Tuesday, August 20, 2019

Stop Traffic: Using Expert Witnesses to Disrupt Intersectional Vulnerability in Sex Trafficking Prosecutions

Robert E. Harding, Jr. Associate Law Professor Blanche Cooke (University of Kentucky) addresses sexual trafficking cases  in her latest law review article, "Stop Traffic: Using Expert Witnesses to Disrupt Intersectional Vulnerability in Sex Trafficking Prosecutions," 24 Berkeley J. Crim. L. 147 (2019). Her work can be used in discussions about sexualized violence in the classroom and with respect to prosecutions. The piece makes the case for the use of expert witnesses in sex trafficking prosecutions. Below is the abstract of the work:

Sex trafficking thrives on intersectional inequality and reinforcing layers of vulnerability. Sex trafficking exists on a continuum of sexualized violence, from microaggressive sexual harassment to macroaggressive gang rapes, all of which create vulnerability in the victim and perfect sovereignty in the perpetrator. Sexualized violence performs power, as it is raced, classed, and gendered. Power not only requires performance, but it necessitates repetitive reenactments of domination in order to normalize its compulsive and pathological nature. Lynchings, police shootings, gang rapes, and sex trafficking are all performances of power on vulnerable bodies through which power perfects itself. The same inequality that creates the necessary preconditions for vulnerability to violence in the first instance, also obfuscates or masks power’s pathology and compulsivity in the investigative and adjudicative processes. By way of illustration, victim blaming renders the pathology of the perpetrator invisible because it removes accountability from the perpetrator and shifts blame onto the victim. Shifting blame onto the victim obfuscates or hides power’s omnipresence, compulsiveness, and pathology. The victim blaming process is pervasive, systemic, and entrenched. Without proper interventions, sex trafficking cases can become ritualized spectacle, where sexualized violence as well as its accompanying investigation and adjudication convince the factfinder of the pathology of the victim and the sovereignty of the perpetrator. The pathology that surrounds victims of sexualized violence adversely impacts their credibility and extends narratives about male entitlement to vulnerable bodies. The recent cases involving R. Kelly and Cyntoia Brown illustrate these points. In the case of singer, song writer Kelly, his videotaping sex with an underaged black female resulted in an acquittal.

August 20, 2019 | Permalink | Comments (0)

Monday, August 19, 2019

U.S. Leadership Needed on Syrian Refugee Crisis


Sixty percent of Syria’s population are either refugees or internally displaced.  Of those thirteen million Syrians, nearly six million are refugees who fled to neighboring Middle Eastern nations—five times more than the one million in Europe and the U.S.  Unable to return home and with minimal, if any, access to education, jobs, and health care in host countries; Syrian refugees are trapped in a legal and economic purgatory.

The challenge facing the international community is whether it will stand by and watch as a generation of Syrians is lost to illiteracy, malnutrition, and increased mortality; or meet its obligations to do its part in empowering Syrians to be gainfully employed and educated until they can return home.

Turkey, with 3.5 million Syrian refugees, hosts the largest Syrian refugee population. The smaller countries of Lebanon and Jordan each host the two largest refugee populations per capita. Although these two countries comprise just one percent of the world’s economy, they host nearly 20 percent of the world’s refugees.  Jordan alone has between 666,000 and 1.3 million Syrian refugees. According to the United Nations High Commissioner for Refugees approximately one in fifteen people in Jordan is a registered refugee.

The principle of non-refoulement—a legal norm prohibiting host nations from sending refugees back to countries where their lives are in danger— requires host countries to provide refuge to Syrians until it is safe for them to return home.  The United Nations says return to Syria is still not safe; nor will it be for the foreseeable future.  In the few areas where a safe return may be possible, entire neighborhoods are demolished, and basic services are non-existent.

Approximately eighty percent of Syrian refugees in neighboring countries live in urban and rural areas among the natives of the host countries. Between sixty to eighty percent of these refugees, depending on the country, live below the poverty line

The consequences are threefold: 1) a humanitarian crisis for Syrian refugees, who must compete for public services and limited jobs (most of them without legal authorization) with members of the host community; 2) further pressure on host country economies already strained by longstanding economic problems; and 3) social tensions between refugees, host citizens, and other vulnerable groups within the host country. 

In light of the United States’ interests in the Middle East, it is long overdue for Congress to reform our Syrian refugee policy.  A new report by the Rutgers Center for Security, Race and Rights offers policy prescriptions for the United States to provide aid to host countries that is both sustainable and empowers Syrians to be economically independent.  Based on interviews with refugees, aid workers, and government officials in Jordan, the report makes four recommendations.

First, U.S. aid should increase to fund programs that empower refugees to be economically independent rather than indefinitely dependent on international aid.  U.S. development aid should capitalize on the diverse skills of the refugees themselves, who come from a range of socioeconomic classes. Microloans, higher education grants, and vocational training in accordance with host economies’ needs empower refugees to support themselves and their families while reducing dependency on dwindling national and international resources.  Incorporating refugees into the national economy, rather than marginalize them as welfare recipients, stimulates the economy in ways that benefit all residents of the host country

Second, development aid to refugee host countries should strengthen both state institutions and the private sector. A promising, though not flawless, model is the Jordan Compact, which is an agreement between the Jordanian government and several European and international non-state actors launched in 2016.  The Jordan Compact conditions grants on Jordan’s commitment to achieving certain goals, such as opening the formal labor market to Syrian refugees and improving access to refugee education.  As a result, the Jordanian government created a work permit program for Syrian refugees and its expansion of Jordan’s double-shift public school system to accommodate refugee children.

Third, the U.S. should fund humanitarian projects with broad eligibility criteria not limited solely to Syrian refugees. Granting access to U.S.-funded humanitarian programs to low-income citizens of the host country and refugees from other countries reduces inter-community tensions and promotes social cohesion.

Fourth, the United States should increase its own quota for Syrian refugee resettlement.  The Trump administration’s refugee ceiling for fiscal year 2019 is the lowest in the history at merely 30,000. And only 9,000 refugees can be from the “Near East and South Asia” region.  While U.S. refugee resettlement cannot replace the need for a final solution to the Syrian conflict, increasing the refugee ceiling would ease the burden on the U.S.’s allies in the region that currently shoulder most of the financial and political costs of the crisis. Moreover, by accepting its fair share of refugees, the U.S. encourages countries of first asylum to continue meeting their international obligations with regard to refugees.

