Monday, June 29, 2020

AALS Webinar on Racism, Justice, and Your Fall Classes

AALS is hosting a program on Racism, Justice, and Your Fall Classes on June 30th at  4 pm ET/1 pm PT. In this program, panelists will discuss how you might think about incorporating topics concerning racism, justice, diversity, and inclusion into your fall classes at a time when these issues are front-and-center. Here is the registration link.

AALS invites tenure-track, clinical, and legal writing faculty  on Tuesday afternoons for “Faculty Focus,” a series of weekly webinars organized around issues these individuals may be facing as well as challenges affecting higher education and the profession in general. Each 60-minute webinar will feature expert advice from law school leaders followed by shared experiences from early career law faculty. The sessions will be structured to encourage conversation and connection, with opportunities for participants to crowdsource solutions and discuss common issues across schools and teaching areas.

June 29, 2020 | Permalink | Comments (0)

Thursday, June 25, 2020

Law Review article: Reforming Policing (by Prof. andré douglas pond cummings)

Professor andré douglas pond cummings of the University of Arkansas at Little Rock William H. Bowen School of Law published an article a couple of years ago that is quite relevant to current issues and debates, in the wake of protests over George Floyd's killing.  It is entitled "Reforming Policing" and was published in the Drexel Law Review.  The abstract is given below, and here is the link: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3207051

Abstract

Law enforcement killing of unarmed black men and police brutality visited upon minority citizens continues to confound the United States. Despite protests, clarion calls for reform, admitted training shortcomings and deficiencies among U.S. law enforcement officers, conferences, summits, and movements to reform policing, the solution to ending undisciplined police violence and the hostile killings of unarmed minority individuals at the hands of U.S. police seems to elude us. Why should this be? The United States is home to some of the most creative, innovative, pathmarking, and course-changing thinkers the world has ever known. This challenge — police killing of unarmed minority citizens and law enforcement brutality — could be one that this nation can solve; that is, if there is a political and moral will to do so.

This article proposes a radical restructuring of United States law enforcement policies, procedures, and applications in order to address this critical challenge. After comparing some of the nation’s most innovative police reform efforts, this article will provide policymakers, legislators, officers, leaders, judges, and lawyers the most effective reform efforts and best thinking that have been implemented to date in connection with saving the lives of residents who face danger from those trained to protect and serve them. This article may serve as a signal to a potential sea change in failed police practices that have endured for decades in the United States.

This proposal unfolds as follows: Part I describes the historical evolution of policing practices in the United States, including the influence of slave catchers in the South during the slave trade and tracing back to the nation’s founding. This historical analysis will demonstrate the deep-seated bigotry and race-hatred that influenced many early law enforcement practices throughout the nation. Part II reviews the historical racial difficulties and will reflect on how they manifest today, where policing in many departments still centers around controlling black and brown individuals. Part III then surveys some of the most influential and innovative police reform efforts that have been undertaken by cities, municipalities, and states around the country, particularly those that are revolutionizing policing in a way that recognizes the historical racism and seeks to reform policing in a meaningful and human-centered way. Finally, Part IV recommends a battery of policies and reforms that may deeply influence the way policing is conducted currently and provide a better way forward. The Article ends with concluding thoughts.

June 25, 2020 | Permalink | Comments (0)

Tuesday, June 23, 2020

Domestic Terror Law Could Quash Political Dissent

 

When President Trump announced his intention to designate Antifa as a domestic terrorist organisation, his disregard for the upsurge of white right-wing extremist violence was obvious. So, too, was his objective -- quashing political opposition to his administration.  

Protest I Cant Breathe

Antifa, short for anti-fascist, is a far-left ideological movement opposed to fascists, neo-Nazis and far-right groups. A loose collective of individuals and local groups, it lacks a chain of command or designated leaders. 

Followers of this decentralised movement engage mostly in nonviolent activities such as protesting, giving speeches, tracking fascist groups and hanging up posters. However, Antifa followers, often clad in all black and wearing masks, justify militant anti-fascism action as self-defence of marginalised people against white supremacists. As a result, some have damaged property and physically attacked ideological opponents during protests. None have killed.

In stark contrast, right-wing hate groups have inspired some of their followers to kill 106 people between 2001 and 2016, according to the US Government Accountability Office. In Trump's first year as president, right-wing groups were responsible for 31 violent attacks.

And yet, not once has Trump called for one of the nearly 1,000 right-wing extremist groups to be designated as a domestic terrorist organisation.  

His double standards were on full display in 2017, when he claimed Antifa shared some of the blame for the murder of Heather Heyer during the Unite the Right protest in Charlottesville, Virginia. Heyer was killed when a self-professed neo-Nazi drove his car into a crowd of anti-fascists protesting against the far-right racist groups attending the rally. Refusing to acknowledge that the protest was organised by white supremacists, Trump stunningly stated that there were "very fine people on both sides". Those so-called fine people included hundreds of Klansmen, Alt-Knights, and the Proud Boys - all of whom are eager to start a race war.

Meanwhile, Trump categorically smears Muslims as "terrorists". Since 2015, he accused Islam of being a violent ideology, suggested creating a "database of all Muslims in the US" and issued a Muslim Ban. He continues Bush and Obama's legacy of focusing on Muslims in domestic counterterrorism enforcement. 

Indeed, Muslims have been the boogeymen propped up by both the Democrats and the Republicans to funnel billions of dollars to the FBI, DHS and DOJ National Security Division. The money, in turn, funds tens of thousands of counterterrorism agents, intelligence officers and prosecutors conducting surveillance, investigations and sting operations in Muslim communities under a preventive model of counterterrorism policing 

These activities had a chilling effect on Muslims' free speech and freedom of religion, and caused many of them to self-censor and refrain from political activism - precisely what the government wants. Trump now wants to expand this rights-infringing schema to his left-wing opposition.

Notably, the grave damage to Muslims' civil rights and liberties occurs through enforcement of international terrorism laws because only foreign organisations can be designated as "terrorist". No law exists authorising the designation of a domestic group as a terrorist organisation. However, domestic terrorism is defined in 18 USC 2331(5) as "acts dangerous to human life that occur primarily in the United States, violate federal or state criminal laws, and are intended to intimidate or coerce a civilian population or influence government policy by intimidation or coercion". 

Should Congress pass a law authorising domestic groups to be designated as terrorist according to this definition, it would be the death knell of political groups disfavoured by whoever is president at a particular time.  

Individuals associated with the designated group, even if not engaged in violent acts, could be prosecuted for material support to terrorism and imprisoned for up to 15 years. Donating funds, providing training, joining protests and other non-violent actions associated with designated domestic groups would be illegal.

The counterterrorism preventive model would also invite pre-emptive surveillance and investigations based on people's ideologies, associations and political memberships. 

A domestic terrorism law, thus, would regress the nation back to a dark era when the law was weaponised to quash domestic political dissent. During the 1950s and 1960s, the infamous COINTELPRO under J Edgar Hoover deployed tens of thousands of informants and undercover agents to infiltrate and disrupt the Black Panther Party, Nation of Islam, Southern Christian Leadership Conference, anti-Vietnam war protesters and other civil rights groups.  

Moreover, calls for a new statute that would allow for domestic groups to be designated as "terrorist" based on "national security" are belied by the fact that prosecutors can already choose from more than 51 criminal statutes, including murder, possessing or using weapons of mass destruction, bombing and assassination to prosecute politically motivated violence.

But being labelled a terrorist carries a heightened stigma, which in turn gives licence to the FBI to be more aggressive in their surveillance and investigative tactics.

Designating Antifa as a terrorist organisation would not only change the public view of Antifa as a radical political group that, while fringe and occasionally violent, falls under Americans' expansive notions of free speech. It would unleash the full force of the government's counterterrorism regime against political dissidents on the left. Nonviolent acts such as tracking fascist groups, counter-protesting against white supremacists, publicly defacing flyers of neo-Nazi speakers, and opposing law enforcement, would be treated as unlawful material support for terrorism.

Absent the terrorist label, the government must be much more careful to focus on violent acts, not radical speech or ideology, in how it investigates Antifa and other groups on the extremes of the political spectrum.  Officials who abuse their power will find themselves subjects of Inspector General Reports exposing illegal surveillance of activists engaging in First Amendment protected activities, which occurred under the Bush administration.

