Monday, July 13, 2020
Never Forget Child Separation, Trump’s Most Abominable Act (by Prof. Ediberto Roman and Joshua Killingsworth)
On June 26, a federal court demanded Immigration and Customs Enforcement (ICE) free children from custody in response to health concerns at their facilities. Judge Dolly M. Gee found ICE had failed “at the basics,” such as keeping these children in “safe and sanitary” living conditions during a time when COVID-19 was devastating the country.
Journalist Rachel Maddow described the detention of children as the offense “where multiple Trump officials are most likely to spend eternity in cosmic penance and damnation. Trump’s family separation policy is without question his most abominable act. While Trump targeted immigrants from the very first day he ran for office, describing them as drug dealers and rapists, few realize President Trump has actually targeted children.
In May 2018, Attorney General Jeff Sessions, announced the “zero tolerance policy,” whereby every adult who improperly entered the country would be prosecuted and remain in custody. If the adult migrant or asylum-seeker was with a child, the child would be separated. In the first two months of zero tolerance, this separated at least 2,000 children from their parents. In the first year of this heartless program, at least seven children died in U.S. custody. The administration knew of the devastating psychological effects of family separation, but they implemented it anyway.
The wrongs of the family separation are simply unfathomable. Shockingly, recent reports document thousands of migrant children sexually abused while in U.S. Custody. No decent human being should believe such damnable acts could ever happen, but HHS documents themselves, as well as U.S. Congressman Ted Deutch, confirm these wrongs occurred.
But in truth, little changed. Not being able to keep these children locked up by themselves, the Trump administration unsuccessfully sought permission to detain children alongside their parents. Shortly thereafter, the Trump Administration admitted over 2,500 children remained separated after the executive order ending the program. A year after the end of the program, the administration admitted children were still being separated. Shockingly, government officials further admitted it could take two years to reunite thousands of children.
Last month’s court decision only confirms what we already knew. The federal government’s practice here is not only heartless, hateful, and evil, the Trump administration never had “concern for the particular vulnerability of minors.” The tragedy here will go down in history as among our darkest days, and may take generations, if ever, to repair the wrongs done to these beautiful children.
When our school children are taught of the wrongs of Japanese internment, and the Native American Americanization movement (where children were separated as well), some may believe such wrongs occurred in a less-enlightened era. We will likely tell ourselves we are far more advanced today. Yet, imagine seeking asylum with your child at the border, and witnessing her ripped from your arms? Imagine not knowing where she is? Imagine learning your child was abused, or died? This is not a Stephen King horror film — it’s Trump’s America.
This article originally appeared on July 12, 2020 at the Orlando Sentinel. Read it here.
Ediberto Román is a law professor and nationally acclaimed constitutional law, immigration, and critical theory scholar at Florida International University. He edits NYU Press Series, “Citizenship and Migration in the Americas.”
Now that Joe Biden has wrapped up the 2020 Democratic presidential nomination, everyone is wondering whom he will pick as the Vice Presidential nominee. Race and gender representation are playing a key role in his decision-making. The 2020 Democratic primary showcased the excellence of women and people color in politics, and many were disappointed that a 77-year old White male became the Presidential nominee. Recognizing this, Biden has already committed to choosing a woman running mate, but he still faces difficult choices. Among the finalists are Black, White, Latina, and Asian American candidates, all of whom are superb. Biden must weigh a number of different factors: political experience, personal characteristics, and various ideological, geographic, and demographic considerations. And he may also have to decide between two competing interests: repaying loyal supporters and broadening his appeal to others.
Biden’s most loyal constituency has been African Americans—particularly elderly Black voters. They have consistently backed Biden by large margins, despite his racial gaffes, and in spite of questions about his record on busing, crime, and other issues. Biden remained the frontrunner throughout 2019 mainly because of Black support. His campaign seemed to falter in early 2020, after he finished poorly in the Iowa caucuses and New Hampshire primary—where there were few Black voters. Then, after an endorsement from Rep. Jim Clyburn, Biden made a spectacular comeback in South Carolina—largely on the strength of Black voters. This was followed by resounding victories in the Super Tuesday (March 3) and mini-Super Tuesday (March 10) primaries, where Biden again won the Black vote handily. In those later primaries, he also drew significant support from White and Latina/o voters. But undoubtedly, Black voters propelled Biden to the nomination.
Beyond Biden, Black voters are the backbone of the Democratic Party. In recent presidential elections, Democratic candidates have received about 90 percent of the Black vote. But many Black Americans believe the Democratic Party has not really earned these votes. While Barack Obama’s historic presidential runs in 2008 and 2012 generated enthusiasm, Black voter turnout was down in the 2016 Presidential election, contributing to Hillary Clinton’s loss. And Biden still needs to do more to reach younger Black voters.
Biden recognizes that he must not take the Black vote for granted. Throughout his campaign, he has emphasized his connection to Obama. He has proposed the comprehensive Lift Every Voice plan for Black America, referencing the Black national anthem in its title. He has committed to appointing the first Black woman to the U.S. Supreme Court. Biden has also made racial justice and inequalities a theme in his campaign speeches—even more so since the tragic killing of George Floyd and the ongoing #BlackLivesMatter protests that ensued. In the wake of these protests and the calls for racial justice that they sparked, many analysts believe that Biden will choose a Black woman as his running mate.
Several Black women are major VP contenders. California Senator Kamala Harris is the most mentioned name. She was atop the list even before she ended her own presidential bid. Another Californian, U.S. Rep. Karen Bass, has also gotten some attention. Bass is also former Speaker of the California State Assembly—the first Black woman to lead any state legislative body. Former National Security Advisor Susan Rice has stellar credentials, particularly in foreign affairs. She is a Rhodes Scholar with a doctorate in International Relations. None of them come from a competitive state that could expand the Democrats’ electoral map—although it is debatable whether a VP pick helps for winning more states. If it does help, winning Georgia would be a huge boon, and former Georgia gubernatorial candidate and state legislator Stacey Abrams—a Yale Law School graduate—has not been coy about seeking the nomination. Abrams is a particularly dynamic speaker. Atlanta Mayor Keisha Lance Bottoms could also help Democrats win Georgia. And even more important to Democrats is Florida, home of U.S. Rep. Val Demings. Demings was once a police officer and provides a unique perspective for current conversations about police reform. So there is a diverse range of good candidates just among Black women.
Other analysts believe that Biden needs to secure votes from the left wing of the Democratic Party. During her primary campaign, Massachusetts Senator Elizabeth Warren generated enthusiasm among young progressives—a group that Biden has struggled with. By choosing Warren, Biden’s candidacy could draw left-leaning voters who otherwise might not turn out or might vote for a third party candidate. Warren also has some support among Black voters.
However, Biden might prioritize winning swing voters who went for Trump in 2016. Each voter that Biden takes away from Trump counts twice: plus one for Biden and minus one for Trump. And since very few progressives or Black Americans voted for Trump in 2016, Biden would have to look elsewhere to flip Trump voters and gain this double advantage.
He could try to appeal to White center-right voters in Midwestern battleground states, perhaps by selecting Michigan Governor Gretchen Whitmer. At one point, she appeared to be high on the list. But although Whitmer gained exposure through battling Trump over COVID-19 shutdowns, she has faded in the VP conversation. Minnesota Senator Amy Klobuchar was also once among the leading contenders: she became known through her primary campaign was particularly appealing to moderate Democrats. However, Klobuchar withdrew from contention last month and said that Biden should choose a woman of color. Democrats—and interestingly White Democrats even more so than Black Democrats—have echoed this call.
Besides the Black candidates, there are two other women of color on Biden’s short list: Illinois Senator Tammy Duckworth, who is Asian (Thai) American; and New Mexico Governor Michelle Lujan Grisham, who is Latina. Choosing either of them would break new ground: there has never been an Asian American or Latina/o major party nominee for President or Vice President.
Senator Duckworth has gotten media attention lately, after Fox News commentator Tucker Carlson questioned her patriotism. Asian Americans are a smaller constituency than Black or Latina/o Americans and are concentrated in solidly Democratic states such as New York, California, and Hawaii. Nevertheless, Duckworth has a compelling personal story. She is a combat veteran who lost both of her legs in the Iraq War. She has worked in both the Illinois and U.S. Department of Veterans Affairs and could help with much-needed Democratic outreach to veterans—a group that includes13 percent of the voting population. Duckworth also served in the House of Representatives, and she has a close relationship with the Bidens.
