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  • Reading, Writing, and Reparations: Systemic Reform of Public Schools as a Matter of Justice

    This Article analyzes Virginia's effort to remedy massive resistance and posits that, under reparations theory, a broader remedy is necessary to redress the scope of the state's wrongdoing. To do this, Part I briefly examines reparations theory, which provides the tools to identify the proper scope of the injury to be addressed, and, in turn, informs the proper choice of remedy. With this background, Part II discusses the Brown Fund Act and the massive resistance it seeks to remedy. In this connection, the Article demonstrates that the school shutdowns were part of a statewide decision to defy Brown and maintain its tradition of segregation. Part III places that discrimination in historic context, examining Virginia's long history of denying educational opportunities to African Americans. This section demonstrates that the state's intransigence in the face of the Brown decision was but one incident in a centuries-old chain of state-imposed constraints on education for Blacks. Starting with proscriptions against literacy for slaves, and moving to legislation designed to disfranchise Blacks after emancipation, among other means, Virginia used and abused public education to maintain an oppressive social order in which African Americans would perpetually be at the bottom. As a result, Part IV concludes that the Brown Fund Act falls far short of remedying the scope of the state's wrongdoing. In the face of, quite literally, centuries of government abuse of its authority to purposefully exclude its citizens, reparations-that is, a remedy designed to rectify a profound injustice that reverberates today-are necessary. This Part then briefly touches upon the varied forms reparative remedies might take to mend the breach.

  • Ghosts of Alabama: The Prosecution of Bobby Frank Cherry for the Bombing of the Sixteenth Street Baptist Church

    Perhaps no other crime in American history has shocked the conscience of America like the 1963 bombing of the Sixteenth Street Baptist Church in Birmingham, Alabama. In May of 2002- almost thirty-nine years after the bombing- Bobby Frank Cherry was brought to trial for the murders of Addie, Carole, Cynthia, and Denise. He was the last person to be tried for the bombing. As an Assistant United States Attorney in Birmingham, Alabama it was my privilege to be a part of the prosecution team that brought Cherry to justice. This Article tells the story of that prosecution and explores the question of whether such trials, so long after the events in question, serve any useful purpose.

  • Urban Legends, Desegregation and School Finance: Did Kansas City Really Prove That Money Doesn’t Matter?

    This Article examines whether conservative critics are correct in their assertion that the Kansas City, Missouri School District (KCMSD) desegregation plan clearly establishes that no correlation exists between funding and academic outcomes. The first section provides a summary of public education in KCMSD prior to 1977, the beginning of the Missouri v. Jenkins school desegregation litigation. The second and third sections analyze whether the Jenkins desegregation and concurrent school finance litigation (Committee for Educational Equality v. State) addressed these problems. The fourth section provides an overview of school finance litigation and explains how KCMSD desegregation plan has been cited as proof by conservatives that no correlation exists between educational outcomes and academic performance. The final section uses national and state level data on school funding and student outcomes to determine whether their assertions are correct.

  • A History of Hollow Promises: How Choice Juisprudence Fails to Achieve Educational Equality

    This Article combines analysis of case law at state and federal levels as well as federal educational policy in an effort to formulate a framework for addressing educational inequalities, of which the achievement gap is only one result. As individual rights concepts control the discourse of equal educational opportunity, community injury continues to be ignored. Because educational policy aimed at ending educational inequities is governed by equal protection analysis and guided by court decisions, limitations in legal opinions drive such policies. The lack of attention to community harm in law and educational policy limits the ability of education legal reforms and education policy initiatives to address the scope of the problem of educational inequalities. This essay contextualizes the issue to demonstrate how policies have reinforced a dominant narrative about race that is counter to the goal of ending educational disparities and continues to harm individuals and communities of color even as they try to respond to these issues.

  • Vultures in Eagles’ Clothing: Conspiracy and Racial Fantasy in Populist Legal Thought

    This Article has three interrelated aims. First, I will briefly describe the online world of the legal populists. My second aim in this Article is to give an account of legal populism that connects it with the American tradition of conspiracy theory and with the political consciousness of survivalism. My third and final aim in this Article is to examine, as David Williams has done in a wonderful series of articles, the relationship between the nation dreamed of by many legal populists and the one inhabited by state-sanctioned legal insiders.

  • Discrimination in Sentencing on the Basis of Afrocentric Features

    This Article does not challenge the prior research on sentencing discrimination between racial categories that found no significant difference in sentences given to similarly-situated African Americans and Whites. In fact, in the jurisdiction investigated- Florida- no discrimination between African Americans and Whites was found in the sentences imposed on defendants, looking only at racial category differences. Rather, the research suggests that in focusing exclusively on discrimination between racial groups, the research has missed a type of discrimination related to race that is taking place within racial categories: namely, discrimination on the basis of a person's Afrocentric features. By Afrocentric features, this Article means those features that are perceived as typical of African Americans, e.g., darker skin, fuller lips, or a broader nose. The research found that when one examines sentencing from this perspective, those defendants who have more pronounced Afrocentric features tend to receive longer sentences than others within their racial category who have less pronounced Afrocentric features.

