Friday, March 29, 2019
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
Tuesday, March 26, 2019
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.
Saturday, March 23, 2019
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!
Tuesday, March 19, 2019
In "Will Whites Be Stereotyped as Corrupt Because of Felicity Huffman?" in the Diverse Issues of Higher Education, Frank Wu (UC Hastings), considers the unlikelihood of racial stereotyping in the recent college admissions scandal. He notes, "A conspiracy among white Americans is not attributed to a character flaw shared within a community. The same generosity is not practiced with others who face collective blame."
Wu provides the examples of Chinese foreign nationals in doing "more or less what the Hollywood ring has admitted to doing on a vast scale:"
Unlike with Whites who have committed the same crime, the Asians are said to have done what they did because of their background. It is as if to say, well, what can you expect; that’s how those people are. Imagine if a group of African-American and Latino elders put together a systematic means to rip off respected institutions — except, oh, people regularly speculate about so-called “welfare queens.”
The other disparity this scandal confirms is in access to services from test preparation to career counseling and the social network that knows or claims to know how to game the system. The outright cheating, including taking advantage of legitimate disability accommodation rules for illegitimate benefit, cannot be condoned of course. But perhaps it is less the obvious wrongdoing than the subtle norms in the background that are the real problem.
Sunday, March 17, 2019
Professor Kenneth Nunn of the University of Florida Levin College of Law recently published an interesting and provocative article, entitled “Essentially Black”: Legal Theory and the Morality of Conscious Racial Identity, in the NEBRASKA LAW REVIEW. Professor Nunn, a self-described "Black nationalist and an African-centered scholar", responds to postmodernist and Critical Race Theory critiques of racial identity as essentialist. In particular, he challenges the notion that race-consciousness and racial identity are morally wrong, and he highlights the negative consequences of anti-essentialism for Black communities and activists.
Friday, March 8, 2019
The “Brides” of Terror: The Women of ISIS and Layered Intersectionality - Guest Post by Cyra Choudhury
Muslim women are once again making front page news for all the wrong reasons. Since the inauguration of the War on Terror, various sorts of stories about women have surfaced periodically. At first, it was the story of the woman victim who had to be rescued from her barbaric culture/religion and her violent male family members. Then, less frequently, it was the simmering worry that women were espousing radical, illiberal ideas and hiding these anti-Western sentiments under their hijabs presenting one face to the public and while hiding their true intentions. And now, we have the stories of the ISIS brides seeking to return to their homes in the West. A figure that oscillates between the first two characters–victim and threat.
A Flawed Victim
What do we make of a child who purposefully and resourcefully takes herself off across multiple borders into a war zone in order to join what is clearly one of the most reprehensible groups on Earth? After all, she is only 15 or maybe 19. She is old enough to make elaborate plans but not old enough to fully think them through. She is old enough to not be driven by impulse alone yet susceptible to the romantic allure of religious purity and devotion. Does this change after a few years when she turns 18 or because she is already 19? When can we attach responsibility?
In the United States, we are familiar with charging children as adults. We disproportionately charge children of color, black children in particular, as adults. But to assume that a Muslim girl could act in an adult capacity to join a murderous enemy of the state conflicts with cherished tropes of victimization at the hands of Muslim men. While we haven’t seen many attempts to defend these girls on the basis that they could not have acted without significant pressure from ISIS recruiters, we have seen a number of writers underscoring their age and vulnerability. In particular, some liberal analysis has been quick to point out that we might not treat other children as fully culpable. Yes, they traveled to ISIS-held territory but they were hardly on the front lines. They were hardly killing and raping. In fact, once they arrived and the honeymoon was over, they might have wanted to return. They may even have been trafficked.
The problem is that an unalloyed narrative of victimhood may explain how a young ISIS bride was lured but it does not account for the fair amount of willpower it takes to travel from the UK or the US to a war zone. Moreover, once in situ, such a narrative puts her on par with the women who were held as sex slaves, held in captivity, killed resisting.
A Reluctant Threat?
