Race and the Law Prof Blog

ARTICLE: "American Muslim Woman: Who We Are and What We Demand From Feminist Jurisprudence" by Mehwish Shaukat

Attorney Mehwish Shaukat of O'Melveny & Myers LLP authored American Muslim Women: Who We Are and What We Demand From Feminist Jurisprudence, 31 Hastings Women's L.J. 155 (2020). She writes in this piece on the need for a shift in the way feminist jurisprudence views American Muslim women.

It is time for feminist jurisprudence to recognize American Muslim women (AMW) as a distinct and agentic group. For too long, feminist discourse has victimized and objectified Muslim women. Our identities are constructed, deconstructed, and weaponized to suit third party needs; yet, our voices are rarely heard. When feminist legal theories singularly refer to Muslim women in relation to oppression, it harms Muslim women as a group and it attacks the very ethos of the discipline itself. Legal academia trains students to actively interrogate assumptions, but, it curiously treats the oppressed Muslim woman as an irrefutable reality. There is a dearth of first-person legal scholarship on AMW, and this article takes one step towards filling this precarious void. I invite the leading scholars of feminist jurisprudence to closely examine their own scholarship, and to discard orientalist constructions of AMW in exchange for first-person narratives.

As a visibly Muslim woman, like Ms. Shaukat, I have also been struck by what feels like the hidden arrows in feminist jurisprudence. This article is the first law review article I encountered that speaks to me versus about me. I often feel like I'm in a petri dish as a law professor in the majority white legal academy. In the midst the pandemic and the BLM protests, the academy appears to me to be the petri dish/bubble - completely out of touch with realities of larger subset of the global population of Muslim woman. As an American Muslim woman I can look at this petri dish of the legal academy and not wonder why racist laws and systems are in place, ranging from the over-criminalization of black and brown people to massive corporate bailouts that benefit white elites. The system works exactly as it has been designed to work.

2020 became the year of the niqabi. As Muslim women's facial and head coverings were the subject of the policing of women's bodies and appearance, the irony of how everyone is covering their faces now is not lost. Feminist jurisprudence has serious blind spots in its understanding and regard for Muslim women.    

Ms. Shaukat adds:

Feminist jurisprudence speaks about American Muslim women (“AMW”), but it does not speak to AMW. Sidelined since slavery, AMW are paradoxically visible and invisible. In 2020, we expect to be recognized as a distinct and agentic group with an equal stake in American liberties. There is a gaping hole in feminist jurisprudence—AMW’s inclusion. And this article takes one step toward filling this void with a first-person account. This article will define AMW’s group identity, analyze AMW’s intersectional marginalization, and highlight AMW’s exclusion from feminist jurisprudence and the resulting harms.

 

When feminist jurisprudence excludes AMW, it inflicts harm on two parties: AMW and feminist jurisprudence itself. These harms should be of special concern to legal academia at large, scholars of feminist jurisprudence, and those committed to ending the subordination of all women. The harm that feminist jurisprudence inflicts upon AMW is further discussed in Part Three, but, it is critical to understand how the discipline engages in self-harm at the outset.

 

This self-harm is best understood through a study of feminist jurisprudence’s own founding principles. If one purpose of feminist jurisprudence as a field of scholarship is “to map the contours of the ongoing legal supports in an era characterized by a liberal consensus on very basic norms of nondiscrimination and formal equality,” then, leaving AMW off the map violates this foundational principle. If a second equally important aim of feminist legal theory is to give women the sort of agency “according to which all of us are defined primarily by our individual attributes and ambitions rather than by any socially mandated role or set of presumed characteristics, and the value of autonomy, by which is meant the irreducible importance of self-determination and the pursuit of one’s own understanding of the good life without societal or state based censorial control,” then it follows that denying AMW this sacred right to self-determination attacks the very ethos of feminist legal theory and threatens the integrity of the discipline as a whole.

 

Today AMW are primarily defined by the socially mandated roles and characteristics foisted upon us by western culture and feminist legal theories, and we are excluded from critical conversations that shape feminist jurisprudence. This exclusion is an egregious harm, but, the remedy is within reach. Small changes can begin to realign both parties into a powerful coalition. In fact, some feminist legal theories are natural allies for AMW’s integration into feminist jurisprudence—but, this coalition has yet to be widely discussed in legal academia.

 

Our complex intersectional marginalization is invisible to feminist legal theories. This invisibility compounded with the failure of feminist legal theories to affirmatively challenge AMW’s subordination renders feminist jurisprudence complicit in assaults on AMW’s bodies and liberties in a post-9/11 Trumpian world. As it stands, third party accounts dominate the scholarship and public discourse on AMW. We are written about—our identities are constructed, reconstructed, and perverted to suit the writers’ needs; but, we are not spoken to much less listened to. AMW exist in extremes because dramatic characterizations supply the best ammunition for third party agendas.

 

Today, feminist discourse marginalizes AMW by singularly referring to us in relation to oppression. Intersectional feminism is a force of change, and our inclusion is long overdue. This article seeks to combat essentializing by adding much needed nuance to narratives on AMW. Instead of replacing one stereotypical image with another, my objective is to create a rich intersectional portrayal of AMW that is currently wholly lacking in legal academia and popular culture. Every section of this article could be an entire book, and I introduce these topics to spark pressing discussions where the academy is silent. (internal citations omitted)

"Faith in Whiteness: Free Exercise of Religion as Racial Expression" - new article by Professor Khaled Beydoun

Professor Khaled Beydoun of the University of Arkansas-Fayetteville School of Law recently published "Faith in Whiteness: Free Exercise of Religion as Racial Expression" in the Iowa Law Review.  Here is the abstract:

ABSTRACT:

Faith in whiteness is the affirmation that religion remains forceful in shaping race and racial division. It is also the observation, born from formative contestations of racial exclusion and today’s rising white populism, that central to the American experience is the conditioned belief that whiteness stands at the pinnacle of social citizenship. Whereby adhering to its
tenets and conforming one’s identity to it, maximizes enjoyment of rights and protection from private animus. Most saliently, and per the focus of this Article, faith in whiteness is a form of strategic identity performance. It is a daily ritual whereby adherents of stigmatized religions outwardly perform their religious identities against negative racial meanings ascribed to their faiths and re-perform it in the image of whiteness.  Rising white populism, anti-Semitism and xenophobia have made this phenomenon particularly pervasive today, and raised its stakes for adherents of stigmatized religions. As illustrated by the murders of the three Muslim students in Chapel Hill, North Carolina, in February of 2015, and more
recently, the horrific shooting at the Tree of Life Synagogue on October 27, 2018, Free Exercise of Muslim and Jewish identity clashes with populist conceptions of whiteness, and in an increasingly polarized nation, expose those who outwardly express their religious identity to suspicion, animus and violence. In turn, incentivizing adherents of stigmatized religions to outwardly underperform their faith in order to stave off stigma, and enhance perceptions that they are white—or proximate to white—in order to attain the
presumptions and privileges ascribed to whiteness.  This Article examines the intimate interplay between race and religion during a moment of emergent white populism and religious intolerance. By building off foundational social psychology and legal literatures examining identity performance, this Article also contributes a new framework theorizing how religious identity is negotiated and performed against racism, religious animus, and threats that blur them together. It then applies this framework to six contemporary case studies, illustrating the Free Exercise tradeoffs and racial stakes of faith in whiteness in action.

