Monday, October 28, 2019

The Supreme Court and the Future of Affirmative Action

On October 1, the U.S. District Court for the District of Massachusetts issued its much anticipated ruling in Students for Fair Admissions (SFFA) v. Harvard.  Almost one year after the trial first began, Judge Allison D. Burroughs ruled that Harvard’s race-conscious admissions policy did not violate Title VI of the Civil Rights Act of 1964.  In a 110 page opinion, Judge Burroughs delved thoughtfully into the details of Harvard’s admissions process: the university’s self-studies of this process; its compelling interest in diversity; statistical models put forth by both SFFA and Harvard; and the prospect of using race-neutral alternatives to attain a diverse student body.   She found that Harvard’s policy did not intentionally discriminate against Asian American applicants, and that it was consistent with equal protection guidelines laid out in Grutter v. Bollinger (2003) and Fisher v. University of Texas at Austin II (2016)—guidelines that also apply to Title VI race discrimination.  Judge Burroughs’ opinion provides a meticulous exemplar for future courts that evaluate race-conscious admissions policies. 

SFFA is sure to appeal the ruling to the U.S. Court of Appeals for the First Circuit.  Here, the district court’s ruling will likely be affirmed.  It is improbable that the First Circuit will want to reconsider the statistical models presented by SFFA and Harvard and the legal conclusions that Judge Burroughs drew from them.  One question that the First Circuit could revisit is whether Harvard fully considered race-neutral alternatives to attain a diverse student body.  This issue may also well be the focus of future lawsuits intended to eliminate race-conscious admissions policies.  Nevertheless, since Fisher dealt with the issue and Judge Burroughs addressed it thoroughly, a reversal on these grounds is also unlikely.  The precedent here is pretty clear: the “Harvard plan”, with its emphasis on educational benefits of diversity and on holistic admissions, was the basic model upheld in Regents of the University of California v. Bakke (1978) and later affirmed in Grutter and Fisher

The big question now is whether the U.S. Supreme Court will grant certiorari, since SFFA is also sure to appeal subsequently to the High Court.  The Court now has a solid conservative majority, with three of the Justices having previously voted to strike down race-conscious admissions policies: Chief Justice John Roberts, Justice Samuel Alito, and Justice Clarence Thomas.  Justices Neil Gorsuch and Brett Kavanaugh are also widely thought to oppose such policies.  Barring an unexpected vote from one of these Justices, a cert grant will likely mean the end of affirmative action in university admissions.  Even if the Court does not abrogate the compelling interest in diversity altogether, it could still require universities to fully exhaust race-neutral alternatives to attain this diversity.  This would make Grutter’s narrow tailoring standard virtually impossible to meet and effectively accomplish the same end.

However, there are a few reasons why the Justices might deny cert.  First, only three years have passed since the Court decided Fisher v. University of Texas II.  Even if the Supreme Court did not hear SFFA v. Harvard until 2023, that would still only be seven years after Fisher II.  In contrast, 25 years passed between the Court’s rulings in Bakke and Grutter, and another decade passed before the Fisher rulings.  Chief Justice Roberts cares about the legitimacy of the Court in the public’s eyes, and revisiting the contentious issue of race-conscious admissions now would likely fuel public perceptions that the Court is not impartial, but merely another political body.  Roberts may prefer that the Court wait a few years to take another case.  If he can convince at least one other conservative Justice that this is the best course, cert would be denied.

Additionally, if they are willing to wait, the conservative wing of the Court can eliminate race-conscious policies in a manner that is arguably consistent with Grutter.  In 2003, Justice Sandra Day O’Connor’s Grutter majority opinion posited that race-conscious admissions policies would no longer be necessary in 25 years—in 2028, which is only nine years away now.  After she retired, Justice O’Connor stated that the 25 year timeframe was merely an aspiration.  However, others, including the late Justice Antonin Scalia and Justice Stephen Breyer, have suggested that this timeframe may be part of Grutter’s holding.  Consequently, the conservative wing of the Court, led by Roberts, could choose to wait until 2028.  They could then vote to end race-conscious admissions and contend that they are not eschewing precedent, but actually following Grutter’s time limit. 

