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  • “We Are Asking Why You Treat Us This Way. Is It Because We Are Negroes?” A Reparations-Based Approach to Remedying the Trump Administration’s Cancellation of TPS Protections for Haitians

    This Article places the Trump Administration’s decision to cancel TPS for Haitians within the longer history of U.S. racism and exclusion against Haiti and Haitians, observes the legal challenges against this decision and their limitations, and imagines a future that repairs the harms caused by past and current racist policies. First, this Article briefly outlines the history of exclusionary, race-based immigration laws in the United States, and specifically how this legal framework, coupled with existing anti-Black ideologies in the United States, directly impacted Haitians and Haitian immigrants arriving in the United States. Next, the Article provides an overview of the TPS decision-making process, the Trump Administration’s openly racist comments against Haitians and other people of color before and during the decision-making process to cancel TPS, and the departure from the established administrative process for TPS cancellation. The Article then reviews the legal challenges against TPS cancellation and the arguments that the decision violated the Equal Protection Clause and how such efforts reveal the limitations of litigation as a tool to achieve social justice. Looking towards the future, this Article discusses reparations and remittances as creative ways to repair some of the damage wrought by the United States’ history of racial discrimination in immigration and foreign policy against Haitians. Specifically, this Article explores three solutions: (1) recognizing the harms caused specifically to Haitians by the United States’ exclusionary foreign affairs and immigration policies; (2) using material and non-material forms of reparations, including extending TPS, offering a pathway for citizenship for TPS holders, or offering Haitian TPS recipients benefits to public programs; and (3) valuing the role remittances play in affirming Haitians’ autonomy and working towards eroding decades of imperialistic treatment of Haitians.

  • 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.

  • Concealed Motives: Rethinking Fourteenth Amendment and Voting Rights Challenges to Felon Disenfranchisement

    Felon disenfranchisement provisions are justified by many Americans under the principle that voting is a privilege to be enjoyed only by upstanding citizens. The provisions are intimately tied, however, to the country’s legacy of racism and systemic disenfranchisement and are at odds with the values of American democracy. In virtually every state, felon disenfranchisement provisions affect the poor and communities of color on a grossly disproportionate scale. Yet to date, most challenges to the provisions under the Equal Protection Clause and Voting Rights Act have been unsuccessful, frustrating proponents of re-enfranchisement and the disenfranchised alike. In light of those failures, is felon disenfranchisement here to stay? This Note contemplates that question, beginning with a comprehensive analysis of the history of felon disenfranchisement provisions in America, tracing their roots to the largescale effort to disenfranchise African Americans during Reconstruction, and identifying ways in which the racism of the past reverberates through practices of disenfranchisement in the present day. Applying this knowledge to understandings of prior case law and recent voting rights litigation, a path forward begins to emerge.

  • 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.

  • A Failure of the Fourth Amendment & Equal Protection’s Promise: How the Equal Protection Clause Can Change Discriminatory Stop and Frisk Policies

    Terry v. Ohio changed everything. Before Terry, Fourth Amendment law was settled. The Fourth Amendment had long required that police officers have probable cause in order to conduct Fourth Amendment invasions; to administer a "reasonable" search and seizure, the state needed probable cause. But in 1968, the Warren Court, despite its liberal reputation, lowered the standard police officers had to meet to conduct a certain type of search: the so-called "'stop' and 'frisk.'" A "stop and frisk" occurs when a police officer, believing a suspect is armed and crime is afoot, stops the suspect, conducts an interrogation, and pats him down for weapons. In Terry, the Supreme Court detached reasonableness from probable cause for such "limited" searches and seizures; if a police officer's suspicions, based on articulable facts, lead her to believe that crime is afoot and that a perpetrator is armed, then under the Fourth Amendment, a search for weapons is constitutionally permissible. Despite reversing precedent, Terry and its Supreme Court progeny allowed police officers to rely upon their reasonable suspicions to conduct searches only under narrow conditions. Lower courts, however, have enlarged Terry beyond recognition. Indeed, police officers now have wide latitude to stop and frisk suspects. From the New York stop and frisk numbers flows the class-action Floyd v. City of New York. In Floyd, minority plaintiffs contend that the city's stop and frisk practices unconstitutionally infringe upon personal liberty. The Fourth Amendment as currently interpreted, however, permits cities like New York to promulgate stop and frisk practices that result in racial harassment. What constitutional tool, then, can compel local governments and police departments to revamp their discriminatory stop and frisk techniques? The answer must be the Equal Protection Clause.

  • Wartime Prejudice Against Persons of Italian Descent: Does the Civil Liberties Act of 1988 Violate Equal Protection?