If there is one key lesson from the protracted Syrian conflict, it is this: borders are meaningless when civilians flee for their lives.  Whether it is the one million refugees who trekked to Europe or the six million who escaped to neighboring countries, the crisis is global

It is time for the United States to take the lead in developing sustainable solutions to this global crisis. Congress can take the first step and reform America’s Syrian refugee policy.

-- Originally published on the Wilson Center's Enheduanna here.

-- This commentary is based on the report Toward Empowerment and Sustainability: Reforming America's Syrian Refugee Policy published by the Rutgers Center on Security, Race and Rights


August 19, 2019 | Permalink | Comments (0)

Tuesday, August 13, 2019

Trump's Dangerous Judicial Legacy

Rutgers Law Professor Stacy Hawkins writes how President Donald Trump is quietly whitewashing the federal judiciary with dangerous consequences for the justice system and democracy. Below is the introduction to her article, Trump's Dangerous Judicial Legacy, 67 UCLA L. Rev. Disc. (2019)

As much attention has been focused on scrutinizing President Trump’s two appointments to the United States Supreme Court, a more pervasive and insidious effort by President Trump to remake the federal judiciary has gone relatively unchallenged. Our collective obsession with the nation’s highest court and its shifting ideological balance since the retirement of longtime moderate Justice Anthony Kennedy, while important, has allowed a less notable but no less important shift to occur in the judiciary as a result of Trump’s record-setting pace of appointments to the lower federal courts. Aside from their obvious politics, most of Trump’s judicial appointees share something else in common—they are almost all white and largely male. This is no mere coincidence. It is a seemingly deliberate attempt to undo decades of diversity progress on the federal judiciary made over the course of multiple, successive presidential administrations across both political parties.

For all the handwringing over President Trump’s two appointees to the Supreme Court, the president has quietly appointed more judges to the federal appeals courts in his first two years in office than any other president in history. Given that so few cases will ever be heard by the Supreme Court, these courts often represent the highest level of appeal in our federal judicial system. In addition to being prolific, there is a striking pattern to Trump’s judicial appointees. He has broken with a decades-long presidential tradition of making the judiciary more demographically diverse than one’s political predecessor. Instead, Trump has appointed fewer minority judges to the federal bench than any president since Ronald Reagan and fewer women judges than any president since George H.W. Bush. For the first time in nearly three decades, the federal bench has actually become appreciably less diverse, even as the nation has continued to experience rapid growth in its demographic diversity. The truculence about America’s growing cultural pluralism that is reflected in Trump’s federal judicial appointments is  resonant with a central theme of his now (in)famous campaign promise. Notwithstanding the facile appeal to patriotism, there is considerable proof that what Trump really aims to do is not “Make America Great Again” so much as “Make America White Again.” At least insofar as his efforts to remake the judiciary are concerned, this “whitewashing” has grave consequences for the judiciary itself and arguably for our democracy more broadly.

Trump’s record-setting pace of federal judicial appointments have shifted the demography of the judiciary from one that was becoming increasingly more representative of the people it serves to one that is actively being made less representative of the American people. This Article first highlights this demographic shift in quantifiable terms. It then situates this judicial trend as a part of Trump’s larger political agenda and explores its consequences for the judiciary and for our ideals of democracy more broadly. (internal citations omitted)

August 13, 2019 | Permalink | Comments (0)

Tuesday, August 6, 2019

Constitutional Law Scholars Forum: Call for Proposals

FRIDAY, FEBRUARY 28, 2020                           

Orlando, FL

The student chapter of the American Constitution Society and Law Review at Barry University School of Law and Texas A&M University School of Law are hosting the Fifth Annual Constitutional Law Scholars Forum at the Barry University Dwayne O. Andreas School of Law Campus in Orlando, FL.

The Constitutional Law Scholars Forum invites scholarly proposals on constitutional law at any stage of pre-publication development, from the germination of an idea to editing with a journal.  The Forum provides an opportunity for scholars and educators to vet their work-in-progress in a welcoming, supportive environment.  (The Forum is not accepting proposals from students at this time.)

The deadline to submit proposals is December 1, 2019.

Barry University School of Law is located within close proximity to recreational activities: Universal Studios, Disney World, Epcot Center, Sea World, world class golf courses, and beaches.  Orlando offers an average temperature of 72-78°F in February/March. 

There are no conference fees and meals are provided.

Abstract Submissions:

Email proposals to Professor Eang Ngov, engov@barry.edu, with “Constitutional Law Scholars Forum” in the subject line.  Submissions should include a short abstract (300 words maximum) and biography (150 words maximum).  Please include abstract and biography together on one page in Word format.

Conference Organizers: 

Professor Eang Ngov, engov@barry.edu, office (321) 206 -5677, cell phone (571) 643-2691

Professor Meg Penrose, megpenrose@law.tamu.edu

August 6, 2019 | Permalink | Comments (0)

Wednesday, July 24, 2019

Reasonably Speaking Podcast Episodes

The American Law Institute has produced the following episodes on its podcast, Reasonably Speaking.

Race and Policing

In this two-part episode Sherrilyn Ifill of the NAACP Legal Defense and Educational Fund, Inc.Barry Friedman, NYU Law professor and director of NYU’s Policing Project, and John Malcolm of the Heritage Foundation explore the intersection of race and policing in the United States. Our guests explore the history of race relations in the U.S., and the resulting impact on law enforcement practices in Part 1: History, Training Programs, and Police as First Responders and Part 2: Predictive Policing, Funding Priorities, and Working Toward a Solution.

Protecting Children in Criminal Procedures

Juvenile Law Center’s Co-Founder Marsha Levick and Columbia Law Professor Elizabeth Scott discuss the vulnerability of children when they enter the justice system. Marsha and Elizabeth agree that much has improved since “adult time for adult crime” in the 1990s – today youth are recognized as developmentally different from adults, and with care, may be more easily rehabilitated. However, they argue that there are still improvements to be made, and the problems become obvious when you look at statistics comparing the race of children entering the system.

The Decline of the Death Penalty

Death penalty expert and author of End of Its Rope: How Killing the Death Penalty Can Revive Criminal Justice Brandon Garrett of Duke Law School talks about the history of the death penalty in the U.S. criminal justice system, revealing details of his data collection on capital punishment. The episode also features ALI’s past President Roberta Cooper Ramo and Retired Judge Christine Durham, who discuss ALI’s removal of the Death Penalty Provision from the Model Penal Code in 2009, perhaps one of the earliest indications of the future of capital punishment.