"Dehumanization 'Because of Sex': The Multiaxial Approach to the Title VII Rights of Sexual Minorities" - new article by Professor Shirley Lin

Professor Shirley Lin of NYU School of Law has just published "Dehumanization 'Because of Sex': The Multiaxial Approach to the Title VII Rights of Sexual Minorities," 24 Lewis & Clark L. Rev. 731 (2020).  Applying several critical legal lenses, Professor Lin examines the tensions between the of Supreme Court's causation doctrine and courts' increasingly multidimensional social-construction approaches leading up to Bostock v. Clayton County.  The full abstract is below, and the article is available here: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3510332.

Abstract

Although Title VII prohibits discrimination against any employee “because of such individual’s . . . sex,” legal commentators have not yet accurately appraised Title VII’s trait and causation requirements embodied in that phrase. Since 2015, most courts assessing the sex discrimination claims of LGBT employees began to intentionally analyze “sex” as a trait using social-construction evidence, and evaluated separately whether the discriminatory motive caused the workplace harm. Responding to what this Article terms a “doctrinal correction” to causation within this groundswell of decisions, the Supreme Court recently issued an “expansive” and “sweeping” reformulation of but-for causation in Bostock v. Clayton County, one that combined the sex-trait analysis with causation analysis in determining that Title VII protects “traits or actions” related to sexual orientation or gender identity.

Because Bostock did not foreclose the use of social evidence or intersectional approaches in additional subordination contexts in which sex is a factor, this Article builds on this important development by introducing “multiaxial analysis,” a framework with which judges and stakeholders identify the role of Title VII’s protected traits as socially constructed along four axes: the aggrieved individual’s self-identification, the defendant-employer, society, and the state. This context-sensitive approach to subordination has the potential to give fuller effect to Title VII’s provisions and purposes as compared to sex-stereotyping theory or the Court’s reformulated “but-for causation.” Uncoupling causation from the sex trait analysis realizes the statute’s civil rights protections within relational, structural, and institutional dynamics as the law increasingly recognizes that the scope of sex extends beyond a fixed binary.

 

Book Review: Stamped From the Beginning - The Definitive History of Racist Ideas in America

Where does one begin to process this richly detailed, cognitively jarring book by Ibram X. Kendi?  No matter your race or gender, this tome on America’s curse – anti-black racist ideas – forces you to examine the country in a different light.  What you thought was racial progress turns out to be merely racism in different forms.

You wonder when, not whether, you have propagated racist ideas.  Most people who would even consider reading a book with “history of racist ideas in America” in its title likely enter the riveting 511-page journey with a ‘liberal mind;’ an open mind.  One presumes you’ll fill the gaps in your knowledge with facts, details, and more proof that America has a race problem. 

On that front, Kendi delivers.  But he does much more.  He tells a story three hundred years in the making only to leave you with an unsettling conclusion: America may never be anti-racist.

Through the lives of five transformative figures in American history—Cotton Mather, Thomas Jefferson, William Lloyd Garrison, W.E.B. DuBois, and Angela Davis—Kendi (re)tells the bloody, cruel history of slavery, the “Reconstruction” of slavery in other forms, and permanent criminalization of Black bodies.  In too many instances to count, one is left bewildered, disgusted, and astonished at the injustices undergirding the same nation whose mantra is freedom and liberty for all.  To some extent, such revulsions come with the territory of readings on race in America, past and present.                     

Kendi’s book, however, is not just another history book adding to our knowledge of the trials, tribulations, and accomplishments of Black people in America.

It is a powerful narrative on the common humanity of Blacks, Whites, and immigrants who live and breathe the same racist air on the same racist soil inspired by a rehashing of the same racist ideas, decade after decade, century after century.   

Kendi’s lasting intervention is the impressively comprehensive deconstruction of how racist ideas create three categories of responses: racist, assimilationist, and anti-racist.

There is no racial litmus test for who belongs to which category.  Yes, more Whites historically are racists, but as we know from the abolition and civil rights era, some of the staunchest anti-racists were White (and immigrants).  Similarly, Blacks are not immune from being racists; although a larger number of anti-racists are Black. 

While racists are unquestionably condemned today, it is the assimilationists who arguably have done the most harm.  Kendi’s unpacking of assimilationists brings into sharp relief the adage: the road to hell is full of good intentions.  He shows in meticulous detail how the history of racial progress taught in American schools and mainstream liberal media is really a repacking of racist ideas by assimilationists.

Indeed, Kendi’s critique of the Black elite’s adoption of assimilationist ideology (most of whom were well-intentioned) is perhaps as scathing as those of the White racist, segregationists.  Nefarious narratives of Blacks being too lazy, too dumb, and too selfish insidiously infect what Kendi calls “uplift suasion” perpetuated by Blacks who “made it” in a Eurocentric, Protestant, heterosexual, patriarchal America.

Following that logic, the racists and assimilationist in the nineteenth century shared a solution to the “African problem.” Newly freed slaves just needed to work harder (as if their slave labor had not enriched American white elites) if they wanted to live a materially comfortable life with dignity.  Forget that they had no land, no wealth, no formal education, and until passage of the Thirteenth Amendment, no freedom.  Not to mention the murder, lynching, and rape inflicted on any Black person who stepped out of line, looked up, spoke out, or rose too high. 

Vocational education is the solution, cried out Booker T. Washington at the turn of the twentieth century, making him one of the most popular Black men among White elites who wanted nothing more than to create a permanent Black underclass of laborers.  What better scapegoats to direct poor white immigrants suffering from inhumane work conditions, low wages, and long workdays.  No, civilizing the ancestors of slaves through (Eurocentric) higher education is the solution, cried out a young W.E.B. DuBois, one of the most highly educated Black men of his time.  Despite being at odds, neither man was the antiracist Blacks needed to pull out racist ideas from their roots at the turn of the twentieth century.