By 2028, the political implications of an anti-affirmative action ruling may also be different.  States have been taking various measures, from popular referenda to legislative and executive action, to eliminate race-conscious policies.  Trump’s Department of Justice has initiated investigations of race-conscious admissions policies, putting pressure on universities to curb back these policies.  SFFA has again sued the University of Texas, this time in state court, and it has also has a federal lawsuit pending against the University of North Carolina.  In another decade, there may be a Circuit split on affirmative action, as there was when the Court granted cert in Grutter.  A decade from now, all of these factors would make a ruling against affirmative action appear less politically-motivated and more consistent with precedent and popular will than a cert grant in SFFA v. Harvard

Whether it happens sooner or later, most experts think that the Supreme Court will strike down affirmative action in university admissions.  Nevertheless, we should remember that the “Harvard plan” has been a resilient doctrine.  Four decades ago in Bakke, it saved affirmative action.  Twenty years ago, many observers predicted that Grutter, along with its companion case Gratz v. Bollinger (2003), would end race-conscious admissions policies.  But Justice O’Connor, who had previously been hostile to such policies, surprised them by embracing the Harvard plan in her Grutter opinion.  Justice John Paul Stevens also gradually changed his views on affirmative action, voting against race-conscious admissions policies in Bakke and then voting in favor of them in Grutter.  And even though Justice Anthony Kennedy dissented in Grutter, he then voted to uphold the Harvard plan in Fisher.

Expert predictions have often been wrong about Supreme Court jurisprudence regarding affirmative action.  Perhaps no major issue before the Court has so repeatedly bucked expectations.  At a time when the Supreme Court has become more conservative than ever, the best hope for proponents of affirmative action is that history keeps repeating itself.

October 28, 2019 | Permalink | Comments (0)

Monday, October 21, 2019

A Most Vicious Cycle: Mass Shootings, Gun Rights, and Police Killings of Blacks (Guest Blog by Prof. SpearIt)


Mass killings continue unabated in the U.S. Since Columbine and Sandy Hook, there have been what seems like countless gun attacks that leave multiple innocent lives lost. Despite the fact that the children lost at Sandy Hook would by now be teenagers, the many killings since then make those tragic events seem like ancient history.

Starting with what seemed to be random killing sprees, efforts have become more ideologically intentional, with Muslim, Jewish, LGBTQ, Black Christian, and most recently, Latino and immigrant communities being the focus of attacks. Although these shootings clearly harm members of these discrete groups, not so visible is how these shootings harm black communities. Indeed, hardly matters which group is the target of a mass shooting, since Blacks, in the end, will also pay a price, particularly when it comes to policing and being on the receiving end of harsh treatment by police.

One point to consider, as history shows, is that mass shootings are invariably followed by legislation that liberalizes gun laws. One study showed that a “single mass shooting leads to an approximately 15% increase in the number of firearm bills introduced within a state the year after the mass shooting…(this) holds for both Republican-controlled and Democrat-controlled legislatures.” Some researchers found that more than “20,000 pieces of gun-related legislation were produced after mass shootings in the last quarter century.” While some states have moved to restrict gun rights, the general thrust of mass shootings has not been to inspire conservative attitudes toward gun rights, but rather, to arm more citizens, allow more carrying of guns, and allow for greater self-defense with guns.

Simultaneous to this gun-rights expansion is the refusal of politicians to regulate guns in a meaningful way. Because of this lack of political will, there is military-grade weaponry on the streets and in the hands of citizens, the mentally ill, and criminals alike. The situation lays an opportune foundation for mass casualties at the hands of a single individual. A simple look at recent killings show that a common denominator was the use of assault rifles.

Under such conditions, the country has become a very dangerous place. It is a new wild, wild, west, where such weaponry, in turn, helps to justify the militarization of police. Although the push to make police more militant began in the 1970s post-Vietnam era, in the following decades, it has been embraced by law enforcement officials. Today, police departments own choppers, tanks, and military trucks, armed with high caliber weapons, flash grenades, helmets, and military armor. Such armament is reasonable and necessary for police to do their jobs in the perilous world that their elected officials have created.

This vicious cycle of mass shootings and police armament directly bears on the killing of Blacks. This is true at least to the extent that mass shootings have stunned, numbed, and dumbed the public to killing in general. In the wake of these mass slaughters, including of children, the police killing of a single black “suspect” holds far less shock value.

The mass loss of life thus makes black lives matter even less. In turn, the case of Colin Kaepernick shows that simply protesting against police brutality can lead to all sorts enragements, the likes of which effectively ended his football career. Even though police stop, arrest, and kill Blacks at higher rates than any other ethnic group, the controversy surrounding his protest has consumed the American public more than the brutal police killing of Blacks.

