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  • (Still) Constitutional School De-Segregation Strategies: Teaching Racial Literacy to Secondary School Students and Preferencing Racially-Literate Applicants to Higher Education

    In Parents Involved in Community Schools v. Seattle School Dist. No. 1, the Supreme Court declared that it will continue to scrutinize race-conscious educational decisions to insure that they are narrowly-tailored to serve a compelling governmental interest. This Article develops a strategy for enhancing racial diversity at all levels of American public education that can survive that rigorous constitutional scrutiny. The Article shows that school districts may prove that assigning a meaningful number of racially diverse students to their secondary schools is narrowly-tailored to achieve their compelling educational interest in teaching racial literacy. The constitutionality of this race-conscious educational strategy cannot be undermined by the availability of race-neutral student assignment plans; those race-neutral plans are not tailored to meet the precise educational objective of teaching racial literacy. This Article also demonstrates that an institution of higher learning that values racial literacy in its enrolled students may constitutionally prefer applicants who have a measurably strong foundation in racial literacy by virtue of having attended a racially-diverse secondary school. Those students would receive preferential admissions treatment not because of their race, but because of their acquisition of racial literacy. Accordingly, the compelling educational outcome of racial literacy can provide a constitutional foundation for enhancing racial diversity not only in secondary school, but in colleges and universities as well.

  • Can Michigan Universities Use Proxies for Race After the Ban on Racial Preferences?

    In 2003, the Supreme Court of the United States held that public universities—and the University of Michigan in particular--had a compelling reason to use race as one of many factors in their admissions processes: to reap the educational benefits of a racially diverse student body. In 2006, in response to the Supreme Court's decision, the people of Michigan approved a ballot proposal--called the Michigan Civil Rights Initiative ("MCRI")-that prohibits public universities in the state from discriminating or granting preferential treatment on the basis of race. Shortly after the MCRI was approved, a number of Michigan universities suggested that they were considering whether to use proxies for race in their admissions process in order to enroll racially diverse student bodies while circumventing the MCRI. These proxies include preferences for applicants who reside in heavily African American Detroit, applicants who are bilingual, and applicants who have lived on an Indian reservation. This Essay considers whether it is legal for the universities to use proxies for race like these in their admissions processes.

  • The Power of Observation: The Role of Federal Observers Under the Voting Rights Act

    The Voting Rights Act of 1965 (VRA) is one of the most successful civil rights laws ever enacted. Following its passage, the promise of the Fifteenth Amendment has become a reality for millions of Americans. Black voters in the South register to vote without being subjected to discriminatory tests or devices. Minority citizens can cast ballots free of intimidation and violence. Barriers posed by English-only elections have been removed for many language minority voters. Voters are permitted to receive assistance from the person of their choice. Federal observers play an indispensable role in serving as the eyes and ears of the Federal Government and the public it protects to ensure compliance with the Act. This Article explores the role of federal observers under the recently reauthorized VRA. It describes the federal observer provisions, including the role of observers, where they are deployed, how they are trained, and the ways in which their reports are used. It outlines steps that have been taken to ensure the provisions are constitutional by allowing observers to observe all steps of the voting process while preserving ballot secrecy. It explains why federal observers must be kept neutral and free from partisanship. It concludes with a discussion of the substantial role that federal observers played in securing the voting rights for limited-English proficient Spanish-speaking voters in Passaic County, New Jersey, in the face of widespread disenfranchisement. By preventing discrimination, enforcing the VRA, and measuring progress of non-compliant jurisdictions, federal observers help "secure equal voting rights of all citizens."

  • Time to Step Up: Modeling the African American Ethnivestor for Self-Help Entrepreneurship in Urban America

    When the United States Congress passed legislation in late 2000 to revitalize the urban core with incentives for equity investors, African Americans were inconspicuously absent as stakeholders in the enterprise. Subsidies in the form of tax credits were instead gobbled up by investor groups who developed upscale hotel-convention centers, high priced condominiums, and symphony orchestra venues that the pre-existing poor residents could not afford. The focus of this Article is not to blame those investors who took advantage of the opportunity, though they perverted the purpose of the subsidy. Rather, this Article seeks to identify a new substrata of the African American middle class who can step up to seize the opportunity for the benefit of the low income residents in the low income communities as the law was designed.

  • Separate and Unequal: Federal Tough-on-Guns Program Targets Minority Communities for Selective Enforcement

    This Article examines the Project Safe Neighborhoods program and considers whether its disproportionate application in urban, majority- African American cities (large and small) violates the guarantee of equal protection under the law. This Article will start with a description of the program and how it operates-the limited application to street-level criminal activity in predominately African American communities. Based on preliminary data showing that Project Safe Neighborhoods disproportionately impacts African Americans, the Article turns to an analysis of the applicable law. Most courts have analyzed Project Safe Neighborhoods' race-based challenges under selective prosecution case law, which requires a showing by the defendant that the program had a discriminatory impact and was effectuated with the intent to discriminate. But this case law is not definitive. Project Safe Neighborhoods is a program that operates to treat African Americans separately and unequally. The program targets African American neighborhoods and thus targets African Americans. Under well-established law, where a program effectively classifies citizens by race, it is presumptively invalid and can be upheld only upon an extraordinary justification.