But the most intriguing candidate for me is Governor Michelle Lujan Grisham. Compared to the other candidates, she has not gotten much attention, and outside of New Mexico, few people know her record. But Lujan Grisham already made history as the first Democratic Latina Governor in the U.S. Moreover, nearly 30 percent of Latina/os voted for Trump in 2016, and Biden is underperforming among Latina/os. If Lujan Grisham could appeal to Latina/o swing voters in Arizona and Texas, Democrats would benefit immensely.
Lujan Grisham would bring a variety of executive, administrative, and legislative experiences to the ticket. As former Secretary of Health for New Mexico, she has a nuanced understanding of health care and social services—which may be particularly useful as America grapples with the COVID-19 pandemic. She served as a U.S. Representative from 2012 to 2018, where she was Chair of the Congressional Hispanic Caucus and dealt with the range of domestic and foreign policy issues. Lujan Grisham’s dynamic presence would also complement Biden’s low-key manner: she is an engaging public speaker who comes across as knowledgeable, energetic, and passionate.
As Governor, Lujan Grisham has demonstrated her leadership capacities and her ability to unify the moderate and progressive wings of the Democratic Party. During her first year, she signed progressive legislation on renewable energy, gun safety, labor rights, and minimum wages. Lujan Grisham has a 59 percent approval rating as Governor. She has received national praise for her handling of the COVID-19 pandemic in New Mexico. Such leadership is important to Biden: he has emphasized that he wants a VP who is “ready to be President on day one.”
All of the VP candidates could make good leaders and have the potential to run for President. But contrary to popular belief, the Vice Presidency has not historically been a great stepping stone to the Presidency. More often than not, voters want a change from past administrations. In the last 60 years, only one of four sitting VPs who ran for President was successful: George H.W. Bush in 1988. The other three lost: Richard Nixon in 1960; Hubert Humphrey in 1968; and Al Gore in 2000. Nixon did win the Presidency in 1968, eight years after leaving the VP office—but he actually defeated the sitting VP, Humphrey. Walter Mondale also lost in 1984, four years after leaving the Vice Presidency. Gerald Ford, who was initially VP and became President after Nixon’s resignation, lost as an incumbent to Jimmy Carter. And even George H.W. Bush lost his re-election bid in 1992. Overall, since 1960, sitting or former Vice Presidents have lost six of nine presidential elections. Biden is trying to be the exception rather than the rule.
The Vice Presidency does bring name recognition and status within one’s own party, which can provide an initial springboard. Sitting or former VPs have been quite successful in gaining their own party’s nomination, as we see with Biden himself. Visibility is even more important for women and people of color, who face greater barriers in the process. But what may be an advantage for winning a party’s nomination can be a disadvantage in the general election. And there are other effective pathways to the White House—six of the last seven Presidents never served as Vice President.
For all of the media attention given to Biden’s VP choice, his promise to appoint the first Black woman to the U.S. Supreme Court would have a more lasting impact. The biggest long-term political obstacle for progressives is not the Presidency or Congress, both of which change hands fairly regularly, but rather the composition of the Supreme Court. Supreme Court Justices serve for life, and if Biden picks a Black woman in her 40s, she could be on the Court until 2060. Trump’s appointments have moved the entire federal judiciary in a decidedly conservative direction, endangering progressive policies such as affirmative action and a woman’s right to choose. Recapturing the federal courts, beginning with Biden’s first Supreme Court appointment, should be progressives’ number one priority.
Nevertheless, the Vice Presidential nomination is Democrats’ most immediate concern. Although Biden has to make a difficult decision, he does have a slew of excellent candidates to choose from. Women and people of color have made their mark on the 2020 presidential campaign. We see this not only through the diverse range of candidates, but also through the unprecedented attention given to race and gender issues by all of them. Regardless of who Biden chooses, this campaign season has changed America’s political landscape for the better.
 Susanna Martinez, a Republican who was also Governor of New Mexico from 2011 to 2019, was the first Latina Governor in the U.S.
 Florida also has a large Latina/o population, although many are of Cuban, Puerto Rican, or Central American ancestry—having a different political history and identity than Latina/os in the Southwest and West coast.
Acknowledgment: I thank Kemi Martin for her insightful feedback on this blog post.
Friday, July 10, 2020
Professor Sunita Patel of UCLA School of Law recently published Jumping Hurdles to Sue the Police, 104 MINNESOTA LAW REVIEW 2257 (2020).
The view that the Supreme Court has limited judicial review of unconstitutional government practices is evident in varied quarters of legal scholarship. With respect to structural reform litigation against the police there are good reasons for pessimism, particularly when considering three particular lines of Supreme Court case law. City of Los Angeles v. Lyons, Monell v. Social Security Administration, and, to a lesser degree, Wal-Mart v. Dukes, have typically made it difficult to challenge constitutionally suspect police practices. Lyons erected a standing hurdle for plaintiffs seeking injunctive relief from police department policies; the Monell line of cases erected a hurdle to achieving municipal liability; and most recently, Wal-Mart erected a class action certification hurdle. These doctrinal barriers require plaintiffs to provide substantial evidence and involve substantive consideration of constitutional claims prior to trial.
Through a close examination of three racial-profiling class actions, Floyd v. City of New York, Ortega-Melendres v. Arpaio, and Bailey v. City of Philadelphia, this Article explores the in-formation litigators used to overcome these doctrinal obstacles in order to reach a substantive review of police practices. The case studies show that certain kinds of evidence can assist plaintiffs in overcoming the standing, municipal liability, and class certification barriers: hard data and statistical evidence, discriminatory statements by supervisors and central decision-makers, and/or proof of a history of notice and failure to remedy constitutional violation. Layering the evidence presented in the three case studies over the doctrinal requirements reveals a type of convergence—the same or similar evidence can be used to overcome interlocking aspects of the doctrinal barriers. The Article also discusses other means to obtain information outside the traditional discovery process, such as relationships with advocates and community organizations; publicity that creates leads and opportunities for further fact gathering; and court orders requiring data tracking and disclosures following prior litigation.
Wednesday, July 8, 2020
Law, Structural Racism, and the COVID-19 Pandemic - new article by Professors Ruqaiijah Yearby & Seema Mohapatra
Monday, July 6, 2020
A Proposed Act: the Stop Police Violence & Criminal Justice Reform Act - Article excerpt by Professor Maurice Dyson
Professor Maurice Dyson has a very timely proposal for an act to address police violence and reform criminal justice: https://www.racism.org/index.php/en/articles/law-and-justice/criminal-justice-and-racism/134-police-brutality-and-lynchings/1924-a-proposed-act-the-stop-police-violence-criminal-justice-reform-act
The proposal draws from Professor Dyson's article, Excessive Force, Bias, and Criminal Justice Reform: Proposals for Congressional Action, 63 Loyola Law Review 27 -75 (Spring, 2017). Here is the abstract to that article:
Police violence in America is a modern-day crisis. Even our own allies such as the United Arab Emirates, Bahamas, France,United Kingdom, Canada, New Zealand, and Germany have all issued travel-alert warnings to their citizens visiting the U.S., due to the police violence being witnessed here. Yet, what the rest of the world seems to know and acknowledge, has apparently escaped our Congress and, indeed, our elected leaders who have failed to take action. While various communities may suffer from the abuses of excessive police practices, it is America’s people of color, particularly Blacks and Latinos, that are targeted disproportionately for police harassment and violence. Significantly, in 2015: (1) unarmed Black people were “killed at 5x the rate of unarmed whites,” (2) “37% of unarmed people killed by police were Black” despite being “only 13% of the U.S. population,” and (3) “[p]olice killed at least 102 unarmed black people,” nearly two people each week. According to the U.S. Bureau of Justice Statistics, Hispanics are over-represented when it comes to traffic searches and arrests, as statistics show
Friday, July 3, 2020
Kevin Johnson, Dean of the University of California at Davis School of Law, recently published "Trump's Latinx Repatriation" in the UCLA Law Review. The abstract is given below, and the Article is available for free download at this link: https://www.uclalawreview.org/trumps-latinx-repatriation/
Two historical episodes have indelibly influenced the development of Latinx identity and sense of belonging in the United States. During the Great Depression, state and local governments, with the support of the U.S. government, repatriated approximately one million persons of Mexican ancestry, including many U.S. citizen children and immigrant parents, to Mexico. Similarly, in 1954, the U.S. government launched Operation Wetback, a military-style campaign led by a retired general that removed another one million persons of Mexican ancestry, including many U.S. citizen children, from the southwest.
