Law and Race Commons^™

Child Support Factory: Racist History, Harm, And Unconstitutionality Of The Child Support System's Contractual Operations, Daniel L. Hatcher

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

Within America’s justice institutions, the child support system has become a business. The intended mission of aid has been traded and abdicated through contractual deals to churn vulnerable families into factory-like revenue operations. Juvenile and family courts across the country have partnered through countless intertwined interagency contracts with human service agencies, prosecutors, attorneys general’s offices, probation departments, and policing offices—all aimed at generating revenue from impoverished children and parents rather than serving their best interests. The resulting child support factory is vast, harmful, unconstitutional, unethical, and grew from a racist history that devastated Black families, and still operates with starkly …

Not Just A Castle In The Sky: A Legal Remedy For Race-Based Takings In Virginia, Michaela R. Hill

William & Mary Law Review

Part I will address federal and state statutes and case law surrounding physical takings and the eminent domain power. Part I will also discuss Virginia’s history of racial discrimination in housing, the Shoe Lane Community in Newport News, and CNU’s expansion into the neighborhood for the elimination of blight. Part II will present the first prong of this Note’s three-pronged approach to correcting Virginia’s abuse of its eminent domain power to take residential properties: adopting stricter statutory blight standards. Part III will present the second prong: a new formula for calculating increased just compensation. Part IV will outline the third …

The Racialized Retaliatory State: Weaponizing Immigration Law To Criminalize Dissent, Karla Mckanders

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

This Essay examines how systemic racism impacts the ways immigration laws operate to retaliate and criminalize immigrants who dissent. Criminalizing dissent—which recently has become more widespread—is one tool within the immigration system that reinforces America’s racialized caste system. This Essay frames immigration exceptionalism as a continual state that excludes nonconforming bodies and ideologies to instill fear as a means of authoritarian governance. This Essay challenges the history of immigration exceptionalism as an objectively neutral system of governance, arguing that it has historically criminalized racialized migrants to suppress dissent and ideological viewpoints that are not aligned with America’s racialized project. Immigration …

Antiracist Antitrust: Antitrust Enforcement As A Civil Right, Synda Mark

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

“Tryna’ make a dollar out of fifteen cents” is more than a genius hip-hop lyric, it is also a metaphor for a real-life economic problem. It is extremely difficult for Black communities to build wealth in America. While many factors contribute to the lack of economic growth, one overlooked area is the ineffective enforcement of the antitrust laws. Even though race and antitrust law have a history that has intersected since the American Civil War, antitrust enforcement has never prioritized improving the welfare of Black communities or other marginalized groups. This must change!

Instead of focusing solely on regulating tech …

The Overlooked Harms Of Inaccurate And Biased Medical Records, Myrisha S. Lewis

Popular Media

No abstract provided.

Picking Through The Remnants Of Brown V. Board To Realize The Ideal Of Quality Public Education For All Children In The Post Covid-19 Era, Tiffani Darden

William & Mary Law Review

Brown, above and beyond eliminating the “separate but equal” doctrine, presented many socio-legal principles that were abdicated or diluted during the government’s COVID-19 response. This Article will address several strands recognized throughout the opinion’s seventy-year history by the courts and legal commentators that were illuminated during this period. First, the pursuit of quality education remains elusive for people of color and students from lower socioeconomic backgrounds. Second, public education continues to be an aspirational pathway to upward social mobility and building a democracy composed of educated citizens. Third, the anti-subordination construction, as opposed to the anti-classification interpretation, of the …

The Right To A Nuisance-Free Public Education, Jamel K. Donnor

William & Mary Law Review

The aim of this Article is to discuss how Florida’s Individual Freedom Act infringes upon Black students’ constitutional right to learn about non-white supremacist ideas, their freedom to think, and a public school’s ability to offer Black-centered curricula content.

