the finalists, they should be honest about how their decisions affect the ways in which law is taught in their schools. Do they want professors whose life, education, and professional experiences reflect a narrow spectrum that comes with being members of the privileged elite or do they want a faculty that reflects the breadth of life and education experiences that defines the world’s most diverse society.
Do law faculty and administrators want to produce lawyers whose exposure to law is limited to the narrow analytical frames of America’s elites or do they want to see the law from the viewpoint of professors who know what it is like—either through personal experiences or representation of clients—to suffer the hardships of poverty, sexism, racism, xenophobia, and other forms of subordination not infrequently perpetuated by the law?
If the answer is that such factors shouldn’t matter in hiring decision, then law schools have a long way to go before they can overcome their myopic approach to teaching America’s lawyers, prosecutors, judges, and elected officials—many of whom actively contribute to the very circumstances that have triggered today’s anti-racism movement.
-- Eric J. Segall and Adam Feldman’s article The Elite Teaching the Elite: Who Gets Hired by the Top Law Schools? was published in Spring 2019 in the Journal of Legal Education. It can be downloaded here.
Monday, November 16, 2020
The following is Prof. Elizabeth Joh's review of Stephen Rushin & Roger Michalski, Police Funding, 72 Fla. L. Rev. 1 (2020).
For eight minutes and forty-six seconds, Derek Chauvin pinned George Floyd’s neck to the ground outside of the Minneapolis Cup Foods on Chicago Avenue. Floyd’s shocking death, captured on a bystander’s cellphone video, led to criminal charges against Chauvin and the three other officers involved in the arrest. Floyd’s death also catalyzed thousands of protests around the United States and the world, and to the rallying cry of “defund the police.” These three words are memorable, but what do they mean? It depends whom you ask. For some, “defund the police” means reallocating some of the non-criminal duties that have become the responsibility of the police–think of outreach to the homeless and the mentally ill–to other non-police community service providers. For others, it is less a literal command and more a call to reimagine the objectives of street policing. And for some, it is indeed about police abolition.
But if we take these calls seriously and literally, they aim to reduce police department budgets as a method of reform. Unlike close analyses of the Fourth Amendment or legislative responses, police budgets usually escape the attention of legal scholarship. But in Police Funding, Stephen Rushin and Roger Michalski have presciently raised this issue as a topic of serious study. Police reform advocates calling for “defunding the police” should pay attention to the important observations the authors raise in their timely article. And one of the article’s central arguments is especially relevant after George Floyd’s death: that adequate funding should be seen as a prerequisite for accountable, democratic, and professional policing.
One commonplace among students of policing is that there is no single entity called “the police.” We live instead in a nation of more than 18,000 distinct law enforcement agencies. As a collection of departments, they are unified by a professional culture and bound by decisions of the United States Supreme Court, but the uniformity ends roughly there. American policing is local. Like public schools, American police departments rely most heavily on local sales and property taxes for funding, with some state and federal funding as well.
This means that the funding of American police departments, like schools, varies enormously. So much so, that, as the authors emphasize from their review of the data, there is massive inequality in police funding. For many Americans, the idea of the police may conjure up large urban departments in New York, Los Angeles, and Chicago, but these are hardly representative. What does this mean in practice? While some police officers have access to the latest technology, receive regular training, and are subjected to accountability mechanisms, others are not. The result? Funding differences mean that, depending on where you live, we may receive drastically different levels of police services. Some departments must hire part-time officers, can’t attract qualified entry level candidates, and can’t fire problem officers—all because of funding problems. These departments can hardly staff their departments, let alone address issues of excessive force and racial discrimination.
By mining several national datasets, Rushin and Michalski also provide crucial context to some of the central tenets of the defunding movement. Consider the claim that cities spend too much on policing as compared to other social services. Oakland, California spends about forty-one percent of its general fund on policing, compared to New York, which spends under ten percent on its police. But this comparison obscures the fact that New York collects far more tax revenue; Oakland far less. Both cities spend about the same amount of money per capita on policing services. Less overall revenue means cities suffer in all kinds of ways. Places like Flint, Michigan suffer tainted water, an understaffed police department, and soaring crime.
