Saturday, January 30, 2016

Coming Soon: Alternative Constitution Day

I am happy to announce that the Race and the Law Prof Blog will host an online symposium to launch Alternative Constitution Day. The symposium will start this Wednesday, February 3 and run until Friday, February 12.

Over these ten days, we will share comments from law professors from across the country on why and how we should celebrate an alternative to the mandated Constitution Day of September 17 (the anniversary of the signing of the 1787 Constitution). Alternative Constitution Day seeks to make what Professor Colin Starger recently called “The Reconstructed Constitution” central to our legal and political thought and to discuss what issues need to be addressed to make the promise of a reconstructed Constitution a reality.

3a52371rIndeed, many have criticized celebrations of the U.S. Constitution that focus solely on the founders and the document of 1787. This focus implicitly ignores or downplays the faults of the original document—including the tacit approval of slavery and gender subordination and the lack of a concept of equality.

Professor Starger in a blogpost for Constitution Day 2015 reiterated this critique and issued a call to celebrate the Constitution on a different date. He argued that

[t]he flawed document of [1787] no longer rules us. We can now proudly celebrate the reconstructed Constitution. In 1987 the great Justice Thurgood Marshall critiqued bicentennial celebrations of the 1787 date, saying: “While the Union survived the civil war, the Constitution did not. In its place arose a new, more promising basis for justice and equality.” When we interpret – or celebrate — today’s praiseworthy Constitution, we should look not only to the nobler commitments of the original Founders, but also to Reconstruction’s promise of a nation that is uncompromisingly respectful of human dignity. (Emphasis in original.)

We are hosting this online symposium to act on Professor Starger’s challenge and to discuss in depth why having an Alternative Constitution Day matters and the distance between the promise of the reconstructed Constitution and the reality of today. Following his suggestion, we will begin on February 3 to recognize the day in 1870 when the States ratified the Fifteenth Amendment to the U.S. Constitution, the last of the three Reconstruction Amendments.

We hope you will read and comment on what promises to be a rich symposium. Law profs interested in contributing, please contact us as for submission details.

January 30, 2016 | Permalink | Comments (0)

Thursday, January 28, 2016

When it’s Not an Honor to be Nominated: Can Black Actors get Oscar Nods for Non-Stereotypical Roles?



This year, the Motion Picture Academy of Arts and Sciences (the Academy) nominated twenty actors for Oscars. Of the twenty, none are people of color. The lack of color prompted an Oscar boycott led by Hollywood power couple Jada Pinkett-Smith and Will Smith.

I fully support the efforts of The Smiths and others to not just say something about racism in Hollywood, but to do something about it. But as I looked at various takes the controversy, I realized that one point was missing: Even when actors of color are nominated, they are usually nominated for roles that are racially problematic.

As I have said in this space before, it is not the responsibility of those in film and television to make whites less racist; that is an obligation of the white community. However, because racial segregation still exists in our society, media depictions of non-whites carry more weight than those of their white counterparts. So, I thought it would be interesting to take a look at the history of African American nominees to see not just how many there are, but what types of roles earned nominations.

A few notes before I proceed:

1. What follows is not at all scientific. It is not mathematical. (Being a lawyer, I relate to math the way a snake relates to a mongoose.) However, I did use some (very loose) guidelines.

2. Rather than describe the roles as “positive” or “negative” – thereby subtly falling into the politics of respectability – I chose to characterize each role as one that either reinforces preexisting stereotypes of African Americans as criminal, servile, unintelligent or the like or one that challenges such stereotypes. A role could also be characterized as “both” if some parts of the role reinforced stereotypes while others did not. Some are classified as “no data” because I am not familiar with the film. (As I said, this review is not at all scientific.)

3. Reinforcing does not mean that the character is an awful human being with no redeeming qualities. It simply means that the character falls within accepted stereotypes of African Americans rather than challenging the viewer to reconsider those stereotypes. For instance, Lupita Nyong’o’s Patsy from 12 Years a Slave is a well-written character trying to hold on to her dignity against impossible odds. However, she is still a slave. 

4. Nothing that follows is meant to comment on the actors that took these roles, other than to say that they all gave amazing performances. These people are true magicians, as they so often take roles of straw and spin them into gold, infusing even reinforcing roles with depth, dignity, and humanity.

