Law and Race Commons^™

Defense Against The Dark Arts: The Diversity Rationale And The Failed Affirmative Defense Of Affirmative Action, Sheldon Bernard Lyke

Washington and Lee Law Review

Over the past forty years, affirmative action advocates have participated in a defensive campaign where they have admitted that affirmative action is a form of justified discrimination. This Article finds this a dangerous strategy because it allows for the practice of misguided beliefs about race and remedies for racism. When schools fail to fight the pernicious perception that affirmative action is a racial preference, they allow the bulk of society to participate in the belief that there are no other remedial justifications for affirmative action—like remedying an institution’s history of discrimination, or curing a school’s present and ongoing discrimination by …

Resistance Proceduralism: A Prologue To Theorizing Procedural Subordination, Portia Pedro

Washington and Lee Law Review

Several legal scholars have discussed the role of slavery within their own family histories and a growing number of scholars are exploring the successes and strategies of lawyers and Black litigants in freedom suits and other litigation in the United States antebellum South. I build on these literatures with a focus on procedure. In this Article, I analyze procedures involved in a few of my ancestral and personal experiences. Some of the experiences with process involved litigation to be free from slavery while other experiences did not explicitly involve any law. But they all involved process.

Engaging in this practice—marshaling …

The Impact Of Government Sponsored Segregation On Health Inequities: Addressing Death Gaps Through Reparations, Mariya Denisenko

Washington and Lee Law Review

Government sponsored segregation of urban neighborhoods has detrimentally impacted the health of Black Americans. Over the last century, federal, state, and local governments have promulgated racist laws and policies that shaped the racial divide of communities in major metropolitan cities. This divide has contributed to poor health outcomes and large discrepancies in life expectancy for Black Americans when compared to their White counterparts. While health is impacted by various factors, segregation has been shown to impose various challenges that make it difficult for Black Americans to attain good health.

Segregated Black communities struggle with economic inequality, environmental racism, and face …

Transforming The Future Of Work By Embracing Corporate Social Justice, Andrea Giampetro-Meyer

Washington and Lee Journal of Civil Rights and Social Justice

Professionals from Generations Y (millennials) and Z (Gen Z or zoomers) expect their employers to embrace diversity, equity and inclusion (DEI). They want to work for companies that support individuals of various races, ethnicities, religions, abilities, genders, and sexual orientations. Professionals from these generations are seeking employers that have created a diverse workforce, clear promotion track, and a commitment to dismantling systemic racism. Companies that want to attract top talent are making DEI a priority. They are also implementing action plans to demonstrate their serious commitment to DEI because millennials and zoomers are quick to recognize and criticize performative approaches. …

Removing White Hoods From The Blue Line: A Legislative Solution To White Supremacy In Law Enforcement, Hope Elizabeth Barnes

Washington and Lee Journal of Civil Rights and Social Justice

On May 25, 2020, George Floyd took his final breaths. His death at the hands of multiple Minneapolis police officers was recorded by witnesses and viewed by millions. The public response to Floyd’s death was immediate and powerful. Americans were demanding change on a greater scale than ever before. The problem with policing is not Derek Chauvin, or the Minneapolis Police Department, but rather with the very institution. White supremacy is alive and well in American policing. This Note begins by examining the historic connection between white supremacist groups and law enforcement agencies. This Note then evaluates existing standards of …

Policing The College Campus: History, Race, And Law, Vanessa Miller, Katheryn Russell-Brown

Washington and Lee Journal of Civil Rights and Social Justice

The structure, impact, and historical roots of campus policing on the American college campus receives little academic attention. In fact, campus policing is often overlooked in legal analyses and research studies, including its relationship to race. Campus policing and race deserves a critical assessment from legal scholars because race is fixed to the ways the criminal-legal system presents itself on campus. The racialized implications of policing on campus are rooted in historical social and legal contexts that still exist today. However, the lack of research on campus policing is not surprising. American colleges and universities have successfully marketed themselves as …

High Anxiety: Racism, The Law, And Legal Education, Elayne E. Greenberg

Washington and Lee Journal of Civil Rights and Social Justice

Conspicuously absent from the United States’ ongoing discourse about its racist history is a more honest discussion about the individual and personal stressors that are evoked in people when they talk about racism. What if they got it wrong? The fear of being cancelled -- the public shaming for remarks that are deemed racist -- has had a chilling effect on having meaningful conversations about racism. What lost opportunities!