The nuanced perspective the authors provide in Police Funding means that taking “defunding the police” seriously as a policy proposal may backfire for cities that already struggle to fund adequate police services. No serious student of policing suggests that the police can simply be eliminated. If that is true, then accountability, transparency, and reform cost money (as well as require relentless scrutiny and review). A review of DOJ reports on troubled police departments pursuant to its authority under 42 U.S.C. § 14141 reveals a consistent theme: their recommendations for constitutional and democratic policing require increased financial investment.
And as Rushin and Michalski point out, reducing police funding in many departments around the country may result in worse, not better, policing. They hypothesize that reducing funding may exacerbate police misconduct. Can you think of a profession that has been improved by reducing costs for hiring, training, and oversight? Reducing the funding of the Robbins, Illinois police department may do little to address the problem of the part-time officer, paid 10 dollars an hour, who shot a 13 year old in the back. Instead, the authors propose a different framework altogether: think of policing as a problem of resource inequality. If policing is a public good, then states can take a lead by distributing police funds more equally, as well as require that some portion of these funds be reserved for training and accountability.
To be sure, Police Funding provides no direct solutions to the problems of excessive force, racial bias, overenforcement, and qualified immunity in American policing. The protests prompted by George Floyd’s death will require comprehensive, detailed reforms that demand the sustained attention of lawmakers. Yet the central premise of Rushin and Michalski is right: we should be skeptical of defunding the police—taken literally—as a serious policy proposal. Adequate police funding is a necessary condition for a path forward.
Prof. Elizabeth Joh is the Martin Luther King Jr. Professor of Law at University of California Davis School of Law.
Wednesday, November 11, 2020
Professor Carmen G. Gonzalez published a new article titled Climate Change, Race, and Migration in the inaugural issue of the Journal of Law and Political Economy where she argues that climate change cannot be addressed unless we dismantle the racial hierarchies that have facilitated massive unchecked resource extraction. Racialized communities have long borne the brunt of the fossil fuel-based global economy. They have been subjected to the physical violence of invasion and occupation as well as the “slow violence” of polluting industry. While climate change is caused by the world’s most affluent inhabitants, those most susceptible to climate-related disasters and displacement are overwhelmingly persons classified as non-white.
Greenhouse gases do not respect national borders, but national elites deploy racialized systems of border control to perpetuate the illusion that persons classified as white can somehow escape the ravages of climate change by constructing walls and fortresses. Racism enables states and corporations to pursue policies catastrophic to the planet and its inhabitants because the most immediate and severe harms are inflicted on stigmatized populations in the sacrifice zones of the fossil fuel economy.
The article argues that international law has failed to mount an adequate response to the climate crisis. The climate treaties have failed to curb global temperature increases or to provide sufficient adaptation assistance to climate-vulnerable states and peoples. Even though climate change threatens to displace millions of people, neither the 1951 Refugee Convention nor the climate treaties requires states to admit climate-displaced persons.
Part of the problem is that international law has been complicit in the project of racial and economic subordination – from its origins in colonialism and slavery to the rules and institutions of the contemporary global economy. In the absence of a binding legal framework, several emerging law and policy responses to climate displacement threaten to reinforce racialized hierarchies and to trap large segments of humanity in places that are becoming uninhabitable. The article critiques these approaches and offers alternatives grounded in the perspectives and priorities of climate-vulnerable states and peoples.
To read the full article, click here: https://escholarship.org/uc/item/4bw094qc
To read a blog post summarizing the article, click here: https://lpeproject.org/blog/climate-change-and-racial-capitalism/
Saturday, November 7, 2020
Constitutional Law Scholars Forum Friday, March 26, 2021 in Orlando, FL
The Sixth Annual Constitutional Law Scholars Forum invites scholarly proposals on any constitutional law topic at any stage before publication. The Forum provides an opportunity for international and national scholars to vet their work-in-progress in a welcoming, supportive environment. (The Forum is not accepting proposals from students at this time.)
The deadline to submit proposals is December 1, 2020.
