Wednesday, July 24, 2019
In this two-part episode Sherrilyn Ifill of the NAACP Legal Defense and Educational Fund, Inc., Barry Friedman, NYU Law professor and director of NYU’s Policing Project, and John Malcolm of the Heritage Foundation explore the intersection of race and policing in the United States. Our guests explore the history of race relations in the U.S., and the resulting impact on law enforcement practices in Part 1: History, Training Programs, and Police as First Responders and Part 2: Predictive Policing, Funding Priorities, and Working Toward a Solution.
Juvenile Law Center’s Co-Founder Marsha Levick and Columbia Law Professor Elizabeth Scott discuss the vulnerability of children when they enter the justice system. Marsha and Elizabeth agree that much has improved since “adult time for adult crime” in the 1990s – today youth are recognized as developmentally different from adults, and with care, may be more easily rehabilitated. However, they argue that there are still improvements to be made, and the problems become obvious when you look at statistics comparing the race of children entering the system.
Death penalty expert and author of End of Its Rope: How Killing the Death Penalty Can Revive Criminal Justice Brandon Garrett of Duke Law School talks about the history of the death penalty in the U.S. criminal justice system, revealing details of his data collection on capital punishment. The episode also features ALI’s past President Roberta Cooper Ramo and Retired Judge Christine Durham, who discuss ALI’s removal of the Death Penalty Provision from the Model Penal Code in 2009, perhaps one of the earliest indications of the future of capital punishment.
Renowned experts on American Indian law and policy, Matthew Fletcher of Michigan State University College of Law and Wenona Singel of the Office of the Governor for the State of Michigan, discuss the nuanced and highly complex field of American Indian Law. Matthew and Wenona begin by exploring the history of tribal sovereignty, and discuss the rights of American Indians as both tribal citizens and U.S. citizens.
Friday, July 12, 2019
Randall Abate, Rechnitz Family Endowed Chair in Marine and Environmental Law and Policy and a Professor in the Department of Political Science and Sociology at Monmouth University, has a forthcoming book, Climate Change and the Voiceless: Protecting Future Generations, Wildlife and Natural Resources (Cambridge). He looks at the voiceless as "the most vulnerable and least equipped populations to protect themselves from the impacts of global climate change." Abate explains how domestic and international laws have not accounted for climate change and climate justice. This work builds on his earlier books, Climate Justice: Case Studies in Global and Regional Governance Challenges, which I had contributed a chapter, as well as Climate Change Impacts on Ocean and Coastal Law and Climate Change and Indigenous Peoples: The Search for Legal Remedies, co-edited with Elizabeth Kronk-Warner.
On his blog, Climate Change(d), he writes about the growing threat of climate change on vulnerable communities.
When I started writing and teaching about climate change law and justice shortly after the turn of this century, climate change still seemed like a distant threat, but one that was close enough for vulnerable communities to fear as an imminent peril. Nowadays, whatever I do and wherever I travel, the fingerprints of climate change are evident, and the threat is much more imminent and widespread. It is no longer limited to vulnerable and impoverished communities – the affluent are no longer immune. The affluent are more protected and less in harm’s way than vulnerable communities, but it is now increasingly clear that we share a common vulnerability to climate change in the coming decades of this century in our shared status as Earthlings.
I enjoyed an excellent piece of creative nonfiction that was a useful complement to my thinking and engagement on this trip. In her book, Rising: Dispatches from the New American Shore, Elizabeth Rush compellingly portrays the stories of communities confronting sea level rise in the U.S. from Staten Island to Louisiana. Her accounts from the front lines of these affected communities portray desperation, courage, and resilience in the face of these scientific realities and existential threats from sea level rise and its impact on what these communities had called home for generations.
One quote from the book resonated with me to help underscore the tenor of my reflections in the previous paragraph regarding the ubiquitous threat of climate change: “[T]he environmental apocalypse we often think of as existing only in films is already with us. The lines between our imagined futures and present tense grow increasingly blurry with every passing day.”
In 2004, we needed a jarring and fictional account to open our eyes to the daunting threats of climate change in the form of the Hollywood blockbuster movie, The Day After Tomorrow. Just fifteen years later, we are now living in and seeking to adapt to that scary, seemingly fictional new normal in our daily lives.
