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.
Friday, March 30, 2018
Professional Apartheid: The Racialization of US Law Schools after the Global Economic Crisis published in the American Ethnologist (August 2017)
Riaz Tejani, Assistant Professor of Legal Studies, University of Illinois at Sprinfield
Below is an excerpt of Professor Tejani's article:
"The 2008 global financial collapse was a watershed for US law schools. The sudden loss of capital, triggered by overspeculation and the repackaging of debt among multinational banks, caused global corporations to cancel transactions, settle litigation, and demand greater effi- ciency in remaining legal-services agreements.
Large global law firms laid off thousands of attorneys, canceled new recruitments, and began outsourcing work to legal temp agencies, which in turn benefited from a professional labor oversupply and the new “gig” economy. In the preceding years, US law schools had expanded their operations and planned their budgets based on tuition priced against once-widespread lucrative corporate law incomes. Now they faced austerity.
And because it was already in doubt whether law school job outcome reports were accurate, the moral hazard that they generated seemed to multiply after the economic crash. Prospective students took heed. Whereas legal education had seen increased demand in prior economic downturns, this time would be different: enrollment in US law schools plunged 30 percent from 2011 to 2015.
Indexing public fascination with this, failures in legal education made headlines in the New York Times, the Wall Street Journal, Bloomberg, and the Huffington Post. In an age of new cultural insurrections like Occupy and Black Lives Matter, people grew fascinated by the discomfort of this once-elite knowledge community. Beneath those news stories lay serious lessons about difference and knowledge capitalism in the contemporary global system. The so-called crisis of legal education and the legal profession, along with the overwhelmingly market-based reaction to it, suggests something deeper about the state of social justice under neoliberal political economy.
This is in part because, in the United States, formal legal education is virtually the only pathway to legal expertise, and law school—namely the three-year course of study in pursuit of the JurisDoctor, or JD degree—is a graduate-level, professional program only. Falling law school enrollment in the United States would shrink the legal profession, but the country already has one of the largest lawyer-to-population ratios in the world.
Prominent legal academics have nevertheless argued that the demand for legal education should remain high because the profession still lacks ethnic and racial diversity and because existing attorneys have not equitably served minority communities. In this context, the “crisis” of US law schools is as much about political economy as it is about the character of the legal profession.
Inequalities in legal education have long been present. For instance, the ethnographically salient division of US law schools into “top tier,” “second tier,” “third tier,” and “fourth tier” already long signified a preoccupation with hierarchy. The economic crisis would only exacerbate these inequalities. Facing declining enrollments, so-called fourth-tier law schools saw a market-based solution: to increase their marketing to ethnic and racial-minority communities and to style this as a mission to diversify legal services (Taylor 2015; Tejani 2017).
The suggestion appeared to be that US ethnic and racial minorities—long limited in their ability to access the justice system (Herrera 2014; Rhode 2004, 2015b)—can benefit merely from greater representation in the legal profession, if largely at a lower level of prestige and opportunity. This new approach to political-economic redemption in the legal-education community captures the marketization of race as a new feature of neoliberalism and has been critically labeled by at least one former law dean an “apartheid model.”"
To read the full article, click here.
Tuesday, March 27, 2018
This post is part of the blog's symposium, "Wakandan Jurisprudence: How Black Panther Challenges Us to Examine the Past, Present, and Future of Race.”
The Black Panther movie has drawn the attention of the entire world. It is the Marvel Cinematic Universe’s highest-grossing movie. Think pieces have proliferated across the internet—and this blog’s symposium is no exception. And this boundary-breaking moment in pop culture has revolved around the unabashed humanization of Africans, the African Diaspora, and the subjugation of the African people.
In other words, despite this being a movie based on a comic book, Black Panther humanized blackness in a complicated and real-feeling way. This realization offers us a moment where we can reimagine our conversation about race.
To appreciate this, let’s think about how popular blockbuster films has typically portrayed blackness. While there are certainly exceptions, Hollywood has deployed numerous tropes that misrepresent and underrepresent blackness. These include the “Magical Negro” who uses powers in service as a sidekick to a usually white character, the “Black Thug,” who is intended to be a receptacle of dehumanized behavior and pathological violence, and the "deracialized Black hero" who is virtuous but only happens to be black.
