Thursday, September 29, 2016

Profs Bach and Jewel Reply to Reynolds’ Incendiary Tweet Concerning the Recent Charlotte Protests (Guest Post)

An Open Letter To Our Students

Just over a week ago, after the Charlotte police shot and killed Keith Lamont Scott, protesters took to a highway in Charlotte, North Carolina. Professor Glenn Reynolds, who runs the popular blog Instapundit and teaches law at the University of Tennessee College of Law, tweeted three words: “run them down.”   Within hours of this tweet going public, Professor Reynolds’s twitter account was suspended (it has since been reactivated), there was mass condemnation of the tweet, but also a show of support in some circles.

Professor Reynolds has publicly stated that he understands, “why people misunderstood my tweet and regret[s] that I was not clearer;” we have no reason to doubt him. As the voice of Instapundit, Professor Reynolds enjoys a wide platform to share his political views. We treasure his academic freedom and his right to free speech as we treasure our own. Nevertheless, we condemn his incendiary words as inconsistent with the values of equality and justice, values long held by the legal profession and enshrined in our Constitution. But we also believe fundamentally that the answer to speech that offends is more speech.

Lawyers use words like chefs use knives. As professors who teach lawyers, we believe that the words in the tweet, which could reasonably be read to encourage the unjustified murder of protesters, fall short of the level of precision expected from a member of the legal profession. As law teachers ourselves, we write to share what these words meant to our ears and to urge all of you to critically consider the following questions. When you heard them, what meaning did you attribute to them? How have you reacted since that moment? How might we understand the way that others understood them. And, perhaps most importantly, how might begin to hear each other?

For us, when we heard the tweet, we heard two related messages. First, at this particular moment in history, to tweet “run them down” in response to an image of multi-racial citizens protesting yet another police killing of an African American citizen dehumanizes the protesters. The neutral pronoun “them” functions as a sort of dog whistle that implicitly signals that “they” are not us - virtuous citizens - and thus can have their lives casually discarded. The tweet also draws upon respectability politics, which allows privileged voices to unilaterally decide what kind of citizen protests are patriotic and American, and which protests are dangerous and inappropriate. Respectability politics tends to draw these categorical lines based on race, and does not acknowledge the long tradition of disruptive protest in the United States. Here, the speaker matters too. How do words, spoken from a powerful source, reinforce existing power and privilege? Are they different from words crafted by less powerful speakers? If they are, how do less powerful speakers respond? For instance, why is it that when presumptively White college students burn couches in the street after a football game, that conduct is cause for humor and not cast as the behavior of thugs, hoodlums, and mobs?

Second, by overemphasizing fears of disruptive protest, the tweet “run them down” diverts energy away from the ongoing conversation about the hail of bullets that continues to kill Black citizens on a near daily basis. The fear mongering aspects of the tweet also brush aside the structural forces that have produced the tragic race-based imbalances in our police, justice, and prison systems. The shots fired into the bodies of Black men and women by police over and over again are only the most evident and visibly violent manifestations of this much deeper and broader, historically rooted structural violence. Systemically, through policies and practices deeply entrenched in policing, prosecution, courts, juvenile justice, child and social welfare, housing, employment and beyond, we as a nation devalue Black lives. We know this not because we, as privileged White academics, are subject to this violence directly, but instead from years of our work, study, research, careful listening, and observation. We know too that the anger we see from people of all races and backgrounds standing up in Charlotte is born of (and a response to) this structural violence and discrimination. From our world view, it is self-evident that this deep anger and frustration over institutionalized racism is compelling people to put their bodies and lives on the line in protest.

This tweet does not speak for our institution or represent the potential of the members of our community. We know that we, and all of you, can do far better. Excellent lawyers are not only skilled and careful speakers, but they are skilled listeners. It is through listening that we can visualize the other side’s perspective, engage with everyone’s humanity, and build bridges over vast impasses. We know that tensions are running high, that divisions are rising to the surface, and, for us as well as for you, listening to each other is not so easy.   For those who experience the tweet as targeting themselves, their families, and their communities, it is even harder. For others though, we know that our words will seem exaggerated, biased, and politically correct in the worst sense of the phrase. But we ask you all in this moment, as we would in class, to pause and reflect, to study and engage.

