Thursday, December 31, 2015

Seven Things to do to Honor the Memory of Tamir Rice and Other Victims of Police Brutality

Tamir rice


This week, in the midst of holiday celebrations, we learned that the grand jury failed to indict the police officer that killed Tamir Rice.   Rice, who was holding a toy gun at the time, was only 12 years old.

It seems that of the many stories about race and policing this year, the Rice case has struck a particular nerve. Perhaps it is his young age, the circumstances of his death, or the fact that this grand jury’s failure to indict is close on the heels of a similar result in the Sandra Bland case. But whatever the reason, for those that care, the collective reaction to the grand jury’s decision is somewhere between outrage and disgust.

Racism is successful because racial fatigue is very real. There are so many injustices that it can be hard to keep up with all of them, much less feel like you can do anything about them. One antidote to feeling helpless is to make a list of things that you can do to improve things. So, here are seven things that can be done.  Some are focused directly on the Rice case. Others would apply to any future case.

1. Join solidarity protests and boycotts. Not long ago, it was common to hear people argue that marching and protesting were passé. But in the last year or so – at least since Ferguson – it seems that taking to the streets is still an effective way for communities to voice their frustration.  Even if you don’t live in Cleveland, you can find a local “solidarity march” closer to you. If you click here you can find a list of events across the nation. Or, start your own event.

2. Donate.  Some may feel that a donation doesn’t matter as much as marching or other tactics. But there are a number of good organizations doing good justice work and donations help them to continue that work. You can find a map of those organizations here. You can donate to a Cleveland-based group, a national group, or a group where you live.

3. Educate yourself about state and local politics. One of the most frustrating questions that I hear as a law professor is, “Why isn’t President Obama doing more about police brutality?”   The question is frustrating because that is not how our system is designed. As schoolchildren, we are taught that the president is an all-powerful being, but under our Constitution, that couldn’t be further from the truth. The president has no Constitutional authority over any local police department in our nation. They do not report to him. But, just because they don’t report to him doesn’t mean that they are accountable to no one. Know who your local police, prosecutors, judges, and other officials are. When a Tamir Rice/Sandra Bland/Michael Brown situation happens, these are the people who will be making the decisions. So, educate yourself about who these people are. What are their positions on police misconduct? You can find a link that will help you locate your state legislators here.

4. Fight against grand juries in police misconduct cases. Once you who your state and local representatives are, you can lobby them to make real change. Earlier this year, California governor Jerry Brown signed legislation that made California the first state to ban grand juries in cases where police use deadly force. Contact your state legislators and ask them to sponsor similar legislation.

5.  Learn the role of the federal government.  Just because the president and Congress have no direct control over police departments doesn’t mean that they have no role to play. The biggest role the federal government plays is the role of investigator when allegations of police misconduct are made. So, as you consider candidates for 2016, ask those running for Congress if they would support funding for police body cameras. Ask those running for president if they will appoint an attorney general that will be an active advocate, or simply a placeholder. 

6. Register to vote and VOTE!  Learning about the candidates and issues means nothing if a vote is not cast. If you are already registered, register others. If you plan to vote, volunteer to drive others to the polls. Most important, do not just vote in presidential election years! As stated above, local and state politicians control the local police forces. In many areas, the sheriffs or prosecutors are elected. These elections are usually not held during the presidential election cycle. In some locations, they may not even be held in November. Find out when your local elections are and plan to vote in them on a regular basis. 

7. Don’t give up hope. On most days, it seems like just as we begin to process one racial injustice, another one happens. But remember, history is on our side. A little more than 150 years ago, slavery still existed in this country. About 100 years ago, Blacks (and Latinos) were publicly lynched on a regular basis. And just 50 years ago, African Americans were still fighting for the right to vote. While racial progress is slow – painfully slow - it does happen.   Never forget that. And yes, while racism may morph into different forms for different eras, know that when the next form of racism appears, we’ll be ready to fight that one too.

December 31, 2015 | Permalink | Comments (0)

Tuesday, December 29, 2015

Learn His Name and Hear His Story: Teaching About Tamir Rice and the System Designed to Fail Him

On December 28, a Grand Jury of Cuyahoga County, Ohio, declined to indict Cleveland Officer Timothy Loehmann for the shooting of Tamir Rice. Tamir's story represents the near immunity police officers have for using deadly force, and I for one pledge to insure that the future lawyers I teach know his story and know how the system, by design, failed him.

