Monday, December 28, 2020

A Name On A Piece of Paper - by Jacques Chouinard

In 1903, Jackson W. Giles filed a lawsuit alleging that the board of registrars of Montgomery County, Alabama had engaged in widespread disenfranchisement of Black voters.  The case, Giles v. Harris, eventually landed on the desk of Supreme Court Justice Oliver Wendell Holmes, a Union army veteran who fought in the fiercest battles of the Civil War.

Holmes refused to fashion a remedy that would protect Mr. Giles’s voting rights.  Holmes predicted that the Montgomery County registrars would ignore a contrary ruling, conceding the Court’s authority in the face of Southern intransigence.  In a frank admission of judicial incapacity, Holmes wrote, “If the conspiracy and the intent exist, a name on a piece of paper will not defeat them.”  With that, the Court excluded Jackson Giles and thousands of Black Alabamians from another piece of paper: Montgomery County’s voter roll.

Holmes’s opinion in Giles admits a rarely spoken truth in American law: the judiciary depends on the other branches of government to enforce its rulings.  Holmes refused to exercise the Court’s power when it became obvious that Montgomery County would ignore a judicial order curbing racist voter restrictions.  That Montgomery County was engaged in a campaign to deny Black people the vote in post-Reconstruction Alabama made no difference to Holmes; tacit surrender of the Court’s independence was preferable to the ignominy of an unenforced holding.  Holmes implicitly endorsed Southern oppression; the Civil War veteran would not sign a piece of paper that white Southerners would ignore.

Sixty years later, Justice William Brennan was assigned the majority opinion in Baker v. Carr, another voting rights case.  The facts were depressingly familiar.  A Southern state—Tennessee this time—had refused to reapportion its legislative districts for sixty years, even as predominantly Black districts grew in population.  The result?  Black people in urban districts had far less political power than rural whites.  Disenfranchisement was alive and well in Tennessee.

Unlike Holmes, Brennan recognized the value of judicial authority.  Words on a page carry significant weight when authored by a Justice of the Supreme Court, even if those words might not be enforced.  Brennan was acutely aware of the Court’s power to influence not only legal thought, but the lives of the nation’s most vulnerable citizens.  Brennan confronted voter disenfranchisement head on, despite the political questions inherent in redistricting disputes.  Baker’s holding restrained the impulses of racist Tennessee legislators, using the Constitution to defend individual liberty from Southern oppression.  In stark contrast with Holmes, Brennan concluded that voter disenfranchisement could be remedied by an independent judiciary.  The Court’s authority prevailed: Baker was enforced, and Tennessee’s legislative districts were redrawn.

Americans deserve a judiciary that protects their rights—that respects their inherent human dignity.  Judges must recognize that people are more than names on a page.  The judiciary must possess the moral clarity to acknowledge its own power, and more importantly, its own independence.

December 28, 2020 | Permalink | Comments (0)

Thursday, December 17, 2020

U of Mississippi Fires Professor for Criticizing School Donors & Prisons


“I am writing to inform you that I have recommended to the Dean of the College of Liberal Arts that you receive a one-year notice of nonrenewal pursuant to the University of Mississippi’s Termination of Untenured Faculty policy." These are the cowardly words that were written to Professor Garrett Felber by the chair of the history department, Noell Wilson. She continued, “Your employment with the University will end on December 31, 2021, and your employment contract will not be renewed after that date. At the pertinent time, I will notify you of your assigned responsibilities for the fall 2021 academic semester.” Despite being on leave for a one-year fellowship at the W.E.B. Du Bois Research Institute at Harvard University’s Hutchins Center for African and African American Research, Prof. Felber was dinged for allegedly not being in responsive to communications with his chair.

In the termination letter, Wilson referred frequently to what she claims was Felber’s refusal to speak with her, concluding in the  letter: “Respectfully, your effort to dictate or restrict the means by which I communicate with you is untenable. Your repeated refusal to talk with me makes it impossible for me to maintain a productive working relationship with you or supervise your faculty responsibilities.” Despite that Prof. Felber was communicating with his chair via email, for whatever reason this was not to her liking.

While this may be the pretext for the dismissal, previously, Felber had helped garner a grant for the department for a program called “Study and Struggle,” a political education project on mass incarceration and immigrant detention. Two days after this $57,000 grant was publicized, the chair contacted Felber to notify him that the grant would have to be rejected since the project was political rather than historical and could potentially harm the history department’s ability to procure funding. In a tweet Felber swung back: “The real issue is that [the school] prioritizes racist donors over all else. So it’s not some mythic politics v. history binary, but that this antiracist program threatens racist donor money. And racism is the brand. It’s in the name.”