Fast forward five decades and the same logic is applied to the ‘Black ghetto.’  The so-called “Negro problem” is squarely placed on the shoulders of inner-city Blacks herded like animals by redlining, housing discrimination, and employment discrimination.  According to the assimilationists of the time, Black veterans just needed to work harder (as if they had not sacrificed their lives to fight wars between White people who devalued their lives) if they wanted to live a materially comfortable life with dignity.  Black workers just needed to work harder, stop complaining, and not ask for any government assistance (even though all classes of whites have benefited from some form of government aid since the nation’s founding).  The same record plays yet again in the 1980s and 1990s during the War on Drugs and the War on Crime designed to continue the reconstruction of Black slavery, this time in the form of mass incarceration. 

The role of the racists is well known—John C. Calhoun, Woodrow Wilson, Strom Thurman, Richard Nixon, Ronald Reagan, and Donald Trump to name a few.  But what about the anti-racists?  According to Kendi, they are often assimilationists mistaken for anti-racists.  Think W.E.B DuBois and Martin Luther King in their younger years.  Both sought to persuade Whites that Blacks deserved equality on condition they would assimilate into White middle class norms, lifestyles, and behaviors—even though the White middle class wanted nothing to do with Blacks in their neighborhoods, schools, or churches.  Only in their later years, after they discovered that racist ideas had merely mutated to hegemonize their civil rights work, did W.E.B. DuBois and King become anti-racists.  

Although assimilationist is a word one expects to find in books about immigrants—from China, Japan, Southern Europe, Eastern Europe, the Middle East, South Asia—Kendi shows how Blacks too are directly harmed by America’s melting pot mantra.  Foreign languages, clothing, lifestyles, and customs must “melt away” for an immigrant to be accepted socially as a citizen, and even that is circumscribed by the color of their skin.  Just as immigrants must assimilate to Anglo-Saxon, Protestant culture and language in order to access work, money, dignity, and power; Black descendants of slaves too must assimilate. 

This entails adopting anti-Black stereotypes that indict millions of people based on the bad acts of individuals who happen to share the same racial identity.  For racism is the representation of the race as defined by the lowest common denominator: the poorest, the most violent, the least educated, the least productive, and the sickest. 

Any challenge to this fallacious reasoning is deflected by pointing out the “Extraordinary Negro.” If Frederick Douglas, Phyllis Wheatley, W.E.B. DuBois, Booker T. Washington, Henry Belafonte, Sidney Poitier, Bill Cosby, Oprah Winfrey, Barack Obama could rise to such heights of success, then surely racism is not the cause of the disparities in wealth, income, education, employment, health, and incarceration between Blacks and Whites.  If these extraordinary Black people were able to overcome, then no Black person in the land of equal opportunity has an excuse.  Never mind that White people have been receiving public assistance since the nation’s founding.  Free (Indian) land to settlers, low-interest federal home loans and stipends for college tuition to WWII veterans, and preferential treatment in all public services during the Jim Crow era are just to name a few.

Of course, Black assimilationists (like White liberals) may not be conscious of the specious premises on which they build what they believe is anti-racist work.  Kendi notes this is what distinguishes assimilationists from the racists.  It also distinguishes them from anti-racists—whose rebuke of racist ideas invites public censure, government repression, and murder.  Think Nate Turner, Harriet Tubman, Ida B. Wells, Malcolm X, Mohamed Ali, Stokely Carmichael, and Angela Davis—whose life Kendi features in distinguishing between an assimilationist and anti-racist.  Davis paid with her job (she was fired twice from the University of California for being a Communist), her liberty (she spent sixteen months in jail for her Black power activism prior to being acquitted), and most recently in 2018 she was stripped of a major civil rights award on account of her advocacy for Palestinian human rights.

Stamped From the Beginning: The Definitive History of Racist Ideas in America has accomplished what I anticipate is Kendi’s goal: to trigger a transformative intellectual questioning of what it means to be anti-racist.  For too many of us, for far too long, we have mistaken nonracist with anti-racist.  We have left unquestioned the work that coercive assimilationism performs to propagate anti-Black racism. In plain sight, but as obscured as the air we breathe.

Being an anti-racist is hard. It’s unpopular. It’s exhausting. It’s a lifelong commitment.  Which is why after the dust settles from the national anti-Black racism protests (fueled by the latest murders of Black men by police), few anti-racists will remain.  The hashtags will change. The news cycle will move on.  Young activists of all races will grow up, graduate, have families, and move to the white suburbs. When the few anti-racists rise up, Black and White assimilationists will dismiss and rebuke them for making it harder to fight off the racists. 

Kendi, thus, ends his masterful book with a warning, echoing critical race legal scholar Derrick Bell’s advice a generation earlier: only self-interest will turn racists and assimilationists into anti-racists.  “Sacrifice, uplift, persuasion, and education have not eradicated, are not eradicating, and will not eradicate racist ideas, let alone racist policies.” 

Power will never self-sacrifice away, be persuaded away, or educated away from its self-interest.  Be courageous, yet informed.  The arduous journey continues.

--  Sahar Aziz, Professor of Law and Chancellor’s Social Justice Scholar, Rutgers Law School.  She is the founding director of the Center for Security, Race and Rights and author of the forthcoming book The Racial Muslim: When Racism Quashes Religious Freedom.

 

"Trump vs. Puerto Rico: Bigotry in action" - by Professors Ediberto Román and Ernesto Sagás

Professors Ediberto Román (Florida International University School of Law) and Ernesto Sagás (Colorado State University) recently published an op-ed entitled "Trump vs. Puerto Rico: Bigotry in action" in the NY Daily News.  They critique Trump's desire to sell Puerto Rico, noting that his " antiquated mindset is one in which white Americans rule supreme but are unfortunately burdened with non-white minorities."  They further assert that Trump "repeatedly reminds his base using both overt racist baseless assertions and equally despicable dog-whistle calls. In the case of Puerto Rico, not surprisingly, Trump — always the crass real estate magnate — seriously considered getting rid of the problematic colonial “asset,” just like he sold his failing business ventures: racism meets vulture capitalism."

Reversal on Trump’s Student Visa Curbs Exposes Flawed Policy Efforts (by Profs. Ediberto Roman & Carrie Rosenbaum)

On July 7, President Trump announced a new policy that would in effect cancel foreign student visas, and threatened these students with deportation if they did not attend school in-person (the ban). One week later, on July 14, Judge Allison D. Burroughs of the District Court of Massachusetts, where Harvard University and Massachusetts Institute of Technology filed a lawsuit to halt the ban, reported “the parties came to a resolution” in the plaintiffs’ motion for an injunction to halt the ban.