5. This article focuses on African American actors because that is the pool with the largest population. (The exclusion of other people of color from film and television is a topic that merits separate discussion.)

6. I am sure that as some may dispute my characterizations of these roles.  If you do, please see point #1 above.


And now, the nominees are:

Best Actor, Male




Sidney Poitier

The Defiant Ones

Reinforcing – The character is a fleeing felon.

Sidney Poitier

Lilies of the Field

Reinforcing –The character’s only purpose in the film is to serve a community of white nuns

James Earl Jones

The Great White Hope

No data

Paul Winfield


Both – The character is a poor African American tenant farmer and criminal, but a devoted father

Dexter Gordon

Round Midnight

No data

Morgan Freeman

Driving Miss Daisy

Reinforcing.   In fact, this role might be the definition of reinforcing. The character is the embodiment of servility.  

Denzel Washington

Malcolm X

Challenging.   The film provides a portrayal of a charismatic and uncompromising Black Nationalist leader who speaks against racism.

Laurence Fishburne

What’s Love Got to Do With It

Reinforcing – Ike Turner is a drug-addicted rock star who brutally beats and rapes his wife.

Morgan Freeman

The Shawshank Redemption

Reinforcing – He is a criminal in jail until the last few minutes of the film.

Denzel Washington


Reinforcing – Mr. Carter is a brutal boxer and later a criminal. He is wrongly convicted criminal, a criminal nonetheless.  

Denzel Washington

Training Day

Reinforcing – The film shows an utterly corrupt police officer with very few redeeming qualities.

Will Smith


Challenging –The film shows Ali at a time in his life when he was challenging white supremacy and the Vietnam War.

Jamie Foxx


Reinforcing - Drug addicted entertainer and womanizer.

Don Cheadle

Hotel Rwanda

No data

Terrance Howard

Hustle & Flow

Reinforcing – D.J. is literally a rapping pimp. This movie provides two stereotypes for the price of one.

Forest Whitaker

Last King of Scotland

Reinforcing – The movie depicts a horrible and brutal dictator.

Will Smith

Pursuit of Happyness

Challenging – The film depicts a single father’s struggle to get himself and his son out of poverty and homelessness.

Morgan Freeman


Challenging – The role highlights the great Nelson Mandela – the president of a nation and a great leader for justice.

Denzel Washington


Reinforcing – The main character is an alcoholic, drug-addicted, womanizing, lying pilot who allows his addictions to endanger his passengers.

Chiwetel Ejiofor

12 Years a Slave

Reinforcing – He is literally a slave, hence the title.



Best Actor, Female




Dorothy Dandridge

Carmen Jones

Reinforcing - A black temptress ruins a man’s life

Diana Ross

Lady Sings the Blues

Reinforcing – The movie focuses on the life of a drug addicted entertainer

Cicely Tyson


Both – The role has some stereotypical elements, but also shows a mother’s great love for her son.

Diann Carroll


Reinforcing - Mother on welfare in the 1970s. Attempts to hide things from social workers.

Whoopi Goldberg

The Color Purple

Challenging - Miss Celie “Is poor, black, a woman” and she “may even be ugly,” but she discovers her worth. Through her journey, the viewer is challenged to find her worthy as well.

Angela Bassett

What’s Love Got to Do with It

Challenging – The film focuses on one woman’s triumph over domestic violence and fear.

Halle Berry

Monster’s Ball

Completely Reinforcing - Do I really need to explain why this role was problematic?  

Gabourey Sidibe


Both – In the film, a young girl awakens to the possibilities of what her life could be.   Still, she is a teenage mother in poverty.

Viola Davis

The Help

Reinforcing – As a maid, she is servile.

Quvenzhane’ Wallis

Beasts of the Southern Wild

No data





Best Supporting Actor, Male


Actor                Film     Description

Rupert Crosse

The Reivers

No data

Howard Rollins


No data

Louis Gossett, Jr.

An Officer and a Gentleman

Challenging – The role is an African American in a position of authority.

Adolph Caesar

A Soldier’s Story

Challenging – The movie gives a very complex portrayal of a man motivated by racial pride, even if the motivations lead him to cruelty.