But Black Panther, as Afrofuturistic fiction, forces us to re-imagine, confront, and defy the underlying narratives that drive those Hollywood tropes. And it unapologetically does so by, first and foremost, forcing us to imagine a world wholly owned by Africans, a world where Blackness is unbounded by white supremacy.
Wakanda is separate and apart from the white settler colonist world, yet its technology and sophistication (and its infiltrative practices and policy of noninterference) are more powerful than the nation-states of the colonialist or colonialist-influenced powers. While this utopia is imperfect and the film serves to expose its flaws—and this state-view is open to critique, as Saru Matambanazo has suggested in this symposium—this imaginative offering of Black statehood not subjugated by white settler colonialism defies the tropes that blackness is bounded by in Hollywood blockbusters.
Moreover, Black Panther humanized blackness by making it the moral norm within this cinematic construct. Wakandan blackness and Oakland blackness are the poles of the film. The alien infiltrators into this world are the two white characters, jokingly known as “the Tolkein white boys.” This defies the received-tradition of antiblackness.
Wakandan women and men are royalty, leaders, followers, citizens, and soldiers. Not the British Crown, the American President, or the Russian Federation. Wakandans own the conversations. Wakandans own the family, policy, and visionary disputes of the film. Within this dynasty built entirely apart from white supremacy, it is the Wakandans —all Wakandans—who are the whole moral agents. And T’Challa is their king and lord protector of this legacy.
N’Jadaka—aka “Erik Killmonger”—disrupts T’Challa’s Afro-utopia by making present and persistent the question of how the power of Wakanda ought to be used in relation to Black liberation. As Robin Walker Sterling pointed out during this symposium, the heart of N’Jadaka’s complaint—and his anger—is the Black privilege that Wakanda’s isolation and power allows.
But stop for a moment and appreciate that—Black privilege as a norm and a possibility rather than an oddity; Black anger as legitimate usurping political power rather than vicious trope.
Black Panther forces attention onto racial subjugation by giving N’Jadaka the most provocative and persuasive voice in the film. He demands redress for the diaspora’s dispossession through deploying the power of Wakanda to destroy white settler colonialism by force. He transforms Wakanda—for a moment—into an imperialist interventionist state powered by what Tabias Olajuawon called during this symposium a “fugitive politic” informed by “Black Combustibility.”
Let’s be clear: the film forces us to imagine Black anger as legitimate and normalized. Black anger is given a place at the table. It grants Black anger political power and vibranium weapons. But this anger is ultimately contained when T’Challa kills N’Jadaka and retakes the throne. Many see this as a failing, as if with N’Jadaka’s death the anger ends. But the film makes this reading more complicated.
The movie ends not with N’Jadaka’s death, but with T’Challa transformation. Pivotal to this is the defiance T’Challa shows in his second ancestor scene, where he confronts the tradition of nonintervention by telling T’Chaka, his father, and the host of ancestral kings that they were wrong to be passive. Thereafter, the re-awakened T’Challa accedes to N’Jadaka’s core thesis, the need for intervention to help the African dispossessed, but he fights N’Jadaka over the throne and the means. T’Challa’s victory leads to his use of soft power intervention instead of hard power. Moreover, this use of soft power shows T’Challa’s transformation from passive caretaker to interventionist leader.
The Black Panther movie thus offers us a thought experiment that imagines an empowered state (and statehood) of blackness and forces all of us—children of the dispossessed African diaspora and children of settler colonialism privilege alike—to imagine its potential scope. Nareissa Smith spoke to imagination and vision in this symposium. She rightfully puts Black Panther in the genre of films that encourage African Americans to imagine themselves anew and then “conceive a brighter, Blacker future.”
I think there is an additional possibility: Black Panther teaches us, the world at large, that Black diasporic anger has a place at the table in our political and legal discourse. Consciousness of the harm of racism can transform our thinking and challenge us to act differently and for the better. We must grow our imaginations by focusing on the evidence in front of our eyes.