The government agreed to rescind the ban and its implementation. While the government could conceivably attempt to reinstate the ban, following proper procedure, the settlement was unquestionably a victory for the plaintiffs and foreign students that would be affected by it.

The reasoning behind the settlement may never be known as the matter was settled between the parties. Nevertheless, there are clues from both the facts and the law as to why the government decided to rescind the ban. From these clues, either the government’s counsel, or the court may have advised the government of the likely result of the matter. Counsel for the government probably concluded what plaintiffs’ attorneys and most legal observers determined: this was a case where yet again, the Trump administration was going to lose.

Procedural Flaws

The ban was destined to fail because the administration implemented it incorrectly. Much like the administration’s previous anti-immigration measure, its failed attempt to end the Deferred Action for Childhood Arrivals (DACA) program, in rolling out the ban, the administration failed to follow the required procedures under the Administrative Procedure Act (APA).

While an agency like the U.S. Citizenship and Immigration Services (USCIS) has some degree of authority to change its previous position and interpretation of the law, there are limitations and procedural requirements. Such requirements exist to avoid overreach and honor separation of powers, and more broadly, for purposes of democratic integrity.

The APA requires an agency to provide the public advance notice of a proposed change by publication in the Federal Register, thereby providing a means for formal commenting on the new regulation. Then the agency is to review and respond to those comments prior to implementing the new regulation.

In this case, akin to the Supreme Court’s ruling in the Deferred Action for Childhood Arrivals (DACA) case, the administration in its zeal to restrict immigration, failed to follow the necessary procedures. The ban was destined fail for the same reasons the Supreme Court invalidated the president’s attempt at rescinding DACA. Federal courts were going to find the administration acted in an arbitrary and capricious manner.

Further, the ban could have very likely been seen to arbitrarily determine, without guidance or the required notice and comment period, when a student is subject to removal based on being out-of-status. This second flaw was an independent basis to reject the ban.

The suits challenged the new ban requesting the courts issue an injunction, or a court-ordered mandate to halt implementation of the ban. When ICE rescinded the ban, the issue became moot. If the case had proceeded, the courts would have likely found that the procedural flaws went to the first prong of an injunction: the likelihood of success on the merits.

The government simply did not have a legitimate basis to disregard the APA. Likely recognizing that they would not succeed on the merits, ICE backtracked, and for now, international students can plan to remain in the U.S. with valid student status and safely attend classes online this fall.

If the court had to consider the next relevant factors in an injunction, the plaintiffs likely would have prevailed in demonstrating that the equities were in their favor, there would have been irreparable harm if the ban went into effect, balancing of the hardships favored them, and public policy was in their favor. Simply put, the ban was going to significantly harm both universities and foreign students without any legitimate benefit to the government or the country.

In addition to the likelihood that the court would have found the president’s plan as yet another effort to avoid playing by the rules set forth in the APA, the president’s proposal could have been understood as an unlawful attempt at making immigration law, exceeding the scope of his authority, and conflicting with Congress’ role.

While the legal challenges were APA or procedural claims, that should not distract us from the underlying ideological motives undergirding this administration’s immigration policies. The abuse of executive authority and efforts to usurp congress’ law making role have been hallmarks of this administration.

President Trump has long railed against “liberal” academic institutions and the attempted ban coincided with his Covid-19 agenda. In the end, the settlement avoided further waste of taxpayer dollars and perhaps undermined what some also saw as a re-election strategy and a means of penalizing universities for deciding not to recommence in-person classes this fall by robbing them of critical tuition and fees. Yet again, the way this administration sought to implement its goals was fatally flawed.

 

This article was originally published at Bloomberg Law on 07/16/20. 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.”

Carrie Rosenbaum teaches at the Legal Studies Department at UC Berkeley.

"INSIGHT: Reversal on Trump’s Student Visa Curbs Exposes Flawed Policy Efforts" - by Professors Ediberto Román and Carrie Rosenbaum

Professors Ediberto Román (Florida International University School of Law) and Carrie Rosenbaum (UC-Berkley, Golden Gate) were ready to challenge the Trump Administration's now rescinded policy to cancel student visas of international students who only took online classes.  In a Bloomberg op-ed entitled "INSIGHT: Reversal on Trump’s Student Visa Curbs Exposes Flawed Policy Efforts", they argued that this policy had many procedural flaws and particularly failed to follow the procedures laid out in the Administrative Procedures Act (APA).  The Trump Administration withdrew the policy, perhaps due to the astuteness of these arguments.

Never Forget Child Separation, Trump’s Most Abominable Act (by Prof. Ediberto Roman and Joshua Killingsworth)

On June 26, a federal court demanded Immigration and Customs Enforcement (ICE) free children from custody in response to health concerns at their facilities. Judge Dolly M. Gee found ICE had failed “at the basics,” such as keeping these children in “safe and sanitary” living conditions during a time when COVID-19 was devastating the country.

Journalist Rachel Maddow described the detention of children as the offense “where multiple Trump officials are most likely to spend eternity in cosmic penance and damnation. Trump’s family separation policy is without question his most abominable act. While Trump targeted immigrants from the very first day he ran for office, describing them as drug dealers and rapists, few realize President Trump has actually targeted children.

In May 2018, Attorney General Jeff Sessions, announced the “zero tolerance policy,” whereby every adult who improperly entered the country would be prosecuted and remain in custody. If the adult migrant or asylum-seeker was with a child, the child would be separated. In the first two months of zero tolerance, this separated at least 2,000 children from their parents. In the first year of this heartless program, at least seven children died in U.S. custody. The administration knew of the devastating psychological effects of family separation, but they implemented it anyway.

The wrongs of the family separation are simply unfathomable. Shockingly, recent reports document thousands of migrant children sexually abused while in U.S. Custody. No decent human being should believe such damnable acts could ever happen, but HHS documents themselves, as well as U.S. Congressman Ted Deutch, confirm these wrongs occurred.

On June 20, 2018, after both domestic and worldwide condemnation, President Trump signed an executive order which purportedly stopped future family separation. A week later a court mandated its end.

But in truth, little changed. Not being able to keep these children locked up by themselves, the Trump administration unsuccessfully sought permission to detain children alongside their parents. Shortly thereafter, the Trump Administration admitted over 2,500 children remained separated after the executive order ending the program. A year after the end of the program, the administration admitted children were still being separated. Shockingly, government officials further admitted it could take two years to reunite thousands of children.