Can we all imagine and begin to understand the perspective of those with whom we disagree? For those of us who do not share the anger of the protesters, and who do not experience the fear of which they speak, can we imagine a context in which we would? For those of us who do, can we imagine coming from a place where those things that seem so self-evident to us are invisible? Do we all, perhaps, have some research and learning to do? Are there facts that we do not know, or facts that we assume to be true that may not be true? Perhaps most importantly, in this era of increasing division and extraordinarily polarized and often hate-filled public rhetoric, in this era where we are increasingly unable to hear or understand each other, can we create a better path? As you have been told since the moment you entered law school, being here and entering this profession is a privilege, and with it comes immense responsibility. We expect of you what we demand of ourselves: To see each other’s humanity, to listen, to learn, and to lead – even and especially when the path ahead is not clear and the stakes remain so high.


Wendy A. Bach and Lucy Jewel are Associate Professors at the University of Tennessee College of Law.


September 29, 2016 | Permalink | Comments (0)

Monday, September 26, 2016

The Fatal Flaws of Countering Violent Extremism Programs

On September 22, 2016, I had the privilege of testifying before the U.S. House of Representatives Homeland Security Committee, Subcommittee on Oversight and Management Efficiency. Below is an excerpt of my oral testimony. The video of the hearing and my full written testimony is available here where my comments start at the 1:49 mark.

“I want to address four key issues: first, Countering Violent Extremism (CVE) programs are counterproductive as they feed into Da’esh’s narrative that America is at war with Islam; second, CVE programs are unnecessary; third, they are a waste of government resources; and fourth, funds for community development and resilience programs should be administered by social service agencies without law enforcement control

National security is a priority that crosses partisan lines. Americans of all races, ethnicities and religions are equally concerned with ensuring our country is safe from violence – whether politically motivated terrorism, state violence, or violent crime. Furthermore, we all share an interest in preventing violence before it occurs.

Toward that end, as citizens and elected officials we have a responsibility to carefully examine whether the methods we are using to prevent terrorism are effective.

The Obama administration’s CVE programs are managed and funded by DHS and DOJ. And as a result, they securitize government-community relations such that Muslims are perceived and engaged with primarily through a security lens.

Muslim Americans are treated like potential terrorists first, and citizens second.

Such securitized treatment of an entire religious community is counterproductive. CVE programs signal to the public that Muslims warrant collective suspicion. According to a December 2015 Gallup poll, 43% of Americans harbor prejudice toward Muslims.

These biases have contributed toward an alarming spike in anti-Muslim discrimination and hate crimes. International terrorists point to discrimination and selective government targeting of Muslims in their recruiting efforts to gain followers and sympathy for their perverse political agenda. Da’esh in particular relies on marginalization and alienation to fuel its narrative that America is at war with Islam.

Moreover, CVE programs are unnecessary to preserve American national security. Muslims – like other Americans – do not need a special program for them to be good Samaritans that report suspicious criminal activity about which they have knowledge.  

CVE is a waste of resources because Muslim Americans know less about potential plots by individuals acting alone, in secret, and online than law enforcement agencies with a sophisticated array of investigative tools at their disposal. For example, the Boston Marathon bombing, Orlando and San Bernardino mass shootings, and attempted Times Square bombing were all perpetrated by individuals whose families and friends were as shocked to discover their illicit acts as any other American.

Finally, the tens of millions of dollars spent on CVE programs are better spent on programs administered by social service agencies with the expertise to assist the multitude of American communities in need of job training, mental health services, refugee resettlement, youth programs, and other services that promote safe and healthy communities.

Resources should be managed by agencies whose missions are to develop communities, not prosecute and incarcerate individuals based on religious and ethnic stereotypes.