This paper moves this discussion into the law school context. How might law schools rethink their law school curricula to more accurately represent the role systemic racism has played in shaping …

Sheriffs, Shills, Or Just Paying The Bills?: Rethinking The Merits Of Compelling Merchant Cooperation With Third-Party Policing In The Aftermath Of George Floyd’S Death, Stephen Wilks

Washington and Lee Law Review

This Article frames the killing of George Floyd as the result of flawed business regulation. More specifically, it captures the expansion of third-party policing paradigms throughout local nuisance abatement regulations over a period of time that coincided with the militarization of policing culture across the United States. Premised on the notion that law enforcement alone cannot succeed in reducing crime and disorder, such regulations transform grocery stores, pharmacies, bars, and other retail spaces into surveillance hubs by prescribing situations that obligate businesses to contact the police. This regulatory framework, however, sustains the larger historical project of rationalizing enhanced scrutiny of …

Taking The Knee No More: Police Accountability And The Structure Of Racism, David Dante Troutt

Washington and Lee Law Review

From before the birth of the republic to the present day, police brutality has represented a signature injustice of state authority, especially against African Americans. Defining that injustice is the lack of accountability for official misconduct. The rule of law has systematically failed to deter lawbreaking by its law enforcement departments. This Article explores the various legal and institutional means by which accountability should be imposed and demonstrates the design elements of structured immunity. Using Critical Race Theory and traditional civil rights law notions of how structural racism operates, this Article argues that transformative change can only come about through …

Higher Education Redress Statutes: A Critical Analysis Of States’ Reparations In Higher Education, Christopher L. Mathis

Washington and Lee Law Review

This Article introduces a novel concept, higher education redress statutes (“HERS”), to illustrate efforts that acknowledge and amend past wrongs towards African Americans. More proximally, the Article shines a probing light on the escalation of HERS in southeastern states that serve as a site for state regulation and monitoring. The Author exposes how higher education redress statutes, designed to provide relief or remedy to Black people for states’ higher education’s harm, categorically ignore groups of Black people who rightfully should also be members of the statutorily protected class. This Article queries whether legislators can expand the scope of such statutes …

The Black Fourth Amendment, Charisma Hunter

Washington and Lee Law Review Online

Policing Black bodies serves at the forefront of the American policing system. Black bodies are subject to everlasting surveillance through institutions and everyday occurrences. From relaxing in a Starbucks to exercising, Black bodies are deemed criminals, surveilled, profiled, and subjected to perpetual implicit bias when participating in mundane activities. Black people should have the same protections as white people and should possess the ability to engage in everyday, commonplace, and routine activities.

The Fourth Amendment was not drafted with the intention of protecting Black bodies. In fact, Black bodies were considered three-fifths of a person at the drafting of the …

Revisiting The Ox-Bow Incident: The Almost Forgotten Western Classic About The Lynching Of Three Innocent Men Is As Relevant As Ever, Marc Bookman

Washington and Lee Journal of Civil Rights and Social Justice

The concept of lynching, several hundred years old and unclear in its origins, has never really left the lexicon. The word itself, however, has taken on different meanings over the years, from a mob’s taking the law into its own hands, to an organized utilization of racial violence as a means of societal control and intimidation; and finally to the more casual and defensive use of the word (“high tech lynching”) by current Supreme Court justices Thomas and Kavanaugh and others after being questioned about their past behaviors. Many academics have opined that the modern system of capital punishment is …

Check Your Bank Account First: Examining Copyright Formalities And Remedies Through A Race Conscious Lens, Emma Burri

Washington and Lee Journal of Civil Rights and Social Justice

This Note examines copyright formalities through a race conscious lens and concludes that further change is necessary given the legacy of economic inequality that communities of color experience. It examines the history of copyright formalities in the United States and the disenfranchisement of Black musical creators through the theft of their intellectual property. In exploring the relationship between race, wealth, and musical copyright protection this Note explains why considering the economic inequality is relevant to ensure copyright protection for Black creators. This Note proposes abolishing the registration timeline for certain remedies and altering the filing fee structure of the copyright …

Birthing Alone, Elizabeth Kukura

Washington and Lee Law Review

Throughout the COVID-19 pandemic, hospitals implemented restrictive visitor policies that have prevented many pregnant people from giving birth with their chosen support people. For some, this meant foregoing labor and delivery support by a birth doula, someone who serves in a nonclinical role and provides emotional, physical, and informational support to birthing people. Given that continuous labor support such as the care provided by doulas is associated with fewer cesareans and other interventions, less need for pain medication, and shorter labors, the promotion of doula care is a promising strategy to ease the maternal health crisis and, in particular, shrink …

(G)Local Intersectionality, Martha F. Davis

Washington and Lee Law Review

Intersectionality theory has been slow to take root as a legal norm at the national level, even as scholars embrace it as a potent analytical tool. Yet, in recent years, intersectionality has entered law and policy practices through an unexpected portal: namely, local governments’ adoption of international norms. A growing number of local governments around the world explicitly incorporate intersectionality into their law and practice as part of implementing international antidiscrimination norms from human rights instruments like the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the Convention on the Elimination of All Forms of …