By all means it appears that the grant upset external donors, which ultimately got Felber fired. The termination has sent a chill though the campus and has undermined the bedrocks of free speech and academic freedom. But all is not lost for a number of prominent academics, including Cornel West have vowed to boycott involvement with the university until there is a full accounting of the firing. He and an army of scholars have banded together and sent a scathing letter to the University Chancellor and Wilson. The letter is printed in its entirety below.

What is even more shocking in the dismissal of Garrett is that we are talking about a first-rate academic, whose work is high caliber, cutting edge scholarship on African-American history, Islam, and prisons. He is the author of award winning books, and has contracts for other books that are forthcoming. He sits at the top of the scholarly food chain as a pre-tenured faculty, yet for the flimsiest of reasons, the university has seen it fit to let him go--despite that they are unlikely to recruit an intellectual and publishing machine like him again. While I've seen some egregious firings in my day, nothing compares to this since the school itself is likely to come out the biggest loser. Stay tuned for further developments. 


Chancellor Glenn Boyce

University of Mississippi


Professor Noell Wilson

Chair, Department of History


Dear Chancellor Boyce and Chair Wilson:


We write to express our shock and dismay at the firing of Professor Garrett Felber from the History Department at the University of Mississippi, which has every appearance of being both politically motivated and retaliatory. Garrett Felber is a highly respected scholar and educator. His monograph, Those Who Know Don’t Say: The Nation of Islam, The Black Freedom Movement, and the Carceral State (University of North Carolina Press, 2020), is widely praised as a definitive political and intellectual history of the Nation of Islam during the Civil Rights Era. In the few months since its release, the book has already been shortlisted for a national book award from the Museum of African American History. He is a public figure active in prison abolition and carceral studies, and a cofounder of the Study & Struggle project, a political education project on mass incarceration and immigrant detention, for which Felber garnered a significant grant that university administrators forbade him to accept. We construe his firing as a chilling example of the university’s attempt to suppress academic freedom.


In her letter of December 10, History Department Chair Wilson implied, although she did not directly state, that Professor Felber was being fired because he refused to meet with her in-person (on-line) on three separate occasions, and instead demanded that she communicate with him in writing. There is no evidence provided in the letter that Professor Felber failed to properly fulfill the responsibilities of his position, to teach his classes and conduct his research.  Indeed, Professor Felber was on leave as a 2020-2021 Fellow at Harvard University’s Hutchins Center when Professor Wilson was insisting on meeting with him over Zoom. 


Simply put, the stated reasons for Professor Felber’s firing are both arbitrary and nonsensical.


According to Professor Felber, the precipitating cause of his conflict with Professor Wilson was her refusal to allow him to accept a grant he had received to fund a prison education program based at the university (cf. Twitter thread).  Given the climate of mistrust between the faculty and administration prevailing at the university as well as the documented influence of overtly racist donors in setting the terms under which the university administration operates, it seems only reasonable for Professor Felber to have requested that any discussion with his Chair about the withdrawal of support for his grant be in writing.


Indeed, the only publicly available reason provided for the firing beyond Professor Wilson’s assertion that she was unable to properly “supervise” his work (while he was on leave from the university), is the statement by the university’s Chief Marketing and Communications Officer Jim Zook that Felber “did not follow the appropriate process for seeking external funding” in seeking funding for the prison education program.  Felber’s mistake, according to the university itself, was running afoul of the development office in seeking to raise money to educate some of the state’s most vulnerable and immiserated citizens.


In the absence of a fuller account of the actual circumstances of Professor Felber’s firing, we understand the firing as an attack on Professor Felber’s commitment to anti-racist political organizing as well as his well-documented history of demanding accountability from the university administration and wealthy donors.  


We further note that there is every reason to suspect that Professor Felber’s firing is retaliatory, given his forthright and public criticism of both of the university and its prominent donors. 


We, the undersigned scholars, demand a full and transparent account of the circumstances leading up to Professor Felber’s firing, including:


  1. A full and transparent account of the university administration and development office’s response to Felber’s decision to move the Making and Unmaking of Mass Incarceration conference from the Overby Center for Southern Journalism and Politics on the grounds that the center’s titular donor was a member of the board of Core Civic, a private prison company.
  2. A full and transparent account of the university administration and development office’s response to Felber’s effort to house the Study and Struggle prison education grant in the History Department, including the substance of the “consultation [among] the relevant campus offices” mentioned by university spokesperson Jim Zook.
  3. A full and transparent account of the consultation between the university administration, the development office, the Dean of the College of Liberal Arts, and the Chair of the History Department leading up to the firing of Professor Felber.