American Indian Law: Tribal Sovereignty, Citizenship, Criminal Jurisdiction, Violence Against Women, and the Indian Child Welfare Act

Renowned experts on American Indian law and policy, Matthew Fletcher of Michigan State University College of Law and Wenona Singel of the Office of the Governor for the State of Michigan, discuss the nuanced and highly complex field of American Indian Law. Matthew and Wenona begin by exploring the history of tribal sovereignty, and discuss the rights of American Indians as both tribal citizens and U.S. citizens.

July 24, 2019 | Permalink | Comments (0)

Friday, July 12, 2019

Climate Change and the Voiceless

Randall Abate, Rechnitz Family Endowed Chair in Marine and Environmental Law and Policy and a Professor in the Department of Political Science and Sociology at Monmouth University, has a forthcoming book, Climate Change and the Voiceless: Protecting Future Generations, Wildlife and Natural Resources (Cambridge). He looks at the voiceless as "the most vulnerable and least equipped populations to protect themselves from the impacts of global climate change." Abate explains how domestic and international laws have not accounted for climate change and climate justice. This work builds on his earlier books, Climate Justice: Case Studies in Global and Regional Governance Challenges, which I had contributed a chapter, as well as Climate Change Impacts on Ocean and Coastal Law and Climate Change and Indigenous Peoples: The Search for Legal Remedies, co-edited with Elizabeth Kronk-Warner.

On his blog, Climate Change(d), he writes about the growing threat of climate change on vulnerable communities. 

When I started writing and teaching about climate change law and justice shortly after the turn of this century, climate change still seemed like a distant threat, but one that was close enough for vulnerable communities to fear as an imminent peril. Nowadays, whatever I do and wherever I travel, the fingerprints of climate change are evident, and the threat is much more imminent and widespread. It is no longer limited to vulnerable and impoverished communities – the affluent are no longer immune. The affluent are more protected and less in harm’s way than vulnerable communities, but it is now increasingly clear that we share a common vulnerability to climate change in the coming decades of this century in our shared status as Earthlings.

I enjoyed an excellent piece of creative nonfiction that was a useful complement to my thinking and engagement on this trip. In her book, Rising: Dispatches from the New American Shore, Elizabeth Rush compellingly portrays the stories of communities confronting sea level rise in the U.S. from Staten Island to Louisiana.  Her accounts from the front lines of these affected communities portray desperation, courage, and resilience in the face of these scientific realities and existential threats from sea level rise and its impact on what these communities had called home for generations.

One quote from the book resonated with me to help underscore the tenor of my reflections in the previous paragraph regarding the ubiquitous threat of climate change: “[T]he environmental apocalypse we often think of as existing only in films is already with us. The lines between our imagined futures and present tense grow increasingly blurry with every passing day.”

In 2004, we needed a jarring and fictional account to open our eyes to the daunting threats of climate change in the form of the Hollywood blockbuster movie, The Day After Tomorrow. Just fifteen years later, we are now living in and seeking to adapt to that scary, seemingly fictional new normal in our daily lives.

July 12, 2019 | Permalink | Comments (0)

Thursday, July 4, 2019

"Serving Two Masters" Revisited: Derrick Bell, Joe Biden, and the Paradox of Busing

At the first Democratic presidential debate, the sharp exchange between Joe Biden and Kamala Harris hit home for me.  Harris’s poignant story about being bused when she was a child, along with her rebuke of Biden’s opposition to “forced busing”, resonated widely and powerfully.  Like Harris, I lived through busing—a long forgotten chapter in the history of school desegregation.  My schooling experience was defined by the metropolitan busing remedy in New Castle County, Delaware—“deseg” as many called it—which was one of the most comprehensive school desegregation plans in the entire country [1].  Joe Biden was my Senator—someone I admire and who has helped my family, friends, and many others from Delaware.  He developed his views on busing largely through the charged debate on deseg in our home state. [2]

Biden has been roundly criticized for his position, and there is a valid basis for this criticism.  He collaborated closely with segregationist Senators, along with White anti-busing activists in Delaware, giving these groups some legitimacy [3].  He opposed busing remedies for de facto segregation but did not consider housing and education policies that led to such segregation [4].  When articulating his support for local control of busing during the debate, Biden overlooked how such local control has often thwarted desegregation efforts.  Moreover, some of his past statements seemed to espouse a moral equivalence between Black and White opponents of busing: he did not call out the latter firmly for their racism.  Biden has also appeared muddled and defensive when explaining his record.  Although I believe he has had good intentions, his words give the impression that political ambition may have clouded his judgment.

Nevertheless, there is more to busing and to Biden’s position on it.  Deseg was complex on many levels—through its politics, its implementation, and its long term effects.  My perspective on busing is both academic and personal [5].  Going to school with Black students from inner city Wilmington, Delaware--students who I would not have met otherwise--had a tremendous positive impact on my life.  Many of them are my friends to this day.  My experiences with busing are the reason I became interested in race and racism, and that I am now a law professor who focuses on those issues.  

During and after law school, I also worked closely another well-known critic of busing: the late Professor Derrick Bell [6].  Professor Bell is the most renowned scholar ever on race and law.  He was the first tenured Black law professor at Harvard Law School.  He is widely known and revered among racial justice advocates for, among other things, leaving his position at Harvard in protest of the Law School’s failure to hire more women of color faculty.  He is one of the founders of an influential scholarly movement known as Critical Race Theory (CRT).  And his pioneering writings in CRT disapproved of the civil rights establishment’s unabashed support for school integration. [7] 

Professor Bell has been ignored in the recent conversation about busing, but his perspective reminds us that while busing may not have been the “liberal train wreck” that Biden described [8], it was not a liberal panacea either.  Professor Bell wrote that he would have actually dissented in Brown v. Board of Education, focusing on equality of schools instead of integration itself [9].  His motivation, of course, was very different from that of segregationists.  He felt that integration and busing had become mere symbolic issues, and that civil rights advocates did not always prioritize the best interests of Black children.  In as much as he opposed busing, Professor Bell was concerned about Black children being thrown under the bus. [10]

Professor Bell laid this out in his groundbreaking 1976 Yale Law Journal article, Serving Two Masters.  Here, he discussed his experience meeting with Black community representatives and NAACP lawyers in 1975, as they planned the second phase of Boston’s school desegregation effort.  The first phase, in the previous year, was met with violent incidents and garnered national attention.  Professor Bell recounted how the Black representatives were ambivalent about busing.  They wanted to continue the progress in civil rights, but they also wanted more emphasis on schools’ educational quality, and they feared sending their children to some of Boston’s more violent White neighborhoods. [11]

From this and other experiences, Professor Bell came to believe that a singular focus on integration was misguided, and that the goal should be equal educational opportunity for all Black children.  Professor Bell acknowledged that equal opportunity could come about through integrated schools, but not always.  As stated in Serving Two Masters

"The busing issue has served to make concrete what many parents long have sensed and what new research has suggested: court orders mandating racial balance may be (depending on the circumstances) advantageous, irrelevant, or even disadvantageous." [12]

At the time, Professor Bell was criticized by the civil rights community for his views, but he is now widely admired for his courage.