Black privileged T’Challa now seeks to build bridges because he had to confront N’Jadaka’s diasporic anger and its moral claim. T’Challa had to make sense of that anger in both his final journey to the ancestors and his final confrontation with N’Jadaka. I believe T’Challa’s preparation in Wakandan constitutionalism intersected with his new awareness of diasporic anger. This synthesis transformed his imagination. T’Challa then rejects isolationism and reaches out in a humane way. Thus, T’Challa now possesses privilege and power but that privilege now incorporates race consciousness rooted in the realities of subjugation.
The real world needs more of T’Challa’s kind of consciousness raising.
For example, consider the limits of the Supreme Court’s judicial imagination around race. In an essay entitled “Normalizing Domination,” I argued that the Supreme Court’s treatment of racialized voting rights concerns represents an unwillingness “to believe what is before them by substituting other explanations for racial discrimination.” My explanation for this is the legacy of colorblind constitutionalism made manifest in a post-Shelby County v. Holder period of post-racialist retrenchment about the politics of race. The Court focuses on narrow measures of antidiscrimination success rather than broader discourses that continue to suppress poor minorities’ votes.
Black Panther would suggest that limited imagination can be turned around through taking in the evidence before our eyes and hearing the claims of the angry and dispossessed. This kind of listening requires going beyond the narrowest of measures and tendencies towards triumphalism. It requires a more expansive vision, the normalizing of the so-called “other,” the goal of actually learning from the other side and putting of privilege at risk.
For the Court, it would require embracing—rather than denying—the benefits of a constructive constitutional race consciousness meant to humanize all citizens. It requires recognizing that our constitution is dynamic and, as Justice Thurgood Marshall recognized, this dynamism is necessary to attain the freedom we have now. By changing the premise about race and the Constitution, the outcome in cases like Shelby County can too change.
I believe that judicial imagination, political imagination, and even our collective societal imagination can be transformed through these ideas. This is the larger moral of Black Panther.
Sunday, March 25, 2018
This guest post is part of the blog's symposium, "Wakandan Jurisprudence: How Black Panther Challenges Us to Examine the Past, Present, and Future of Race.”
There is much to be said about Black Panther, much to be said about a movie that has caused many to sit and drift, both anxiously and unwittingly, into the planning, enactment and re-imaging of Black Utopia and Black Reconciliation. There is something to be said for sitting and drifting. Both are often understood as passive acts, or non-acts, but in all truth require a type of still movement only found in focus and discipline. To drift is to the relieve the mind and/or body of navigational responsibility, to duty and desire to remain; it is always, already a type of freedom making. Submissive flight. Sitting, the upright folding of one’s body that relieves ankle and foot from the responsibilities of mobility and/or erection. A submission to gravity. A relief. A de/reactivation of specific muscles and joints. A re/balancing.
N’Jadaka emerges as a complicated and familiar character, destabilizing the narrative of Black Utopia. He is familiar, and forbidden, in the way the way that violent protest is a reoccurring, forbidden and familiar option that visits Black people in Amerikkka in the still of black being and the quiet of black rest. N’Jadaka--Eric Killmonger--operates as a stand in for myriad understandings and markings of what Black rage is and isn’t. He is the reminder and the promise of the uncontrollable nature of Black rage, what we might call Black Combustibility; the danger of black feeling, of black being, of black insistence on life and resistance.
“Combustibility is a measure of how easily a substance bursts into flame, through fire or combustion. This is an important property to consider when a substance is used for construction or is being stored.”
Black Combustibility is often marked and pathologized as the site of uncivilized blackness or Black excess. It is sometimes mis/understood as the inability of black people to control ourselves and imagined in tropes or hyper sexuality, hyper masculinity and excesses of strength and emotion. It finds its roots and routes in the transmutation of the Black being from subject to object in the wake of the transatlantic slave trade. Brandings, scars and Bodily regulations. These markings of Black Combustibility work together to create a narrative that marks the most expressive, authentic and charismatic of Black folks as not only dangerous to themselves—combustible—but also dangerous to the community and creates, or at least contributes to, the logic of anti-Black policing, surveillance and assassination plots (COINTELPRO). Here, I imagine Black Combustibility not as excess but as access and ability. It is the ability to become fire, that must be regulated, lest the ship of captivity burn from the hold. I imagine Black Combustibility here then, as the power of black rage, of black witnessing and black insistence on being, as having always, already been capable of undoing regimes of racial-sexual terror, subjugation and violence. Black Combustibility is the flame of black (after) lives that burns freedom present.