Morgan Freeman

Street Smart

Reinforcing.   The character is a pimp

Denzel Washington

Cry Freedom

Challenging – The role focuses on legendary anti-apartheid leader Steven Biko.

Denzel Washington


Both - A freed slave. So, there is an aspect of servility (especially in the flogging scene). However, he is also a soldier.  

Jaye Davidson

The Crying Game

Challenging - A man portraying a trans-woman.   Groundbreaking at the time.

Samuel L. Jackson

Pulp Fiction

Reinforcing – Jules is a gun-toting, cursing, criminal.

Cuba Gooding

Jerry Maguire

Both – Rod Tidwell is a loud, braggadocious athlete, but also a devoted family man

Michael Clarke Duncan

The Green Mile

Reinforcing – The character is a literal “magic Negro.”

Djimon Honsou

In America

No data

Morgan Freeman

Million Dollar Baby

No data

Jamie Foxx


Challenging – Rather than being the criminal, this cab driver is trying to prevent the white protagonist from committing crimes.

Djimon Honsou

Blood Diamond

No data

Eddie Murphy


Reinforcing – Yet another drug-addicted entertainer.

Barhad Abdi

Captain Phillips

Both. He’s a pirate – but one portrayed as more than a criminal.



Best Supporting Actor, Female


Hattie McDaniel

Gone with the Wind

Reinforcing.   Her. name. is. Mammy. Do I need to say more?

Ethel Waters


No data

Juanita Moore

Imitation of Life

Both. A servant, but develops an organic relationship and friendship with her employer. Also shows her devotion to her own child, as opposed to a white child.

Beah Richards

Guess Who’s Coming to Dinner

Challenging.   A mother who, along with Kathryn Hepburn’s character, attempts to convince the men involved to accept their children’s interracial relationship.

Alfre Woodard

Cross Creek

No data

Margaret Avery

The Color Purple

Challenging - Shug Avery is an entertainer, but she is allowed to be much more in this film.

Oprah Winfrey

The Color Purple

Challenging - Miss Sophia is no one’s fool. Though she is angry, anger is always justified and the movie allows viewers to understand her.

Whoopi Goldberg


Reinforcing - A charlatan, and also perhaps a magic negro as she is only there to assist the Swayze character.

Marianne Jean-Baptiste

Secrets & Lies

No data.

Queen Latifah


Both.   Rather than a prisoner, she is the prison guard. However, she is also slightly corrupt.

Sophie Okonedo

Hotel Rwanda

No data

Jennifer Hudson


Both – Effie is a brash entertainer, but the reasons for brashness are displayed on screen

Ruby Dee

American Gangster

Both - As a mother she benefits from her son’s drug enterprise. However, she tries to persuade him from doing particularly evil deeds.

Viola Davis


No data

Taraji P. Henson

The Curious Case of Benjamin Button

Reinforcing - A film shows the character as a mother to a white child, similar to the mammy stereotype.



Completely Reinforcing – If one were to take pretty much every stereotype of black women – criminal, angry, horrible mothers, welfare queens – and put them into one movie character, this would be that character.

Octavia Spencer

The Help

Reinforcing – As a maid Minnie is servile, although with some desire and ability to get back at employers. (Pie, anyone?)

Lupita Nyong’o

12 Years a Slave

Reinforcing – A slave.



It should come as little surprise that most of the roles do little to challenge racial stereotypes. This disparity matters because as long as American neighborhoods and schools remain racially segregated – and both certainly are – our media will continue to play an important role in telling the white majority what to think about people of color. As long as this reality exists, it would likely be better for the media to produce art that challenges stereotypes.

What should be done?   Cheryl Boone Isscacs, the president of the Academy and a woman of color, recently announced that the Academy will be taking affirmative steps to double its diverse membership. That is a step in the right direction, but it is not nearly enough. There must also be change in the writers’ rooms, in the directors’ chairs, and the C-suites of all Hollywood studios. Perhaps if more people of color were involved in these processes, not only would more stories about African Americans, Asian Americans, and others be told, but more types of stories as well. When that finally happens, no matter who is nominated, we will all be winners.