Professor Bell’s admonition resonated when deseg was implemented in Delaware.  Busing was great for me personally, but it was more complicated for my Black friends from Wilmington.  They were bused to the suburbs in New Castle County for 9 years out of 12, while those of us in the suburbs were only bused to the inner city for three years.  Those bus rides were thirty minutes long each way.  Busing and other efforts towards integration almost always put a greater burden on people of color, and Black parents and children in Wilmington lived this burden.  Professor Jeffrey Raffel, who has studied Delaware desegregation extensively, reported that before deseg was implemented in 1978, Black parents in Wilmington were almost evenly split on the issue of busing.  In his initial survey, slightly more of these parents actually opposed busing than supported it, and more than three times as many “strongly” opposed it as “strongly” supported it.  Attitudes towards busing became more positive as these parents learned more about desegregation, but there were still significant misgivings.  A majority of Black parents surveyed had real concerns about safety, convenience, and opportunity to be involved in their children’s school activities.  [13]

Biden was aware of Black parents’ concerns with busing.  He had a good relationship with the Black community in Wilmington, and in his 1975 National Public Radio (NPR) interview, Biden noted that he spent almost 300 hours studying the issue and speaking with Black and White people in Delaware before coming to his anti-busing position [14].  Many years later, in his autobiography, Biden echoed some of the concerns that Raffel had reported in his survey:

"[B]lack parents were terrified that their children would be targets of violence in suburban schools.  [Busing] also meant that a parent-teacher conference could cost them a half day of work.  And what if there was an emergency?  A lot of people in inner-city Wilmington didn’t have cars, and there was no reliable public transportation." [15]

These were real, lived dilemmas.  One of my friends from Wilmington, Joni, told me that although her busing experience was positive, her mother hated busing precisely because she did not have a car and could not conveniently get to her children’s schools.  Because of this, Joni’s mother was reluctant to allow her to participate in after-school activities.  Although her mother eventually relented, this concern became particularly salient one day, when Joni was injured during a field hockey game and had to be taken to the hospital.  Joni also lamented the fact that her family could not attend her athletic events and other school activities; and that busing precluded her from going to after-school social events and study groups at her suburban friends’ homes.  Thus, while deseg opened up opportunities in the long term, it also closed off others in the short term—particularly opportunities for Black parents to be involved in their children’s schooling.

Beyond such challenges, Biden—like Professor Bell—expressed concern for educational equality.  In his Senate floor statement against busing on September 17, 1975, Biden contended that “[busing] obfuscates the real issue today which is whether or not there is equal opportunity within the educational field for all people[.]”  He reiterated twice that “equal opportunity in education” and “better educational opportunity for blacks and minority groups” should be the priority.  Indeed, if Serving Two Masters had not been published until a year later, one might even think that Biden read parts of it on the Senate floor. [16]

Biden’s stances illustrate the intricate politics of busing.  The debate over deseg in Delaware was not a simply one between civil rights advocates and anti-busing racists.  Professor Brett Gadsden describes the opposition to busing as:

"[A] variation of Derrick Bell’s theory of interest convergence in which black activists and educational reformers … found common cause—directly or indirectly—with white public officials who wanted to perpetuate racial segregation or temper the impact of desegregation mandates." [17]

Professor Gadsden notes that part of this milieu was “an unexplored, if implicit, meeting of the minds” between Black activists and “white liberals like Biden.”  And although Biden—through his work with both White anti-busing activists and Black community activists—was "serving two masters", I believe he truly felt that busing would hurt Black children and their parents more than it would help them, and that he would not have opposed it otherwise. 

There are many different stories of deseg: positive, negative, and ambivalent.  Several of my friends from Wilmington told me that busing was an enlightening experience.  It exposed them to different people, perspectives, and possibilities.  Others did not view it as positively.  My friend Taquan was part of the first cohort of Black students bused from Wilmington to the suburbs, back in 1978.  Many years later, in a 1991 article in the Wilmington News Journal, Taquan recounted his feelings: “When shipped – excuse me, bused – I noticed a change.  My academic prowess began to decay.”  Taquan felt that his White teachers after deseg challenged his abilities, whereas his Black teachers prior to deseg had actually cared about teaching him.  “We were in school, not a boxing match[,]” he stated pointedly [18].  But when I spoke with him recently, Taquan also noted that his experience in Wilmington, Delaware may have been different from Kamala Harris’s experience in Berkeley, California. 

Black parents had to weigh all of this complexity when thinking about busing.  In spite of their concerns, Professor Raffel’s survey indicated that most Black parents in Wilmington thought that deseg would “provide a better education for most black students” [19].  Professor Bell notes that Black parents often discerned that “green follows White”: they believed that “whites would never give black schools a fair share” and that integrated schooling was the only means to a quality education [20].  Many of these parents also saw deseg itself as an advance in the struggle.  Biden recounts that his Black constituency “was afraid that if they really back off busing, it will be taken as a signal … [of] … backing off on racial progress” [21].  Although it is debated, many social scientists do believe that busing and desegregation generally had a positive impact on the academic achievement of Black students [22].  And some of my friends noted that while they did not like riding the buses at the time, they are now grateful for the experiences that deseg provided.

Although it was difficult back then, the benefits of school desegregation, for me, for my friends, and for society generally, resonate many years later.  Ultimately, this is why I disagree with my former home state Senator.  I think busing was necessary in the broader struggle for racial justice, and that federal courts had to order forceful desegregation remedies to make it happen.  I am proud that I rode the buses in Delaware and was a small part of that struggle.  But Professor Bell taught us many important lessons, and he continues to do so.  We should not lose sight of the paradox of busing.  Its gains came through the many sacrifices that Black children and parents made, sometimes unwillingly, to make America better for all of us. 