An emerging narrative complicates the picture by suggesting that an ISIS bride may be a real threat. Yazidi women have been quick to point out that these women and girls recruited as brides became “mistresses” overseeing the servitude of captives. They are not “innocent.” Perhaps we can consider them as analogous to the slave-owning white woman. Constrained by structural patriarchy, subordinate to and/or fearful of the men surrounding her, and/or participating actively in upholding the hierarchies of power and domination over other men and women. In this role, the ISIS bride is seen by her female victims as having more in common with ISIS men. Sisterhood doesn’t stretch across torture and slavery.
We are told to be wary of their return. Not to take their tales of suffering and disenchantment at face value. To remember that they actively joined and then carried out the program of ISIS against other women, true victims. (And, of course, one can understand the desire on the part of former sex slaves to see all those connected with ISIS punished.)
Liberal experts, particularly those emerging in the Women, Peace, and Security field, argue that while these women may be a threat, they also have valuable information that the state can use to continue to wage the War on Terror. That these women aren’t the cringing victims that the early WoT narrative had advanced. Rather women are increasingly becoming active terrorists both in places like Syria and Iraq as well as in San Bernardino, California. ISIS women are, therefore, neither innocent victims in need of saving, nor the kind of threat that ISIS fighters are but a vital source of information that might advance our security agenda.
There are others with similar reductive stories which obscure more than they elucidate. And here we might consider extending the theory of intersectionality in a new direction.
ISIS Child Brides And Intersectionality Extended
Intersectionality, as theorized by Kimberlé Crenshaw, has been used to help us think about how multiple identities can lead to subordination greater than the sum of its parts. Much has been written about the theory and increasingly, it has become unmoored from the legal literature that Crenshaw analyzed and used to describe social and legal subordination.
But intersectional thinking can also help us grapple with the difficulty of multiple roles that sometimes appear paradoxical as they inhere in one person. The girls who left to join ISIS ought to be understood as being both victim and perpetrator who cannot be reduced to any one set of actions. They cannot be reduced to the child lured from home or the young adult wife who supports a jihadist husband and a rogue state. Nor is she simply the handmaid to torture or even the torturer. Just as Yazidi women are resisters, fighters, victims, survivors, so are their counterparts. This is not to suggest that women who joined ISIS ought to be viewed as equal to victims; rather, it is to argue against reductive assumptions and constructions.
Complexity should not be glossed over. And the contexts in which these girls-now-women acted should not be forgotten. First, no one who joins ISIS from the West was raised in isolation. These women, like their male counterparts, were raised in a milieu of suspicion and surveillance in the height of the War on Terror. Their identities are shaped by and through their resistance to the prescriptive identity foisted upon them by a state desperate for a visible risk group, a discernible population that Countering Violent Extremism or Prevent could target. This is not to say that counterterrorism or the War on Terror radicalized them but societal conditions must be taken into account. Families must also be taken into account. The experience of peers and the experiences of acceptance and rejection in school and bullying must be considered. The ongoing barrage of Islamophobia through media and state policy as well through both casual and more intentional discrimination must be factored into the alienation of these girls. None of these factors are dispositive on their own even if counter-radicalization efforts do not acknowledge this fact.
While we often go out of our way to understand white mass murderers who commit horrific acts of domestic terrorism, humanizing them, we are unable to hold the complexities of people of color–particularly women–in our mind. We may understand intersectionality as a meeting place, a junction of axes of subordinated identities but can we also understand it as the coexistence of subordinated and dominant identities. An interpretation that stretches the concept then makes it available to many more people not just people of color. Intersectionality is a term that invokes spatiality, movement, traffic. In keeping with this idea, complex dominant and subordinated identities can be viewed as axes layered on each other like pick-up sticks and fly-overs, a knot. In a state-run by ISIS, we can see how some of these women may have been subordinate, perhaps fearful of the consequences of disobedience, self-subordinating, and the wielders of both their own and reflected power. Layered intersectionality allows us to imagine a much thicker relationship among multiple identities without requiring one to dominate over the other. Moreover, rather than being an entirely horizontal concept, it allows movement along more than one dimension including verticality.
