Law and Race Commons^™

The Free Blacks Of Virginia: A Personal Narrative, A Legal Construct, Sherri L. Burr

Faculty Scholarship

The existence of the Free Blacks of Virginia as a group in United States history would surprise most Americans. The common narrative is that all Africans were brought to this country as slaves with no rights, and systematically received legal privileges after the Civil War in the 1860s and the Civil Rights struggle a century later. The reality differs from this assumption. The first Africans who landed on the shores of Virginia in 1619 began their lives as indentured servants similar to many European immigrants. After finishing their terms of service, these Africans were accorded liberties such as the right …

It's About Power, Not Policy: Movement Lawyering For Largescale Social Change, Alexi Freeman, Jim Freeman

Sturm College of Law: Faculty Scholarship

This article presents a critical reflection on the disconnect between conventional legal training and the skills needed by lawyers to support low-income communities of color, among others, in addressing U.S. systems of oppression. It is intended to assist aspiring “movement lawyers” in developing their capacity to align their strategic and tactical decision-making with the power dynamics faced by the communities they serve. It offers some analytical tools and strategic resources – including the “Social Change Power Meter” – and provides a case study of the national movement to dismantle the “school-to-prison pipeline,” in which lawyers played a critical supporting role …

Angry Employees: Revisiting Insubordination In Title Vii Cases, Susan Carle, Susan D. Carle

Faculty Collected Scholarship and Works

In too many Title VII cases, employees find themselves thrown out of court because they reacted angrily to reasonable perceptions of employer discrimination. In the race context, supervisors repeatedly call employees the n-word and use other racial epithets, order African American employees to perform work others in the same job classification do not have to do, and impose discipline white employees do not face for the comparable conduct. In the gender context, courts throw out plaintiffs’ cases even where supervisors engage in egregious sexual harassment. Employees who react angrily to such demeaning treatment—by cursing, shouting, refusing an order or leaving …

Leaked Memo To West Point Superintendent Lt. Gen. Robert Caslen From Major Consuelo Antoinette Martinez Regarding The "Raised Black Female Fist" Old Corps Photograph Incident, Yxta Maya Murray

Cardozo Journal of Equal Rights & Social Justice

This satire responds to the recent United States Military Academy ("USMA" or "West Point') Investigation sixteen African American female cadets who took a photograph of themselves holding up their fists. This work of legal analysis and of the imagination takes the form of an investigatory memo written by afictional Latina West Point official to the (very real) West Point Superintendent Lieutenant General Robert Caslen. In it, I study the legal underpinnings for the investigation, which center on certain Department ofDefense regulations forbidding political activity on the part of military service members. I reveal the race and gender absurdity that cuts …

Independence And Immigration, Amanda Frost

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Stories Of Teaching Race, Gender, And Class: A Narrative, Brenda V. Smith

Scholarly Articles in Law Reviews & Journals

This Essay transcribes and discusses Smith's keynote speech at the New England Clinical Conference at Harvard Law School in November, 2015. Smith's speech discusses the intersection between race, gender, and class, highlighting them as sites of vulnerability through a personal storytelling lens. By sharing her individual experiences, Smith hopes to draw attention to insecurities and threats faced by many individuals who refuse to speak out.

Are Hispanics Discriminated Against In The Us Criminal Justice System?, Maria A. Eijo De Tezanos Pinto

Graduate Research Posters

Recent publications have contributed to increase the perception among Hispanics of an unfair and unequal treatment of this community by the US Criminal Justice System. One of the major concerns was the claim that Hispanics are incarcerated before conviction nearly twice as often as Whites. Unfair treatment perception by the population reduces legitimacy of police and government, and thus, it is imperative to analyze these uninvestigated allegations. Therefore, the purpose of this study is to address said allegations of discrimination against Hispanics and analyze with updated and reliable statistics whether Hispanics are incarcerated before conviction more often than Whites. There …

Policing In The Era Of Permissiveness: Mitigating Misconduct Through Third-Party Standing, Julian A. Cook Iii

