Saturday, March 23, 2019
Hi everyone! This week, we debut a new column, “The Melanin Memorandum.” The Melanin Memorandum will cover three to five legal stories that impact people of color. Here’s this week’s entry:
Story #1 – Death Penalty Dealt Serious Blow
What happened: This week, Kentucky moved one step closer to abolishing the death penalty. According to Public News Service, a KY bill that would end death sentences in the state has growing, bipartisan support. While Kentucky hasn’t executed a prisoner in ten years, the death penalty remains legal in the state.
Why it matters to POC: Most people know that the death penalty is racially biased. According to the ACLU and Equal Justice USA, the death penalty harms both defendants and victims of color. Those who kill whites are more likely to receive a death sentence than those who kill POC. Jurors are more likely to sentence POC to death. So, ending the death penalty is a racial justice issue.
Story #2 – SCOTUS Questions Racism in Jury Selection
What happened: This week, the Supreme Court heard arguments in Flowers v. Mississippi. The defendant, Curtis Flowers, was convicted six times (not a typo) for murders that occurred in 1996. His current claim argues that the assigned prosecutor struck all of the prospective Black jurors. Over thirty years ago, the Court ruled that jurors cannot be struck based on race. (See Batson v. Kentucky.)
Why POC should care: Studies of jury bias have often found that white jurors judge criminal defendants (and civil plaintiffs) of color more harshly than their white counterparts. This is true even when race is not an issue in the case. For POC to truly be heard in court, juries must be non-biased. Luckily, most SCOTUS watchers believe that the Court seemed deeply troubled by the events and is likely to rule in favor of Mr. Flowers.
(P.S. - - In case you doubt the significance of this case, it moved Justice Thomas to ask a question for the first time in three years, which is really saying something. (No pun intended. Okay, maybe intended a little.))
Story #3 – SCOTUS helps Trump Detain Immigrants
What Happened: This week, the Supreme Court ruled that the current administration can detain and deport legal immigrants for committing crimes – even if those crimes occurred years earlier.
Why POC should care: The orange person in the White House has made it his mission to make life as hard as possible for those not born in this country. Unfortunately, most immigrants from the U.S. come from Mexico, China, India, the Phillipines, and El Salvador. So, now that the administration has the authority to go hard after legal immigrants who commit crimes, brown folks are sure to suffer.
That’s all for this week. More to come!
Tuesday, March 19, 2019
In "Will Whites Be Stereotyped as Corrupt Because of Felicity Huffman?" in the Diverse Issues of Higher Education, Frank Wu (UC Hastings), considers the unlikelihood of racial stereotyping in the recent college admissions scandal. He notes, "A conspiracy among white Americans is not attributed to a character flaw shared within a community. The same generosity is not practiced with others who face collective blame."
Wu provides the examples of Chinese foreign nationals in doing "more or less what the Hollywood ring has admitted to doing on a vast scale:"
Unlike with Whites who have committed the same crime, the Asians are said to have done what they did because of their background. It is as if to say, well, what can you expect; that’s how those people are. Imagine if a group of African-American and Latino elders put together a systematic means to rip off respected institutions — except, oh, people regularly speculate about so-called “welfare queens.”
The other disparity this scandal confirms is in access to services from test preparation to career counseling and the social network that knows or claims to know how to game the system. The outright cheating, including taking advantage of legitimate disability accommodation rules for illegitimate benefit, cannot be condoned of course. But perhaps it is less the obvious wrongdoing than the subtle norms in the background that are the real problem.
Sunday, March 17, 2019
Professor Kenneth Nunn of the University of Florida Levin College of Law recently published an interesting and provocative article, entitled “Essentially Black”: Legal Theory and the Morality of Conscious Racial Identity, in the NEBRASKA LAW REVIEW. Professor Nunn, a self-described "Black nationalist and an African-centered scholar", responds to postmodernist and Critical Race Theory critiques of racial identity as essentialist. In particular, he challenges the notion that race-consciousness and racial identity are morally wrong, and he highlights the negative consequences of anti-essentialism for Black communities and activists.
Friday, March 8, 2019
The “Brides” of Terror: The Women of ISIS and Layered Intersectionality - Guest Post by Cyra Choudhury
Muslim women are once again making front page news for all the wrong reasons. Since the inauguration of the War on Terror, various sorts of stories about women have surfaced periodically. At first, it was the story of the woman victim who had to be rescued from her barbaric culture/religion and her violent male family members. Then, less frequently, it was the simmering worry that women were espousing radical, illiberal ideas and hiding these anti-Western sentiments under their hijabs presenting one face to the public and while hiding their true intentions. And now, we have the stories of the ISIS brides seeking to return to their homes in the West. A figure that oscillates between the first two characters–victim and threat.
A Flawed Victim
What do we make of a child who purposefully and resourcefully takes herself off across multiple borders into a war zone in order to join what is clearly one of the most reprehensible groups on Earth? After all, she is only 15 or maybe 19. She is old enough to make elaborate plans but not old enough to fully think them through. She is old enough to not be driven by impulse alone yet susceptible to the romantic allure of religious purity and devotion. Does this change after a few years when she turns 18 or because she is already 19? When can we attach responsibility?
In the United States, we are familiar with charging children as adults. We disproportionately charge children of color, black children in particular, as adults. But to assume that a Muslim girl could act in an adult capacity to join a murderous enemy of the state conflicts with cherished tropes of victimization at the hands of Muslim men. While we haven’t seen many attempts to defend these girls on the basis that they could not have acted without significant pressure from ISIS recruiters, we have seen a number of writers underscoring their age and vulnerability. In particular, some liberal analysis has been quick to point out that we might not treat other children as fully culpable. Yes, they traveled to ISIS-held territory but they were hardly on the front lines. They were hardly killing and raping. In fact, once they arrived and the honeymoon was over, they might have wanted to return. They may even have been trafficked.
The problem is that an unalloyed narrative of victimhood may explain how a young ISIS bride was lured but it does not account for the fair amount of willpower it takes to travel from the UK or the US to a war zone. Moreover, once in situ, such a narrative puts her on par with the women who were held as sex slaves, held in captivity, killed resisting.
A Reluctant Threat?
An emerging narrative complicates the picture by suggesting that an ISIS bride may be a real threat. Yazidi women have been quick to point out that these women and girls recruited as brides became “mistresses” overseeing the servitude of captives. They are not “innocent.” Perhaps we can consider them as analogous to the slave-owning white woman. Constrained by structural patriarchy, subordinate to and/or fearful of the men surrounding her, and/or participating actively in upholding the hierarchies of power and domination over other men and women. In this role, the ISIS bride is seen by her female victims as having more in common with ISIS men. Sisterhood doesn’t stretch across torture and slavery.
We are told to be wary of their return. Not to take their tales of suffering and disenchantment at face value. To remember that they actively joined and then carried out the program of ISIS against other women, true victims. (And, of course, one can understand the desire on the part of former sex slaves to see all those connected with ISIS punished.)
Liberal experts, particularly those emerging in the Women, Peace, and Security field, argue that while these women may be a threat, they also have valuable information that the state can use to continue to wage the War on Terror. That these women aren’t the cringing victims that the early WoT narrative had advanced. Rather women are increasingly becoming active terrorists both in places like Syria and Iraq as well as in San Bernardino, California. ISIS women are, therefore, neither innocent victims in need of saving, nor the kind of threat that ISIS fighters are but a vital source of information that might advance our security agenda.
There are others with similar reductive stories which obscure more than they elucidate. And here we might consider extending the theory of intersectionality in a new direction.
ISIS Child Brides And Intersectionality Extended
Intersectionality, as theorized by Kimberlé Crenshaw, has been used to help us think about how multiple identities can lead to subordination greater than the sum of its parts. Much has been written about the theory and increasingly, it has become unmoored from the legal literature that Crenshaw analyzed and used to describe social and legal subordination.
But intersectional thinking can also help us grapple with the difficulty of multiple roles that sometimes appear paradoxical as they inhere in one person. The girls who left to join ISIS ought to be understood as being both victim and perpetrator who cannot be reduced to any one set of actions. They cannot be reduced to the child lured from home or the young adult wife who supports a jihadist husband and a rogue state. Nor is she simply the handmaid to torture or even the torturer. Just as Yazidi women are resisters, fighters, victims, survivors, so are their counterparts. This is not to suggest that women who joined ISIS ought to be viewed as equal to victims; rather, it is to argue against reductive assumptions and constructions.
Complexity should not be glossed over. And the contexts in which these girls-now-women acted should not be forgotten. First, no one who joins ISIS from the West was raised in isolation. These women, like their male counterparts, were raised in a milieu of suspicion and surveillance in the height of the War on Terror. Their identities are shaped by and through their resistance to the prescriptive identity foisted upon them by a state desperate for a visible risk group, a discernible population that Countering Violent Extremism or Prevent could target. This is not to say that counterterrorism or the War on Terror radicalized them but societal conditions must be taken into account. Families must also be taken into account. The experience of peers and the experiences of acceptance and rejection in school and bullying must be considered. The ongoing barrage of Islamophobia through media and state policy as well through both casual and more intentional discrimination must be factored into the alienation of these girls. None of these factors are dispositive on their own even if counter-radicalization efforts do not acknowledge this fact.
While we often go out of our way to understand white mass murderers who commit horrific acts of domestic terrorism, humanizing them, we are unable to hold the complexities of people of color–particularly women–in our mind. We may understand intersectionality as a meeting place, a junction of axes of subordinated identities but can we also understand it as the coexistence of subordinated and dominant identities. An interpretation that stretches the concept then makes it available to many more people not just people of color. Intersectionality is a term that invokes spatiality, movement, traffic. In keeping with this idea, complex dominant and subordinated identities can be viewed as axes layered on each other like pick-up sticks and fly-overs, a knot. In a state-run by ISIS, we can see how some of these women may have been subordinate, perhaps fearful of the consequences of disobedience, self-subordinating, and the wielders of both their own and reflected power. Layered intersectionality allows us to imagine a much thicker relationship among multiple identities without requiring one to dominate over the other. Moreover, rather than being an entirely horizontal concept, it allows movement along more than one dimension including verticality.
