Friday, December 21, 2018
The Alpha Female and the Sinister Seven
(forthcoming in Presumed Incompetent II: Intersections of Race and Class for Women in Academia, eds. Carmen Gonzalez, Yolanda Niemann, and Gabriella Gutierrez y Muhs).
When I decided to contribute to Presumed Incompetent II, a litany of bad experiences came to mind – ranging from outright assaults on my job security to the daily microaggressions that remind you every day that no matter how hard you work, how many awards you receive, and how frequently your work is cited, you are and will remain at the bottom of the gender and racial hierarchy undergirding American society in general, and the legal academy in particular (Carbon and Cahn 2013; Monroe and Chiu 2010).
Being an academic, I could not resist developing a typology of the various characters and forms of racism, sexism, and Islamophobia I have experienced in the academy. Based on my conversations with other women of color at various law schools coupled with the literature on systemic gender and racial biases in the legal academy, I suspect my proposed typology applies to law schools across the country (Deo 2015). My aim is to theorize why I, and other women like me, have such negative experiences in a profession that purports to be training the next generation of lawyers and leaders to be civil, ethical, and collaborative. In direct contradiction to these values, harms we experience arise from duplicitous, conniving, and dishonest behavior that produce disrespectful and condescending mistreatment.
In attempting to understand this contradiction between law schools’ stated commitments to civility, ethics and integrity on the one hand and the depraved behavior of some faculty towards (some) female professors of color on the other hand, I realize my situation is unique insofar as I am a particular type of woman — The Alpha Female. Thus, I am marked as a triple outsider (female, racial/ethnic/religious minority, and alpha) in a profession that expects leadership, intelligence, and confidence from its members and yet penalizes women and minorities for possessing such traits (Price Waterhouse v. Hopkins 1989; Moncrief 2015; Aziz 2014). Despite the common usage of the Alpha Male to denote masculinity, leadership, charisma, and social aggressiveness — all traits admired in men — there is no recognition, much less desire, for the female counterpart (Ludmand and Erlandson 2004; Hawley, Little and Card 2008, Ludmand and Erlandson 2006). The dearth of literature about Alpha Females produces a blind spot in socio-legal analysis on gender equality (Popson and Dipaolo 2010; Moncrief 2015).
As such, this chapter seeks to incorporate the concept of the Alpha Female into my experiences as a woman of color in the legal academy who not only is presumed incompetent because of my immutable racial and ethnic characteristics; but also presumed aggressive (rather than driven and focused) and insolent (rather than confident and competent) because of my alpha personality traits — for which my white male counterparts receive promotions to leadership positions and accolades. I hope this chapter triggers further research on the interplay of alpha personality traits, race, and gender.
To read the chapter, click here.
Wednesday, December 19, 2018
Call for Papers:
SLAVERY PAST, PRESENT & FUTURE: 4th Global Meeting
University of Innsbruck, Innsbruck, Austria
June 17-19, 2019
Slavery (the treatment of humans as chattel) and enslavement through conquest, birth, gender, race, ethnicity, and exploitation of indebtedness have been an intrinsic part of human societies.
Slavery and a variety of other forms of exploitation existed in the ancient societies of China, Egypt, Greece, India, Russia and many other states and territories. The Transatlantic Slave Trade furnished at least 10 million Africans for slavery throughout the Americas.
Controversial and contested estimates indicate that up to 40 million people worldwide are enslaved today. This modern re-emergence of slavery into public view, following legal abolition of the trans-Atlantic slave trade over two hundred years ago, is said to be linked to the deepening interconnectedness of countries in the global economy, overpopulation, and the economic and other vulnerabilities of individual victims and communities.
But should we think of these people as enslaved? And if so, is slavery an inevitable part of the human condition? Like ‘consumers’ of past eras, such as early industrialization, are we dependent on the exploitation of others? What does the persistence and mutations of different forms of exploitation mean in the context of abolition and recognition of universal individual and collective human rights?
The varieties of contemporary forms of exploitation appear to be endless. This interdisciplinary conference will facilitate a multidisciplinary exploration of slavery in all its dimensions.
Submissions are sought from people from all walks of life and identities, including:
· Academics: from all disciplines, such as art, film, anthropology, sociology, history, ethnic studies, politics, social work, economics, and any field that touches the study of exploitation
· Civil society members: human rights activists, leaders in non-governmental organizations, and others in the NGO or social advocacy fields
· Professionals: social workers, corporate social responsibility and business ethics professionals, business leaders, and health care professionals
· Government actors: representatives, policymakers, lobbyists, and analysts
· Global citizens with personal connections to slavery or exploitation: former slaves or indentured laborers, members of at-risk populations, migrant or guest workers, non-regularized immigrants, and refugees
Potential themes and sub-themes include but are not limited to:
- Defining Slavery:
- What do we mean when we talk about “slavery”
- Using “slavery” to obscure other endemic forms of exploitation
- Teaching and learning about historic slavery and contemporary forms of exploitation
- Slaveries of the Past
- Classical (Egyptian, Greco-Roman, etc.) slavery
- Conquests and colonization – Aboriginal Australians, indigenous peoples of the New World, dividing and colonizing Africa and Asia
- Slaveries in Europe pre-Industrialization, such as villeinage and serfdom
- Trans-Atlantic Slavery and the trans-Atlantic Slave Trade
- Depictions of slaves and slave traders in texts and art during the Abolition Period
- Systems of slavery in tribal and traditional societies
- WWII and post-WWII forced labor camps
- Human Trafficking and other Forms of Contemporary Exploitation
- Definitions - Is human trafficking “slavery”
- Types of human trafficking (labor trafficking, sex trafficking, organ trafficking, etc.)
- Civil society anti-trafficking activism: assessing contemporary initiatives and movements
- The role of the nation state:
i. Can the nation state enslave? (prison labor, mandated military service, etc.)
ii. Anti-trafficking policies and legislation
- Systems and Structures of Enslavement and Subordination (historic and contemporary)
- Role of slavery in national and global economies
- Economic, political, legal structures – their role in enslavement and exploitation
- Slavery’s impact on culture and the cultural impacts of historic slavery
- Voices of the Enslaved
- Slave narratives of the past and present
- Descendants’ interpretation of their enslaved and/or slave-holding ancestors
- Legacies of slavery
- Identifying and mapping contemporary legacies – economic, social, cultural, psychological (e.g., Post traumatic stress disorder and intergenerational trauma)
- Assessment of slavery’s impact – economic, political, other
- Commemorations and memorialization of enslavers and/or the enslaved
- Legal regimes tacitly designed to perpetuate slavery (e.g., convict leasing)
- Legal segregation or discrimination (in housing, education, banking, transportation, etc.)
- Racial terror (e.g., lynching, forced removals)
- Racial subordination and re-enslavement (e.g., voter disfranchisement, mass incarceration, medical apartheid)
- Desecration of burial sites of the enslaved
- Destruction of or denial of access to historical information
- Lack of memorialization of sacred events/sacred persons/sacred sites
- Transitional justice (e.g., reparations, memorialization, restitution)
- Limited rights attribution and recognition for Afro-descended peoples
- Capacities (and limitations) of domestic and international law in creating, implementing and challenging slavery’s legacies
- Built environment (e.g., architecture, historic buildings, cityscapes, borders)
- Anti-slavery initiatives and movements:
- Economic compensation
- Restorative justice
- Teaching and learning about slavery
- Relationship to the global racial hierarchy
- Abolitionism and law: effects and (in)effectiveness
- The role of media and social media
· Karen E. Bravo (Indiana University Robert H. McKinney School of Law, IN, USA)
· David Bulla (Augusta University, GA, USA)
· Ursula Doyle (Northern Kentucky University School of Law, KY, USA)
· Clare McLeod (Cornell University, NY, USA)
· Judith Onwubiko (University of Kent, United Kingdom)
· Ulrich Pallua (University of Innsbruck, Austria)
· Sufinnah Singlee (University of Cape Town, South Africa)
· Sheetal Shah (Webster University, Leiden, The Netherlands)
· Polina Smiragina (University of Sydney, Australia)
· Judith Spicksley (University of Hull, United Kingdom)
Submitting Your Proposal:
Proposals should be submitted no later than Friday, March 2, 2019 to:
· Karen E. Bravo, Indiana University Robert H. McKinney School of Law: email@example.com
· E-Mail Subject Line: Slavery Past Present & Future 4 Proposal Submission
· File Format: Microsoft Word (DOC or DOCX)
The following information must be included in the body of the email:
· Affiliation as you would like it to appear in the conference program
· Corresponding author email address
The following information must be in the Microsoft Word file:
· Title of proposal
· Body of proposal (maximum of 300 words)
· Keywords (maximum of ten)
Please keep the following in mind:
· All text must be in Times New Roman 12.
· No footnotes or special formatting (bold, underline, or italicization) must be used.