[1]  See Jeffrey Raffel, The Politics of School Desegregation: The Metropolitan Remedy in Delaware (1980).

[2]  See Brett Gadsden, Between North and South: Delaware, Desegregation, and the Myth of American Sectionalism 1-3 (2013).

[3]  See David A. Love, Why Joe Biden is Wrong, Al Jazeera, July 4, 2019.  Nevertheless, Biden's position on busing did not please the Positive Action Committee (PAC), Delaware's most prominent anti-busing organization.  According to Professor Raffel, PAC President James Venema "constantly attacked Biden's position."  In 1978, the year that deseg was implemented in Delaware, Venema decided to run for Biden's Senate seat.  See Raffel, supra note 1, at 81, 116.

[4]  See Brett Gadsden, Here’s How Deep Joe Biden’s Busing Problem Runs Deep And Why the Democrats Can’t Use It Against Him, Politico, May 5, 2019.

[5]  See Vinay Harpalani, Ambiguity, Ambivalence, and Awakening: A South Asian Becoming “Critically”Aware of Race in America, 11 Berkeley Journal of African-American Law & Policy 71 (2009).

[6]  For more on my connection to Professor Bell, see Vinay Harpalani, Gifted with a Second-Sight”: Professor Derrick Bell the Teacher, in Covenant Keeper: Derrick Bell’s Enduring Education Legacy 17 (Gloria J. Ladson-Billings & William F. Tate eds., 2016).

[7]  For more on Professor Bell’s life and work, see Derrick Bell Official Website.

[8]  Joe Biden, Promises to Keep 125 (2008).

[9]  See Derrick Bell, Bell, J., dissenting, in What Brown v. Board of Education Should Have Said 125 (Jack M. Balkin, ed.) (2001)

[10]  See Neither Separate Nor Mixed Schools: The Chronicle of the Sacrificed Black School Children, Chapter 4 of Derrick Bell, And We Are Not Saved: The Elusive Quest for Racial Justice 102 (1987).

[11]  See Derrick A. Bell Jr., Serving Two Masters: Integration Ideals and Client Interests in School Desegregation Litigation, 85 Yale Law Journal 470, 482 (1976).

[12]  Id. at 480.

[13]  See Raffel, supra note 1, at 28-32.  Also, in February 1978, the New York Times reported that "if busing were put to a vote in the black community [in Wilmington], it would be voted down."  The NYT report was based on an interview with Charles Grandison, who was a Black aide to Wilmington Mayor William McLaughlin.  Grandison also opined that "[t]he blacks won the case ... but they still think they're getting shafted."  See Steven V. Roberts,  Leaders of Wilmington, Del., Seek Smooth Start of Busing, N.Y. Times, Feb. 2, 1978, at A16.

[14]  See Alana Goodman, Joe Biden embraced segregation in 1975, claiming it was a matter of ‘black pride’, Washington Examiner, Jan. 31, 2019.  The online version of this article also contains an embedded version of the 1975 NPR interview. In the same interview, Biden used the language of “black pride” and “black is beautiful.”  He likely garnered these ideas from individuals involved in the Black Power movement, further illustrating his connection to the Black community. 

[15]  See Biden, supra note 8, at 125.

[16]  121 Congressional Record S29103 (daily ed. Sept. 17, 1975) (statement of Sen. Joseph R. Biden).

[17]  See Gadsden, supra note 2, at 19 (citing Derrick A. Bell, Jr., Brown v. Board of Education and the Interest-Convergence Dilemma, 93 Harvard Law Review 523 (1979).  Here, Professor Bell provides another informative insight.  “Interest-convergence” refers to the aligning of groups who would seemingly be opposed, due to a common interest.  In this case, anti-busing racists and Black activists who emphasized community control had their interests aligned, all in the effort to oppose busing.

[18]  Taquan Stewart (as told to Rhonda Graham), For one, deseg was a dissatisfying challenge, Sunday News Journal (Wilmington, DE), July 28, 1991 at L1, L3.

[19]  See Raffel, supra note 1, at 30.

[20]  See Bell, supra note 10, at 104.

[21]  See Biden, supra note 8, at 126.

[22]  See, e.g., Rucker C. Johnson, Children of the Dream: Why School Integration Works (2019).


I appreciate Taquan Stewart, Joni Kurylo, Jon Jervey, Shane Riley, and Melanie Prince for sharing with me some of their experiences with busing in Delaware.  Turquoise Young also gave helpful feedback on this post.

July 4, 2019 | Permalink | Comments (0)

Thursday, June 13, 2019

Racism in Artificial Intelligence: Guest Post on the Law and AI blog

Race and AI (2)


Hi everyone!  Recently, the guys over at the Law and AI blog were kind enough to invite me to do a guest post.  Read on for my thoughts on Race in AI.  

In 2002, the Wilmington, Delaware police department made national news when it decided to employ a new technique – “jump out squads.”  The police would drive around the city in vans, jump out in high crime areas, and take pictures of young people.  The officers engaged in these impromptu photo sessions to create a database of future criminals. 

If this plan sounds offensive, imagine if it were aided by facial recognition technology or other forms of artificial intelligence. 

Now, seventeen years after the Wilmington Police used vans and Polaroids, police have artificial intelligence at their disposal.  Police departments use AI in a variety of ways and for a variety of purposes.  Crime forecasting – also known as predictive policing – has been used by police in New York, Los Angeles, and Chicago.  Video and image analysis are used by many departments.  While AI might make law enforcement easier, the legal profession needs to keep a careful eye to make sure that AI doesn’t compound the disparities that already exist in criminal justice and other areas of the legal system.

To read more, click here.  

June 13, 2019 | Permalink | Comments (0)

Thursday, June 6, 2019

"Federal Indian Law as Paradigm Within Public Law" - Article by Professor Maggie Blackhawk

Professor Maggie Blackhawk of the University of Pennsylvania Law School recently published a provocative article, entitled Federal Indian Law as Paradigm Within Public Law, in the HARVARD LAW REVIEW.  Professor Blackhawk contends that the successes and failings of American constitutional law and public law have been framed largely through the lens of a black-white binary paradigm--with slavery and Jim Crow segregation providing the important lessons.  While acknowledging the importance of slavery and Jim Crow, Professor Blackhawk argues for reframing our evaluation of constitutional law and public law through the lens of federal Indian law--taking into account successes and failures in that realm.