Convenient and simple stories of how these women were lured, victims of Islamophobia looking for a place to fit in, products of Western imperialism, crushed by their barbaric families and religion, evil perpetrators of war crimes or at least enthusiastic supporters of the ISIS state may comfort some, but they are in the long run unhelpful in preventing the loss of young people to radicalism. And they flatten out the reality of these lives making them more vulnerable to criminalization justified through opportunistic national security narratives that sublimate structural Islamophobia.
Furthermore, men who have left to join ISIS have all been repatriated. This gender discrimination is unacceptable. It harkens back to the days when women’s citizenship followed that of her husband. A woman in the United States who married a foreigner would lose her citizenship, a fate no male suffered. This suggested that women experience an intersectional discrimination along both gender and religious lines which, for some reason, makes them more threatening than their male counterparts.
Returning Home: Beyond the Law
Indeed, national security has already become a preeminent concern with regard to the return of these women. In the UK and in the US, state officials have suggested that they be sent back to their country of origin by which it is meant the country from which their parents emigrated. This could only be possible if these women held dual citizenship of there was some legal basis on which to deprive them of their citizenship. Both Shamima Begum form the UK and Hoda Muthana from the U.S. were born in the country from which they hold citizenship. Shamima Begum, one of the UK brides, has been rejected as a Bangladeshi citizen because at no point was she a dual national. Both the UK Home Secretary and the US Secretary of State wish to render these women stateless contravening international law.
A number of scholars have already weighed in on the legal aspects of the attempts to strip ISIS brides of citizenship. The law, for the moment, does not allow the US executive branch to render Hoda Muthana stateless and, furthermore, citizenship stripping would have some consequences for her child. Yet, there is also a moral argument to be made on the basis of the fact that this woman was born, raised, and radicalized in the US. We are not absolved from our part in creating her and must now bear the consequences by allowing her to return. None of this means that she should be allowed to escape the consequences of her actions. But what it ought to mean is that we consider her on equal terms as the white supremacist or the confederate soldier. And as no worse than the number of males who have taken up arms against their cohorts in schools, movie theaters, and malls. If we can see humanity and conflict in these children and young adults, we should be able to extend that in fairness to people like Muthana and Begum.
To deprive Muthana and Begum of citizenship would solve our problem about what to do about these “traitors.” It would allow the state to side-step any process of establishing Muthana or Begum as a threat. But at the same time, it would send yet another message that people of color, those born of immigrant parents, regardless of whether born here or naturalized are second or third class citizens who cannot rely on the state to secure their legal rights. It would demonstrate in stark terms that the only way that anyone can truly be secure is to never make a mistake, never break the law and even then, as we know from the death of countless African Americans, it may not be enough.
We should remember that there have been other countries who have sought to deprive people of their citizenship stripping them down to one identity marker: Nazi Germany and Myanmar come to mind. This is not company that a the world’s oldest liberal democracy with a self-professed commitment to human rights should seek to keep.
Wednesday, March 6, 2019
Recently, Forbes published a news report entitled, "Chief Diversity Officers Are Set Up to Fail." The article draws on a survey of a group of Fortune 500 Chief Diversity Officers that asked them what they need to succeed. The article points to CDOs stating that they do not having enough experience, data, or power to accomplish their role. In particular the article reported that, "All of the leaders surveyed reported that diversity and inclusion came in last on a list of eight potential business priorities for their companies."
And interestingly, as to higher education in particular, The Chronicle of Higher Education reported on a study from September 2018 about University Chief Diversity Officers hired to increase faculty diversity. The claim there was that CDOs likely had no significant impact on the diversification of representation in higher education. The question remains for corporate and educational institutions that claim to want it: why is diversity still such a low priority?
This problem is nothing new. The disconnect between institutional priorities and achieving diversity (whatever that means, as it can mean many things to different people) seems to be indicative of our current broken attitudes towards diversity and inclusion. This brokenness can result in diversity-as-tolerance (as I've discussed before), which cravenly takes advantage of being seen as diverse merely to increase profits or enrollments (to the extent that, as Nancy Leong has pointed out, such institutions are willing to fake diversity) without there being an authentic commitment to inclusion and transformation of institutional culture.
The law appears particularly vulnerable to this problem. We can point to examples of the perception of a lack of commitment to diverse representation in law schools, law firms, and law practice generally. All of which are microcosms of the society’s shallow practices about diversity and inclusion. And this is ironic given the legal profession's mission to protect vulnerable minorities.
Maybe "diversity" as idea is in the midst of an existential crisis. Despite good intentions diversity may appear meaningless and amorphous. Or maybe all of this reflects society’s comfort with the patterns of white supremacy, and thus the lip service to diversity is simply a cover for preserving the status quo. And maybe—a thought I would never have uttered four years ago—some people in power actually want the rising tide of renewed white heteronormative patriarchal supremacy to take us to a time when America was "great," and authentic diversity based on equality is treated as poison.
The existential crisis that diversity faces doesn't excuse ending the search for it. Authentic diversity is an essential predicate for American institutions, whether for-profit or nonprofit, private or public, that strive to represent all of the people. These recent thoughts about Chief Diversity Officers would suggest some basic starting places for authentic institutional diversity—finding a working definition of diversity, making that definition as part of the institutional vision, and most importantly achieving that vision by making diversity a real, measurable priority.
The priority at the bottom of the list rarely gets achieved.
Monday, March 4, 2019
In the forthcoming article, "Uncompromising Hunger for Justice: Resistance, Sacrifice, and LatCrit Theory," Edwin Lindo (Washington), Brenda Williams (Washington), and Marc-Tizoc González (St. Thomas) report on and theorize a nonviolent direct-action campaign of the kind discussed by Dr. King in his famous Letter from a Birmingham Jail:
Using the basic steps of the nonviolent campaign as an organizing framework, they analyze and report on the 18-day hunger strike by the Frisco 5 (a.k.a., Frisco5). This direct action protested the extrajudicial killings of Amilcar Perez-Lopez, Alex Nieto, Luis Góngora-Pat, and Mario Woods by San Francisco Police Department (SFPD) officers and advocated for institutional change to reduce the risk of homicides against persons with similarly racialized minority-group identities. Two weeks after the Frisco 5’s 18-day hunger strike ended, San Francisco Mayor Ed Lee called for the resignation of SFPD Chief Greg Suhr. Before firing Chief Suhr, however, Mayor Ed Lee sought to subdue the pressure he felt as the result of the hunger strike by making a shallow peace offering of $17.5 million dollars towards police reform and violence prevention.
First, Brenda Williams uses personal narrative to introduce and overview the Frisco 5 hunger strike, contrasting this direct action with how legal education often accedes to the racial inequities endemic to the criminal justice system of the United States. She asks, where does the hunger strike, as a tool for justice, fit into legal discourse? How does the hunger strike resist dominant legal paradigms that constrain a lawyer’s justice work to the courtroom rather than promote justice work by lawyers in collaboration with community members in the streets of the Mission District in San Francisco? Next, Edwin Lindo reports and reflects on his experience participating in the hunger strike as one of the Frisco 5. Also, he charts a partial history of hunger strikes and their legal significance. Finally, Marc-Tizoc González theorizes the Frisco 5 hunger strike within critical race theory (CRT) and Latina and Latino Critical Legal theory (LatCrit theory). He applies critical concepts and practices like counterstorytelling and testimonio, evokes the critical ethnic legal history de la comunidad Latina/o/x (of the Latina/o/x community), and briefly discusses the political and religious significance of people’s public uses of food under First Amendment freedoms (i.e., free exercise of religion, free speech, petition of government for redress, and peaceable assembly). He concludes by asserting that the Frisco 5 acted within a genealogy of struggle—a fictive kinship of people who have fasted individually and collectively, inside and outside of prison, to protest injustice and to advocate for institutional reform, within historically contingent socio-legal relations of power.
The full article, forthcoming in the Seattle Journal for Social Justice, is post on SSRN.
Saturday, February 23, 2019
Dreams From My Father, Dreams From My Mother: Tracing the Multiple Identities of Barack Obama and Kamala Harris
Last month, California Senator Kamala Harris confirmed much speculation and announced her candidacy for the Democratic nomination for President in 2020. Senator Harris has been a rising star for some time now. A decade ago, the late journalist Gwen Ifill said of Harris, “they call her the female Barack Obama.” Such comparisons are always oversimplified, as critics have noted. Nevertheless, one set of experiences that President Obama and Senator Harris have in common is that they have both lived and embraced multiple racial, cultural, and national identities. 
Obama was raised mainly in Hawaii, the son of a White mother, Ann Dunham, and a Kenyan father, Barack Obama, Sr. During his childhood, he also lived in Indonesia, and he later attended Occidental College, Columbia University, and Harvard Law School. Obama’s father, who died in a 1982 car accident, was rarely present during his childhood: Obama last saw him at the age of 10. During his adult life, Chicago, Illinois became Obama’s home. Obama’s autobiographical memoir, Dreams From My Father, recounts his search for identity as he navigated different worlds. He has described his family as a “mini-United Nations.”
While he is known primarily as the first Black president, Obama has framed his own identity in a variety of ways. At times, he emphasized this to connect with African Americans and bring light to salient issues in Black communities. For example, in response to Trayon Martin’s killing, Obama humanized young Black males by noting that “[i]f I had a son, he'd look like Trayvon.” Conversely however, his comments critiquing young Black men play right into the narrative of respectability politics.