Evaluating Your Proposal
All abstracts will be double-blind peer reviewed and you will be notified of the Organizing Committee’s decision no later than Friday, 15 March 2019. If a positive decision is made, you will be asked to promptly register online. You will be asked to submit a draft paper of no more than 3000 words by Friday, 03 May 2019.
The conference registration fee is U.S. $ 250. Please note that we are not in a position to provide funding to facilitate your participation.
Tuesday, December 4, 2018
Last week, I had the pleasure of being a guest on the Good Law Bad Law podcast where I addressed the broader social and political implications of the U.S. Supreme Court's ruling in Trump v. Hawaii. I spoke with Aaron Freiwald, the host of Good Law Bad Law, on how Trump's Islamophobic rhetoric during his presidential campaign informs the real intentions behind the travel ban, also known as the Muslim Ban. The podcast can be accessed on YouTube here and online here.
In my article A Muslim Registry: The Precursor to Internment?, I argued why such rhetoric, referred to as extrinsic evidence, should be reviewed in the Court's assessment of whether Trump's anti-Muslim animus motivated the travel ban.
Being political scapegoats in the indefinite ‘war on terror’ is the new normal for Muslims in America. With each federal election cycle or terrorist attack in a Western country comes a spike in Islamophobia. Candidates peddle tropes of Muslims as terrorists in campaign materials and political speeches to solicit votes. Government officials call for bold measures – extreme vetting, bans, and mass deportations – to regulate and exclude Muslim bodies from U.S. soil.
The racial subtext is that Muslims in the United States are outsiders who do not belong to the political community. A case in point is the “Muslim Ban” issued by the Trump administration in 2017. The article goes on to examine the legality of the Muslim Registry that Trump called for during his campaign, but instead opted for a partial Muslim travel ban--for now at least.
Monday, November 5, 2018
The 2011 event hosted by Palestinian rights groups, which include Jewish students, featured speeches by Nakba and Holocaust survivors. Notwithstanding a full investigation and dismissal of the case as meritless in 2014, the new head of the DOE's Office for Civil Rights, Kenneth Marcus is misusing state power to perpetuate his political agenda - to quash activism on college campuses that promote the Palestinian perspective on the contentious Israel/Palestine issue.
Arrested, expelled and accused of treason in retaliation for their political activism, students paid a high price for standing up for their beliefs.
Today, the students on the frontlines of college activism are students of colour and Jewish students who oppose the policies and practices of Israel - a nation state, not an ethnic group. As they lead a movement in defense of Palestinian human rights, student activists are bullied, blacklisted, and expelled on account of their political beliefs.
Special interest groups are pressuring universities to shut down activism when it challenges Israel's human rights record. Marcus' decision to re-open a groundless complaint against Rutgers allows these interest groups to misappropriate state power to bully the university into breaching its primary responsibility - creating an educational environment where ideas can be aired, contested, and debated openly.
By mislabeling opposition to Zionism and Israeli state practices as anti-Semitic, Israeli lobby groups accuse universities of promoting hate, not education. In turn, they call for defunding universities whose programmes, professors, or students bring to campus the viewpoints of Palestinians in Israel, the occupied territories and the diaspora.
The ultimate objective is clear - limit speech and expression to only pro-Israeli views under the guise of anti-discrimination. But not all Jews support the state of Israel's practices.
Jewish Americans, like their Arab and Muslim compatriots, hold diverse views on the Arab-Israeli conflict. Jewish Voice for Peace, for example, supports the Palestinian right to return to their homeland, believes Israel is an apartheid state, and supports the Boycott, Divestment and Sanctions (BDS) movement.
J-Street supports a two-state solution, while opposing the BDS movement, and rejects that criticism of Israeli policy threatens the state of Israel as a Jewish state including the DOE's re-opening of the case against Rutgers. If Not Now mobilises Jewish Americans to end support for the Israeli occupation of Palestinians.
In contrast, some self-proclaimed Israel lobby groups such as the Brandeis Center for Human Rights Under Law, which Kenneth Marcus headed before being appointed to lead the DOE's Office for Civil Rights, argue opposition to Zionism is a form of discrimination against Jews.
They point to the US Department of State's broad definition of anti-Semitism, which was recently adopted by the US Department of Education, which includes as anti-Semitic claims that Israel is a racist state, comparisons of Israeli policy with Nazis, and expecting more of Israel than is expected or demanded of other democratic states.
To assume all Jews are Zionists or support Israeli state policy is like assuming all Iranians and Saudi Arabians support their governments simply because the state claims to be Islamic.
Not only is this factually false, but it exceptionalises Jews as different from other religious groups - a tool historically used by real anti-Semites in Europe and the United States. If universities allow Zionist groups to pressure them into equating anti-Israeli political views with anti-Semitism, they will soon find other special nterest groups arguing it is Islamophobic to criticise state policies and practices of Saudi Arabia, Iran, Turkey and other self-described Islamic states.
Frivolous complaints will allege universities should be defunded because they discriminate against Muslims when they host programmes that explore the meaning of jihad, criticise human rights violations in Muslim majority countries, or call for US boycotting of a self-described Islamic country.
The consequence is universities as sites of censorship rather than where ideas are freely exchanged.
To be sure, Islamophobia and anti-Semitism are real problems in America. But essentialising Muslims and Jews by presuming they all support the practices of a particular Muslim-majority country or Israel, respectively, is itself Islamophobic and anti-Semitic.
If the US Department of Education is serious about combating anti-Semitism and other forms of racism in schools, our taxpayer money is better spent fostering student debate and activism; rather than quashing it through an abuse of state power.
This commentary was originally published in The New Arab.
Sahar Aziz is Professor of Law & Director of the Center for Security, Race and Rights at Rutgers Law School. She is the author of the forthcoming book The Muslim Menace: The Racialization of Religion in the Post-9/11 Era.
Follow her on Twitter: @saharazizlaw
Sunday, October 21, 2018
CALL FOR PAPERS 2019 Social Issues in Firms
5th Conference of the French Academy of Legal Studies in Business (Association Française Droit et Management) June 20 and 21, 2019 – emlyon - Paris Campus
Social issues and fundamental rights occupy an increasingly important space in the governance of today’s companies. Private enterprises assume an increasingly active role not only in a given economy but also in society as a whole. Firms become themselves citizens. They recognize and support civic engagement by the men and women who work for them. Historically, the role of the modern firm that resulted from the Industrial Revolution has been torn between two opposing viewpoints.
According to the first approach, a firm’s single function is to produce goods and services as result of a combination of productive factors (in particular capital and work). Shareholders and workers may fight to defend their own interests, in particular the distribution of profits. Paradoxically, this "classical" conception is held by capitalists and most liberal authors, who both stress that corporate profits are intended to be distributed to shareholders and that firms must be managed in the formers' interest, as well as by the mainstream theory of Marxism. The later did not expect to be able to reform an intrinsically contradictory and therefore condemned capitalist economic system, but relied on a political revolution instead. Consequently, the firm is a mere economic instrument and eventually will be subject to regulatory constraints (such as social security law, tax law, public health law, etc.), which is intended to preserve general and collective interests and is imposed by government authorities.
According to a competing viewpoint that emerged in the nineteenth century under the influence of rather heterodox economic and political currents (socialism and reformist trade unionism, social Catholicism/social doctrine of the Catholic Church, certain liberal authors, etc.), the firm assumes a more comprehensive role. Companies may become the place of a rich social, cultural, sporting, political or even spiritual life. Workers are welcome to campaign within firms, employers to assume social responsibility (also known as paternalism) and all parties (which will later be referred to as "stakeholders") to contribute to social progress. The firm is seen as a space of sociability, personal and collective development, and democratic expression. In this context, the State is only one among several actors who create the rules that govern and steer firms. Civil society, investors and social partners may legitimately take initiatives and coproduce economic and social rules, through legal instruments such as collective agreements, voluntary commitments, codes of conduct, self-regulation, etc.
More recently, the tension between the two viewpoints described above continues to exist, and in some respects, has been accentuated. Dominant liberal thought, expressed in particular in the analytical framework of micro-economic theory (agency theory, property rights approach, etc.) defends an approach where the firm is reduced to a nexus of contracts managed by executives whose mission is to run the firm in the interest of its shareholders who are described as its owners. According to this view, the social interest is reduced to the common interest of shareholders (shareholder doctrine of corporate governance). Conversely, various ideological movements (such as e.g., New Governance,, “School of Rennes”, “Second Left”, “Christian Democrats”, “Third Way”, “stakeholderism,” or Elionor Ostrom’s approach to “governance of the commons”) have challenged this vision of the firm. They suggest an institutionalist approach, where the firm constitutes foremost a collective project. The corporation exists independent from its owners. Hence, the social interest of the firm is not the sole interest of its shareholders but the common interest of a multitude of "stakeholders". The firm can strive not only to grow economically and maximize profits but also to mobilize the men and women who work for it, to defend and promote other than economic causes. Social transformation encompasses individual and collective claims as those represented in fundamental rights and liberties, which, therefore, are no longer limited to traditional social and trade union rights.