History rightly condemns these episodes of anti-Mexican intolerance, which both amount to forms of ethnic cleansing. Nonetheless, we may be seeing history repeat itself with even greater harm inflicted on larger numbers of Latinx peoples. Through breathtaking and unprecedented changes to immigration enforcement, President Donald J. Trump has boldly moved to reduce immigration to, and the number of immigrants in, the United States. This Article contends that, as part and parcel of his fervent anti-immigrant agenda, President Trump is engaging in a concerted effort to remove Latinx peoples, especially Mexicans and Central Americans, from the country. Just as the previous Mexican removal campaigns did, the new Latinx repatriation accomplishes mass removals and encourages Latinx noncitizens, along with U.S. citizen children, to leave the country and self-deport, or, alternatively, to never come to the United States in the first place.
But the new Latinx repatriation differs in important respects from the old removal campaigns. First, the new system is facially neutral and colorblind, not expressly targeting Latinx peoples. That is the case despite the fact that President Trump’s words frequently—and mercilessly—attack Latinx immigrants. As a legal matter, colorblind policies pose formidable challenges to legal attacks.
Second, through President Trump’s policy efforts, the new repatriation has become institutionalized into the fabric of immigration enforcement, which differs from the ad hoc and episodic nature of the Mexican repatriation and Operation Wetback. With the targeting of Latinx immigrants embedded in the institutional structure of immigration enforcement, one can expect many more Latinx noncitizens to be removed than in previous Mexican removal campaigns.
Ultimately, only political action and congressional reform of our immigration laws can meaningfully change the racial discrimination embedded in immigration law and enforcement. To do so, we must acknowledge and directly confront the racial impacts of the operation of the immigration laws and their enforcement. Put differently, an awareness of the racialized nature of the problem is a precursor to bringing racial justice to immigration.
Thursday, July 2, 2020
I cannot celebrate this Independence Day in a spirit of joy over “life, liberty, and the pursuit of happiness.” Yet I feel in this time that the clarity we see these days for America’s faults is now more than ever balanced by America’s possibility, that continuing yet unfulfilled promise of equality.
That possibility was born on the Third of July. This year, I will celebrate it and mourn the Fourth.
The Third of July birthday of which I speak was July 3, 1863. That day ended the Battle of Gettysburg. It saw the repulse of Pickett’s Charge, the hamstringing of the Confederate Army of Northern Virginia, and the beginning of the end of Robert E. Lee’s rebellion. July 3 signaled the long march to the eventual ruin of slavery and the Confederacy.
Admittedly, the Confederacy of the mind won the Jim Crow peace. This “Lost Cause” resisted equality and civil rights for nearly a century after Appomattox (and that same resistance under the banner of the Confederate battle flag is invoked every time the flag’s removal is protested). But the actual Civil War’s end, and the victory of the idea of equality, began at Gettysburg.
Indeed, in reflecting on the underlying meaning of Gettysburg in his famous November 1863 address, President Abraham Lincoln saw the battle as the test of whether American democracy based on rhetoric of equality could survive civil war. In his famous speech, he hoped
that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion -- that we here highly resolve that these dead shall not have died in vain -- that this nation, under God, shall have a new birth of freedom -- and that government of the people, by the people, for the people, shall not perish from the earth.
That cause, the New Birth of Freedom, promised an America that laid stock in Lincoln’s great cause of abolishing slavery and restoring union (even despite Lincoln’s own slow realization of the former). The bullets and blood of Gettysburg set in motion the ultimate Reconstruction of the US Constitution that promised an equal protection of the laws for all persons in the United States without yolk of slavery or differentiation based on status or race.
Unlike the America of the Founders, that promised United States actually includes me as a free Black man equal to all other men and women. It is that New Birth of Freedom that I prefer to celebrate through commemorating the victory of Gettysburg and the demise and fall of the Confederacy. For that victory sowed the seeds of a Union more perfect than the one of 1789.
This promise is an answer to African-American orator Frederick Douglass’s question, “What to the Slave Is the Fourth of July?” His Independence Day 1852 oration held a mirror to a white supremacist America that would enslave his body yet celebrate liberty:
I am not included within the pale of this glorious anniversary! Your high independence only reveals the immeasurable distance between us. The blessings in which you, this day, rejoice, are not enjoyed in common. The rich inheritance of justice, liberty, prosperity and independence, bequeathed by your fathers, is shared by you, not by me. The sunlight that brought life and healing to you, has brought stripes and death to me. This Fourth [of] July is yours, not mine. You may rejoice, I must mourn.
We appreciate Douglass’s assertions even more today. Indeed, the irony of Thomas Jefferson’s appeal to “life, liberty, and the pursuit of happiness” is clear when we recognize that he echoed John Locke, who pointed to “life, liberty, and property,” and thus we can read Jefferson’s rhetoric (as forced by Southern slaveholders) as a protection of his property—including his slaves. Moreover, the signers of the Declaration of Independence used their eloquent call for liberty to shroud their tax revolt which in a sense sought to reapportion more of the benefits of the transatlantic slave trade to themselves. And it is to appreciate that the original pro-slavery American constitution set the stage for our arguments about race today.
I like Douglass must ultimately morn. Even in this 244th year of the United States, Lincoln’s promised freedom and the reconstructed constitutionalism which should have followed remains desperately under fulfilled. Antiblackness still pervades and perverts promised liberty for all.
My life still remains at greater risk than a white life at police stop. I mourn for George Floyd, Breonna Taylor, Ahmaud Arbery, Trayvon Martin, Tamir Rice, and how their deaths are symbols of the many thousands gone because of extremist police violence against people of color (who’s origins are inextricably tied to slavery). To speak their names is to invoke the sign and signal of an America still addicted to anti-Black police violence. For me to invoke their memories is to remember my own life has a target on it. And so I mourn.
I mourn because my vote is devalued because of the caprice of those who suppress the votes of Black, Latinx, and poor people. I mourn for the racial wealth gap, the school-to-prison pipeline, and the fact that Black and Brown bodies suffer and die more from COVID-19.
I cannot but join Douglass in saying that an America that claims liberty and justice for all, as measured by its progress in all these structures of racism from the Founding to the present, may have improved since 1863, but ultimately America (to date) remains “false to the past, false to the present, and solemnly binds herself to be false to the future.” And thus, on this eve of Independence, the contradiction between the promise and the reality of America is clear. And I wonder whether the promise of overthrowing racial oppression once and for all is true.
But rather than despair, I, like Douglass, would say, “notwithstanding the dark picture I have this day presented of the state of the nation, I do not despair of this country.” Indeed, I am heartened by the destruction of communal symbols of racism and white supremacy—blackface, appropriated black icons, and propagandistic Confederate statues, to name a few—and I express my hope that further mindful erasure of allegiances to white supremacy through democratic deliberation continue.
But for a Fourth of July that is more joy than pain for me, the Reconstruction must actually be completed. The promise of the Third of July must be fulfilled by transforming the structures that perpetuate racist effects (even without any racist intent). That includes, among other things, reinvented policing, reimagined democracy, and a revision of the structures and ideology that perpetuate the New Jim Crow. Government of the people must protect and value all the people.
Until then, “this Fourth of July is yours, not mine.”
(Commentary originally posted at atibaellis.com)
Wednesday, July 1, 2020
Professor Luke Boso of the University of San Francisco School of Law has posted a new piece entitled "Anti-LGBT Free Speech and Group Subordination" on SSRN. Professor Boso draws from Critical Race Theory to reconceptualize the relationship between liberty and equality. The full abstract is given below, and the article is available for free download here: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3630648
In 2020, the Supreme Court in Bostock v. Clayton County, Georgia held that Title VII, a federal workplace antidiscrimination law, prohibits discrimination against gay and transgender employees. The majority concluded by citing potential concerns from religious and conservative dissenters, and it suggested that Constitutional and statutory principles of religious freedom and free speech might override LGBT-inclusive antidiscrimination commands in appropriate cases.
This Article is about the tension between liberty and equality. It examines this tension in the context of disputes over Free Speech and LGBT rights. Today, dominant conceptions of both Equal Protection and Free Speech are informed by libertarian ideology, reflecting a commitment to limited government oversight and regulation. A pluralistic and progressive society must more adequately balance libertarian interests in the exercise of individual rights—like Free Speech—with the need for government action to promote equitable outcomes. This Article joins voices prominent in the field of Critical Race Theory who argue for an antisubordinating approach to both equality and liberty. Simply put, if the triumph of a Free Speech claim would enforce a status hierarchy that positions historically oppressed groups as inferior, that Free Speech claim should fail.
