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  • Symbolism and the Thirteenth Amendment: The Injury of Exposure to Governmentally Endorsed Symbols of Racial Superiority

    One of the debates often encountered by native southerners centers around our historical symbols. There are heated opinions on both sides of the issue as to what these symbols mean and whether they should be allowed to be displayed. The latter question has begun making its way into the courts, with many southern symbols and memorials being accused of promoting the philosophy of racial supremacy. Despite the growing public concern, modern courts refuse to rule on the question. They claim they are forestalled by Article III’s standing requirement that plaintiffs must have suffered a concrete injury in fact. They state that merely asserting offense at a message does not meet this requirement, even if the message is offered by the Government. In this article, I show that holding to be incorrect. The Constitution provides certain absolute rights that the government may not infringe upon. One of those rights is the right to be free from slavery, which the courts have expanded to include all of its badges and incidents. Though courts have gone back and forth on what constitutes a badge of slavery, a historical look at the Thirteenth Amendment shows that amongst the things the drafters intended the definition to include was the philosophical message of racial supremacy if it is communicated by the government. In my article, I demonstrate that the scope of the Thirteenth Amendment includes a ban on the governmental endorsement of racial supremacy, including endorsements made in the form of symbols. I show that mere exposure to such a message is the unique form of injury that a violation of that right creates and, as such, is a concrete harm on which Article III standing can be based. Finally, I provide a workable test for determining whether a particular exposure to a symbol of racial superiority possesses all the elements necessary to constitute an injury in fact for the purposes of standing.

  • Incorporating Social Justice into the 1L Legal Writing Course: A Tool for Empowering Students of Color and of Historically Marginalized Groups and Improving Learning

    The media reports of police shootings of unarmed Black men and women; unprovoked attacks on innocent Jews, Muslims, religious minority groups, and LGBTQ persons; and current pervasive, divisive, and misogynistic rhetoric all cause fear and anxiety in impacted communities and frustrate other concerned citizens. Law students, and especially law students of color and of historically marginalized groups, are often directly or indirectly impacted by these reports and discrimination in all its iterations. As a result, they are stressed because they are fearful and anxious. Research shows that stress impairs learning and cognition. Research also shows that beneficial changes are made in the brain, and learning and cognition improve when students are empowered and motivated by their lessons. Incorporating issues of social justice into the first-year legal writing course benefits all students by equipping them with the knowledge and practical skills to address issues of social injustice and to affect social change. Incorporating issues of social justice into the first-year legal writing course has the added benefit of contributing to a learning environment that permits law students of color and of historically marginalized groups to learn more successfully by reducing stress, altering their perception of control over psychosocial stressors, building positive emotions, increasing confidence, and motivating them to learn.

  • Under Coyote’s Mask: Environmental Law, Indigenous Identity, and #NoDAPL

    This Article studies the relationship between the three main lawsuits filed by the Standing Rock Sioux Tribe, the Cheyenne River Sioux Tribe, and the Yankton Sioux Tribe against the Dakota Access Pipeline (DaPL) and the mass protests launched from the Sacred Stone and Oceti Sakowin protest camps. The use of environmental law as the primary legal mechanism to challenge the construction of the pipeline distorted the indigenous demand for justice as U.S. federal law is incapable of seeing the full depth of the indigenous worldview supporting their challenge. Indigenous activists constantly re-centered the direct actions and protests within indigenous culture to remind non-indigenous activists and the wider media audience that the protests were an indigenous protest, rather than a purely environmental protest, a distinction that was obscured as the litigation progressed. The NoDAPL protests, the litigation to prevent the completion and later operation of the pipeline, and the social movement that the protests engendered, were an explosive expression of indigenous resistance—resistance to systems that silence and ignore indigenous voices while attempting to extract resources from their lands and communities. As a case study, the protests demonstrate how the use of litigation, while often critical to achieving the goals of political protest, distorts the expression of politics not already recognized within the legal discourse.