The intensity of challenges today (global warming, technological revolution, geo-political and inter-community tensions, increasing socio-economic inequalities, etc.), on the one hand, and the advancement of the rule of law in developed societies, on the other hand, currently seems to favor the second path. Hence, the question is how to respect and recognize fundamental rights within private firms and how to turn companies into a force of social change. Some legislators seem to accept the challenge, for example, by imposing a duty of vigilance on companies, or by attempting to redefine the corporate purpose.
These developments are prone to upset traditional balances and modes of operation within firms. The symposium to be held at the Conference of the French Academy of Legal Studies in Business proposes to examine challenges and manifestations of this transformation. We welcome theoretical and/or practical contributions from a wide variety of disciplinary perspectives (such as law, management sciences, ethics, or transdisciplinary contributions) and invite papers that provide insights into, but not limited to, the following topics
- The practice of fundamental rights and freedoms within firms, such as respect for privacy,
- personal data protection, freedom of expression (free speech), religious freedom, and nondiscrimination
- Due process and the principle that both parties should have a right to be heard in the corporate context
- Voluntary policies to protect minorities (e.g., persons with disabilities, ethnic minorities, etc.) or to support equality, such as equality between men and women, or equal rights of all employees regarding the right to strike
- The social and solidarity economy
- Changes in firm governance
- Corporate Social Responsibility (CSR), including CSR in the legal profession, Sociallyresponsible investment (SRI), green bonds, environmental norms and commitments, safety and well-being at work, Philanthropy (including pro bono work, corporate foundations, etc.)
- Definition or redefinition of the firm’s legal status, purpose or its functions, including the redefinition of its corporate object and emergence of mission enterprises
- Duty of vigilance
- Social dialogue and democracy in the firm
- Corporate ethics, organizational ethics and ethical governance, professional codes of ethics, ethics in business practices, in particular new technologies (such as artificial intelligence, blockchain, etc.)
- Romantic and family relationships in the workplace
- Non-financial ratings of firms and non-financial reporting
We plan on publishing the best papers presented at the symposium in a leading management science and law journal.
Abstract submission: December 20, 2018
Full text submission: March 7, 2018
Author Notification about paper acceptance: April 22, 2018
Proposals should be submitted in the form of an abstract in Word format (5,000 characters maximum accompanied by key words) and should indicate principal methodologies used, as well as the main issue addressed in the paper. Proposals may be in French or in English.
Full-text submissions must comply with the following guidelines:
The first page must indicate the name(s), institution(s) and position(s) of the author(s), and the title of the paper.
The second page should indicate only the title of the paper, an abstract in French and in English and four to five key words.
The manuscript should be in Word format, Times New Roman font size 12, A4 paper format, with 2.5 cm (one inch) margins, single-spaced, 15 pages to be sent by email to firstname.lastname@example.org
The Call for Papers can be downloaded at CallForPapersVE.pdf.
Friday, October 19, 2018
This week marks the 135th anniversary of the U.S. Supreme Court’s opinion in The Civil Rights Cases, 109 U.S. 3 (1883). While to some this is a mere historical footnote, the decision is worth remembering because it reflects the tensions at play today concerning how constitutional law can, through unrelenting formalism and a preference towards denying the salience of race, contributes to enduring structural oppression. The reasoning in The Civil Rights Cases is an object study in how to maintain white supremacy—and a mirror to our society today.
The opinion overturned the Civil Rights Act of 1875. It sought to protect recently freed African-American slaves from discrimination in the use of “inns, public conveyances on land or water, theaters, and other places of public amusement.” In striking down this nineteenth-century public accommodations law, thus allowing private businesses to deny services to African Americans because of their race, Justice Joseph P. Bradley, speaking for the 8-1 Supreme Court majority, made three arguments.
First, the Court held that the power to regulate individuals and corporations fell to the states, not the federal government. Second, to the extent Congress passed the Act under its Fourteenth Amendment authority, the Court held that the Fourteenth Amendment was limited to regulating actions by states and not private actors (a doctrine that still holds today). Finally, the Court interpreted the Thirteenth Amendment, meant to remedy the badges and incidents of slavery, as only allowing Congress to abolish denials of legal rights extending from past slavery.
The Court’s underlying rationale is truly telling: accommodation of ex-slaves in present commerce is irrelevant to past slavery and the Thirteenth Amendment. African Americans complaining of such discrimination should seek state remedies or federal remedies to the extent Congress wishes to make them. This may be true as far as it goes, and by this time we already knew that the ex-Confederate states and their agents had not been aggressive in pursuing remedies for discrimination—the reason for the 1875 law. And we also know that after this act was struck down, Congress passed no other civil rights legislation for over eighty years.
Indeed, the Court denies the possibility that racism may be tied to the caste system that slavery created. Bradley claimed that to treat discrimination in public accommodations as related to bias arising from slavery is to take “the slavery argument” too far:
It would be running the slavery argument into the ground to make it apply to every act of discrimination which a person may see fit to make as to the guests he will entertain, or as to the people he will take into his coach or cab or car, or admit to his concert or theater, or deal within in other matters of intercourse or business.
This is the kind of slippery-slope argumentation that willingly denies the past of slavery and the (obvious) interconnections between white racism, racial caste, and its more immediate outcomes.
This was done despite the dissent of Justice John Marshall Harlan, who warned that without the intervention of Congress and a more fulsome interpretation of the Reconstruction Amendments, African American citizens will not be able to “take the rank of citizen” rather than subordinated class. One hundred thirty-five years later, and it is this same battle that we fight today. As Harlan put it—and it is worth reading his argument in detail:
The difficulty has been to compel a recognition of their [African American’s] legal right to take that rank [of citizen], and to secure the enjoyment of privileges belonging, under the law, to them as a component part of the people for whose welfare and happiness government is ordained. At every step in this direction the nation has been confronted with class tyranny, which a contemporary English historian says is, of all tyrannies, the most intolerable, ‘for it is ubiquitous in its operation, and weighs, perhaps, most heavily on those whose obscurity or distance would withdraw them from the notice of a single despot.’ Today it is the colored race which is denied, by corporations and individuals wielding public authority, rights fundamental in their freedom and citizenship. At some future time it may be some other race that will fall under the ban. If the constitutional amendments be enforced [as Harlan believed they were meant to be enforced—to end racial discrimination in civil rights based on race or previous servitude] . . . there cannot be, in this republic, any class of human beings in practical subjection to another class, with power in the later to dole out to the former just such privileges as they may choose to grant.
In other words, this class tyranny betrays the values of the Constitution by interfering with the goal of Reconstruction – equality of all citizens. Class tyranny in 1883 was the weapon of those who sought to oppress on the basis of race. Class tyranny intersects with racial tyranny and can target multiple groups over time. Such class tyranny in the service of white supremacy is itself antidemocratic and against the vision of the reconstructed Constitution. And the decision narrowing the power of the national government to stand against such tyranny under the guise of narrow formalism will allow such tyranny to flourish and reinvent itself.
What of these themes do we see in 2018?
We have seen the Roberts Court deny the possibility that the larger harms of voter suppression may be tied to the historical motivations and past racially discriminatory practices of state governments. In Shelby County v. Holder, the Court relies on the claim that “the South has changed” to justify nullifying Congress’s judgment that Section 5 of the Voting Rights Act ought to be used to continue to supervise the recalcitrant ex-Confederate states in their voting practices.
We see the Court once again relying on manufactured formalism to justify hard lines between state authority and federal authority to supervise voting, immigration, education, and other racial (as well as gendered, class-based, and sexual preference-based) fault lines; and states have taken this opportunity to institute disenfranchising and discriminating practices in this space. We have seen commentators, legislatures, and judges argue that talking about race in and of itself is divisive, and that aspirations towards post-racialism should silence debate around race despite the racist actions that daily remind us about its enduring salience and power.
This post-racialism argument is the modern-day version of the “running the slavery argument into the ground.” The holders of these views (on the right and on the left) decontextualize discrimination, rely on admitted intent rather than see discriminatory actions in and through context, and rest comfortably within deep denial about how subornationist structures still dominate our society.
We can see these things in The Civil Rights Cases. It is a mirror to our 2018 society. This opinion reflects the structures and habits of mind bent towards continued white supremacy today.
(First published at atibaellis.com)
Monday, October 8, 2018
Why Research on Sexual Violence & Toxic Masculinity Supports Kavanaugh's Accusers (Nancy Chi Cantalupo)
No “Farce”: Why Research on Sexual Violence & Toxic Masculinity Supports Kavanaugh’s Accusers
By Nancy Chi Cantalupo
In 1985, just a few years after the sexual assaults alleged by Dr. Christine Blasey Ford, Deborah Ramirez, and Julie Swetnick, the Washington Post published an article entitled, “Campus Gang-Rape Report.” In it, Dr. Bernice Sandler, known commonly as the “Godmother of Title IX,” discusses how, just from traveling to college campuses for her work with the Project on the Status and Education of Women for the Association of American Colleges, “without too much trouble, I gathered a list of about 50 of them where this had happened.”