Murdering Crows: Pauli Murray, Intersectionality, And Black Freedom, Lisa A. Crooms-Robinson

Washington and Lee Law Review

What is intersectionality’s origin story and how did it make its way into human rights? Beginning in the 1940s, Pauli Murray (1910–1985) used Jane Crow to capture two distinct relationships between race and sex discrimination. One Jane used the race-sex analogy to show that race and sex were both unconstitutionally arbitrary. The other Jane captured Black women’s experiences and rights deprivations at the intersection of race and sex. Both Janes were based on Murray’s fundamental belief that the struggles against race and sex discrimination were different phases of the fight for human rights.

In 1966, Murray was part of the …

Foreword: Centering Intersectionality In Human Rights Discourse, Johanna Bond

Washington and Lee Law Review

In the last decade, intersectionality theory has gained traction as a lens through which to analyze international human rights issues. Intersectionality theory is the notion that multiple systems of oppression intersect in peoples’ lives and are mutually constitutive, meaning that when, for example, race and gender intersect, the experience of discrimination goes beyond the formulaic addition of race discrimination and gender discrimination to produce a unique, intersectional experience of discrimination. The understanding that intersecting systems of oppression affect different groups differently is central to intersectionality theory. As such, the theory invites us to think about inter-group differences (i.e., differences between …

Comment: Understanding Xenophobia As Intersectional Discrimination, Shreya Atrey

Washington and Lee Law Review

This Comment examines the nature of xenophobia and why it seems to fall through the cracks of international human rights law, especially as a form of racial discrimination under the International Convention on the Elimination of All Forms of Racial Discrimination. It considers an understanding of xenophobia as a sui generis case of intersectional discrimination because it has to do with racial grounds but also perhaps other grounds (such as nationality, religion, language, culture, and class), which makes it difficult to disentangle the basis of xenophobic discrimination as based on strictly racial grounds alone.

Sexual Violence, Intangible Harm, And The Promise Of Transformative Remedies, Jill C. Engle

Washington and Lee Law Review

This Article describes alternative remedies that survivors of sexual violence can access inside and outside the legal system. It describes the leading restorative justice approaches and recommends one of the newest and most innovative of those—“transformative justice”—to heal the intangible harms of sexual violence. The Article also discusses the intersectional effects of sexual violence on women of color and their communities. It explains the importance of transformative justice’s intersectional approach to redress sexual violence. Transformative justice offers community-based, victim-centric methods that cultivate deep, lasting healing for sexual violence survivors and their communities, with genuine accountability for those who have caused …

How To Get Away With Murder: When A White Male Police Officer Kills A Young Black Person, Mitchell F. Crusto

Washington and Lee Law Review Online

Systemic racism in policing allows police officers, in particular white men, to continue to perpetuate the violent killings of Black people. This violence is not accidental. Rather it is intentional and allowed to continue due to a failure by the Supreme Court to hold police officers accountable. This Article explains how the doctrines of qualified immunity, willful intent, and objective reasonableness, as condoned by the Court, allow police officers to “get away with murder.”

Minority And Vulnerable Populations Voting By Mail: A Convenience Or A Disadvantage, Kylan Sophia Josephine Memminger

Washington and Lee Journal of Civil Rights and Social Justice

Mail-in voting has feverishly gained popularity in the United States over the last few primary and general elections. In light of this new balloting reality, a trend has emerged. Statistics from minority and vulnerable populations reveal that mail-in ballots composed and sent by these groups have been consistently rejected at a higher rate compared to majority populations. This Note begins by surveying the constitutional background for bringing a challenge to voting rights legislation, while confronting the divisive history of legal precedent surrounding these claims. This Note then analyzes the Supreme Court’s decision in Crawford v. Marion County Election Board and …

Honoring Lutie A. Lytle And John Mercer Langston With Our Words, Carliss Chatman

Washington and Lee Law Review

The recent attacks on critical race theory make one fact very clear: the lack of Black voices in public discourse creates distortion and exploitation. This inaugural Black Scholars Book, the first of its kind published annually, is not about defining or justifying critical race theory—as some scholars in this book would not deem themselves to be critical race theorists. Instead, it is about righting the wrongs that enable the weaponization of scholarship by and about Black people. The goal of the W&L Law Review is to hold space for scholarship of historically marginalized and silenced voices. This inaugural book contains …

The Golem In The Machine: Ferpa, Dirty Data, And Digital Distortion In The Education Record, Najarian R. Peters