Brooklyn Law Review

On April 4, 2015, Walter L. Scott was driving his vehicle when he was stopped by Officer Michael T. Slager of the North Charleston, South Carolina, police department for a broken taillight. A dash cam video from the officer’s vehicle showed the two men engaged in what appeared to be a rather routine verbal exchange. Sometime after Slager returned to his vehicle, Scott exited his car and ran away from Slager, prompting the officer to pursue him on foot. After he caught up with Scott in a grassy field near a muffler establishment, a scuffle between the men ensued, purportedly …

Race, Restructurings, And Equal Protection Doctrine Through The Lens Of Schuette V. Bamn, Steve Sanders

Brooklyn Law Review

In 2012, the U.S. Court of Appeals for the Sixth Circuit ruled that Michigan voters had violated principles of the fair lawmaking process when they amended their state constitution to prohibit race-conscious affirmative action in public university admissions, reasoning that the amendment, known as “Proposal 2,” constituted a political restructuring that had violated the Equal Protection Clause by disadvantaging African Americans from being able to equally access political change. However, the Sixth Circuit was careful to avoid saying that Proposal 2 created a racial classification or was motivated by a purpose of discriminating on the basis of race. Instead, consistent …

The Matthew Shepard And James Byrd, Jr., Hate Crimes Prevention Act: A Criminal Perspective, Meredith Boram

University of Baltimore Law Review

[H]ate crimes ... leave deep scars not only on the victims, but on our larger community. They weaken the sense that we are one people with common values and a common future. They tear us apart when we should be moving closer together. They are acts of violence against America itself.. . As part of our preparation for the new century, it is time for us to mount an all-out assault on hate crimes, to punish them swiftly and severely, and to do more to prevent them from happening in the first place. We must begin with a deeper understanding …

Post-Ferguson Social Engineering: Problem-Solving Justice Or Just Posturing, Mae C. Quinn

Journal Articles

No abstract provided.

Chaining Kids To The Ever Turning Wheel: Other Contemporary Costs Of Juvenile Court Involvement, Candace Johnson, Mae Quinn

Journal Articles

In this essay, Candace Johnson and Mae Quinn respond to Tamar Birckhead’s important article The New Peonage, based, in part, on their work and experience representing youth in St. Louis, Missouri. They concur with Professor Birckhead’s conclusions about the unfortunate state of affairs in 21st century America— that we use fines, fees, and other prosecution practices to continue to unjustly punish poverty and oppressively regulate racial minorities. Such contemporary processes are far too reminiscent of historic convict leasing and Jim Crow era efforts intended to perpetuate second-class citizenship for persons of color. Johnson and Quinn add to Professor Birckhead’s critique …

The 'New Selma' And The Old Selma: Arizona, Alabama, And The Immigration Civil Rights Movement In The Twenty-First Century, Kristina M. Campbell

Journal Articles

In his unfinished manuscript, “The Politics of Expulsion: A Short History of Alabama’s Anti-Immigrant Law, HB 56,” the late Raymond A. Mohl, Distinguished Professor of History at the University of Alabama at Birmingham, directly and succinctly identified the true nature of the motivations behind the passage of HB 56 in the Alabama legislature. Professor Mohl observed that “nativist fears of large numbers of ethnically different newcomers, especially over job competition and unwanted cultural change, sometimes referred to as “cultural dilution,” provided political cover for politicians who sought to control and regulate immigration within state borders, but also to push illegal …

Do Black Lives Matter? Race As A Measure Of Injury In Tort Law, 18 Scholar: St. Mary's L. Rev. & Soc. Just. 41 (2016), Alberto Bernabe

UIC Law Open Access Faculty Scholarship

Discussions of race-related issues are a constant in American society. Within the last year alone, there have been several high profile events that have prompted important debates about race. Most of the events attracting nationwide attention involved the conduct of law enforcement agents, including incidents in which unarmed black men died at the hands of police officers, peaceful protests that turned violent following the failure to indict the police officers involved in those cases and the use of excessive force on black teenagers attending social events and while at school. Other events included the racial identity controversy regarding a member …

The Jim Crow Effect: Denial, Dignity, Human Rights, And Racialized Mass Incarceration, 29 J. Civ. Rts. & Econ. Dev 15 (2016), Cecil J. Hunt Ii

UIC Law Open Access Faculty Scholarship

The overarching theme of this paper is that the racialization of mass incarceration in America, which has been taking place since the latter part of the last century, and continues to this very day, is characterized by what I term, the “Jim Crow effect".