Conference location: Barry University Dwayne O. Andreas School of Law Campus in Orlando, FL is located within proximity to recreational activities – Universal Studios, Walt Disney World, Sea World, world class golf courses, and beaches. Orlando offers an average temperature of 72- 78°F in February/March. We plan for an in-person conference format but will modify to a virtual format if the need arises.
There are no conference fees, and meals will be provided.
- Email proposals to conference organizers Professor Eang Ngov, firstname.lastname@example.org; Professor Helia Hull, email@example.com; and Professor Meg Penrose, firstname.lastname@example.org.
- Include “ACS Constitutional Law Scholars Forum” in the subject
- Include abstract (300 words maximum), biography (150 words line. maximum), and key words from your abstract (to enable grouping presenters by topic) together on a one-page document in Word format.
Monday, November 2, 2020
Professor Andrea Freeman published a new article entitled Unconstitutional Food Inequality in the Harvard Civil Rights and Civil Liberties Law Review where she argues racial disparities in food-related deaths and disease are vestiges of slavery and colonization that have persisted for too long. Rhetoric around personal responsibility and cultural preferences obscure the structural causes of these disparities. Regulatory capture by the food industry makes reform through the political process unlikely or subject to severe limitations.
As such, her article explores the structural causes of food inequality by examining how two U.S. Department of Agriculture nutrition programs, the Food Distribution Program on Indian Reservations and the National School Lunch Program, contribute to food-related health disparities. First, it traces food inequality back to slavery and colonization. Most slave owners carefully rationed out food to fuel labor but prevent revolts. On almost all plantations, enslaved people ate a non-nutritious diet that led to a plethora of nutrition-related illnesses and deaths. Similarly, colonization occurred in great part through the destruction of Indigenous foodways. Land theft, displacement, and the intentional elimination of food sources led to starvation and illness. Lack of access to healthy food still represents one of the most significant obstacles to Black and Indigenous Peoples’ full participation in society, contributing to lower life expectancy, serious illness, and cultural erasure. The Reconstruction Amendments provide a constitutional basis for challenging these two USDA nutrition programs, in addition to other laws and policies that lead to health disparities and food injustice.
To read the full article, click here.
Wednesday, October 28, 2020
As the 2020 election nears, Americans wonder if their votes will count. Bush v. Gore showed the country that the Supreme Court will intervene in elections and indirectly decide the outcome. Indeed, Bush v. Gore could happen again.  That case is precedent, and while it was limited by the particular facts, States could still offend its Equal Protection standard. The outcome of such challenges is difficult to predict, because that standard could be broad or narrow. The Court held votes must be recounted using uniform standards, so that each vote is judged by the same standard. However, that holding leaves open the question of just how much variation violates Equal Protection.
States have replaced punch card machines, thanks to the Help Americans Vote Act.  But if Trump sues, an election-deciding ruling is possible, depending on how narrowly the Court reads Bush v. Gore. If the court has a broad view of the holding, then Congress’s and the States’ reform efforts might not be enough to avoid and Equal Protection violation. And once the Court has found a violation, it could invalidate a recount. Again.
The Supreme Court’s response is difficult to predict because lower Circuit Courts have applied the holding broadly and narrowly. The original decision declared arbitrary judgments of votes unconstitutional. It noted three different Equal Protection violations. First, in different counties, canvass boards used different standards to recount votes.  Second, even within the same county, canvass boards used different methods.  And third, canvass boards changed methods partway through the recount process.  The canvass boards lacked uniform standards for what counted as a legitimate vote, and so violated the standard of, “having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another.” Of particular concern to the Court was how, “the standards for accepting or rejecting contested ballots might vary not only from county to county but indeed within a single county from one recount team to another.”  A diversity of procedures meant one flawed ballot, with a hanging chad, would be counted in one county but not in another, and not simply because of a difference in application, but a difference in agreed upon and standard procedures within the canvass boards.
Broader interpretations have struck down various arbitrary uses of machines and voting deadlines. Courts struck down the selective use of punch card machines in the Sixth and Ninth Circuits , citing Bush v. Gore. The Sixth Circuit also has cited Bush v. Gore to support striking down an exception for military personnel to vote later than the general population.  However, such decisions may not prove persuasive to the current Supreme Court.