In other settings, when seeking to relate to White audiences, Obama has also spoken of his White grandmother. This occurred most notably in his speech, “A More Perfect Union.” Obama has referred to himself as a “mutt” to highlight his biracial identity. When he visited Kenya in 2015, Obama noted that he was “the first Kenyan-American to be president of the United States.” And when he spoke in Northern Ireland in 2013, he jokingly referred to himself as “O’Bama,” bringing to light his Irish roots. Although it certainly did not stop him from facing racial animus, Obama was adept at framing his own racial identity in various ways, depending on the circumstances.
Harris was born in Oakland, California—for many years the hub of activism for the Black Panther Party and other organizations. Her mother, the late Shyamala Gopalan Harris, was from Tamil Nadu, India. Her father Donald Harris, immigrated from Jamaica. Both were civil rights activists in the 1960s. Kamala Harris lived first in Berkeley, California, and after her parents divorced, she moved with her mother and sister Maya  to Montreal, Canada, where she attended high school. Growing up, Harris attended both a Hindu temple and a Black Baptist church. She recounts her childhood visits to Tamil Nadu, and her father notes that before their parents’ divorce, Kamala and Maya visited Jamaica frequently and experienced their Jamaican heritage. Harris’ college-age experiences exemplified her identity as a Black women: she attended Howard University and became a member of Alpha Kappa Alpha Sorority, Inc., before attending UC Hastings College of Law.
When she took office in 2017, Kamala Harris was touted as the first South Asian American Senator, the second Black woman Senator, and the first Jamaican American Senator. Different outlets highlighted each of these identities, and Harris’ connection to Canada has also garnered interest. During the upcoming presidential nomination season, observers will carefully scrutinize Kamala Harris’ presentation of her various identities. She has had to deal with critics who have questioned her “Blackness.” Also, Harris recently drew the ire of her own father when she was asked if she had smoked marijuana in the past and responded jokingly: “Half my family’s from Jamaica. Are you kidding me?” 
What I find to be most interesting about Kamala Harris’ racial identity is the influence of her mother, Shyamala Gopalan Harris . In her memoir, The Truths We Hold, Senator Harris notes on page 10 that: "My mother … instilled us with pride in our South Asian roots … [o]ur classic Indian names harked back to our heritage, and we were raised with a strong awareness of and appreciation for Indian culture [.]"
On the same page, she avows that: "My mother understood very well that she was raising two black daughters … [s]he knew that her adopted homeland would see Maya and me as black girls, and she was determined to make sure we would grow into confident, proud black women."
Inheriting these “dreams from her mother,” Kamala Harris seemed to grow up with a level of comfort in her multiple worlds. By crediting her mother for both her South Asian pride and strong Black identity, Harris’ story, perhaps even more than Obama’s, illustrates the full potential of cross-racial understanding. Shyamala Gopalan Harris raised her children not only to appreciate her Tamil heritage; according to her daughter, she also came to learn and identify with the struggles of another group closely enough to teach Kamala and her sister to navigate the world successfully as Black women. This is the type of awareness that we should all strive for.
Over the next year or so, we will see how effectively Harris can translate her multifaceted identity into a politically effective persona. Critics of identity politics abound in the American political landscape, and Harris will probably face challenges akin to the birtherism that constantly surrounded Obama. Nevertheless, diverse experiences also breed resilience. Watching Kamala Harris over the next year may provide many lessons not only on racial identity politics, but also on success and progress in an increasingly diverse America.
 Both Obama and Harris remind me of “double-consciousness”—that “sense of always looking at one’s self through the eyes of others … two souls, two thoughts, two unreconciled strivings; two warring ideals … [.]” Renowned African American scholar W.E.B. Du Bois developed this idea, first in an 1897 Atlantic Monthly essay entitled “Strivings of Negro People” and then in his 1903 classic, The Souls of Black Folk. Today is W.E.B. Du Bois’ 151st birthday.
 Barack Obama also has a sister named Maya.
 During the 2008 Democratic primary campaign, Barack Obama also made a joke that referenced racial stereotypes. When asked if Bill Clinton was the first Black President, Obama quipped that he would “have to investigate … Bill’s dancing abilities.” Obama did not seem to face any criticism in response.
 Sunil Adam also examines Kamala Harris’ mother’s influence in a recent India Abroad article entitled “Dreams from her mother.”
Friday, February 22, 2019
This post comes from Professor Caroline Mala Corbin, University of Miami School of Law.
Asked whether the United States is a Christian nation, about half of Americans surveyed answer yes. The conclusion that America is a Christian nation is not descriptive but aspirational: over half of Americans believe that being Christian is either “very” or “somewhat” important to being a good American.
Throughout the United States, many sessions of local government start with “legislative prayers.” That is, in addition to a call to order, or a recitation of the national pledge, local political gatherings from state legislatures to town commissions to school boards begin their meetings with a prayer to God. With some frequency, these prayers have been overwhelmingly or exclusively Christian.
The proliferation of Christian legislative prayers at local governments around the country both reflects and strengthens Christian nationalism. Christian nationalism posits that the United States has always been, and should always remain, a Christian nation in both its culture and government. If a true America is Christian, it follows that true Americans are Christian. The corollary is that non-Christians are not real Americans. In short, Christian nationalism necessarily implies a hierarchy based on religion, with religious insiders who truly belong and religious outsiders who do not.
Notably, this hierarchy is not solely a religious one. Christian nationalism has a racial dimension to it, so that the mythical Christian America pictured is actually a white Christian America. As one historian noted, “Christian nationalism has always been connected with whiteness. It has always been about [the idea of] America’s founding by white Christians.” That is, “Christian nationalism contains a distinct ethno-racial component and suggests that white Christian nationalists desire to either ‘protect’ or ‘restore’ America’s ‘Christian heritage’ is laced with an implicit desire to maintain white supremacy and white racial purity.” Not surprisingly, the vast majority of Christian nationalists are white.
Studies show that Americans who strongly identify with Christian nationalism have more hostile attitudes towards outgroups, religious and otherwise. In other words, Christian nationalists are not only more antagonistic to non-Christians, they are more antagonistic to outgroups such as LGBT couples, racial minorities, and immigrants. For example, Christian nationalism is correlated with unwillingness to have one’s daughter marry someone who is non-white. This hostility paves the way for hostile public policy, whether it be allowing discrimination against non-Christians by foster care agencies or implementing a Muslim ban. Consequently, Christian nationalism does not simply lead to symbolic exclusion from the community and nation, it may lead to actual exclusion.
The Supreme Court has rejected an Establishment Clause challenges to Christian legislative prayers. This is a mistake. Even if not specifically motivated by Christian nationalism, Christian legislative prayers nonetheless advance a Christian nationalist agenda. Consequently, government prayers that are mostly or entirely Christian violate the Establishment Clause and should be automatically unconstitutional, full stop. After all, one of the goals of the Establishment Clause is to stave off developments like Christian nationalism and its religious (and racial) hierarchies.
For more, please check out my essay: Christian Legislative Prayers and Christian Nationalism, Comments welcome!
University of Minnesota—The American Mosaic Project, Boundaries in the American Mosaic: Preliminary Findings Report 8 (2014), https://cla.umn.edu/sociology/graduate/collaboration-opportunities/american-mosaic-project-amp.
 Penny Edgell, An Agenda for Research on American Religion in Light of the 2016 Election, 78 Soc. of Relig.: Q. Rev. 1, 6 (2017).
 Rhys Williams, Civil Religion and the Cultural Politics of National Identity in Obama’s America, 52 J. for the Sci. Stud. of Relig. 239, 243 (2013) (“[T]here has long been a sub rosa association that made ‘white Christian American’ as the baseline, default cultural understanding of this nation.”).
 Tara Isabella Burton, What One Pastor’s anti-Nike protest Says about Religion and Nationalism in America, Vox (quoting historian Joe Fea).
 Samuel L. Perry & Andrew L. Whitehead, Christian Nationalism and White Racial Boundaries: Examines Whites’ Opposition to Interracial Marriage, 38 Ethnic & Racial Stud. 1671, 1685 (2015).
 Id. at 1685.
 Andrew L. Whitehead & Samuel L. Perry, A More Perfect Union? Christian Nationalism and Support for Same-sex Unions, 58 Soc. Persp. 422, 423 (2015).
 Perry & Whitehead, supra note 5, at 1683.
 Eric Leon McDaniel, Irfan Nooruddin, & Allyson Faith Shortle, Divine Boundaries: How Religion Shapes Citizens Attitudes Towards Immigrants, 39 Am. Pol. Res. 205, 205 (2011).
 Perry & Whitehead, supra note 5, at 1683.
 Tim Fitzsimons & AP, S.C. Group Can Reject Gays and Jews as Foster Parents, Trump Admin Says, NBCNews.com (Jan. 24, 2019, 12:00 PM), https://www.nbcnews.com/feature/nbc-out/s-c-group-can-reject-gays-jews-foster-parents-trump-n962306.
Wednesday, February 20, 2019
At the 2019 AALS Conference, I had the pleasure of participating in a Discussion Group entitled
The tendency of some to sit back and let others do the work when working in groups such as committees has a name: “social loafing.” Often called the “free-rider” problem, social loafing can lead to inequitable workloads, and, according to social cognition theorists, unchecked social loafing can have a spillover effect on those who do carry their fair share of the workload, as well as on those who traditionally pick up the slack for the loafers. We suspect that social loafing is a well-recognized, if unnamed, phenomenon at many law schools. This phenomenon is particularly vexing because it has tangible career consequences.
While the institution benefits from both committee workers and productive scholars, financial, institutional, and career rewards rest largely on scholarly productivity. Socially responsible faculty members who fully engage in committee work help sustain a robust system of faculty governance. However, they do so at the expense of time available for their own scholarly pursuits. By ensuring the work gets done, they also provide some colleagues the freedom to disengage and focus on individual career enhancing scholarly endeavors with no penalty and potentially significant individual rewards. This can create significant institutional inequities."
To read the full article, click here.