Thursday, July 4, 2019
At the first Democratic presidential debate, the sharp exchange between Joe Biden and Kamala Harris hit home for me. Harris’s poignant story about being bused when she was a child, along with her rebuke of Biden’s opposition to “forced busing”, resonated widely and powerfully. Like Harris, I lived through busing—a long forgotten chapter in the history of school desegregation. My schooling experience was defined by the metropolitan busing remedy in New Castle County, Delaware—“deseg” as many called it—which was one of the most comprehensive school desegregation plans in the entire country . Joe Biden was my Senator—someone I admire and who has helped my family, friends, and many others from Delaware. He developed his views on busing largely through the charged debate on deseg in our home state. 
Biden has been roundly criticized for his position, and there is a valid basis for this criticism. He collaborated closely with segregationist Senators, along with White anti-busing activists in Delaware, giving these groups some legitimacy . He opposed busing remedies for de facto segregation but did not consider housing and education policies that led to such segregation . When articulating his support for local control of busing during the debate, Biden overlooked how such local control has often thwarted desegregation efforts. Moreover, some of his past statements seemed to espouse a moral equivalence between Black and White opponents of busing: he did not call out the latter firmly for their racism. Biden has also appeared muddled and defensive when explaining his record. Although I believe he has had good intentions, his words give the impression that political ambition may have clouded his judgment.
Nevertheless, there is more to busing and to Biden’s position on it. Deseg was complex on many levels—through its politics, its implementation, and its long term effects. My perspective on busing is both academic and personal . Going to school with Black students from inner city Wilmington, Delaware--students who I would not have met otherwise--had a tremendous positive impact on my life. Many of them are my friends to this day. My experiences with busing are the reason I became interested in race and racism, and that I am now a law professor who focuses on those issues.
During and after law school, I also worked closely another well-known critic of busing: the late Professor Derrick Bell . Professor Bell is the most renowned scholar ever on race and law. He was the first tenured Black law professor at Harvard Law School. He is widely known and revered among racial justice advocates for, among other things, leaving his position at Harvard in protest of the Law School’s failure to hire more women of color faculty. He is one of the founders of an influential scholarly movement known as Critical Race Theory (CRT). And his pioneering writings in CRT disapproved of the civil rights establishment’s unabashed support for school integration. 
Professor Bell has been ignored in the recent conversation about busing, but his perspective reminds us that while busing may not have been the “liberal train wreck” that Biden described , it was not a liberal panacea either. Professor Bell wrote that he would have actually dissented in Brown v. Board of Education, focusing on equality of schools instead of integration itself . His motivation, of course, was very different from that of segregationists. He felt that integration and busing had become mere symbolic issues, and that civil rights advocates did not always prioritize the best interests of Black children. In as much as he opposed busing, Professor Bell was concerned about Black children being thrown under the bus. 
Professor Bell laid this out in his groundbreaking 1976 Yale Law Journal article, Serving Two Masters. Here, he discussed his experience meeting with Black community representatives and NAACP lawyers in 1975, as they planned the second phase of Boston’s school desegregation effort. The first phase, in the previous year, was met with violent incidents and garnered national attention. Professor Bell recounted how the Black representatives were ambivalent about busing. They wanted to continue the progress in civil rights, but they also wanted more emphasis on schools’ educational quality, and they feared sending their children to some of Boston’s more violent White neighborhoods. 
From this and other experiences, Professor Bell came to believe that a singular focus on integration was misguided, and that the goal should be equal educational opportunity for all Black children. Professor Bell acknowledged that equal opportunity could come about through integrated schools, but not always. As stated in Serving Two Masters:
"The busing issue has served to make concrete what many parents long have sensed and what new research has suggested: court orders mandating racial balance may be (depending on the circumstances) advantageous, irrelevant, or even disadvantageous." 
At the time, Professor Bell was criticized by the civil rights community for his views, but he is now widely admired for his courage.
Professor Bell’s admonition resonated when deseg was implemented in Delaware. Busing was great for me personally, but it was more complicated for my Black friends from Wilmington. They were bused to the suburbs in New Castle County for 9 years out of 12, while those of us in the suburbs were only bused to the inner city for three years. Those bus rides were thirty minutes long each way. Busing and other efforts towards integration almost always put a greater burden on people of color, and Black parents and children in Wilmington lived this burden. Professor Jeffrey Raffel, who has studied Delaware desegregation extensively, reported that before deseg was implemented in 1978, Black parents in Wilmington were almost evenly split on the issue of busing. In his initial survey, slightly more of these parents actually opposed busing than supported it, and more than three times as many “strongly” opposed it as “strongly” supported it. Attitudes towards busing became more positive as these parents learned more about desegregation, but there were still significant misgivings. A majority of Black parents surveyed had real concerns about safety, convenience, and opportunity to be involved in their children’s school activities. 
