Law and Race Commons^™

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 …

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 …

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 …

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 Unintended Consequences Of The Court's Religious Freedom Revolution: A History Of White Supremacy And Private Christian Church Schools, Vania Blaiklock

Scholarly Articles

Although private church schools have historically received less attention than charter schools and other private nonsectarian schools in public discourse, in recent years, the Supreme Court’s First Amendment jurisprudence has allowed private church schools to make great strides in achieving state funding. At a time where public education is facing criticism on all sides, it seems natural that school choice supporters are more vocal than ever. This Essay takes a closer look at private church schools and their relationship to white supremacy in anticipation of the Court’s decision in Carson ex rel. O.C. v. Makin. Ultimately, that case will …

Two Sides Of The Same Token: An Examination Of Segregation, Memory, And White Supremacy In Contemporary Church Schools, Vania Barbriana Blaiklock

Scholarly Articles

A Thesis presented to the Graduate Faculty of The College of William & Mary in Candidacy for the Degree of Master of Arts

This thesis is a portfolio containing two essays about private Christian church schools with an introductory essay to connect both projects. The first essay, “A Convergence of Purpose: Segregation and White Supremacy in Contemporary Church Schools,” is a comprehensive examination of the development and creation of church schools that first looks at the distinction between church schools and segregation academies, and then assesses the relevance that the distinction, or the lack thereof, plays in maintaining white supremacy …

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.

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 …

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 …

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 …

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 …

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.

The Soft-Shoe And Shuffle Of Law School Hiring Committee Practices, Carliss N. Chatman, Najarian R. Peters

Scholarly Articles

It is in the spirit of Ida B. Wells that we seek to turn the light upon the systemic racism of hiring practices. We believe these practices are indicators of the systemic failures on campuses and in workplaces that prevent them from being antiracist. We seek to use this Essay as a “tool for exposing, analyzing, and challenging the majoritarian stories of racial privilege.”

Our specifc intention is to recognize the largely performative nature of claiming to be committed to an idea while substantively and concretely ensuring the opposite. This Essay is written with specific experiences, patterns, and practices in …

Equity Over Equality: Equal Protection And The Indian Child Welfare Act, Lucy Dempsey

Washington and Lee Law Review Online

In 2018, a Texas District Court shocked the nation by declaring the Indian Child Welfare Act (ICWA) unconstitutional pursuant to the Equal Protection Clause of the U.S. Constitution. The decision was overturned by the Fifth Circuit but may well be appealed to the U.S. Supreme Court. The ICWA provides a framework for the removal and placement of Indian children into foster and adoptive homes in such a way that attempts to reflect the unique values of Indian culture and supports the autonomy of the tribe. In doing so, the law treats Indian children differently than it would White children. But …

Weathering The Pandemic: Dying Old At A Young Age From Pre-Existing Racist Conditions, Arline T. Geronimus

Washington and Lee Journal of Civil Rights and Social Justice

Mainstream social epidemiology now acknowledges the contributions of interpersonal racism, racialized stress, and implicit bias to population health inequity. It also increasingly recognizes that current and historical racist policies place barriers in the way of healthy lifestyles by institutionalizing food deserts, housing decay, and austerity urbanism. Essential as these developments are, they only skim the surface of how insidiously structural racism establishes and reproduces population health inequity. I coined the term “weathering” to describe the effects of sustained cultural oppression upon the body. Weathering expands on the more conventional “social determinants of health” approach to understand the contextually fluctuating and …

Empathy’S Promise And Limits For Those Disproportionately Harmed By The Covid-19 Pandemic, Theresa Glennon

Washington and Lee Journal of Civil Rights and Social Justice

Structural race, ethnicity, and class disparities in the United States concentrated and intensified the health, economic, and psychological impact of COVID-19 for certain populations. Those same structural disparities and the belief system that maintains them may also account for the weak policy response that left the United States with high rates of infection and death, economic devastation of individuals, families, and small businesses, and psychological distress. A more equal society with a stronger pre-pandemic safety net may have prevented or eased the disproportionate hardship and avoided the drama and cliffhanging. Or the shock of a pandemic and likelihood of extreme …

School Finance, Race, And Reparations, Preston C. Green Iii, Bruce D. Baker, Joseph O. Oluwole