Despite Courts’ inclination to stay out of election disputes , Circuits have arguably extended this standard to include the statistical likelihood of machine error. They have ruled Bush v. Gore covers using different types of voting machines in different counties, because differences in error rates mean a different standard is applied to different votes. So if one county uses punch cards, known to have higher error rates, and other counties do not, then plaintiffs can sue, claiming the government violated their rights, since a different, and unequal, standard and method was applied. The Bush v. Gore Court was not concerned with statistical rates of error during the initial count, only uniform standards for hand recounts. So it remains unclear if the Supreme Court would rule an election challenge valid based solely on statistical error rates. 
Other Courts have applied Bush v. Gore narrowly, preventing plaintiffs from suing to invalidate touch screen voting, when those plaintiffs claimed such votes could be recounted less effectively.  The Eleventh Circuit cited Bush v. Gore while upholding the use of touch screen voting machines, despite their different and possibly flawed recount procedures.  It held that even though canvass boards would have more difficulty getting an accurate recount on this type of machine, there was no Due Process or Equal Protection violation, since there is a uniform standard for recounts for that particular type of machine. Yet it remains an open question how the Supreme Court would rule, since it is not bound by Circuit Court decisions.
If the Supreme Court follows the broader reading of the Circuit Courts, reforms following Bush v. Gore may be inadequate. After the decision, Florida passed the Florida Election Reform Act of 2001,  which banned punch card voting machines and allowed for only two types of machine: touch screen and scanner. But Florida may not be the swing state that decides the election. It wasn’t in 2004. The other swing states with fewer state-level reforms will have to rely on the federal Help America Vote Act, which provided funding for new voting machines, centralized voter rolls, set standards for voter list maintenance, and created the Election Assistance Commission (EAC). The EAC has had difficulties from partisanship, resulting in the appointment of a commissioner with no experience administering elections, and has not changed the strange situation of eighty percent of voting machines being administered by three vendors. Almost a third of all voting machines could be compromised by hackers in one attack. In other words, the United States regulates colored pencils more stringently than its election infrastructure. Today different states still use a variety of methods to count votes. If Trump presented evidence that one machine type misread votes at a higher rate than another, the Supreme Court could follow the Circuit Courts and find an Equal Protection violation.
Despite the concern for different recount standards, thus far no one has used Bush v. Gore to address racial disparities in voting standards. At the center of this debate is whether racial disparities in rejecting mail in ballots can be considered an Equal Protection issue. Racial disparities appear when mail in ballots are counted. Right now, mismatched signatures can be rejected without informing the voter, according to the Fifth Circuit, but the Pennsylvania Supreme Court disagrees, and says the voter must be informed and given a chance to correct the mistake. Advocacy groups have filed lawsuits, but the racial disparity is part of a larger claim of arbitrary and capricious treatement.
Bush v. Gore is silent on what degree of difference triggers an Equal Protection violation, so the decision set no clear standard. Yes, the Court decided the Florida Supreme Court did not “satisfy the minimum requirement for nonarbitrary treatment of voters,” by having no uniform recount standard at all, but it elided just how specific the rules must be. Asking how specific the rules must be might sound pedantic, but simply having some uniform standard is inadequate. The Court specified the standards were “necessary to secure the fundamental right,” so presumably the uniform standards must be specific enough to secure for each voter the fundamental right of equal participation.
The standard under an Equal Protection analysis is “one person, one vote,” which means each person’s vote has to count equally. More specifically, each person’s vote must be judged according to a standard equally applied to all votes. So long as the standard is the same, differences in application are presumably not an Equal Protection violation. But under that uniform set of rules, how specific must they be to avoid violating Equal Protection? We’ll see.