Even if Blacks are not killed, their communities bear the brunt of heavy police armament. The high-caliber artillery of police translates into real physical pain for these communities. Their residents are the ones likely to be beaten, bruised, tased, stunned, have bones broken, and have sight and hearing lost due to injuries. Some of the damage occurs when simple arrest warrants are executed with Rambo-style tactics, replete with an arsenal of weapons and technology.

In turn, black communities are empirically the least able to arm themselves because of felony disenfranchisement laws. The disproportional representation of Blacks in the criminal justice system yields a disproportionate number of Blacks who cannot legally possess a gun. Hence black communities, more than any other ethnic group, are far outgunned by the police and others who can lawfully possess a gun.

These developments are consequences of an ongoing arms race between police and civilians. This race is stimulated is time another shooting occurs involving guns that are more suited for war than simple self-defense. Thus, as long as lawmakers remain inert when it comes to the killings, the damage will continue, and with it, collateral damage to black communities.

Mass shootings ensure that Blacks will ultimately be at the receiving end of the weapons and technology wielded by police who arm themselves with mass shooters in mind. It is the ultimate bait-and-switch whereby police arms are justified by the weapons used in mass killings, yet Blacks, who are the least-armed, are the ones who are menaced by this armament more than anyone else.

-- by SpearIt, Professor of Law, Texas Southern University Thurgood Marshall School of Law

October 21, 2019 | Permalink | Comments (0)

Monday, October 14, 2019

Court Recognizes Reputational Harm to Muslims on Terrorist Watchlist

For nearly 20 years, Muslims in the United States have borne the brunt of aggressive and over-reaching national security practices.  Among the most pervasive are security screenings at airports and ports of entry.  Muslims’ experiences of being frisked, interrogated about their religious beliefs and practices, and having their electronics confiscated has become so frequent that it is referred to as “Flying While Muslim.”   

Underpinning such religious profiling is a massive terrorist watchlist comprising more than 1.1 million names, the majority of whom are Muslim and over 4,600 are U.S. citizens and green cardholders. Multiple federal agencies can nominate persons to the Terrorist Screening Center (TSC), which is responsible for vetting the watchlists.  Ninety-nine percent of all nominations are accepted, triggering serious civil liberties concerns with the lack of meaningful review. 

After years of litigation, and futile administrative complaints through the DHS Traveler Redress Inquiry Program (TRIP), the Muslim plaintiffs in Elhady v. Kable finally obtained legal relief.  On September 4, 2019, the federal district court in Virginia ruled that  the watchlisting process is unconstitutional. The absence of a pre- or post-deprivation hearing coupled with a sham administrative grievance process persuaded Judge Trenga to grant summary judgment for plaintiffs on their procedural due process claim. 

Most notable was the court’s recognition of the high reputational costs suffered by the Muslim plaintiffs, not only during travel but in other forums.  This finding is a welcome humanization of Muslims, whose dignitary and civil rights have been systematically subordinated to abstract national security interests. Whether challenging the National Security Entry Exit Registration System (NSEERS), immigration roundups of Arabs and Muslims after major terrorist attacks, or punitive detention conditions for terrorism suspects, Muslims have consistently been rebuked by courts deferential to the executive branch. 

In contrast, the court in Elhady found the plaintiffs had a liberty interest, under the Fifth Amendment Due Process Clause, in being free from false governmental stigmatization as a terrorist.  Citing the 1976 Supreme Court case Paul v. Davis, the court stated “[a] person has certain rights with respect to governmental defamation that alters or extinguishes a right or status previously recognized by state law, known as a ‘stigma-plus.’” To show stigma-plus, plaintiffs must show both a stigmatic statement and a state action that alters or adversely affects plaintiffs’ interests.  

The 23 Muslim plaintiffs filled the record with accounts of humiliating and abusive treatment by federal agents in the Customs and Border Patrol and Transportation Security Administration.  The lead plaintiff Anas Elhady was held for nearly six hours in “a small, freezing cold holding cell with bright lights,” causing him to be hospitalized. Another plaintiff, Ahmed Al Halabi, was “surrounded by armed CBP officers, handcuffed in front of his children and detained in a freezing cold holding cell for approximately two to three hours” when crossing the Canadian border by car. At least six of the plaintiffs were held at gunpoint, while their friends and families watched in horror.  And many were asked intrusive questions about what mosques they attended, what sect of Islam they belong to, and whether they study Islam full time. 

After repeated unsuccessful attempts to remove their names from the terrorist watchlist through the DHS TRIP, some plaintiffs stopped traveling outside the United States or on airplanes altogether. 