Last month’s court decision only confirms what we already knew. The federal government’s practice here is not only heartless, hateful, and evil, the Trump administration never had “concern for the particular vulnerability of minors.” The tragedy here will go down in history as among our darkest days, and may take generations, if ever, to repair the wrongs done to these beautiful children.

When our school children are taught of the wrongs of Japanese internment, and the Native American Americanization movement (where children were separated as well), some may believe such wrongs occurred in a less-enlightened era. We will likely tell ourselves we are far more advanced today. Yet, imagine seeking asylum with your child at the border, and witnessing her ripped from your arms? Imagine not knowing where she is? Imagine learning your child was abused, or died? This is not a Stephen King horror film — it’s Trump’s America.

 

This article originally appeared on July 12, 2020 at the Orlando Sentinel. 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.”

 

 

Joe Biden, Racial Identity Politics, and the Vice Presidential Nominee

Now that Joe Biden has wrapped up the 2020 Democratic presidential nomination, everyone is wondering whom he will pick as the Vice Presidential nominee.  Race and gender representation are playing a key role in his decision-making.  The 2020 Democratic primary showcased the excellence of women and people color in politics, and many were disappointed that a 77-year old White male became the Presidential nominee.  Recognizing this, Biden has already committed to choosing a woman running mate, but he still faces difficult choices.  Among the finalists are Black, White, Latina, and Asian American candidates, all of whom are superb.  Biden must weigh a number of different factors: political experience, personal characteristics, and various ideological, geographic, and demographic considerations.  And he may also have to decide between two competing interests: repaying loyal supporters and broadening his appeal to others.

Biden’s most loyal constituency has been African Americans—particularly elderly Black voters.  They have consistently backed Biden by large margins, despite his racial gaffes, and in spite of questions about his record on busing, crime, and other issues.  Biden remained the frontrunner throughout 2019 mainly because of Black support.  His campaign seemed to falter in early 2020, after he finished poorly in the Iowa caucuses and New Hampshire primary—where there were few Black voters.  Then, after an endorsement from Rep. Jim Clyburn, Biden made a spectacular comeback in South Carolina—largely on the strength of Black voters.  This was followed by resounding victories in the Super Tuesday (March 3) and mini-Super Tuesday (March 10) primaries, where Biden again won the Black vote handily.  In those later primaries, he also drew significant support from White and Latina/o voters.  But undoubtedly, Black voters propelled Biden to the nomination.

Beyond Biden, Black voters are the backbone of the Democratic Party.  In recent presidential elections, Democratic candidates have received about 90 percent of the Black vote.  But many Black Americans believe the Democratic Party has not really earned these votes.  While Barack Obama’s historic presidential runs in 2008 and 2012 generated enthusiasm, Black voter turnout was down in the 2016 Presidential election, contributing to Hillary Clinton’s loss.  And Biden still needs to do more to reach younger Black voters.

Biden recognizes that he must not take the Black vote for granted.  Throughout his campaign, he has emphasized his connection to Obama.  He has proposed the comprehensive Lift Every Voice plan for Black America, referencing the Black national anthem in its title.  He has committed to appointing the first Black woman to the U.S. Supreme Court.  Biden has also made racial justice and inequalities a theme in his campaign speeches—even more so since the tragic killing of George Floyd and the ongoing #BlackLivesMatter protests that ensued.  In the wake of these protests and the calls for racial justice that they sparked, many analysts believe that Biden will choose a Black woman as his running mate.

Several Black women are major VP contenders.  California Senator Kamala Harris is the most mentioned name.  She was atop the list even before she ended her own presidential bid.  Another Californian, U.S. Rep. Karen Bass, has also gotten some attention.  Bass is also former Speaker of the California State Assembly—the first Black woman to lead any state legislative body.  Former National Security Advisor Susan Rice has stellar credentials, particularly in foreign affairs.  She is a Rhodes Scholar with a doctorate in International Relations.  None of them come from a competitive state that could expand the Democrats’ electoral map—although it is debatable whether a VP pick helps for winning more states.  If it does help, winning Georgia would be a huge boon, and former Georgia gubernatorial candidate and state legislator Stacey Abrams—a Yale Law School graduate—has not been coy about seeking the nomination.  Abrams is a particularly dynamic speaker.  Atlanta Mayor Keisha Lance Bottoms could also help Democrats win Georgia.  And even more important to Democrats is Florida, home of U.S. Rep. Val Demings.  Demings was once a police officer and provides a unique perspective for current conversations about police reform.  So there is a diverse range of good candidates just among Black women.  

Other analysts believe that Biden needs to secure votes from the left wing of the Democratic Party.  During her primary campaign, Massachusetts Senator Elizabeth Warren generated enthusiasm among young progressives—a group that Biden has struggled with.  By choosing Warren, Biden’s candidacy could draw left-leaning voters who otherwise might not turn out or might vote for a third party candidate.  Warren also has some support among Black voters.

However, Biden might prioritize winning swing voters who went for Trump in 2016.  Each voter that Biden takes away from Trump counts twice: plus one for Biden and minus one for Trump.  And since very few progressives or Black Americans voted for Trump in 2016, Biden would have to look elsewhere to flip Trump voters and gain this double advantage. 

He could try to appeal to White center-right voters in Midwestern battleground states, perhaps by selecting Michigan Governor Gretchen Whitmer.  At one point, she appeared to be high on the list.  But although Whitmer gained exposure through battling Trump over COVID-19 shutdowns, she has faded in the VP conversation.  Minnesota Senator Amy Klobuchar was also once among the leading contenders: she became known through her primary campaign was particularly appealing to moderate Democrats.  However, Klobuchar withdrew from contention last month and said that Biden should choose a woman of color.  Democrats—and interestingly White Democrats even more so than Black Democrats—have echoed this call.

Besides the Black candidates, there are two other women of color on Biden’s short list: Illinois Senator Tammy Duckworth, who is Asian (Thai) American; and New Mexico Governor Michelle Lujan Grisham, who is Latina. [1]  Choosing either of them would break new ground: there has never been an Asian American or Latina/o major party nominee for President or Vice President.

Senator Duckworth has gotten media attention lately, after Fox News commentator Tucker Carlson questioned her patriotism.  Asian Americans are a smaller constituency than Black or Latina/o Americans and are concentrated in solidly Democratic states such as New York, California, and Hawaii.  Nevertheless, Duckworth has a compelling personal story.  She is a combat veteran who lost both of her legs in the Iraq War.  She has worked in both the Illinois and U.S. Department of Veterans Affairs and could help with much-needed Democratic outreach to veterans—a group that includes13 percent of the voting population.  Duckworth also served in the House of Representatives, and she has a close relationship with the Bidens. 