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This Article explains that the Individual Freedom Act’s racially encoded wording establishes an academic environment for a racial nuisance to exist because its criteria authorize public education officials to label curricula content under the auspices of indoctrination, divisiveness, or educational value. While the term “nuisance” is typically reserved for determining reasonableness of an “interference with a right common to the …

Brown Now: The Surprising Possibility Of Progressive Reform, Louis Michael Seidman

William & Mary Law Review

For four decades, the Supreme Court has engaged in a determined, systematic, and successful effort to transform and tame Brown v. Board of Education. But there is a surprising counterweight to this standard narrative. If one takes modern doctrine seriously, the Supreme Court’s refashioning of Brown has the potential to support some progressive goals. The modern Court’s decisions provide a basis for upholding race-conscious but facially neutral measures that promote racial diversity, striking down legacy admission standards in colleges and universities, and strictly scrutinizing laws that discriminate based on sexual orientation. The last Part of this Article speculates about …

A Comparative Financial Analysis Of Louisiana's Land-Grant Universities: The Morrill Acts And Brown Revisited, William F. Tate Iv, Keena N. Arbuthnot

William & Mary Law Review

Despite a federal legislative mandate on states to support land-grant HBCUs in a fair and equitable fashion, the funding disparities [between land-grant Historically Black Colleges and Universities (HBCUs) and non-HBCU land-grant universities] accrued for decades and ostensibly for more than a century. Our purpose in this review is to explain the history, nature, and scope of this funding disparity. We are particularly interested in how Brown v. Board of Education (Brown I and Brown II) and related litigation and desegregation policy shaped this history. To narrow the scope of the review, we localize the problem to Louisiana. A …

Race Without Racism: Religious School Curricula And The Race-Neutral Legacy Of Brown, Vania Blaiklock

William & Mary Law Review

Current conversations about race and equity curricula in primary and secondary education exclude examining religious curricula because of their private classification. Yet, this omission prevents us from exploring how religious curricula might mirror the legal transformation of Brown’s racial equality legacy to constitutional race neutrality. This Article brings religious curricula into these conversations by specifically linking the Court’s race-neutral transformation of Brown to the way religious curricula frame discussions about race without racism. Throughout the Article, I argue that the Court’s transformation of Brown is not just a top-down legal framework but also a bottom-up educational ideology. By making …

The Enlightenment In Early America, Annette Gordon-Reed

William & Mary Law Review

The founding of the United States of America is often said to have been the product of Enlightenment ideals that emphasized reason, individual liberty, and notions of progress. During this same era, however, racially based slavery, which confounded reason, denied individual liberty to millions, and challenged ideas about progress, existed in all of the colonies of North America.

The third president of the United States, Thomas Jefferson, embodied this seeming contradiction at the heart of the American founding. The principal author of the American Declaration of Independence enslaved hundreds of people over the course of his long life.

This Article …

In Through The Side Door: Anti-Asian Nativism, U.S. Immigration, And Foreign Policy—A Legal History And Case Study, Deenesh Sohoni, Vivian E. Hamilton, Chinua Thelwell

Faculty Publications

The 19th- and early 20th-centuries were marked by pervasive anti-Asian sentiment, and antipathy towards people of color more generally. Giving legal effect to the anti-Asian nativism prevalent at the time, U.S. policies prohibited most Asian immigration and naturalization. In particular, immigration laws sought to exclude Asian laborers and working-class immigrants from entry. During the same period, however, the federal government determined that other Asian visitors—especially Chinese government officials, merchants, religious leaders, and students—could be useful in advancing U.S. political and economic interests abroad. Thus, in marked contrast to its inhospitable treatment of their working-class counterparts, U.S. policy facilitated the entry …

Is The Constitution Of 1787 A White Supremacist Document? Against Essentialism In Constitutional Interpretation, David S. Schwartz

William & Mary Bill of Rights Journal

A curious convergence is emerging in legal academia around the conclusion that the 1787 Constitution is a white supremacist document. Although most originalists would deny that contention, their methodology strongly favors, if it does not compel, an agreement with progressive, “neo-Garrisonian” scholars that the Constitution of 1787 is indeed a white supremacist document. Both the neo-Garrisonian and originalist elements of this implicit convergence stem from their “essentialism” in Constitutional interpretation: the idea that the Constitution or its terms or provisions carry a uniquely and objectively correct meaning, invariant over time, and independent of our evolving normative commitments.