Wednesday, February 13, 2019
Secretary Betsy DeVos and the Trump administration’s Department of Education (ED) have turned “due process” into a dog whistle. While these officials are loudly spinning their recent Notice of Proposed Rulemaking (NPRM) on Title IX as increasing students’ “due process” rights, they are quietly dismantling real due process for students of color, especially Black students, having rescinded the Obama-era guidance that sought to reduce discriminatory discipline in school late on the Friday before the Christmas holiday, with a government shutdown pending.
As I detail in my forthcoming piece in Wake Forest Law Review’s symposium issue on “The Trump Administration and the War on Diversity,” this dog whistle is correctly understood by DeVos’s allies among “Men’s Rights” and other groups with similar agendas as a way to silence sexual harassment and assault victims but looks to those outside her inside circle as a laudable effort to increase fair treatment. This ploy counts on most of the general public failing to notice that ED has long signaled plans to eliminate these due process protections, despite wide acknowledgement of discriminatory discipline’s involvement in the harmful “school to prison pipeline.” Thus, only those in the administration’s inner circle understand what ED is really promising: that ED will give special rights to named sexual harassers and assailants, as their Notice of Proposed Rulemaking on Title IX (NPRM) in fact does.
We can see ED’s dog-whistling in DeVos’s statements about Title IX, where she has repeatedly used “due process” to suggest that Title IX treats students unfairly, a bizarre claim about a civil rights law. In a speech announcing her intention to issue this NPRM, she discussed “due process” ten times, but never once mentioned “equality,” and the only “discrimination” she denounced was so-called reverse discrimination against accused harassers (a claim repeatedly rejected by courts). Likewise, in a recent op-ed, her only reference to equality was in praising herself for restoring “equal” appeal rights in the NPRM—while failing to mention that DeVos herself rescinded this right in her 2017 Title IX guidance and that her current NPRM actually allows only those found responsible for harassment—but not the person they abused—the right to appeal the disciplinary sanctions, which is simply not “equal”.
ED’s due process dog whistle tries to obscure the ugly truth that this NPRM actually demolishes the fair process Title IX has historically guaranteed, by inappropriately criminalizing a civil rights statute. No clearer showing of such criminalization can be found than DeVos’s recent claims, like a host of similar ones regarding Brett Kavanaugh, that students accused of sexual harassment should be given a “presumption of innocence,” a synonym for a criminal standard of proof. Just as the presumption of innocence is the wrong standard for a job interview or conduct at work, it is also the wrong standard for conduct in school, especially when schools cannot imprison wrongdoers as criminal courts can.
Research shows that dog whistle politics has been used quite effectively to divide Americans along racial lines, but there is hope that it will not work this time. Research shows that the American public very clearly expressed to ED its overwhelming support for Title IX and the balance ED had struck between the rights of victims and reported harassers in previous administrations, regardless of the party in power. This support was expressed before #MeToo and reactions to the multiple allegations leveled against Brett Kavanaugh exposed the depth and breadth of our nation’s sexual abuse problems, including for men and boys, who are far more likely to be victims of sexual assault than to be falsely accused of it. Midway through the NPRM’s comment period, a flood similar to #MeToo was already occurring.
Before the NPRM’s 60-day comment period ends on January 30, 2019, every member of the public—those whose research is connected to inequality, civil and human rights, especially—who care about safety and equality in our schools should file a comment refusing to allow “due process” dog whistles to divide us.
-- Professor Nancy Chi Cantalupo, Barry University School of Law
Wednesday, February 6, 2019
In recent years, the term “implicit bias” has entered public discussions in a number of arenas. In criminal justice circles, the concept enjoys growing recognition as a way of explaining conduct and decision making in the justice system. From police and prosecutors to judges, juries, and other actors in the system, implicit biases impact all areas of government and society. In the 2016 Presidential Debate, Hillary Clinton invoked this concept to help account for police killing of minority suspects, explaining that police may sometimes act in ways that are motivated by unseen forces. Despite the popularity and growing acceptance of this concept, less is known about what implicit bias teaches implicitly, including about the depths of oppression in society.
The main idea of implicit bias is that people harbor certain, often negative, attitudes or stereotypes about others, which can influence behavior. All people harbor biases, albeit in different degrees. The implicit aspect refers to the notion that some attitudes are not consciously held by an individual, but instead arise through subconscious impulses that result from conditioning. The conditioning can be so forceful that an individual with self-professed allegiances to racial equality might be swayed to act in contrast to these ideals. In Clinton’s 2016 presidential campaign, implicit bias was undoubtedly an ingredient that may have cost her the election. Of course, some denounced her womanhood explicitly, but even among 2016 voters who fancied themselves as egalitarian, she lost votes simply because she is a woman. Some in the country believed deep down that only a man can lead the country, and for these people, neither Clinton nor any other woman could have ever measured up to the task.
Implicit bias manifests in multiple forms. In policing, for example, conditioning to the notion that blacks are prone to crime and violence may ultimately play a role in determining whom police stop, question, arrest, or charge with a crime. The process is riddled with discretionary decision making on behalf of police and prosecutors, which provide all sorts of spaces for discrimination to dwell. Understanding implicit bias in this context helps to illustrate how a system—guided by ideals of procedural justice—could be so skewed against certain segments of society. Implicit bias teaches that even if the vast majority of police might consciously disavow racism, their behavior may be influenced in ways that betray their own understanding.
Implicit bias derives from deeply engrained ideas. At the individual level, this may not seem like much to bother about, but when the individuals aggregate, it can manifest as systematic oppression. In the police setting, the point is evident: there are police with explicit racist attitudes, who also hold implicit biases, as do the rest of the officers on the force. Taken wholly, the skewing amounts to more than merely individual conduct, but practically produces two systems of justice: one for whites and one for others. A quick glance at drug offences shows some of the contradiction; despite that racial groups use illegal drugs in close proportion to their size of the population, indigent ethnic minorities bear the brunt of prosecution and punishment. Some of these outcomes are driven by police who are guided by their own implicit biases.
Students of implicit bias theory recognize it as more than merely a conceptual counterpart of explicit bias. After all, a central premise of implicit bias is that individuals are conditioned to certain beliefs and attitudes. Implicit bias is not created ex ni hilo, but instead embodies the tacit expression of preexisting impressions. That is, the stereotypical thinking is already there for the taking. Understood this way, the notion of implicit bias appears as a tempered way of explaining why otherwise good people behave in despicable ways. It acts to excuse culpability by asserting the subconscious mind’s influence on a person’s behavior.
The point to emphasize here is not whether implicit bias strikes a more conciliatory tone or provides a pass for discriminatory behavior. Rather, it’s the fact of implicit bias that’s telling. This phenomenon asserts that individuals are inundated with explicit, indelible impressions, reiterated and reinforced, which ultimately and unwittingly taint the consciousness. Implicit biases build from this baseline of oppression, the cache of explicit representations that have been individually internalized. How millions of children across the country are impressed by the television “reality” show, COPS, illustrates the possibilities. Even though the episodes empirically feature a disproportionate number of minority suspects, the syndicated airings of black and brown bodies being scuffled, pummeled, and cuffed, embeds a particular message. At minimum, the images emblazon the psyche with the notion that blacks are suspects and whites are white knights and upholders of the law.
Such explicit biases influence society at all levels of being. The messaging in a show like COPS not only conditions whites to harbor certain beliefs about crime and punishment, but also leaves deep impressions on minorities too. Viewers internalize the episodes to their own detriment and absorb skewed ideas about color and criminality. What’s implicit about implicit bias, then, is that the concept depends on impressions wrought by a world of discrimination. Accounting these realities reveals the problem of invidious discrimination to be far more ominous than the sum of all implicit discrimination. Rather, these biases owe their very existence to greater oppressive forces. This unseen baseline of implicit bias provides a fuller account of modern discrimination. More critically, the influence of implicit bias in other areas like employment, education, health care, and housing, give a sense of the systemic nature of the problem.
-- Professor SpearIt, Professor of Law, Thurgood Marshall School of Law
Friday, January 25, 2019
Changing economic and social dynamics have tilted the racial, ethnic, and gender composition of law students nationwide to greater diversity. While law faculties are inching toward more racial and gender diversity, they still are not at rates representative of the law student population and disappointingly far from the diversity of the communities in which law schools are situated. In 2009, AALS estimated that 32% of law professors are women and 28% are racial and ethnic minorities.
Earlier this month at the AALS Annual Meeting in NOLA, Sahar Aziz (Rutgers) and SpearIt (Thurgood Marshall) organized a panel on Critical Pedagogy in the Era of Diversity in which I joined co-panelists Meera Deo (Thomas Jefferson), Teri McMurtry-Chubb (Mercer), and Mae Quinn (Florida). The panel looked at ways to respond to demographic shifts and re-configurations of classroom norms. We discussed ways to incorporate more inclusive teaching strategies, improve student engagement, address identity issues within the curriculum and classroom, prepare students to practice in a diverse society, and the role of experiential learning and academic support. As the spring semester is back in swing, it would be helpful to revisit the approaches we deployed in the classroom.
Meera Deo shared findings from her recent book, Unequal Profession: Race and Gender in Legal Academia (Stanford University Press) on "how the race and gender of individual legal academics affects not only their individual and collective experience, but also legal education as a whole." Deo conducted the first comprehensive study of the law faculty experience as to "how race and gender intersect to create profound implications for women of color law faculty members, presenting unique challenges as well as opportunities to improve educational and professional outcomes in legal education." The book provides the viewpoints of woman of color in the legal academy and offers suggestions to better achieve diversity through the process of hiring, teaching, colleague interaction, and tenure and promotion.