In 1990, University of Pennsylvania anthropologist, Peggy Reeves Sanday, published Fraternity Gang Rape: Sex, Brotherhood & Privilege on Campus, which meticulously and nauseatingly details the 1980s campus party culture and the fraternity control of that culture, on diverse campuses throughout the United States. In 1998, Bernard Lefkowitz published Our Guys: the Glenridge Rape & the Secret Life of the Perfect Suburb, a comprehensive study of four high school athletes’ gang-rape of a younger girl with intellectual and developmental disabilities in 1989.
My own research gathers insights not only from these studies, but more recent works like Dr. Michael Kimmel’s Guyland and journalistic accounts of sexual violence directed at girls and boys, young women and young men in both college and high schools. Although researchers like Drs. Sandler and Sanday focused on campus party culture, journalistic accounts show a very similar party culture at prep schools and among other privileged groups of teenage boys throughout the 1980s and beyond. In particular, it seems like competitions where high school boys sexually assault high school (and sometimes middle and elementary school) girls to “score” “points” with the other boys in the group come to light every decade.
After the documented commonness of gang rape in the 1980s, there was the Spur Posse in the 1990s, the Landon School (a big competitor to Kavanaugh’s alma mater, Georgetown Prep) “slampigs” contest in the 2000s, and, in this decade, St. Paul’s School’s “senior salutes.” And no one who follows the Title IX civil rights movement will forget the viral youtube footage of Brett Kavanaugh’s fraternity at Yale, DKE, marching around the campus Women’s Center chanting “No Means Yes! Yes Means Anal!”
Dr. Christine Blasey Ford, Deborah Ramirez, and Julie Swetnick’s accounts of being assaulted by Brett Kavanaugh or while Kavanaugh was present are completely consistent with the rape culture among highly-privileged high school boys and college men who belong to the kind of all-male groups to which Kavanaugh has belonged throughout his life. In his September 27th testimony, Kavanaugh dismissed these accounts, particularly Julie Swetnick’s, as a “farce.” Far from a farce, the culture of toxic masculinity and sexual violence in which Dr. Christine Blasey Ford, Deborah Ramirez, and Julie Swetnick’s accounts place Brett Kavanaugh has been well-documented by social scientists and journalists. Indeed the accounts of all three accusers could appear as case studies in this research.
The “farce” is the expectation that, in the era of #MeToo, people will just forget about all of this evidence.
Time’s Up on that, too!
Thursday, October 4, 2018
Law professors are not known for their activism. Many prefer to sit in a quiet office delving into opaque topics of law and write law review articles that few members of the public read. Some present in forums for the general public, though most prefer the wonky legal academic conferences where the audience is comprised mostly of other law professors and some law students. Focus on process and deliberation results in events and publications being planned over the course of months, if not years.
Hence, when over 2400 (and counting) law professors from all over the country sign a letter opposing Senate confirmation of Judge Kavanaugh to the U.S. Supreme Court, loud alarms are going off from within the legal academy. Only grave reservations about the Supreme Court's legitimacy could cause such a rare outcry.
That such a large number of professors from across the country were moved within a matter of days to sign a single letter is no small feat. These legal scholars and trainers of the next generation of judges, lawyers, and leaders are clearly shaken by Judge Kavanaugh's behavior last week before the Senate. They worry he "exhibited a lack of commitment to judicious inquiry," "was repeatedly aggressive with questioners," and responded to Senators' questions "in an intemperate, inflammatory, and partial manner, as he interrupted and, at times, was discourteous to senators." And he was especially disrespectful of the female senators.
More than anyone, law professors have a deep appreciation for the importance of judicial temperament of a Supreme Court Justice whose vote affects the lives, liberty, and property of hundreds of millions of Americans. For the sake of preserving the legitimacy of the U.S. Supreme Court, let's hope the Senators realize the momentous significance of this collective action.
The full text of the letter is available here and below.
Judicial temperament is one of the most important qualities of a judge. As the Congressional Research Service explains, a judge requires “a personality that is even-handed, unbiased, impartial, courteous yet firm, and dedicated to a process, not a result.” The concern for judicial temperament dates back to our founding; in Federalist 78, titled “Judges as Guardians of the Constitution,” Alexander Hamilton expressed the need for “the integrity and moderation of the judiciary.”
We are law professors who teach, research and write about the judicial institutions of this country. Many of us appear in state and federal court, and our work means that we will continue to do so, including before the United States Supreme Court. We regret that we feel compelled to write to you, our Senators, to provide our views that at the Senate hearings on Sept. 27, Judge Brett Kavanaugh displayed a lack of judicial temperament that would be disqualifying for any court, and certainly for elevation to the highest court of this land.
The question at issue was of course painful for anyone. But Judge Kavanaugh exhibited a lack of commitment to judicious inquiry. Instead of being open to the necessary search for accuracy, Judge Kavanaugh was repeatedly aggressive with questioners. Even in his prepared remarks, Judge Kavanaugh described the hearing as partisan, referring to it as “a calculated and orchestrated political hit,” rather than acknowledging the need for the Senate, faced with new information, to try to understand what had transpired. Instead of trying to sort out with reason and care the allegations that were raised, Judge Kavanaugh responded in an intemperate, inflammatory and partial manner, as he interrupted and, at times, was discourteous to senators.
As you know, under two statutes governing bias and recusal, judges must step aside if they are at risk of being perceived as or of being unfair. As Congress has previously put it, a judge or justice “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” These statutes are part of a myriad of legal commitments to the impartiality of the judiciary, which is the cornerstone of the courts.
We have differing views about the other qualifications of Judge Kavanaugh. But we are united, as professors of law and scholars of judicial institutions, in believing that he did not display the impartiality and judicial temperament requisite to sit on the highest court of our land.
Saturday, September 15, 2018
The more I take on the responsibility to lead diverse groups, the more I am aware of the importance of perceptions, symbols and subtleties, and the more I am skeptical of abstract rules. We often fail to communicate what we intend, without fault. I see these mishaps begin the moment we greet a person.
When I started my first job as a law professor, I was 27 years old. I had moved from California to Washington, D.C. to join the faculty of Howard University. I was determined to demonstrate my commitment to equality through informality: I asked students to call me by my first name, “Frank.”
I had not anticipated that at the leading historically black college/university (HBCU), with heavy enrollment from the Deep South, some — many but not all — students were uncomfortable using my first name, while a few presumed a relationship that we did not have. My attempt to be casual did not put people at ease. They defaulted toward formality.
The more I insisted that they were not obligated to address me with any honorifics, the more anxious those in the former category became. They had a sense of propriety that would have impressed my Asian immigrant parents. Their practices were reassuring to them in familiarity.
They were accustomed to saying, “Sir,” with resolute sincerity rather than the typical sarcasm, and they resorted to the colloquial formulation of “Mr. Frank.” If forced to do so, which would be wrong on my part, someone with this tendency would explain that due to their upbringing they simply felt it inappropriate to refer to me as “Frank.” For our purposes, my first name was “Professor,” and theirs was “Mr.” or “Ms.,” or, now and then by request, “Mrs.”
Ironically, my effort to be egalitarian produced the opposite effect. There was a noticeable inequity between those who treated me as more distinguished than I deserved, and those who enjoyed a false sense that we were peers. If that were the case, there would be no reason for me to stand behind the podium delivering a lecture.
I concluded that I was the one who needed to adapt. I was there for the students, not vice versa. I came to understand their expression of respect. It comes from a complex cultural history, associated with more than oppression. Generations ago, an African American who was in domestic service might also be a deacon of a leading church, so the substitution of a single word might take on more significance because of that dichotomy of statuses. I am not surprised that a training program for African American male teachers has been set up as “Call Me Mister.” (Recall the famous line, “They call me Mr. Tibbs” from the classic movie In the Heat of the Night, starring Sidney Poitier.) Sociolinguists describe, I hope with due regard, these locutions as “hypercorrection.”
As I gained experience elsewhere, I realized my decision should be extended beyond a predominantly black classroom. Independent individuals may assert that they do not display deference to anyone, but their behavior suggests otherwise. Hierarchy is difficult to eliminate. Equality along one axis (teacher to student) generated inequality along another axis (student to student). (Others have noticed similar patterns in how journalists refer to professional athletes.)
The inequality among students correlated to race and gender. The students who were most privileged were those who presupposed we were on a first-name basis even without an invitation in that regard. On some campuses, the students seemed to assume a superiority to their teachers — or at least some of them; my African American female colleagues who are at elite, overwhelmingly white institutions would vouch for me about this problem. I cheer them for taking to task those who would omit “Dr.” when asking a question. They earned that degree their interlocutors might never hold.
I admire the convention at St. John’s College. The Great Books school located in both Annapolis and Santa Fe relies on seminar discussions, embracing what might seem quaint to some nowadays, learning for it’s own sake. The faculty, who are denominated “tutors,” and their students alike use “Mr.” and “Ms.”