Convenient and simple stories of how these women were lured, victims of Islamophobia looking for a place to fit in, products of Western imperialism, crushed by their barbaric families and religion, evil perpetrators of war crimes or at least enthusiastic supporters of the ISIS state may comfort some, but they are in the long run unhelpful in preventing the loss of young people to radicalism. And they flatten out the reality of these lives making them more vulnerable to criminalization justified through opportunistic national security narratives that sublimate structural Islamophobia.
Furthermore, men who have left to join ISIS have all been repatriated. This gender discrimination is unacceptable. It harkens back to the days when women’s citizenship followed that of her husband. A woman in the United States who married a foreigner would lose her citizenship, a fate no male suffered. This suggested that women experience an intersectional discrimination along both gender and religious lines which, for some reason, makes them more threatening than their male counterparts.
Returning Home: Beyond the Law
Indeed, national security has already become a preeminent concern with regard to the return of these women. In the UK and in the US, state officials have suggested that they be sent back to their country of origin by which it is meant the country from which their parents emigrated. This could only be possible if these women held dual citizenship of there was some legal basis on which to deprive them of their citizenship. Both Shamima Begum form the UK and Hoda Muthana from the U.S. were born in the country from which they hold citizenship. Shamima Begum, one of the UK brides, has been rejected as a Bangladeshi citizen because at no point was she a dual national. Both the UK Home Secretary and the US Secretary of State wish to render these women stateless contravening international law.
A number of scholars have already weighed in on the legal aspects of the attempts to strip ISIS brides of citizenship. The law, for the moment, does not allow the US executive branch to render Hoda Muthana stateless and, furthermore, citizenship stripping would have some consequences for her child. Yet, there is also a moral argument to be made on the basis of the fact that this woman was born, raised, and radicalized in the US. We are not absolved from our part in creating her and must now bear the consequences by allowing her to return. None of this means that she should be allowed to escape the consequences of her actions. But what it ought to mean is that we consider her on equal terms as the white supremacist or the confederate soldier. And as no worse than the number of males who have taken up arms against their cohorts in schools, movie theaters, and malls. If we can see humanity and conflict in these children and young adults, we should be able to extend that in fairness to people like Muthana and Begum.
To deprive Muthana and Begum of citizenship would solve our problem about what to do about these “traitors.” It would allow the state to side-step any process of establishing Muthana or Begum as a threat. But at the same time, it would send yet another message that people of color, those born of immigrant parents, regardless of whether born here or naturalized are second or third class citizens who cannot rely on the state to secure their legal rights. It would demonstrate in stark terms that the only way that anyone can truly be secure is to never make a mistake, never break the law and even then, as we know from the death of countless African Americans, it may not be enough.
We should remember that there have been other countries who have sought to deprive people of their citizenship stripping them down to one identity marker: Nazi Germany and Myanmar come to mind. This is not company that a the world’s oldest liberal democracy with a self-professed commitment to human rights should seek to keep.
Wednesday, March 6, 2019
Recently, Forbes published a news report entitled, "Chief Diversity Officers Are Set Up to Fail." The article draws on a survey of a group of Fortune 500 Chief Diversity Officers that asked them what they need to succeed. The article points to CDOs stating that they do not having enough experience, data, or power to accomplish their role. In particular the article reported that, "All of the leaders surveyed reported that diversity and inclusion came in last on a list of eight potential business priorities for their companies."
And interestingly, as to higher education in particular, The Chronicle of Higher Education reported on a study from September 2018 about University Chief Diversity Officers hired to increase faculty diversity. The claim there was that CDOs likely had no significant impact on the diversification of representation in higher education. The question remains for corporate and educational institutions that claim to want it: why is diversity still such a low priority?
This problem is nothing new. The disconnect between institutional priorities and achieving diversity (whatever that means, as it can mean many things to different people) seems to be indicative of our current broken attitudes towards diversity and inclusion. This brokenness can result in diversity-as-tolerance (as I've discussed before), which cravenly takes advantage of being seen as diverse merely to increase profits or enrollments (to the extent that, as Nancy Leong has pointed out, such institutions are willing to fake diversity) without there being an authentic commitment to inclusion and transformation of institutional culture.
