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  • Strip Searching in the Age of Colorblind Racism: The Disparate Impact of Florence v. Board of Chosen Freeholders of the County of Burlington

    In 2012, the Supreme Court of the United States decided Florence v. Board of Chosen Freeholders of the County of Burlington. The Court held that full strip searches, including cavity searches, are permissible regardless of the existence of basic reasonable suspicion that the arrestee is in possession of contraband. Further, the Court held that law enforcement may conduct full strip searches after arresting an individual for a minor offense and irrespective of the circumstances surrounding the arrest. These holdings upended typical search jurisprudence. Florence sanctions the overreach of state power and extends to law enforcement and corrections officers the unfettered discretion to conduct graphically invasive, suspicion-less strip searches. The Court’s dereliction of duty is enough to concern all citizens. However, the impact of this phenomenal lapse will not be felt equally in the age of what Bonilla-Silva has termed colorblind racism. In 2013, in the case of Floyd v. City of New York, Judge Shira A. Scheindlin found that between January 2004 and June 2012, the New York City Police Department (“NYPD”) made 4.4 million stops. She further found that more than eighty percent of these 4.4 million stops were of Blacks or Hispanics. Specifically, Judge Scheindlin found that in “52% of the 4.4 million stops, the person stopped was black, in 31% the person [stopped] was Hispanic, and in 10% the person stopped was white.” This rate of stops and frisks is grossly disproportionate to Black and Hispanic population representation in New York City and the United States in general. Further, as Judge Scheindlin astutely points out, “The NYPD’s policy of targeting ‘the right people’ for stops . . . is not directed toward the identification of a specific perpetrator, rather, it is a policy of targeting expressly identified racial groups for stops in general.” These findings make clear that Florence and colorblind racism enable law enforcement to wage war against the civil rights of minority citizens. This Article argues that the Court’s phenomenal lapse in Florence and its general abdication of law enforcement oversight inevitably subjects minorities, particularly Blacks and Latinos, to the blanket authority of law enforcement to harass and humiliate based on perfunctory arrests predicated on the slightest of infractions. Other legal analyses of Florence have largely ignored, and hence minimized, the salience of race when thinking about strip searches. In light of the significant consequential impacts of this decision on minority populations, this oversight is itself unreasonable. This paper will analyze the rationale and policy implications, particularly for people of color, in light of Florence. Finally, I will also propose policy recommendations to temper the projected negative impacts of the decision.

  • Without Representation, No Taxation: Free Blacks, Taxes, and Tax Exemptions Between the Revolutionary and Civil Wars

    This Essay is the first general survey of the taxation of free Blacks in free and slave states between the Revolutionary and Civil Wars. A few states treated all equally for tax purposes, but most states enacted taxation systems that subjected free Blacks to different requirements. Both free and slave states viewed free Blacks as an undesirable population, and this Essay posits that—within the relevant political constraints—states used taxes and tax exemptions to dissuade free Black immigration and limit the opportunities for free Blacks within their borders. This topic is salient for at least two reasons. First, the Essay sheds light on laws and events that the literature—and the American educational system—has largely ignored. It directly contradicts the commonly held belief that free Blacks largely enjoyed the same set of rights and privileges as their White counterparts until Jim Crow and the Black Codes set in after the Civil War. Second, by juxtaposing then-widely prevailing views with historical tax laws, this Essay underscores the inherent relationship between tax policy and social policy. Taxes have never been just about bolstering the public fisc. Although this Essay will hopefully never have direct applicability to contemporary events, it can provide insight into current and future tax policies and the extent to which history, prejudice, and economic concerns inform policymakers’ decisions.