  • Virtual Hatred: How Russia Tried to Start a Race War in the United States

    During the 2016 U.S. presidential election, the Russian government engaged in a sophisticated strategy to influence the U.S. political system and manipulate American democracy. While most news reports have focused on the cyber-attacks aimed at Democratic Party leaders and possible contacts between Russian officials and the Trump presidential campaign, a more pernicious intervention took place. Throughout the campaign, Russian operatives created hundreds of fake personas on social media platforms and then posted thousands of advertisements and messages that sought to promote racial divisions in the United States. This was a coordinated propaganda effort. Some Facebook and Twitter posts denounced the Black Lives Matter movement and others condemned White nationalist groups. Some called for violence. To be clear, these were posts by fake personas created by Russian operatives. But their effects were real. The purpose of this strategy was to manipulate public opinion on racial issues and disrupt the political process. This Article examines Russia’s actions and considers whether they violate the international prohibitions against racial discrimination and hate speech.

  • White Caller Crime: Racialized Police Communication and Existing While Black

    Over the past year, reports to the police about Black persons engaged in innocuous behaviors have bombarded the American consciousness. What do we make of them? And, equally important, what are the consequences of such reports? This Article is the first to argue that the recent spike in calls to the police against Black persons who are simply existing must be understood as a systematic phenomenon which it dubs racialized police communication. The label captures two related practices. First, racially motivated police reporting—calls, complaints, or reports made when Black persons are engaged in behavior that would not have been read as suspicious, or otherwise worthy of police involvement had they been White. Second, racially weaponized police reporting—calls, complaints, or reports made against Blacks in an effort to capitalize on law enforcement mistreatment of Black persons, or harm the victim because of their race.

  • Urban Decolonization

    National fair housing legislation opened up higher opportunity neighborhoods to multitudes of middle-class African Americans. In actuality, the FHA offered much less to the millions of poor, Black residents in inner cities than it did to the Black middle class. Partly in response to the FHA’s inability to provide quality housing for low-income blacks, Congress has pursued various mobility strategies designed to facilitate the integration of low-income Blacks into high-opportunity neighborhoods as a resolution to the persistent dilemma of the ghetto. These efforts, too, have had limited success. Now, just over fifty years after the passage of the Fair Housing Act and the Housing Choice Voucher Program (commonly known as Section 8), large numbers of African Americans throughout the country remain geographically isolated in urban ghettos. America’s neighborhoods are deeply segregated and Blacks have been relegated to the worst of them. This isolation has been likened to colonialism of an urban kind. To combat the housing conditions experienced by low-income Blacks, in recent years, housing advocates have reignited a campaign to add “source of income” protection to the federal Fair Housing Act as a means to open up high-opportunity neighborhoods to low-income people of color. This Article offers a critique of overreliance on integration and mobility programs to remedy urban colonialism. Integration’s ineffectiveness as a tool to achieve quality housing for masses of economically-subordinated Blacks has been revealed both in the historically White suburbs and the recently gentrified inner city. Low-income Blacks are welcome in neither place. Thus, this Article argues that focusing modern fair housing policy on the relatively small number of Black people for whom mobility is an option (either through high incomes or federal programs) is shortsighted, given the breadth of need for quality housing in economically-subordinated inner-city communities. As an alternative, this Article proposes, especially in the newly wealthy gentrified cities, that fair housing advocates, led by Black tenants, insist that state and local governments direct significant resources to economically depressed majority-minority neighborhoods and house residents equitably. This process of equitable distribution of local government resources across an entire jurisdiction, including in majority-minority neighborhoods, may be a critical step towards urban decolonization.