Washington and Lee Journal of Civil Rights and Social Justice

In this article, we explain why and how school finance reform should be a part of a reparations program for Black Americans. This article proceeds in six parts. Part I explains how Black-white school funding disparities occurred during the separate-but-equal era. Part II discusses how these funding disparities have occurred in the aftermath of the Brown decision. Parts III and IV explore why school desegregation and school finance litigation, respectively, have failed to remedy these gaps. Part V lays out a reparations framework that state legislatures could adopt to provide restitution to schools and taxpayers harmed by state policies creating …

Can “Asians” Truly Be Americans?, Vinay Harpalani

Washington and Lee Journal of Civil Rights and Social Justice

Recent, tragic events have brought more attention to hate and bias crimes against Asian Americans. It is important to address these crimes and prevent them in the future, but the discourse on Asian Americans should not end there. Many non-Asian Americans are unaware or only superficially aware of the vast diversity that exists among us, along with the challenges posed by that diversity. Some have basic knowledge of the immigration and exclusion of Asian Americans, the internment of Japanese Americans which was upheld in Korematsu v. United States, and the “model minority stereotype”, but these are Asian Americans 101. This …

Persistent Inequalities, The Pandemic, And The Opportunity To Compete, Rachel F. Moran

Washington and Lee Journal of Civil Rights and Social Justice

Even before the recent coronavirus pandemic, race, ethnicity, and socioeconomic status played a powerful role in allocating opportunity—in the public schools and elsewhere. The pandemic has laid bare the dimensions of this inequality with a new and alarming clarity. In this essay, I first will focus on the landscape of educational inequity that existed before the coronavirus forced public schools to shut down. In particular, I will explore patterns of racial and ethnic segregation in America’s schools and how those patterns are linked to additional challenges based on socioeconomic isolation. In addition, I will consider the role of language and …

Technological Tethereds: Potential Impact Of Untrustworthy Artificial Intelligence In Criminal Justice Risk Assessment Instruments, Sonia M. Gipson Rankin

Washington and Lee Law Review

Issues of racial inequality and violence are front and center today, as are issues surrounding artificial intelligence (“AI”). This Article, written by a law professor who is also a computer scientist, takes a deep dive into understanding how and why hacked and rogue AI creates unlawful and unfair outcomes, particularly for persons of color.

Black Americans are disproportionally featured in criminal justice, and their stories are obfuscated. The seemingly endless back-to-back murders of George Floyd, Breonna Taylor, Ahmaud Arbery, and heartbreakingly countless others have finally shaken the United States from its slumbering journey towards intentional criminal justice reform. Myths about …

Profiting From Our Pain: Privileged Access To Social Impact Investing, Cary Martin Shelby

Scholarly Articles

Social impacting investing has become the latest trend to permeate the financial markets. With massive anticipated funding gaps for sustainable development goals, and a millennial-driven thirst for doing good while doing well, this trend is likely to continue in the coming decades. This burgeoning industry is poised to experience yet an additional boost, since it provides an alternative mechanism for private actors to “profit from our pain,” particularly in the wake of the COVID-19 pandemic and the Black Lives Matter movement.

As to be expected, the law has not sufficiently adapted to this new wave of innovation. Scholars have thus …

The Unconstitutional Police, Brandon Hasbrouck

Scholarly Articles

Most Fourth Amendment cases arise under a basic fact pattern. Police decide to do something--say, stop and frisk a suspect. They find some crime--say, a gun or drugs--they arrest the suspect, and the suspect is subsequently charged with a crime. The suspect--who is all too often Black--becomes a defendant and challenges the police officers' initial decision as unconstitutional under the Fourth Amendment. The defendant seeks to suppress the evidence against them or perhaps to recover damages for serious injuries under 42 U.S.C. § 1983. The courts subsequently constitutionalize the police officers' initial decision with little or no scrutiny. Effectively, the …

The Just Prosecutor, Brandon Hasbrouck

Scholarly Articles

As the most powerful actors in our criminal legal system, prosecutors have been and remain one of the principal drivers of mass incarceration. This was and is by design. Prosecutorial power derives from our constitutional structure--prosecutors are given almost unfettered discretion to determine who to charge, what to charge, and, often, what the sentence will be. Within that structure, the prosecutor's duty is to ensure that justice is done. Yet, in exercising their outsized power, some prosecutors have fully embraced a secondary, adversarial role as a partisan advocate at the significant cost of seeking justice.