But the most intriguing candidate for me is Governor Michelle Lujan Grisham.  Compared to the other candidates, she has not gotten much attention, and outside of New Mexico, few people know her record.  But Lujan Grisham already made history as the first Democratic Latina Governor in the U.S. [2] Moreover, nearly 30 percent of Latina/os voted for Trump in 2016, and Biden is underperforming among Latina/os.  If Lujan Grisham could appeal to Latina/o swing voters in Arizona and Texas, Democrats would benefit immensely. [3]

Lujan Grisham would bring a variety of executive, administrative, and legislative experiences to the ticket.  As former Secretary of Health for New Mexico, she has a nuanced understanding of health care and social services—which may be particularly useful as America grapples with the COVID-19 pandemic.  She served as a U.S. Representative from 2012 to 2018, where she was Chair of the Congressional Hispanic Caucus and dealt with the range of domestic and foreign policy issues.  Lujan Grisham’s dynamic presence would also complement Biden’s low-key manner: she is an engaging public speaker who comes across as knowledgeable, energetic, and passionate. 

As Governor, Lujan Grisham has demonstrated her leadership capacities and her ability to unify the moderate and progressive wings of the Democratic Party.  During her first year, she signed progressive legislation on renewable energy, gun safety, labor rights, and minimum wages.  Lujan Grisham has a 59 percent approval rating as Governor.  She has received national praise for her handling of the COVID-19 pandemic in New Mexico.  Such leadership is important to Biden: he has emphasized that he wants a VP who is “ready to be President on day one.” 

All of the VP candidates could make good leaders and have the potential to run for President.  But contrary to popular belief, the Vice Presidency has not historically been a great stepping stone to the Presidency.  More often than not, voters want a change from past administrations.  In the last 60 years, only one of four sitting VPs who ran for President was successful: George H.W. Bush in 1988.  The other three lost: Richard Nixon in 1960; Hubert Humphrey in 1968; and Al Gore in 2000.  Nixon did win the Presidency in 1968, eight years after leaving the VP office—but he actually defeated the sitting VP, Humphrey.  Walter Mondale also lost in 1984, four years after leaving the Vice Presidency.  Gerald Ford, who was initially VP and became President after Nixon’s resignation, lost as an incumbent to Jimmy Carter.  And even George H.W. Bush lost his re-election bid in 1992.  Overall, since 1960, sitting or former Vice Presidents have lost six of nine presidential elections.  Biden is trying to be the exception rather than the rule. 

The Vice Presidency does bring name recognition and status within one’s own party, which can provide an initial springboard.  Sitting or former VPs have been quite successful in gaining their own party’s nomination, as we see with Biden himself.  Visibility is even more important for women and people of color, who face greater barriers in the process.  But what may be an advantage for winning a party’s nomination can be a disadvantage in the general election.  And there are other effective pathways to the White House—six of the last seven Presidents never served as Vice President.

For all of the media attention given to Biden’s VP choice, his promise to appoint the first Black woman to the U.S. Supreme Court would have a more lasting impact.  The biggest long-term political obstacle for progressives is not the Presidency or Congress, both of which change hands fairly regularly, but rather the composition of the Supreme Court.  Supreme Court Justices serve for life, and if Biden picks a Black woman in her 40s, she could be on the Court until 2060.  Trump’s appointments have moved the entire federal judiciary in a decidedly conservative direction, endangering progressive policies such as affirmative action and a woman’s right to choose.  Recapturing the federal courts, beginning with Biden’s first Supreme Court appointment, should be progressives’ number one priority. 

Nevertheless, the Vice Presidential nomination is Democrats’ most immediate concern.  Although Biden has to make a difficult decision, he does have a slew of excellent candidates to choose from.  Women and people of color have made their mark on the 2020 presidential campaign.  We see this not only through the diverse range of candidates, but also through the unprecedented attention given to race and gender issues by all of them.  Regardless of who Biden chooses, this campaign season has changed America’s political landscape for the better.

Notes:

[1] Another Latina, Nevada Senator Catherine Cortez Masto, was also a contender but withdrew from consideration in May.

[2] Susanna Martinez, a Republican who was also Governor of New Mexico from 2011 to 2019, was the first Latina Governor in the U.S.

[3]  Florida also has a large Latina/o population, although many are of Cuban, Puerto Rican, or Central American ancestry—having a different political history and identity than Latina/os in the Southwest and West coast.

Acknowledgment: I thank Kemi Martin for her insightful feedback on this blog post.

Jumping Hurdles to Sue the Police - new article by Professor Sunita Patel

Professor Sunita Patel of UCLA School of Law recently published Jumping Hurdles to Sue the Police, 104 MINNESOTA LAW REVIEW 2257 (2020).

Abstract

The view that the Supreme Court has limited judicial review of unconstitutional government practices is evident in varied quarters of legal scholarship. With respect to structural reform litigation against the police there are good reasons for pessimism, particularly when considering three particular lines of Supreme Court case law. City of Los Angeles v. Lyons, Monell v. Social Security Administration, and, to a lesser degree, Wal-Mart v. Dukes, have typically made it difficult to challenge constitutionally suspect police practices. Lyons erected a standing hurdle for plaintiffs seeking injunctive relief from police department policies; the Monell line of cases erected a hurdle to achieving municipal liability; and most recently, Wal-Mart erected a class action certification hurdle. These doctrinal barriers require plaintiffs to provide substantial evidence and involve substantive consideration of constitutional claims prior to trial.

Through a close examination of three racial-profiling class actions, Floyd v. City of New York, Ortega-Melendres v. Arpaio, and Bailey v. City of Philadelphia, this Article explores the in-formation litigators used to overcome these doctrinal obstacles in order to reach a substantive review of police practices. The case studies show that certain kinds of evidence can assist plaintiffs in overcoming the standing, municipal liability, and class certification barriers: hard data and statistical evidence, discriminatory statements by supervisors and central decision-makers, and/or proof of a history of notice and failure to remedy constitutional violation. Layering the evidence presented in the three case studies over the doctrinal requirements reveals a type of convergence—the same or similar evidence can be used to overcome interlocking aspects of the doctrinal barriers. The Article also discusses other means to obtain information outside the traditional discovery process, such as relationships with advocates and community organizations; publicity that creates leads and opportunities for further fact gathering; and court orders requiring data tracking and disclosures following prior litigation.