  • Cross-Racial Identifications: Solutions to the “They All Look Alike” Effect

    On a late summer evening in August of 1997, Nathan Brown was in his apartment rocking his young daughter to sleep when the police knocked on his door. The police sought Brown, one of a few Black men in his apartment complex, after a young White woman said she had been assaulted by a shirtless Black man wearing black shorts with strong body odor walking through the complex’s courtyard. Minutes later the police took Brown outside and put him in the patrol car for a one-on-one “showup.” They brought him out by himself to see the victim wearing black shorts without a shirt, and she quickly identified him as her attacker, even though he lacked a strong body odor. The victim explained later that she believed he had showered right after the attack, meaning he was her attacker. The victim again identified Brown as her attacker at trial. Though Brown took the stand in his own defense and testified that he was home at the time of the attack caring for his “fussy infant daughter”—an alibi corroborated by four of his family members—he was convicted of attempted aggravated rape and sentenced to twenty-five years in prison on the basis of the victim’s identification alone. In June 2014, Brown was exonerated of the crime when DNA evidence revealed that he could not have been the attacker. The DNA evidence was an exact match to a seventeen-year-old Black male who had been living within blocks of the apartment complex where the victim had been attacked. Nevertheless, Brown spent nearly seventeen years in prison for a crime that he did not commit.

  • Schooling the Police: Race, Disability, and the Conduct of School Resource Officers

    On March 25, 2015, police officers effectuated a violent seizure of a citizen in Kenner, Louisiana: [T]he police grabbed her by the ankles and dragged her away [from the tree]. . . . [She was] lying face down on the ground, handcuffed with her face pressed so closely to the ground that she was having difficulty breathing due to the grass and dirt that was so close to her nose and mouth. An officer was kneeling on top of her, pinning her down with a knee squarely in [her] back. Several other officers, as well as several school administrators, stood around the scene watching. [She] was crying and yelling[,] “Help, I’m hurting.” The handcuffed individual was a Black, ten-year-old child who has been diagnosed with autism. On the day of the incident, she “began acting up in class, running around the classroom, climbing on desks, and knocking down classroom chairs.” After she climbed out of the classroom window and up a tree on school property, school officials called the police. Instead of responding to the situation in a manner appropriate for a fourth grader with autism, officers responded with handcuffs and a knee in her back. In Mississippi, a twelve-year-old diagnosed with bipolar disorder “was handcuffed in front of several classmates and put in the back of a police car outside of [his middle school]” after “los[ing] his temper in an argument with another student, and hit[ing] several teachers when they tried to intervene.” Following the incident, the boy was briefly admitted to a mental health facility, then “charged with three counts of assault.” In Virginia, a Black eleven-year-old boy diagnosed with autism was charged with disorderly conduct and felony assault of a police officer for his acts of kicking over a trash can in school and trying to pull away when a school resource officer grabbed him. Unfortunately, the facts in these elementary school students’ cases are not rare. Over the past few decades, schools across the country have adopted extremely harsh discipline policies to control student misbehavior that may be caused by an underlying disability.

  • Disparaging Trademarks: Who Matters

    For more than a century, non-majority groups have protested the use of trademarks comprised of or containing terms referencing the group—albeit for various reasons. Under the 1946 Lanham Act, Congress added a prohibition against registering disparaging trademarks, which could offer protection to non-majority groups targeted by the use of trademarks offensive to members of the group. The prohibition remained relatively unclear, however, and rarely applied in that context until a group of Native Americans petitioned to cancel the Washington NFL team’s trademarks as either scandalous, offensive to the general population, or disparaging, offensive to the referenced group. In clarifying the appropriate test for disparaging, however, the decision makers have overly analogizing the two prohibitions, rendering the disparaging trademark prohibition less effective in protecting non-majority groups from offensive trademarks.

  • Foreword: Reflections on Our Founding

    Law Journals have been under heavy criticism for as long as we can remember. The criticisms come from all quarters, including judges, law professors, and even commentators at large. In an address at the Fourth Circuit Judicial Conference almost a decade ago, for example, Chief Justice Roberts complained about the “disconnect between the academy and the profession.” More pointedly, he continued, “[p]ick up a copy of any law review that you see, and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th Century Bulgaria, or something, which I’m sure was of great interest to the academic that wrote it, but isn’t of much help to the bar.” Similarly, law professors have developed what Lawrence Friedman calls “a literature of invective” against law reviews. Adam Liptak summarized one line of criticism with a question: “[W]hy are law reviews, the primary repositories of legal scholarship, edited by law students?”