January 28, 2016 | Permalink | Comments (0)

Wednesday, January 6, 2016

History to the Rescue: Faust on the Scholarship of John Hope Franklin

The turn of the year has had me thinking a lot about the past. The long list of issues we've discussed on the blog, from the #BlackLivesMatter movement to the still-recent debates about the Confederate flag, share a common bond. Our understanding of everything from affirmative action to the right to vote is shaped by how we understand the history of race in America.

I was reminded of this when I read Drew Gilpin Faust’s quite useful appreciation of the work of historian John Hope Franklin. In this late 2015 NY Review of Books essay that celebrates the centenary of Franklin’s birth (brief bio here), Faust points us to Franklin as an example of a scholar who both sought to catalog and analyze the history of racism against African Americans as well as to show how an understanding of this history ought to matter to create, in Franklin’s words, “a better present and future.”

Franklin is one of the most important historians and public intellectuals of the twentieth century. His prolific work on the history of Africans in America is a cornerstone of modern academic scholarship regarding the black/white racial divides in the United States. Franklin’s rigorous historiography shed light on formerly invisible insights about slavery and segregation. His work challenged the conventional narratives academics and the public cherish. Because Franklin forced America to confront facts it wished to forget, his scholarship is revisionist in the most useful sense of the word.

Franklin also set an example as a scholar and as an activist. He not only researched history, he applied his understanding of African American history to law and public policy—most notably as part of the legal team that argued Brown v. Board of Education. As Faust points out, Franklin’s legacy as a public intellectual is now being paralleled by the advocacy of Bryan Stevenson and the journalism of Ta-Nehisi Coates.

(I had an all too brief opportunity years ago to talk to Dr. Franklin about his work. He turned the conversation on me and asked me what was doing as a scholar to address the dilemmas of our past. He encouraged my own work, and that moment continues to inspire me.)

And finally, as Faust argues in her essay, a grounded, conscious awareness of the history of racism is the beginning to dismantling the inequality we face today. She writes:

Only if we understand and acknowledge this past can we grapple with the conflicts of the present and the promise of the future. [] “To confront our past and see it for what it is.” Franklin’s words. The past “is.” Not the past was. The past lives on. What would it mean to confront it, to see it clearly?

The past is. Now. This isn't to say that the present hasn't evolved, but it is to say that our debates are animated by dilemmas we have not yet overcome. And the only way through is to realize and confront this fact. The challenge is that the past is, but it exists in ways that are invisible yet salient.

There are those who certainly don’t want to have this conversation at all. They own their version of the past, and it gives them power and comfort. And even those who want to have this conversation are content to see the individual bad acts and to name those acts alone as the past being present.

I don’t disagree--open, aggressive ideologies are to be fought. Indeed, open ideology is an easy thing to fight.

The harder task, the task that certain versions of history teach us to avoid, is observing the evolution of invisible ideologies. which might be comfortable, which channel our very own decisions without us being aware. It is these structures that have their genesis in segregation and discrimination, that have the effect of objectifying and marginalizing (even though they are neutral on their face), that protect bad actors and force difficult outcomes. This structural racism can only be understood clearly through the patterns of history-as-present.

Franklin's work and the work of scholars like him can begin to build the awareness. Such history can aid us to imagine ourselves as very similar to the actors in history who were trapped by beliefs constructed to maintain a status quo. This kind of inquiry can help us engage in deeper awareness, which can then open needed honest dialogue.

January 6, 2016 | Permalink | Comments (0)

Monday, January 4, 2016

Theorizing Racial Ambiguity - Professor Vinay Harpalani

Racial ambiguity is an experience that I am intimately familiar with. My actual background is unambiguous: I am South Asian American, with two Asian Indian immigrant parents from the same part of India. Yet, with unfailing regularity, I am misidentified for some group that I do not belong to. Just last week here in Savannah, Georgia, someone asked if I was Italian. When I answered no, she said “Okay, Greek?” When I lived in Seattle, I was often identified as Mexican American, usually by Mexican Americans themselves. In New York, I was occasionally Puerto Rican, and when I lived in Philadelphia, I would be greeted with “As-salamu alaykum” by those who thought I was an Arab Muslim. Elsewhere, I recount being called Japanese, Chinese, Native American, and biracial during my childhood.

