Law and Race Commons^™

Is Color Blind Justice Also Culturally Blind? The Cultural Blindness In Justice, Shiv Narayan Persaud

Journal Publications

As diverse ethnic groups continue to experience numeric growth and societal grounding in America, their advocacies for culturally competent representation within the legal system cannot be ignored or underplayed. Undoubtedly, some professions such as mental and physical health, and their related sectors, have developed and continue to integrate cultural competencies into their respective practices. Others such as the legal profession seem to lag in their advocacies and promotion of culturally competent practices.

In the criminal justice system, where discretionary legal decision-making authority is commonplace and may grossly affect the civil liberties of the citizenry, a paucity of standards requiring cultural …

"Other Spaces" In Legal Pedagogy, Lolita Buckner Inniss

Law Faculty Articles and Essays

There is an increasing focus upon the material and metaphoric spatial dimensions of various academic disciplines, including law. This essay considers the spatial dimensions of legal pedagogy, focusing on Critical Race Theory (CRT). The essay first explains the "critical program" in law and how CRT grows out of it. The essay then suggests that the critical program, and especially CRT, is as much a human geographic or spatial construct as it is a social, political or historic one, and briefly describes the nature of human geography and legal geography. It next considers how metaphors for understanding CRT's position in legal …

Don't Get It Twisted: Why Employer Hairstyle Prohibitions Are Racially Discriminatory, Devin D. Collier

UC Law Journal of Race and Economic Justice

Appearance and grooming policies in the workplace that prohibit hairstyles worn predominately by African- American employees, including dreads, cornrows, braids, and afros, constrain African-American cultural identity and are racially discriminatory. These policies exhort African- Americans "to cover" their race and modify their hair to assimilate their looks with Anglo-American beauty ideals. These policies found in the private workplace serve no legitimate "business necessity" and are merely a proxy for unlawful race discrimination.

Plaintiffs who challenge these policies as race discrimination, however, are unable to prove a violation of Title VII because of an inability to demonstrate that African- American hairstyle …

The Impact Of Berguis V. Thompkins On The Eroding Miranda Warnings And Limited-English Proficient Individuals: You Must Speak Up To Remain Silent, Brenda L. Rosales

UC Law Journal of Race and Economic Justice

Miranda v. Arizona requires law enforcement to warn defendants of their right to remain silent and give defendants an explanation that anything said can and will be used against the defendant in court. However, Berghuis v. Thompkins turned Miranda upside down by requiring defendants to unambiguously invoke their right to remain silent or be legally presumed to have waived their rights. Meaning that a defendant's yes or no answer to any question, including questions unrelated to the case, may be interpreted as a knowingly and intelligent waiver of the defendant's Miranda rights.

This note will address how the lower standard …

Out For Blood: Employment Discrimination, Sickle Cell Trait, And The Nfl, Chika Duru

UC Law Journal of Race and Economic Justice

Recently, numerous athletes, particularly football players, have fallen ill and some have even died from exercise related health complications linked to the sickle cell trait they carry. Not surprisingly, the affected athletes' families or estates have received large court judgments in connection with their injuries, and after a few such judgments at the collegiate athletic level, the National Collegiate Athletic Association recently instituted mandatory sickle cell trait testing for every incoming division I student-athlete.

Though the mandatory sickle cell trait testing appears permissible at the collegiate level, this article examines the potential consequences of a similar policy at the professional …

From The Oppressed To The Terrorist: Muslim-American Women In The Crosshairs Of Intersectionality, Sahar F. Aziz

UC Law Journal of Race and Economic Justice

In the post-9/11 era, Muslim women donning a headscarf in America find themselves trapped at the intersection of bias against Islam, the racialized Muslim, and women. In contrast to their male counterparts, Muslim women face unique forms of discrimination not adequately addressed by Muslim civil rights advocacy organizations, women's rights organizations, or civil liberties advocates.

This article examines how the September 11th attacks adversely impacted the lives of headscarved Muslim women in ways different than Muslim men. Ten years after 9/11, there is a plethora of literature about what has become known as "post-9/11 discrimination." Most of the discussion focuses …

The Aspiring Attorney With Adhd: Bar Accommodations Or A Bar To Practice, Neha M. Sampat, Esme V. Grant

UC Law Journal of Race and Economic Justice

This article is the first in the academic literature to examine how a strict application of the childhood history requirement reduces the likelihood that applicants will receive ADHD accommodations on the bar exam based on race, sex, socioeconomic status, location, and age. A significant number of state bars, including in the largest legal markets of New York and California, require the bar applicant to provide a well-documented childhood history of ADHD symptoms. Many of the factors making it impractical or impossible to obtain childhood history documentation disproportionately affect people of minority backgrounds, legally protected classes, and other populations significantly underrepresented …