  • From Habermas to “Get Rich or Die Tryin”: Hip Hop, The Telecommunications Act of 1996, and the Black Public Sphere

    This Article explores the manner in which gangsta rappers, who are primarily young urban Black men, navigate the mass media and rap's commercialization of the gangsta image to continue to provide seeds of political expression and resistance to that image. While other scholars have considered the political nature of rap in the context of the First Amendment, this Article's approach is unique in that it is the first to explore such concepts through the lenses of Habermas' ideal public sphere and those of his critics. While many have written gangsta rap off as being commercially co-opted or useless given its misogyny, violence, and unbridled exhortation to material consumption, “political" expression, resistance and social commentary can still be found therein. This resistance and social commentary can be found when gangsta rap is analyzed within the broader framework of the public sphere, particularly given the invisibility and marginalization of Black men in much public space in America, and the entangled relationship between gangsta rappers, the market, and the mass media.

  • The Pocahontas Exception: The Exemption of American Indian Ancestry from Racial Purity Law

    "The Pocahontas Exception" confronts the legal existence and cultural fascination with the eponymous "Indian Grandmother." Laws existed in many states that prohibited marriage between Whites and non- Whites to prevent the "quagmire of mongrelization." Yet, this racial protectionism, as ingrained in law, blatantly exempted Indian blood from the threat to White racial purity. In Virginia, the Racial Integrity Act of 1924 made exceptions for Whites of mixed descent who proudly claimed Native American ancestry from Pocahontas. This Paper questions the juridical exceptions made for Native American ancestry in antimiscegenation statutes, and analyzes the concomitant exemptions in contemporary social practice. With increasing numbers of Americans freely and lately claiming Native ancestry, this openness escapes the triumvirate of resistance, shame, and secrecy that regularly accompanies findings of partial African ancestry. The author contends that antimiscegenation laws such as the Racial Integrity Act relegate Indians to existence only in a distant past, creating a temporal disjuncture to free Indians from a contemporary discourse of racial politics. He argues that such exemptions assess Indians as abstractions rather than practicalities, which facilitates the miscegenistic exceptionalism as demonstrated in Virginia's antimiscegenation statute.

  • We Need Inquire Further: Normative Sterotypes, Hasidic Jews, and the Civil Rights Act of 1866

    According to modern Supreme Court opinions, The Civil Rights Act of 1866 prohibits only "discrimination [against members of protected groups] solely because of their ancestry or ethnic characteristics." The Court refers to this type of discrimination as 'racial animus.' In the 1987 case Shaare Tefila Congregation v. CobbJews were recognized as a protected ethnic group under these statutes, but the Supreme Court also reaffirmed that The Civil Rights Act only prohibits 'ethnic' or 'ancestral' discrimination. The Act does not encompass religious discrimination. Yet, despite the Supreme Court's rulings, the district courts held that both Rabbi LeBlanc-Sternberg's and Mr. Singers' allegations of discrimination based on specific Jewish religious practice were actionable under The Act. This Note will document and explain this paradox.

  • A Race or a Nation? Cherokee National Identity and the Status of Freedmen’s Descendants

    This Article examines the Cherokee Freedmen controversy to assess whether law and biology can function as sufficient models for crafting Cherokee identity at this crucial moment in the tribe's history. The author will argue that while law and biology are historically powerful frames for establishing tribal self-identity, they are inadequate to the task of determining who should enjoy national citizenship. The wise use of sovereignty, the author suggests, lies in creating a process of sustained dialogical engagement among all stakeholders in the definition of Cherokee citizenship on the question of Cherokee identity. This dialogue should ideally have been undertaken before the Nation moved to the political solution of a vote on tribal citizenship criteria. The exclusion of the Freedmen's descendants without such a dialogue may have high political and social costs to the Nation, its members, and its apparently former members. The dialogue this article proposes could be constructed along the lines suggested by sociologist Eva Garroutte, whose model of Radical Indigenism offers one means of considering these complex issues from within the Cherokee community itself.

  • The Politics of Preclearance

    This Essay examines recent charges of political motivation against the Department of Justice and its enforcement of the Voting Rights Act. These accusations appear well-deserved, on the strength of the Department's recent handling of the Texas redistricting submission and Georgia's voting identification requirement. This Essay reaches two conclusions. First, it is clear that Congress wished to secure its understanding of the Act into the future through its preclearance requirement. Many critics of the voting rights bill worried about the degree of discretion that the legislation accorded the Attorney General. Supporters worried as well, for this degree of discretion might lead to under-enforcement of the Act. Yet Congress chose not to act on those concerns while placing the Department of Justice at the center of its voting rights revolution. By and large, this is the way that the Supreme Court has understood the Department's role. Second, the currently available data do not support the charge that politics has played a central role in the Department's enforcement of its preclearance duties. This conclusion holds true for preclearance decisions up until the Clinton years. The data are ambiguous with respect to the Justice Department of President George W. Bush.