Muslim Americans have made significant contributions to our society and economy as doctors, teachers, engineers, politicians, and entrepreneurs. They deserve to be treated with the same dignity, equality, and presumption of innocence as all other citizens.”


To watch my testimony and read my written testimony, go to at the 1:49 mark.


September 26, 2016 | Permalink | Comments (0)

Wednesday, September 21, 2016

With Trump Endorsement, Fraternal Order of Police Shows a Shameful Disregard for Black Lives



Black martyrs



On Friday, the Fraternal Order of Police (FOP), the nation’s largest police union, endorsed Donald Trump for President.  In the press release, the FOP stated that Trump has their “full support.” 

Also on Friday, Terence Crutcher was shot dead by police in Tulsa, Oklahoma.  Crutcher, an unarmed Black man, was shot as he approached his own vehicle.  He was holding his hands in the air at the time.

It’s not a coincidence that both of these stories happened on the same day.  The FOP’s decision to endorse Trump proves that police leadership have yet to accept that Black Lives Matter.  The Trump endorsement is a slap in the face to those who wish to see all citizens treated with fairness, respect, and justice by officers. 

First, the endorsement is an insult because of the rhetoric Trump has employed against Black Lives Matter (“BLM”).  Trump has called BLM “divisive.”  He has said that BLM is calling for police officers to be killed.  He has said that if elected, he would request that his Attorney General pursue criminal charges against BLM.  Clearly, Trump does not believe that BLM is a worthy organization pursuing a worthwhile goal.    The FOP’s endorsement of Trump indicates that they believe the same.  In fact, one of the questions in the FOP questionnaire reads as follows:

Law enforcement is facing a high level of hostility from the communities we protect and serve. Hateful rhetoric and those calling for violence are having an impact—ambush attacks on law enforcement and police shootings have spiked tremendously in the past few years. Fringe organizations have been given a platform by the media to convey the message that police officers are a “militarized” enemy and it is time to attack that enemy. Social media accounts are full of hatred and calls to target and kill police officers. The vitriol, the hateful screeds and statements of those we are sworn to protect and defend, as well as public calls to kill and injure police officers, are horrifying. There is a very real and very deliberate campaign to terrorize our nation’s law enforcement officers and no one has come to our defense. How will you and your Administration demonstrate support and commitment to our nation’s law enforcement officers?

The language used here - referring to BLM as a “fringe organization” that uses “hateful rhetoric” - is far from encouraging to those who truly want to repair the relationship between the police and communities of color.  BLM has started a necessary national conversation about race in policing.  The FOP’s language demonstrates a refusal to acknowledge the role of race, making this a one-sided conversation. 


Second, apart from what he has said about BLM, Trump has openly stoked racial fears more any candidate in recent memory.  He began his campaign by calling Mexican immigrants drug-selling rapists.   He has praised the internment of Japanese-Americans during World War II.   He wants to ban Muslims from entering the country.   He has tweeted anti-Semitic images.  He has falsely suggested that the vast majority of white homicide victims are killed by African Americans.   By endorsing Trump, the FOP has endorsed his bigotry as well.   How can rank-and-file members of the FOP be expected to take anti-racism efforts seriously when their leadership has aligned with one who resorts to such racist rhetoric?  How can communities of color feel safe knowing that this racist drivel has been sanctioned by the largest police union? Sadly, the answer to both questions is, “They can’t.”

Third, we must examine the policy positions the FOP required for its endorsement. The FOP would like to see attacks against police treated as hate crimes.   They support legislation that would limit the amount of damages citizens can be awarded if injured by police while being apprehended.  They oppose the “End Racial Profiling Act.”    They want federal money to be given to local police without any obligation to comply with federal bans on racial discrimination.  They support the continued militarization of the police.  The FOP position on these issues is quite the opposite of the organizations that are looking to end police abuses in the communities of color.  The FOP clearly knows about these positions, and yet, rather than embracing them, they reject them.    