Biden was aware of Black parents’ concerns with busing. He had a good relationship with the Black community in Wilmington, and in his 1975 National Public Radio (NPR) interview, Biden noted that he spent almost 300 hours studying the issue and speaking with Black and White people in Delaware before coming to his anti-busing position . Many years later, in his autobiography, Biden echoed some of the concerns that Raffel had reported in his survey:
"[B]lack parents were terrified that their children would be targets of violence in suburban schools. [Busing] also meant that a parent-teacher conference could cost them a half day of work. And what if there was an emergency? A lot of people in inner-city Wilmington didn’t have cars, and there was no reliable public transportation." 
These were real, lived dilemmas. One of my friends from Wilmington, Joni, told me that although her busing experience was positive, her mother hated busing precisely because she did not have a car and could not conveniently get to her children’s schools. Because of this, Joni’s mother was reluctant to allow her to participate in after-school activities. Although her mother eventually relented, this concern became particularly salient one day, when Joni was injured during a field hockey game and had to be taken to the hospital. Joni also lamented the fact that her family could not attend her athletic events and other school activities; and that busing precluded her from going to after-school social events and study groups at her suburban friends’ homes. Thus, while deseg opened up opportunities in the long term, it also closed off others in the short term—particularly opportunities for Black parents to be involved in their children’s schooling.
Beyond such challenges, Biden—like Professor Bell—expressed concern for educational equality. In his Senate floor statement against busing on September 17, 1975, Biden contended that “[busing] obfuscates the real issue today which is whether or not there is equal opportunity within the educational field for all people[.]” He reiterated twice that “equal opportunity in education” and “better educational opportunity for blacks and minority groups” should be the priority. Indeed, if Serving Two Masters had not been published until a year later, one might even think that Biden read parts of it on the Senate floor. 
Biden’s stances illustrate the intricate politics of busing. The debate over deseg in Delaware was not a simply one between civil rights advocates and anti-busing racists. Professor Brett Gadsden describes the opposition to busing as:
"[A] variation of Derrick Bell’s theory of interest convergence in which black activists and educational reformers … found common cause—directly or indirectly—with white public officials who wanted to perpetuate racial segregation or temper the impact of desegregation mandates." 
Professor Gadsden notes that part of this milieu was “an unexplored, if implicit, meeting of the minds” between Black activists and “white liberals like Biden.” And although Biden—through his work with both White anti-busing activists and Black community activists—was "serving two masters", I believe he truly felt that busing would hurt Black children and their parents more than it would help them, and that he would not have opposed it otherwise.
There are many different stories of deseg: positive, negative, and ambivalent. Several of my friends from Wilmington told me that busing was an enlightening experience. It exposed them to different people, perspectives, and possibilities. Others did not view it as positively. My friend Taquan was part of the first cohort of Black students bused from Wilmington to the suburbs, back in 1978. Many years later, in a 1991 article in the Wilmington News Journal, Taquan recounted his feelings: “When shipped – excuse me, bused – I noticed a change. My academic prowess began to decay.” Taquan felt that his White teachers after deseg challenged his abilities, whereas his Black teachers prior to deseg had actually cared about teaching him. “We were in school, not a boxing match[,]” he stated pointedly . But when I spoke with him recently, Taquan also noted that his experience in Wilmington, Delaware may have been different from Kamala Harris’s experience in Berkeley, California.
Black parents had to weigh all of this complexity when thinking about busing. In spite of their concerns, Professor Raffel’s survey indicated that most Black parents in Wilmington thought that deseg would “provide a better education for most black students” . Professor Bell notes that Black parents often discerned that “green follows White”: they believed that “whites would never give black schools a fair share” and that integrated schooling was the only means to a quality education . Many of these parents also saw deseg itself as an advance in the struggle. Biden recounts that his Black constituency “was afraid that if they really back off busing, it will be taken as a signal … [of] … backing off on racial progress” . Although it is debated, many social scientists do believe that busing and desegregation generally had a positive impact on the academic achievement of Black students . And some of my friends noted that while they did not like riding the buses at the time, they are now grateful for the experiences that deseg provided.
Although it was difficult back then, the benefits of school desegregation, for me, for my friends, and for society generally, resonate many years later. Ultimately, this is why I disagree with my former home state Senator. I think busing was necessary in the broader struggle for racial justice, and that federal courts had to order forceful desegregation remedies to make it happen. I am proud that I rode the buses in Delaware and was a small part of that struggle. But Professor Bell taught us many important lessons, and he continues to do so. We should not lose sight of the paradox of busing. Its gains came through the many sacrifices that Black children and parents made, sometimes unwillingly, to make America better for all of us.
