Law and Race Commons^™

Looking Toward Restorative Justice For Redlined Communities Displaced By Eco-Gentrification, Helen H. Kang

Michigan Journal of Race and Law

MJEAL chose to publish Helen Kang’s piece, Looking Toward Restorative Justice for Redlined Communities Displaced by Eco-Gentrification, because it offers a unique analytic approach for analyzing the roots of environmental racism and the appropriate tools to help rectify it. She offers an argument for why restorative justice needs to be the framework and explains how we can accomplish this in the context of a whole government solution. MJEAL is excited to offer what will be an influential approach for environmental restorative justice to the broader activist and academic community.

Segregation In The Galleries: A Reconsideration, Richard Primus

Michigan Law Review Online

When constitutional lawyers talk about the original meaning of the Fourteenth Amendment as applied to questions of race, they often men-tion that the spectators’ galleries in Congress were racially segregated when Congress debated the Amendment.1 If the Thirty-Ninth Congress practiced racial segregation, the thinking goes, then it probably did not mean to prohibit racial segregation.2 As an argument about constitutional interpretation, this line of thinking has both strengths and weaknesses. But this brief Essay is not about the interpretive consequences, if any, of segregation in the congressional galleries during the 1860s. It is about the factual claim that the galleries …

The New Housing Segregation: The Jim Crow Effects Of Crime-Free Housing Ordinances, Deborah N. Archer

Michigan Law Review

America is profoundly segregated along racial lines. We attend separate schools, live in separate neighborhoods, attend different churches, and shop at different stores. This rigid racial segregation results in social, economic, and resource inequality, with White communities of opportunity on the one hand and many communities of color without access to quality schools, jobs, transportation, or health care on the other. Many people view this as an unfortunate fact of life, or as a relic of legal systems long since overturned and beyond the reach of current legal process. But this is not true. On the contrary, the law continues …

Urban Decolonization, Norrinda Brown Hayat

Michigan Journal of Race and Law

National fair housing legislation opened up higher opportunity neighborhoods to multitudes of middle-class African Americans. In actuality, the FHA offered much less to the millions of poor, Black residents in inner cities than it did to the Black middle class. Partly in response to the FHA’s inability to provide quality housing for low-income blacks, Congress has pursued various mobility strategies designed to facilitate the integration of low-income Blacks into high-opportunity neighborhoods as a resolution to the persistent dilemma of the ghetto. These efforts, too, have had limited success. Now, just over fifty years after the passage of the Fair Housing …

Place, Not Race: Affirmative Action And The Geography Of Educational Opportunity, Sheryll Cashin

University of Michigan Journal of Law Reform

Ultimately, I argue that one important response to the demise of race-based affirmative action should be to incorporate the experience of segregation into diversity strategies. A college applicant who has thrived despite exposure to poverty in his school or neighborhood deserves special consideration. Those blessed to come of age in poverty-free havens do not. I conclude that use of place, rather than race, in diversity programming will better approximate the structural disadvantages many children of color actually endure, while enhancing the possibility that we might one day move past the racial resentment that affirmative action engenders. While I propose substituting …

The 'Compelling Government Interest' In School Diversity: Rebuilding The Case For An Affirmative Government Role, Philip Tegeler

University of Michigan Journal of Law Reform

How far does Justice Kennedy’s “moral and ethical obligation” to avoid racial isolation extend? Does the obligation flow primarily from Supreme Court case law, does it derive from an evolving consensus in the social sciences, or does it also have a statutory basis in Title VI and other federal law? In addition to its value as a justification for non-individualized, race-conscious remedial efforts by state and local governments, does the compelling interest identified in Parents Involved also suggest an affirmative duty on the part of the federal government? And if so, how far does this affirmative duty extend, and how …

Fisher V. Texas: The Limits Of Exhaustion And The Future Of Race-Conscious University Admissions, John A. Powell, Stephen Menendian