  • Whiteness at Work

    How do courts understand Whiteness in Title VII litigation? This Article argues that one fruitful site for such examination is same-race discrimination cases between Whites. Such cases offer a peek into what enables regimes of Whiteness and White supremacy in the workplace, and the way in which Whiteness is theorized within Title VII adjudication. Intra-White discrimination cases may range from associational discrimination cases to cases involving discrimination against poor rural Whites, often referred to as “White trash.” While intragroup discrimination is acknowledged in sex-discrimination cases and race-discrimination cases within racial minority groups, same-race discrimination between Whites is currently an under-theorized phenomenon. This Article maps current cases dealing with racial discrimination between Whites, arguing that these cases suffer from under-theorization stemming from courts’ tendency to de-racialize Whiteness and see White people as ‘not being of any race.’ This tendency has led to a limited doctrine of same-race discrimination between Whites, affording it recognition only when racial minorities are involved. Acknowledging Whiteness as a racial project— the product of White supremacy—may enable courts to better theorize intra-White discrimination. Such possible theorization is developed via the stereotype doctrine. Accordingly, same-race discrimination and/or harassment between Whites is often a result of Whites policing other Whites to conform to stereotypes and expectations regarding Whiteness, i.e., how White people should act or with whom they may associate. Recognizing dynamics of intra-White racialization and the racial work behind Whiteness, this Article concludes, is aligned with Title VII’s antisubordination goals, as it is in the interest of racial minorities as well.

  • Batson for Judges, Police Officers & Teachers: Lessons in Democracy From the Jury Box

    In our representative democracy we guarantee equal participation for all, but we fall short of this promise in so many domains of our civic life. From the schoolhouse, to the jailhouse, to the courthouse, racial minorities are underrepresented among key public decision-makers, such as judges, police officers, and teachers. This gap between our aspirations for representative democracy and the reality that our judges, police officers, and teachers are often woefully under-representative of the racially diverse communities they serve leaves many citizens of color wanting for the democratic guarantee of equal participation. This critical failure of our democracy threatens to undermine the legitimacy of these important civic institutions. It deepens mistrust between minority communities and the justice system and exacerbates the failures of a public education system already lacking accountability to minority students. But there is hope for rebuilding the trust, accountability and legitimacy of these civic institutions on behalf of minority citizens. There is one place where we have demonstrated a deeper commitment to our guarantee of democratic equality on behalf of minority citizens and exerted greater effort to that end than perhaps in any other domain of our civic life—the jury box. This paper recounts this important history and explores the political theory underlying the equal protection jurisprudence of jury selection. It then applies these lessons gleaned from the jury context to the constitutional defense of efforts to achieve greater racial diversity within the judiciary, law enforcement, and public education, all of which are as important to the legitimacy of our democracy today as the jury has been throughout American history.

  • Vulnerability, Access to Justice, and the Fragmented State

    This Article builds on theories of the fragmented state and of human and institutional vulnerability to create a new, structural theory of “functional fragmentation” and its role in access to justice work. Expanding on previous concepts of fragmentation in access to justice scholarship, fragmentation is understood in the Article as a complex phenomenon existing within as well as between state institutions like courts. Further, it is examined in terms of its relationship to the state’s coercive power over poor people in legal systems. In this view, fragmentation in state operations creates not only challenges for access, but also opportunities for resistance, resilience, and justice. Focusing on problem-solving courts, and family courts in particular, the Article examines the intersection of human and institutional vulnerability within legal institutions and provides a framework for identifying ways to create greater access to justice. The Article contributes to state theory and the feminist theory of vulnerability, while providing a new way to understand and address an increasingly coercive state and its punitive effects on low-income people.

  • The Case Against Police Militarization

    We usually think there is a difference between the police and the military. Recently, however, the police have become increasingly militarized – a process which is likely to intensify in coming years. Unsurprisingly, many find this process alarming and call for its reversal. However, while most of the objections to police militarization are framed as instrumental arguments, these arguments are unable to capture the core problem with militarization. This Article remedies this shortcoming by developing a novel and principled argument against police militarization. Contrary to arguments that are preoccupied with the consequences of militarization, the real problem with police militarization is not that it brings about more violence or abuse of authority – though that may very well happen – but that it is based on a presumption of the citizen as a threat, while the liberal order is based on precisely the opposite presumption. A presumption of threat, we argue, assumes that citizens, usually from marginalized communities, pose a threat of such caliber that might require the use of extreme violence. This presumption, communicated symbolically through the deployment of militarized police, marks the policed community as an enemy, and thereby excludes it from the body politic. Crucially, the pervasiveness of police militarization has led to its normalization, thus exacerbating its exclusionary effect. Indeed, whereas the domestic deployment of militaries has always been reserved for exceptional times, the process of police militarization has normalized what was once exceptional.