 See Jeffrey Raffel, The Politics of School Desegregation: The Metropolitan Remedy in Delaware (1980).
 See Brett Gadsden, Between North and South: Delaware, Desegregation, and the Myth of American Sectionalism 1-3 (2013).
 See David A. Love, Why Joe Biden is Wrong, Al Jazeera, July 4, 2019. Nevertheless, Biden's position on busing did not please the Positive Action Committee (PAC), Delaware's most prominent anti-busing organization. According to Professor Raffel, PAC President James Venema "constantly attacked Biden's position." In 1978, the year that deseg was implemented in Delaware, Venema decided to run for Biden's Senate seat. See Raffel, supra note 1, at 81, 116.
 See Brett Gadsden, Here’s How Deep Joe Biden’s Busing Problem Runs Deep And Why the Democrats Can’t Use It Against Him, Politico, May 5, 2019.
 See Vinay Harpalani, Ambiguity, Ambivalence, and Awakening: A South Asian Becoming “Critically”Aware of Race in America, 11 Berkeley Journal of African-American Law & Policy 71 (2009).
 For more on my connection to Professor Bell, see Vinay Harpalani, “Gifted with a Second-Sight”: Professor Derrick Bell the Teacher, in Covenant Keeper: Derrick Bell’s Enduring Education Legacy 17 (Gloria J. Ladson-Billings & William F. Tate eds., 2016).
 For more on Professor Bell’s life and work, see Derrick Bell Official Website.
 Joe Biden, Promises to Keep 125 (2008).
 See Derrick Bell, Bell, J., dissenting, in What Brown v. Board of Education Should Have Said 125 (Jack M. Balkin, ed.) (2001)
 See Neither Separate Nor Mixed Schools: The Chronicle of the Sacrificed Black School Children, Chapter 4 of Derrick Bell, And We Are Not Saved: The Elusive Quest for Racial Justice 102 (1987).
 See Derrick A. Bell Jr., Serving Two Masters: Integration Ideals and Client Interests in School Desegregation Litigation, 85 Yale Law Journal 470, 482 (1976).
 Id. at 480.
 See Raffel, supra note 1, at 28-32. Also, in February 1978, the New York Times reported that "if busing were put to a vote in the black community [in Wilmington], it would be voted down." The NYT report was based on an interview with Charles Grandison, who was a Black aide to Wilmington Mayor William McLaughlin. Grandison also opined that "[t]he blacks won the case ... but they still think they're getting shafted." See Steven V. Roberts, Leaders of Wilmington, Del., Seek Smooth Start of Busing, N.Y. Times, Feb. 2, 1978, at A16.
 See Alana Goodman, Joe Biden embraced segregation in 1975, claiming it was a matter of ‘black pride’, Washington Examiner, Jan. 31, 2019. The online version of this article also contains an embedded version of the 1975 NPR interview. In the same interview, Biden used the language of “black pride” and “black is beautiful.” He likely garnered these ideas from individuals involved in the Black Power movement, further illustrating his connection to the Black community.
 See Biden, supra note 8, at 125.
 121 Congressional Record S29103 (daily ed. Sept. 17, 1975) (statement of Sen. Joseph R. Biden).
 See Gadsden, supra note 2, at 19 (citing Derrick A. Bell, Jr., Brown v. Board of Education and the Interest-Convergence Dilemma, 93 Harvard Law Review 523 (1979). Here, Professor Bell provides another informative insight. “Interest-convergence” refers to the aligning of groups who would seemingly be opposed, due to a common interest. In this case, anti-busing racists and Black activists who emphasized community control had their interests aligned, all in the effort to oppose busing.
 Taquan Stewart (as told to Rhonda Graham), For one, deseg was a dissatisfying challenge, Sunday News Journal (Wilmington, DE), July 28, 1991 at L1, L3.
 See Raffel, supra note 1, at 30.
 See Bell, supra note 10, at 104.
 See Biden, supra note 8, at 126.
 See, e.g., Rucker C. Johnson, Children of the Dream: Why School Integration Works (2019).
I appreciate Taquan Stewart, Joni Kurylo, Jon Jervey, Shane Riley, and Melanie Prince for sharing with me some of their experiences with busing in Delaware. Turquoise Young also gave helpful feedback on this post.