It turns out I am no different. As far as I am concerned, my parents lack first names; I am baffled at the notion of youngsters being on a first name basis with their forebears. My father’s first name is “Dad.” I have worked with judges, members of Congress, generals, ambassadors and others with high ranks preceding their given name and various initials following their family name. I have felt gratitude when they regard me as a friend, but I generally cannot bring myself to use their first name if I met them in a professional setting. Even those whom I knew before their appointment or election, whom I have witnessed in less dignified moments, I feel I owe the courtesy of acknowledging their achievement.
These protocols may be as warm as they are cold. It depends on context and other cues. Standing when someone else enters the room, making direct eye contact — these are rituals and signals that are well-established but culturally normed.
My own home is an example. I have always wanted to speak to my wife as “Ms. Izumi.”
She has multiple names. Her Christian name is “Carol.” That is what appears on her business card. Her nickname is “Debbie”: it is an Anglicized shortening of the Japanese word for “fat baby,” which is what her older sister called her when she was a newborn (they are sansei, third-generation Japanese Americans). As she is able to joke, being petite and svelte as an adult, her extended family all know her by the equivalent of “fatso.” A feminist, she has not taken my last name, since “Mrs. Wu” was my late mother. But with some local businesses, such as the dry cleaner, it is convenient for us if our household shares the same name. (Bebe our dog has my last name, but Walter the bird has her last name.)
To be an Anglophile is a cliche of assimilation, no doubt. For those who would have been inferiors in the Empire, the affectation of mimicking its etiquette can only be self-conscious appropriation — with the humor that claims equality at last. I am not sure when it ceased to be common, but my wife’s English period dramas depict spouses using “Mr.” and “Mrs.” with one another. My sister-in-law, who in fact is from London, disdains our preposterous notions from watching altogether too much BBC.
When Carol/Debbie and I saw the last film adaptation of Jane Austen’s Pride & Prejudice, starring Donald Sutherland and Brenda Blethyn as the parents of Lizzie (played by Keira Knightley) and her unruly sisters, I noted that the elders refer to one another as “Mrs. Bennett” and “Mr. Bennett.” As we exited the theatre, I said to her, “Why don’t we do that.”
So now when my wife wants my attention, she uses a term of endearment: “Excuse me, Mr. Bennett.”
PS This semester, I asked students in my class if they wanted to call me "Frank." I told them I was amenable, if they all agreed. They voted against.
This blog originally appeared at Huffington Post.
Thursday, September 13, 2018
A large part of my research involves studying authoritarianism in the Middle East context. However, the Trump administration's policies and rhetoric over the past eighteen months in the United States have piqued my interest in the degree to which the United States is affected by authoritarianism from within.
As a starting point in this analysis, I compare the counterterrorism practices of the United States with Egypt to explore how signature practices of authoritarian states arisen due to coordination between the U.S. and Middle East authoritarian states. This is the topic of my forthcoming article in the Washington & Lee Law Review entitled "The Authoritarianization of U.S. Counterterrorism."
Here is the abstract of the paper, which can be downloaded here.
More than seventeen years since the “War on Terror” began, the United States has failed to recognize how its authoritarian allies, rather than its adversaries, have defined its counterterrorism practices. Western democracies have adopted signature practices of authoritarian regimes. Torture, secret renditions to black sites, indefinite detention, mass surveillance, targeted killings, selective anti-terrorism enforcement against dissidents and minorities, criminalization of political beliefs, and decreased due process rights are among the counterterrorism practices found in both the United States and their Middle East allies, albeit in varying degrees.
Human rights are de-coupled from security, or worse, treated as an impediment to preserving national security. Although the balance between security and liberty has been the topic of lively debate since 9/11, I proffer that the impetus behind rights violations is not limited to perennial tensions between security and liberty in times of war. Increased international coordination in counterterrorism between authoritarian regimes and liberal democracies also adversely affects human rights.
As terrorism crosses borders with ease, transnational counterterrorism has become a necessity. International organizations and states coordinate preventing terrorism, identifying and apprehending known terrorists, and prosecuting terrorism suspects between nations. One consequence of such coordination is the normalization of illiberal counterterrorism norms and practices common among democratic nations.
While coordinated counterterrorism is warranted to combat transnational terrorists, the current rights subordinating approach is counterproductive. Western governments that engage in or directly support rights-infringing practices ultimately aid terrorists as they proclaim themselves legitimate defenders against transnational state violence. Aggressive state measures trigger backlash attacks as new grievances arise; thereby feeding a cycle of state and non-state violence at the expense of civilian lives. The challenge for Western democratic nations is to avoid a race to the bottom in their counterterrorism coordination with authoritarian regimes.
The full article can be downloaded here.
Wednesday, September 5, 2018
With the beginning of the new law school year, I have found myself rethinking the literature I use for classes and research. This has led me to encounter new, interesting—and, I think, broadly helpful—books and resources that can further my teaching and research.
In this sprit, and in the spirit of this blog’s efforts to advance scholarship in Critical Race Theory, Race and the Law, and related fields, I want to occasionally share “Good Reads” that may help readers of this blog in advocacy, scholarship, and/or teaching.
In this qualitative study, Dr. Jackson critiques Richard Sander’s (in)famous mismatch critique of affirmative action. Critiques of Sander are nothing new, but Jackson’s core (and I think novel) approach is rooted in a straightforward and powerful question:
"What can the experiences and voices of African American male former law school students reveal about race and how it functions in law schools?”
Jackson aptly observes that this question was left out entirely of Sander’s mismatch analysis, and thus he effectively critiques Sander and recognizes a gap in the voluminous literature that attacks the mismatch argument.
Jackson then uses narratives based on interviews of law school students, alumni, and faculty; Critical Race Theory; and other threads of his own research on race in higher education to argue for an alternative framework. His frame is based on demonstrating the reality of struggles of African Americans in law school as well as illustrating the wholistic nature of African American progress in law school—which leads Jackson to offer a lens on the question of understanding African American progress in higher education premised on inclusion in contrast to Sander’s frame of exclusion. Ultimately, Jackson argues that the more appropriate approach to understanding genuine African American progress in law schools is to look at the wholistic development process for historically marginalized students, what Jackson calls his “Process of Progress” heuristic.
Jackson’s book in its grounding in the voices and experiences of African American men offers an important contribution to the ongoing affirmative action debates. Rather than be mired in abstraction, Jackson’s effort seeks to be concrete about the realities of race in law school and to articulate how inclusive practices can nonetheless overcome those negative forces and dispel the mismatch myth (and the stereotyping assumptions behind it). Jackson’s insights would be of use for courses regarding race and the law, education law, and related courses as well as for advocates and professionals who are working on issues of inclusion in law school and the legal profession.
Monday, August 13, 2018
I have started to collect racist ephemera — specifically directed toward Asian immigrants and their American descendants. I mean artifacts in paper such as pamphlets suggesting that Asiatic hordes would invade and take over, posters promoting the Chinese Exclusion Act and the Japanese American internment, documents containing ethnic slurs (“chink,” “jap,” “gook,” “Chinaman,” “nip,” “slant-eye” and so on), and advertising featuring caricatured images. I would like to frame this propaganda and hang it. Since almost all Asian Americans whom I know, among others, have objected to this endeavor, I would like to explain the point of the project.
My purpose is to provoke. I would like to disrupt our shared comfort. The greater the upset caused by references to the past, the more intense the urge toward action for the future. Memorabilia should be saved for many reasons, and not all of it needs to inspire nostalgia for the past.
My idea comes from a story I read some time back about African Americans who have a similar hobby. It turns out there exist a few, not many but not none, African Americans who search out articles such as lawn jockeys and then display them. (Although the genealogy of the lawn jockey is disputed, the bulk of contemporary opinion deems this piece of Americana to be derogatory toward blacks.)
A colleague of mine who is Caucasian and a librarian (thus in the profession of accumulating objects) said to me she thought a person with this type of mania would appear to be very angry. My sense is just the opposite: just as people who buy a book feel they have acquired its content even if they have not in fact read the pages, a person who possesses racist art gains control over it. The idol loses its power.
As an amateur student of history, as we all are at least as to our own lives, I would like prove the past was what it was. Many people, including Asian Americans themselves, deny that Asians in American, whether new arrivals or native born, now face or for that matter have ever faced significant discrimination rooted in bigotry. They suppose “politically correct” complaints refer to only the expected adjustment that all newcomers have had to make, learning different cultural patterns, nothing more. Asian Americans are too proud to acknowledge once having been victims before becoming successful.
Hardly anybody recalls, for example, the glib xenophobia of Ogden Nash, the best-selling author of light verse (only his accompaniment to Saint-Saens’s Carnival of Animalsorchestral suite is recited nowadays), or Dr. Seuss, the perennial favorite among children’s authors, of The Cat in the Hat and Green Eggs and Ham. They have been whitewashed. Nash described “the Japanese” as “how courteous” as he “grins and bows a friendly bow; so sorry, this is my garden now.” Seuss supposedly wrote Horton Hears a Who as an apology of sorts for his earlier anti-Japanese graphics (not archived within Seussville).