To be sure, Trump's primary targets of a domestic terrorism law will be left wing and minority activists.  

But over time no one will be immune from being criminalised for their dissent - leaving us bereft of our strongest defence against authoritarianism.

-- Sahar Aziz, Professor of Law, Chancellor's Social Justice Scholar, Middle East Legal Studies Scholar, Rutgers Law School

-- This article was originally published on Al Jazeera here.

 

June 23, 2020 | Permalink | Comments (0)

Friday, June 19, 2020

We must tear town the 'blue wall of silence.' Here's how civil lawsuits could help (by Profs. Frank Rudy Cooper, Suzette Malveaux, and Catherine Smith)

Imrs

Our years of studying constitutional civil rights have taught us that police policies and even criminal statutes are not enough to overcome the “blue wall of silence” among officers. What’s needed are state laws that create an affirmative duty for bystander cops to intervene to prevent use of excessive force or other civil rights deprivations, and that allow civil suits against cops who don’t.

Victims of police misconduct should not have to rely on inadequate department policies or prosecutorial whims for protection or redress. Criminal charges in cases of police violence are extremely rare. Tellingly, it took a week for Chauvin to be charged with second-degree murder and his fellow officers with accomplice liability as protests against racially motivated police violence erupted around the globe.

By contrast, empowering individuals to bring civil lawsuits against bystander cops who fail to intervene — with the threat of monetary damages — would force officers to act. This might sound like a novel idea, but U.S. history teaches otherwise.

In the late 1800s, despite the Reconstruction amendments to the U.S. Constitution, the Ku Klux Klan and its sympathizers terrorized formerly enslaved blacks and their white allies. Throughout the South, many police would orchestrate and participate in Klan violence. Others would tacitly agree to stand down. Congress passed the Civil Rights Act of 1871, also known as the Ku Klux Klan Act, in an effort to dismantle racist systems and institutions.

This comprehensive legislation empowered individuals to act as private attorneys general to enforce the Constitution in several ways. Section 1983 enabled individuals to seek damages for constitutional violations, Section 1985 prohibited conspiracies against civil rights, and Section 1986 required police and other state officials to intervene in such conspiracies whenever possible.

Consistent with its early hostility toward the Reconstruction agenda, the Supreme Court severely restricted these sections. After lying dormant for about 100 years, they were resurrected in the late 20th century. Section 1986 is still rarely used, but its underlying principle, the duty to intervene, could help address present-day police violence — even if law enforcement is fundamentally restructured in the future.

Requiring officers to intervene makes sense for several reasons. When violence is perpetrated by law enforcement, bystander police officers are often the only people who can safely intervene. Civilians cannot be expected to stop an officer from assaulting a victim: They would risk arrest for obstructing justice and possibly face bodily harm themselves.

In 1871, Congress knew that law enforcement inaction enabled lynchings, rapes and murders, playing an important role in the continued subjugation of black Americans. Police inaction today perpetuates racial hierarchies by allowing harms ranging from everyday harassment to brutal murders. Police silence results in burdens that are borne largely by the poor, racial minorities and other marginalized communities.

 
The article was published by the Washington Post on 7/17/20. Read it here.
 

Frank Rudy Cooper is a professor of law and director of the Program on Race, Gender & Policing at the University of Nevada, Las Vegas, William S. Boyd School of Law. He co-edited the book “Masculinities and the Law: A Multidimensional Approach.” Suzette Malveaux is provost professor of civil rights law and director of the Byron R. White Center for the Study of American Constitutional Law at the University of Colorado Law School. Catherine E. Smith is a professor of law and associate dean for institutional diversity and inclusion at the University of Denver Sturm College of Law.

 
 

 

June 19, 2020 | Permalink | Comments (0)

Wednesday, June 17, 2020

UNEQUAL PROFESSION: RACE AND GENDER IN LEGAL ACADEMIA (Stanford University Press, 2019) - new book by Professor Meera Deo

Professor Meera Deo recently published UNEQUAL PROFESSION: RACE AND GENDER IN LEGAL ACADEMIA (Stanford University Press, 2019) -- a study that has been getting a lot of attention recently.   Professor Deo's work is the first formal empirical study of law faculty with an emphasis on raceXgender challenges facing women of color law professors. Her qualitative and quantitative findings from interview and survey data reveal a national pattern of ongoing "mansplaining" and "hepeating" by colleagues, biased evaluations and confrontations from students, and gender-based barriers to promotion and leadership.  Professor Deo illustrates that these problems are not unique to legal academia, but also systemic throughout legal practice and other professions.  She proposes individual strategies and structural solutions to address these pervasive problems.  Professor Deo's book is available for 30% off + free shipping at this website (promo from LSA); the code is S20XLSA-FM.

 

 

June 17, 2020 | Permalink | Comments (0)

Tuesday, June 16, 2020

ABA Webinar on Beyond Redlining: Black Lives Matter and Community Development on 6/17 at 1:00 pm

BLM and Community Development

The ABA Section of Civil Rights and Social Justice has developed a multi-part webinar series exploring how the COVID-19 pandemic highlights critical legal issues of criminal justice, civil rights, human rights, and economic concerns, to name only a few. In these free non-CLE and (two CLE) webinars, panelists will address the deepening crisis in our collective pursuit of advancing law and justice.

Beyond Redlining: Black Lives Matter and Community Development

Date: Wednesday, June 17, 2020

Time: 1:00 p.m. – 2:30 p.m. EDT

Format: Free non-CLE Webinar

DESCRIPTION:

Racial discrimination in mortgage lending in the 1930s shaped the demographic and wealth patterns of American communities today, a new study shows, with 3 out of 4 neighborhoods “redlined” on government maps 80 years ago continuing to struggle economically.

A recent study by the National Community Reinvestment Coalition indicates that the overwhelming majority of neighborhoods marked “hazardous” in red ink on maps drawn by the federal Home Owners’ Loan Corp. from 1935 to 1939 are much more likely than other areas today to consist of lower-income, minority residents. This panel of expert legal professionals will address the long term impacts of redlining on community development, housing, education, and economic justice.

Speakers:

  • Patricia Broussard – Professor of Law, Florida A&M University College of Law
  • Audrey McFarlane – Associate Dean of Faculty Research & Development and Dean Julius Isaacson Professor of Law, University of Baltimore School of Law
  • Jessica Etienne – Assistant State Attorney, Florida’s 17th Judicial Circuit
  • Renee Hatcher – Assistant Professor of Law, UIC John Marshall School of Law; Director, Community Enterprise & Solidarity Economy Clinic, UIC John Marshall School of Law
  • Kendall Thomas – Nash Professor of Law, Columbia Law School 

Co-Moderators:

  • Kelecia Njaka – President, Barry Black Law Students Association, Dwayne O. Andreas School of Law, Barry University
  • Diamond Griffith – Barry Black Law Students Association, Dwayne O. Andreas School of Law, Barry University


Register HERE: https://americanbar.zoom.us/webinar/register/WN_77i7hAfRSyyAhuUEysJdxQ

June 16, 2020 | Permalink | Comments (0)

Sunday, June 14, 2020

Racial Stereotypes, Respectability Politics, and Running for President: Examining Andrew Yang's and Barack Obama's Presidential Bids

During his bid for the 2020 Democratic presidential nomination, Andrew Yang received more national media attention than any prior Asian American political candidate [1].  Although not a major contender for the nomination, Yang—who is Taiwanese American—was an engaging and entertaining presence, capturing the imagination of many observers.   He gathered a following known as the “Yang Gang”—a group that included people of various political orientations and all racial backgrounds.  Even after his campaign ended in February, Yang remained visible as a CNN political commentator.  And as the COVID-19 pandemic spread and shut down the U.S. economy, Yang’s signature policy proposal—the Universal Basic Income (UBI)—garnered more attention as a means to provide economic relief.  Then, in the wake of the pandemic, Yang’s response to anti-Asian American violence sparked more debate.