 Two, soon to be three, Supreme Court Justices worked on the Bush legal team during Bush v. Gore. Joan Biskupic, Supreme Court is aobut to have 3 Bush v. Gore alumni sitting on the bench, available at: https://www.cnn.com/2020/10/17/politics/bush-v-gore-barrett-kavanaugh-roberts-supreme-court/index.html
 52 U.S.C. §§ 20901-21145 (2002)
 531 U.S. 98 (2000)
 Northeast Ohio Coalition v. Husted, 696 F.3d 580 (6th Cir. 2012) (citing Bush v. Gore, 531 U.S. 98, 104 (2000))
 Stewart v. Blackwell, 444 F.3d 843 (6th Cir. April 21 2006). (superseded by Stewart v. Blackwell, 473 F.3d 692 (6th Cir. Jan 12 2007); Southwest Voter Registration Educ. Project v. Shelly, 344 F.3d 344 (9th Cir. 2003) (“The Plaintiffs’ theory is the same, that using error-prone voting equipment in some counties, but not in others will result in votes being counted differently among the counties.”).
 Obama for America v. Husted, 697 F.3d 423 (6th Cir. 2012).
 See Bennett v. Yoshina, 140 F.3d 1218, 1226-27 (9th Cir. 1998) (“mere fraud or mistake will not render an election invalid. However, a court will strike down an election on substantive due process grounds if two elements are present: (1) likely reliance by voters on an established election procedure and/or official pronouncements about what the procedure will be in the coming election; and (2) significant disenfranchisement that results from a change in the election procedures.”).
 Though this is to protect individual voters, not simply a judicial regulation of election administration. See Wexler v. Anderson, 452 F.3d 1226 (11th Cir. 2006).
 Wexler v. Anderson, 452 F.3d 1226 (11th Cir. 2006).
 Jon Mills, Reforms in Florida after the 2000 Presidential Election, 13 U. Fla. J.L. & Pub. Pol’y 69 (2001).
Thursday, October 8, 2020
In September 2020, the Department of Homeland security proposed rule that would set time limits of up to four years for foreign student visas. The proposed rule will require all F, J, and I non immigrants who wish to remain in the United States beyond their specifically authorized admission period to apply for an extension of stay directly with USCIS or to depart the country and apply for admission with CBP at a port of entry. The Department’s rationale is that it is concerned about the integrity of the programs and a potential for increased risk to national security.[i] Even though the majority of people who overstay their visa in the US are from China, India, Brazil, and Canada, the proposed rule targets mostly students from African countries. Which begs the question, is there animus towards people from certain parts of the world coming to the U.S.? A few examples might illuminate this.
On June 18, 2020, the US Supreme Court, in Department of Homeland Security v. Regents of University of California 591 U.S.__ (2020) ruled that the Trump administration’s attempt to end Deferred Action For Childhood Arrivals (DACA) violated the Administrative Procedures Act. This part of the opinion garnered a majority vote (Chief Justice Roberts was joined by Justices Breyer, Kagan Ginsburg and Sotomayor). More pertinent, those challenging the rescission had argued among others, that rescission violates the equal protection guarantee of the Fifth Amendment in that the Executive was motivated by animus towards a certain ethnic group (read Hispanics). Chief Justice Roberts rejected the equal protection claim, and was joined in part by Justices Alito, Gorsuch, Kavanaugh and Thomas.
The history of immigration in this country is full of animus towards certain ethnic groups. For example, during the 1800’s, Congress passed several Chinese exclusion acts that prevented several Chinese laborers from immigrating to the U.S. In 1879, the convention which framed the present constitution of California, presented a memorial to Congress stating among others that “the presence of Chinese laborers had a baneful effect upon the material interests of the state, and upon public morals; that their immigration was in numbers approaching the character of an Oriental invasion, and was a menace to our civilization; that the discontent from this cause was not confined to any political party, or to any class or nationality, but was well nigh universal; that they retained the habits and customs of their own country, and in fact constituted a Chinese settlement within the state, without any interest in our country or its institutions; and praying congress to take measures to prevent their further immigration.”[ii]
In the early colonial period, anti-Catholicism was the prevalent form of nativism. Catholics were routinely barred from entering certain colonies, holding public office and voting.[iii] Sociologist and nativist Edward Alsworth Ross described Jews as “polar opposite of our pioneer breed. Undersized and weak muscled, they shun bodily activity and are exceedingly sensitive to pain” He described Italians as possessing a distressing frequency of low foreheads, open mouths, weak chins, poor features, skewed faces…[iv]
Writing in the Washington Examiner in 2006, Former Colorado Governor Richard Lamm described his eight reasons on how America was being destroyed. Top of the list,? immigration perils of multiculturalism.