United States V. Duro: Farmworker Housing And Agricultural Law Constructions, Guadalupe T. Luna

UC Law Journal of Race and Economic Justice

This article seeks to addresses how the nation's food production systems produce negative conditions for foreign-born Indigenous people employed for their labor. The article will utilize the case of the migrant Pur6pecha, on the Torres Martinez Desert Cahuilla Indian Reservation in U.S. v. Duro . It will deeply examine the wide array of agricultural laws and policies that are available and aid growers and producers while not requiring that growers or producers to provide habitual farmworker housing. After discussing in detail the lack of adequate housing options for immigrant farmworkers throughout the nation and highlighted by the U.S. v. Duro …

The Connection Between Permanency And Education In Child Welfare Policy, Kele Stewart

UC Law Journal of Race and Economic Justice

This article explores the relationship between permanency, the dominant child welfare policy, and the educational needs of children in out-of-home care. The child welfare system has traditionally focused on finding children a permanent home. Education and other aspects of a child's well-being receive less attention. The failure to address children's educational needs is alarming given their poor academic performance. Studies show that compared to their peers from similar backgrounds, children in out-ofhome care perform below grade level, have lower test scores and high school completion rates, and have more disciplinary problems. These educational deficits contribute to challenges faced by former …

Creating New Categories: Anglo-American Radical Feminism's Constitutionalism In The Streets, Yxta Maya Murray

UC Law Journal of Race and Economic Justice

This note examines the struggles of youths who must leave state foster care systems (called "aging out" of foster care) upon turning eighteen years old. Thousands of young people age out of foster care systems each year. Foster care systems have traditionally abandoned children upon their eighteenth birthday, without providing aged-out youth real assistance in obtaining employment, health services, or basic shelter. Most commonly, these young adults do not have sufficient resources or support to allow them to transition into safe and stable lives. The majority of these older youths either get incarcerated, become homeless, or are forced to depend …

A Deregulatory Framework For Alleviating Concentrated African-American Poverty, Benjamin Zimmer

UC Law Journal of Race and Economic Justice

America's urban poor have become more geographically concentrated and isolated, of which, African Americans comprise the majority. Governmental efforts to combat concentrated poverty have consisted primarily of new government interventions in the housing market: subsidies, mandates, and other programs and regulations designed to compel socio-economic or racial integration. All the while, a separate set of government interventions in the form of tax expenditures, education financing, and land-use controls are largely responsible for the perpetuation of concentrated African-American poverty in the first place.

It is time to consider that a successful approach to poverty de-concentration and residential integration must begin by …

California Eviction Protections For Victims Of Domestic Violence: Additional Protections Or Additional Problems, Rebecca Licavoli Adams

UC Law Journal of Race and Economic Justice

In 2011, California Code of Civil Procedure section 1161.3 (Section 1161.3) came into effect providing victims of domestic violence with an affirmative defense against a landlord's eviction action if resulting from an act of domestic violence. Domestic violence victims often are faced with homelessness due to lease provisions that allow eviction due to a violent or criminal act occurring in their rental unit or because of noise complaints from other tenants. After a victim is evicted the victim may have difficulty finding a new rental due to credit issues or a criminal history directly relating to the domestic violence.

This …

Unlawful Arrests And Over-Detention Of America's Immigrants: What The Federal Government Can Do To Eliminate State And Local Abuse Of Immigration Detainers, Molly F. Franck

UC Law Journal of Race and Economic Justice

Ever since Arizona governor, Janice Brewer, signed S.B. 1070 into law in early 2010, national debates over immigration have dominated the public discourse, and precipitated a tidal wave of state legislative proposals to give states authority to regulate immigration. At the same time, however, many state and local police departments assist Immigration and Customs Enforcement ("ICE") with enforcing federal immigration law by means of 287(g) Agreements, the Secure Communities program, and immigration detainers. An immigration detainer, often referred to as an ICE detainer or ICE hold, authorizes state and local police to keep an arrestee for up to forty-eight hours …

Resistance And Repression: The Black Guerrilla Family In Context, Azadeh Zohrabi

UC Law Journal of Race and Economic Justice

The California Department of Corrections and Rehabilitation ("CDCR") considers prison gangs to be serious threats to prison safety and security and has developed a "gang validation" system to identify suspected prison gang members and their associates. The CDCR administratively segregates these prisoners from the general population by use of harsh, highly restrictive secure housing units ("SHUs"). The CDCR's gang validation process is currently applied to the Black Guerrilla Family ("BGF"), the only Black prison gang recognized by the CDCR.