Yang was not the first Asian American presidential candidate.  Hawaii Senator Hiram Fong won votes for the 1964 Republican presidential nomination from the Hawaii and Alaska delegations.  In 1972, Representative Patsy Mink, also from Hawaii, became the first Asian American to seek the Democratic presidential nomination [2].  More recently, Louisiana Governor Bobby Jindal sought the Republican nomination in 2016; and in 2020, California Senator Kamala Harris and Representative Tulsi Gabbard sought the Democratic nomination along with Yang.  But Fong and Mink ran in an era when primary campaigns were shorter and received less media coverage.  Harris was a nationally visible candidate, but both she and the media emphasized her Black identity much more than her Asian Indian (Tamil) American heritage. To the extent that Gabbard received attention, it was largely for her unorthodox political views and her criticism of other candidates rather than her American Samoan heritage [3].   And while Jindal’s Asian Indian (Punjabi) American roots did receive some attention, he deliberately de-emphasized them and embraced assimilation as an ideal

Yang, in contrast, did not hide from his Asian American identity and even highlighted it at times.  By December, he was the only candidate of color who qualified for the Democratic primary debates. When asked about this, Yang lamented the absence of Kamala Harris and Cory Booker, and he acknowledged that Black Americans and Latina/o Americans face more challenging barriers than he ever did.  Nevertheless, Yang also recounted the racial epithets and insults he encountered during his childhood, connecting his experiences to the broader struggles of people of color.

But Yang misfired in his April 1 Washington Post op-ed, which addressed COVID-19 related hate crimes against Asian Americans.  He asserted that “Asian Americans need to embrace and show our American-ness in ways we never have before … step up, help our neighbors, donate gear, vote, wear red white and blue … show without a shadow of a doubt that we are Americans who will do our part for our country … [.].”  Yang noted that Japanese Americans volunteered for the military during World War II, but he neglected to mention the injustice of their internment.  Rather than placing blame squarely on the perpetrators of hate crimes, Yang’s op-ed seemed to emphasize the responsibility of Asian Americans to overcome racism and xenophobia.

Several Asian American celebrities and commentators criticized Yang’s op-ed.  Responding in a letter to the Washington Post, David Inoue, Executive Director of the Japanese Americans Citizens League, accused Yang of “blaming the victim” and “fail[ing] to recognize the fundamental reality of the racism” that leads to hate crimes.   Actor George Takei, of Star Trek fame, tweeted that “Yang is way off the mark” and that Asian Americans “don’t have anything we need to prove[.]”  Vox writer Li Zhou discussed how Yang’s comments embody “respectability politics”—attempts by members of marginalized groups to show that their values, norms, and behaviors coincide with those of mainstream society and thus are not threatening to it.  More starkly, in a subsequent Washington Post op-ed, Columbia University student Canwen Xu called Yang a “white-people pleaser.”

During his tenure in office, President Barack Obama found himself mired in similar controversy.  Obama was accused of promoting respectability politics during his May 2013 commencement address at Morehouse College, when he asserted “that too many men in our [Black] community continue to make bad choices” and elaborated on this theme.  Various critics reacted sharply to these comments.  Columbia Journalism Professor Jelani Cobb bemoaned Obama’s speech as “confirm[ing] the long and ugly tradition that conflates blackness with laziness and poverty, and whiteness with virtue and wealth.”  Writer Ta-Neishi Coates accused Obama of “singularly … scold[ing]” Black Americans in a way that he did not hold other groups accountable.  Beyond the Morehouse speech, Temple University Professor Marc Lamont Hill has observed that Obama employed respectability politics in policy initiatives such as My Brother’s Keeper.  And in an essay that actually defends respectability politics, Harvard Law Professor Randall Kennedy noted that at the same time Obama “scolds” Black America, he “has assiduously cultivated a persona that is racially nonthreatening to many whites [.]”  In that vein, Obama too was a “white-people pleaser.”

But in order to be elected, Obama had to cultivate that non-threatening persona.  He had to ensure that White voters were comfortable voting for him.  And to accomplish this, Obama also had to show the masses of White people that he was the exception to the negative stereotypes that many of them held about Black people.  His background as the first Black Editor-in-Chief of the Harvard Law Review, among many other accomplishments and his polished, “articulate” speaking style, quelled most doubts about his intelligence.  Also, in contrast to stigmatized images of Black single parenthood, Obama presented himself as family-oriented—an image buttressed by the strong presence of First Lady Michelle Obama, along with their daughters, Malia and Sasha.  Even if Obama had not preached respectability politics, he had to be “respectable” himself.

Obama also made White people feel comfortable by joking about racial stereotypes.  When asked if Bill Clinton was the “first Black President”—as Nobel laureate Toni Morrison had once stated—Obama quipped: “I would have to investigate more Bill’s dancing abilities … before I accurately judged whether he was in fact a ‘brother’[.]”  Additionally, Obama was forgiving when White politicians made racially insensitive remarks towards him.  He chose Joe Biden as his running mate, even after Biden had clumsily referred to him as “articulate” and “clean.”  Later, Obama forgave similar comments by Senate Majority Leader Harry Reid.  Through these actions, he made White Americans feel less discomfort about stereotypes they held or accidentally expressed.

Andrew Yang also had to navigate America’s racial landscape.  Like Obama, he made White audiences more comfortable by forgiving anti-Asian American comments, such as those made by Saturday Night Live comedian Shane Gillis.  Yang himself drew jokingly on stereotypes, even more than Obama did.  During one rally, he referred to his own campaign as “the nerdiest presidential campaign in history[,]” pledging to use PowerPoint during his State of the Union address.  He also joked that “I am Asian, so I know a lot of doctors”; and that “the opposite of Donald Trump is an Asian man who likes math.”  “MATH”, which stands for Make America Think Harder, was Yang’s campaign slogan: he wore a “MATH” pin as his signature, playing to the notion that Asian Americans excel at math, science, and academics generally.  Unlike Obama and other Black candidates, Yang could benefit from the “model minority” stereotype.  People did not question his intelligence—if anything, they assumed he was smart.

At the same time, Yang also wanted to defy racial stereotypes.  Although he poked fun at the notion of Asian Americans as “nerdy”, he was cool, poised, and humorous during his debate appearances.  Asian Americans are also stereotyped as passive, and some voters on the campaign trail thought that Yang was “too nice” to beat Trump.  But during his rallies, Yang would play Mark Morrison’s “Return of the Mack” as his walk-out song—evoking a stereotypic masculinity that is not typically associated with Asian American men.  In subtle ways, Yang tried to show that he was not only smart, but also had the personal characteristics to lead.

But Yang delved into respectability politics when he addressed the most visible stereotype of Asian Americans: the idea that we are perpetual foreigners rather than Americans [4].  Even for Asian Americans born in the U.S., many people assume that we cannot speak English well, are unfamiliar with American customs, and are more loyal to our ancestral countries than to the U.S.  Implicit bias research shows that Americans tend to perceive faces with epicanthic folds (or single eyelids) as being foreign rather than American [5].  Such eyelids are common among certain Asian American groups.   Just as dark skin has come to denote criminality, single eyelids have come to represent a menacing foreignness—marking Asian Americans as targets for COVID-19 related hate crimes.

The perpetual foreigner stereotype is also reinforced by the tendency to lump different groups of Asian Americans together [6].  Non-Asian Americans often cannot distinguish between Japanese Americans, Chinese Americans, Taiwanese Americans, and Korean Americans (all of whom are East Asian Americans), and sometimes also conflate these groups with Thai Americans, Vietnamese Americans, and Laotian Americans (all of whom are Southeast Asian Americans).  Because members of these groups commonly have single eyelids, perpetrators of COVID-19 hate crimes see them as the same. Conversely, Asian Indian Americans, Pakistani Americans, Bangladeshi Americans, and Sri Lankan Americans (all of whom are South Asian Americans) are less likely to have single eyelids and have not been victimized by COVID-19 hate crimes as frequently.  However, South Asian Americans, along with Arab and Middle Eastern Americans, have been stereotyped as terrorists and targeted for anti-Muslim hate crimes.  Superficial similarities in physical appearance or dress again form the basis for racist scapegoating.  

The idea that some groups are perpetual foreigners is deeply engrained in American society.  Single eyelids are among the most prominent racial markers of foreignness in America, but other physical features, such as darker skin and hair color, can also denote foreignness.  Additionally, people can be marked as foreigners based on name, dress, accent, and other cultural referents.  Besides Asian Americans, other groups such as Latina/o Americans and Arab Americans can be tagged as foreigners.  Barack Obama experienced this when “birthers” questioned whether he was American.  And in spite of his many efforts to make White people feel comfortable, many White people were still uncomfortable with Obama.  That is one reason why Donald Trump was elected.

