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  • 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.

  • Breaking the Camel’s Back: A Consideration of Mitigatory Criminal Defenses and Racism-Related Mental Illness

    This article will examine the concept of racist words, symbols, and actions that are used as weapons to "ambush, terrorize, wound, humiliate, and degrade,” as psychological and physiological violence. The implications of such violence are relevant to several affirmative defenses and, indeed, to the initial formulation of mens rea. The historical and contextual legacy that is intentionally invoked by the utilization of racialized violence is what separates the racial epithet or racially violent symbolism from other distressing insults and slurs. While First Amendment protection extends to offensive or insulting speech, the mental and physical sequelae of such speech, even absent conduct, are appropriate considerations for the criminal law, as such speech is racial violence itself and may lead to the responsive physical violence that is beyond the protection of the First Amendment.

  • Obligations Impaired: Justice Jonathan Jasper Wright and the Failure of Reconstruction in South Carolina

    Part I of this article, on the historiography of South Carolina Reconstruction, explains the difficulty scholars have had in uncovering the documentary history of Reconstruction, and outlines the development of historical interpretations of Reconstruction from the Nineteenth century Redeemer-era accounts to the revisionists of the 1970's. Part II provides brief biographies of both Justice Wright and William James Whipper. Parts III and IV track the different approaches of Whipper and Wright on two vital issues of their day: (1) whether to repudiate all private debts relating to slavery; and (2) how to construct a homestead law to protect cash-poor landowners. Finally, the article concludes that if Wright had taken Whipper's more aggressive tact in his judicial opinions and political activity, the story of South Carolina Reconstruction might have evolved differently. African Americans might have retained some of their political voice as memories of Reconstruction faded into the past.

  • Regulating Target Marketing and Other Race-Based Advertising Practices

    Recognizing the significant role that advertising plays in American life, this article examines the phenomenon of race-based targeted marketing as a contributing factor to the racial tension of our media age and evaluates the role of government regulation in preventing the dissemination of racist messages through advertising. In Part I, the article first looks at the evolution of "mass" marketing into today's standard use of targeted marketing techniques, and especially how those techniques can sometimes have racist effects. In Part II, the article discusses both measurable and esoteric harms of cultural racism. Part III examines existing laws designed to regulate advertising generally and specific laws that reach discriminatory advertising for particular products and services. Part IV specifically analyzes the Federal Trade Commission's existing authority to regulate unfairness in advertising as it might be used to prevent advertising with racist effects. Finally, recognizing the difficulty of governmental intervention in the marketplace, this article suggests guidelines for use by advertisers who affirmatively wish to avoid advertising practices that cause racist harms.

  • Locked in Inequality: The Persistence of Discrimination

    In this Article, the author argues that the practice of charging school fees to attend public school is an example of locked-in discrimination that persists over time, even in the absence of intentional discrimination. Exploring the lock-in model of discrimination in the unique context of South Africa, Roithmayr makes two central points. First, discriminatory practices often become locked into institutional structures because high switching costs-the costs of moving from a discriminatory practice to an inclusive one—make it too difficult for an institution to discontinue discriminating. Even when institutional actors are fully committed to eradicating racial disparity, they may be constrained from doing so by high switching costs. Second, contemporary antidiscrimination law in the U.S. may be particularly ill equipped to deal with locked-in discrimination. U.S. equal protection jurisprudence only prohibits discrimination that can be traced to an individual or group of individuals who intend to discriminate, and does not address locked-in discrimination that persists even after institutional actors no longer intend to discriminate.

  • “The Implicit Association Test”: A Measure of Unconscious Racism in Legislative Decision-Making

    This Article argues that the Court will not fulfill the promise of the Equal Protection Clause unless the Court adapts its vision of antidiscrimination to account for the complex nature of discrimination. Imagine that we could measure unconscious discrimination. If so, then we could broaden the concept of purposeful discrimination to include the measurement of a legislator's reliance on unconscious racial stereotypes. Such a measuring device may already exist: The Implicit Association Test (IAT), a computer-based test developed by Yale and University of Washington psychologists. Researchers do not yet know how well the IAT can uncover racial stereotypes; however, if the IAT could discern the state of mind of decision-makers, it could enable all acts of race-dependent decision-making to be subject to pre-scrutiny analysis under the Equal Protection Clause. Currently, facially race-neutral statutes are practically impervious to constitutional challenges by aggrieved plaintiffs, because discriminatory intent often cannot be "located" by the Court. This barrier has continued to shield legislators from judicial scrutiny. The IAT could "smoke out" illegitimate purposes by demonstrating that the classification does not in fact serve its stated purpose.

  • Strategic Voting and African-Americans: True Vote, True Representation, True Power for the Black Community

    As long as American politics remain securely bound to the two-party system, Blacks will remain a voting block; a block that may shift, but a block nonetheless. And although this appears to be to our strategic disadvantage, allowing conviction to direct us, as well as a deep respect for the intense struggle for the franchise, will forever be a noble posture.

  • Bête Noire: How Race-Based Policing Threatens National Security

    This Article asserts that race-based policing, enabled and exacerbated by race-blind judicial review, creates an ire with a purpose that promises, especially after September 11, to make us all less safe. The illegitimate marginalization of American citizens aggravates an already alienated population and primes them for cooperation with those who seek to harm the United States. Race-based policing guts the expectation of fair-dealing, legitimacy, and justice in the criminal justice system, creating marginalized populations, especially of African Americans. Lack of judicial redress in the face of such policing irrevocably stains already beleaguered African Americans (and others so policed) as inferior citizens. This, in turn, may actualize a catalyst of cooperative opportunity and vulnerability for those who seek to injure the United States, its institutions, and its people.

  • Not Because They are Brown, But Because of Ea*: Why the Good Guys Lost in Rice V. Cayetano, and Why They Didn’t Have to Lose

    Part II of this Article therefore reviews the history of Native Hawaiians in the broader context of the history of federal Indian law, focusing on the vacillating congressional policies regarding Indians and how those policies almost always treated Indian tribes as political entities rather than ethnic communities. Part III reviews and analyzes the procedural history of the Rice case and its resolution by the Supreme Court. Part IV concludes with the argument that constitutionally-permissible alternative methodologies exist for accomplishing the same objective of self-determination for Native Hawaiians