This harkens back to what Baldwin famously noted as a constitutive element of the reality of Black (woke) life, “to black and conscious in America to is to be in a state of rage.” To be conscious though, is not simply to be aware of what is happening, but to bear witness to these moments and to gird oneself—one’s people—for the wake, the aftershock, the ripples: wake work. This witnessing engenders a type of responsibility to recall and give voice to what has taken place and to do something with it; even if that something is to simply hold the truth of the occurrence and reckon with it.
N’Jadaka embodies the ultimate witness. First, he witnesses himself as other in Amerikkka. Not simply other as African American, but as Wakandan; knowing that there is a place where Black bloodletting need not occur, if only someone would invite him—and perhaps all those he’d lost—to the refuge. Second, he witnesses father’s death. Not the actual murder itself but the cosmic circumstances that marked his departure. The place that did not want, or perhaps see, him had made itself real only to steal his father, to take more of his birthright. Finally, he witnesses the both grandeur of Wakanda and the struggle of Diaspora. He comes to Re-present the story of abandonment, of rage, of wounds, of love, of home-crafting familiar to the descendants of slaves. He embodies the rupture. He yells the secret. He ushers in the shame of Wakandan (African) complicity in the transatlantic trade and gives voice and muscle to the trauma of dislocation, of orphanage of un/mothering.
N’Jadaka signifies the unrecoverability of African-Americans, while also speaking to a simmering, unmarked fugitive politic. Much like many Black Americans he has temporarily embedded himself in anti-Black institutions in order to afford some modicum of Black life. Even more so, he has used the tools of the CIA to create a pathway to his own understanding, and realization of, a Black liberation politic. “The sun will never set on Wakanda,” he says, not merely because all of the world will now be a Wakandan empire, but instead because all Black people are now Wakandans; entitled to her technology, her history and her future. In fact, all Black people are technologies of the Wakandan project. How might we understand this as a modern iteration of Pan-Africanism, infused with what Saidiya Hartman has called the fugitives dream?
Where Hartman embraces a statelessness that would be contrary to N’Jadakas vision of being King or “the” Black Panther, a re-imagining of both created exciting possibilities. For instance, what happens if we take Hartman’s idea of autonomy—from states, borders and rulers—seriously, and imagine N’Jadakas Wakanda empire as collective rather than monarchy? What if Wakanda is transformed from magnificent location to a collective politic? What if Wakanda is not only where you are, but how you are? The connective fabric of Wakandans then, might be transformed from the realm of monarchical rule and submission to free flowing bonds of culture, spirit and politic.
The embrace of Black Conbustibility isn’t a call to accept the ways in which Black people are continually pathologized; but to instead to see how we are being seen, to stop investing in the belief and practice of trying to change minds for the acquisition of freedom and instead revive or create a new language of freedom, a language of insistence, a language of flight. Perhaps it is a language yet to be made, one that is laying wait in the practice of home or space making, as we learn to come together again, anew. This is a language N’Jadaka stutters through. He is not yet fluent, but he is also not simply babbling.
Today, as Black people are routinely disciplined through legal and economic lashings of violent lessons of comportment—from laws criminalizing sagging to ongoing manifestations of the afterlives of slavery—there is little to lose from trying something old, in a new way. The state has failed to save us from itself; indeed, that is an impossible task it was not built for. However, by making our own fugitive homes, designing our own fugitive flights and dreaming our own fugitive dreams; we might fashion ourselves as the children able to save ourselves from the latest, in a long line predatory states, that lived off the consumption of our foremothers. Perhaps we’ll all be stateless. Perhaps, at some moment, we’ll create a town, a city, a nation, a Wakanda. Perhaps, we’ll continue to scatter in the moonlight. One thing is for certain; we have the ability to take flight and the weather is ripe for departure, with or without vibranium.
Tabias Olajuawon, JD is an author, scholar, and Ph. D Candidate at the University of Texas-Austin.