The law appears particularly vulnerable to this problem. We can point to examples of the perception of a lack of commitment to diverse representation in law schools, law firms, and law practice generally. All of which are microcosms of the society’s shallow practices about diversity and inclusion. And this is ironic given the legal profession's mission to protect vulnerable minorities.
Maybe "diversity" as idea is in the midst of an existential crisis. Despite good intentions diversity may appear meaningless and amorphous. Or maybe all of this reflects society’s comfort with the patterns of white supremacy, and thus the lip service to diversity is simply a cover for preserving the status quo. And maybe—a thought I would never have uttered four years ago—some people in power actually want the rising tide of renewed white heteronormative patriarchal supremacy to take us to a time when America was "great," and authentic diversity based on equality is treated as poison.
The existential crisis that diversity faces doesn't excuse ending the search for it. Authentic diversity is an essential predicate for American institutions, whether for-profit or nonprofit, private or public, that strive to represent all of the people. These recent thoughts about Chief Diversity Officers would suggest some basic starting places for authentic institutional diversity—finding a working definition of diversity, making that definition as part of the institutional vision, and most importantly achieving that vision by making diversity a real, measurable priority.
The priority at the bottom of the list rarely gets achieved.
Monday, March 4, 2019
In the forthcoming article, "Uncompromising Hunger for Justice: Resistance, Sacrifice, and LatCrit Theory," Edwin Lindo (Washington), Brenda Williams (Washington), and Marc-Tizoc González (St. Thomas) report on and theorize a nonviolent direct-action campaign of the kind discussed by Dr. King in his famous Letter from a Birmingham Jail:
Using the basic steps of the nonviolent campaign as an organizing framework, they analyze and report on the 18-day hunger strike by the Frisco 5 (a.k.a., Frisco5). This direct action protested the extrajudicial killings of Amilcar Perez-Lopez, Alex Nieto, Luis Góngora-Pat, and Mario Woods by San Francisco Police Department (SFPD) officers and advocated for institutional change to reduce the risk of homicides against persons with similarly racialized minority-group identities. Two weeks after the Frisco 5’s 18-day hunger strike ended, San Francisco Mayor Ed Lee called for the resignation of SFPD Chief Greg Suhr. Before firing Chief Suhr, however, Mayor Ed Lee sought to subdue the pressure he felt as the result of the hunger strike by making a shallow peace offering of $17.5 million dollars towards police reform and violence prevention.
First, Brenda Williams uses personal narrative to introduce and overview the Frisco 5 hunger strike, contrasting this direct action with how legal education often accedes to the racial inequities endemic to the criminal justice system of the United States. She asks, where does the hunger strike, as a tool for justice, fit into legal discourse? How does the hunger strike resist dominant legal paradigms that constrain a lawyer’s justice work to the courtroom rather than promote justice work by lawyers in collaboration with community members in the streets of the Mission District in San Francisco? Next, Edwin Lindo reports and reflects on his experience participating in the hunger strike as one of the Frisco 5. Also, he charts a partial history of hunger strikes and their legal significance. Finally, Marc-Tizoc González theorizes the Frisco 5 hunger strike within critical race theory (CRT) and Latina and Latino Critical Legal theory (LatCrit theory). He applies critical concepts and practices like counterstorytelling and testimonio, evokes the critical ethnic legal history de la comunidad Latina/o/x (of the Latina/o/x community), and briefly discusses the political and religious significance of people’s public uses of food under First Amendment freedoms (i.e., free exercise of religion, free speech, petition of government for redress, and peaceable assembly). He concludes by asserting that the Frisco 5 acted within a genealogy of struggle—a fictive kinship of people who have fasted individually and collectively, inside and outside of prison, to protest injustice and to advocate for institutional reform, within historically contingent socio-legal relations of power.
The full article, forthcoming in the Seattle Journal for Social Justice, is post on SSRN.