University of Michigan Journal of Law Reform

This Article investigates the potential ramifications of Fisher v. Texas and the future of race-conscious university admissions. Although one cannot predict the ultimate significance of the Fisher decision, its brief and pregnant statements of law portends an increasingly perilous course for traditional affirmative action programs. Part I explores the opinions filed in Fisher, with a particular emphasis on Justice Kennedy’s opinion on behalf of the Court. We focus on the ways in which the Fisher decision departs from precedent, proscribes new limits on the use of race in university admissions, and tightens requirements for narrow tailoring. Part II investigates the …

Isolated Confinement In Michigan: Mapping The Circles Of Hell, Elizabeth Alexander, Patricia Streeter

Michigan Journal of Race and Law

For the past twelve months, there has been a burgeoning campaign to abolish, or greatly reduce, the use of segregated confinement in prisons. Advocates for the campaign call such classifications "solitary confinement" despite the fact that in some states, like New York, prisoners in these cells are often double-celled. The Michigan Department of Corrections, as well as other prison systems, uses labels such as "segregation," "special management," "special housing," and "observation" for these classifications. Prisoners ordinarily use traditional terms, such as "the hole." In this Essay we will refer to such restrictive classifications as "segregation" or "segregated confinement." Our perspective …

The Federal Bureau Of Prisons: Willfully Ignorant Or Maliciously Unlawful?, Deborah Golden

Michigan Journal of Race and Law

The Federal Bureau of Prisons ("BOP") and the larger U.S. government either purposely ignore the plight of men with serious mental illness in the federal prison system or maliciously act in violation of the law. I have no way of knowing which it is. In a complex system comprising many individual actors, motivations are most likely complex and contradictory. Either way, uncontrovertibly, the BOP and the U.S. government, against overwhelming evidence to the contrary, continuously assert that there are no men with serious mental illnesses housed in the federal supermax prison, the Administrative Maximum facility in Florence, Colorado, also known …

Citizen Police: Using The Qui Tam Provision Of The False Claims Act To Promote Racial And Economic Integration In Housing, Jan P. Mensz

University of Michigan Journal of Law Reform

Economic and racial integration in housing remains elusive more than forty years after the passage of the Fair Housing Act. Recalcitrant municipal governments and exclusionary zoning ordinances have played a large role in maintaining and exacerbating segregated housing patterns. After discussing some of the persistent causes of segregated housing patterns, this Note presents a novel approach to enforcing the Fair Housing Act and the "affirmatively furthering fair housing" requirement on recipients of federal housing grants. This Note presents a citizen suit that emerged from the Southern District of New York in Anti-Discrimination Center v. Westchester County, where a private …

"The Prejudice Of Caste": The Misreading Of Justice Harlan And The Ascendency Of Anticlassificaiton, Scott Grinsell

Michigan Journal of Race and Law

This Article reconsiders the familiar reading of Justice Harlan's dissent in Plessy v. Ferguson as standing for the principle of constitutional colorblindness by examining the significance of Harlan's use of the metaphor "caste" in the opinion. By overlooking Harlan's invocation of "caste," it argues that conservative proponents of anticlassification have reclaimed the opinion for "colorblindness," and buried a powerful statement of the antisubordination principle that is at the heart of our equality law. The Article begins by examining the emergence of a reading of the opinion as articulating a view of equality law based in anticlassification. The Article then returns …

Contingent Equal Protection: Reaching For Equality After Ricci And Pics, Jennifer S. Hendricks

Michigan Journal of Gender & Law

This Article uses the term contingent equal protection to describe the constitutional analysis that applies to a range of governmental efforts to ameliorate race and sex hierarchies. "Contingent" refers to the fact that the equal protection analysis is contingent upon the existence of structural, de facto inequality. Contingent equal protection cases include those that involve explicit race and sex classifications, facially neutral efforts to reduce inequality, and accommodation of sex differences to promote equality. Uniting all three kinds of cases under a single conceptual umbrella reveals the implications that developments in one area can have for the other two.