Saturday, March 24, 2018
This guest post is part of the blog's symposium, "“Wakandan Jurisprudence: How Black Panther Challenges Us to Examine the Past, Present, and Future of Race.”
Killmonger is ruthless. Intelligent. Single-minded. Strategic. But above all, he is angry.
And I have to admit, it was thrilling for me, a black woman who has recently come out as “angry,” to see black anger depicted so brilliantly on screen. I mean brilliant in the sense that it burned so bright I felt that I had to shield my eyes or look away from it. Killmonger’s every scene was pulsating with a blood-deep hostility that motivated him. It focused him. It propelled him to great successes, like a Ph.D. at MIT, and great evils, like killing hundreds of people and reducing them to nothing more than another notch on his body. This was a villain unlike almost any other I had seen. He was not motivated by greed or a protean, gossamer-edged sense of evil. Killmonger’s anger took the shape of a spear aimed unerringly at the heart of Wakanda. Here was the shimmering personification of righteous anger, turned poisonous, but sprung from love for his father, devotion to his father’s vision, and commitment to righting centuries of race-based wrongs. Why not remake the world with black people on top? Forge black privilege, black supremacy, and black power from vibranium and kimoye beads. I found myself nodding in agreement with Killmonger more often than not. And although I was sorry he died, I understood why he chose to, instead of accepting T’Challa’s offer of trying to heal him. His choice of death over bondage was completely consistent with his character. With his anger.
As thrilling as his anger was for me to watch, it was also a lightning rod for criticism. People were unsettled that Killmonger was so angry. His anger colored everything else about him: his intellect, such that he could have a Ph.D. from MIT and still be labeled a thug, and his motivations, such that his plans were labeled divisive.
I took these accusations debasing Killmonger’s anger personally. He gets to be angry, I thought. He has a right to his anger – especially since he is right to be angry. Because his anger was one of the things that, for me, made him black. It was part of his blackness. It certainly is part of mine. At least once a day, in ways large and small, I am reminded of ways in which my country fails me because I am black. I am angry that my black husband and I are far more likely to be stopped, detained, searched, and shot by the police than other people. I am angry that I have to worry that my black daughter’s teachers are underestimating her abilities or attributing any typical toddler misbehavior to personal failing, lack of ability, or some other deficiency based in implicit racial bias. I am angry that my chances of dying of a heart attack, of breast cancer, and of child birth are markedly higher than those same statistics for other women – and that, if I were in severe pain suffering from any of those things, I am less likely to get medication to adequately manage my pain. I am angry that when we apply for mortgages or car loans we will automatically be charged higher interest rates because we are black.
My anger is not colorblind.
Colorblindness reduces race to a physical concept. It erases black culture, black history, and black lived experiences. And it also washes out black anger. In order to be heard, we are supposed to be able to have debates with Tomi Lahren without seething, to discuss each millisecond of a video of police brutality without being overwhelmed by its graphic contents, to let people take pictures of our scarred backs to convince them that things are as bad as we say they are.
There needs to be more space for black anger in the law. James Baldwin said, “To be a Negro in this country and to be relatively conscious is to be in a rage almost all the time.” And Maya Angelou said, "Bitterness is like cancer. It eats upon the host. But anger is like fire. It burns all clean." Anger can be just as much an engine of social change as any other emotion.
Perhaps that, ultimately, is a big part of why black anger gets such a bad rap. If you are angry enough, you might choose resistance – no matter the cost – over bondage.
Robin Walker Sterling is an Associate Professor of Law at the University of Denver Sturm College of Law
Thursday, March 22, 2018
Image credits: Top, Marvel Studios, Walt Disney Studios. Bottom: Columbia Pictures
Like nearly every other person of color that viewed "Black Panther," I left the theater mesmerized. While the movie's all-Black cast makes it a unique Hollywood offering, its depiction of Blackness is even more striking.
From the beginning of cinema, depictions of Blackness have been largely negative. One of Hollywood’s earliest blockbusters, “Birth of a Nation,” depicted Black people as stupid, lazy, lascivious monsters intent on destroying white society. In later years, Hollywood depictions broadened to include roles such as the docile slave (“Gone with the Wind”), the simple buffoon (the ‘Stepin Fetchit’ films, “Amos ‘n’ Andy”), the sassy domestic (“Beulah”), and other negative portrayals.