In his presidential primary race in 1992, Pat Buchanan ran on America first and anti-immigration platform. No less than Donald Trump wrote an op-ed piece in the LA Times in October 31 1991 attacking Pat Buchanan. He titled it “Buchanan is Too Wrong To Correct.” He called Buchanan dangerous. Trump described Buchanan as follows “On slow days, he attacks gays, immigrants, welfare recipients, even Zulus. When cornered, he says he’s misunderstood.”[v] Trump later denounced Buchanan telling reporters, “We must recognize bigotry and prejudice and defeat it wherever it appears.”[vi]
In 2015, President Trump kicked of his presidential campaign by denigrating Mexicans. “They are not our friend, believe me “They’re bringing drugs. They’re bringing crime. They’re rapists. And some, I assume, are good people.” [vii]
In March 9, 2016 on CNN, the President said, “I think Islam hates us. There’s something there that — there’s a tremendous hatred there. There’s a tremendous hatred. We have to get to the bottom of it. There’s an unbelievable hatred of us.”[viii] Sound familiar?
On March 6, 2017, Trump issued a travel ban (Proclamation No. 9645, Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats) for citizens from six majority-Muslim countries. The Proclamation was challenged by several groups, and eventually upheld by the Supreme Court in Trump v. Hawaii, 138 S.Ct. 2392 (2018). In rejecting challengers’ argument that the primary purpose of the Proclamation was religious animus and that the President’s stated concerns about vetting protocols and national security were but pretexts for discriminating against Muslims, Chief Justice Roberts responded “The Proclamation does not fit this pattern. It cannot be said that it is impossible to “discern a relationship to legitimate state interests” or that the policy is “inexplicable by anything but animus.” [ix]
In these cases, the Chief Justice often avoids commenting on the meat of the issues by declaring that is not what the court is deciding. In Trump v. Hawaii, he wrote that whether the proclamation was fair or not, is not for the Court. In Department of Homeland Security v. Regents of University of California, he wrote that in holding the administration rationale for ending the program unreasonable, the court was not endorsing it.
Because the Supreme Court was deferential to the Executive in both Trump v. Hawaii and Department of Homeland Security v. Regents of University of California, it is likely that animus towards certain nationalities in immigration policy will continue, unabated by the courts. The more things change, the more they stay the same.
[i] 85 Fed. Reg. 60526 (September 25, 2020).
[ii] Aleinikoff et al., Immigration and Citizenship: Process and Policy, 9 (8th ed. 2016).
[iii] Id., at 582.
[iv] Id., at 9.
[v] Donald J. Trump, Op-Ed, Buchanan is To Wrong To Correct, LA Times Oct 31, 1999. https://www.latimes.com/archives/la-xpm-1999-oct-31-op-28208-story.html
[vi] Tim Alberta, The Ideas Made It, But I didn’t, Politico, May/ June 2017 https://www.politico.com/magazine/story/2017/04/22/pat-buchanan-trump-president-history-profile-215042
[vii] Katie Riley, Here Are All the Times Donald Trump Insulted Mexico, Time.com, Aug. 31, 2016 https://time.com/4473972/donald-trump-mexico-meeting-insult/
[viii] Jenna Johnson and Abigail Hauslohner, I think Islam hates us’: A timeline of Trump’s comments about Islam and Muslims, Wash. Post. May 20, 2017 https://www.washingtonpost.com/news/post-politics/wp/2017/05/20/i-think-islam-hates-us-a-timeline-of-trumps-comments-about-islam-and-muslims/
[ix] Trump v. Hawaii, 138 S.Ct. 2392, 2420 (2018).
Monday, October 5, 2020
Justice Ruth Bader Ginsburg’s life embodies the best of America. Her experiences of being a first-generation American, a religious minority, and a woman who overcame discrimination informed her jurisprudence.
The grandchild of Jewish immigrants from Russia, Ginsburg understood how fear of violent pogroms caused her family to leave their home, along with hundreds of thousands of Jews who immigrated to the United States in the early 20th century. She also appreciated the hope for a better life America offers its constant stream of newcomers.