Addressing Segregation In The Brown Collar Workplace: Toward A Solution For The Inexorable 100%, Leticia M. Saucedo

University of Michigan Journal of Law Reform

Despite public perception to the contrary, segregated workplaces exist in greater number today than ever before, largely because of the influx of newly arrived immigrant workers to low-wage industries throughout the country. Yet existing antidiscrimination frameworks no longer operate adequately to rid workplaces of the segregation that results from targeting immigrant workers. This Article suggests a new anti-discrimination framework to address workplace segregation. The Article reviews how litigants have attempted to rid the workplace of conditions resulting from segregated departments through existing anti-discrimination frameworks. It then suggests a simple, yet powerful, shift in the inferences that can be drawn from …

From Pedagogical Sociology To Constitutional Adjudication: The Meaning Of Desegregation In Social Science Research And Law, Anne Richardson Oakes

Michigan Journal of Race and Law

In the United States following the case of Brown v. Board of Education (1954) federal judges with responsibility for public school desegregation but no expertise in education or schools management appointed experts from the social sciences to act as court advisors. In Boston, MA, educational sociologists helped Judge W. Arthur Garrity design a plan with educational enhancement at its heart, but the educational outcomes were marginalized by a desegregation jurisprudence conceptualized in terms of race rather than education. This Article explores the frustration of outcomes in Boston by reference to the differing conceptualizations of desegregation in law and social science. …

Public Rights, Social Equality, And The Conceptual Roots Of The Plessy Challenge, Rebecca J. Scott

Articles

This Article argues that the test case that gave rise to the 1896 decision in Plessy v. Ferguson is best understood as part of a wellestablished, cosmopolitan tradition of anticaste activism in Louisiana rather than as a quixotic effort that contradicted nineteenth-century ideas of the boundaries of citizens' rights. By drawing a dividing line between civil and political rights, on the one hand, and social rights, on the other, the Supreme Court construed challenges to segregation as claims to a "social equality" that was beyond the scope of judicially cognizable rights. The Louisiana constitutional convention of 1867-68, however, had defined …

The Current State Of Residential Segregation And Housing Discrimination: The United States' Obligations Under The International Convention On The Elimination Of All Forms Of Racial Discrimination, Michael B. De Leeuw, Megan K. Whyte, Dale Ho, Catherine Meza, Alexis Karteron

Michigan Journal of Race and Law

The United States government accepted a number of obligations related to housing when it ratified the International Convention on the Elimination of All Forms of Racial Discrimination ("CERD"). For example, the United States government must ensure that all people enjoy the rights to housing and to own property, without distinction as to race; cease discriminatory actions, including those that are discriminatory in effect regardless of intent; and take affirmative steps to remedy past discrimination and eradicate segregation. This Article discusses the United States government's compliance with those obligations, as well as the importance of meaningful compliance in maintaining the United …

(Still) Constitutional School De-Segregation Strategies: Teaching Racial Literacy To Secondary School Students And Preferencing Racially-Literate Applicants To Higher Education, Michael J. Kaufman

Michigan Journal of Race and Law

In Parents Involved in Community Schools v. Seattle School Dist. No. 1, the Supreme Court declared that it will continue to scrutinize race-conscious educational decisions to insure that they are narrowly-tailored to serve a compelling governmental interest. This Article develops a strategy for enhancing racial diversity at all levels of American public education that can survive that rigorous constitutional scrutiny. The Article shows that school districts may prove that assigning a meaningful number of racially diverse students to their secondary schools is narrowly-tailored to achieve their compelling educational interest in teaching racial literacy. The constitutionality of this race-conscious educational …

Without Color Of Law: The Losing Race Against Colorblindness In Michigan, Khaled Ali Beydoun

Michigan Journal of Race and Law

This Essay examines affirmative action, while discussing its fall in California, Washington State, and ultimately Michigan.