June 6, 2019 | Permalink | Comments (0)

Tuesday, May 28, 2019

Calls to ban the Muslim Brotherhood aim to criminalise US Muslim dissent

When America's founders passed the First Amendment, protecting the right to dissent was the objective.  
Having experienced a repressive English state, they understood the hallmark of authoritarianism lies in the absence of freedom of thought, speech and association.  Yet, Trump's promise to designate the Muslim Brotherhood a terrorist organisation runs contrary to these fundamental American values. The consequence could be devastating for American Muslims' civil liberties.


For nearly two decades, the US' Middle East authoritarian allies and domestic Islamophobes (many of whom now serve as advisors in the Trump administration) have been advocating to criminalise "political Islam". This vague and pejorative label is frequently used to delegitimise Muslim activists, scholars and religious leaders who hold dissenting political views.  

Although the dictators and Islamophobes have different targets in mind, their goal is the same - to criminalise dissent and quash political opposition.  Middle East dictators seek US approval for their violent crackdown against their strongest political opposition movement - the Muslim Brotherhood.  

American Islamophobes want to criminalise Islam. The designation could unleash material support to terrorism prosecutions of non-violent, religious American Muslim activists who challenge unconditional US support for Israel, oppose Islamophobe's anti-Sharia campaigns, and defend religious freedom rights of Muslims.

If Trump goes through with designating the Muslim Brotherhood a terrorist group, the grounds of criminality will not be engaging in or directly supporting terrorism. Rather, it will be political beliefs. The government, therefore, would be unfettered in criminalising a wide range of views it disfavours

Challenging secularism, supporting faith-based government policies informed by Islamic values, or opposing US support of dictators who deny political rights to nonviolent Muslim Brotherhood members abroad could trigger prosecutorial action against American Muslims.  

Furthermore, academics attending international conferences in Turkey, Qatar, Jordan and Kuwait; Muslim organisations inspired by their Islamic faith to challenge the political order; and Muslim journalists critical of human rights violations of members of the Muslim Brotherhood in the Middle East could find themselves under investigation for supporting terrorism.

These investigations legally authorise asset freezes, which is the death knell of an organisation. They could also lead to "material support for terrorism" charges that do not require the government to prove the accused engaged in violence. So long as there is evidence the accused knew the Muslim Brotherhood was designated as a terrorist organisation, their nonviolent actions can be criminalized.

Similarly, Muslims seeking asylum from persecution by Middle East dictators could be denied on the mere suspicions they are "political Islamists". The same reasoning would expand national security grounds for denying applications for US citizenship by law abiding, practicing Muslims living in the United States.  

Ultimately, the freedom to dissent guaranteed by the First Amendment will not apply to Muslims. This totalitarian outcome is not accidental.

multi-million dollar Islamophobia industry, with members currently in the US government, has aggressively advocated for deporting, banning and criminalising Muslims. These right-wing extremists have defamed Muslims as inherently violent, incapable of practicing democracy, and savage as part of a broader "clash of civilisations" narrative.    This narrative has inundated Americans with propaganda warning them practicing Muslims are a suspect fifth column. Praying, fasting during Ramadan, donning a beard, or wearing a headscarf are portrayed as evidence of an illicit "Islamisation of America." Admitting Islam informs how you live your life is treated as treasonous.  

The message to American Muslims is clear: If you want to evade the heavy hand of the national security state, then you must secularise, assimilate into White Protestant normalcy, and dare not challenge American hegemony in the international order.  

Only secularised Muslims will be tolerated on condition they blindly support government policies or depoliticise altogether. Attempts to criminalise "political Islam" were on full display in a July 2018 Congressional hearing entitled The Muslim Brotherhood as a Global Threat

Zuhdi Jasser, a darling of the Islamophobia industry and right wing politicians, testified "[m]aking the Muslim Brotherhood radioactive would allow the light to shine upon their most potent antagonists in Muslim communities - those who reject political Islam and believe in liberty and the separation of mosque and state."  Throughout his testimony, Jasser condemned political Islamists and articulated the agenda of his Islamophobic backers - to abuse counterterrorism laws to deny American Muslims their constitutional right to hold unpopular political views. The only "good Muslims" are those who uncritically support the status quo and blindly parrot US government propaganda.

Weaponising counterterrorism laws to silence dissenting minorities is certainly not new.

J. Edgar Hoover targeted the Black Panther Movement and Nation of Islam on account of the FBI's determination that black nationalism was a national security threat. Their ideas, not violence, consequently drove anti-terrorism enforcement.  African Americans who vocally criticised the United States as an oppressive White Supremacist state found their organisations subjected to aggressive surveillance, informant infiltration, sting operations and prosecutions.  

While Muslims have been experiencing these aggressive state tactics since 9/11, a designation of the Muslim Brotherhood as terrorist will make it much easier for the Trump administration to target more Muslims in an already racialised counter terrorism regime. All the while, alt-right and white nationalist groups can continue to spew vile, hateful speech that inspire violent racists to shoot synagogues, mosques and churches. Calls to criminalise their ideas are rebuked by pointing out that anti-terrorism policies based on a fear of ideas, rather than proven violence, is "alien to the traditions of a free society and to the First Amendment."

But if the Middle East dictators and American Islamophobes have their way, these same rights will not be afforded to American Muslims. And America will creep closer to the authoritarian state the founders sought to avert.

-- Sahar Aziz, Professor of Law and Chancellor's Social Justice Scholar, Rutgers Law School.  Professor Aziz is the founding Director of the Center for Security, Race and Rights.

This article was originally published in The New Arab.

May 28, 2019 | Permalink | Comments (0)

Friday, April 5, 2019

Call for Authors - Feminist Judgments: Rewritten Property Opinions

Call for Authors - Feminist Judgments: Rewritten Property Opinions

Deadline for Applying: Friday, April 26, 2019

The U.S. Feminist Judgments Project seeks contributors of rewritten judicial opinions and commentary on the rewritten opinions for an edited collection tentatively titled Feminist Judgments: Rewritten Property Opinions. This edited volume is part of a collaborative project among law professors and others to rewrite, from a feminist perspective, key judicial decisions in the United States. The initial volume, Feminist Judgments: Rewritten Opinions of the United States Supreme Court, edited by Kathryn M. Stanchi, Linda L. Berger, and Bridget J. Crawford, was published by Cambridge University Press in 2016. Cambridge University Press has approved a series of Feminist Judgments books. In 2017, Cambridge University Press published the tax volume titled Feminist Judgments: Rewritten Tax Opinions. Other volumes in the pipeline include rewritten trusts and estates opinions and rewritten family law opinions.