The few items I have purchased — a union membership booklet with rules prohibiting the patronage of Chinese or Japanese businesses, with signed cards for attendance at meetings, and sheet music with lyrics of mock sing-song broken English — make an argument more effectively than I ever could advance explicitly. Too rare for my means are the perfect specimens extant: political flyers that directly assert California confronts a choice whether to be reserved for white Christians, against a background depicting the horror of heathen Orientals. The talismans of racism constitute convincing proof.
The hatred of Asians was open, overt, hardcore, egregious, and unembarrassed. And it was racial. It was not simply directed at anybody coming to these shores, since some of its advocates themselves also were foreigners. Nor was it about assimilation. The demand that Asians conform to the majority was accompanied by the declaration that it would be impossible for them to do so; they remained untrustworthy, inscrutable.
I wince whenever someone who intends to be progressive declares that she has a problem with a work of art, because she deems it offensive. So much art is (or was in its own era) transgressive. Attraction and repulsion are bound together.
Those of us who care about civil rights harm our cause by implying that social justice is merely etiquette. It reduces the issue from substance to appearance. What is wrong is equated with what is ugly, and vice versa. Universal principles are overwhelmed by subjective opinions.
Our opponents, after all, take advantage of the same rhetoric. The Nazis judged modernism to be degenerate. (My own aesthetics would not surprise anyone: I am impressed by painters such as Chaim Soutine, who produced garish canvasses of beef carcasses hanging in the butcher’s storeroom.)
These perceptions extend beyond tastes. Haters can claim to be offended by interracial couples holding hands. If the test were simply whether an individual has her feelings hurt, and no doubt the observer shocked by love transcending color is genuinely agitated, then their aversion about the effrontery of the act they have witnessed is not subject to refutation. Emotions cannot be denied, because they are by definition beyond reason. If creativity is judged by whether it has avoided giving offense, the racists’ sensibilities deserve equal respect to Susan Sontag’s essays.
There are risks to reappropriation. Irony is easily misinterpreted. A contemporary print I have purchased, by Roger Shimomura, shows two couples in a Pop Art style. In “Mix and Match,” the Caucasian male and Asian female are portrayed as romantic and ideal; the Asian male and Caucasian female are portrayed as disgusting and distressed, respectively.
I am not alone in my enthusiasm. A few years ago, John Kuo Wei Tchen, a professor at New York University, curated an exhibition of this material. Now he, with co-author Dylan Yeats, has published a book entitled Yellow Peril: An Archive of Anti-Asian Fear. They offer details on the exclusive nature of Manifest Destiny. The new world of the nineteenth century drove toward the Pacific but stopped by protecting our side.
Yet our anxieties recur. The concerns about the decline of the West, and the rise of the East, have become acute again. There is another possibility. The differences could cease to be meaningful, as civilizations come together.
The demagogues predicted miscegenation would become the norm. They were right. We could embrace the prospect.
This blog originally appeared at HuffPo.
Tuesday, August 7, 2018
In standing up and speaking out for racial justice, we ought to advance the best argument. That is not necessarily what we suppose it is, especially taking into account the audience we would like to bring around. In a law school seminar, I just worked through the example of the internment of Japanese Americans during World War II. This episode demonstrates how, in the law, the reasoning is as important as the result. It could not be more relevant.
I am philosophical because I am practical. As a professor, I am committed, with a passion, to what will be useful to students; I am regarded by colleagues as woefully anti-theoretical. Yet I try to point out how what appears to be abstract has potential utility to advocates. That also is true of what might be dismissed as obscure, since in our system of jurisprudence decisions depend on the following of precedent. The internment continues to be controversial. It is cited positively and negatively.
In teaching the four Supreme Court cases that allowed the mass violation of due process, but technically did not approve of the incarceration of individuals conceded to be loyal, I have emphasized that it is not enough to criticize the government actions as “racist.” Although we might agree now that they were motivated by prejudice, they were supported by virtually everyone then — including future Chief Justice Earl Warren, who undid Jim Crow racial segregation in the 1954 case of Brown v. Board of Education; the national ACLU, which liked FDR; and Chinese Americans and Korean Americans, who wore buttons and put up signs declaring their ethnicity (emphatically not Japanese) and stating, “I hate the Japs more than you do.” To be persuasive, either then or now, we have to be able to explain how the assumptions about Japanese Americans, based on their lineage, were wrong as a factual question and why they were wrong as a moral issue as well. It can be done.
Make no mistake. I am as much against the incarceration as possible, having co-written a textbook on the subject funded by the same bill that paid redress (and, I hasten to add, I am signed up to fight any variation imposed on another community). None but my students would suspect me of siding with those who would lock up people for the color of their skin, and I cheer them for their commitment. I would be remiss, however, if I failed to show them that in being against something, you should be for something. In this context, you must articulate a basis for denouncing the internment other than your own preference even if I happen to concur. You might deliberately refrain from the charge of “racism,” anticipating it will be futile. You could select a strategy that looks universal, as if the internment implicates others who would attract more sympathy, a course that has proven successful.
The choice of rationale for rejecting the internment affects the evaluation of contemporary proposals that similarly rely on an inference about background, in assessing the risks of espionage, sabotage, treason, and other treachery. Competing philosophies enter here. In the Western tradition of normative ethics, there are two rival schools of thought: deontological and consequentialist. You could object to the internment within either framework, but they might direct you to alternative conclusions in other situations. Constitutional interpretation has extended these concepts. There have been Justices who have insisted the text offers no opening to consider consequences, and those who have insisted the contrary.
“Deontological” refers to principles of duty. A deontological judge would have, above all, a sense of obligations. You do this, you don’t do that. These are rules that set responsibilities. They might admit exceptions. But if the rule applies, and the exception hasn’t arisen, then it is strict. There is no “if,” “and,” or “but” about the matter. With the internment, you could take the position that generalizing from categories of race or ethnicity is impermissible. If that is accepted as the rule, then consistency would demand that any other state action similarly would be prohibited. (That would include remedial programs or those intended to produce diversity, if they were not neutral in their method.)
“Consequentialist” refers to balancing of effects. A consequentialist judge is utilitarian in assessing benefits and costs. You do this, if it generates an outcome on the whole favorable; you don’t do it if it doesn’t. You are amenable to compromise. With the internment, you could take the position that in this instance the generalization is inaccurate. It is over inclusive of innocent persons with Japanese ancestry and under inclusive of guilty persons of all other heritages. Or it brings about additional repercussions that are harmful, such as curtailing contributions from Japanese Americans who could assist the war effort through special skills. That attitude would not commit you to oppose everything else that resembled the internment. It would compel you to analyze empirical data.
In my own experience such as it is, people equivocate. All of us are a bit “deontological” and a bit “consequentialist.” It tends to be more of the former as we look at others, whose behavior who frown upon; more of the latter as we reflect on ourselves, for whom an excuse serves to vindicate. Such is human nature. I am dissuaded from the deontological severity of Immanuel Kant, by the hypothetical of the Nazi who comes to the door to ask if you are hiding Jews in the cellar. I would lie. I would have no compunction. I am reluctant to endorse consequentialism that is pure in calculation per John Stuart Mill, for it lacks protections against itself. It would limit an internment only if it were irrational. Too much that is tragic has been carried out by objective measurement.
This blog originally appeared on Huffington Post.
Wednesday, July 11, 2018
I recently came across a new study by doctoral student Lindsey Disney exploring the question of whether a person's Christian affiliation was correlated with her othering and humanitarian attitude, including toward Muslims.
The findings are troubling and warrant further exploration. Disney found that "participants who reported that Muslims are incompatible with Western ways were nearly 1.4 times more likely to identify as Christian."
Below is the abstract to her paper, which you can find here.
Associations Between Humanitarianism, Othering, and Religious Affiliation
-- Lindsey Disney, Social Work & Christianity. Vol. 44 Issue 3, p 60-74 (Fall 2017)
"The Christian church in the U.S. has historically played the roles of both advocator and oppressor of the disenfranchised. Christian views on advocacy, justice, social welfare, and social services are often intertwined with the mainstream opinions of the time. Yet, some groups of Christians have also been at the forefront of human rights movements, convicted by their religious beliefs. Currently, in the wake of 9/11, mass migration, and the rise of populism in the U.S., there is a collective anxiety in the U.S. against immigrants, refugees, and Muslims.
Attitudes of othering--"us versus them"--have targeted these internationally vulnerable groups. This study examined whether othering attitudes and humanitarian attitudes could predict Christian religious affiliation, using the 2012 Chicago Council Survey on American Public Opinion and Foreign Policy, a representative national sample of adults (N = 1702). Logistic regression analysis examined the relationships between othering attitudes (belief that the U.S. is inherently greater than other nations and attitudes towards immigrants, refugees, and Muslims), humanitarian attitudes (importance of defending and promoting human rights and combatting world hunger), and religious affiliation (Christian or Non-Christian).