Tamir-riceThe failure of a grand jury to indict in this situation nothing new. In recent memory, a grand jury declined to indict Officer Darren Wilson for the shooting of Michael Brown in Ferguson, MO. A grand jury declined to indict Officer Daniel Pantaleo in the choke-hold death of Eric Gardner in Staton Island, NY. A grand jury declined to indict the jailers of Sandra Bland for her death while in custody outside of Houston, TX (but as of this writing the arresting officer remains under grand jury investigation). In the realm of recent high-profile killings of African Americans in police custody, only the six officers alleged to have killed Freddie Gray in Baltimore, MD, have been indicted.

According to the Post, of the thousands of times within the past decade that officers have shot and killed people, only 65 of those officers have been indited, and a small percentage of that group have been convicted. And, "[a]lthough black men make up only 6 percent of the U.S. population, they account for 40 percent of the unarmed men shot to death by police this year [2015]."

This represents a pattern. Indictments in police shootings are rare. As a result, police officers have little to no judicial accountability for their killings.

Many blame prosecutorial bias for this. Some observe that jury bias or even the weakness of the cases are why such indictments are not brought. No matter what thesis you choose, these explanations point to the blind spot of the criminal justice system regarding police killings.

Ironically, the quote the Washington Post reported from Cuyahoga County Prosecutor Timothy J. McGinty, sums it up:

"The outcome will not cheer anyone, nor should it,” McGinty said of the grand jury’s decision. “The death of Tamir Rice was an absolute tragedy. But it was not, by the law that binds us, a crime.”

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December 29, 2015 | Permalink | Comments (0)

Professor Eric Miller's Response to "Black Tape at Harvard"

The New York Times recently published a provocative op-ed “Black Tape at Harvard Law School” by Professor Randall Kennedy. The op-ed triggered a lively conversation among legal academics, including the following response by Professor Eric Miller.

I read Professor Kennedy’s op-ed and I thought it was a challenging and thought-provoking piece, much in line with his equally thought-provoking questions about respectability politics. I read both as asking difficult questions about the politics of engagement with white-dominated establishment institutions, and both pieces asking what might be most effective. I did not interpret the NYT op-ed as challenging the rights or propriety of students (or faculty) at HLS protesting the masking tape placed across professors' faces. I did take it that Professor Kennedy was suggesting that there may be different ways to respond to the incident.

Professor Kennedy appears to argue that perhaps those engaged in developing political responses to micro-aggression ought to think carefully about adopting responses that are often associated with macro-aggression—the language of trauma. It’s an interesting thought, one that has, buried within it, important questions of race-and-class privilege, and Professor Kennedy was willing to put his personal response out there to exemplify a different political language of engagement. 

The question of political tactics is an important one. Part of it, for me, is whether we are still willing to have a conversation about race with folks who are (willfully?) ignorant or uninterested, or who place their priorities elsewhere (“free speech”), or if we think we’re beyond conversing.

I’m not sure how the different campus’s issues relate to each other, and to the other struggles for racial recognition, such as Black Lives Matter. Undergraduate is a lot different than graduate school, and law school is different from other types of graduate school, in terms of the types of issues that students are exploring and the ways they are exploring them. Different campuses may have different politics and different issues. At Missouri the same and Yale, students bore the brunt of—at best—administrative insensitivity, but at different levels of the administration.

At Harvard Law School, it was the faculty that was directly targeted (although arguably that sent a message to the students), and the students responded on behalf of the faculty. Are the issues different at elite private institutions (Harvard and Yale) than flagship state institutions (Missouri)? Are campus politics a proxy for national politics? Who targets, who responds, and how should they respond? Part of the university experience is seeking out and talking through challenges to our dearly held opinions, yet, still too often, those challenges are poorly executed (by faculty, administration, and students) and minorities often bear the burden of explaining or exploring that discomfort. Sometimes we’re past conversing.