Property law volume editors Eloisa C. Rodriguez-Dod and Elena Maria Marty-Nelson seek prospective authors and commentators for fifteen rewritten property opinions covering a range of topics. With the help of an advisory board of distinguished property law scholars, the editors have selected a list of cases that have not appeared in other Feminist Judgment volumes; potential authors are welcome to suggest opinions which do not appear on the list.

Proposals must be either to (1) rewrite a case opinion (subject to a 10,000-word limit) or (2) comment on a rewritten opinion (subject to a 4,000-word limit). Rewritten opinions may be re-imagined majority opinions, concurrences, or dissents. Authors of rewritten opinions will be bound by the law and precedent in effect at the time of the original decision. Commentators should explain the original court decision, how the rewritten feminist opinion differs from the original decision, and the impact the rewritten feminist opinion might have made. The volume editors conceive of feminism as a broad movement and welcome proposals that bring into focus intersectional concerns beyond gender, such as race, class, disability, gender identity, age, sexual orientation, national origin, and immigration status.

To apply, please email (1) a paragraph or two describing your area of expertise and your interest in this project; (2) your top two or three preferences from the list of cases below; and (3) whether you prefer to serve as an author of a rewritten opinion or an author of a commentary to a rewritten opinion. Please submit this information via email to the editors, Eloisa C. Rodriguez-Dod and Elena Maria Marty-Nelson, at elrodrig@fiu.edu and nelsone@nova.edu by Friday, April 26, 2019. The Feminist Judgments Project and the Property book editors are committed to including authors from diverse backgrounds. If you feel an aspect of your personal identity is important to your participation, please feel free to include that in your expression of interest. The editors will notify accepted authors and commentators by Monday, May 13, 2019. First drafts of rewritten opinions will be due on Monday, September 16, 2019. First drafts of commentaries will be due on Monday, October 28, 2019.

Tentative List of Cases:

  1.  Moore v. City of E. Cleveland, 431 U.S. 494 (1977) (exclusionary zoning)
  2.  Ass’n for Molecular Pathology v. Myriad Genetics, Inc., 569 U.S. 576 (2013) (patents)
  3.  Sawada v. Endo, 561 P.2d 1291 (Haw. 1977) (tenancy by the entireties)
  4.  Gruen v. Gruen, 496 N.E.2d 869 (N.Y. 1986) (inter vivos gifts)
  5.  Coggan v. Coggan, 239 So. 2d 17 (Fla. 1970) (ouster of co-tenant)
  6.  Phillips Neighborhood Hous. Tr. v. Brown, 564 N.W.2d 573 (Minn. Ct. App. 1997) (lease termination for illegal activity)
  7.  Taylor v. Canterbury, 92 P.3d 961 (Colo. 2004) (secret severance of joint tenancy)
  8.  White v. Samsung Elecs. Am., Inc., 971 F.2d 1395 (9th Cir. 1992) (publicity rights)
  9.  Johnson v. M’Intosh, 21 U.S. 543 (1823) (Native American property rights)
  10.  Dolan v. City of Tigard, 512 U.S. 374 (1994) (exactions/eminent domain)
  11.  Bartley v. Sweetser, 890 S.W.2d 250 (Ark. 1994) (premises liability)
  12.  Tate v. Water Works & Sewer Bd. of City of Oxford, 217 So. 3d 906 (Ala. Civ. App. 2016) (adverse possession and condemnation)
  13.  Blake v. Stradford, 725 N.Y.S.2d 189 (Dist. Ct. 2001) (ejectment of domestic partner)
  14.  Moore v. Regents of Univ. of California, 793 P.2d 479 (Cal. 1990) (property interest in one’s genetic material)
  15.  Pocono Springs Civic Ass’n, Inc. v. MacKenzie, 667 A.2d 233 (Pa. Super. Ct.1995) (abandonment of real property)

April 5, 2019 | Permalink | Comments (0)

Friday, March 29, 2019

Pioneering Women of Color in the Legal Profession: Too Important to be Forgotten

To celebrate Women’s History Month, I decided to write about the first women of color in the legal profession. I do not consider myself a naïve person, but I grossly underestimated the difficulty of this task.  I thought I would quickly and easily find the names of the brave women who paved the path for women of color in this profession.  Instead, I discovered that most of the information hard to find, contradictory, scattered, or lost to history.  Apparently, female attorneys of color matter so little that few have taken the time to compile a list of pioneering women of color in the profession. 

To be fair, some of the difficulty comes from the fact that communities of color come from many different places and have identified differently at different times.  But even after resolving these issues, the fact that these names are not prominently displayed for all to see is inexcusable. 

Recognizing these pioneers is not just a matter of setting the historical record straight.  It also helps present-day litigators.  According to all published reports, despite high levels of ambition, women of color struggle to get ahead in the profession.  The problem is so dire that the ABA has created an entire initiative devoted to women of color. By understanding the obstacles that these women overcame – and continue to overcome – other women of color can draw inspiration to go on when the whiteness and maleness of the profession seems to much to bear.  Also, the profession should highlight the stories of these women to change the perception of what legal excellence looks like.   Women of color in the legal profession need to be acknowledged and celebrated year-round – not just during Women’s History Month.

Now that I’ve vented my frustration about the way women of color have been overlooked, I’d like to spend the rest of this post honoring the women of color who paved the way for those who followed.  If there are any omissions or errors, please list them in the comments.   

The First Lawyers

1872 – Charlotte E. Ray.  In 1872, Charlotte E. Ray became the first African American woman to earn a law degree when she graduated from Howard Law.  Later that year, she was admitted to practice in Washington, D.C.   

1909 – Lyda Burton Conley.  When Ms. Conley was admitted to the Kansas bar, she became the first Native American woman attorney in the nation.  She worked tirelessly to protect Native American burial grounds and sacred spaces.  

1929 – Rosalind Goodrich Bates.  When Rosalind Goodrich Bates graduated from Southwestern University in 1929, she become one of – if not the very first – Latina to do so.  Born in El Salvador, Ms. Bates worked in international law.  She later became a judge and helped found the International Federation of Women Lawyers. 