Results showed humanitarian variables were not significant predictors of religious affiliation. However, othering variables were significant predictors of religious affiliation. This study offers insight into the increased need to address the subtle discrimination that may be negatively affecting Christian community engagement with disenfranchised immigrant, refugee, and Muslim groups."
-- Read the full article here.
Sunday, July 8, 2018
Do We Still Need Constitutional “Equal Protection” in a Growing Multiracial World? Reflections on the the 150th Anniversary of the 14th Amendment -- Guest Post by Tanya Kateri Hernandez
July 9th, marks the 150th anniversary of the ratification of the 14th Amendment’s equality principle of the U.S. Constitution. Does the pursuit of racial equality look different 150 years after the ratification of the 14th Amendment’s equality principle in today’s growing multiracial world? In 2010, 9 million people constituting 2.9 percent of the population selected two or more races on the census. The Census Bureau projects that the self-identified multiracial population will triple by 2060. Yet, in my own exhaustive review of discrimination cases in a variety of contexts like the workplace, educational settings, housing rentals, access to public accommodations, jury service, and the criminal justices system, the cases demonstrate that racially-mixed persons continue to experience discrimination today.While it is certainly true, that we have come a very long way from the 14th Amendment case of Plessy v. Ferguson, where in 1896 the Supreme Court decided that the constitutional equality principle was not violated by state mandated “whites only” railway cars, and that the racially mixed Louisiana resident Homer Plessy thus had no right to ride in the “whites only” car despite being “seven-eighths” white himself. Our nation has also failed to live up to the 14th Amendment promise of Brown v. Board of Education’s 1954 commitment to dismantle racially segregated public schools like those originally litigated in Kansas, and Loving v. Virginia’s 14th Amendment mandate against “measures designed to maintain White Supremacy,” such as Virginia’s then statutory prohibition against interracial marriage.
In gathering stories of how mixed-race people experience racial discrimination today, it was disheartening to find that not only is racial discrimination still rampant, but that it affects mixed-race people in a similar fashion to other non-whites. Even the criminal justice system, which has been notorious in its focus on the black body as inherently criminal, similarly targets mixed-race persons for heightened scrutiny in public spaces. Nor does the racial harassment stop when multiracial persons are incarcerated.
One recent 14th Amendment racial discrimination case is quite illustrative. When J.R., a multiracial inmate of African descent at the Five Points Correctional Facility in Romulus, New York applied for employment in a section of the prison outside of his cell block, he was denied without cause. No other inmate was restricted to employment in his cell block, and when J.R. contested the denial of employment a Correctional Officer stated “you’re not going anywhere unless I say so, and I say no . . .your black right . . . oh you’re a mixed race mutt black.” Thereafter, J.R. was assigned to a lawns and grounds position within his cell block area and denied the opportunity offered to others of being placed on a waiting list for employment outside of his cell block area. When J.R. filed an internal grievance, another Correctional Officer issued a disciplinary report and he was placed into 90 days of solitary confinement.
The 14th Amendment mandates the disestablishment of the ideology of racism by prohibiting the government from any act to “deny any person the equal protection of the laws.” J.R.’s experience strongly suggests that racial mixture does not shield one from racial discrimination, nor does it transform the manner in which the systemic exclusion occurs. Unfortunately, J.R.’s experience is not unique, and like the vast majority of multiracial stories of discrimination they involve a continued hostility towards non-whiteness in any form or mixture. 150 years after the 14th Amendment’s ratification, the multiracial discrimination cases highlight the continued need for attention to white supremacy and for fortifying the focus of civil rights law on racial privilege and the lingering legacy of bias against non-whites. Our current climate needs such clarity now more than ever.
Tanya Katerí Hernández is the Archibald R. Murray Professor of Law and an Associate Director of the Fordham University School of Law Center on Race, Law and Justice. She is the author of “Multiracials and Civil Rights: Mixed-Race Stories of Discrimination.” Contact her @ProfessorTKH.
Friday, July 6, 2018
The 5-4 decision sent a clear message to current and future presidents: So long as you use facially neutral language and invoke national security, we will not stop you from discriminating based on race, religion, or national origin in immigration enforcement.
This is music to the ears of a president who energizes his right-wing base through divisive anti-Muslim and anti-immigrant discourse.
Indeed, Justice Sotomayor's stinging dissent highlighted Trump's multiple anti-Muslim statements to show the executive order had little to do with national security.
On the contrary, Trump's travel ban on tens of millions of Muslims was precisely what he proclaimed when he issued it seven days after taking office, keeping a campaign promise to his right wing Islamophobic base. As early as December 2015, Trump reassured his supporters that if elected president he would support "a total and complete shutdown of Muslims entering the United States," because "there is great hatred towards Americans by large segments of the Muslim population." The statement remained on his campaign website until May 2017, four months after he issued the travel ban.
When pressed by a journalist in December 2015 on the legality of his proposal, Trump boldly pointed to President Roosevelt's internment of Japanese Americans during World War II as setting the precedent for his intended actions.
Throughout his campaign in 2016, Trump communicated his distrust of Muslims, association of Islam with terrorism, and intent on doing something about it should he be elected president. That his first executive order exempted Christian refugees further evinced he was targeting Muslims.
With such clear and convincing evidence of animus towards Islam, the Court could have easily applied the strict scrutiny test; thereby requiring the government to prove barring tens of millions of citizens from five Muslim majority countries (originally seven in the first version of the travel ban) was narrowly tailored to protect national security.
But instead, the Court upheld the ban because it "can be reasonably understood to result from a justification independent of unconstitutional ground". To put it simply, the Court was willfully blind to Trump's intent to unlawfully disfavour a religion.
This begs the question why America's highest court would approve such overt religious animus by a president who proudly wears it as a badge of patriotism. The answer lies in either cowardice or bias, neither of which bodes well for the Court's standing, while over half the public disapprove of a Muslim ban.
Afraid to take a stand in defense of the constitution at a time when the country is highly polarised, the Court hid behind the doctrine of plenary power - as it did in Korematsu, leading to the internment of hundreds of thousands of Japanese nationals and Japanese Americans.
It took decades for Americans to discover the purported national security justifications were a farce because the presiding Court declined to examine the facts.
Travel ban 3.0 still doesn't conceal Trump's anti-Muslim bias
In the case of the travel ban, the Court may have eschewed the facts due to some Justices' internalisation of pervasive stereotypes, namely that Islam is a violent ideology and that Muslims pose a threat to national security.
Monday, May 21, 2018
Thursday, May 17, 2018
Ideological bias has become a significant topic of discussion in academic circles and in the media. Fox News recently ran a story about the ideological bias at liberal arts colleges. The study was based on a report by the National Association of Scholars (NAS),which was authored by Professor Mitchell Langbert of Brooklyn College. NAS surveyed 5,197 tenure track professors from 51 liberal arts colleges. The sample consisted of professors from a range of academic disciplines, and NAS “could not find a single Republican with an exclusive appointment to fields like gender studies, Africana studies, and peace studies.” The report stated that these disciplines are the “most ideological” fields of study—implying that they are not ideologically diverse. However, the NAS study does not give a picture of ideological diversity in these disciplines. As my main interest here is in Africana studies, I use that as an example.
Professor Langbert’s framing of ideological division is narrow and does not capture the nuances of a field like Africana Studies. His ideological dichotomy is very conventional and reflects White mainstream discourse which is far less applicable in a field like Africana Studies. Any implication that the field is somehow ideologically homogenous is off-base: it is full of vigorous intellectual debate. But Democrat vs. Republican, or even liberal vs. conservative in the conventional sense,  are not the major debates within Africana Studies.
In my experience, the major debates in Africana Studies has centered on the tension between Black Nationalism and integrationist ideals.  Professor Langbert cites Fabio Rojas and correctly notes that Africana studies began with the emergence of “ideologically motivated political movements in the 1960s and 1970s.” The Black Power Movement and Pan-Africanism, both rooted in Black Nationalist ideas, were indeed the foundations of Africana studies. But there has always been a tension between integration and nationalism among African American scholars and activists. This manifested itself most famously during the Civil Rights Era, in the different perspectives of Rev. Martin Luther King, Jr. and Malcolm X. In earlier eras, we saw debates between W.E.B. Du Bois and Marcus Garvey; and between Du Bois and Booker T. Washington. The debates between nationalist and integrationist sentiments continue to exist to this day.  Many African Americans subscribe to both ideologies to one degree or another, and they balance the two when developing their political views. This was famously articulated by W.E.B. Du Bois’s notion of “double-consciousness” in Souls of Black Folk:
After the Egyptian and Indian, the Greek and Roman, the Teuton and Mongolian, the Negro is a sort of seventh son, born with a veil, and gifted with second-sight in this American world,—a world which yields him no true self-consciousness, but only lets him see himself through the revelation of the other world. It is a peculiar sensation, this double-consciousness, this sense of always looking at one’s self through the eyes of others, of measuring one’s soul by the tape of a world that looks on in amused contempt and pity. One ever feels his two-ness,—an American, a Negro; two souls, two thoughts, two unreconciled strivings; two warring ideals in one dark body, whose dogged strength alone keeps it from being torn asunder.” --W.E.B. Du Bois, Souls of Black Folk--
Africana Studies intersects with history, sociology, literature, and other disciplines to explore different aspects of this debate. It also considers policy issues that stem from the integration vs. nationalism debate, such as the efficacy of African-centered charter schools and of historically Black colleges and universities. In fact, there is an inherent ideological tension along these lines within Africana Studies departments and programs, because many of them exist at predominantly White institutions.
