Thursday, June 17, 2021

Nikole Hannah-Jones May Have a First Amendment Case (by Nareissa Smith, Esq.)


The Harvard University motto - “Veritas” - means “Truth” in Latin. Morehouse College’s Latin motto, “Et facta est lux,” translates to, “Let there be light.” The frequent appearance of “lux” and “veritas” in college mottos across the nation reminds us that universities are places where students go to be enlightened by truth.

For that to happen, however, faculty must be free to speak truth without repercussions. That’s why the University of North Carolina’s recent decision regarding Nikole Hannah-Jones is so troubling.

Hannah-Jones, a graduate of UNC-Chapel Hill, has covered the stubborn persistence of racial segregation in America, including its public schools. Her efforts have earned her a Pulitzer Prize and a MacArthur “Genius” Grant.

Because of her stellar qualifications, UNC offered Ms. Hannah-Jones the Knight Chair in Race and Investigative Reporting. However, unlike past Knight Chair recipients, the school refused to offer Hannah-Jones tenure. The decision came because of conservative objections to Hannah-Jones’ work with The 1619 Project, an effort to commemorate the arrival of the first enslaved Africans and highlight the role that slavery played in America’s past.

Hannah-Jones is considering a lawsuit against the university. Her attorneys – including some from the NAACP Legal Defense Fund – gave the university until June 4 to offer Hannah-Jones tenure. They have yet to do so. If a lawsuit is filed, it could raise serious First Amendment issues.

The First Amendment forbids federal, state, and local governments from passing laws or taking actions that abridge the freedom of speech. The Supreme Court has noted that both universities and professors have academic freedom rooted in free speech rights. This gives the UNC System the authority to make hiring choices, but it also prevents them from singling out faculty who teach controversial doctrines or subjects.

As a First Amendment scholar, my initial thoughts regarding this case were not favorable to Hannah-Jones. One of the great ironies of First Amendment jurisprudence is that courts are quite willing to protect hate-speech directed against people of color but have historically been less inclined to defend people of color who exercise their free speech rights. However, three things could weigh in Hannah-Jones’ favor.

First, the First Amendment doesn’t like bullies. The First Amendment’s academic freedom cases arose from the McCarthy Era. In the 1950s, academics across the nation were labeled as “subversive” because they advocated communism or refused to say that they did not. The Supreme Court protected the professors and refused to let universities dismiss them. The Constitutional protection for those who teach controversial subjects helps Hannah-Jones.

Second, while courts have decided many cases involving professors with controversial opinions, very few cases involve professors being punished for providing objective facts. While people can debate the merits of various economic systems, philosophical questions, or religious beliefs, it’s harder to debate history. Slavery happened. These may be truths that some Americans would prefer to forget, but inconvenient truths remain true just the same. It would be odd for a court to side against a professor who has done nothing more than tell the truth.

Finally, while court cases usually focus on the school and the faculty, the Supreme Court has written that academic freedom “is of transcendent value to all of us.” Hannah-Jones’ work and scholarship is particularly valuable. Over the past year, the death of George Floyd, the COVID-19 pandemic, the Jan 6 insurrection and other events have placed race front and center in America. It seems unlikely that courts would support a university’s attempt to quash information that is highly relevant to this critical moment in our history.

University professors enlighten their students and the public by helping both groups grapple with difficult facts. UNC-Chapel Hill’s motto - “Lux Libertas” - means “Light and Liberty.” But if the UNC System denies its faculty the liberty to speak the truth, there will be no light and everyone in the state will be poorer for it.

This article originally appeared in the Charlotte Observer on 6/14/21. Read it here.
Nareissa Smith is an attorney, former law professor and freelance writer.


June 17, 2021 | Permalink | Comments (0)

Wednesday, June 9, 2021

New Article: "Why BIPOC Fails" -- by Prof. Meera Deo

Professor Meera Deo of Southwestern Law School has published Why BIPOC Fails in the Virginia Law Review Online.  The abstract is given below, and the full article is available right here:


This Essay initiates a discussion about how we should critically examine which issues and data are most relevant to our arguments and advocacy efforts and how we should match language to the particular groups at the center of those priorities. This will mean aggregating groups at times, and naming them separately at others. This Essay argues that whether finding community through unity or standing separately to highlight distinctions, either of these options is better than utilizing the term BIPOC. Particular examples showcase the failures of the term BIPOC, both in theory and in practice, including ways in which it can be misleading, confusing, and contribute to the invisibility of the very groups that should be centered in particular contexts. Instead, allies, advocates, and academics should not simply use whatever term is currently in vogue but instead critically examine the language we use and carefully match it to our data, priorities, and conclusions.


June 9, 2021 | Permalink | Comments (0)

Monday, June 7, 2021

New Article: "Technological Tethereds: Potential Impact of Untrustworthy Artificial Intelligence in Criminal Justice Risk Assessment Instruments" -- by Prof. Sonia Gipson Rankin

Professor Sonia Gipson Rankin of the University of New Mexico School of Law has published Technological Tethereds: Potential Impact of Untrustworthy Artificial Intelligence in Criminal Justice Risk Assessment Instruments in the Washington and Lee Law Review.  Below is the abstract, and the full article is available right here:


Issues of racial inequality and violence are front and center in today’s society, as are issues surrounding artificial intelligence (AI). This Article, written by a law professor who is also a computer scientist, takes a deep dive into understanding how and why hacked and rogue AI creates unlawful and unfair outcomes, particularly for persons of color.

Black Americans are disproportionally featured in criminal justice, and their stories are obfuscated. The seemingly endless back-to-back murders of George Floyd, Breonna Taylor, and Ahmaud Arbery, and heartbreakingly countless others have finally shaken the United States from its slumbering journey towards intentional criminal justice reform. Myths about Black crime and criminals are embedded in the data collected by AI and do not tell the truth of race and crime. However, the number of Black people harmed by hacked and rogue AI will dwarf all historical records, and the gravity of harm is incomprehensible.

The lack of technical transparency and legal accountability leaves wrongfully convicted defendants without legal remedies if they are unlawfully detained based on a cyberattack, faulty or hacked data, or rogue AI. Scholars and engineers acknowledge that the artificial intelligence that is giving recommendations to law enforcement, prosecutors, judges, and parole boards lacks the common sense of an 18-month-old child. This Article reviews the ways AI is used in the legal system and the courts’ response to this use. It outlines the design schemes of proprietary risk assessment instruments used in the criminal justice system, outlines potential legal theories for victims, and provides recommendations for legal and technical remedies to victims of hacked data in criminal justice risk assessment instruments. It concludes that, with proper oversight, AI can increase fairness in the criminal justice system, but without this oversight, AI-based products will further exacerbate the extinguishment of liberty interests enshrined in the Constitution.

According to anti-lynching advocate Ida B. Wells-Barnett, “The way to right wrongs is to turn the light of truth upon them.” Thus, transparency is vital to safeguarding equity through AI design and must be the first step. The Article seeks ways to provide that transparency, for the benefit of all America, but particularly persons of color who are far more likely to be impacted by AI deficiencies. It also suggests legal reforms that will help plaintiffs recover when AI goes rogue.

June 7, 2021 | Permalink | Comments (0)