The moment is ripe to reconceptualize liberty and equality. In response to a shifting social and legal climate that is increasingly less tolerant of bullying, embraces liberal sexual and gender norms, and seeks to institute formal equality for formerly disfavored groups, many in the conservative movement have turned to the First Amendment to protect the status quo. A libertarian view of the Constitution ensures that meaningful liberty and equality exist only for some. The LGBT community and the backlash to its increasingly protected legal status sit at the epicenter of current court battles over the contours of equality and the breadth of the First Amendment, but equity for all marginalized groups is at stake.
Monday, June 29, 2020
AALS is hosting a program on Racism, Justice, and Your Fall Classes on June 30th at 4 pm ET/1 pm PT. In this program, panelists will discuss how you might think about incorporating topics concerning racism, justice, diversity, and inclusion into your fall classes at a time when these issues are front-and-center. Here is the registration link.
AALS invites tenure-track, clinical, and legal writing faculty on Tuesday afternoons for “Faculty Focus,” a series of weekly webinars organized around issues these individuals may be facing as well as challenges affecting higher education and the profession in general. Each 60-minute webinar will feature expert advice from law school leaders followed by shared experiences from early career law faculty. The sessions will be structured to encourage conversation and connection, with opportunities for participants to crowdsource solutions and discuss common issues across schools and teaching areas.
Thursday, June 25, 2020
Professor andré douglas pond cummings of the University of Arkansas at Little Rock William H. Bowen School of Law published an article a couple of years ago that is quite relevant to current issues and debates, in the wake of protests over George Floyd's killing. It is entitled "Reforming Policing" and was published in the Drexel Law Review. The abstract is given below, and here is the link: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3207051
Law enforcement killing of unarmed black men and police brutality visited upon minority citizens continues to confound the United States. Despite protests, clarion calls for reform, admitted training shortcomings and deficiencies among U.S. law enforcement officers, conferences, summits, and movements to reform policing, the solution to ending undisciplined police violence and the hostile killings of unarmed minority individuals at the hands of U.S. police seems to elude us. Why should this be? The United States is home to some of the most creative, innovative, pathmarking, and course-changing thinkers the world has ever known. This challenge — police killing of unarmed minority citizens and law enforcement brutality — could be one that this nation can solve; that is, if there is a political and moral will to do so.
This article proposes a radical restructuring of United States law enforcement policies, procedures, and applications in order to address this critical challenge. After comparing some of the nation’s most innovative police reform efforts, this article will provide policymakers, legislators, officers, leaders, judges, and lawyers the most effective reform efforts and best thinking that have been implemented to date in connection with saving the lives of residents who face danger from those trained to protect and serve them. This article may serve as a signal to a potential sea change in failed police practices that have endured for decades in the United States.
This proposal unfolds as follows: Part I describes the historical evolution of policing practices in the United States, including the influence of slave catchers in the South during the slave trade and tracing back to the nation’s founding. This historical analysis will demonstrate the deep-seated bigotry and race-hatred that influenced many early law enforcement practices throughout the nation. Part II reviews the historical racial difficulties and will reflect on how they manifest today, where policing in many departments still centers around controlling black and brown individuals. Part III then surveys some of the most influential and innovative police reform efforts that have been undertaken by cities, municipalities, and states around the country, particularly those that are revolutionizing policing in a way that recognizes the historical racism and seeks to reform policing in a meaningful and human-centered way. Finally, Part IV recommends a battery of policies and reforms that may deeply influence the way policing is conducted currently and provide a better way forward. The Article ends with concluding thoughts.
Tuesday, June 23, 2020
When President Trump announced his intention to designate Antifa as a domestic terrorist organisation, his disregard for the upsurge of white right-wing extremist violence was obvious. So, too, was his objective -- quashing political opposition to his administration.
Antifa, short for anti-fascist, is a far-left ideological movement opposed to fascists, neo-Nazis and far-right groups. A loose collective of individuals and local groups, it lacks a chain of command or designated leaders.
Followers of this decentralised movement engage mostly in nonviolent activities such as protesting, giving speeches, tracking fascist groups and hanging up posters. However, Antifa followers, often clad in all black and wearing masks, justify militant anti-fascism action as self-defence of marginalised people against white supremacists. As a result, some have damaged property and physically attacked ideological opponents during protests. None have killed.
In stark contrast, right-wing hate groups have inspired some of their followers to kill 106 people between 2001 and 2016, according to the US Government Accountability Office. In Trump's first year as president, right-wing groups were responsible for 31 violent attacks.
And yet, not once has Trump called for one of the nearly 1,000 right-wing extremist groups to be designated as a domestic terrorist organisation.
His double standards were on full display in 2017, when he claimed Antifa shared some of the blame for the murder of Heather Heyer during the Unite the Right protest in Charlottesville, Virginia. Heyer was killed when a self-professed neo-Nazi drove his car into a crowd of anti-fascists protesting against the far-right racist groups attending the rally. Refusing to acknowledge that the protest was organised by white supremacists, Trump stunningly stated that there were "very fine people on both sides". Those so-called fine people included hundreds of Klansmen, Alt-Knights, and the Proud Boys - all of whom are eager to start a race war.
Meanwhile, Trump categorically smears Muslims as "terrorists". Since 2015, he accused Islam of being a violent ideology, suggested creating a "database of all Muslims in the US" and issued a Muslim Ban. He continues Bush and Obama's legacy of focusing on Muslims in domestic counterterrorism enforcement.
Indeed, Muslims have been the boogeymen propped up by both the Democrats and the Republicans to funnel billions of dollars to the FBI, DHS and DOJ National Security Division. The money, in turn, funds tens of thousands of counterterrorism agents, intelligence officers and prosecutors conducting surveillance, investigations and sting operations in Muslim communities under a preventive model of counterterrorism policing.
These activities had a chilling effect on Muslims' free speech and freedom of religion, and caused many of them to self-censor and refrain from political activism - precisely what the government wants. Trump now wants to expand this rights-infringing schema to his left-wing opposition.
Notably, the grave damage to Muslims' civil rights and liberties occurs through enforcement of international terrorism laws because only foreign organisations can be designated as "terrorist". No law exists authorising the designation of a domestic group as a terrorist organisation. However, domestic terrorism is defined in 18 USC 2331(5) as "acts dangerous to human life that occur primarily in the United States, violate federal or state criminal laws, and are intended to intimidate or coerce a civilian population or influence government policy by intimidation or coercion".
Should Congress pass a law authorising domestic groups to be designated as terrorist according to this definition, it would be the death knell of political groups disfavoured by whoever is president at a particular time.
Individuals associated with the designated group, even if not engaged in violent acts, could be prosecuted for material support to terrorism and imprisoned for up to 15 years. Donating funds, providing training, joining protests and other non-violent actions associated with designated domestic groups would be illegal.
The counterterrorism preventive model would also invite pre-emptive surveillance and investigations based on people's ideologies, associations and political memberships.
A domestic terrorism law, thus, would regress the nation back to a dark era when the law was weaponised to quash domestic political dissent. During the 1950s and 1960s, the infamous COINTELPRO under J Edgar Hoover deployed tens of thousands of informants and undercover agents to infiltrate and disrupt the Black Panther Party, Nation of Islam, Southern Christian Leadership Conference, anti-Vietnam war protesters and other civil rights groups.
Moreover, calls for a new statute that would allow for domestic groups to be designated as "terrorist" based on "national security" are belied by the fact that prosecutors can already choose from more than 51 criminal statutes, including murder, possessing or using weapons of mass destruction, bombing and assassination to prosecute politically motivated violence.
But being labelled a terrorist carries a heightened stigma, which in turn gives licence to the FBI to be more aggressive in their surveillance and investigative tactics.
Designating Antifa as a terrorist organisation would not only change the public view of Antifa as a radical political group that, while fringe and occasionally violent, falls under Americans' expansive notions of free speech. It would unleash the full force of the government's counterterrorism regime against political dissidents on the left. Nonviolent acts such as tracking fascist groups, counter-protesting against white supremacists, publicly defacing flyers of neo-Nazi speakers, and opposing law enforcement, would be treated as unlawful material support for terrorism.