Georgetown's Madhavi Sunder notes of Deo's book:
Women make up the majority of law students in the U.S., but comprise less than 40 percent of law faculties; women of color are a mere 7 percent of law teachers. In short, women of color legal scholars are pioneers, paving an uncharted path. Unequal Profession, based on nearly 100 personal interviews with these pioneers, offers an intimate portrait of the struggle of highly accomplished and educated women to find equal respect and opportunity in the hallowed halls of American law schools. In a profession built on the ideals of equal opportunity for all, these women's truths must be confronted: the barriers to equality in the legal academy are legion.
Next, Teri McMurtry-Chubb shared a portion of the findings from her empirical research project that considers the link between the unexamined assumptions students bring with them to law school about race, class, gender, and sexuality/sexual identity, and the flawed legal arguments students make based on these assumptions. Through an empirical study of student motion and appellate briefs on social justice topics submitted in a required legal writing course, Teri’s work reveals how legal education both prepares and fails to prepare students to represent diverse client groups in a manner that helps rather than harms.
During her presentation, Teri walked us through one of the fictional legal universes she created in which students drafted their motion and appellate briefs. Her research findings showed that a student’s ability to make effective, persuasive arguments for the parties to the fictional cause of action was directly related to their assumptions about the race, class, gender, and sexuality/sexual identity of the parties. In the last part of her presentation, Teri provided key critical pedagogies, many from her text Legal Writing in the Disciplines: A Guide to Legal Writing Mastery (Carolina Academic Press 2012) to disrupt student assumptions and help them to course correct in the final drafts of their writing assignments. Teri’s research will appear in the Washburn Law Journal in 2019.
Then Mae Quinn examined the topic of "Andragogy of 'Silence is Violence (or Hell You Talmbout?...)," using Janelle Monae's #BlackLivesMatter anthem as a point of departure to demonstrate the dire need to shift focus and priorities of legal education. She shared examples of "What the Hell," "How the Hell," and "Where the Hell" she talks about racial (in)justice as a criminal law professor. She further noted that disruptive teaching can/should extend beyond the classroom to every part of our work and world - from the spaces we create in our offices, to the ways we can affirmatively serve the community with teaching projects, to how we approach our scholarship - including by co-authoring with and citing students (particularly of color). She also explored issues surrounding privilege/positionality, relating to her whiteness, womanhood, and non-elite background -- and the ways those identities and experiences may provide some protection, platform, and/or challenges while challenging the status quo through teaching.
Finally, I discussed the importance of community-based learning in the context of courses I teach on environmental law and business law. I have organized a field visit to the Sanford City Center in Florida to demonstrate the origins of the BLM movement following the shooting death of Trayvon Martin. We participated in a walking tour of the historic district from the Sanford Civic Center, which held town hall meetings, to City Hall and the Marina. We met with the local planning director and planning engineer to discuss changes to the city and growth management problems in light of environmental justice concerns based on civil rights issues and environmental law matters. My students also orchestrated a series of webinars and programs on the topic of environmental justice and hurricanes, sponsored by the ABA's Section on Civil Rights and Environmental Justice. For a policy angle, we examined the companion bills introduced by Sen. Cory Booker and Rep. Raul Ruiz regarding the Environmental Justice Act of 2017. The legislation would be the first major piece of environmental law since the flurry of laws in the 1970s and the amendments in 1990s. Due to corporate interests, no major environmental laws have been passed in almost 50 years. Minority, low-income, and indigenous communities bear the brunt of environmental harm and pollution based on the siting of energy projects, hazardous waste sites, industrial and commercial activity.
* Image of destruction from Hurricane Maria (Getty).
We welcome you to share your experiences and insights in critical pedagogy in the comments below.
- Nadia B. Ahmad, Energy for Metropolis, 73 U. Miami L. Rev. 258 (2018).
- Nadia B. Ahmad, Mask Off: The Coloniality of Environmental Justice, 24 Widner L. Rev. (forthcoming 2019).
- Meera E. Deo, Intersectional Barriers to Tenure, U.C. Davis L. Rev.(forthcoming 2018).
- Meera E. Deo, Trajectory of a Law Professor, 20 J. Race & L.441 (2015).
- Meera E. Deo, A Better Tenure Battle: Fighting Bias in Teaching Evaluations, 31 J. Gender & L.7 (2015).
- Meera E. Deo, Faculty Insights on Educational Diversity, 83 Fordham L. Rev.3115 (2015).
- Meera E. Deo, The Ugly Truth About Legal Academia, 80 L. Rev.943 (2015).
- Meera E. Deo, Looking Forward to Diversity in Legal Academia, 29 Berkeley J. Gender L. & Just.352 (2014).
- Meera E. Deo, Empirically Derived Compelling State Interests in Affirmative Action Jurisprudence, 65 Hastings L.J. 661(2014).
- Meera E. Deo, Two Sides of a Coin: Safe Space & Segregation in Race/Ethnic-Specific Law Student Organizations, 42 U. J.L. & Pol'y83 (2013).
- Teri McMurtry-Chubb, On Writing Wrongs: Legal Writing Professors of Color and the Curious Case of 405(c), 66 J. Legal Educ. 575 (2018).
- Teri McMurtry-Chub, Toward A Disciplinary Pedagogy for Legal Education, 1 Savannah L. Rev.71 (2014).
- Teri McMurtry-Chub, Writing at the Master’s Table: Reflections on Theft, Criminality and Otherness in the Legal Writing Profession, 2 Drexel L. Rev. 41 (2009).
- Mae Quinn, Against Professing: Practicing Critical Criminal Procedure, 60 St. Louis U.L.J. 515 (2015).
- Mae Quinn, Chaining Kids to the Ever-Turning Wheel: Other Contemporary Costs of Juvenile Court Involvement, 73 Wash. & Lee L. Rev. Online 160 (2016) (with former student Candace Johnson).
- Mae Quinn, Missouri *@!!?@! – Too Slow, 62 St. Louis U.L.J. (forthcoming 2018).
Wednesday, January 2, 2019
A Rutgers Law School colleague, Professor Eugene Mazo, recently gave an informative presentation about the latest scholarship on law student learning as part of a faculty pedagogy workshop. The handout he distributed was both illuminating and validating for many of us who teach students that recently completed their undergraduate degrees.
Some key takeaways from Professor Mazo's presentation are below. His literature review can be downloaded at Teaching Workshop Literature Review.
Jennifer Cooper, Smarter Law Learning: Using Cognitive Science to Maximize Law Learning, 44 Cap. U. L. Rev. 551 (2016).
Asserts that law schools are inheriting academically adrift students with weak critical thinking, problem solving, and writing skills because these students were not challenged by sufficiently rigorous reading and writing requirements in their undergraduate studies. The article reviews cognitive science research to recommend strategies to improve law student learning.
- Many students entering law school lack strong critical thinking skills for legal educators to build on. Compared to previous populations, these students often have poor and ineffective study habits, weak critical thinking and writing skills, and are less academically prepared for law study.
- “Academically adrift with illusions of competence.” These students have “illusions of competence” in their reading, writing, and study habits, leading them to rely on improvised and ineffective study strategies.
- Law schools have been slow to adapt—expecting to educate modern students with same strategies of the past even though undergraduate studies are not adequately preparing them.
- Students enter universities not only poorly prepared for the academic tasks but also with attitudes, norms, and behaviors that are counterproductive to academic commitments. Despite their lack of preparation, students arrive at colleges and universities with strong convictions about their abilities and with illusions of competence. These students have high academic expectations and professional ambitions but fail to realistically appreciate the necessary steps to achieve their goals.
- Ineffective study strategies commonly used by students are passive: re-reading, highlighting, memorizing. Problem is that repetition and re-reading (as with memorizing a course outline) create an illusion of fluency: the belief that if information is familiar and easy to recall, then it is well-learned.
- Re-reading/memorizing also creates the illusion of mastery of the underlying ideas. Fluency lulls learners into believing they learned and understood the material. “Information that is easy to process is judged to have been learned well.” This also leads students to prematurely terminate studying.
- Retrieval and self-testing destroy the illusions of fluency, competency, and mastery.
- Because students are unaware of the ineffectiveness of their selected study behaviors, they remain committed to poor study habits—they cannot gauge their own learning.
- Students therefore need direct, explicit instruction on effective learning strategies.
- Targeted instruction on learning methods leads to substantial improvement in academic performance.
Rebecca Flanagan, The Kids Aren’t Alright: Rethinking The Law Student Skills Deficit, 2015 BYU Educ. & L.J. 135 (2015).
Research suggests that incoming law students are less prepared than previous generations of law students. Undergraduate education has changed over the last forty years. Many of today’s college graduates do not have the fundamental thinking and reasoning skills necessary to master the law school curriculum. Law schools can no longer assume all students enter post-graduate legal training with the academic preparation, proficiency in critical thinking, or time management skills necessary to master “thinking like a lawyer.”
- College students spend less time studying during their undergraduate years. College students expect higher grades with considerably less effort than previous generations. However, there is little institutional evidence law schools have been aware of the empirical research on the decline in skills acquisition at the undergraduate level.
- Success in law school requires at least two hours of reading for each hour of class time. Full-time law students need to spend at least thirty hours a week preparing for class. Students who are used to studying less than five hours a week during their undergraduate years are going to be have a rougher adjustment to the thirty hours of reading time required to keep up with law school classwork, and will have an even more difficult adjustment to the outlining, practice exams, and study group work that requires an additional five to seven hours week.
- Students have a “customer orientation.” The change from student-as-learner to student-as-customer has strong negative implications for motivation and personal investment in the learning process. The consumer orientation, and corresponding extrinsic motivations, “radically alters” the fundamental nature of education. Students no longer see themselves as partners in a relationship designed to further growth; consumer orientation frames the relationship between student and teacher as customer and service provider, with the customer expecting satisfaction.
- Students who view education as an economic transaction become preoccupied with their GPA, sacrificing “deeper, critical analytic learning” in pursuit of a credential they can exchange on the market. Students expect “to be given high grades in return for paying tuition and showing up.”