My experiences with misidentification led me to write a lengthy law review article on the racial ambiguity of South Asian Americans. But I also aim to theorize racial ambiguity more generally and analyze how racial identities are constructed in different contexts. Various groups and individuals, from Arab Americans to Latina/os have the same types of encounters that I describe above. Biracial and multiracial individuals also occupy a racially ambiguous position in American society. Even President Barack Obama, who usually identifies as Black or biracial, has been characterized as “Arab” in certain contexts.

Scholars have explored dimensions of racial ambiguity for different groups. Professor Allyson Hobbs examines the history of “passing” as White by African Americans—perhaps the most widely known phenomenon related to racial ambiguity in American history—and Professor Jennifer Ann Ho documents racial ambiguity in Asian American culture. Beyond physical identification, Professors Devon Carbado and Mitu Gulati explore behavioral dimensions of racial ambiguity in their book Acting White? (I too have written about “acting White,” in a different context). And Professor Camille Gear Rich has written more generally about “elective race”—the process and complexity of racial self identification by the individual—which can be distinguished from “ascriptive racial identification” by others.

We can draw on all of this work when theorizing racial ambiguity, to delineate the processes by which ambiguous actors are classified into particular racial identities. Both Professor Rich and Professor Kwame Anthony Appiah make the distinction between self identification (which I refer to in terms of “claims” to racial identities) and labelling by others (where I borrow Appiah’s terminology of “ascriptions” of racial identities by others). We can also think of race not only in terms of formal categories, but also informally—with respect to the stereotypes and social meanings associated with Blackness, Whiteness, foreignness and other racial statuses. The behavioral aspects of “acting White” can only be understood in terms of such social meanings, which do not always require categorical racial classification of individuals. Claims and ascriptions can be part of a larger process of “racial contestation”—to use Professor Eduardo Bonilla-Silva’s terminology—which reveals political interests and conflicts. Ambiguous racial actors can make claims to particular racial statuses. For example, early twentieth century immigrants made formal claims to Whiteness in order to be eligible for naturalization, and some current immigrants and minority group members seek the privileges of Whiteness through behavioral and symbolic means. Such claims can be negated through ascriptions of non-Whiteness. Louisiana Republican Governor and former 2016 Presidential candidate Bobby Jindal illustrates this well. Jindal appealed to conservative ideology and colorblind rhetoric to claim honorary Whiteness. He was eventually successful in his Louisiana gubernatorial campaigns (though not initially so), but he could not translate this appeal on a national stage—partly because many White conservative voters viewed him as too foreign to be one of them.

Racial microclimes, defined by the late Professor Keith Aoki and Professor Robert Chang as the local environments that affect racialization, add another dimension to racial ambiguity. I was mistaken for “Mexican” in Seattle, where Mexican Americans are the largest minority group, but not in Philadelphia, which has few Mexican Americans. Rather, I experienced the referents to Islam in Philadelphia, owing to its prominent Black Muslim community. Neither Latina/os nor Muslims are prevalent in my current home of Savannah. The population here is 93 percent Black or White American, which might explain why my last encounter here referenced White ethnic groups. Racial microclimes are most salient for racially amibiguous people, because our identity can change readily depending upon the local environment.

As the number of racially ambiguous people grows in America, theorizing racial ambiguity provides nuanced insight into racialization processes. It brings attention to the social meanings attached to various racial statuses. It also requires us to consider the experiences of various racial groups in conjunction with each other. This is an endeavor that has long been neglected by scholars, as most race scholarship continues to focus on one group in isolation from any others.

Finally, as Professor Blanche Cook pointed out to me, theorizing racial ambiguity can help us deal with the major conundrum of modern Critical Race Theory: the necessity of articulating an anti-essentialist understanding that explains the malleability of race, but without diminishing its continuing significance. By its very nature, racial ambiguity merges social construction with racial realism: it shows that race can be both changing and powerful. In a sense, theorizing racial ambiguity requires us to grapple with the same “double-consciousness” that W.E.B. Du Bois described over a century ago, when he initiated modern critical race scholarship.

Vinay Harpalani, J.D., Ph.D.

Associate Professor of Law, Savannah Law School

Twitter @VinayHarpalani

January 4, 2016 | Permalink | Comments (0)