Finally, the FOP had no obligation to endorse Trump.  The union could have endorsed Hillary Clinton, the Democratic nominee.  However, Secretary Clinton apparently refused to seek the union’s endorsement.  (Moreover, Secretary Clinton’s stance on police reform is apparently too focused on the victims of police abuses for the FOP’s liking.)  But the FOP could have voted – as it did in 2012 – to endorse neither candidate.   The FOP could have issued a simple statement such as, “We are not aligned with Secretary Clinton on policy issues, but we cannot in good faith endorse a candidate that shows disrespect for people of color at a time when we are trying to build bridges with those communities.”   That’s a far cry from accusing those who actually are trying to repair the relationship of being “hateful.”  With the Trump endorsement, the FOP missed a golden opportunity to show good faith on racial issues. 

Racism in policing is not an accident.  It is the result of systemic racism that existed when this country was founded.  Because of these systems, people of color are far more likely to be the victims of police violence.  In fact, last year, in fourteen cities in the United States, one hundred percent of the victims of police involved shootings were Black. The problem is very real.  But if it is true, as is often said, that the first step to solving any problem is admitting that there is, in fact, a problem, the FOP’s policy positions and endorsement of Trump indicate that they are running away from the problem rather than acknowledging it. 

September 21, 2016 | Permalink | Comments (0)

Congratulations Prof. Vinay Harpalani -- 2016 SALT Junior Faculty Teaching Award Winner

We want to take a moment to congratulate Professor Vinay Harpalani of Savannah Law School for receiving the 2016 Junior Faculty Teaching Award from the Society of American Law Teachers (SALT). As regular readers of the blog know, Professor Harpalani is a frequent guest contributor to the blog and a recognized scholar of constitutional law and critical race theory. Harpalani_Vinay_highres-Copy-e1474423394187You can read more about his award here:

September 21, 2016 | Permalink | Comments (0)

Friday, September 9, 2016

Please Stop Blaming “Poor, Uneducated Whites” for Donald Trump’s Success

Beverly hillbillies


Every election generates theories to explain the success or failure of the candidates.  This year, one of the most prevalent theories is that whites without college degrees are driving Donald Trump’s success.  The theory is so popular that multiple articles and even books have been written about it. But laying the blame for Trump solely at the feet of this group is unfair and troubling for several reasons. 


Reason #5 –  A Sizable Number of Whites Without Degrees Actually Support Clinton. 

Last week, CNN conducted a poll that analyzed support for the candidates by race and educational level.  Here is a graphic:







According to the poll, Trump has the support of sixty-eight percent of whites without degrees.  However, the poll also shows that Clinton receives support from nearly a quarter of that group.   (For comparison, Clinton’s level of support from whites without degrees is higher than Trump’s support from African Americans, Asian Americans, or Latinos.)  While it is certainly fair to say that a majority of whites without degrees support Trump, it is equally fair to say that a significant number do not.


Reason #4 – Blaming Whites Without Degrees Ignores Recent Electoral History

In 2012, according to a number of sources, sixty-one percent of whites without degrees voted for Mitt Romney.  However, the same sources indicate that roughly fifty-six percent of college-educated whites also supported Romney.  Moreover, in this year’s GOP primary, roughly thirty-five percent of college educated whites voted for Trump.  Trump even won that demographic in several states

Taking everything into account, college educated whites do not support Trump in the same numbers as whites without degrees.  Nevertheless, many of them do support Trump in numbers that are far from negligible.    


Reason #3 – Blaming Whites Without Degrees Promotes Ugly Stereotypes

During the Civil Rights Movement, white resistance to Black progress manifested in many ways.   The most obvious way was through the violent tactics of the Ku Klux Klan and associated groups.  Members of the KKK were responsible for atrocities including the assassination of Medgar Evers, the murder of three civil rights workers in Philadelphia, Mississippi, the killing of four little girls at a Birmingham church, and attacks on Freedom Riders

While the Klan terrorized African Americans, they were not the only group opposed to racial equality.  White Citizens’ Councils were also opposed to integration.  According to the Anti-Defamation League, the Councils were designed to appeal to “better mannered, more discreet racists.”  The Southern Poverty Law Center states:

Unlike the KKK, the [Citizens’ Councils] had a veneer of civic respectability, inspiring future Supreme Court Justice Thurgood Marshall to refer to it as the "uptown Klan." While there were plenty of bare-knuckle racists attracted to the councils' anti-integration slogan, "Never!," the members also included bankers, merchants, judges, newspaper editors and politicians — folks given more to wearing suits and ties than hoods and robes. . . . Although they weren't immune to violence . . . the councils generally used their political and financial pull to offset the effects of "forced integration."