The language of trauma is perhaps one way to suggest we’re beyond conversing. The language of trauma fits with the characterization of the slight as an act of aggression, and fits the role of ending discussion and asking for plain recognition that slights inflict pain and disenfranchisement from the university community. Alternatives, including forms of respectability, might seek to promote certain types of conversation. What's appropriate when the choice is not respectability politics or nothing? This is a difficult question. Sometimes one response may work better than another, even though we might wish it were otherwise. I’d hate to think that any one of us interrogating tactics or strategy, as Professor Kennedy has done, would be confused with lack of sympathy for or support of the ultimate aim of all of us, which is a campus inclusive of all.

- Professor Eric Miller, Loyola Law School in Los Angeles

December 29, 2015 | Permalink | Comments (0)

Thursday, December 17, 2015

Of Mismatch and Missed Points: What Justice Scalia’s Critics Overlook (or Why Abby Fisher Is No Katniss Everdeen)


During last week’s oral arguments in Fisher v. Texas, Justice Scalia stated, “There are those who contend that it does not benefit African Americans to get them into the University of Texas, where they do not do well, as opposed to having them go to a less-advanced school, a slower-track school where they do well.”   The reaction to Scalia’s comments was swift and stinging.

Justice Scalia’s comments certainly deserved to be criticized. However, the response to Scalia’s comments fails to observe one of the core tenets of anti-racism: Never focus your rage on a person when it should be focused on a system.

There are two core issues that underlie the real problem with Scalia’s statement. The first is our notion of merit. In general, merit is measured through test scores. Indeed, test scores are at the heart of Abigail Fisher’s suit. However, test scores have a well-known and extensively studied racial bias. Despite the racial bias, and despite the fact that standardized testing is not a good predictor of academic success, standardized tests remain a popular tool in most admissions offices. Rather than attacking Justice Scalia’s highly problematic statements, it would be better to attack the even more problematic system of standardized testing.

Second, even shifting the focusing to merit ignores an even more fundamental problem – the legacy of race in American education. Although Brown v. Board ended school segregation, due to massive resistance, the promise of Brown did not come to be until ten to fifteen years later in many jurisdictions. But, with decisions like San Antonio v. Rodriguez and Milliken v. Bradley in the early 1970s, the Supreme Court essentially ended integration. In fact, according to one study, at present, 74% of African American students and 80% of Latino students attend schools where they are the racial majority.   Additionally, the study notes that 38% of African Americans and 43% of Latinos attend “intensely segregated” schools where white students are less than 10% of the student body. Worse still, 15% of black students and 14% of Latino students, attend schools where whites make up less than 1% of the enrollment. These “apartheid schools” have been on the rise since the 1990s.   As a result, our schools are as segregated now as they were in 1968. Moreover, in addition to having higher rates of racial segregation, these schools are often also segregated along class lines. This “double segregation” means that most students of color in public schools are attending schools that are populated with poor black and brown children.  

This segregation is a major problem as students at low-income, majority-minority schools do not fare as well. The New York Times states that, “Minority schools tend to be larger, have higher student-teacher ratios and have higher poverty rates.” And in such schools, Richard Rothstein writes that the focus shifts from learning to discipline, from enrichment to remediation, and from building on prior learning to repeating lessons.   As a result, poor African American and Latino children are not given much of an opportunity to learn.  Segregated schools, it seems, lead to segregated outcomes.

The current racial realty of American schools is much like The Hunger Games. The Hunger Games trilogy follows heroine Katniss Everdeen (pictured above) through a bleak future where residents of the nation of Panem annually select two children at random from each of twelve districts to participate in a fight to the death. The winner earns extra food for his or her home district for a year, as well as money and a comfortable home. In order to win, the children use brutal tactics against each other. In addition to the vicious competitors, the game arena is also filled with deadly traps. Because of the dangers and the rules of the game, it is clear to all – participants and spectators alike - that there can only be one survivor.

The poor Black and Latino children of our public schools are much like those in the Hunger Games. These children (and often, their teachers) must fight for each and every scrap of education that they get, often overcoming substantial obstacles in the course of the fight. To be certain, there are people who “make it” out of the ‘hood or the barrio.   But the fact that their peers did not doesn’t mean that they were less worthy. It just means, like the Hunger Games, that the system was rigged against multiple victories from the beginning.