All of this brings to mind what renowned Black scholar W.E.B. Du Bois called that “peculiar sensation” of “double-consciousness”: “two souls, two thoughts, two unreconciled strivings; two warring ideals … [.]”  People of color in America are often aware of racism and know that it cannot be overcome by individual will, displays of patriotism, or catering to White comfort.  These things can actually obscure the reality of racism.  At the same time, to be professionally successful in a White-dominated society, people of color often have to be “white-people pleasers.” 

This is even more so for politicians—and especially presidential candidates, who need large numbers of White voters to support them.  Just as Obama had to be non-threatening and counterstereotypic to be elected, Andrew Yang had to prove that he was patriotic and “American” to be a viable candidate.  And while Yang sometimes played up stereotypes such as the “model minority”, he simultaneously worked to counter stereotypes about Asian Americans’ passivity, social ineptness, and foreignness.  Yang thus employed a strategic “double-consciousness” where he both adopted and defied racial stereotypes.  Asian Americans ourselves had conflicting views on Yang’s navigation of racial stereotypes.

People of color often have to balance such “warring ideals.”  This can cause a lot of internal dissonance about what to say and how to act in certain situations.  Perhaps Yang was projecting part of that dilemma in his Washington Post op-ed.  But to address racism effectively, it is America, not Asian Americans, that needs to change.  And unfortunately, this nation still has a long way to go.  It will be a while before America is ready to accept a President who looks like Andrew Yang.

Notes

[1] In addition to “Asian American”, the terms “Asian Pacific American” (APA) and “Asian/Pacific Islander” (API) are also commonly used.  There is no firm consensus on which ethnic or national groups should come under the rubric of “Asian American.”  For an overview of those issues, see Vinay Harpalani, Why I am not “Asian” and Other Reflections on Asian American Identities, Race and the Law Prof Blog (July 19, 2017).

[2] Hiram Fong was the child of Chinese (Cantonese) immigrants, and Patsy Mink was a third generation Japanese American.

[3] Gabbard is one-half American Samoan (Pacific Islander) and one-half German.  Although some would include Pacific Islanders as Asian Americans, the U.S. government classifies them separately. 

[4] For more on the stereotype of Asian Americans as foreigners, see Neil Gotanda, Comparative Racialization: Racial Profiling and the Case of Wen Ho Lee, 47 UCLA L. REV. 1689 (2000).  Compared to stereotypes of Black Americans, many of the noted stereotypes of Asian Americans are subtle and under-acknowledged.  I often find that when I mention these stereotypes to non-Asian Americans, the response is something like “I never thought of that, but I see it now … [.]”  There are a plethora of reasons for this: 1. Asian Americans are not as visible in the media as Black Americans; 2. Asian Americans do not face the same level of racism or stereotyping that Black Americans do; 3. Asian Americans ourselves have not been as vocal in pointing out these stereotypes and their consequences; 4. Asian Americans are under-theorized and not discussed enough (or only discussed in limited ways) as part of the broader discourse on race and racism in America.

[5] There is no consensus on how to describe this eye shape. The term “almond-shape” is sometimes used but is also considered pejorative by some.  See generally Kat Chow, Why Do We Describe Asian Eyes as ‘Almond-Shaped’?, National Public Radio – CODE SW!TCH (Sept. 16, 2013).  In addition to eye shape, other facial features such as nose shape can also influence the perception of certain faces as foreign.  Nevertheless, because of derogatory terms such as “slanted eyes” and related imagery, eye shape has a larger symbolic linkage to foreignness.

[6]  Use of the term “Asian” to denote Asian Americans can reinforce the perception that we are foreigners.  In addition to lumping together 4.5 billion people under one label, the “American” part is especially important for groups who have long been considered un-American.  Nevertheless, while some Asian Americans feel this way, others have embraced “Asian” as shorthand for “Asian American.”

June 14, 2020 | Permalink | Comments (0)

Saturday, June 13, 2020

Antebellum Law is the Precedent for Today's White-on-Black Violence (by Professors Elizabeth Berenguer, Lucy Jewel, & Teri A. McMurtry-Chubb)

EB - picture

C.H. Reed, Woodcut illustrating escape from slavery, Schomburg Center, New York Public Library

Antebellum Law is the Precedent for Today’s White-on-Black Violence

2/23/2020   -       Ahmaud Arbery was hunted down and killed by three white men while he was out jogging in Brunswick, Georgia.

3/13/2020   -       Breonna Taylor was killed by police while sleeping in her own home when they executed a warrant for someone who did not live in her complex and who was already in police custody.

5/25/2020   -       George Floyd was killed while handcuffed and pinned to the ground by a police officer’s knee as he gasped for air and repeatedly told officers he could not breathe.

These stories repeat––white people killing Black people with extreme and unnecessary force. These stories repeat because, for centuries, our law has reinforced the myth that persons of color are inherently dangerous. Our law has encouraged, sometimes required, white men and women to take justice into their own hands while simultaneously vilifying innocent behavior by Black people and never allowing Black people to take justice into their own hands. Our nation’s white supremacist past shapes today’s legal system, implicitly condoning these killings.

In the antebellum South, the two white men who shot and killed Arbery would have been following the letter of the law, not committing a murder. As the regime of slavery became entrenched, laws emerged requiring free white people to band together and hunt down runaway servants and enslaved persons. For instance, as of 1765, Georgia required all able-bodied white men and women between 16 and 60 to participate in nightly patrols of plantations and towns. Although later amendments limited the Patrols to men between the ages of 16 and 45, the law endured until slavery was abolished by the Thirteenth Amendment.

In Glynn County, where Arbery lived, these patrols would have surveilled the 357 enslaved persons on the Hofwyl-Broadfield Plantation and the 637 enslaved persons on the Hopeton-Altama Plantation to root out any sign of insurrection and rebellion. Patrollers possessed full authority to search these plantation’s slave quarters, to confiscate illicit firearms and ammunition, and to ferret out any runaways. Enslaved persons found wandering off Brunswick’s rice plantations, into the marshes or among the trees where Arbery ran, were immediately apprehended. As a “correction,” the law permitted patrollers to physically torture any enslaved person found out of bounds with a whipping (“not more than twenty lashes”). Georgia’s patrol law remained in effect until the end of the civil war, but Arbery’s murder is its legacy.

As the Confederacy’s power waned, shortly before the end of the Civil War, Georgia enacted a statute permitting private person arrests, more commonly known as a “citizen’s arrest.” This statute permitted the Slave Patrols to continue under the auspices of a “neutral” label, and most states have a citizen’s arrest statute on the books to this day. The current Georgia Citizens Arrest statute permits any private citizen to arrest another under the belief that the other has committed an offense or is escaping or attempting to escape after committing a felony. This language is virtually identical to that adopted in 1863, a time when Black people were still considered property in the South and even freed Blacks were subject to being re-sold into slavery if they returned to the state. Consider how at that time, there were numerous laws controlling the movement and activities of Black people. White people were vested with the power and responsibility to arrest any Black persons who were violating these laws, but Black persons did not enjoy the same freedom or responsibility to police the behavior of white people. The racial implications of this law endure today to justify the belief that whites, fueled by racial bias, should overpower and subdue Black “offenders” to reinforce superiority and supremacy.  

The murders of Arbery, Taylor, Floyd, and countless others are the legacy of a past that has endorsed white superiority at the expense of Black lives. Furthermore, it seems like there is little that Black people can “appropriately” do to protest the unjustified killings occurring across the nation. After violent crime, there is a powerful human impulse for retribution.  Persons of color are denied this salve. In viewing the history of violence against Black people, enslavement, bloody corporal punishment, lynching, Jim Crow terrorism, and mass incarceration, the law has never punished white offenders appropriately, as individuals or collectively. 

Protest offers some solace for mourning and resistance, but, as the protests have borne out, brutal force is routinely used against protesters speaking out on issues affecting people of color. In contrast, when people protest issues affecting white people, we are told “there are very fine people on both sides.” When gun-toting protestors recently demanded an end to pandemic lockdowns, they were met by Officer Friendly.  Just as the antebellum Slave Patrols deployed violence to control the enslaved persons who were property, reactionary violence was encouraged against protestors standing up for justice for people of color. Despite that fact that human enslavement was formally abolished more than 150 years ago, the law (yes, law enforcement is the law) still uses painful, injurious violence to maintain social and racial control while tacitly condoning the actions of far-right denizens who openly carry loaded automatic firearms,  which signal a frightening willingness to engage in self-help to achieve “liberty,” or worse, “white justice.” 