Absent the terrorist label, the government must be much more careful to focus on violent acts, not radical speech or ideology, in how it investigates Antifa and other groups on the extremes of the political spectrum. Officials who abuse their power will find themselves subjects of Inspector General Reports exposing illegal surveillance of activists engaging in First Amendment protected activities, which occurred under the Bush administration.
To be sure, Trump's primary targets of a domestic terrorism law will be left wing and minority activists.
But over time no one will be immune from being criminalised for their dissent - leaving us bereft of our strongest defence against authoritarianism.
-- Sahar Aziz, Professor of Law, Chancellor's Social Justice Scholar, Middle East Legal Studies Scholar, Rutgers Law School
-- This article was originally published on Al Jazeera here.
Friday, June 19, 2020
We must tear town the 'blue wall of silence.' Here's how civil lawsuits could help (by Profs. Frank Rudy Cooper, Suzette Malveaux, and Catherine Smith)
Our years of studying constitutional civil rights have taught us that police policies and even criminal statutes are not enough to overcome the “blue wall of silence” among officers. What’s needed are state laws that create an affirmative duty for bystander cops to intervene to prevent use of excessive force or other civil rights deprivations, and that allow civil suits against cops who don’t.
Victims of police misconduct should not have to rely on inadequate department policies or prosecutorial whims for protection or redress. Criminal charges in cases of police violence are extremely rare. Tellingly, it took a week for Chauvin to be charged with second-degree murder and his fellow officers with accomplice liability as protests against racially motivated police violence erupted around the globe.
By contrast, empowering individuals to bring civil lawsuits against bystander cops who fail to intervene — with the threat of monetary damages — would force officers to act. This might sound like a novel idea, but U.S. history teaches otherwise.
In the late 1800s, despite the Reconstruction amendments to the U.S. Constitution, the Ku Klux Klan and its sympathizers terrorized formerly enslaved blacks and their white allies. Throughout the South, many police would orchestrate and participate in Klan violence. Others would tacitly agree to stand down. Congress passed the Civil Rights Act of 1871, also known as the Ku Klux Klan Act, in an effort to dismantle racist systems and institutions.
This comprehensive legislation empowered individuals to act as private attorneys general to enforce the Constitution in several ways. Section 1983 enabled individuals to seek damages for constitutional violations, Section 1985 prohibited conspiracies against civil rights, and Section 1986 required police and other state officials to intervene in such conspiracies whenever possible.
Consistent with its early hostility toward the Reconstruction agenda, the Supreme Court severely restricted these sections. After lying dormant for about 100 years, they were resurrected in the late 20th century. Section 1986 is still rarely used, but its underlying principle, the duty to intervene, could help address present-day police violence — even if law enforcement is fundamentally restructured in the future.
Requiring officers to intervene makes sense for several reasons. When violence is perpetrated by law enforcement, bystander police officers are often the only people who can safely intervene. Civilians cannot be expected to stop an officer from assaulting a victim: They would risk arrest for obstructing justice and possibly face bodily harm themselves.
In 1871, Congress knew that law enforcement inaction enabled lynchings, rapes and murders, playing an important role in the continued subjugation of black Americans. Police inaction today perpetuates racial hierarchies by allowing harms ranging from everyday harassment to brutal murders. Police silence results in burdens that are borne largely by the poor, racial minorities and other marginalized communities.
Wednesday, June 17, 2020
UNEQUAL PROFESSION: RACE AND GENDER IN LEGAL ACADEMIA (Stanford University Press, 2019) - new book by Professor Meera Deo
Professor Meera Deo recently published UNEQUAL PROFESSION: RACE AND GENDER IN LEGAL ACADEMIA (Stanford University Press, 2019) -- a study that has been getting a lot of attention recently. Professor Deo's work is the first formal empirical study of law faculty with an emphasis on raceXgender challenges facing women of color law professors. Her qualitative and quantitative findings from interview and survey data reveal a national pattern of ongoing "mansplaining" and "hepeating" by colleagues, biased evaluations and confrontations from students, and gender-based barriers to promotion and leadership. Professor Deo illustrates that these problems are not unique to legal academia, but also systemic throughout legal practice and other professions. She proposes individual strategies and structural solutions to address these pervasive problems. Professor Deo's book is available for 30% off + free shipping at this website (promo from LSA); the code is S20XLSA-FM.
Tuesday, June 16, 2020
The ABA Section of Civil Rights and Social Justice has developed a multi-part webinar series exploring how the COVID-19 pandemic highlights critical legal issues of criminal justice, civil rights, human rights, and economic concerns, to name only a few. In these free non-CLE and (two CLE) webinars, panelists will address the deepening crisis in our collective pursuit of advancing law and justice.
Date: Wednesday, June 17, 2020
Time: 1:00 p.m. – 2:30 p.m. EDT
Format: Free non-CLE Webinar
Racial discrimination in mortgage lending in the 1930s shaped the demographic and wealth patterns of American communities today, a new study shows, with 3 out of 4 neighborhoods “redlined” on government maps 80 years ago continuing to struggle economically.
A recent study by the National Community Reinvestment Coalition indicates that the overwhelming majority of neighborhoods marked “hazardous” in red ink on maps drawn by the federal Home Owners’ Loan Corp. from 1935 to 1939 are much more likely than other areas today to consist of lower-income, minority residents. This panel of expert legal professionals will address the long term impacts of redlining on community development, housing, education, and economic justice.
- Patricia Broussard – Professor of Law, Florida A&M University College of Law
- Audrey McFarlane – Associate Dean of Faculty Research & Development and Dean Julius Isaacson Professor of Law, University of Baltimore School of Law
- Jessica Etienne – Assistant State Attorney, Florida’s 17th Judicial Circuit
- Renee Hatcher – Assistant Professor of Law, UIC John Marshall School of Law; Director, Community Enterprise & Solidarity Economy Clinic, UIC John Marshall School of Law
- Kendall Thomas – Nash Professor of Law, Columbia Law School
- Kelecia Njaka – President, Barry Black Law Students Association, Dwayne O. Andreas School of Law, Barry University
- Diamond Griffith – Barry Black Law Students Association, Dwayne O. Andreas School of Law, Barry University
Sunday, June 14, 2020
Racial Stereotypes, Respectability Politics, and Running for President: Examining Andrew Yang's and Barack Obama's Presidential Bids
During his bid for the 2020 Democratic presidential nomination, Andrew Yang received more national media attention than any prior Asian American political candidate . Although not a major contender for the nomination, Yang—who is Taiwanese American—was an engaging and entertaining presence, capturing the imagination of many observers. He gathered a following known as the “Yang Gang”—a group that included people of various political orientations and all racial backgrounds. Even after his campaign ended in February, Yang remained visible as a CNN political commentator. And as the COVID-19 pandemic spread and shut down the U.S. economy, Yang’s signature policy proposal—the Universal Basic Income (UBI)—garnered more attention as a means to provide economic relief. Then, in the wake of the pandemic, Yang’s response to anti-Asian American violence sparked more debate.
Yang was not the first Asian American presidential candidate. Hawaii Senator Hiram Fong won votes for the 1964 Republican presidential nomination from the Hawaii and Alaska delegations. In 1972, Representative Patsy Mink, also from Hawaii, became the first Asian American to seek the Democratic presidential nomination . More recently, Louisiana Governor Bobby Jindal sought the Republican nomination in 2016; and in 2020, California Senator Kamala Harris and Representative Tulsi Gabbard sought the Democratic nomination along with Yang. But Fong and Mink ran in an era when primary campaigns were shorter and received less media coverage. Harris was a nationally visible candidate, but both she and the media emphasized her Black identity much more than her Asian Indian (Tamil) American heritage. To the extent that Gabbard received attention, it was largely for her unorthodox political views and her criticism of other candidates rather than her American Samoan heritage . And while Jindal’s Asian Indian (Punjabi) American roots did receive some attention, he deliberately de-emphasized them and embraced assimilation as an ideal.
Yang, in contrast, did not hide from his Asian American identity and even highlighted it at times. By December, he was the only candidate of color who qualified for the Democratic primary debates. When asked about this, Yang lamented the absence of Kamala Harris and Cory Booker, and he acknowledged that Black Americans and Latina/o Americans face more challenging barriers than he ever did. Nevertheless, Yang also recounted the racial epithets and insults he encountered during his childhood, connecting his experiences to the broader struggles of people of color.