Despite the discrimination she faced, America was a stark contrast with Russia where her grandfather was prohibited from attending school and working in certain occupations because he was Jewish.
Our celebration of the legacy of the first Jewish American woman to serve on the US Supreme Court, thus, speaks volumes about America’s potential for progress.
But Ginsburg knew her success was more an exception than the rule. Her life experiences constantly reminded her that the gulf between America, the ideal, and America, the reality, was wide. During her Senate confirmation hearing in 1993, Ginsburg candidly stated, “I am alert to discrimination. I grew up during World War II in a Jewish family. I have memories as a child, even before the war, of being in a car with my parents and passing a place in [Pennsylvania], a resort with a sign out in front that read: “No dogs or Jews allowed.”
For too many African Americans, Jews, and women of Ginsburg’s generation, legal exclusion from certain educational institutions, neighbourhoods and professions was a daily reminder there were two Americas. One for the insiders, and another for outsiders. This reality influenced how she practised her profession.
In a 2018 interview, Ginsburg admitted that “the sense of being an outsider – of being one of the people who had suffered oppression for no . . . no sensible reason . . . it’s the sense of being part of a minority. It makes you more empathetic to other people who are not insiders, who are outsiders.”
Coupled with her Jewish upbringing that instilled in her a firm belief in the fight for justice, Ginsburg’s outsider status among the first cohort of female students at Harvard Law School and few female law professors nationwide in the 1960s reminded her daily how law perpetuated societal discrimination. Accordingly, she committed her life’s work to dismantling the legal structures that systematically denied women and minorities opportunity and agency.
It should come as no surprise that Ginsburg’s work has inspired a generation of people who experience outsider status in the US, including Muslims. For the past 20 years, overt anti-Muslim racism has been rampant. Ranging from protests calling on Muslims to get out and “go home” to state legislation seeking to deny Muslims the right to practice their religion as part of an “anti-Shariah” national campaign, Muslims have been as openly condemned as Jews were a century ago.
When the Supreme Court in the case of Hawaii v Trump upheld President Donald Trump’s executive order imposing a ban on Muslim immigration, Ginsburg joined Justice Sonia Sotomayor in issuing a scathing dissent.
The two called out the majority for “ignoring the facts, misconstruing our legal precedent, and turning a blind eye to the pain and suffering the Proclamation inflicts upon countless families and individuals, many of whom are United States citizens.” They boldly compared the upholding of the Muslim ban to the court’s shameful 1944 ruling in the Korematsu v United States case which upheld the internment of Japanese Americans and immigrants under the pretext of national security during World War II.
Ginsburg knew all too well the grave dangers of a candidate for president calling for a “total and complete shutdown” of an entire religious group. In a July 2016 interview with the New York Times, she said: “I can’t imagine what this place would be – I can’t imagine what the country would be – with Donald Trump as our president.” As America experiences historic levels of political strife and polarisation – due in large part to Trump’s divisive rhetoric and policies – Ginsburg’s concerns have proven prescient.
While her life and legacy remind us of America’s tremendous potential for justice and equality, the political fight over her replacement is an ominous warning of the fragility of the American project. Heightened political polarisation, toxic masculinity, and the resurgence of white nationalism threatens the values for which Ginsburg stood – the rule of law, equality, and opportunity.
As we mourn her death and honour her legacy, let us remember her words of wisdom before the Senate 24 years ago, “What has become of me could happen only in America. Like so many others, I owe so much to the entry this Nation afforded to people yearning to breathe free.”
It is now our turn to act on the courage of our convictions to continue the work she began.
-- Sahar Aziz, Professor of Law, Chancellor's Social Justice Scholar, and Director of the Center for Security, Race and Rights at Rutgers University Law School (Newark)
This article was originally published here.
Tuesday, September 15, 2020
I thought I never personally experienced racism. Then I realized I just normalized it. (by Prof. Njeri Rutledge)
Recently, I realized that my success comes from my ability, as a Black woman, to normalize and dismiss the racism I face everyday.
I am a graduate of Harvard Law School; a law professor; a municipal judge; a wife and mother. By any measure, my life is an example of success. But that success has come at a steep price, paid for by denying my pain.