Race Nuisance: The Politics Of Law In The Jim Crow Era, Rachel D. Godsil

Michigan Law Review

This Article explores a startling and previously unnoticed line of cases in which state courts in the Jim Crow era ruled against white plaintiffs trying to use common law nuisance doctrine to achieve residential segregation. These "race-nuisance" cases complicate the view of most legal scholarship that state courts during the Jim Crow era openly eschewed the rule of law in service of white supremacy. Instead, the cases provide rich social historical detail showing southern judges wrestling with their competing allegiances to both precedent and the pursuit of racial exclusivity. Surprisingly, the allegiance to precedent generally prevailed. The cases confound prevailing …

Urban Legends, Desegregation And School Finance: Did Kansas City Really Prove That Money Doesn't Matter?, Preston C. Green Iii, Bruce D. Baker

Michigan Journal of Race and Law

This Article examines whether conservative critics are correct in their assertion that the Kansas City, Missouri School District (KCMSD) desegregation plan clearly establishes that no correlation exists between funding and academic outcomes. The first section provides a summary of public education in KCMSD prior to 1977, the beginning of the Missouri v. Jenkins school desegregation litigation. The second and third sections analyze whether the Jenkins desegregation and concurrent school finance litigation (Committee for Educational Equality v. State) addressed these problems. The fourth section provides an overview of school finance litigation and explains how KCMSD desegregation plan has been …

A History Of Hollow Promises: How Choice Juisprudence Fails To Achieve Educational Equality, Anita F. Hill

Michigan Journal of Race and Law

This Article combines analysis of case law at state and federal levels as well as federal educational policy in an effort to formulate a framework for addressing educational inequalities, of which the achievement gap is only one result. As individual rights concepts control the discourse of equal educational opportunity, community injury continues to be ignored. Because educational policy aimed at ending educational inequities is governed by equal protection analysis and guided by court decisions, limitations in legal opinions drive such policies. The lack of attention to community harm in law and educational policy limits the ability of education legal reforms …

Caught In The Trap: Pricing Racial Housing Preferences, A. Mechele Dickerson

Michigan Law Review

In The Two-Income Trap, Harvard Law School Professor Elizabeth Warren and business consultant Amelia Warren Tyagi reach a startling conclusion: a two-income middle-class family faces greater financial risks today than a one-income family faced three decades ago. Middle-class families are caught in an "income trap" because they budget based on two incomes and face financial ruin if they lose an income or incur unexpected expenses. The authors suggest that most middle-class families cannot quickly adjust their budgets because their largest monthly expense is the fixed mortgage payment. The parents maintained that they had to allocate a significant portion of …

Bolling Alone, Richard A. Primus

Articles

Under the doctrine of reverse incorporation, generally identified with the Supreme Court's decision in Bolling v. Sharpe, equal protection binds the federal government even though the Equal Protection Clause by its terms is addressed only to states. Since Bolling, however, the courts have almost never granted relief to litigants claiming unconstitutional racial discrimination by the federal government. Courts have periodically found unconstitutional federal discrimination on nonracial grounds such as sex and alienage, and reverse incorporation has also limited the scope of affirmative action. But in the presumed core area of preventing federal discrimination against racial minorities, Boiling has virtually no …

Derechos Y Honra Públicos: Louis Martinet, Plessy Contra Ferguson Y El Acceso A La Ley En Luisiana, 1888-1917, Rebecca J. Scott

Articles

Rebecca J. Scott explores the historical context of Plessy v. Ferguson to two ends. First, Scott argues that that the historical situation, including everyday legal practice, helps us understand the source of the arguments in the case. In particular, the plaintiffs based their understanding of their rights in the French revolution, the Louisiana Constitution, and their experience exercising their rights through notaries. Second, Scott argues that the plaintiffs and defendants sought to frame the case with different rights. For the plaintiffs, the issue with the Separate Car Act was "public rights" and "the dignity of citizenship." The defendants instead framed …