But Yang misfired in his April 1 Washington Post op-ed, which addressed COVID-19 related hate crimes against Asian Americans. He asserted that “Asian Americans need to embrace and show our American-ness in ways we never have before … step up, help our neighbors, donate gear, vote, wear red white and blue … show without a shadow of a doubt that we are Americans who will do our part for our country … [.].” Yang noted that Japanese Americans volunteered for the military during World War II, but he neglected to mention the injustice of their internment. Rather than placing blame squarely on the perpetrators of hate crimes, Yang’s op-ed seemed to emphasize the responsibility of Asian Americans to overcome racism and xenophobia.
Several Asian American celebrities and commentators criticized Yang’s op-ed. Responding in a letter to the Washington Post, David Inoue, Executive Director of the Japanese Americans Citizens League, accused Yang of “blaming the victim” and “fail[ing] to recognize the fundamental reality of the racism” that leads to hate crimes. Actor George Takei, of Star Trek fame, tweeted that “Yang is way off the mark” and that Asian Americans “don’t have anything we need to prove[.]” Vox writer Li Zhou discussed how Yang’s comments embody “respectability politics”—attempts by members of marginalized groups to show that their values, norms, and behaviors coincide with those of mainstream society and thus are not threatening to it. More starkly, in a subsequent Washington Post op-ed, Columbia University student Canwen Xu called Yang a “white-people pleaser.”
During his tenure in office, President Barack Obama found himself mired in similar controversy. Obama was accused of promoting respectability politics during his May 2013 commencement address at Morehouse College, when he asserted “that too many men in our [Black] community continue to make bad choices” and elaborated on this theme. Various critics reacted sharply to these comments. Columbia Journalism Professor Jelani Cobb bemoaned Obama’s speech as “confirm[ing] the long and ugly tradition that conflates blackness with laziness and poverty, and whiteness with virtue and wealth.” Writer Ta-Neishi Coates accused Obama of “singularly … scold[ing]” Black Americans in a way that he did not hold other groups accountable. Beyond the Morehouse speech, Temple University Professor Marc Lamont Hill has observed that Obama employed respectability politics in policy initiatives such as My Brother’s Keeper. And in an essay that actually defends respectability politics, Harvard Law Professor Randall Kennedy noted that at the same time Obama “scolds” Black America, he “has assiduously cultivated a persona that is racially nonthreatening to many whites [.]” In that vein, Obama too was a “white-people pleaser.”
But in order to be elected, Obama had to cultivate that non-threatening persona. He had to ensure that White voters were comfortable voting for him. And to accomplish this, Obama also had to show the masses of White people that he was the exception to the negative stereotypes that many of them held about Black people. His background as the first Black Editor-in-Chief of the Harvard Law Review, among many other accomplishments and his polished, “articulate” speaking style, quelled most doubts about his intelligence. Also, in contrast to stigmatized images of Black single parenthood, Obama presented himself as family-oriented—an image buttressed by the strong presence of First Lady Michelle Obama, along with their daughters, Malia and Sasha. Even if Obama had not preached respectability politics, he had to be “respectable” himself.
Obama also made White people feel comfortable by joking about racial stereotypes. When asked if Bill Clinton was the “first Black President”—as Nobel laureate Toni Morrison had once stated—Obama quipped: “I would have to investigate more Bill’s dancing abilities … before I accurately judged whether he was in fact a ‘brother’[.]” Additionally, Obama was forgiving when White politicians made racially insensitive remarks towards him. He chose Joe Biden as his running mate, even after Biden had clumsily referred to him as “articulate” and “clean.” Later, Obama forgave similar comments by Senate Majority Leader Harry Reid. Through these actions, he made White Americans feel less discomfort about stereotypes they held or accidentally expressed.
Andrew Yang also had to navigate America’s racial landscape. Like Obama, he made White audiences more comfortable by forgiving anti-Asian American comments, such as those made by Saturday Night Live comedian Shane Gillis. Yang himself drew jokingly on stereotypes, even more than Obama did. During one rally, he referred to his own campaign as “the nerdiest presidential campaign in history[,]” pledging to use PowerPoint during his State of the Union address. He also joked that “I am Asian, so I know a lot of doctors”; and that “the opposite of Donald Trump is an Asian man who likes math.” “MATH”, which stands for Make American Think Again, was Yang’s campaign slogan: he wore a “MATH” pin as his signature, playing to the notion that Asian Americans excel at math, science, and academics generally. Unlike Obama and other Black candidates, Yang could benefit from the “model minority” stereotype. People did not question his intelligence—if anything, they assumed he was smart.
At the same time, Yang also wanted to defy racial stereotypes. Although he poked fun at the notion of Asian Americans as “nerdy”, he was cool, poised, and humorous during his debate appearances. Asian Americans are also stereotyped as passive, and some voters on the campaign trail thought that Yang was “too nice” to beat Trump. But during his rallies, Yang would play Mark Morrison’s “Return of the Mack” as his walk-out song—evoking a stereotypic masculinity that is not typically associated with Asian American men. In subtle ways, Yang tried to show that he was not only smart, but also had the personal characteristics to lead.
But Yang delved into respectability politics when he addressed the most visible stereotype of Asian Americans: the idea that we are perpetual foreigners rather than Americans . Even for Asian Americans born in the U.S., many people assume that we cannot speak English well, are unfamiliar with American customs, and are more loyal to our ancestral countries than to the U.S. Implicit bias research shows that Americans tend to perceive faces with epicanthic folds (or single eyelids) as being foreign rather than American . Such eyelids are common among certain Asian American groups. Just as dark skin has come to denote criminality, single eyelids have come to represent a menacing foreignness—marking Asian Americans as targets for COVID-19 related hate crimes.
The perpetual foreigner stereotype is also reinforced by the tendency to lump different groups of Asian Americans together . Non-Asian Americans often cannot distinguish between Japanese Americans, Chinese Americans, Taiwanese Americans, and Korean Americans (all of whom are East Asian Americans), and sometimes also conflate these groups with Thai Americans, Vietnamese Americans, and Laotian Americans (all of whom are Southeast Asian Americans). Because members of these groups commonly have single eyelids, perpetrators of COVID-19 hate crimes see them as the same. Conversely, Asian Indian Americans, Pakistani Americans, Bangladeshi Americans, and Sri Lankan Americans (all of whom are South Asian Americans) are less likely to have single eyelids and have not been victimized by COVID-19 hate crimes as frequently. However, South Asian Americans, along with Arab and Middle Eastern Americans, have been stereotyped as terrorists and targeted for anti-Muslim hate crimes. Superficial similarities in physical appearance or dress again form the basis for racist scapegoating.
The idea that some groups are perpetual foreigners is deeply engrained in American society. Single eyelids are among the most prominent racial markers of foreignness in America, but other physical features, such as darker skin and hair color, can also denote foreignness. Additionally, people can be marked as foreigners based on name, dress, accent, and other cultural referents. Besides Asian Americans, other groups such as Latina/o Americans and Arab Americans can be tagged as foreigners. Barack Obama experienced this when “birthers” questioned whether he was American. And in spite of his many efforts to make White people feel comfortable, many White people were still uncomfortable with Obama. That is one reason why Donald Trump was elected.
All of this brings to mind what renowned Black scholar W.E.B. Du Bois called that “peculiar sensation” of “double-consciousness”: “two souls, two thoughts, two unreconciled strivings; two warring ideals … [.]” People of color in America are often aware of racism and know that it cannot be overcome by individual will, displays of patriotism, or catering to White comfort. These things can actually obscure the reality of racism. At the same time, to be professionally successful in a White-dominated society, people of color often have to be “white-people pleasers.”
This is even more so for politicians—and especially presidential candidates, who need large numbers of White voters to support them. Just as Obama had to be non-threatening and counterstereotypic to be elected, Andrew Yang had to prove that he was patriotic and “American” to be a viable candidate. And while Yang sometimes played up stereotypes such as the “model minority”, he simultaneously worked to counter stereotypes about Asian Americans’ passivity, social ineptness, and foreignness. Yang thus employed a strategic “double-consciousness” where he both adopted and defied racial stereotypes. Asian Americans ourselves had conflicting views on Yang’s navigation of racial stereotypes.
People of color often have to balance such “warring ideals.” This can cause a lot of internal dissonance about what to say and how to act in certain situations. Perhaps Yang was projecting part of that dilemma in his Washington Post op-ed. But to address racism effectively, it is America, not Asian Americans, that needs to change. And unfortunately, this nation still has a long way to go. It will be a while before America is ready to accept a President who looks like Andrew Yang.