Law, Structural Racism, and the COVID-19 Pandemic - new article by Professors Ruqaiijah Yearby & Seema Mohapatra

Professors Ruqaiijah Yearby and Seema Mohapatra recently posted a manuscript entitled "Law, Structural Racism, and the COVID-19 Pandemic", published in the Journal of Law and the Biosciences.  Here is the abstract:

Racial and ethnic minorities have always been the most impacted by pandemics because of: disparities in exposure to the virus; disparities in susceptibility to contracting the virus; and disparities in treatment. This article explains how structural racism, the ways in which laws are used to advantage the majority and disadvantage racial and ethnic minorities, has caused these disparities. Specifically, this article focuses on how employment, housing, health care, and COVID-19 relief laws have been manipulated to disadvantage racial and ethnic minorities, making minorities more susceptible to COVID-19 infection and death. This article uses Blumenshine’s 2008 framework to outline how structural racism causes racial and ethnic minorities’ disparities in exposure to viruses, in susceptibility to contracting viruses, in treatment of viruses, and in infection and death rates. This article discusses how historical and current practices of structural racism in existing employment, housing, and health care laws and the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) cause disparities in COVID-19 infections and deaths. This article suggests legal solutions to address structural racism as well as public health solutions to help mitigate the racialized effects of the disease.

Previously, Professors Yearby and Mohapatra authored a related blog post entitled "Structural Discrimination In COVID-19 Workplace Protections."

A Proposed Act: the Stop Police Violence & Criminal Justice Reform Act - Article excerpt by Professor Maurice Dyson

Professor Maurice Dyson has a very timely proposal for an act to address police violence and reform criminal justice: https://www.racism.org/index.php/en/articles/law-and-justice/criminal-justice-and-racism/134-police-brutality-and-lynchings/1924-a-proposed-act-the-stop-police-violence-criminal-justice-reform-act

The proposal draws from Professor Dyson's article, Excessive Force, Bias, and Criminal Justice Reform: Proposals for Congressional Action, 63 Loyola Law Review 27 -75 (Spring, 2017).  Here is the abstract to that article:

Police violence in America is a modern-day crisis. Even our own allies such as the United Arab Emirates, Bahamas, France,United Kingdom, Canada, New Zealand, and Germany have all issued travel-alert warnings to their citizens visiting the U.S., due to the police violence being witnessed here. Yet, what the rest of the world seems to know and acknowledge, has apparently escaped our Congress and, indeed, our elected leaders who have failed to take action. While various communities may suffer from the abuses of excessive police practices, it is America’s people of color, particularly Blacks and Latinos, that are targeted disproportionately for police harassment and violence. Significantly, in 2015: (1) unarmed Black people were “killed at 5x the rate of unarmed whites,” (2) “37% of unarmed people killed by police were Black” despite being “only 13% of the U.S. population,” and (3) “[p]olice killed at least 102 unarmed black people,” nearly two people each week. According to the U.S. Bureau of Justice Statistics, Hispanics are over-represented when it comes to traffic searches and arrests, as statistics show

 

"Trump’s Latinx Repatriation" - new article by Dean Kevin Johnson

Kevin Johnson, Dean of the University of California at Davis School of Law, recently published "Trump's Latinx Repatriation" in the UCLA Law Review.  The abstract is given below, and the Article is available for free download at this link: https://www.uclalawreview.org/trumps-latinx-repatriation/

Abstract

Two historical episodes have indelibly influenced the development of Latinx identity and sense of belonging in the United States. During the Great Depression, state and local governments, with the support of the U.S. government, repatriated approximately one million persons of Mexican ancestry, including many U.S. citizen children and immigrant parents, to Mexico. Similarly, in 1954, the U.S. government launched Operation Wetback, a military-style campaign led by a retired general that removed another one million persons of Mexican ancestry, including many U.S. citizen children, from the southwest.

History rightly condemns these episodes of anti-Mexican intolerance, which both amount to forms of ethnic cleansing. Nonetheless, we may be seeing history repeat itself with even greater harm inflicted on larger numbers of Latinx peoples. Through breathtaking and unprecedented changes to immigration enforcement, President Donald J. Trump has boldly moved to reduce immigration to, and the number of immigrants in, the United States. This Article contends that, as part and parcel of his fervent anti-immigrant agenda, President Trump is engaging in a concerted effort to remove Latinx peoples, especially Mexicans and Central Americans, from the country. Just as the previous Mexican removal campaigns did, the new Latinx repatriation  accomplishes mass removals and encourages Latinx noncitizens, along with U.S. citizen children, to leave the country and self-deport, or, alternatively, to never come to the United States in the first place.

But the new Latinx repatriation differs in important respects from the old removal campaigns. First, the new system is facially neutral and colorblind, not expressly targeting Latinx peoples. That is the case despite the fact that President Trump’s words frequently—and mercilessly—attack Latinx immigrants. As a legal matter, colorblind policies pose formidable challenges to legal attacks.

Second, through President Trump’s policy efforts, the new repatriation has become institutionalized into the fabric of immigration enforcement, which differs from the ad hoc and episodic nature of the Mexican repatriation and Operation Wetback. With the targeting of Latinx immigrants embedded in the institutional structure of immigration enforcement, one can expect many more Latinx noncitizens to be removed than in previous Mexican removal campaigns.

Ultimately, only political action and congressional reform of our immigration laws can meaningfully change the racial discrimination embedded in immigration law and enforcement. To do so, we must acknowledge and directly confront the racial impacts of the operation of the immigration laws and their enforcement. Put differently, an awareness of the racialized nature of the problem is a precursor to bringing racial justice to immigration.

The Fourth of July is Yours, Not Mine

I cannot celebrate this Independence Day in a spirit of joy over “life, liberty, and the pursuit of happiness.” Yet I feel in this time that the clarity we see these days for America’s faults is now more than ever balanced by America’s possibility, that continuing yet unfulfilled promise of equality.

That possibility was born on the Third of July. This year, I will celebrate it and mourn the Fourth.

The Third of July birthday of which I speak was July 3, 1863. That day ended the Battle of Gettysburg. It saw the repulse of Pickett’s Charge, the hamstringing of the Confederate Army of Northern Virginia, and the beginning of the end of Robert E. Lee’s rebellion. July 3 signaled the long march to the eventual ruin of slavery and the Confederacy.

Admittedly, the Confederacy of the mind won the Jim Crow peace. This “Lost Cause” resisted equality and civil rights for nearly a century after Appomattox (and that same resistance under the banner of the Confederate battle flag is invoked every time the flag’s removal is protested). But the actual Civil War’s end, and the victory of the idea of equality, began at Gettysburg.