In the days following Arbery’s murder, the media portrayed him as a suspicious other, someone out of place, and passively described the incident as a shooting, not a murder—as if it were accidental or warranted. The media’s framing of the story mirrors the colonial and antebellum narratives that freely moving persons of color must be apprehended and “corrected,” even if correction results in death. We have been trained, and the media reinforces, that white people, especially white men, can behave as violently and aggressively as they want while Black people must calmly submit and respectfully obey.

The dangers of doing anything “while Black” have not diminished since 1765––jogging, sitting at home, bird-watching, protesting. For Black people in this country, the audacity to be free has always been a mark of suspicion worthy of death. While the South’s violent slave codes may have been repealed long ago, their white supremacist legacy remains deeply embedded in policing practices, both formal and informal, throughout the nation.

-- Elizabeth Berenguer is an associate law professor at Stetson University College of Law. Lucy Jewel is a law professor at the University of Tennessee College of Law. Teri A. McMurtry-Chubb is a law professor at the University of Illinois Chicago, John Marshall Law School. All three authors are admitted to the State Bar of Georgia.

June 13, 2020 | Permalink | Comments (0)

Friday, June 12, 2020

Roma Rights and Civil rights: A Transatlantic Comparison (Prof. Felix Chang)

Roma Rights and Civil Rights

European scholars are increasingly confronting questions of race—a notable turn for a community that, in the shadow of Nazism and eugenics, had avoided race for decades. One catalyst for this discourse is the literature about Europe’s largest racialized minority, the Roma, which itself has taken a critical turn in the last ten years. Ushering in this change, scholars in the emerging field of critical Romani studies have abandoned the ethnographic roots of Gypsiology, often looking instead to U.S. scholarship on critical race theory and intersectionality.

Our new book, Roma Rights and Civil Rights: A Transatlantic Comparison, out this month from Cambridge University Press, sits at the intersection of these trends. My co-author Sunnie Rucker-Chang and I compare the movements for—and expressions of—equality for Roma in Central and Southeast Europe (“CSEE”) and African Americans from the perspectives of law and cultural studies. We see our central contribution as tying Roma rights and U.S. civil rights in a sustained manner despite temporal and spatial differences.

As the first book-length work on this comparison, Roma Rights and Civil Rights integrates three frameworks: federalism, interest convergence, and nationalist constructs of Americanism and Europeanism.

Federalism allows us to tackle how the U.S. federal government and the European Union (“EU”) both drove and tempered minority rights. The framework highlights the coincidence of Roma rights with the territorial expansion of the EU into CSEE after the fall of Communism, as well as the EU’s centralization of power during its process of constitutionalization at the same time. Yet the comparison is mutually illuminating because it underscores how constitutional change in the U.S., too, was influenced by territorial change. This comes out most clearly in the Fifteenth Amendment, passed in part because the suffrage imposed upon the readmission of ex-Confederate states was broader than what the Union had provided.

Interest convergence upends the conventional telling of the EU’s role in Roma rights. As we show, the EU only pushed for Roma inclusion to stem the influx of Romani refugees into Western Europe as a result of xenophobic violence in CSEE. It was therefore a momentary convergence of interests among Roma rights advocates and EU technocrats that propelled Roma inclusion onto the Union’s agenda, just as it was a convergence of interests among African Americans and White elites during the Cold War that nudged the U.S. federal government to accept civil rights.

Finally, the constructs of national identity help us explore the popular reception toward legal and policy changes—whether, for instance, inclusion was embraced because it aligned with notions of liberty and equality or rejected because it offended nativist and exclusionary views of America and Europe. To this end, we utilize opinion polls and filmic representations of Roma and African Americans to gauge their mainstream reception.

The Introduction to the book is available here. Our prior work laid the foundations for the comparison, the use of film, and the treatment of these two groups in the American South and European East.

-- Professor Felix B. Chang

June 12, 2020 | Permalink | Comments (0)

Thursday, June 11, 2020

President Trump's Misunderstanding of Federalism (by Prof. Ediberto Roman)

Trump has repeatedly demonstrated his lay view of the power of the presidency as well as our democratic structure of checks and balances. He has repeatedly expressed a view of his “total” power in the context of addressing the Covid-19 pandemic, enforcing certain immigration policies, and dealing with the protests in several states.

No ‘Absolute’ Power

In fact, just recently, he pronounced that his authority over the Covid-19 emergency was “absolute.”

Upon claiming his absolute power to reopen states while the shelter in place orders were still in place, the clamor from legal experts was deafening. He quickly backtracked from his pronouncement, promising to work with governors on the issue. What Trump fails to fully grasp, or chooses to reject, is that our governmental system consists of a structure of shared powers and duties.

In the context of federal versus states’ rights, the principle of federalism governs. Simply stated, federalism is the Constitution’s means of distributing decision-making authority, granting the national government the power to conduct certain acts, and reserving the rest of governmental decisions to the states.

In other words, the federal government, including the president, only has the authority expressly given to it by the constitution: its enumerated powers. These powers are those necessary to establish, unify, and defend the country. These powers include those pertaining to national defense, international trade, foreign policy, immigration, international trade, patents, and interstate commerce.

The states are empowered to address broad issues pertaining to their citizens, which includes their health and well-being, often referred to as the states’ police powers.

Thus, despite Trump’s wishes to merely proclaim the power to order the states to act in a host of settings, he often does not have the power to make them do so. In the context of the shelter-in-place orders, for instance, this was an issue of the health of the citizenry of several states. He does not have the power to merely order the states to open.

In another context, the recent Floyd murder protests, a federal law, the Posse Comitatus Act, outlaws the use of U.S. military to execute the law domestically unless expressly authorized by the Constitution or an act of Congress.

The 1807 Insurrection Act provides limited circumstances when the president can order the military to certain states. Unlike what Trump suggested in his recent proclamation, the Insurrection Act has never been used, and likely cannot be used, to allow a president the sweeping power to order the military throughout the U.S.

Immigration Powers

In other settings, Trump’s position of federalism and absolute power has similarly faced push back. The federal government, for instance, typically has power to regulate immigration as part of the president’s power associated with national security.

In the context of sanctuary cities, generally viewed as cities and communities that are safe havens for undocumented immigrants, the Trump administration, in its effort to vigorously enforce its promise to deport undocumented immigrants, denied grant monies to localities that deemed themselves sanctuary cities.

On April 30, the Seventh Circuit Court of Appeals held the Trump administration could not condition federal law enforcement funds on conduct that contradicts municipalities’ policing ordinances. The court specifically based its decision on federalism grounds, stating “the issues before us today concern the spheres of power that reside in the state rather than in the federal government.”

While we likely have not heard the last on this issue, even if the president succeeds in the suit, the sanctuary cities may not succumb to the financial threat, thereby frustrating the federal plans for local assistance with deportation efforts.

In terms of his perception of power, Trump is not all that different from several presidents of the 20th century. FDR wanted to change the size of the U.S. Supreme Court when he disagreed with them; President Richard Nixon did not believe the Supreme Court could question his determinations; and President Bill Clinton fought against exposure to liability while in office.

What is different with Trump is his persistent, and sadly, misguided belief his power is always unchecked. This behaviorism, as demonstrated above, often leads to pronouncements, rebuke, and then, either compromise or suit.

The two latter reactions—compromise or initiating legal action—are likely the product of a first-term president interested in a second term. This is both the danger and the rub.

In a second term presidency, we will witness a more determined Trump without need for compromise. In the end, Trump will not change, and if not ultimately checked, we will witness attempts at a monarchial reign with less consultation, deliberation, or cooperation with states and other branches of government.

Our notions of federalism and system of checks and balances will be in jeopardy virtually every day.

For those weary and worried over such prospects, the only option may be action on Nov. 3.

 

This piece appeared on 6/9/20 on Bloomberg Law. Read it here.

Ediberto Román is a law professor and nationally acclaimed constitutional law, immigration, and critical theory scholar at Florida International University. He edits NYU Press Series, “Citizenship and Migration in the Americas.”