 In addition to “Asian American”, the terms “Asian Pacific American” (APA) and “Asian/Pacific Islander” (API) are also commonly used. There is no firm consensus on which ethnic or national groups should come under the rubric of “Asian American.” For an overview of those issues, see Vinay Harpalani, Why I am not “Asian” and Other Reflections on Asian American Identities, Race and the Law Prof Blog (July 19, 2017).
 Hiram Fong was the child of Chinese (Cantonese) immigrants, and Patsy Mink was a third generation Japanese American.
 Gabbard is one-half American Samoan (Pacific Islander) and one-half German. Although some would include Pacific Islanders as Asian Americans, the U.S. government classifies them separately.
 For more on the stereotype of Asian Americans as foreigners, see Neil Gotanda, Comparative Racialization: Racial Profiling and the Case of Wen Ho Lee, 47 UCLA L. REV. 1689 (2000). Compared to stereotypes of Black Americans, many of the noted stereotypes of Asian Americans are subtle and under-acknowledged. I often find that when I mention these stereotypes to non-Asian Americans, the response is something like “I never thought of that, but I see it now … [.]” There are a plethora of reasons for this: 1. Asian Americans are not as visible in the media as Black Americans; 2. Asian Americans do not face the same level of racism or stereotyping that Black Americans do; 3. Asian Americans ourselves have not been as vocal in pointing out these stereotypes and their consequences; 4. Asian Americans are under-theorized and not discussed enough (or only discussed in limited ways) as part of the broader discourse on race and racism in America.
 There is no consensus on how to describe this eye shape. The term “almond-shape” is sometimes used but is also considered pejorative by some. See generally Kat Chow, Why Do We Describe Asian Eyes as ‘Almond-Shaped’?, National Public Radio – CODE SW!TCH (Sept. 16, 2013). In addition to eye shape, other facial features such as nose shape can also influence the perception of certain faces as foreign. Nevertheless, because of derogatory terms such as “slanted eyes” and related imagery, eye shape has a larger symbolic linkage to foreignness.
 Use of the term “Asian” to denote Asian Americans can reinforce the perception that we are foreigners. In addition to lumping together 4.5 billion people under one label, the “American” part is especially important for groups who have long been considered un-American. Nevertheless, while some Asian Americans feel this way, others have embraced “Asian” as shorthand for “Asian American.”
Saturday, June 13, 2020
Antebellum Law is the Precedent for Today's White-on-Black Violence (by Professors Elizabeth Berenguer, Lucy Jewel, & Teri A. McMurtry-Chubb)
C.H. Reed, Woodcut illustrating escape from slavery, Schomburg Center, New York Public Library
Antebellum Law is the Precedent for Today’s White-on-Black Violence
2/23/2020 - Ahmaud Arbery was hunted down and killed by three white men while he was out jogging in Brunswick, Georgia.
3/13/2020 - Breonna Taylor was killed by police while sleeping in her own home when they executed a warrant for someone who did not live in her complex and who was already in police custody.
5/25/2020 - George Floyd was killed while handcuffed and pinned to the ground by a police officer’s knee as he gasped for air and repeatedly told officers he could not breathe.
These stories repeat––white people killing Black people with extreme and unnecessary force. These stories repeat because, for centuries, our law has reinforced the myth that persons of color are inherently dangerous. Our law has encouraged, sometimes required, white men and women to take justice into their own hands while simultaneously vilifying innocent behavior by Black people and never allowing Black people to take justice into their own hands. Our nation’s white supremacist past shapes today’s legal system, implicitly condoning these killings.
In the antebellum South, the two white men who shot and killed Arbery would have been following the letter of the law, not committing a murder. As the regime of slavery became entrenched, laws emerged requiring free white people to band together and hunt down runaway servants and enslaved persons. For instance, as of 1765, Georgia required all able-bodied white men and women between 16 and 60 to participate in nightly patrols of plantations and towns. Although later amendments limited the Patrols to men between the ages of 16 and 45, the law endured until slavery was abolished by the Thirteenth Amendment.
In Glynn County, where Arbery lived, these patrols would have surveilled the 357 enslaved persons on the Hofwyl-Broadfield Plantation and the 637 enslaved persons on the Hopeton-Altama Plantation to root out any sign of insurrection and rebellion. Patrollers possessed full authority to search these plantation’s slave quarters, to confiscate illicit firearms and ammunition, and to ferret out any runaways. Enslaved persons found wandering off Brunswick’s rice plantations, into the marshes or among the trees where Arbery ran, were immediately apprehended. As a “correction,” the law permitted patrollers to physically torture any enslaved person found out of bounds with a whipping (“not more than twenty lashes”). Georgia’s patrol law remained in effect until the end of the civil war, but Arbery’s murder is its legacy.
As the Confederacy’s power waned, shortly before the end of the Civil War, Georgia enacted a statute permitting private person arrests, more commonly known as a “citizen’s arrest.” This statute permitted the Slave Patrols to continue under the auspices of a “neutral” label, and most states have a citizen’s arrest statute on the books to this day. The current Georgia Citizens Arrest statute permits any private citizen to arrest another under the belief that the other has committed an offense or is escaping or attempting to escape after committing a felony. This language is virtually identical to that adopted in 1863, a time when Black people were still considered property in the South and even freed Blacks were subject to being re-sold into slavery if they returned to the state. Consider how at that time, there were numerous laws controlling the movement and activities of Black people. White people were vested with the power and responsibility to arrest any Black persons who were violating these laws, but Black persons did not enjoy the same freedom or responsibility to police the behavior of white people. The racial implications of this law endure today to justify the belief that whites, fueled by racial bias, should overpower and subdue Black “offenders” to reinforce superiority and supremacy.
The murders of Arbery, Taylor, Floyd, and countless others are the legacy of a past that has endorsed white superiority at the expense of Black lives. Furthermore, it seems like there is little that Black people can “appropriately” do to protest the unjustified killings occurring across the nation. After violent crime, there is a powerful human impulse for retribution. Persons of color are denied this salve. In viewing the history of violence against Black people, enslavement, bloody corporal punishment, lynching, Jim Crow terrorism, and mass incarceration, the law has never punished white offenders appropriately, as individuals or collectively.
Protest offers some solace for mourning and resistance, but, as the protests have borne out, brutal force is routinely used against protesters speaking out on issues affecting people of color. In contrast, when people protest issues affecting white people, we are told “there are very fine people on both sides.” When gun-toting protestors recently demanded an end to pandemic lockdowns, they were met by Officer Friendly. Just as the antebellum Slave Patrols deployed violence to control the enslaved persons who were property, reactionary violence was encouraged against protestors standing up for justice for people of color. Despite that fact that human enslavement was formally abolished more than 150 years ago, the law (yes, law enforcement is the law) still uses painful, injurious violence to maintain social and racial control while tacitly condoning the actions of far-right denizens who openly carry loaded automatic firearms, which signal a frightening willingness to engage in self-help to achieve “liberty,” or worse, “white justice.”
In the days following Arbery’s murder, the media portrayed him as a suspicious other, someone out of place, and passively described the incident as a shooting, not a murder—as if it were accidental or warranted. The media’s framing of the story mirrors the colonial and antebellum narratives that freely moving persons of color must be apprehended and “corrected,” even if correction results in death. We have been trained, and the media reinforces, that white people, especially white men, can behave as violently and aggressively as they want while Black people must calmly submit and respectfully obey.
The dangers of doing anything “while Black” have not diminished since 1765––jogging, sitting at home, bird-watching, protesting. For Black people in this country, the audacity to be free has always been a mark of suspicion worthy of death. While the South’s violent slave codes may have been repealed long ago, their white supremacist legacy remains deeply embedded in policing practices, both formal and informal, throughout the nation.
-- Elizabeth Berenguer is an associate law professor at Stetson University College of Law. Lucy Jewel is a law professor at the University of Tennessee College of Law. Teri A. McMurtry-Chubb is a law professor at the University of Illinois Chicago, John Marshall Law School. All three authors are admitted to the State Bar of Georgia.
Friday, June 12, 2020
Roma Rights and Civil Rights
European scholars are increasingly confronting questions of race—a notable turn for a community that, in the shadow of Nazism and eugenics, had avoided race for decades. One catalyst for this discourse is the literature about Europe’s largest racialized minority, the Roma, which itself has taken a critical turn in the last ten years. Ushering in this change, scholars in the emerging field of critical Romani studies have abandoned the ethnographic roots of Gypsiology, often looking instead to U.S. scholarship on critical race theory and intersectionality.