Indeed, in reflecting on the underlying meaning of Gettysburg in his famous November 1863 address, President Abraham Lincoln saw the battle as the test of whether American democracy based on rhetoric of equality could survive civil war. In his famous speech, he hoped

that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion -- that we here highly resolve that these dead shall not have died in vain -- that this nation, under God, shall have a new birth of freedom -- and that government of the people, by the people, for the people, shall not perish from the earth.

That cause, the New Birth of Freedom, promised an America that laid stock in Lincoln’s great cause of abolishing slavery and restoring union (even despite Lincoln’s own slow realization of the former). The bullets and blood of Gettysburg set in motion the ultimate Reconstruction of the US Constitution that promised an equal protection of the laws for all persons in the United States without yolk of slavery or differentiation based on status or race.

Unlike the America of the Founders, that promised United States actually includes me as a free Black man equal to all other men and women. It is that New Birth of Freedom that I prefer to celebrate through commemorating the victory of Gettysburg and the demise and fall of the Confederacy. For that victory sowed the seeds of a Union more perfect than the one of 1789.

This promise is an answer to African-American orator Frederick Douglass’s question, “What to the Slave Is the Fourth of July?” His Independence Day 1852 oration held a mirror to a white supremacist America that would enslave his body yet celebrate liberty:

I am not included within the pale of this glorious anniversary! Your high independence only reveals the immeasurable distance between us. The blessings in which you, this day, rejoice, are not enjoyed in common. The rich inheritance of justice, liberty, prosperity and independence, bequeathed by your fathers, is shared by you, not by me. The sunlight that brought life and healing to you, has brought stripes and death to me. This Fourth [of] July is yours, not mine. You may rejoice, I must mourn.

We appreciate Douglass’s assertions even more today. Indeed, the irony of Thomas Jefferson’s appeal to “life, liberty, and the pursuit of happiness” is clear when we recognize that he echoed John Locke, who pointed to “life, liberty, and property,” and thus we can read Jefferson’s rhetoric (as forced by Southern slaveholders) as a protection of his property—including his slaves. Moreover, the signers of the Declaration of Independence used their eloquent call for liberty to shroud their tax revolt which in a sense sought to reapportion more of the benefits of the transatlantic slave trade to themselves. And it is to appreciate that the original pro-slavery American constitution set the stage for our arguments about race today.

I like Douglass must ultimately morn. Even in this 244th year of the United States, Lincoln’s promised freedom and the reconstructed constitutionalism which should have followed remains desperately under fulfilled. Antiblackness still pervades and perverts promised liberty for all.

My life still remains at greater risk than a white life at police stop. I mourn for George Floyd, Breonna Taylor, Ahmaud Arbery, Trayvon Martin, Tamir Rice, and how their deaths are symbols of the many thousands gone because of extremist police violence against people of color (who’s origins are inextricably tied to slavery). To speak their names is to invoke the sign and signal of an America still addicted to anti-Black police violence. For me to invoke their memories is to remember my own life has a target on it. And so I mourn.

I mourn because my vote is devalued because of the caprice of those who suppress the votes of Black, Latinx, and poor people. I mourn for the racial wealth gap, the school-to-prison pipeline, and the fact that Black and Brown bodies suffer and die more from COVID-19.

I cannot but join Douglass in saying that an America that claims liberty and justice for all, as measured by its progress in all these structures of racism from the Founding to the present, may have improved since 1863, but ultimately America (to date) remains “false to the past, false to the present, and solemnly binds herself to be false to the future.” And thus, on this eve of Independence, the contradiction between the promise and the reality of America is clear. And I wonder whether the promise of overthrowing racial oppression once and for all is true.

But rather than despair, I, like Douglass, would say, “notwithstanding the dark picture I have this day presented of the state of the nation, I do not despair of this country.” Indeed, I am heartened by the destruction of communal symbols of racism and white supremacy—blackface, appropriated black icons, and propagandistic Confederate statues, to name a few—and I express my hope that further mindful erasure of allegiances to white supremacy through democratic deliberation continue.

But for a Fourth of July that is more joy than pain for me, the Reconstruction must actually be completed. The promise of the Third of July must be fulfilled by transforming the structures that perpetuate racist effects (even without any racist intent). That includes, among other things, reinvented policing, reimagined democracy, and a revision of the structures and ideology that perpetuate the New Jim Crow. Government of the people must protect and value all the people.

Until then, “this Fourth of July is yours, not mine.”

(Commentary originally posted at atibaellis.com)

Anti-LGBT Free Speech and Group Subordination - new article by Professor Luke Boso

Professor Luke Boso of the University of San Francisco School of Law has posted a new piece entitled "Anti-LGBT Free Speech and Group Subordination" on SSRN.  Professor Boso draws from Critical Race Theory to reconceptualize the relationship between liberty and equality.  The full abstract is given below, and the article is available for free download here: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3630648

Abstract

In 2020, the Supreme Court in Bostock v. Clayton County, Georgia held that Title VII, a federal workplace antidiscrimination law, prohibits discrimination against gay and transgender employees. The majority concluded by citing potential concerns from religious and conservative dissenters, and it suggested that Constitutional and statutory principles of religious freedom and free speech might override LGBT-inclusive antidiscrimination commands in appropriate cases.

This Article is about the tension between liberty and equality. It examines this tension in the context of disputes over Free Speech and LGBT rights. Today, dominant conceptions of both Equal Protection and Free Speech are informed by libertarian ideology, reflecting a commitment to limited government oversight and regulation. A pluralistic and progressive society must more adequately balance libertarian interests in the exercise of individual rights—like Free Speech—with the need for government action to promote equitable outcomes. This Article joins voices prominent in the field of Critical Race Theory who argue for an antisubordinating approach to both equality and liberty. Simply put, if the triumph of a Free Speech claim would enforce a status hierarchy that positions historically oppressed groups as inferior, that Free Speech claim should fail.

The moment is ripe to reconceptualize liberty and equality. In response to a shifting social and legal climate that is increasingly less tolerant of bullying, embraces liberal sexual and gender norms, and seeks to institute formal equality for formerly disfavored groups, many in the conservative movement have turned to the First Amendment to protect the status quo. A libertarian view of the Constitution ensures that meaningful liberty and equality exist only for some. The LGBT community and the backlash to its increasingly protected legal status sit at the epicenter of current court battles over the contours of equality and the breadth of the First Amendment, but equity for all marginalized groups is at stake.