Our society took an important lesson from this era.  According to Dr. Beverly Daniel Tatum, author of Why Are All the Black Kids Sitting Together in the Cafeteria, here’s what we learned: “For many white people, the image of a racist is a hood-wearing Klan member or a name-calling Archie Bunker figure.”  Under Dr. Tatum’s premise, then, “True Racists” are like the Klan.  “True Racists” are violent, uneducated, and uncouth.  So, it is easy to label blue collar whites as racist.  On the contrary, whites with designer clothes and expensive degrees are “conservative,” but as long as long as they do not use the n-word or engage in violence, they are not “True Racists.”   

Blaming whites without degrees for Trump ignores the fact that by doing so, we allow college educated whites to dodge responsibility for their actions.  As explained above, a solid amount of Trump’s support – both in the primaries and now – comes from college educated whites.  But this fact has received scant attention in the media in comparison to the swarm of articles about Trump’s support from those without degrees.  By failing to call out the college educated whites that support Trump, we continue the harmful pattern of excusing racist behavior so long as it comes from those with the proper credentials.    

More troubling still, by refusing to discuss the role of college educated whites in this election, we continue the pattern of only punishing “Archie Bunker” type racism.  Though using racial slurs and committing hate crimes are certainly racist, there are a constellation of other behaviors that are also racist.  When we focus on only two of the behaviors, we make it harder to eliminate the other offending behaviors.  

Finally, by ignoring the considerable number of college educated whites that support Trump, we continue the fiction that somehow having a degree makes a person unable to be racist.  Lawyers can be racist.  Doctors can be racist.  College professors can be racist.  There are many things that can make a person challenge their racist tendencies, but at this time, merely graduating from college is not one of those things.


Reason #2 – Blaming Whites Without Degrees Gives College Educated Whites Credit They Don’t Wholly Deserve  

The most likely reason that the “education gap” discussion has dominated this election cycle is that college educated whites are not solidly backing the GOP nominee for the first time since 1956.   Here’s a look at the historical pattern since 1972:

Race elction graph



Unquestionably, any person voting against Trump is making a wise choice.  However, there is great danger in assuming that rejecting Trump is the same as rejecting his racist ideology.   Since the Nixon era, Republican candidates have used coded racial messages in their efforts to appeal to white voters.  And as the chart shows, since the Nixon era, the ploy has worked amazingly well with college educated whites. 

If college educated whites have consistently voted for GOP candidates despite the racial “dog whistles” of Willie Horton ads and remarks about the “47 percent,” the most likely conclusion is that the problem in 2016 is not with the message, but rather with its delivery.  White college educated voters are not trying to avoid Trump’s racist policies.  They are trying to avoid Trump’s racist presentation.  By rejecting Trump, they are rejecting overt racism. This is a good first step.  However, it’s not enough.    Put another way, if a 2020 GOP candidate presented policies identical to Trump’s but without the bombast and the violent crowds, history tells us that a solid number of college educated whites will support that candidate.   So, a vote against Trump in 2016 is a step, but it is not enough to make a person anti-racist.  


Reason #1 – Blaming Whites Without Degrees Shifts Focus Away from Those Who Created the Conditions Where Trump Could Succeed.  

As I have written in this space before, the GOP has a long history of making coded racial appeals to white voters.  The focus on the “education gap” distracts from what should be the primary discussion – the Republican Party’s liberal use of racial messages since 1968.   