- Because an essential element of legal education is the ability to “grapple with uncertainty in order to develop professional judgment,” college student’s consumer orientation leaves them unprepared for the pedagogical challenges they must face as law students.
- Grade inflation at the undergraduate level has a role in the decline of study time, reduced learning, and student under-preparedness, because students no longer need to study long hours to earn respectable grades. Students, accustomed to very high grades in return for little work during their undergraduate careers, are unprepared for the amount of work required to receive a passing grade in a law school class. Adding to students’ frustration, they have not gained the fundamental thinking skills necessary to master the more complex reasoning and analysis law school requires to earn the grades they are accustomed to receiving.
- The lack of rigor in the undergraduate curriculum lulls students into a false sense of competency. Students who have only received A’s and B’s, through little effort, are unprepared for the challenge of law school academics. Students are less likely to understand that being admitted to law school is not enough to succeed in law school.
A literature review can be downloaded at Teaching Workshop Literature Review.
Thursday, December 27, 2018
Michigan Law School Junior Scholars Conference 2019
April 26-27, 2019
Call for Papers
Deadline for Submission: January 12, 2019
The University of Michigan Law School invites junior scholars to attend the 5th Annual Junior Scholars
Conference, which will be held on April 26-27, 2019 in Ann Arbor, Michigan. The conference provides junior scholars
with a platform to present and discuss their work with peers, and to receive detailed feedback from senior members of
the Michigan Law faculty. The Conference aims to promote fruitful collaboration between participants and to encourage
their integration into a community of legal scholars. The Junior Scholars Conference is intended for academics in both
law and related disciplines. Applications from postdoctoral researchers, lecturers, fellows, SJD/PhD candidates, and
assistant professors (pre-tenure) who have not held an academic position for more than four years, are welcomed.
Cooperation with Michigan Law Journals: We are excited that this year the Conference will collaborate with several Michigan Law journals, all of which are among the highest ranked in their respective fields. The (1) Michigan Law Review Online, (2) Michigan Journal of International Law, (3) Michigan Journal of Law Reform, (4) Michigan Journal of Gender and Law, (5) Michigan Technology Law Review, (6) Michigan Journal of Race and Law, and (7) Michigan Business & Entrepreneurial Law Review will give serious consideration to publish papers selected for the Conference that are within each journal’s research agenda and meet its requirements. Additional details on the publication process will be provided after selection for participation in the Conference itself has been completed. In any event, there will be no obligation to accept any offer of publication that you may receive.
Submission: To apply to the Conference, please send (1) an abstract of no more than 600 words reflecting the
unpublished work that you wish to present; and (2) a copy of your CV to firstname.lastname@example.org by January 12, 2019.
Please attach the relevant documents as separate files. These should be saved as word documents in the following
format: LAST NAME – FIRST NAME – ABSTRACT/CV/FUNDING. Selection will be based on the quality and
originality of the abstract, as well as its capacity to engage with and foster a collaborative dialogue with other proposals.
Selected presenters will be notified no later than February 4, 2019. Final papers are due on April 1, 2019, so that they
may be sent to your faculty commentator and circulated among participants in advance.
Financial Assistance: The University of Michigan Law School may allocate limited funds to help cover partial travel
expenses and accommodation for selected participants. If you wish to be considered for financial assistance, please
submit a separate written request along with your abstract submission specifying your city of departure and an estimate
of travel costs. We regret in advance that we are unable to provide full financial assistance to participants.
David Hughes, Chair
University of Michigan Law School
Junior Scholars Organizing Committee
Friday, December 21, 2018
The Alpha Female and the Sinister Seven
(forthcoming in Presumed Incompetent II: Intersections of Race and Class for Women in Academia, eds. Carmen Gonzalez, Yolanda Niemann, and Gabriella Gutierrez y Muhs).
When I decided to contribute to Presumed Incompetent II, a litany of bad experiences came to mind – ranging from outright assaults on my job security to the daily microaggressions that remind you every day that no matter how hard you work, how many awards you receive, and how frequently your work is cited, you are and will remain at the bottom of the gender and racial hierarchy undergirding American society in general, and the legal academy in particular (Carbon and Cahn 2013; Monroe and Chiu 2010).
Being an academic, I could not resist developing a typology of the various characters and forms of racism, sexism, and Islamophobia I have experienced in the academy. Based on my conversations with other women of color at various law schools coupled with the literature on systemic gender and racial biases in the legal academy, I suspect my proposed typology applies to law schools across the country (Deo 2015). My aim is to theorize why I, and other women like me, have such negative experiences in a profession that purports to be training the next generation of lawyers and leaders to be civil, ethical, and collaborative. In direct contradiction to these values, harms we experience arise from duplicitous, conniving, and dishonest behavior that produce disrespectful and condescending mistreatment.
In attempting to understand this contradiction between law schools’ stated commitments to civility, ethics and integrity on the one hand and the depraved behavior of some faculty towards (some) female professors of color on the other hand, I realize my situation is unique insofar as I am a particular type of woman — The Alpha Female. Thus, I am marked as a triple outsider (female, racial/ethnic/religious minority, and alpha) in a profession that expects leadership, intelligence, and confidence from its members and yet penalizes women and minorities for possessing such traits (Price Waterhouse v. Hopkins 1989; Moncrief 2015; Aziz 2014). Despite the common usage of the Alpha Male to denote masculinity, leadership, charisma, and social aggressiveness — all traits admired in men — there is no recognition, much less desire, for the female counterpart (Ludmand and Erlandson 2004; Hawley, Little and Card 2008, Ludmand and Erlandson 2006). The dearth of literature about Alpha Females produces a blind spot in socio-legal analysis on gender equality (Popson and Dipaolo 2010; Moncrief 2015).
As such, this chapter seeks to incorporate the concept of the Alpha Female into my experiences as a woman of color in the legal academy who not only is presumed incompetent because of my immutable racial and ethnic characteristics; but also presumed aggressive (rather than driven and focused) and insolent (rather than confident and competent) because of my alpha personality traits — for which my white male counterparts receive promotions to leadership positions and accolades. I hope this chapter triggers further research on the interplay of alpha personality traits, race, and gender.
To read the chapter, click here.
Wednesday, December 19, 2018
Call for Papers:
SLAVERY PAST, PRESENT & FUTURE: 4th Global Meeting
University of Innsbruck, Innsbruck, Austria
June 17-19, 2019
Slavery (the treatment of humans as chattel) and enslavement through conquest, birth, gender, race, ethnicity, and exploitation of indebtedness have been an intrinsic part of human societies.
Slavery and a variety of other forms of exploitation existed in the ancient societies of China, Egypt, Greece, India, Russia and many other states and territories. The Transatlantic Slave Trade furnished at least 10 million Africans for slavery throughout the Americas.
Controversial and contested estimates indicate that up to 40 million people worldwide are enslaved today. This modern re-emergence of slavery into public view, following legal abolition of the trans-Atlantic slave trade over two hundred years ago, is said to be linked to the deepening interconnectedness of countries in the global economy, overpopulation, and the economic and other vulnerabilities of individual victims and communities.
But should we think of these people as enslaved? And if so, is slavery an inevitable part of the human condition? Like ‘consumers’ of past eras, such as early industrialization, are we dependent on the exploitation of others? What does the persistence and mutations of different forms of exploitation mean in the context of abolition and recognition of universal individual and collective human rights?
The varieties of contemporary forms of exploitation appear to be endless. This interdisciplinary conference will facilitate a multidisciplinary exploration of slavery in all its dimensions.
Submissions are sought from people from all walks of life and identities, including:
· Academics: from all disciplines, such as art, film, anthropology, sociology, history, ethnic studies, politics, social work, economics, and any field that touches the study of exploitation
· Civil society members: human rights activists, leaders in non-governmental organizations, and others in the NGO or social advocacy fields
· Professionals: social workers, corporate social responsibility and business ethics professionals, business leaders, and health care professionals
· Government actors: representatives, policymakers, lobbyists, and analysts
· Global citizens with personal connections to slavery or exploitation: former slaves or indentured laborers, members of at-risk populations, migrant or guest workers, non-regularized immigrants, and refugees
Potential themes and sub-themes include but are not limited to:
- Defining Slavery:
- What do we mean when we talk about “slavery”
- Using “slavery” to obscure other endemic forms of exploitation
- Teaching and learning about historic slavery and contemporary forms of exploitation
- Slaveries of the Past
- Classical (Egyptian, Greco-Roman, etc.) slavery
- Conquests and colonization – Aboriginal Australians, indigenous peoples of the New World, dividing and colonizing Africa and Asia
- Slaveries in Europe pre-Industrialization, such as villeinage and serfdom
- Trans-Atlantic Slavery and the trans-Atlantic Slave Trade
- Depictions of slaves and slave traders in texts and art during the Abolition Period
- Systems of slavery in tribal and traditional societies
- WWII and post-WWII forced labor camps
- Human Trafficking and other Forms of Contemporary Exploitation
- Definitions - Is human trafficking “slavery”
- Types of human trafficking (labor trafficking, sex trafficking, organ trafficking, etc.)
- Civil society anti-trafficking activism: assessing contemporary initiatives and movements
- The role of the nation state:
i. Can the nation state enslave? (prison labor, mandated military service, etc.)
ii. Anti-trafficking policies and legislation
- Systems and Structures of Enslavement and Subordination (historic and contemporary)
- Role of slavery in national and global economies
- Economic, political, legal structures – their role in enslavement and exploitation
- Slavery’s impact on culture and the cultural impacts of historic slavery
- Voices of the Enslaved
- Slave narratives of the past and present
- Descendants’ interpretation of their enslaved and/or slave-holding ancestors
- Legacies of slavery
- Identifying and mapping contemporary legacies – economic, social, cultural, psychological (e.g., Post traumatic stress disorder and intergenerational trauma)
- Assessment of slavery’s impact – economic, political, other
- Commemorations and memorialization of enslavers and/or the enslaved
- Legal regimes tacitly designed to perpetuate slavery (e.g., convict leasing)
- Legal segregation or discrimination (in housing, education, banking, transportation, etc.)