We finally demand that, unless the university can fully demonstrate that Professor Felber’s conduct in any of these matters was, in the words of the university’s policies and procedures governing the dismissal of untenured faculty, “contumacious” (that is, wilfully resistant), rather than reasonable, rightful, and anti-racist, we finally demand that:


  1. Professor Felber’s immediate reinstatement as Assistant Professor of History be assured.


We collectively pledge to refuse all invitations to speak at, conduct professional service for, or otherwise be associated with the University of Mississippi (outside the terms of full-time employment) until this egregious assault on academic freedom is reversed.




December 17, 2020 | Permalink | Comments (0)

Sunday, December 13, 2020

WEBINAR: Implicit Bias Training: Does it Help Combat Racism or is it Racist?

The American Bar Associate presents a program on Implicit Bias Training on December 16 at 2:30 pm (EST). This webinar explores the effectiveness of implicit bias training and its use within the judicial system, police departments, and private workplaces. It is especially timely after President Trump called implicit bias training “racist” in a move to restrict racial sensitivity training among federal government contractors and employees. This webinar will address properly constructed training as a means of fulfilling the obligation to prevent discrimination, harassment, and retaliation. Register here.

Panelists include:
- Hon. Bernice B. Donald – Circuit Judge, U.S. Court of Appeals for the Sixth Circuit
- Sarah E. Redfield – Professor of Law, University of New Hampshire
- Mark Schickman – Principal and Founder, Schickman Law; Section Delegate, ABA Section of Civil Rights and Social Justice
- Ted Small – Principal Consultant, DEI Facilitation & Consulting
- Beth K. Whittenbury (Moderator) – Principal and Founder, Beth K. Whittenbury & Associates; Chair-Elect, ABA Section of Civil Rights and Social Justice

December 13, 2020 | Permalink | Comments (0)

Thursday, December 10, 2020

Los Angeles County D.A. Puts the Brakes on the Death Penalty


While the federal government has been recently ramping up efforts to carry out a number of federal executions before the departure of Donald Trump from the White House, something different is happening on the other side of the country. Earlier this week, the Los Angeles County District Attorney's office issued a startling directive on December 7, 2020 that orders county prosecutors to stop seeking the death penalty at trials and to stop seeking the execution of individuals already sentenced to death. Although California has been a death-penalty state since 1972, in the last half century it has carried out only 13 state executions. 

This remarkable directive marks a critical turning point in the death penalty for California. Whereas neither the state legislature nor the state courts have found the fortitude to recognize the inequalities and unfairness that plague the death penalty in California, it is the executive branch that is stepping up to do the dirty work of standing against this oppressive killing regime.

What makes the order particularly striking is that the rationale is premised on the disparate application of the death penalty to ethnic minorities. As the directive states, "[r]acism and the death penalty are inextricably intertwined" and numerous studies have shown that race is a prominent influence on who is sentenced to die, including both "the race of the defendant and the race of the victim." The directive states:

"Los Angeles County has historically been one of the nation’s most prolific death penalty counties,​ and it exemplifies how racism infects death penalty proceedings. There are currently 215 people on California’s death row who were sentenced to death as a result of capital prosecutions in Los Angeles County.​ An astonishing 85% of those people are people of color. This makes Los Angeles County an outlier even within the state’s flawed system; the rest of California’s death row is populated by 59% people of color.​"

It is in light of this unequal application of the death penalty to minorities and the extraordinary amount of harm to the moral authority of the justice system that the directive was created. In addition, the letter notes that there is no penological purpose that the death penalty serves, including its lack of deterrent and retributive value. There is also the issue of cost, which the directive mentions is high when it comes to California, a state that has spent more than $5 billion dollars since 1978 to prosecute death penalty cases, defend death judgments, and maintain the state's death row. In addition, the directive mentions, is the real risk of executing innocent people.

Due to the myriad problems with trying and executing death penalty sentences, the D.A.'s office has taken this extraordinary measure, which puts in unequivocal terms its intent and purposes:

"A sentence of death is never an appropriate resolution in any case. The office will strive to ensure that all actions taken are consistent with this policy, including refraining from filing letters stating an intention to seek the death penalty, filing briefs, seeking discovery, or making arguments in court that indicate that the death penalty is an appropriate sentence."

Only time will tell if other offices or branches of government will have the courage to step up and say enough is enough. You can read the directive in its entirety here.


December 10, 2020 | Permalink | Comments (0)