When Society Becomes The Criminal: An Exploration Of Society’S Responsibilities To The Wrongfully Convicted, Amelia A. Haselkorn

Pitzer Senior Theses

This thesis explores how society can and should compensate those who have been wrongfully convicted after they are exonerated and how we can prevent these mistakes from happening to others in the future. It begins by presenting research on the scope of the problem. Then it suggests possible reforms to the U.S. justice system that would minimize the rate of innocent convictions. Lastly, it takes both a philosophical and political look at what just compensation would entail as well as a variety of state compensation laws.

Mlk: Human Rights & Dreams & Metaphors Or . . . Justice As A Verb, Raymond M. Brown, Wanda Akin

Valparaiso University Law Review

No abstract provided.

Keynote Remarks, Vanita Gupta

Michigan Journal of Race and Law

In communities across America today, from Ferguson, Missouri, to Flint, Michigan, too many people—especially young people and people of color—live trapped by the weight of poverty and injustice. They suffer the disparate impact of policies driven by, at best, benign neglect, and at worst, deliberate indifference. And they see how discrimination stacks the deck against them. So today, as we discuss the inequality that pervades our criminal justice system—a defining civil rights challenge of the 21st century—we must also acknowledge the broader inequalities we face in other segments of society. Because discrimination in so many areas—from the classroom, to the …

How The E-Government Can Save Money By Building Bridges Across The Digital Divide, Alison Rogers

Michigan Journal of Race and Law

As government agencies and federal aid recipients begin to build a presence online, they must recognize that language accessibility is morally required, fiscally responsible, and compulsory under federal civil rights law. This Note explores statutes, federal policies, and case law that purport to protect the rights of limited English proficient (“LEP”) individuals in cyberspace. The Note suggests reforms, policies, and programs that should be adopted by federal aid recipients to ensure that LEP individuals have meaningful access to online services.

Probable Cause Revisited, William Ortman

Law Faculty Research Publications

No abstract provided.

Arbitrary Law Enforcement Is Unreasonable: Whren's Failure To Hold Police Accountable For Traffic Enforcement Policies, Jonathan Witmer-Rich

Law Faculty Articles and Essays

Whren v. United States is surely a leading contender for the most controversial and heavily criticized Supreme Court case that was decided in a short, unanimous opinion. The slip opinion is only thirteen pages long, and provoked no dissents or even concurring opinions. Critical reaction has been overwhelmingly negative. Criticism not withstanding, the Court has not retreated from Whren, but continues to repeat its core holding.

Part I frames the problem in Whren with a story. Part II sets forth the fundamental Fourth Amendment principle underlying this article—the prohibition against arbitrary search and seizure. Part III explains how arbitrariness …

Higher Education: Putting Our Children On The Bus To Success, Angela Mae Kupenda

Journal Articles

To protect our Black youth and other youth of color given the many incidents still occurring today, many responses are necessary, including: nonviolent protests, demands for legal and justice reform, instructing our youth on the realities of racism in America, and law suits for the injuries from state sanctioned and private racialized violence. While all of these, and more, are needed, we must not lose sight of the offense that is also called for.