The harmful consequences of being on the watchlist extend beyond travel. The watchlist is widely disseminated to more than 18,000 state, local, county, city, university, tribal, and federal law enforcement agencies and 533 private entities through the National Crime Information System (NCIC).  As a result, people wrongly on the watchlist lose jobs. Government employers reference the watchlist for screening of employees and contractors.  So too do private employers with transportation and infrastructure functions.   

People wrongfully placed on the watch list also cannot own firearms in some states, are denied certain licenses, and have their bank accounts erroneously closed by entities that review the NCIC in their decision-making process. Citizenship and green card applications are indefinitely delayed due to an opaque FBI name check process that relies in part on the terrorist watch list.  Additionally, if someone on the watch list is subjected to a minor traffic stop, the police proceed as if they are dealing with a suspected terrorist.   

With countless Muslim names on the watchlist, pervasive false stereotypes of Muslims as violent and disloyal are corroborated to the millions of people reviewing the watchlist.  

Despite the broad adverse consequences, the standard for being added to the watchlist is vague and low.  The TSC accepts nominations to the watchlist for “an individual who is reasonably suspected to be engaging in, has engaged in, or intends to engage in conduct constituting, in preparation for, in aid of, or related to terrorism and/or terrorist activities.”  

There is no requirement that a person engaged in criminal activity, committed a crime, or even will commit a crime in the future in order to be placed on the watchlist.  Hence the decision is based largely on subjective judgments. 

Even more problematic is the TSC’s consideration of an individual’s race, beliefs, and activities protected by the First Amendment, travel history, and personal associations in evaluating a nomination.  This likely explains the over-representation of Muslims on the watchlist, including at least 4600 U.S. persons.  For these reasons, the court found DHS TRIP does not satisfy the Due Process Clause; and a post-deprivation hearing is warranted.    

A generation of Americans has come of age in a post-9/11 era where suspecting Muslims of terrorism is the norm.  Indeed, over 40 percent of Americans believe Islam is more likely to encourage violence than other religions.    Each time someone witnesses a government agent stop, detain, and search a Muslim at the border and airport, Islamophobic stereotypes are validated.   

Thus far, the courts have offered little relief for American Muslims’ pursuit of their legal and dignitary rights.  Only time will tell if the Elhady case signifies a reversal of this troubling trend or merely an anomaly. 

--- This article was originally published in the American Constitution Society Experts Forum here.

October 14, 2019 | Permalink | Comments (0)

Saturday, October 5, 2019

Excusing Racism: The Persecution of Donald Trump (Guest Blog Prof SpearIt)


For readers, this title might suggest yet another foray into the many controversies about Donald Trump’s racist tendencies. However, it is not. This article is not about Trump’s treatment of other people, but about how other people have treated Trump, racially speaking that is. Looking at the facts, it is clear that Trump has been, and continues to be, racially persecuted.

Although some might argue that he is simply getting his just deserts for fomenting racial angst, it leads one to wonder why such comments are excused or overlooked. It is indeed an odd spectacle to watch critics of Trump’s racism respond with racial epithets and color-coded jokes. This excused racism must be called out and abandoned for what it is, a counter-racial strategy that is itself tinged with discrimination.

Cheeto, Agent Orange, Orange Julius, and Orange Man are some of the epithets that are used to poke fun at Trump. These characterizations and the many others hardly illicit any protest. Even late-night comedy shows have featured segments that have taken liberties with Trump that would be unimaginable if said about an African-American or Latino politician, or anyone else for that matter. The Late Show host, Stephen Colbert, is known for making jokes about Trump, and in one episode proclaimed, “We have no idea what the color of his skin is.” Jimmy Kimmel has dubbed a book about Trump as “Fifty Shades of Orange.” These and an abundance of other such attacks proclaim open season on Trump, specifically on his color and appearance.

These characterizations are blunt showings of racism by practically any definition. Of course, there are competing definitions of “racism,” but most would seemingly include invidious discrimination based on skin color or physical attributes. Yet these are the exact sort of attacks being launched against Trump. So why the double standard? How can Trump be taken to task about his racist postures when his critics are lobbing back insults that have similar flavor?

Although peoples’ anger and hatred of Trump may excuse this type of joking, there are discrete dangers involved. This sort of counter-racism is just as harmful as the racism that instigates it, and it goes without saying that such talk would never be accepted if the comments were directed at Kamala Harris, Elijah Cummings, or any other non-white member of congress. Yet such conduct continues unabated when it comes to Trump.