 

June 11, 2020 | Permalink | Comments (0)

Wednesday, June 10, 2020

New Article: Sentencing Disparities and the Dangerous Perpetuation of Racial Bias (by Prof. Jelani Jefferson Exum)

Professor Jelani Jefferson Exum has posted a new article entitled Sentencing Disparities and the Dangerous Perpetuation of Racial Bias, published in the WASHINGTON AND LEE JOURNAL OF CIVIL RIGHTS AND SOCIAL JUSTICE.  Below are the abstract and citation.  The article is available at: https://scholarlycommons.law.wlu.edu/crsj/vol26/iss2/5/

Abstract

This Article addresses the role that racial disparities—specifically sentencing disparities—play in perpetuating the racial bias that increases the daily danger of living as a Black American in the United States. As documented in the news and by sometimes humorous internet memes, White people have called the police many times to report Black people who were simply living as any other American. This trend highlights the manner in which the U.S. criminal justice system’s racial inequities feed into biased beliefs about Black criminality. This Article argues that instead of tackling implicit bias as a means to fight sentencing and other criminal justice bias, we must actively correct and eliminate the disparities head-on.

June 10, 2020 | Permalink | Comments (0)

Monday, June 8, 2020

Confronting Structural Violence: Law Teaching Guides

Cardozo Law Institute in Holocaust and Human Rights (CLIHHR) launched Confronting Structural Violence: Law Teaching Guides to provide open-access teaching resources for professors.

Law faculty in a range of disciplines can download and immediately use any of the 10 open-access Law Teaching Guides, which are grounded in cases many professors already teach and cover topics that are currently making headlines. The Law Teaching Guides, which cover constitutional law, international law, criminal law, corporations, and IP, are a flexible resource professors can easily adapt for introductory survey courses or upper-level seminars. 

To download the Guides and for more information about the project, visit: go.yu.edu/cardozo/lawteachingguides

To read more about the project’s goals from Jocelyn Getgen Kestenbaum, CLIHHR’s Faculty Director and Associate Professor of Clinical Law at Cardozo, find a Q&A with Professor Kestenbaum here.

June 8, 2020 | Permalink | Comments (0)

Sunday, June 7, 2020

The Law and Order President and His Federal, Political Power Grab (by Prof. Ediberto Roman)

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In an unprecedented edict during the civil strife aimed to end the epidemic of police brutality, President Trump on Monday evening declared himself the law and order president,” and promised to unleash the United States military against U.S. citizens in order to stop “professional anarchists, violent mobs, arsonists, looters, criminals, rioters, Antifa, and others.”

At first blush, an effort by the president to end civil unrest seems reasonable, especially in a time of strife. One problem: President Trump does not have the sweeping power he suggests. While he could deploy the national guard in the District of Columbia, because it is not a state, without special authorization, he does not have absolute power to do so across the country. Specifically, the Posse Comitatus Act outlaws the use of U.S. Military to execute the law domestically unless expressly authorized by the Constitution or an act of Congress. The 1807 Insurrection Actprovides one such congressional permission. However, the Insurrection Act does not give, or ever has been used to give a president complete discretion with sweeping power over the entire nation. When used, it has been for geographically isolated occurrences. Specifically, it was used in the 1957 effort to halt obstructions to enrollment and attendance at public schools in the Little Rock, Arkansas School District; and in 1962 and 1963 federal troops were sent to Mississippi and Alabama to enforce constitutionally protected civil rights threatened by reactions to desegregation.

There are three narrowly tailored bases for empowering the president under the Insurrection Act. First is Section 331 which allows the president to act upon the request of its legislature or of its governor.” In this instance, no state has thus far made such a request. Second, Section 332 allows the president to suppress a rebellion where unlawful obstructions, combinations or assemblages, or rebellion against the authority of the United States make it impracticable to enforce the laws of the United States. There is no indication that the protests here are making it impractical to enforce any law of the United States. It is thus likely, and a stretch for President Trump’s authority to derive from Section 332.

The final basis for Trump’s power grab would derive from Section 333, which is admittedly the broadest provision of the Act, allowing a president to thwart,

any insurrection, domestic violence, unlawful combination, or conspiracy, if it- (1) so hinders the execution of the laws of that State, and of the United States within the State, that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law, and the constituted authorities of that State are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection; or (2) opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.

While Section 333 is indeed broad, it is aimed to stop a debilitating insurrection that prevents a state from functioning. The recent protests in several states have caused property damage and there has been a handful of human causalities, the protests have not hindered the execution of any laws within any state. It is one thing to second-guess a state official’s handling of the protests, it is entirely another thing to suggest any state has been stopped from executing its laws. It is simply a terribly dangerous precedent to use Section 333’s “any unlawful combination or conspiracy” language to allow a president at his or her whim to interfere with states’ rights and upend every notion of state authority, i.e., federalism.

President Trump may want to be the arbiter of when rights are violated (the irony is not lost here). However, to allow a tortured reading of a 200-year-old statute to allow such unfettered sweeping power to supersede state authority, would allow a president to resemble a monarch or dictatorand not a leader of a system with checks and balances.  

This was originally published at the The Faculty Lounge on June 7, 2020. Read it here.

Ediberto Roman is a Professor of Law at Florida International University School of Law.

June 7, 2020 | Permalink | Comments (0)

Friday, June 5, 2020

Statement on Extrajudicial Killing of George Floyd (Dean Karen Bravo)

 

Last week, when I saw the video of George Floyd’s extrajudicial killing by law enforcement, a familiar sense of anguish, fury, hopelessness, and malaise swept over me.  So did a sense of helplessness.  We had seen this video before, over the long and many years.  We had read this story.  And yet, I had never before witnessed such a starkly calm extinguishment of a human life – a Black human life.  In the depths of my nightmares and unease, I thought: “Here we go again.  This is a familiar atrocity.  It, too, will be swept away in the usual rhetoric of demands for justice, responses about individual bad actors, and commitment to justice.”

George Floyd Pictures

[Photo by Nour Chamoun]

But the response would not be “normal.”  The young people of Minneapolis, the young people of the country would not have it so – they refused a return to “normal.”  Protests swept across cities of the United States.  Those protests reached us here in Indianapolis, a city that had witnessed, only too recently, the extrajudicial killings of two black men by law enforcement.  One, the killing of Dreasjon Reed, was live streamed on Facebook.  The vast majority of the protestors here and nationwide peacefully demand justice – for George Floyd, for the too-long list of Black persons killed by law enforcement, and for all who face the structural racism that permeates all aspects of life in the United States.

On Saturday afternoon, led by my teenage daughter and her best friend, with members of my family, I joined thousands of demonstrators in a peaceful march from the War Memorial to Monument Circle.  I knew that we must follow the example of our foremothers and forefathers who marched in Selma, who marched in Birmingham, and who marched with Dr. Martin Luther King Jr. to Washington, D.C.,  to nonviolently demand a more just society.

And I knew that this was not enough – could not be enough.  My role as incoming dean of the Indiana University Robert H. McKinney School of Law lends me a public profile and an audience that I have not had before.  Surely it was a position that I had a duty to use – to speak to members of the law school and legal community, to reaffirm our values of justice, equality, anti-racism, and inclusion, to offer comfort and a path forward together in the midst of great pain. 

But, that role is complicated, is it not, by my status as the first Black dean of the law school?  On this subject, my identity carries a symbolism fraught with more duty, more potential power, and more peril – both for me and for my institution.  A peril that cautions me to keep a low profile, to stay out of the fray, to issue, at most, a few anodyne words that invoke justice and peace. 

Because I am well aware that the words of a Black person on matters of race evoke complicated reactions, ranging from ‘of course you’re going to talk about race’ to ‘why must it always be about race with you people.’  I am also deeply cognizant that the role and stature of the institution that I have committed to serve are intertwined with and dependent upon relationships across our state’s and city’s legal, business, and political institutions.  Would speaking imperil future initiatives and accomplishments – both personal and institutional?

Michelle Obama has advised us:  “Don’t waste your seat at the table.  If you aren’t comfortable, get up and let someone else assume leadership.”  After too much reflection, and with those words in mind, I have decided that I must use this seat at the table—that my failure to speak up would let down the law school and legal community.