Our racially rigged k-12 education system is why race-based admissions policies remain necessary. Until all children receive the same quality education, any test that is given to them will be a false measure of their true abilities. Moreover, when children of color do manage to survive and thrive in the face of poverty, violence, and other obstacles, the least we can do is give them an easier path to college in recognition of their struggles. But to be clear, the goal of racial justice advocates should be to dismantle segregated education and all of its vestiges once and for all. Until this happens, the Black and Brown underclass will continue to fight in America’s educational Hunger Games – one where the odds are seldom, if ever, in their favor.

December 17, 2015 | Permalink | Comments (0)

Wednesday, December 9, 2015

Home is Where the Hate is – the Real Problem with GOP Racism

Eviction 2


Much ink has been spilt about the racism in the Trump campaign for president. There is little doubt that his candidacy and quick rise in the polls are tied to clearly racist statements and polices. It’s also no secret that at least since the Nixon administration, the GOP has relied on racist memes to motivate its base. But the most troubling question is not why the Republican Party tolerates or even recruits racists, but what it means for our republic that it does.

The GOP’s racist policies mean that racism has a home in America. The racists in the nation know that they can always come home to the GOP. Home is a place where you can say “Yes, let’s keep out those Muslims!” and not be afraid. It’s a place where you can rejoice without repercussion as a protestor is attacked at a rally. The GOP’s embrace of racism is to racists what home is to the rest of us at the end of a long day: a place to get comfortable.

But more than making racists comfortable, the GOP’s toleration of hateration serves to validate – and maybe even strengthen - the racist ideology of its rank and file. Part of the social contract requires that we refrain from doing things that violate our social order.   There are only two major political parties in this country. When one of those parties condones racism, racism becomes an accepted part of our social order. If your conduct is part of the social fabric, there is no motivation to change your behavior because, over time, your behavior becomes accepted.

The acceptance of racism means that if you don’t like Mexicans, and the candidate of a major political party agrees, you have no reason to question your beliefs. If you distrust Muslims, you have no motivation to actually read a Quran or otherwise learn about the faith. In fact, you might just be inspired to physically attack a Mexican or a Muslim just to prove your allegiance to the prevailing social order.

The current crop of Republican hopefuls is the result of many years of treating racists like normal people. When we debate whether a national ban on Muslim immigrants makes sense, whether the Dred Scott decision remains valid, whether the Civil Rights Act of 1964 is a good thing, whether we should build a wall on the Mexican border, it makes it appear as if the racist arguments behind those proposals have validity.

It is time – well past time, in fact – for us to give racists no quarter in our political process. It is time to treat racists the way we treat holocaust deniers, Roswell UFO conspiracists, and those who believe Elvis Presley is still alive and well – with scorn and derision.

It is time for the Republicans to tell the racist persons and polices of their party that they are no longer welcome. It is time for the eviction notice to be served. Will this end American racism once and for all? Of course not. But without a national home, an accepted place of being, it will certainly make it more difficult for them to exist in our midst. I’ll take that . . . for now.




December 9, 2015 | Permalink | Comments (0)

Friday, December 4, 2015

Call for Participation: Slavery--Past, Present, and Future (2d Global Meeting)

Below is an announcement for a call for participation in the conference, "Slavery: Past, Present and Future" to be held this May in Prague, Czech Republic. I attended the first global meeting last year at Oxford University, UK, and it proved to be a provocative, thoughtful, and engaging gathering. If your work might fit the broad theme of the conference, I recommend you submit an abstract.

The conference, sponsored by, seeks papers concerning the wide range of issues surrounding slavery (broadly defined). The topics include the meaning(s) of slavery, historical and contemporary slavery practices (e.g., the 18th century transatlantic slave trade, contemporary human trafficking) and responses to slavery (e.g., reparations movements, restorative justice, and other responses). While an academic like me benefited greatly from the conference, it is not limited to academics--the conference strives to bring together a broad cross-section of people to bring a diversity of perspectives to the topic.

The organizers are requesting that 300 word abstracts should be sent to both Karen Bravo ( and Rob Fisher ( Although the deadline for abstracts is today, December 4, if you are seriously interested in participating if you have other questions, I suggest you contact Professor Bravo immediately. 

Press continue for more details.

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December 4, 2015 | Permalink | Comments (0)