This Article argues …

The Implications Of Section 230 For Black Communities, Spencer Overton, Catherine Powell

William & Mary Law Review

Section 230 of the Communications Decency Act generally immunizes online platforms such as Facebook, YouTube, Amazon, and Uber from liability for third-party user content (for example, posts, comments, and videos) and for moderation of that content. This Article addresses an important issue overlooked by both defenders and critics of Section 230: the implications of the law and proposed reforms for Black communities in particular. By relieving tech platforms of most legal liability for third-party content, Section 230 helps facilitate Black social activism, entrepreneurship, and artistic creativity. Section 230 also relieves platforms of most legal liability for content moderation, which boosts …

Afterward: A Reply To Commentators, Gabriel J. Chin, Paul Finkelman

William & Mary Law Review

Authors Gabriel J. Chin and Paul Finkelman respond to the comments on their article, The "Free White Person" Clause of the Naturalization Act of 1790 as Super-Statute.

The "Free White Person" Clause Of The Naturalization Act Of 1790 As Super-Statute, Gabriel J. Chin, Paul Finkelman

William & Mary Law Review

A body of legal scholarship persuasively contends that some judicial decisions are so important that they should be considered part of the canon of constitutional law including, unquestionably, Marbury v. Madison and Brown v. Board of Education. Some decisions, while blunders, were nevertheless profoundly influential in undermining justice and the public good. Scholars call cases such as Dred Scott v. Sandford and Plessy v. Ferguson the anticanon. Recognizing the contemporary centrality of statutes, Professors William Eskridge and John Ferejohn propose that certain federal laws should be recognized as part of legal canon because of their extraordinary influence and duration. These …

Separate, Sovereign, And Subjugated: Native Citizenship And The 1790 Trade And Intercourse Act, Bethany Berger

William & Mary Law Review

In 1790, the same year Congress limited naturalization to “free white persons,” it also enacted the first Indian Trade and Intercourse Act. The Trade and Intercourse Act may have even stronger claims to “super statute” status than the Naturalization Act. Key provisions of the Trade and Intercourse Act remain in effect today, and the Act enshrined a tribal, federal, and state relationship that profoundly shapes modern law. Unlike the Naturalization Act, the Trade and Intercourse Act reflected the input of people of color: it responded to the demands of tribal nations and—to a degree—reflected tribal sovereignty. While Indigenous people could …

Creating A Racialized Liminal Status: The 1790 Act And Interstitial Citizenship, Rose Cuison-Villazor

William & Mary Law Review

This Comment began with De La Ysla’s case to highlight the political status that Filipinos held when the Philippines was a U.S. territory. This Comment argues that this status, which a court would later describe as a “hybrid status ... the so-called ‘non-citizen national,’” was a racialized liminal political status with roots in the 1790 Naturalization Act (1790 Act). Professors Jack Chin and Paul Finkelman claim that the 1790 Act played a critical role in shaping “the very composition of the people of the United States” by including the “free white person” clause in the country’s first naturalization law. One …

The Road Not Taken: A Critical Juncture In Racial Preferences For Naturalized Citizenship, Ming Hsu Chen

William & Mary Law Review

In The “Free White Person” Clause of the Naturalization Act of 1790 as Super-Statute, Gabriel Jack Chin and Paul Finkelman argue that racist results in naturalization have arisen despite, or maybe because of, the race neutral interpretation. This happened in a manner that could have been predicted by the federal government’s attitudes toward non-White persons in the Naturalization Act of 1790 and the nearly unbroken chain of legal developments. This leads them to think of the law as a “super-statute.” While I agree that this is the path actually taken in history, I view the mid-1960s civil rights era …

Paradoxical Citizenship, Amanda Frost

William & Mary Law Review

In their article, The “Free White Person” Clause of the Naturalization Act of 1790 as Super-Statute, Gabriel J. Chin and Paul Finkelman make a powerful case that the Naturalization Act of 1790 is a “super-statute” that has shaped not only U.S. immigration law and policy, but also America’s conception of itself as a “White nation.”