The Civil Rights Movement ushered in an era of more positive representations. For the first time, African Americans were portrayed as educated professionals (“I Spy,” “Julia,” “A Raisin in the Sun,” “Who’s Coming to Dinner,” - any movie starring Sidney Poitier, really) capable of holding their own with whites.
In the 1970s, blaxploitation films such as “Superfly,” “The Mack,” and others presented an alternative view of Blackness that emphasized sexuality and criminality. Though this movement briefly waned, in the 1990s, films such as “Boyz n the Hood,” “New Jack City,” “Menace to Society,” and others also explored drug culture and crime. Though each of these films had strong anti-drug, anti-crime messages, for some, the takeaway was that these films were a realistic depiction of Black life.
To be sure, many African-Americans bristle at negative media portrayals because they fear – and somewhat justifiably so – that these films will negatively influence how whites view us. But, this argument is problematic for several reasons. Not only does this argument absolve whites of the responsibility to befriend actual Black people rather than celluloid substitutes, but it is also frequently used as a convenient excuse to engage in respectability politics. But the largest, glaring flaw in this argument is that it ignores how labelling certain depictions of Blackness “realistic” limits the Black imagination.
The wonderful thing about "Black Panther" is that it challenges Black viewers to see themselves in a different light. Wakanda is a peaceful, technologically advanced nation with a populace that lives together in harmony. Yes, it is fictional. No kingdom with the qualities of Wakanda exists – not in Africa, not in Europe, and not in North America. But that doesn’t mean we shouldn’t try to get as close to Wakanda as we can.
I came of age in the “New Jack City” era. While the movies of that era were not my reality, they did accurately depict the reality of any number of African-Americans. But when reality is so bleak, why must we double-down on it? If we can’t imagine beyond reality, how can we ever hope to transcend it?
According to an old saying, “Small minds discuss people, average minds discuss events, and great minds discuss ideas.” To co-opt that phrase into this discussion, average Black minds can dissect our reality, but great Black minds can see beyond our current reality into a more just and prosperous future.
The value of “Black Panther” and other films that portray Blackness and Africanness in a positive light is that they allow African Americans to see ourselves in a different light. By altering perceptions, they stretch the Black imagination. Energized imaginations are then able to conceive a brighter, Blacker future.
It would be silly to argue that the reality of Black life as it is should never be portrayed. Every Black movie need not be set in Wakanda to be meaningful. However, “Black Panther” proves that while paying homage to our reality is important, imagining our future is equally so.
Hopefully, “Black Panther” will usher in a new era of creativity that stretches the limits of Blackness in cinema and beyond.
Wednesday, March 21, 2018
This guest post is part of the blog's symposium, "“Wakandan Jurisprudence: How Black Panther Challenges Us to Examine the Past, Present, and Future of Race.”
Black Panther fulfilled a diasporic desire that seemed impossible to articulate prior to its release. As a child of the Black African Diaspora, Black Panther made my heart feel full. I was hardly alone. Many African-American viewers met Ryan Coogler’s vision of the Black Panther as king of the exquisitely conceptualized Black African Utopia, Wakanda, with enthusiasm and joy. Its premiere was an emotional global event for many Black People.
But the cultural resonance has also stirred up many debates within the Black Diaspora (one example is the fascinating debate around the museum scene). However, the film’s treatment of the central struggles for Black Liberation left me dissatisfied. Black Panther is a wildly imaginative film, but its treatment of the possibilities for Black Liberation is grounded in the dualities of White Patriarchal Settler Colonial Supremacy and thus obscures the potential for alternative ways of being, becoming, and birthing freedom through solidarity.
This realization becomes clear when we explore closely the utopia of Black Panther and how the core conflict of the film is resolved.
Even before we are introduced to the Black Panther or his nemesis, we are first introduced to Wakanda—a fictional and technologically advanced African utopia that draws on the precepts of Afrofuturism and a range of African traditions and actors from across the Black African Diaspora. This Wakanda is a utopic ecosocialist African monarchy. It is untouched by the ravages of colonialism. Although perceived as poor and underdeveloped, it is actually a highly advanced confederation of five tribes whose peace and prosperity is fed by unlimited access to a mythical mineral vibranium. Tradition and technology thrive together in a complementary harmony.