Perhaps one of the overarching insights of this phenomenon is that hatred is indeed blinding. For many Americans, Trump represents the epitome of race-hatred, and because of that he is an obvious target of criticism. Yet when that crosses the line into textbook discrimination, it is still a bad thing—even when it happens to an overprivileged, spoon-fed swindler from the dominant racial class.

Although some might counter that some of the joking has to do with the fact that the “color” being discussed is not really his at all. Instead, the jokes are rooted in the premise that he does things to achieve the color he has. While this might seemingly justify the epithets, it does nothing for people who really are that color. Whether through hair color, freckles, or other skin colorations and attributes, there are people who have an “orange” countenance. So, even if Trump’s color may be the bud of a joke, it might not be so funny for people of similar hue.

Attacks on Trump that are couched in racism should not be more acceptable than any other brand of racism. The fact that hatred helps to excuse these attacks should be alarming. It suggests, as a baseline proposition, that society must be vigilant to protect those who are hated or despised the most. Failure on this point can lead to moral breakdown, for as we are witnessing, hatred of Trump has birthed some of the very attitudes for which he is hated. Trump’s brutal immigration policies alone have ignited all sorts of visceral reactions from the American public.

Some might view this as giving Trump a dose of his own racial bigotry, but society must take care not to fall into the trap of condoning racism simply because we despise a person or group, such as immigrants or even a corrupt president.

We must be careful not to allow the hatred to propel us into becoming what we despise.

-- by SpearIt, Professor of Law, Texas Southern University Thurgood Marshall School of Law

October 5, 2019 | Permalink | Comments (0)

Call for Proposals: Detroit Mercy Law Review Symposium: Race, Class, and Environmental Justice

The University of Detroit Mercy Law Review seeks proposals for its 104th annual Symposium, which will focus on Race, Class, and Environmental Justice and will be held Friday, March 6, 2019, in Detroit, Michigan.  Proposals, which should be approximately 250–500 words, are due no later than 5 p.m. EST on Friday, October 18, 2019.  Possible topics include, but are not limited to: the impact of water and air quality issues on marginalized people; the history of ecological inequities and the law; legal approaches to climate change and global warming; challenges arising from efforts to increase the use of renewable energy; legal and equitable issues connected with deep decarbonization projects; and any other topic related to race, class, and environmental justice.  Please include a current CV with your proposal and indicate whether the proposal is for a presentation only, or whether you also plan to submit an article for possible publication.  Preference will be given to proposals that include plans for an article, which will be due to the Law Review on Friday, March 13, 2019.  Proposals and questions should be directed to Bridget Underhill, Symposium Director, at

Deadline: Friday, October 18, 2019

October 5, 2019 | Permalink | Comments (0)

Tuesday, September 24, 2019

New Casebook - Business Organizations: An Integrated Approach by Professor Lisa M. Fairfax

Congratulations to Professor Lisa M. Fairfax (George Washington University) on her new casebook Business Organizations: An Integrated Approach (Doctrine and Practice Series). It covers traditional corporate law doctrine and cases and thus will be familiar to corporate law professors, but also uses a variety of techniques to ensure that students are able to understand and learn complex topics in a sophisticated but accessible manner.  These techniques include:

  • outlining core concepts at the beginning of each chapter
  • reinforcing core ideas at the conclusion of each chapter
  • presenting short questions before and after the cases to focus on key issues
  • using different visuals for text books and statutes
  • using problems that contain familiar and relatable factual scenarios throughout the book
  • providing quick self-assessments and online multiple choice assessments
  • highlighting key business concepts the first time they appear in cases to put those concepts in context

Fairfax's Business Organizations: An Integrated Approach (Doctrine and Practice Series)

Business Organizations: An Integrated Approach also provides students with opportunities throughout the book to see how the law works in practice, through short drafting exercises and statutory analysis. Business Organizations: An Integrated Approach includes a Teacher's Manual with detailed instructions about how best to use the various techniques and problems in the book and otherwise how best to present materials to students.

Business Organizations: An Integrated Approach also seeks to integrate issues related to social responsibility, sustainability, corporate purpose, and shareholder rights throughout the book.  It does so by discussing these themes at the outset and then using problems, questions and text boxes to demonstrate the ways in which these themes arise, and may have an impact on, in different cases and business law contexts.  

September 24, 2019 | Permalink | Comments (0)

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,, 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,, office (321) 206 -5677, cell phone (571) 643-2691

Professor Meg Penrose,

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 and 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)