Additionally, Africana Studies actually does have an intellectual current that parallels some conservative ideals. Most Black voters feel alienated by the Republican Party’s history of appeals to racism: the Southern Strategy, dog whistle politics, and more recent overtures to White supremacists by Donald Trump. Nevertheless, Black Nationalism has long emphasized Black self-help, paralleling ideas now espoused by many White conservatives.  There are differences in the degree and kind of self-help that are advocated by Black Nationalism as compared to White conservatism. But that is also a rich source of ideological debates in the realm of Africana Studies.
Most White Americans and others who are not Black have not shown much interest in these debates. But more than any other race-related dialogue, White interest and knowledge of Africana Studies and the debates therein would improve race relations in America. It would give White Americans a more nuanced perspective on Black identity and political perspectives.  Unfortunately, such engagement is uncommon inside or outside of academia.
The debates that stem from Africana Studies can also inform other disciplines. One of my fields, constitutional law, provides a notable example--thanks to my mentor, the late Professor Derrick Bell. On this 64th anniversary of Brown v. Board of Education, it is fitting to remember Professor Bell’s striking challenge to the liberal orthodoxy of integration. In his classic 1976 Yale Law Journal article, “Serving Two Masters”, Professor Bell contended that desegregation efforts often did not have clients’ interests at heart. He was met with much criticism from liberals. Nevertheless, many African Americans had similar sentiments.  They were careful, however, about when and how to express these sentiments: they did not want to promote Jim Crow’s ideology of Black inferiority and detract from a vision of Black equality. In constitutional law today, the litmus test for a theory of constitutional interpretation is said to be whether it would lead to the correct result in Brown: endorsement of Supreme Court’s unanimous ruling for desegregation. Ironically, the only prominent dissenter from this view (notwithstanding Wendy Vitter and other Trump judicial nominees) has been Professor Derrick Bell—the most cherished and revered role model of legal academics interested in racial justice. 
The lessons here are important, and the homogeneity and bias that NAS brings to attention is not just one of ideology. It is about the very meaning of ideological diversity—an issue that itself is almost always framed from a mainstream White perspective. All of us can and should take the time to immerse ourselves in the ideological debates of Africana Studies and other identity-based disciplines. Rather than criticizing these disciplines, we should appreciate the learning opportunities they can provide for all of us. Many White Americans (and others who are not Black) are afraid that they would be unwelcome or met with hostility in Africana Studies circles. I can say that when I was in graduate school at the University of Pennsylvania, the few White Americans or other non-Black people I saw attending Africana Studies-related events were always embraced with open arms. All they had to do was to cede the idea that the issues and debates themselves must be framed from a mainstream White perspective; and to be open to engaging the debates that took place in Africana Studies. For those who do this, it becomes clear that fields like Africana Studies are as rich in ideological debate as are other disciplines.
 Of course, American liberalism and conservatism differ from liberalism and conservatism in Europe and other parts of the world.
 Black Nationalism in America itself has a different meaning than most nationalisms around the world. Its major goal is not to create a separate political space, but rather to mobilize and unify African Americans for political advocacy, community activism, and other causes within the U.S. context, not apart from it. Although there are Black Nationalist thinkers, dating back to Marcus Garvey and earlier, who have advocated for a separate state, there is not a major political mobilization to this end.
 See, e.g., David Love, Little Rock 9: In Seeking School Desegregation Rather than Quality Education, Did Black People Miss the Forest for the Trees? Atlanta Black Star, Sept. 4, 2016.
 There has also been some discussion of Justice Clarence Thomas in this vein. See, e.g. Mark Tushnet, Clarence Thomas's Black Nationalism, 47 Howard Law Journal 323 (2003-4). Additionally, some libertarians have recently embraced the cause of police brutality, aligning themselves on this issue with #BlackLivesMatter activists.
 See my recent article, Vinay Harpalani, “Safe Spaces” and the Educational Benefits of Diversity,13 Duke Journal of Constitutional Law & Public Policy 117, 153-65 (2017).
 One student of mine at Savannah Law School, a Black woman from the South, told me recently about how her grandmother, who staunchly instilled an ethic of Black pride and hard work in her, reacted on the day of the Brown verdict. She thought it was "the worst day in American history."
 In 2002, Professor Jack Balkin of Yale Law School published a book, What Brown v. Board of Education Should Have Said, where he surveyed eminent constitutional law professors on the question. Professor Bell’s chapter was the only dissent from the majority opinion. Having worked closely with Professor Bell, I know that he never wavered from that view, although he invited opposing viewpoints and sought ideological diversity.
I thank Professor Shakira Pleasant and Cherese Handy for their feedback on this post.
Friday, May 11, 2018
Call for Proposals for the Second Annual Equality Law Scholars’ Forum
Building on the success of the Inaugural Equality Law Scholars’ Forum held at UC Berkeley Law last fall, and in the spirit of academic engagement and mentoring in the area of Equality Law, we (Tristin Green, University of San Francisco; Angela Onwuachi-Willig, UC Berkeley; and Leticia Saucedo, UC Davis) announce the Second Annual Equality Law Scholars’ Forum to be held this fall. This Scholars’ Forum seeks to provide junior scholars with commentary and critique and to provide scholars at all career stages the opportunity to engage with new scholarly currents and ideas.
We hope to bring together scholars with varied perspectives (e.g., critical race theory, class critical theory, feminist legal theory, law and economics, law and society) across fields (e.g., criminal system, education, employment, family, health, immigration, property, tax) and with work relevant to many diverse identities (e.g., age, class, disability, national origin, race, sex, sexuality) to build bridges and to generate new ideas in the area of Equality Law.
We will select five relatively junior scholars (untenured, newly tenured, or prospective professors) to present papers from proposals submitted in response to this Call for Proposals. In so doing, we will select papers that cover a broad range of topics within the area of Equality Law. Leading senior scholars will provide commentary on each of the featured papers in an intimate and collegial setting. The Equality Law Scholars’ Forum will pay transportation and accommodation expenses for participants and will host a dinner on Friday evening.
This year’s Forum will be held on November 9-10, 2018 at UC Davis Law School.
Junior scholars are invited to submit abstracts of proposed papers, 3-5 pages in length, by July 1, 2018. Full drafts must be available for circulation to participants by October 19, 2018.
Proposals should be submitted to: Tristin Green, USF School of Law, email@example.com. Electronic submissions via email are preferred.
Wednesday, April 18, 2018
Professor Susan Ayres' forthcoming article Claudia Rankine’s “Citizen”: Documenting and Protesting America’s Halting March Toward Racial Justice and Equality, provides a critical review of Claudia Rankin's multi-genre book "Citizen."
Here is the abstract to this timely article:
"After the first election of President Barak Obama in 2008, there was a sense that the United States had reached a post-racial phase in its history. That sentiment was relatively short-lived, because by 2013, when Michael Brown was killed in Ferguson, it was clear that President Obama’s election was not transformative. More recently, during the presidential campaign and after the election of President Donald Trump in 2016, undisguised racism in the United States has reared its ugly head. Activists such as the Reverend Al Sharpton have been outspoken in their criticism of President Trump. Sharpton has claimed, “Everything King fought so tirelessly for is under attack once again.” Similarly, poet and activist Claudia Rankine considers the Trump Administration to be “about the primacy of whiteness,” and that as citizens, we must discuss and confront the concept of white privilege which undergirds our society. Rankine does this in Citizen, a multi-genre work that documents racist microaggresssions and macroaggressions. In this article, Citizen is analyzed using the tools of critical race theory and rhetoric for its potential to effect change in the fight for racial justice and equality."
And here is an excerpt:
"A stunning and powerful work, Citizen’s documentary poems and art gallery of images may not trigger a revolution, but Rankine’s use of epideictic rhetoric encourages new perspectives and critical reflection and inspires the “possibility of social transformation. Rankine personally hopes for transformation, as she says in an interview: “I believe in possibility. I believe in the possibility of another way of being.” In another interview, Rankine comments, “The experience of writing it, which might or might not be the experience of reading it, was to see my community a little better, to see it, to understand my place in it, to know how it sounds, what it looks like, and yet, to stay on my street anyway.” Rankine’s belief in possibility and her tenacity inform a reading of Citizen."
To download the article forthcoming in the Alabama Civil Rights and Civil Liberties Law Review, click here.