The necessary reforms of our …

Cancelling Justice? The Case Of James Clark Mcreynolds, Todd C. Peppers

Scholarly Articles

Over the last several years, there has been a vigorous debate as to whether monuments and memorials of Confederate leaders and controversial historical figures should be purged from the public square. These conversations have included former Supreme Court justices and have led to the removal of multiple statues of former Chief Justice Roger Taney, author of the infamous “Dred Scott” decision. Drawing on the arguments mounted for and against the removal of statues, this article explores the decision of a small liberal arts college to strip the name of former Supreme Court Justice James Clark McReynolds from a campus building. …

Say The Magic Words: Establishing A Historically Informed Standard To Prevent Partisanship From Shielding Racial Gerrymanders From Federal Judicial Review, Emily K. Dalessio

Washington and Lee Law Review

In its 2019 decision in Rucho v. Common Cause, the Supreme Court closed the doors of the federal courts to litigants claiming a violation of their constitutional rights based on partisan gerrymandering. In Rucho, the Court held that partisan gerrymandering presents a political question that falls outside the jurisdiction of the federal courts. However, the Supreme Court did not address an insidious consequence of this ruling: namely, that map-drawers may use partisan rationales to obscure what is otherwise an unconstitutional racial gerrymander. This Note uses North Carolina as an example of a state with a long history of …

A Reckoning Over Law Faculty Inequality, Melanie D. Wilson

Scholarly Articles

Below, I review Dr. Meera E. Deo’s book, Unequal Profession: Race and Gender in Legal Academia, published last year by Stanford University Press. In Unequal Profession, Deo, an expert on institutional diversity, presents findings from a first-of-its-kind empirical study, documenting many of the challenges women of color law faculty confront daily in legal academia. Deo uses memorable quotes and powerful stories from the study’s faculty participants to present her important work in 169 readable and revealing pages. Unequal Profession begins by outlining the barriers women of color face when entering law teaching and progresses through the life cycle …

Sentencing Disparities And The Dangerous Perpetuation Of Racial Bias, Jelani Jefferson Exum

Washington and Lee Journal of Civil Rights and Social Justice

This Article addresses the role that racial disparities—specifically sentencing disparities—play in perpetuating the racial bias that increases the daily danger of living as a Black American in the United States. As documented in the news and by sometimes humorous internet memes, White people have called the police many times to report Black people who were simply living as any other American. This trend highlights the manner in which the U.S. criminal justice system’s racial inequities feed into biased beliefs about Black criminality. This Article argues that instead of tackling implicit bias as a means to fight sentencing and other criminal …

Abolishing Racist Policing With The Thirteenth Amendment, Brandon Hasbrouck

Scholarly Articles

This Essay was also published online at 67 UCLA L. Rev. Disc. 200 (2020).

Policing in America has always been about controlling the Black body. Indeed, modern policing was birthed and nurtured by white supremacy; its roots are found in slavery. Policing today continues to protect and serve the racial hierarchy blessed by the Constitution itself. But a string of U.S. Supreme Court rulings involving the Thirteenth Amendment offers Congress a tool with which to target institutions that have preserved social, political, and official norms associated with slavery. In those cases, the Supreme Court held that Congress has broad enforcement …

Bringing Racial Justice To The Courtroom And Community: Race Matters For Juvenile Justice And The Charlotte Model, Susan Mccarter, Elisa Chinn-Gary, Louis A. Trosch, Jr., Ahmed Toure, Abraham Alsaeedi, Jennifer Harrington

Washington and Lee Law Review Online

This article describes regional institutional organizing efforts to bring racial justice to the Charlotte courts and community through a collaborative called Race Matters for Juvenile Justice (RMJJ). The authors explain community and institutional organizing in-depth using the example of minority overrepresentation in the juvenile justice system, but recognize the pervasiveness of racial and ethnic disparities. Moreover, as the Race Matters for Juvenile Justice-Charlotte Model has gained national prominence, many jurisdictions seek to replicate the collaborative and the authors, therefore, provide RMJJ’s history as well as strategies for changing the narrative through communication and education, workforce development, data and research, community …

Response To Keeping Cases From Black Juries: An Empirical Analysis Of How Race, Income Inequality, And Regional History Affect Tort Law, Jennifer Wriggins

Washington and Lee Law Review Online

Issues of race and racism in the U.S. torts system continue to deserve much more attention from legal scholarship than they receive, and Keeping Cases from Black Juries is a valuable contribution. Studying racism as it infects the torts system is difficult because explicit de jure exclusions of black jurors are in the past; race is no longer on the surface of tort opinions; and court records do not reveal the race of tort plaintiffs, defendants, or jurors. Yet it is essential to try and understand the workings of race and racism in the torts system. The authors pose …