This note will engage in a historical examination of the political movement that gave rise to the BGF and the life …

Beyond Bed And Bread: Making The African State Through Marriage Law Reform - Constitutive And Transformative Influences Of Anglo-American Legal Thought, Sylvia Wairimu Kang'ara

UC Law Journal of Race and Economic Justice

This article argues that marriage law reform in African countries formerly under British colonial rule has been as constitutive of the family as of the state; and that consequently, legal pluralism is an important tool of national and transnational governance. This is because marriage law has directly contributed to the economic modernization programs of colonial and postcolonial governments. For one, the colonial land law regime and subsequent expropriation of land drew inspiration from the sharp distinction colonial courts made between African and Western ideas of family.

Later, postcolonial marriage law adopted a doctrinal template that embraced individual choice and liberty, …

Reimagining Criminal Prosecution: Toward A Color-Conscious Professional Ethic For Prosecutors, Justin Murray

Articles & Chapters

Prosecutors, like mostAmericans, view the criminal-justice system asfundamentally race neutral. They are aware that blacks are stopped, searched, arrested, and locked up in numbers that are vastly out of proportion to their fraction of the overall population. Yet, they generally assume that this outcome is justified because it reflects the sad reality that blacks commit a disproportionate share of crime in America. They are unable to detect the ways in which their own discretionary choices-and those of other actors in the criminal-justice system, such as legislators, police officers, and jurors-contribute to the staggering and disproportionate incarceration of black Americans. In …

The Influence Of Past Racism On Criminal Injustice: A Review Of The New Jim Crow And The Condemnation Of Blackness, Jelani Jefferson Exum

Faculty Publications

(Excerpt)

There are books that, on their own, are informative and moving. But, oftentimes, reading books together—one right after the other—compounds each works’ transformative power. Michelle Alexander’s much-needed report (calling it simply a book hardly does it justice), The New Jim Crow: Mass Incarceration in the Age of Colorblindness, can certainly stand on its own as an important statement about the current use of mass incarceration to maintain a racial caste system in the United States. The same strength can be found in The Condemnation of Blackness: Race, Crime, and the Making of Modern Urban America, Khalil Gibran …

How Predatory Mortgage Lending Changed African American Communities And Families, Cheryl L. Wade

Faculty Publications

(Excerpt)

This symposium focuses on efforts to reform the secondary mortgage market in the aftermath of the most potent economic downturn in U.S. history since The Great Depression. One question posed at the symposium in several forms was whether low-income Americans should be encouraged to own a home. Implicit in this question is the idea that low­-income homebuyers were responsible for the losses that investors in mortgage-backed securities incurred. This question is part of a familiar narrative: investors in mortgage-backed securities suffered, and the economy suffered, because low-income homebuyers defaulted. My essay, however, looks beyond the alleged irresponsibility of homebuyers …

Why We Need A Progressive Account Of Violence, Aya Gruber

Publications

No abstract provided.

On Overreaching, Or Why Rick Perry May Save The Voting Rights Act But Destroy Affirmative Action, Ellen D. Katz

Articles

The State of Texas is presently staking out two positions that are not typically pursued by a single litigant. On the one hand, Texas is seeking the invalidation of the Voting Rights Act, and, on the other, the State is now defending the validity of the expansive race-based affirmative action policy it uses at its flagship university. This Essay presses the claim that Texas has increased the chance it will lose in bothTexas v. Holder andFisher v. University of Texas because it has opted to stake out markedly extreme positions in each. I argue that Texas would be more likely …

Beyond Best Practices For Legal Education: Reflections On Cultural Awareness - Exploring The Issues In Creating A Law School And Classroom Culture, Antoinette M. Sedillo Lopez

Faculty Scholarship

If law schools are to prepare students for the reality of practice, it is useful to help students become aware of cultural issues that can affect client representation by examining the culture that the law school creates. The culture created by faculty, students, administration, and staff will affect the law student's acculturation as a legal professional as well as the law student's psychological well-being. This issue was addressed briefly in Best Practices for Legal Education (Best Practices), but not developed. This essay explores some of the challenges and opportunities of bringing cross-cultural issues into a law school classroom and some …

Brief For Thirteenth Amendment Scholars, United States V. Hatch As Amicus Curiae, Dawinder S. Sidhu

Faculty Scholarship

Like the district court, we conclude that Congress has power under the Thirteenth Amendment to enact § 249(a)(1). Although the Thirteenth Amendment by its terms applies to slavery and involuntary servitude, Supreme Court precedent confirms Congress’s authority to legislate against slavery’s “badges and incidents” as well. In particular, the Supreme Court held in Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968)—a case permitting a federal private right of action against private individuals for housing discrimination—that Congress itself has power to determine those badges and incidents.