- Racial terror (e.g., lynching, forced removals)
- Racial subordination and re-enslavement (e.g., voter disfranchisement, mass incarceration, medical apartheid)
- Desecration of burial sites of the enslaved
- Destruction of or denial of access to historical information
- Lack of memorialization of sacred events/sacred persons/sacred sites
- Transitional justice (e.g., reparations, memorialization, restitution)
- Limited rights attribution and recognition for Afro-descended peoples
- Capacities (and limitations) of domestic and international law in creating, implementing and challenging slavery’s legacies
- Built environment (e.g., architecture, historic buildings, cityscapes, borders)
- Anti-slavery initiatives and movements:
- Economic compensation
- Restorative justice
- Teaching and learning about slavery
- Relationship to the global racial hierarchy
- Abolitionism and law: effects and (in)effectiveness
- The role of media and social media
· Karen E. Bravo (Indiana University Robert H. McKinney School of Law, IN, USA)
· David Bulla (Augusta University, GA, USA)
· Ursula Doyle (Northern Kentucky University School of Law, KY, USA)
· Clare McLeod (Cornell University, NY, USA)
· Judith Onwubiko (University of Kent, United Kingdom)
· Ulrich Pallua (University of Innsbruck, Austria)
· Sufinnah Singlee (University of Cape Town, South Africa)
· Sheetal Shah (Webster University, Leiden, The Netherlands)
· Polina Smiragina (University of Sydney, Australia)
· Judith Spicksley (University of Hull, United Kingdom)
Submitting Your Proposal:
Proposals should be submitted no later than Friday, March 2, 2019 to:
· Karen E. Bravo, Indiana University Robert H. McKinney School of Law: email@example.com
· E-Mail Subject Line: Slavery Past Present & Future 4 Proposal Submission
· File Format: Microsoft Word (DOC or DOCX)
The following information must be included in the body of the email:
· Affiliation as you would like it to appear in the conference program
· Corresponding author email address
The following information must be in the Microsoft Word file:
· Title of proposal
· Body of proposal (maximum of 300 words)
· Keywords (maximum of ten)
Please keep the following in mind:
· All text must be in Times New Roman 12.
· No footnotes or special formatting (bold, underline, or italicization) must be used.
Evaluating Your Proposal
All abstracts will be double-blind peer reviewed and you will be notified of the Organizing Committee’s decision no later than Friday, 15 March 2019. If a positive decision is made, you will be asked to promptly register online. You will be asked to submit a draft paper of no more than 3000 words by Friday, 03 May 2019.
The conference registration fee is U.S. $ 250. Please note that we are not in a position to provide funding to facilitate your participation.
Tuesday, December 4, 2018
Last week, I had the pleasure of being a guest on the Good Law Bad Law podcast where I addressed the broader social and political implications of the U.S. Supreme Court's ruling in Trump v. Hawaii. I spoke with Aaron Freiwald, the host of Good Law Bad Law, on how Trump's Islamophobic rhetoric during his presidential campaign informs the real intentions behind the travel ban, also known as the Muslim Ban. The podcast can be accessed on YouTube here and online here.
In my article A Muslim Registry: The Precursor to Internment?, I argued why such rhetoric, referred to as extrinsic evidence, should be reviewed in the Court's assessment of whether Trump's anti-Muslim animus motivated the travel ban.
Being political scapegoats in the indefinite ‘war on terror’ is the new normal for Muslims in America. With each federal election cycle or terrorist attack in a Western country comes a spike in Islamophobia. Candidates peddle tropes of Muslims as terrorists in campaign materials and political speeches to solicit votes. Government officials call for bold measures – extreme vetting, bans, and mass deportations – to regulate and exclude Muslim bodies from U.S. soil.
The racial subtext is that Muslims in the United States are outsiders who do not belong to the political community. A case in point is the “Muslim Ban” issued by the Trump administration in 2017. The article goes on to examine the legality of the Muslim Registry that Trump called for during his campaign, but instead opted for a partial Muslim travel ban--for now at least.
Monday, November 5, 2018
The 2011 event hosted by Palestinian rights groups, which include Jewish students, featured speeches by Nakba and Holocaust survivors. Notwithstanding a full investigation and dismissal of the case as meritless in 2014, the new head of the DOE's Office for Civil Rights, Kenneth Marcus is misusing state power to perpetuate his political agenda - to quash activism on college campuses that promote the Palestinian perspective on the contentious Israel/Palestine issue.
Arrested, expelled and accused of treason in retaliation for their political activism, students paid a high price for standing up for their beliefs.
Today, the students on the frontlines of college activism are students of colour and Jewish students who oppose the policies and practices of Israel - a nation state, not an ethnic group. As they lead a movement in defense of Palestinian human rights, student activists are bullied, blacklisted, and expelled on account of their political beliefs.
Special interest groups are pressuring universities to shut down activism when it challenges Israel's human rights record. Marcus' decision to re-open a groundless complaint against Rutgers allows these interest groups to misappropriate state power to bully the university into breaching its primary responsibility - creating an educational environment where ideas can be aired, contested, and debated openly.
By mislabeling opposition to Zionism and Israeli state practices as anti-Semitic, Israeli lobby groups accuse universities of promoting hate, not education. In turn, they call for defunding universities whose programmes, professors, or students bring to campus the viewpoints of Palestinians in Israel, the occupied territories and the diaspora.
The ultimate objective is clear - limit speech and expression to only pro-Israeli views under the guise of anti-discrimination. But not all Jews support the state of Israel's practices.
Jewish Americans, like their Arab and Muslim compatriots, hold diverse views on the Arab-Israeli conflict. Jewish Voice for Peace, for example, supports the Palestinian right to return to their homeland, believes Israel is an apartheid state, and supports the Boycott, Divestment and Sanctions (BDS) movement.
J-Street supports a two-state solution, while opposing the BDS movement, and rejects that criticism of Israeli policy threatens the state of Israel as a Jewish state including the DOE's re-opening of the case against Rutgers. If Not Now mobilises Jewish Americans to end support for the Israeli occupation of Palestinians.
In contrast, some self-proclaimed Israel lobby groups such as the Brandeis Center for Human Rights Under Law, which Kenneth Marcus headed before being appointed to lead the DOE's Office for Civil Rights, argue opposition to Zionism is a form of discrimination against Jews.
They point to the US Department of State's broad definition of anti-Semitism, which was recently adopted by the US Department of Education, which includes as anti-Semitic claims that Israel is a racist state, comparisons of Israeli policy with Nazis, and expecting more of Israel than is expected or demanded of other democratic states.
To assume all Jews are Zionists or support Israeli state policy is like assuming all Iranians and Saudi Arabians support their governments simply because the state claims to be Islamic.
Not only is this factually false, but it exceptionalises Jews as different from other religious groups - a tool historically used by real anti-Semites in Europe and the United States. If universities allow Zionist groups to pressure them into equating anti-Israeli political views with anti-Semitism, they will soon find other special nterest groups arguing it is Islamophobic to criticise state policies and practices of Saudi Arabia, Iran, Turkey and other self-described Islamic states.
Frivolous complaints will allege universities should be defunded because they discriminate against Muslims when they host programmes that explore the meaning of jihad, criticise human rights violations in Muslim majority countries, or call for US boycotting of a self-described Islamic country.
The consequence is universities as sites of censorship rather than where ideas are freely exchanged.
To be sure, Islamophobia and anti-Semitism are real problems in America. But essentialising Muslims and Jews by presuming they all support the practices of a particular Muslim-majority country or Israel, respectively, is itself Islamophobic and anti-Semitic.
If the US Department of Education is serious about combating anti-Semitism and other forms of racism in schools, our taxpayer money is better spent fostering student debate and activism; rather than quashing it through an abuse of state power.
This commentary was originally published in The New Arab.
Sahar Aziz is Professor of Law & Director of the Center for Security, Race and Rights at Rutgers Law School. She is the author of the forthcoming book The Muslim Menace: The Racialization of Religion in the Post-9/11 Era.
Follow her on Twitter: @saharazizlaw
Sunday, October 21, 2018
CALL FOR PAPERS 2019 Social Issues in Firms
5th Conference of the French Academy of Legal Studies in Business (Association Française Droit et Management) June 20 and 21, 2019 – emlyon - Paris Campus
Social issues and fundamental rights occupy an increasingly important space in the governance of today’s companies. Private enterprises assume an increasingly active role not only in a given economy but also in society as a whole. Firms become themselves citizens. They recognize and support civic engagement by the men and women who work for them. Historically, the role of the modern firm that resulted from the Industrial Revolution has been torn between two opposing viewpoints.
According to the first approach, a firm’s single function is to produce goods and services as result of a combination of productive factors (in particular capital and work). Shareholders and workers may fight to defend their own interests, in particular the distribution of profits. Paradoxically, this "classical" conception is held by capitalists and most liberal authors, who both stress that corporate profits are intended to be distributed to shareholders and that firms must be managed in the formers' interest, as well as by the mainstream theory of Marxism. The later did not expect to be able to reform an intrinsically contradictory and therefore condemned capitalist economic system, but relied on a political revolution instead. Consequently, the firm is a mere economic instrument and eventually will be subject to regulatory constraints (such as social security law, tax law, public health law, etc.), which is intended to preserve general and collective interests and is imposed by government authorities.