As a Black woman in America, I make the daily decision to either call out and challenge the routine subtle racism I experience — and as a consequence be labeled as angry — or ignore the racial cuts, pretending with a smile that the resulting wound doesn’t hurt. This choice is exhausting, yet until recently, it’s one I didn’t even realize I was making.
This summer, a white colleague recently asked if I had ever personally experienced racism. I instinctively said no. I didn’t have any singular life-threatening racial incident, nor been the victim of police abuse. Sure, crosses had been burned in my neighborhood when I was a child in Nashville, but not on my yard. I later found myself inexplicably angry — first at my colleague, and later, at myself.
Why, in that reflexive denial, was I equating the absence of violent racism with the absence of all racist slights directed my way? In a sobering moment, I realized that my success (and that of many people of color) stems from our ability to normalize daily racism. Indeed, our survival as healthy adults depends on it, even if — or perhaps because — it means denying the resultant pain. Like others, I had become a master of wearing a mask.
Children learn racism early
Racism has long been a dangerously regular part of American life. So interwoven in our nation’s fabric, its pervasiveness has made it seem normal — hence deniable. The normalization of racism props up a powerful façade of acceptability, even to its victims. Minimizing the daily abusive reality of people of color is in many ways more corrosive to the ideals of equality, and harder to eliminate, than the violent extremes
For me, normalizing racism began when I was 7 years old. I cried when my mother told me she would be fired for being late to work, because I thought she meant she would actually be set on fire, just like the house of the other Black family a few blocks away.
A few years later, when I was only a 10 year old playing in my front yard, I was referred to as the N-word. This was the first time but not the last. And, like WNBA superstar A’ja Wilson, I too was "uninvited" from a birthday sleepover in the fourth grade. My friend told me her dad didn’t like Black people. I was heartbroken, but I simply smiled to hide the hurt. I learned the painful lesson that I was not her friend, I was her Black friend. I have experienced countless examples of similarly-hurtful treatment.
Beyond mere survival
Witnessing violent racism against other people of color also contributes to the insidious normalization of racism, and is equally traumatic. Whenever my husband and I visit Jasper, Texas, we visit the memorial to his relative, James Byrd Jr., the Black man chained to the back of a pickup truck and dragged to his death in 1998. Byrd’s heinous death, plus the vandalism that continues to demean his memorial, inflicts collateral damage on us, our family, and our nation.
Have I ever personally experienced racism? Every. Single. Day. I am soul-achingly tired. Tired of denying, minimizing, and dealing with racism. Tired of waking my daughter up from nightmares where she’s asking me if the police are going to kill us. Tired of a lifetime of conversations about racism, service on diversity committees, and participation in anti-racism workshops. Tired of being terrified every time my gentle, educated Black husband leaves our house, he will be the victim of police violence.
It is time for me — and others — to take off our masks. For the sake of survival, I would minimize racism and hide its pain. But I can no longer normalize the unacceptable. None of us should. If Americans want to build a society that truly reflects our nation’s "self-evident" truths in our Declaration of Independence, we must all identify racism for what it is, working together to ensure a new normal.
This article originally appeared in USA Today on 9/15/20. Read it here.
Saturday, September 12, 2020
Islamophobia and the Law is a foundational volume of critical scholarship on the emerging form of bigotry widely known as Islamophobia. This book brings together leading legal scholars to explore the emergence and rise of Islamophobia after the 9/11 terror attacks, particularly how the law brings about state-sponsored Islamophobia and acts as a dynamic catalyst of private Islamophobia and vigilante violence against Muslims. The first book of its kind, it is a critical read for scholars and practitioners, advocates and students interested in deepening their knowledge of the subject matter. This collection addresses Islamophobia in race, immigration and citizenship, criminal law and national security, in the use of courts to advance anti-Muslim projects and in law and society.
Chapter contributions by: Khaled Beydoun, Leti Volpp, Susan Akram & Kevin Johnson, Karen Engle, Cyra Akila Choudhury, Sahar Aziz, Abed A. Ayoub, Amna Akbar, Aziza Ahmed, Muneer Ahmad, Karen Ellis Rhone, Faisal Kutty, and SpearIt.