Legal Education, Social Justice And The Law School Dean: Latinas At The Center, Margaret E. Montoya

Faculty Scholarship

The opening of LatCrit XVI in San Diego, CA, on October 9, 2011, coincided with the events that are identified as the start of the global expression of the Occupy Movement. The Occupy Movement began to gain media attention on September 17, 2011, in Zuccotti Park in New York City. By October 9, protests had taken place or were ongoing in eighty-two countries and over 600 communities in the United States. The broad theme for LatCrit XVI was "Global Justice" and the conference was billed as "an opportunity to explore theories, histories, and futures of global justice. Of particular importance …

Remarks, James Anaya

Publications

These remarks were delivered at the Closing Plenary--Indigenous Peoples and International Law: A Conversation with UN Special Rapporteur James Anaya and Inter-American Commission Rapporteur Dinah Shelton.

"Other Spaces" In Legal Pedagogy, Lolita Buckner Inniss

Publications

There is an increasing focus upon the material and metaphoric spatial dimensions of various academic disciplines, including law. This essay considers the spatial dimensions of legal pedagogy, focusing on Critical Race Theory (CRT). The essay first explains the "critical program" in law and how CRT grows out of it. The essay then suggests that the critical program, and especially CRT, is as much a human geographic or spatial construct as it is a social, political or historic one, and briefly describes the nature of human geography and legal geography. It next considers how metaphors for understanding CRT's position in legal …

Inextricably Political: Race, Membership, And Tribal Sovereignty, Sarah Krakoff

Publications

Courts address equal protection questions about the distinct legal treatment of American Indian tribes in the following dichotomous way: are classifications concerning American Indians "racial or political?" If the classification is political (i.e., based on federally recognized tribal status or membership in a federally recognized tribe) then courts will not subject it to heightened scrutiny. If the classification is racial rather than political, then courts may apply heightened scrutiny. This Article challenges the dichotomy itself. The legal categories "tribe" and "tribal member" are themselves political, and reflect the ways in which tribes and tribal members have been racialized by U.S. …

Tiger Cub Strikes Back: Memoirs Of An Ex-Child Prodigy About Legal Education And Parenting, Peter H. Huang

Publications

I am a Chinese American who at 14 enrolled at Princeton and at 17 began my applied mathematics Ph.D. at Harvard. I was a first-year law student at the University of Chicago before transferring to Stanford, preferring the latter's pedagogical culture. This Article offers a complementary account to Amy Chua's parenting memoir. The Article discusses how mainstream legal education and tiger parenting are similar and how they can be improved by fostering life-long learning about character strengths, emotions, and ethics. I also recount how a senior professor at the University of Pennsylvania law school claimed to have gamed the U.S. …

From Tiger Mom To Panda Parent, Peter H. Huang

Publications

This response to Yale Law Professor Amy Chua’s book, Battle Hymn of the Tiger Mother, complements a much longer and related article that is also in part a response to Chua’s book: Tiger Cub Strikes Back: Memoirs of an Ex-Child Prodigy About Legal Education and Parenting, 1 British Journal of American Legal Studies 297 (2012). This brief essay discusses the cultural differences between Chinese and Western views about education, learning, and parenting. This editorial draws on research in social psychology to analyze the stereotype of Asians and Asian Americans as being competent yet unsociable. Finally, this reflection draws …

Race As A Legal Concept, Justin Deystone

Publications

Race is a legal concept, and like all legal concepts, it is a matrix of rules. Although the legal conception of race has shifted over time, up from slavery and to the present, one element in the matrix has remained the same: the background rules of race have always taken a view of racial identity as a natural aspect of human biology. To be sure, characterizations of the rule have oftentimes kept pace with developments in race science, and the original invention of race as a rationale for the subordination of certain human populations is now a rationale with little …

Democrats At Doj: Why Partisan Use Of The Voting Rights Act Might Not Be So Bad After All, Ellen D. Katz

Articles

In notable ways, the ongoing dispute over redistricting in Texas offers a mirror image to one of the major redistricting battles of the last decade, only with Democratic and Republican roles reversed. In both Texas v. United States and Georgia v. Ashcroft, a state attorney general (AG) decided he would not ask the United States Department of Justice (DOJ) to approve new redistricting plans enacted in his state. In both cases, the state AGs were well aware that the Voting Rights Act (VRA) required them to obtain federal approval, known as preclearance, before changing any aspect of their state's election …