The events of the past week – the killing of George Floyd and the ongoing protests that followed it – do not come out of the blue.  They are part of a long line of extrajudicial killings and a long line of conflagrations, and a long line of peaceful protests that have evoked violent responses or have devolved into violence.  And have not resulted in structural change.

It is not difficult for me to understand that despair can lead to nihilism and violence.  Some have seized upon the peaceful protests for those ends, and some protests appear to have provided the opportunity for individuals or groups whose sole purpose is to commit violence, not to demand justice.  This has resulted in extensive and heartbreaking property damage in cities across the United States, and in Indianapolis. I condemn that violence, and sympathize with all who were harmed–-including members of our own law school community, and the residents and business owners who are our school’s downtown neighbors--when those who were bent on destruction infiltrated the peaceful protests.

What can and should we as a law school community do?  What is our duty, our privilege, in responding to this moment?  I welcome and endorse the statements from Indiana University President Michael A. McRobbie, IUPUI Chancellor Nasser Paydar, and James Wimbush, Indiana University’s Vice President for Diversity, Equity, and Multicultural Affairs.

And I add the voice of the law school:  We must affirm our values and commitments – to the role and power of law to create and maintain justice, to the rejection of racism and discrimination, to our welcome of all voices and points of view.  We must recognize the anguish and pain of all members of our community – and especially of those who are members of groups that have suffered and continue to suffer racist violence and the effects of structural inequality.  We must celebrate the bravery and commitment of members of our law school community who have contributed their voices to the cry for justice – last week, yesterday, the months and years before that, and who will continue to do so into the future.

The educational mission of the law school – preparing our students for their roles as legal professionals – demands that we commit to equipping them to create a future of justice, anti-racism, inclusion, and opportunity for all members of our society.  As members of this community, as educators, as budding young professionals, and as new lawyers and well-established alums we will continue to work toward these goals – in our classrooms and in our co-curricular endeavors, such as our pro bono programs and community service programs

To those who ask, “What can do?” I say:  Start by making a commitment to positive change through your actions.

Inside the law school:  Learn about the law, its role and its power.  Prepare to become the best legal professional and leader you can be.  Lead and participate in meaningful and difficult discussions inside and outside the classroom.  Practice ethical and high impact leadership through creating, joining and leading student organizations. 

Outside the law school: Participate in bar and professional organizations, join community groups, provide pro bono service, use your legal and leadership skills to contribute positively to our future. 

But let me humbly acknowledge – I do not have the answer because there is no “the answer.”  Yet, we have answers.  It is a truism and a cliché, but we are in this together.  Together, we have answers that can lead to the dismantling of the structures of inequality that we inhabit.  We can create the more positive future that our children are demanding.  We must commit to do so - together.  We owe that to our children, to our ancestors, and to ourselves. 

Vice Dean Karen E. Bravo will become IU McKinney’s 13th dean on July 1. She is the first person of color and the second woman to lead the law school in its 125-year history. This piece was published on the Indiana Lawyer website.

https://mckinneylaw.iu.edu/news/releases/2020/06/statement-from-dean-designate-karen-e-bravo.html

 

June 5, 2020 | Permalink | Comments (0)

Wednesday, June 3, 2020

The Fire This Time (Dean Angela Onwuachi-Willig)

 

In The Fire Next Time, acclaimed author James Baldwin shared a long letter he wrote to his nephew and godson, also named James. Baldwin began the letter by explaining how racism had slowly destroyed the essence of the boy’s father, also Baldwin’s younger brother. In relaying this story, Baldwin recalled a moment when his little brother fell down the stairs as a child and their mother “easily wiped away” his brother’s tears.

Baldwin continued, “But no one’s hand can wipe away those tears he sheds invisibly today, which one hears in his laughter and in his speech and in his songs. I know what the world has done to my brother and how narrowly he has survived it.

No words are more apt for describing how I have been feeling lately.

The Fire Next Time (Twentieth Century Classics): Baldwin, James ...

For the past week, I have woken up each morning with an indescribable pit in my stomach and a paralysis in my head and my body. I have had to force myself to fight against this paralysis each day just to get up and face the loads of work that must be completed. This pit in my stomach has been festering for decades, finding itself repeatedly punctuated and re-ignited by a cycle of direct state violence as well as state-condoned, through inaction, violence against black people. 

The beating of Rodney King, followed by the acquittal of the officers who beat him and King’s slow public death. The killing of Trayvon Martin, followed by the acquittal of his killer. The hunting down and shooting of jogger Ahmaud Arbery in broad daylight, with near escape of any kind of indictment for his killers. The slaying of Breonna Taylor in her own apartment in a drug raid of the wrong home. The shooting of Tony McDade, a black trans man, by a police officer in Tallahassee, Florida. The implicit threat of racialized police violence by Amy Cooper against Christian Cooper, an African American bird-watcher, who simply asked her to follow park rules and leash her dogThe murder of George Floyd, whose life was crushed out of him by a police officer with his hands in his pocket and a smug smirk on his face. As so many African Americans have said, I have not been okay.

I am the mother of two black sons and one black daughter. I fear for their lives whenever they step outside. As the mother of black children, I both envy and resent the freedom with which mothers of white children parent. They never have to balance that delicate line between teaching their children how to ensure their survival after a police stop and crushing their spirit while doing so, because the very lesson derives from another: that black lives are not valued in our society.

Like so many black people in this country, I see my family and myself in George Floyd, Ahmaud Arbery, and Breonna Taylor, because I know, just like they do, that our loved ones—and even I—could be next. And, these feelings are exploding in what is already a difficult time. Among my personal networks and friends of color, not one moment goes by without someone declaring their outrage at anti-Asian attacks related to COVID-19; screaming about their sadness at the brutally disproportionate impact of COVID-19 on black and brown people, particularly those working on the front lines in low-paying service jobs without the same acknowledgment and praise given to doctors and nurses; and expressing their hurt, pain, and outright exhaustion from the constant barrage of racial injustice surrounding them.

As a black woman and dean of a law school—the first dean of color at Boston University School of Law—I struggled with what message I should send to my students. I even wondered if I could send a message about the deaths of Breonna Taylor, Ahmaud Arbery, George Floyd, and Tony McDade, imagining the backlash when certain words come out of my black mouth. I listened to friends and spoke with other black women deans who felt equally silenced—all of us still cautioning each other against speaking out through a public message. All of us knew we could, and would, act more freely were we not black. Perhaps surprising to some of you, racism regularly disempowers the seemingly powerful dean. And yet, if we feel powerless, imagine what it feels like for those not so economically or professionally privileged.

Then, as if we were silently speaking to each other’s souls, one by one, my decanal colleagues of color also reached out, and we, despite our initial instinct to avoid such messages, found ourselves simultaneously crafting individual messages to our communities. Some, like me, have struggled to publicly share their pain and to find the right words; others have more readily poured out the words that had been backstopped for days.

For me, once I thought specifically about what my law school self would have wanted—actually needed—to hear in this time, I knew not only that I had to write, but also what I must write. I have no inspiring words to share about creating change in our society. You already know that law can be an effective tool for fighting certain kinds of injustice. You already know that every member of the legal profession has a duty to strive for justice. Frankly, my message comes back to James Baldwin and The Fire Next Time, one of my all-time favorite books. I hope you will find time to read or re-read it.

After telling his nephew that the boy’s father, Baldwin’s brother, “was defeated long before he died because, at the bottom of his heart, he really believed what white people said about him,” Baldwin shared two sentences that I will share with you (with one omission). It is a special message, drafted at the time for African Americans, those then most likely to see themselves and their family members in the George Floyds of the world, but as I have edited it below, the message applies to all of you. Please carefully reflect on how it may relate to you. The message goes…

You can only be destroyed by believing that you really are what the white world calls [you]. I tell you this because I love you, and please don’t ever forget that.

 

By Dean Angela Onwuachi-Willig, Boston University School of Law

-- This commentary was originally published in "LAW Reviews" at http://www.bu.edu/law/2020/06/01/dean-angela-onwuachi-willig-commentary-the-fire-this-time/

 

June 3, 2020 | Permalink | Comments (0)

Tuesday, June 2, 2020

A Vision of Systemic Change through Public Universities (featuring Nancy Cantor)

 

As educators, we cannot help but ask ourselves whether our teaching, mentoring, and guidance of students through the years has positively impacted our society.  Is our society less racist, less classist, less sexist, less homophobic, less Islamophobic, less anti-Semitic than when we were growing up?  To be a teacher, is to believe in the next generation to do the social justice work our generation left incomplete or undone. 