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This Comment explores the conflict between the Naturalization Act’s racial restrictions on citizenship (and its proponents’ vision of the United States as a White nation) and the Fourteenth Amendment’s Citizenship Clause (and its proponents’ vision of the United States as a multiracial …

If Black Lives Really Matter, We Must End Traffic Stops!, Kenneth Williams

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

This Article will argue that African Americans will continue to be fatally shot and killed by police disproportionately and in many cases unjustifiably as long as police are allowed to stop motorists for minor non-violent traffic infractions. These stops do little to combat crime and are not worth the lives they upend and the continued unconstitutional racial discrimination that motivates many of these stops. Although the standards for police use of force need to be reformed and police culture has to be changed, the other reform that is imperative in order to significantly reduce the disproportionate fatal police shootings of …

The Color Of Money: How Our Broken Campaign Finance System Fuels Racial Inequality, Blair T. Page

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

The laws upholding our campaign finance system are inadequate and under-enforced. These problems are felt disproportionately by African American voters. Election law experts agree that the structure and enforcement authority of the Federal Election Commission (FEC) severely limits the ability of the agency to achieve its goals. Several Supreme Court decisions have also limited the ability of Congress to control campaign contributions and expenditures. Tracking expenditures from corporations, groups, and individuals (to the extent possible), will show the link between favorable outcomes for these groups and their detrimental effects on African Americans. While closing racial disparities in wealth allows for …

Critical Race Theory Bans And The Changing Canon: Cultural Appropriation In Narrative, Susan Ayres

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

Thirty-five states have enacted critical race theory (CRT) bans at the level of elementary and secondary public education, and eleven states have extended these to the university level. One way to resist these attempts to repress a healthy democracy by whitewashing history is through a pedagogy of anti-racism, including literary works. The question of what that would look like involves questions of cultural appropriation, which occurs when one takes from another culture, such as a writer creating a narrative about a character outside of the writer’s cultural identity. This Article considers the story of Ota Benga, brought from the Congo …

The Unfinished Business Of Desegregation: Race Conscious College Admissions, Wendy B. Scott

William & Mary Bill of Rights Journal

This rejection of race conscious admissions practices under the Equal Protection Clause of the Fourteenth Amendment by the [Supreme] Court requires a revisit to desegregation jurisprudence and practice to demonstrate why the considerations of race in higher education admissions fulfills the desegregation mandate. Given its rich history and contributions to the formation of equality norms and affirmative action, desegregation jurisprudence and practice provide a foundation for the premise that the use of race in college admissions constitutes a compelling state interest, supported by specific evidence of discrimination, that moves us closer to the democratization of education and racial equality under …

Get Out: Structural Racism And Academic Terror, Renee Nicole Allen

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

Released in 2017, Jordan Peele’s critically acclaimed film Get Out explores the horrors of racism. The film’s plot involves the murder and appropriation of Black bodies for the benefit of wealthy, white people. After luring Black people to their country home, a white family uses hypnosis to paralyze victims and send them to the Sunken Place where screams go unheard. Black bodies are auctioned off to the highest bidder; the winner’s brain is transplanted into the prized Black body. Black victims are rendered passengers in their own bodies so that white inhabitants can obtain physical advantages and immortality.

Like Get …

Heirs' Property In Virginia: Filling In The Gaps, J. Noble Pearson, Lillian Coward

Virginia Coastal Policy Center

The term heirs’ property refers to land that has been passed down informally for multiple generations through intestate succession. Each generation of intestate succession can drastically increase the number of heirs who own the property as tenants-in-common to the point that many may not even know their heirship status. This clouds the title to the property and makes ownership more fractionalized. Because heirs’ property exists outside of the official estate and title systems, owners are vulnerable both at the community and individual levels for three main reasons.

First, and most importantly, heirs’ property is a leading cause of involuntary Black …

Race, Space, And Place: Interrogating Whiteness Through A Critical Approach To Place, Keith H. Hirokawa

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

Drawing from George Lipsitz’s notion that whiteness is “not so much a color as a condition,” this Article embarks on the project of framing the manner and methods through which whiteness continues to dominate space and place. Wherever whiteness dominates space, space carries rules and expectations about the identity and characteristics of people who are present—visitors and jaunters, owners and occupiers—and the types of activities and cultural practices that might occur there. Occasionally, spaces are racialized because of intentional practices of discrimination and segregation. In others, less intentional methods produce racialized space. In both, American spaces tell their own histories …

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 …

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 …

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 …