    Most people know that the United States interned persons of Japanese descent during World War II. Few people know, however, that the government interned persons of German and Italian descent as well. In fact, the internment was part of a larger national security program, in which the government classified non-citizens of all three ethnicities as "enemy aliens" and subjected then to numerous restrictions, including arrest, internment, expulsion from certain areas, curfews, identification cards, loss of employment, and restrictions on travel and property. Four decades after the war, Congress decided to compensate persons of Japanese descent who had been "deprived of liberty or property" by these restrictions. Congress has not, however, redressed the harm done to persons of German or Italian descent. This Note explores why Congress decided to distinguish between victims of Japanese and Italian descent, why the D.C. Circuit held that the distinction does not violate equal protection, and the potential impact of new historical evidence on both conclusions.

  • “The Prejudice of Caste”: The Misreading of Justice Harlan and the Ascendency of Anticlassificaiton

    This Article reconsiders the familiar reading of Justice Harlan's dissent in Plessy v. Ferguson as standing for the principle of constitutional colorblindness by examining the significance of Harlan's use of the metaphor "caste" in the opinion. By overlooking Harlan's invocation of "caste," it argues that conservative proponents of anticlassification have reclaimed the opinion for "colorblindness," and buried a powerful statement of the antisubordination principle that is at the heart of our equality law. The Article begins by examining the emergence of a reading of the opinion as articulating a view of equality law based in anticlassification. The Article then returns to the nineteenth century to offer an alternative reading of the opinion. It argues that by time Harlan invoked the caste metaphor in Plessy, the caste metaphor was part of a longstanding tradition of reasoning about the moral stakes of status hierarchy and social subordination. It examines the emergence, in the nineteenth century, of the image of caste in abolitionist rhetoric and in debates over the ratification of the Fourteenth Amendment during Reconstruction. The Article further challenges the conventional reading of Harlan's dissent, by considering the persistence of the caste metaphor in the context of Brown v. Board of Education and its aftermath.

  • Appellate Review of Racist Summations: Redeeming the Promise of Searching Analysis

    This Article addresses the question of the appropriate response of appellate counsel for Black defendants tarred at trial by the indirect deployment of powerful racial stereotypes. The crux of the problem is that even now, the courts only take exception to blatant racist appeals, even though indirectly racist summations can have a determinative impact at trial. In laying out the contours of the problem, we must draw upon the discipline of rhetoric, or persuasion through oration, to describe various techniques of intentional indirectness that prosecutors use to obviate the possibility of appellate review under the stringent standards of the Fourteenth Amendment.

  • The Color of Perspective: Affirmative Action and the Constitutional Rhetoric of White Innocence

    This Article discusses the Supreme Court's use of the rhetoric of White innocence in deciding racially-inflected claims of constitutional shelter. It argues that the Court's use of this rhetoric reveals its adoption of a distinctly White-centered perspective, representing a one-sided view of racial reality that distorts the Court's ability to accurately appreciate the true nature of racial reality in contemporary America. This Article examines the Court's habit of using a White-centered perspective in constitutional race cases. Specifically, it looks at the Court's use of the rhetoric of White innocence in the context of the Court's concern with protecting "innocent" Whites in affirmative action cases. This Article concludes that the Court's insistence on choosing and imposing only one racialized perspective--the White-centered perspective--in racially-inflected constitutional claims is more than simply bad policy: that choice embodies an unconstitutional violation of the Due Process Clause of the Fourteenth Amendment. This Article calls for an appreciation of the dominant use and problematic character of the judicial imposition of an arbitrarily chosen racial perspective in deciding all constitutional race cases. It suggests a modification in judicial decisionmaking in which judges become conscious of the White-centeredness and arbitrariness and racial contingency of the White-centered vantage point. This Article urges a judicial appreciation of multiple levels of racial interpretation in an effort to loosen the hegemonic grip of the White-centered perspective and dilute its power on the mind and imagination of the judiciary. If this goal can be achieved, the White-centered perspective will become just one option among a multitude of equally-respected racial perspectives that can then fairly compete for both judicial recognition and legitimization.

  • Justifying the Disparate Impact Standard Under a Theory of Equal Citizenship

    Part I of this Note outlines the limitations on congressional power under Section V and their implications for justifying the constitutionality of the disparate impact standard. Part II explores the prohibition of intentional discrimination as a justification for the disparate impact standard and argues that justifying the disparate impact standard through this theory, as some courts currently do, may eventually narrow disparate impact doctrine and thus constrain the possibilities for substantive equality in employment. This Part also analogizes the limits of using an intentional discrimination rationale to justify the disparate impact standard to the limits of using the diversity rationale to justify affirmative action in higher education admissions programs. It concludes by pointing out the inadequacies of alternative effects-based theories. Part III makes the case that an equal citizenship theory, based on a moral interpretation of the Fourteenth Amendment, best justifies the disparate impact standard. Finally, Part IV confronts some of the institutional issues underlying the equal citizenship theory as a justification for the disparate impact standard and suggests that Congress should have power under Section V both to interpret the Equal Protection Clause and to enact legislation that promotes equal citizenship.