Our new book, Roma Rights and Civil Rights: A Transatlantic Comparison, out this month from Cambridge University Press, sits at the intersection of these trends. My co-author Sunnie Rucker-Chang and I compare the movements for—and expressions of—equality for Roma in Central and Southeast Europe (“CSEE”) and African Americans from the perspectives of law and cultural studies. We see our central contribution as tying Roma rights and U.S. civil rights in a sustained manner despite temporal and spatial differences.
As the first book-length work on this comparison, Roma Rights and Civil Rights integrates three frameworks: federalism, interest convergence, and nationalist constructs of Americanism and Europeanism.
Federalism allows us to tackle how the U.S. federal government and the European Union (“EU”) both drove and tempered minority rights. The framework highlights the coincidence of Roma rights with the territorial expansion of the EU into CSEE after the fall of Communism, as well as the EU’s centralization of power during its process of constitutionalization at the same time. Yet the comparison is mutually illuminating because it underscores how constitutional change in the U.S., too, was influenced by territorial change. This comes out most clearly in the Fifteenth Amendment, passed in part because the suffrage imposed upon the readmission of ex-Confederate states was broader than what the Union had provided.
Interest convergence upends the conventional telling of the EU’s role in Roma rights. As we show, the EU only pushed for Roma inclusion to stem the influx of Romani refugees into Western Europe as a result of xenophobic violence in CSEE. It was therefore a momentary convergence of interests among Roma rights advocates and EU technocrats that propelled Roma inclusion onto the Union’s agenda, just as it was a convergence of interests among African Americans and White elites during the Cold War that nudged the U.S. federal government to accept civil rights.
Finally, the constructs of national identity help us explore the popular reception toward legal and policy changes—whether, for instance, inclusion was embraced because it aligned with notions of liberty and equality or rejected because it offended nativist and exclusionary views of America and Europe. To this end, we utilize opinion polls and filmic representations of Roma and African Americans to gauge their mainstream reception.
-- Professor Felix B. Chang
Thursday, June 11, 2020
Trump has repeatedly demonstrated his lay view of the power of the presidency as well as our democratic structure of checks and balances. He has repeatedly expressed a view of his “total” power in the context of addressing the Covid-19 pandemic, enforcing certain immigration policies, and dealing with the protests in several states.
No ‘Absolute’ Power
In fact, just recently, he pronounced that his authority over the Covid-19 emergency was “absolute.”
Upon claiming his absolute power to reopen states while the shelter in place orders were still in place, the clamor from legal experts was deafening. He quickly backtracked from his pronouncement, promising to work with governors on the issue. What Trump fails to fully grasp, or chooses to reject, is that our governmental system consists of a structure of shared powers and duties.
In the context of federal versus states’ rights, the principle of federalism governs. Simply stated, federalism is the Constitution’s means of distributing decision-making authority, granting the national government the power to conduct certain acts, and reserving the rest of governmental decisions to the states.
In other words, the federal government, including the president, only has the authority expressly given to it by the constitution: its enumerated powers. These powers are those necessary to establish, unify, and defend the country. These powers include those pertaining to national defense, international trade, foreign policy, immigration, international trade, patents, and interstate commerce.
The states are empowered to address broad issues pertaining to their citizens, which includes their health and well-being, often referred to as the states’ police powers.
Thus, despite Trump’s wishes to merely proclaim the power to order the states to act in a host of settings, he often does not have the power to make them do so. In the context of the shelter-in-place orders, for instance, this was an issue of the health of the citizenry of several states. He does not have the power to merely order the states to open.
In another context, the recent Floyd murder protests, a federal law, the Posse Comitatus Act, outlaws the use of U.S. military to execute the law domestically unless expressly authorized by the Constitution or an act of Congress.
The 1807 Insurrection Act provides limited circumstances when the president can order the military to certain states. Unlike what Trump suggested in his recent proclamation, the Insurrection Act has never been used, and likely cannot be used, to allow a president the sweeping power to order the military throughout the U.S.
In other settings, Trump’s position of federalism and absolute power has similarly faced push back. The federal government, for instance, typically has power to regulate immigration as part of the president’s power associated with national security.
In the context of sanctuary cities, generally viewed as cities and communities that are safe havens for undocumented immigrants, the Trump administration, in its effort to vigorously enforce its promise to deport undocumented immigrants, denied grant monies to localities that deemed themselves sanctuary cities.
On April 30, the Seventh Circuit Court of Appeals held the Trump administration could not condition federal law enforcement funds on conduct that contradicts municipalities’ policing ordinances. The court specifically based its decision on federalism grounds, stating “the issues before us today concern the spheres of power that reside in the state rather than in the federal government.”
While we likely have not heard the last on this issue, even if the president succeeds in the suit, the sanctuary cities may not succumb to the financial threat, thereby frustrating the federal plans for local assistance with deportation efforts.
In terms of his perception of power, Trump is not all that different from several presidents of the 20th century. FDR wanted to change the size of the U.S. Supreme Court when he disagreed with them; President Richard Nixon did not believe the Supreme Court could question his determinations; and President Bill Clinton fought against exposure to liability while in office.
What is different with Trump is his persistent, and sadly, misguided belief his power is always unchecked. This behaviorism, as demonstrated above, often leads to pronouncements, rebuke, and then, either compromise or suit.
The two latter reactions—compromise or initiating legal action—are likely the product of a first-term president interested in a second term. This is both the danger and the rub.
In a second term presidency, we will witness a more determined Trump without need for compromise. In the end, Trump will not change, and if not ultimately checked, we will witness attempts at a monarchial reign with less consultation, deliberation, or cooperation with states and other branches of government.
Our notions of federalism and system of checks and balances will be in jeopardy virtually every day.
For those weary and worried over such prospects, the only option may be action on Nov. 3.
This piece appeared on 6/9/20 on Bloomberg Law. Read it here.
Ediberto Román is a law professor and nationally acclaimed constitutional law, immigration, and critical theory scholar at Florida International University. He edits NYU Press Series, “Citizenship and Migration in the Americas.”
Wednesday, June 10, 2020
New Article: Sentencing Disparities and the Dangerous Perpetuation of Racial Bias (by Prof. Jelani Jefferson Exum)
Professor Jelani Jefferson Exum has posted a new article entitled Sentencing Disparities and the Dangerous Perpetuation of Racial Bias, published in the WASHINGTON AND LEE JOURNAL OF CIVIL RIGHTS AND SOCIAL JUSTICE. Below are the abstract and citation. The article is available at: https://scholarlycommons.law.wlu.edu/crsj/vol26/iss2/5/
This Article addresses the role that racial disparities—specifically sentencing disparities—play in perpetuating the racial bias that increases the daily danger of living as a Black American in the United States. As documented in the news and by sometimes humorous internet memes, White people have called the police many times to report Black people who were simply living as any other American. This trend highlights the manner in which the U.S. criminal justice system’s racial inequities feed into biased beliefs about Black criminality. This Article argues that instead of tackling implicit bias as a means to fight sentencing and other criminal justice bias, we must actively correct and eliminate the disparities head-on.
Jelani Jefferson Exum, Sentencing Disparities and the Dangerous Perpetuation of Racial Bias, 26 Wash. & Lee J. Civ. Rts. & Soc. Just. 491 (2020).
Available at: https://scholarlycommons.law.wlu.edu/crsj/vol26/iss2/5
Monday, June 8, 2020
Cardozo Law Institute in Holocaust and Human Rights (CLIHHR) launched Confronting Structural Violence: Law Teaching Guides to provide open-access teaching resources for professors.
Law faculty in a range of disciplines can download and immediately use any of the 10 open-access Law Teaching Guides, which are grounded in cases many professors already teach and cover topics that are currently making headlines. The Law Teaching Guides, which cover constitutional law, international law, criminal law, corporations, and IP, are a flexible resource professors can easily adapt for introductory survey courses or upper-level seminars.
To download the Guides and for more information about the project, visit: go.yu.edu/cardozo/lawteachingguides
To read more about the project’s goals from Jocelyn Getgen Kestenbaum, CLIHHR’s Faculty Director and Associate Professor of Clinical Law at Cardozo, find a Q&A with Professor Kestenbaum here.