But this utopia is maintained through a kind of “Wakanda First” isolationism. Wakanda relies on its technology to mask its prosperity and protect its traditions. This isolation leads to not only the fierce defense of its boarders against white “colonizers,” it also closes off Wakanda from beneficial trade and refugee protection. Furthermore, Wakanda refuses to intervene in the suffering of Black persons throughout the diaspora. The first thing viewers learn about Wakanda is that the nation failed to intervene when white colonizers enslaved Black men and women.
Accordingly, the first political act viewers see is King T’Chaka’s willing to murder his own brother, Prince N’Jobu, and leave a half Wakandan child in Oakland, California rather than either expose Wakanda’s true nature. N’Jobu offense runs deeper than this. In the course of conducting surveillance on the United States for Wakanda, N’Jobu compromises Wakandan security to arm and protect insurgent Black Americans. N’Jobu seeks a larger liberation--ending the continued terrorism and bondage that has grown from legalized slavery. Before his death, N’Jobu indoctrinated his son, N’Jadaka in Wakandaian culture and language, and ensured that N’Jadaka possessed the vibranium “mark” that identified him as a Wakandian.
To this world, we introduce Erik “Killmonger,” nee N’Jadaka (the sensational Michael B. Jordan) and son of N’Jobu. Erik is as much a product of US imperialism and foreign policy as he is of N’Jobu’s effort of liberation. A brilliant MIT graduate and an elite soldier, Killmonger fought for the United States in Afghanistan, Iraq, and Sudan. His methods include destabilization of established nations and institutions. After Killmonger wins the throne from T’Challa, he institutes a new foreign policy for Wakanda—an imperialist model of interventionalist destabilization and death that would make the Reagan/Bush era CIA proud. His strategy is to give Wakandian technology to insurgents of African descent to further their Pan-African vision of Black struggle so that the victims of the Diaspora end up “on top” of the global hierarchy.
Killmonger is, perhaps, the film’s most compelling character. His intellectual and physical swagger trigger unconscious nostalgia for “[the] sexified second coming of the extremist Nat Turner.” It is unsurprising that Killmonger’s desires for revolution resonate with viewers, particularly with African-American viewers who feel the tensions of his struggle in a visceral way. Killmonger, like other revolutionary villains before him (Magneto), engenders feelings from ambivalence to passion to sadness. Many Black audiences have received Killmonger as a woke Pan-African anti-hero who is on the right side of history. In his battles with T’Challa, it was difficult for many of us to determine who the real villain was. Killmonger is unapologetically angry but his anger is legitimate. He believes the Black elites of Wakanda have abandoned peoples of African descent globally when they could have made a difference. And while Killmonger is defeated, he is not all wrong.
After Killmonger’s death, T’Challa takes Wakanda in an alternative direction. T’Challa adopts a policy of openness, increased transparency, and global assistance. But this policy is nonetheless squarely within the neoliberal model. T’Challa buys up real estate in Oakland to open the “first of many” Wakandan technology and science education embassies headed by his sister, and chief technology officer, Princess Shuri. And in the first “reveal” scene in the credits, T’Challa announces his openness policy to the unsuspecting members of the United Nations.
While I admire the film and I believe Black Panther somehow, renders my existence more intelligible, I am at the same time deeply dissatisfied with the film’s the political elements. While I feel the pull of Killmonger’s wrath and revolution, I must reject the film’s oppositional way of thinking about Black Liberation. When we are dreaming dreams of liberation, I find it fascinating that we are so tame and so timid in how we can imagine alternative possibilities for liberation.