The Journey From Brown V. Board Of Education To Grutter V. Bollinger: From Racial Assimilation To Diversity, Harry T. Edwards

Michigan Law Review

Fifty years ago, in Brown v. Board of Education, the Supreme Court confronted a precise and straightforward question: "Does segregation of children in public schools solely on the basis of race, even though the physical facilities and other 'tangible' factors may be equal, deprive the children of the minority group of equal educational opportunities?" The Court's answer was precise and straightforward: "We conclude that in the field of public education the doctrine of "separate but equal" has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs ... are, by reason of the segregation complained of, …

Live And Let Love: Self-Determination In Matters Of Intimacy And Identity, Kim Forde-Mazrui

Michigan Law Review

Are you free to choose the race of your spouse, . . . of your child, . . . of yourself? Historically, the legal and social answer to these questions was No. Matters of racial identity and interracial intimacy were strictly circumscribed by ideologies of racial essentialism and separation, ostensibly rooted in science, morality, and religion. In contrast, according to Professor Randall Kennedy in his new book, Interracial Intimacies: Sex, Marriage, Identity, and Adoption, the answer to all three questions should be a resounding Yes. The exclusive source of racial identification and intimacy should be individual choice, free from legal …

Cleansing Moments And Retrospective Justice, Margaret M. Russell

Michigan Law Review

We live in an era of questioning and requestioning long-held assumptions about the role of race in law, both in criminal prosecutions specifically and in the legal process generally. Certainly, the foundational framework is not new; for decades, both legal literature and jurisprudence have explored in great detail the realities of racism in the legal system. Even among those who might prefer to ignore the role of race discrimination in more than two centuries of American law, denial is no longer a viable or intellectually defensible option. Rather, debate now centers upon whether or not the extensive history of American …

American Racial Jusice On Trial - Again: African American Reparations, Human Rights, And The War On Terror, Eric K. Yamamoto, Susan K. Serrano, Michelle Natividad Rodriguez

Michigan Law Review

Much has been written recently on African American reparations and reparations movements worldwide, both in the popular press and scholarly publications. Indeed, the expanding volume of writing underscores the impact on the public psyche of movements for reparations for historic injustice. Some of that writing has highlighted the legal obstacles faced by proponents of reparations lawsuits, particularly a judicial system that focuses on individual (and not group-based) claims and tends to squeeze even major social controversies into the narrow litigative paradigm of a two-person auto collision (requiring proof of standing, duty, breach, causation, and direct injury). Other writings detail the …

Emotional Segregation: Huckleberry Finn In The Modern Classroom, Sharon E. Rush

University of Michigan Journal of Law Reform

In this article, I explore emotional segregation and how it functions in the context of Huckleberry Finn for both personal and academic reasons. Recently, I read Huckleberry Finn because it had been assigned to my daughter's middle school class. I was concerned for her welfare because she is Black and worried how the book would affect her. To understand her reactions, I had to understand the controversy surrounding the book, particularly as a White mother I have reflected quite deeply on the question whether the book is racist. I define "racism" as a belief in the myth of White superiority …

Se Battre Our Ses Droits Écritures, Litiges Et Discrimination Raciale En Louisiane (1888-1899), Rebecca J. Scott

Articles

Title in English: Fighting for public rights: writing, lawsuits and racial segregation in Louisiana (1888-1889).

This article explores the links between the fight against compulsory racial segregation and the day–to–day operation of the law in nineteenth century Louisiana. Using the figure of Louis A. Martinet, one of the organizers of the test case that yielded the U.S. Supreme Court decision Plessy v. Ferguson, the essay argues that Martinet’s role as notary reflects the central importance to the community of color of questions of public standing and written records. The article also identifies the concepts of "public rights" and "public liberties" …