Equality Lost In Time And Space: Examining The Race/Class Quandary With Personal Pedagogical Lessons From A Course, A Film, A Case, And An Unfinished Movement, Angela Mae Kupenda

Journal Articles

This essay is both personal and pedagogical. My hope is that it issues a clarion call to legal educators and administrators to choose the pursuit of racial and class equality. I believe that, as law faculty and administrators, we must first address our personal quandaries with race and class before we can effectively address the racial and class implications in our pedagogical or administrative roles in legal education. This essay focuses on race and class and is a clarion call for legal academics and administrators to address ongoing structural racism and classism in our institutions, by starting with our own …

Dismantling The School-To-Prison Pipeline: Tools For Change, Jason P. Nance

UF Law Faculty Publications

The school-to-prison pipeline is one of our nation’s most formidable challenges. It refers to the trend of directly referring students to law enforcement for committing certain offenses at school or creating conditions under which students are more likely to become involved in the criminal justice system, such as excluding them from school. This article analyzes the school-to-prison pipeline’s devastating consequences on students, its causes, and its disproportionate impact on students of color. But most importantly, this article comprehensively identifies and describes specific, evidence-based tools to dismantle the school-to-prison pipeline that lawmakers, school administrators, and teachers in all areas can immediately …

Black Boys Matter: Developmental Equality, Nancy E. Dowd

UF Law Faculty Publications

The life course of Black boys is a stark reminder of the realities of inequality. While recent attention to policing and high profile deaths of Black youth and adults has raised consciousness of life-threatening situations, this focus exposes the most visceral and deadly aspect of a much larger set of issues. Those issues begin at birth, and are powerfully framed before adulthood, creating inequality particularly when the individual is most vulnerable, in childhood. This Article confronts the inequalities of Black boys and their subordination, as a vehicle to expose inequalities more generally based on children’s identities.

The life course of …

"Lord Forgive Me, But He Tried To Kill Me": Proposing Solutions To The United States’ Most Vexing Racial Challenges, André Douglas Pond Cummings

Law Faculty Scholarship

While great progress has been made in the United States in the past fifty years in connection with race relations, three critical issues continue to vex our nation. The United States, despite its progress, continues to struggle mightily with (a) the police killing of unarmed black men; (b) racially disproportionate mass incarceration; and (c) violent homicides of black men and boys. Nightly newscasts detail seemingly weekly killings of unarmed African American men by law enforcement officers. Mass incarceration, while plateauing in the last several years, continues to see millions of United States citizens incarcerated at rates unmatched by any other …

Judging Identity, Carla Pratt

Faculty Articles

No abstract provided.

Rethinking Employment Discrimination Harms, Jessica Roberts

Indiana Law Journal

Establishing harm is essential to many legal claims. This Article urges the law to adopt a more expansive notion of the harms of employment discrimination to better reflect the cognitive functions of individuals who face discrimination. While the effect of implicit bias on the mental state of potential discriminators is well-worn territory in antidiscrimination scholarship, little has been written about a sister theory: stereotype threat. More than a decade’s worth of social psychology research indicates that when a person is conscious of her membership in a particular group and the group is the subject of a widely recognized stereotype, that …

Procedural Justice And Policing: Four New Directions, Rebecca Hollander-Blumoff

Washington University Journal of Law & Policy

This Article, by Professor Rebecca Hollander-Blumoff from Washington University School of Law in St. Louis, analyzes the concept of procedural justice within the frame of contemporary policing. Using the shooting of Michael Brown as a catalyst, Hollander-Blumoff advocates for four potential areas of future development in procedural justice: (1) the interaction between the research on self-control and procedural justice; (2) research on the tools most effective in creating positive perceptions of fairness by police; (3) the implications of treating procedural justice not as a dynamic interchange; and (4) the role of reactive devaluation as it might affect reaction to procedural …

Parents Involved And The Struggle For Historical Memory­, Mark Tushnet

Indiana Law Journal

In his Jerome Hall Lecture, Professor Tushnet addresses the legacy of Brown v. Board of Education in the more recent case of Parents Involved in Community Schools v. Seattle School Dist. No. 1 (PICS), which struck down the voluntary school integration programs used in Seattle and Louisville. As Chief Justice Roberts wrote, an important “debate” in the PICS case was over “which side is more faithful to the heritage” of Brown v. Board of Education. That debate is part of what historians have called the struggle for historical memory. The politics of memory in PICS is not simply a struggle …