1938 – Elizabeth K. Ohi.  Ms. Ohi, a graduate of the John Marshall Law School, became the nation’s first Japanese-American female lawyer in 1938.  She worked for labor unions and other such causes.  After the attack on Pearl Harbor, the government detained her.  Undeterred, upon her release, she joined the U.S. Navy.

The First Judges

As if succeeding as a female attorney of color were not enough of an accomplishment, these women decided to become judges.  Here are the first women of color to serve as jurists:

In State Courts -

1939 – Jane Bolin.  In 1939, Jane Bolin was appointed to the New York Domestic Relations Court, making her the first African American woman to serve as judge.

1978 – Frances Muñoz – The child of immigrants, Judge Muñoz attended segregated schools and later graduated from Southwestern University Law School. In 1978, Governor Jerry Brown made her a member of the judiciary, making her the first Latina trial judge in the U.S.

1979 – Patricia Yim Cowett – In 1979, Governor Brown of California appointed Judge Cowett to the Municipal Court.  The appointment made her the nation’s first Chinese-American female.

2001 – Rena Van Tine - In 2001, Rena Van Tine, a graduate of New York Law School, became the first Indian American woman to serve as judge when she took the bench in Cook County, Illinois.

In Federal Courts

1966 - Constance Baker Motley – A protégé of Charles Hamilton Houston, Judge Motley worked on desegregation cases prior to being appointed to the Southern District of New York by President Johnson.

1992 – Irma Gonzalez and Sonia Sotomayor.  August 12, 1992 was a banner day for women of color on the federal bench.  On that day, two Latinas, the Honorable Irma Gonzalez and the Honorable Sonia Sotomayor, received commissions for district courts in California and New York.  Judge Gonzalez continues to work as a senior judge.  Judge Sotomayor, of course, is now Justice Sotomayor.  

1994 – Rosemary Barkett (Barakat). In 1994, Bill Clinton appointed Judge Barkett to the 11th Circuit.  Born to Syrian parents who immigrated to Mexico, Barkett identified as both Latina and Middle Eastern.  Her appointment made her the first Arab American of either gender to sit on the federal bench.

2010 – Dolly Gee – A graduate of UCLA Law, Judge Gee was first nominated by President Clinton but Republicans refused to support her.  President Obama rectified the error when he re-nominated Judge Gee in 2009.  Judge Gee is the first Chinese American to serve on the court.

2014 – Diane Humetewa - Just five years ago, the first Native American female federal jurist took her seat.  In 2013, President Obama nominated Judge Humetewa to the U.S. District Court for Arizona.  In 2014, she was unanimously confirmed by the Senate.

The lives of these extraordinary women provide so much inspiration.  While each of these women is phenomenal, it’s also sadly true that many of these firsts are quite recent. As we reflect on the lives and careers of these women, I hope their struggles remind us of how far we have come and how we have yet to go in terms of how women of color are treated in the legal profession and in the nation at large

March 29, 2019 | Permalink | Comments (0)

Tuesday, March 26, 2019

Anti-Resilience: A Roadmap for Transformational Justice within the Energy System

Harvard Civil Rights-Civil Liberties Law Review published Shalanda Baker's Anti-Resilience: A Roadmap for Transformational Justice within the Energy System as its lead article. Baker works closely with colleagues in Northeastern University’s Global Resilience Institute, linking it to Northeastern University School of Law's Center for Law, Innovation and Creativity (CLIC). Below is the abstract of the article:

Climate change mitigation and adaptation require a transition of the energy system from one that relies on fossil fuels and is vulnerable to major climate events to one that is dependent on renewable energy resources and able to withstand climate extremes. Resilience has emerged as a conceptual frame to drive both climate and energy policy in this transitional moment. For example, in the wake of major storms such as Hurricanes Harvey and Maria, policymakers have frequently called for greater resilience of the energy system and resilience of vulnerable communities impacted by the storms.


This Article focuses on resilience at the system level. It argues that, in many cases, resilience of the energy system may actually reify structural inequality and exacerbate vulnerability. A hardening of existing energy infrastructure may also operate to harden existing social, economic, and environmental injustices that disproportionately burden the poor and people of color. Such situations call for new framings beyond resilience and transition toward liberation and transformation. This Article argues that, to facilitate the liberation of low-income communities and communities of color from the disproportionate impacts they face under the current energy system—and to foster a just transformation of the energy system—activists, policy-makers, and scholars engaged in the work of climate and energy justice must adopt a framework of anti-resilience: An antiracist and anti-oppression policy approach focused on the greater social and economic inclusion of people of color and low-income communities in the renewable energy transition.

March 26, 2019 | Permalink | Comments (0)

Saturday, March 23, 2019

The Melanin Memorandum, Vol. 1: What POC Need to Know About the Law This Week



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!



March 23, 2019 | Permalink | Comments (0)

Tuesday, March 19, 2019

Will Whites Be Stereotyped as Corrupt Because of Felicity Huffman?

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.

March 19, 2019 | Permalink | Comments (0)

Sunday, March 17, 2019

"Essentially Black" - Article by Professor Kenneth Nunn

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. 

March 17, 2019 | Permalink | Comments (0)

Friday, March 8, 2019

The “Brides” of Terror: The Women of ISIS and Layered Intersectionality - Guest Post by Cyra Choudhury

This blog repost comes from Professor Cyra Choudhury, Florida International University College of Law. The original post appeared here.

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.

March 8, 2019 | Permalink | Comments (0)

Wednesday, March 6, 2019

When Diversity Is At the Bottom of the List

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 schoolslaw 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.

March 6, 2019 in Current Affairs | Permalink | Comments (0)

Monday, March 4, 2019

Uncompromising Hunger for Justice: Resistance, Sacrifice, and LatCrit Theory

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.


March 4, 2019 | Permalink | Comments (0)

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. [1]

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 [2] 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?” [3] 

What I find to be most interesting about Kamala Harris’ racial identity is the influence of her mother, Shyamala Gopalan Harris [4].  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.

[1] 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.

[2] Barack Obama also has a sister named Maya.

[3] 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.

[4]  Sunil Adam also examines Kamala Harris’ mother’s influence in a recent India Abroad article entitled “Dreams from her mother.

February 23, 2019 | Permalink | Comments (0)