Below is a moving message from Nancy Cantor, Chancellor of Rutgers University-Newark, whose vision of public universities as anchor institutions inspires many of us to keep teaching, keep listening, keep writing and keep believing that our lifelong commitment to teaching and learning from our students is worthwhile and meaningful.

________

Dear Rutgers-Newark Community:

Over the last few days it has been admittedly hard to collect my thoughts and find a voice, in the face of the unspeakable death of George Floyd, and Ahmaud Arbery and Breonna Taylor, all too similar to the fates and voices and circumstances of Eric Gardner, Michael Brown, Laquan McDonald—we can list so many—even the cries for help decades ago still fresh in my mind from Rodney King. What do we say when it all repeats itself, over and over again? What do we say when it happens right in the midst of a landscape of heartbreak over a pandemic that too has had a disparate laser focus on precisely the same communities—families and whole communities that for centuries have broken their backs to hold up an economy that gives them back so little of its riches or its power or its freedoms?

What do we say? We’ll each say something slightly different depending on our life stories and positionality. I’ll speak as a white woman, a mother who knows that her son is so less likely to feel that hand on his neck. I’ll speak as a social psychologist who knows the decades of research that says the obvious that must be said—racism is so deep and yet so quickly emergent in the psyche and the souls of white America. I’ll speak as one who has seen the architecture of segregation harden around the very neighborhoods in which I grew up in New York City, and now as a deeply proud but so shaken resident of my adopted city of Newark, where we can always point to remarkable resilience in the face of relentless structural racism and its generational sequelae, and then where we keep thinking on it, pushing at it, as we must—for we are the ones who have to make it change—really change—and the “we” has got to come at it from all those positions, with all those life stories—and, as I know those in the know will say, “Don’t just speak, listen—listen to us, listen when we say we can’t breathe.”

So, Rutgers-Newark, this is a moment, however inept our speaking may be, when what I can say most of all is let’s listen—listen hard—for some of us from a position of privilege that requires massive humility, accompanied by commitment to keep working on it, to keep cultivating the talent, right here at home, right here in our communities, that will do what we all thought we were doing before: thinking, collaborating, writing, drawing, and singing, pushing for change, shouting for justice, holding hands, and walking forward—yes, many steps that turn out as often to go backwards as they do inch forward.  And, please, in this ever so scary time, let’s not be afraid to reach for help (and we have the most dedicated souls in our Counseling Center ready to listen—yes, to really listen—so let’s call them) because giving and getting collective help is at the core of the resilience that is Newark and Rutgers-Newark. 

I want to say it will change—because it has to change—and I want to say that I truly believe that our Rutgers-Newark collective makes change happen—working, as scholars, staff and students, collaborators in community, interns for justice, families in Newark, to grow a new system of equity.  I listen when some of you who will bear the real brunt of this work say how hard and sad and frustrating it feels to be the next generation who has to inherit this map of deep and wide inequity, has to see the brutal tragedies unfold on video, as yet others also disproportionately hit by another travesty lose their breath too, alone, on ventilators trying to keep them breathing, even as video cameras outside record the forces that take breath away. 

Yet we need you, our dear next generation to continue teaming with the many scholars, staff, students, and community partners here to push forward, as many in the ranks of Rutgers-Newark have been doing, inch by inch despite the persistent pull backward of the legacy of pernicious racism and structural inequity. No one is ready to stop walking, crawling, running, on the road to justice.  Let’s cherish our breath, and keep on going, together.

Together,

Nancy Cantor

Chancellor, Rutgers University-Newark

June 2, 2020 | Permalink | Comments (0)

Monday, June 1, 2020

After Minneapolis (Prof. Taunya Banks)

 

In a 1962 essay for The New Yorker Magazine the renowned African American author and public intellectual James Baldwin wrote a widely cited quote: “Whatever white people do not know about Negroes (the acceptable term at the time) reveals, precisely and inexorably, what they do not know about themselves.”[1] 

Almost fifty years later his words still ring true.  The rebellions in urban areas throughout the United States following the murder of George Floyd, an unarmed and handcuffed man, at the hands of four police officers are not surprising to African Americans like me who came of age during the Watts Riots of August 1965 and the Detroit riot of July 1967 and who lived through the riots following the assassination of Martin Luther King in April 1968 not to mention the 1992 Los Angeles riots following the acquittal of the police officers whose beating of Rodney King was captured by a neighbor’s video camera.  More recently I lived through the rebellion in Baltimore following the death of Freddie Gray at the hands of police – white and black in 2015.

 

Floyd protests: Minneapolis police arrest CNN crew live on air ...

 [Photo by Eric Miller/Reuters]

There were other rebellions. More importantly there are countless other unarmed black men and some women who died at the hands of police officers, or like Ahmaud Arbery in Georgia, with the tacit approval or urging of the police.  Also not remembered is the response to these rebellions - usually regressive criminal “justice” legislation like the 1994 Crime Bill enacted by Congress following the 1992 rebellion.  These measures triggered, and helped fund, the militarization of urban police forces.

Friday night MSNBC news commentator Brian Williams watching the disturbance in Minneapolis kept bemoaning the loss of property wondering why no police were protecting property from fire and destruction.  In contrast, I kept wondering about why American society continues to ignore the daily pain of the people in the streets – some poor, many non-white and disproportionately impacted by the coronavirus yet compelled by economics and the absence of any social safety net to work in “necessary” occupations other than health care provider, firefighter or police officer.  They are the invisible workers in meat and poultry packing plants, transit and sanitation workers, store clerks and stockers who often work for less than livable wages, have little or no healthcare, and yet who manage to survive.

The nation-wide rebellions are about more than the death of yet another unarmed black man at the hands of the police.  Poor and nonwhite people understand that the role of the police in their neighborhoods is as overseers for the wealthy propertied class.  Their job is to control the underserved and disdained segment of America’s population – protect white space.  The police are the warriors for the wealthy and powerful.  They are trained to protect the people and property in white wealthy neighborhoods and commercial districts. 

I am tired of television pundits nationwide looking on in wonderment.  The answers of non-white “race experts” ignored because the systemic changes required to eliminate racial disparities are not limited to the criminal justice system but include other major institutions, public and private of our society. Public intellectual Jelani Cobb recently remarked that we have known the answers to the why question since at least the aftermath of the 1935 Harlem  riots.  There are many reports linking these riots to over-policing, persist inequality in all aspects of life triggered by racial discrimination and bias.  Our response is always more police.

American society also needs to tackle the rampant anti-black bias deeply embedded in the minds of white Americans.  But aggressive efforts to change racial attitudes would result in loss of white privilege.  White privilege is a key goal of the ideology of white supremacy. White privilege is a part of the willful blindness of the white America Baldwin writes about.  It is glaringly represented by Amy Cooper’s actions in Central Park less than a day apart from George Floyd’s death.  In response to a polite request from an African American birdwatcher to put her dog on a leash, as required by park regulations in that area, Cooper got angry and threatened to report the man to the police if he did not stop filming her.  He continued to document the encounter capturing the woman in hysteria mode several yards away phoning the police and claiming that an African American man was threatening to assault her. 

Amy Cooper, an affluent New York investment banker, a financial contributor and supporter of President Obama, falsely accused the man, also ironically named Cooper, with full knowledge of how police officers treat black men accused of assaulting white women.  Despite Cooper’s subsequent apology, her automatic response belied her explicit or implicit racial bias.  Yes, Virginia, so-called New York liberals can be racists and act violently towards black people.  It’s not just the police. 

We must accept that anti-black animus is built into the foundation of this nation.  It is included in the mortar of slavery on which the current economy was built. 

The poet Audre Lorde famously wrote: “the master’s tools will never dismantle the master’s house.”  The question for those of us in the legal academy who often are the architects and welders of these tools, is whether there is another way. If so we must find it.

--Professor Taunya Lovell Banks, University of Maryland Carey School of Law

 

[1] Letter from a Region of My Mind, The New Yorker (Nov. 17, 2009).

 

June 1, 2020 | Permalink | Comments (0)