Washington and Lee Law Review

Like its counterpart in the criminal justice system, dirty data—data that is inaccurate, incomplete, or misleading—in K-12 education records creates and catalyzes catastrophic life events. The presence of this data in any record suggests a lack of data integrity. The systemic problem of dirty data in education records means the data stewards of those records have failed to meet the data integrity requirements embedded in the Family Educational Rights and Privacy Act (FERPA). FERPA was designed to protect students and their education records from the negative impact of erroneous information rendered from the “private scribblings” of educators. The legislative history …

Whiteness As Contract, Marissa Jackson Sow

Washington and Lee Law Review

2020 forced scholars, policymakers, and activists alike to grapple with the impact of “twin pandemics”—the COVID-19 pandemic, which has devastated Black and Indigenous communities, and the scourge of structural and physical state violence against those same communities—on American society. As atrocious acts of anti-Black violence and harassment by law enforcement officers and white civilians are captured on recording devices, the gap between Black people’s human and civil rights and their living conditions has become readily apparent. Less visible human rights abuses camouflaged as private commercial matters, and thus out of the reach of the state, are also increasingly exposed as …

Deportation And Depravity: Does Failure To Register As A Sex Offender Involve Moral Turpitude?, Rosa Nielsen

Washington and Lee Law Review

Under U.S. immigration law, non-citizens are subject to deportation following certain criminal convictions. One deportation category is for “crimes involving moral turpitude,” or CIMTs. This category usually refers to crimes that involve fraud or actions seen as particularly depraved. For example, tax evasion and spousal abuse are CIMTs, but simple assault generally is not. For a crime to qualify as a CIMT, it must include depraved conduct and some level of intent.

The CIMT framework has been criticized for a variety of reasons. Not only is it defined ambiguously with outdated language, but the moral values it enshrines can sometimes …

The Other Ordinary Persons, Fred O. Smith, Jr.

Washington and Lee Law Review

If originalism aims to center the original public meaning of text, who constitutes “the public”? Are we doing enough to capture historically excluded voices: impoverished white planters; dispossessed Natives; silenced women; and the enslaved? If not, what more is required? And for those who are not originalists, how do we ensure that, as American law consults the wisdom of the ages, we do not sever entire sources of wisdom?

This brief symposium Article engages these themes, offering two modest, interrelated claims. The first is that important informational, ethical, and democratic benefits accrue when American legal doctrine includes the voices and …

Antiracist Remedial Approaches In Judge Gregory’S Jurisprudence, Leah M. Litman

Washington and Lee Law Review

This piece uses the idea of antiracism to highlight parallels between school desegregation cases and cases concerning errors in the criminal justice system. There remain stark, pervasive disparities in both school composition and the criminal justice system. Yet even though judicial remedies are an integral part of rooting out systemic inequality and the vestiges of discrimination, courts have been reticent to use the tools at their disposal to adopt proactive remedial approaches to address these disparities. This piece uses two examples from Judge Roger Gregory’s jurisprudence to illustrate how an antiracist approach to judicial remedies might work.

Foreword: Humanity, Dignity, And Grace, Brant J. Hellwig

Washington and Lee Law Review

Commentary from Dean Brant Hellwig of the Washington and Lee University School of Law on the 2020-2021 Annual Lara D. Gass Symposium celebrating Hon. Roger L. Gregory, Chief Judge of the U.S. Court of Appeals for the Fourth Circuit, and this special issue of the Law Review featuring scholarship relating to that event.

Antiracism In Action, Daniel Harawa, Brandon Hasbrouck

Washington and Lee Law Review

Racism pervades the criminal legal system, influencing everything from who police stop and search, to who prosecutors charge, to what punishments courts apply. The Supreme Court’s fixation on colorblind application of the Constitution gives judges license to disregard the role race plays in the criminal legal system, and all too often, they do. Yet Chief Judge Roger L. Gregory challenges the facially race-neutral reasoning of criminal justice actors, often applying ostensibly colorblind scrutiny to achieve a color-conscious jurisprudence. Nor is he afraid of engaging directly in a frank discussion of the racial realities of America, rebuking those within the system …

Which America?: Judge Roger L. Gregory And The Tradition Of African-American Political Thought, Daniel Fryer

Washington and Lee Law Review

In this Article, written in connection with a symposium honoring Chief Judge Roger L. Gregory’s twenty years on the bench, I place Judge Gregory’s jurisprudence within the tradition of African-American political thought. I suggest that, at bottom, Judge Gregory has a leveling-up jurisprudence that seeks to interpret the Constitution in a way that ensures the least well-off in society are granted the same rights as the most privileged. This brand of democratic theorizing approximates a mainstream position by Black political theorists optimistically seeking to have the least well-off integrated into a fully equal society. By comparing and contrasting his work …