In the film, strategies for Black Liberation are filtered through a Western lens that privileges what is as opposed to expressing what could be. The knowledge and praxis of indigenous persons, particularly women of color who draw on these traditions, remains invisible and unintelligible. Liberation is seen as emerging from one of three possibilities: (1) isolation of Black Persons from others, (2) Neo-Imperialism designed to colonize the historical colonizers, and (3) Neo-Liberalism’s investment in globalization, open markets, trade, and education. Neoliberalism, in Black Panther, is presented as a healing third way that enabled T’Challa to embrace both Wakanda and the highest objectives that Killmonger represents. But I found myself feeling dissatisfied and annoyed that STEM education, technology, and market trade are represented as a path to liberation – because such approaches carry costs and entrench existing institutional structures of power. Why tame the possibilities of Wakanda with neoliberal normativity? Neoliberal answers to inequality center individualism, mythologize merit, and valorize markets at the expense of community and solidarity. They refuse to disrupt dominant norms and fail to make reparations for past transgressions. The path to liberation cannot be won through real estate development, hackathons, and coding camps.
Though many claim claim Black Panther as feminist (because of the fierce women stars and in spite of the erasure of queer women), the film failed to offer an intersectional feminist approach for liberation. A key premise of the work of feminists of color who work toward liberation—from bell hooks to Lilla Wilson—is that we are bound to one another. Our liberation is entwined. Those who oppress and those who are oppressed must seek liberation together or none shall be free.
Killmonger and T’Challa could take a lesson from feminists of color. Their praxis reveals the paradox of bondage and the possibility of liberation.
Bondage binds both victims and oppressors. Liberation, in its truest form, frees not only the marginalized but also the privileged. Liberation cannot be accomplished through only individuals acts. It requires a radical recognition of interdependency and solidarity. And liberation cannot be accomplished by merely inverting the hierarchy. Reparations must be made. The path to liberation requires forging communities across difference and making institutional amends for past transgressions. It also requires unprecedented forms of accountability where those who have done wrong acknowledge the wrong and alleviate it.
In one of the most iconic moments of the film, Killmonger is confronted by Queen Ramonda (played by Angela Bassett) and he says, “Hey, Auntie.” Killmonger and T’Challa alike would do well to listen to the wisdom of Aunties, particularly feminist women of color. It is my hope that Black Panther, as much as it sates these diasporic desires, has the potential to create the ground for future possibilities that we can use to envision what liberation could be beyond isolation, neo-imperialism, and neo-liberalism.
Saru Matambanadzo is the Moise S. Steeg Jr. Associate Professor of Law at Tulane University Law School.
Monday, March 19, 2018
Welcome to "Wakandan Jurisprudence: How Black Panther Challenges us to Examine the Past, Present, and Future of Race"
Black Panther has been a box office juggernaut. The film claimed the number one spot in its debut weekend and has yet to relinquish the top spot at the box office. The action-packed superhero film easily surpassed one billion dollars in ticket sales over its five week theatrical run. It is not only commercial successful, but also critically acclaimed.
This blog is not an entertainment blog. It's not even a media and the law blog. We are a blog that focuses on race, racism, and the law. Why would we devote time to a superhero movie?
For us, the significance of Black Panther goes beyond its ticket sales or comic book origins. This film has a cultural significance that goes beyond the silver screen. Its portrayal of Africa, Africans, and Blackness in general makes it more than mindless popcorn-munching entertainment. At the end of the day, the law is merely the codification of social mores. Black Panther challenges those social norms on many fronts.
There are a number of reasons why Black Panther deserves scholarly consideration. King T'Challa, the Black Panther, is one of only a handful of superheroes of color. Though Hollywood has created multiple interpretations of heroes such as Batman and Superman, Black Panther is first feature film dedicated to a Black superhero. Though that alone would be significant, the fact that T'Challa reigns over the kingdom of Wakanda, a fictional African realm, causes us to rethink how Africa has been historically portrayed in Western media. The prominence of Black women in the film - and the varied roles that they occupy - is directly contrary to the standard Hollywood fare. Moreover, the fact that Wakanda has achieved untold technological advances adds another layer, as it causes us to consider the impact of racism and colonization on the African continent. To that end, T'Challa's foe, his American-born cousin Erik Killmonger, is also a metaphor for the relationship Africans forcibly taken to the New World have with the Continent.
For these reasons, and many more, we believe that an examination of Black Panther is fully in line with the goals of this blog. This week's online symposium will feature provocative, enlightening, and entertaining posts. We hope you will enjoy it!