Most of the articles discussing Trump’s support from whites without degrees include a discussion of blue collar whites’ racial anxieties.  Assuming that the reports of racial resentments are accurate, these resentments were either created or stoked by the elite class of the Republican Party.  It was party elites  who decided to use phrases like “law and order” or “state’s rights” to attract white voters.  It was party elites who were elected to office after using racist imagery.    

Focusing on whites without degrees is a useful way to divert attention from the devious games the Republican Party has played with race for decades. GOP elites have created this mess.  And now they are content to let less educated whites take the blame for their handiwork.  As long as we remain distracted, we will never get to the point where the GOP leadership is held accountable for the harm they have brought into our civic discourse.  


The Upshot

Because our culture has decided that it is acceptable to label less educated whites as racist, it has been easy to make “poor, uneducated whites” the racial villains of the 2016 cycle.  The stories about Trump’s strength with non-college voters are not troubling.  Instead, the problem lies with the implicit suggestion that only the “bad” whites or “low class” whites supported Trump on his way to victory.  With one fell swoop, the storyline demeans one group while elevating another.  It is entirely fair to ask all voters to take ownership of their decisions.  However, it is patently unfair to smear one sub-set of voters when other voters are behaving in exactly the same fashion.

September 9, 2016 | Permalink | Comments (0)

Thursday, September 8, 2016

Call for Papers: Applied Feminism & Intersectionality Conference

The Center on Applied Feminism at the University of Baltimore School of Law seeks paper proposals for the Tenth Anniversary of the Feminist Legal Theory Conference.  We hope you will join us for this exciting celebration on March 30-31, 2017.
This year, the conference will explore how intersecting identities inform -- or should inform -- feminist legal theory and justice-oriented legal practice, legal systems, legal policy, and legal activism. Beginning in 1989, Kimberlé Crenshaw identified the need for law to recognize persons as representing multiple intersecting identities, not only one identity (such as female) to the exclusion of another (such as African American). Intersectionality theory unmasks how social systems oppress people in different ways.  While its origins are in exploring the intersection of race and gender, intersectionality theory now encompasses all intersecting identities including religion, ethnicity, citizenship, class, disability, and sexual orientation.
Today, intersectionality theory is an important part of the Black Lives Matter and #SayHerName movements. For more information, see
We seek submissions of papers that focus on the topic of applied feminism and intersecting identities.  This conference aims to explore the following questions: What impact has intersectionality theory had on feminist legal theory?  How has it changed law and social policy? How does intersectionality help us understand and challenge different forms of oppression?  What is its transformative potential? What legal challenges are best suited to an intersectionality approach? How has intersectionality  theory changed over time and where might it go in the future?
We welcome proposals that consider these questions from a variety of substantive disciplines and perspectives. As always, the Center’s conference will serve as a forum for scholars, practitioners and activists to share ideas about applied feminism, focusing on connections between theory and practice to effectuate social change. The conference will be open to the public and will feature a keynote speaker. Past keynote speakers have included Nobel Laureate Toni Morrison, Dr. Maya Angelou, Gloria Steinem, Senators Barbara Mikulski and Amy Klobuchar, NOW President Terry O’Neill, EEOC Commissioner Chai Feldblum, and U.S. District Judge Nancy Gertner.
To submit a paper proposal, please submit an abstract by Friday October 28, 2016 to Your abstract must contain your full contact information and professional affiliation, as well as an email, phone number, and mailing address. In the “Re” line, please state: CAF Conference 2017. Abstracts should be no longer than one page. We will notify presenters of selected papers in November.
About half the presenter slots will be reserved for authors who commit to publishing in the annual symposium volume of the University of Baltimore Law Review. Thus, please indicate at the bottom of your abstract whether you are submitting (1) solely to present or (2) to present and publish in the symposium volume. Authors who are interested in publishing in the Law Review will be strongly considered forpublication. 
For all presenters, working drafts of papers will be due no later than March 3, 2017.
Presenters are responsible for their own travel costs; the conference will provide a discounted hotel rate as well as meals. If you have further questions, please contact Prof. Margaret Johnson at For additional information about the conference, please visit

September 8, 2016 | Permalink | Comments (0)