  • Blackness as Character Evidence

    Federal Rule of Evidence 404 severely limits the government’s ability to offer evidence of a defendant’s character trait of violence to prove action in conformity with that trait on the occasion in question. The Rule states that such character evidence is generally inadmissible when offered to prove propensity. The Rule also allows the government to offer evidence of an alleged victim’s character for peacefulness in homicide cases where the defendant asserts the self-defense privilege. Although criminal defendants may offer character evidence under limited circumstances, Rule 404 creates a significant disincentive for doing so. Where a defendant offers evidence of an alleged victim’s character trait to prove action in conformity therewith, this decision not only opens the door for the prosecution to offer positive character evidence on behalf of the victim but it also allows the prosecutor to offer bad character evidence against the defendant. Similarly, if the government offers evidence of a homicide victim’s character for nonviolence to rebut a claim of self-defense, doing so opens the door to the introduction of the victim’s bad character evidence.

  • There Are No Racists Here: The Rise of Racial Extremism, When No One is Racist

    At first glance hate murders appear wholly anachronistic in post-racial America. This Article suggests otherwise. The Article begins by analyzing the periodic expansions of the Supreme Court’s interpretation of the protection for racist expression in First Amendment doctrine. The Article then contextualizes the case law by providing evidence of how the First Amendment works on the ground in two separate areas —the enforcement of hate crime law and on university campuses that enact speech codes. In these areas, those using racist expression receive full protection for their beliefs. Part III describes social spaces—social media and employment where slurs and epithets may be used frequently. The final portion of the Article briefly explores two forms of unacknowledged racial violence—violence directed at minorities who move to white neighborhoods and extremist killings. Our inaccurate approach to bias-motivated crime and the culture of protection around racist expression, the Article concludes, leaves American society vulnerable to the danger created by racial extremists.

  • Functionally Suspect: Reconceptualizing “Race” as a Suspect Classification

    In the context of equal protection doctrine, race has become untethered from the criteria underlying its demarcation as a classification warranting heightened scrutiny. As a result, it is no longer an effective vehicle for challenging the existing social and political order; instead, its primary purpose under current doctrine is to signal the presence of an impermissible basis for differential treatment. This Symposium Article suggests that, to more effectively serve its underlying normative goals, equal protection should prohibit not discrimination based on race per se, but government actions that implicate the concerns leading to race’s designation as a suspect classification. For example, a possible equal protection violation would no longer be triggered by the mere act of racial categorization, but by classifications targeting groups characterized by a history of past discrimination, political powerlessness, or a trait that has no bearing on its members’ ability to participate in or contribute to society.By directly integrating the values underlying suspect classification into equal protection analysis, this Article attempts to replace the categorical use of race with a substantive approach that is less vulnerable to arguments grounded in colorblindness or postracialism and more focused on deconstructing existing racial hierarchies.

  • Mainstreaming Equality in Federal Budgeting: Addressing Educational Inequities With Regard to the States

    Great Society reformers targeted poverty as the defining characteristic for a novel federal education policy in the United States in 1965. Title I of the Elementary and Secondary Education Act (ESEA), reincarnated within the No Child Left Behind Act of 2001, distributes financial aid to disadvantaged students within public schools solely based upon students’ socioeconomic status. This Article does not dispute that financial resources improve student outcomes, but this Article argues that Title I’s funding formula is ineffective, and a new funding scheme – specifically, a mainstreaming equality funding scheme – must replace it. The implementation of this funding scheme will require Congress to acknowledge that poverty in the United States is not a mere set of behaviors and attitudes but is intricately linked to race and class. Mainstreaming equality schemes require that public bodies assess the impact of their policies on equality of opportunity and monitor any adverse impact on the promotion of equality of opportunity. This Article describes how such a scheme would address disparities among students. Second, this Article argues that Congress should define beneficiary groups based on characteristics additional to socioeconomic status, including measures of cultural isolation and local tax revenue contributed to public education. Third, this Article establishes that a federal mainstreaming school funding scheme based on “layered disadvantage” and its multiplicative effects will both acknowledge and address long-time, covered attitudes about race, poverty and privilege in the United States and the ways in which those attitudes continue to enforce a paralyzed outcome, especially for African American students within public schools. Finally, by examining mainstreaming equality models implemented in the European Union, this Article considers in detail the methodology for conducting mainstreaming equality within a federal school funding scheme as implemented by Congress with respect to the individual states.