Law and Race Commons^™

Constitutional Memories, Jack M. Balkin

William & Mary Bill of Rights Journal

Many arguments in constitutional law invoke collective memory. Collective memory is what a group—for example, a religion, a profession, a people, or a nation—remembers and forgets about its past. This combination of remembering and forgetting helps constitute the group’s identity and structures its values and its commitments. Precisely because memory is selective, it may or may not correspond to the best account of historical facts.

The use of collective memory in constitutional argument is constitutional memory. It shapes people’s views about what the law means and why people have authority. Lawyers and judges continually invoke and construct memory; judicial decisions …

Debiasing Criminal Justice, Sandra Guerra Thompson, Nicole Bremner Cásarez

William & Mary Bill of Rights Journal

The killing of George Floyd by police officers in Minnesota inspired a summer of protests in 2020, followed by a call for racial reckoning and a professed commitment to reform criminal justice. Many have condemned the “systemic racism” reflected in countless demographic measures. From killings of unarmed men by the police at the front end of the criminal justice system to incarceration rates at the back end, the statistics show stark disparities along racial lines. These disparities are held up as evidence of racial bias in the system.

Statements about racial bias may be intended as an indictment of a …

Indoctrination By Elimination: Why Banning Critical Race Theory In Public Schools Is Unconstitutional, Emma Postel

William & Mary Bill of Rights Journal

This Note argues that Texas public school students’ First Amendment Rights have been violated by the passage of Senate Bill 3 (SB 3), which bans the teaching of Critical Race Theory (CRT) in K–12 public schools. The First Amendment is violated here because (1) students have a First Amendment right to speech, and this law bans protected speech; (2) students have a right to receive information, and this ban prevents them from receiving information; and (3) schools are meant to be the marketplace of ideas for students and banning CRT amounts to unconstitutional viewpoint discrimination. This Note does not suggest …

Shaky Science: Shaken Baby Syndrome And Its Disproportionate Impact On False Convictions Of Women Of Color, Shae A. Woodburn

William & Mary Journal of Race, Gender, and Social Justice

Shaken Baby Syndrome (SBS) is a controversial diagnosis and an even more controversial basis for conviction. The syndrome is questioned by scientists and doctors who have yet to come to a consensus on its diagnosis. Courts have permitted SBS evidence to be admitted in criminal trials, and many people have been convicted solely on the basis of this controversial diagnosis. This Note seeks to analyze the history of SBS, the conflicts in the medical and scientific community, standards of evidence that permit its admission in court, and how all of these factors converge in a way that disproportionately impacts women …

Equal Dignity, Colorblindness, And The Future Of Affirmative Action Beyond Grutter V. Bollinger, Thomas P. Crocker

William & Mary Law Review

In Grutter v. Bollinger the Supreme Court held that diversity was a compelling interest for equal protection purposes that justifies limited consideration of race through affirmative action programs. But there was a catch. The Court predicted that diversity would cease to be a compelling interest within twenty-five years. This Article examines the surprising doctrinal and conceptual implications that would follow if, having both the motive and means, the Court were to overturn Grutter before its predicted 2028 sunset. Exploring internal tensions within existing doctrine, this Article argues that even if the Court were to overturn Grutter, a form of …

Abortion, Sterilization, And The Universe Of Reproductive Rights, Melissa Murray

William & Mary Law Review

In recent years, a new narrative associating reproductive rights with the eugenics movement of the 1920s has taken root. As this narrative maintains, in the 1920s, Margaret Sanger, a pioneer of the modern birth control movement, joined forces with the eugenics movement to market family planning measures to marginalized minority communities.

Although the history undergirding this narrative is incomplete and misleading, the narrative itself has flourished as the debate over the continued vitality of reproductive rights has unfolded in the United States. Indeed, in just the last three years, a member of the United States Supreme Court and a number …

Decitizenizing Asian Pacific American Women, Shoba Sivaprasad Wadhia, Margaret Hu

Faculty Publications

The Page Act of 1875 excluded Asian women immigrants from entering the United States, presuming they were prostitutes. This presumption was tragically replicated in the 2021 Atlanta Massacre of six Asian and Asian American women, reinforcing the same harmful prejudices. This Article seeks to illuminate how the Atlanta Massacre is symbolic of larger forms of discrimination, including the harms of decitizenship. These harms include limited access to full citizenship rights due to legal barriers, restricted cultural and political power, and a lack of belonging. The Article concludes that these harms result from the structure of past and present immigration laws …

Curing Corrective Rape: Socio-Legal Perspectives On Sexual Violence Against Black Lesbians In South Africa, Waruguru Gaitho

William & Mary Journal of Race, Gender, and Social Justice

Corrective rape can be defined as a hate crime that entails the rape of any member of a group that does not conform to gender or sexual orientation norms, where the motive of the perpetrator is to “correct” the individual, fundamentally combining gender-based violence and homophobic violence. In the South African context, these biases intersect with systemic racism, producing a disproportionate impact on Black, queer, womxn. While the legal framework has evolved to better address sexual violence crimes, Black lesbians remain prone to falling through the legal cracks, and South African society continues to sanction the homophobia and misogyny that …

Blocking The Ballot Box: The Republican War On Voting Rights, Brendan Williams

William & Mary Journal of Race, Gender, and Social Justice

This Article addresses threats to the right to vote that have arisen since 2018, when voter suppression efforts were key to denying Stacey Abrams, the Black Democratic nominee, victory over Republican Brian Kemp in the Georgia gubernatorial race, while Kemp, in administering his own election while Georgia’s Secretary of State, “laid out a chilling blueprint of voting suppression for other states to follow.”

This Article begins by examining the early Republican voter intimidation tactics that resulted in a consent decree, as these can be viewed as part of a continuum to the present day. It discusses the two U.S. Supreme …

Resistance Is Not Futile: Challenging Aapi Hate, Peter H. Huang

William & Mary Journal of Race, Gender, and Social Justice

This Article analyzes how to challenge AAPI (Asian American Pacific Islander) hate—defined as explicit negative bias in racial beliefs towards AAPIs. In economics, beliefs are subjective probabilities over possible outcomes. Traditional neoclassical economics view beliefs as inputs to making decisions with more accurate beliefs having indirect, instrumental value by improving decision-making. This Article utilizes novel economic theories about belief-based utility, which economically captures the intuitive notion that people can derive pleasure and pain directly from their and other people’s beliefs. Even false beliefs can offer comfort and reassurance to people. This Article also draws on interdisciplinary and multidisciplinary theories …

You Can't Have Your Vote And Dilute It Too: Closing The Voting Rights Act Loophole In Gerrymandering Claims, Megan B. Kelly

William & Mary Law Review

The problem with creating and enforcing redistricting standards arises poignantly in racial gerrymandering cases that involve VRA section 2 compliance. In many ways, the rights that the Equal Protection Clause seeks to protect are at odds with the rights that section 2 seeks to protect. On the one hand, equal protection asserts a certain color-blindness, an interest in minimizing the focus on race and, in doing so, maximizing equality for all. On the other hand, the VRA suggests, and in fact requires, line-drawers keep at least one eye on race when drawing lines.

These opposing rights create a tension, which …