According to a competing viewpoint that emerged in the nineteenth century under the influence of rather heterodox economic and political currents (socialism and reformist trade unionism, social Catholicism/social doctrine of the Catholic Church, certain liberal authors, etc.), the firm assumes a more comprehensive role. Companies may become the place of a rich social, cultural, sporting, political or even spiritual life. Workers are welcome to campaign within firms, employers to assume social responsibility (also known as paternalism) and all parties (which will later be referred to as "stakeholders") to contribute to social progress. The firm is seen as a space of sociability, personal and collective development, and democratic expression. In this context, the State is only one among several actors who create the rules that govern and steer firms. Civil society, investors and social partners may legitimately take initiatives and coproduce economic and social rules, through legal instruments such as collective agreements, voluntary commitments, codes of conduct, self-regulation, etc.
More recently, the tension between the two viewpoints described above continues to exist, and in some respects, has been accentuated. Dominant liberal thought, expressed in particular in the analytical framework of micro-economic theory (agency theory, property rights approach, etc.) defends an approach where the firm is reduced to a nexus of contracts managed by executives whose mission is to run the firm in the interest of its shareholders who are described as its owners. According to this view, the social interest is reduced to the common interest of shareholders (shareholder doctrine of corporate governance). Conversely, various ideological movements (such as e.g., New Governance,, “School of Rennes”, “Second Left”, “Christian Democrats”, “Third Way”, “stakeholderism,” or Elionor Ostrom’s approach to “governance of the commons”) have challenged this vision of the firm. They suggest an institutionalist approach, where the firm constitutes foremost a collective project. The corporation exists independent from its owners. Hence, the social interest of the firm is not the sole interest of its shareholders but the common interest of a multitude of "stakeholders". The firm can strive not only to grow economically and maximize profits but also to mobilize the men and women who work for it, to defend and promote other than economic causes. Social transformation encompasses individual and collective claims as those represented in fundamental rights and liberties, which, therefore, are no longer limited to traditional social and trade union rights.
The intensity of challenges today (global warming, technological revolution, geo-political and inter-community tensions, increasing socio-economic inequalities, etc.), on the one hand, and the advancement of the rule of law in developed societies, on the other hand, currently seems to favor the second path. Hence, the question is how to respect and recognize fundamental rights within private firms and how to turn companies into a force of social change. Some legislators seem to accept the challenge, for example, by imposing a duty of vigilance on companies, or by attempting to redefine the corporate purpose.
These developments are prone to upset traditional balances and modes of operation within firms. The symposium to be held at the Conference of the French Academy of Legal Studies in Business proposes to examine challenges and manifestations of this transformation. We welcome theoretical and/or practical contributions from a wide variety of disciplinary perspectives (such as law, management sciences, ethics, or transdisciplinary contributions) and invite papers that provide insights into, but not limited to, the following topics
- The practice of fundamental rights and freedoms within firms, such as respect for privacy,
- personal data protection, freedom of expression (free speech), religious freedom, and nondiscrimination
- Due process and the principle that both parties should have a right to be heard in the corporate context
- Voluntary policies to protect minorities (e.g., persons with disabilities, ethnic minorities, etc.) or to support equality, such as equality between men and women, or equal rights of all employees regarding the right to strike
- The social and solidarity economy
- Changes in firm governance
- Corporate Social Responsibility (CSR), including CSR in the legal profession, Sociallyresponsible investment (SRI), green bonds, environmental norms and commitments, safety and well-being at work, Philanthropy (including pro bono work, corporate foundations, etc.)
- Definition or redefinition of the firm’s legal status, purpose or its functions, including the redefinition of its corporate object and emergence of mission enterprises
- Duty of vigilance
- Social dialogue and democracy in the firm
- Corporate ethics, organizational ethics and ethical governance, professional codes of ethics, ethics in business practices, in particular new technologies (such as artificial intelligence, blockchain, etc.)
- Romantic and family relationships in the workplace
- Non-financial ratings of firms and non-financial reporting
We plan on publishing the best papers presented at the symposium in a leading management science and law journal.
Abstract submission: December 20, 2018
Full text submission: March 7, 2018
Author Notification about paper acceptance: April 22, 2018
Proposals should be submitted in the form of an abstract in Word format (5,000 characters maximum accompanied by key words) and should indicate principal methodologies used, as well as the main issue addressed in the paper. Proposals may be in French or in English.
Full-text submissions must comply with the following guidelines:
The first page must indicate the name(s), institution(s) and position(s) of the author(s), and the title of the paper.
The second page should indicate only the title of the paper, an abstract in French and in English and four to five key words.
The manuscript should be in Word format, Times New Roman font size 12, A4 paper format, with 2.5 cm (one inch) margins, single-spaced, 15 pages to be sent by email to firstname.lastname@example.org
The Call for Papers can be downloaded at CallForPapersVE.pdf.
Friday, October 19, 2018
This week marks the 135th anniversary of the U.S. Supreme Court’s opinion in The Civil Rights Cases, 109 U.S. 3 (1883). While to some this is a mere historical footnote, the decision is worth remembering because it reflects the tensions at play today concerning how constitutional law can, through unrelenting formalism and a preference towards denying the salience of race, contributes to enduring structural oppression. The reasoning in The Civil Rights Cases is an object study in how to maintain white supremacy—and a mirror to our society today.
The opinion overturned the Civil Rights Act of 1875. It sought to protect recently freed African-American slaves from discrimination in the use of “inns, public conveyances on land or water, theaters, and other places of public amusement.” In striking down this nineteenth-century public accommodations law, thus allowing private businesses to deny services to African Americans because of their race, Justice Joseph P. Bradley, speaking for the 8-1 Supreme Court majority, made three arguments.
First, the Court held that the power to regulate individuals and corporations fell to the states, not the federal government. Second, to the extent Congress passed the Act under its Fourteenth Amendment authority, the Court held that the Fourteenth Amendment was limited to regulating actions by states and not private actors (a doctrine that still holds today). Finally, the Court interpreted the Thirteenth Amendment, meant to remedy the badges and incidents of slavery, as only allowing Congress to abolish denials of legal rights extending from past slavery.
The Court’s underlying rationale is truly telling: accommodation of ex-slaves in present commerce is irrelevant to past slavery and the Thirteenth Amendment. African Americans complaining of such discrimination should seek state remedies or federal remedies to the extent Congress wishes to make them. This may be true as far as it goes, and by this time we already knew that the ex-Confederate states and their agents had not been aggressive in pursuing remedies for discrimination—the reason for the 1875 law. And we also know that after this act was struck down, Congress passed no other civil rights legislation for over eighty years.
Indeed, the Court denies the possibility that racism may be tied to the caste system that slavery created. Bradley claimed that to treat discrimination in public accommodations as related to bias arising from slavery is to take “the slavery argument” too far:
It would be running the slavery argument into the ground to make it apply to every act of discrimination which a person may see fit to make as to the guests he will entertain, or as to the people he will take into his coach or cab or car, or admit to his concert or theater, or deal within in other matters of intercourse or business.
This is the kind of slippery-slope argumentation that willingly denies the past of slavery and the (obvious) interconnections between white racism, racial caste, and its more immediate outcomes.
This was done despite the dissent of Justice John Marshall Harlan, who warned that without the intervention of Congress and a more fulsome interpretation of the Reconstruction Amendments, African American citizens will not be able to “take the rank of citizen” rather than subordinated class. One hundred thirty-five years later, and it is this same battle that we fight today. As Harlan put it—and it is worth reading his argument in detail:
The difficulty has been to compel a recognition of their [African American’s] legal right to take that rank [of citizen], and to secure the enjoyment of privileges belonging, under the law, to them as a component part of the people for whose welfare and happiness government is ordained. At every step in this direction the nation has been confronted with class tyranny, which a contemporary English historian says is, of all tyrannies, the most intolerable, ‘for it is ubiquitous in its operation, and weighs, perhaps, most heavily on those whose obscurity or distance would withdraw them from the notice of a single despot.’ Today it is the colored race which is denied, by corporations and individuals wielding public authority, rights fundamental in their freedom and citizenship. At some future time it may be some other race that will fall under the ban. If the constitutional amendments be enforced [as Harlan believed they were meant to be enforced—to end racial discrimination in civil rights based on race or previous servitude] . . . there cannot be, in this republic, any class of human beings in practical subjection to another class, with power in the later to dole out to the former just such privileges as they may choose to grant.
In other words, this class tyranny betrays the values of the Constitution by interfering with the goal of Reconstruction – equality of all citizens. Class tyranny in 1883 was the weapon of those who sought to oppress on the basis of race. Class tyranny intersects with racial tyranny and can target multiple groups over time. Such class tyranny in the service of white supremacy is itself antidemocratic and against the vision of the reconstructed Constitution. And the decision narrowing the power of the national government to stand against such tyranny under the guise of narrow formalism will allow such tyranny to flourish and reinvent itself.
What of these themes do we see in 2018?
We have seen the Roberts Court deny the possibility that the larger harms of voter suppression may be tied to the historical motivations and past racially discriminatory practices of state governments. In Shelby County v. Holder, the Court relies on the claim that “the South has changed” to justify nullifying Congress’s judgment that Section 5 of the Voting Rights Act ought to be used to continue to supervise the recalcitrant ex-Confederate states in their voting practices.
We see the Court once again relying on manufactured formalism to justify hard lines between state authority and federal authority to supervise voting, immigration, education, and other racial (as well as gendered, class-based, and sexual preference-based) fault lines; and states have taken this opportunity to institute disenfranchising and discriminating practices in this space. We have seen commentators, legislatures, and judges argue that talking about race in and of itself is divisive, and that aspirations towards post-racialism should silence debate around race despite the racist actions that daily remind us about its enduring salience and power.
This post-racialism argument is the modern-day version of the “running the slavery argument into the ground.” The holders of these views (on the right and on the left) decontextualize discrimination, rely on admitted intent rather than see discriminatory actions in and through context, and rest comfortably within deep denial about how subornationist structures still dominate our society.
We can see these things in The Civil Rights Cases. It is a mirror to our 2018 society. This opinion reflects the structures and habits of mind bent towards continued white supremacy today.
(First published at atibaellis.com)