  • The Sacred Way of Tibetan CRT Kung Fu: Can Race Crits Teach the Shadow’s Mystical Insight and Help Law Students “Know” White Structural Oppression in the Heart of the First-Year Curriculum? A Critical Rejoinder to Dorothy A. Brown

    Part I of this Article uses a quasi-parable, in which Dorothy Brown is a Tibetan Master who teaches law students CRT Kung Fu, the monastic fighting skills by which they will acquire the Shadow's mystical insight to "know" the heart of the first-year curriculum. Part II challenges the organizing principles and content on which Brown's Critical Race Theory purports to critically interrogate traditional legal doctrine, applying a New Age Philosophical critique as well as agency theory to crack dealing in Spanish Harlem. I use this case study to argue that crack dealers deliberately and purposefully choose extra-legal economic opportunities, even at the expense of their neighbors and community. The Conclusion demands that Race Crits think outside of the white structural oppression logical box.

  • Individual Aboriginal Rights

    This Article will, in Section I, deal with the legal development of the concept of individual aboriginal rights. It will focus on the Western Shoshone land claims before the Indian Claims Commission, and the federal government's trespass claims against the ranching operations of the redoubtable, irrepressible Dann sisters. Section II will explore the development and utilization of the doctrine of individual aboriginal rights in a series of cases involving the Dann sisters, subsequent Western Shoshone, and other efforts by native people to secure subsistence hunting and fishing rights and possession of or access to sacred sites. Section III will explore some related concepts in western public land law. This Section suggests that custom, prescription, access under nineteenth century self-executing right of way statutes, regulatory efforts, and administrative accommodation have provided at least some protection for the access of tribal peoples to sacred sites. Section IV will speculate about the future expansion of such efforts, and explore the possibility that the growth of colorblind equal protection doctrine will spread into the area of Indian law and threaten what Charles Wilkinson has called the "measured separatism" of tribal sovereignty and property.

  • Racism as “The Nation’s Crucial Sin”: Theology and Derrick Bell

    Part I develops Bell's thesis that racism is permanent, an ineradicable structure in American life. Bell's stance here is unrelenting and a direct and deep challenge to liberal notions of racial progress. This section draws out the social facts Bell provides about the status of Blacks in American society and examines Bell's argument for the continuing disparity between the races, particularly the claim that Whites hold on to a property in Whiteness. Part II analyzes Bell's call for action despite racism's permanence. Part III develops Niebuhr's theology of the possibility of action despite sin. Niebuhr too criticizes the liberal-and liberal theological- belief in continuing progress; for Niebuhr, evil is not overcome. Part IV returns to Bell and assesses his religious orientation and the degree it may be receptive to Niebuhr's theology. Part of the assessment here will be whether Bell's stance is more existential rather than religious. Part V concludes by examining some of the larger implications of Bell's thesis: the continuation of deep structures that resist characterization simply as social constructions. Reference will be briefly drawn to the contributions of Bell and critical race theory to a movement beyond nonfoundationalism. Because the Article intends to offer additional grounds for the comprehension of Bell's conundrum-that racism is permanent and yet must be continually fought-the goal is understanding, not criticism. I hence assume Bell's thesis throughout.

  • Multiracial Identity, Monoracial Authenticity & Racial Privacy: Towards an Adequate Theory of Mulitracial Resistance

    This Article is divided into five parts. Part I briefly places the significance of the Supreme Court's affirmative action ruling in Grutter v. Bollinger in context, particularly the implications of its recommended twenty-five year timeframe in recognizing racial diversity. Part II examines the dangerous consequences of implicit assumptions underlying the RPI. More specifically, I investigate the potential ramifications the RPI would have had upon multiple sectors of our society, including healthcare, education, and law enforcement. In the process, I attempt to demonstrate that the concept of racial privacy is a strategic misnomer intended not to protect one's privacy, but rather to privatize race away from the accountability of governmental institutions. Part III discusses multiracial identity and the hierarchy of racial classifications. I examine why multiracial classification advocates conceptually support the RPI but nonetheless remain skeptical of its ability to render racial distinctions meaningless. In Part IV I attempt to illustrate through personal narrative why multiracial identity is not necessarily inconsistent with a regime of self-identified monoracial classification. In addition, I discuss precisely why we should continue to repudiate colorblind initiatives such as Connerly's RPI. Part V addresses the more general difficulties posed by racial classifications, including objections raised by progressive colorblind theorists. In this regard, I attempt to unpack the relationship between racial identity and movements for racial justice, giving some attention to the notion of political race recently articulated by Lani Guinier and Gerald Torres. Ultimately, I hope to offer critical considerations for an effective stratagem, and perhaps, a better fate for positive race conscious remedies in the twenty-five years to come.