All content tagged with: Racial Analogues
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Implications for Race-Based Scholarships in the Wake of SFFA
This past summer (June 29, 2023) the United States Supreme Court overturned 45 years of precedent and ruled that the University of North Carolina and Harvard University’s affirmative action programs violated the Equal Protection Clause of the Fourteenth Amendment by considering race in their admissions process–effectively ending affirmative education…A Theory of Racialized Judicial Decision-Making
In this Article, I introduce a theory of racialized judicial decision-making as a framework to explain how judicial decision-making as a system contributes to creating and maintaining the racial hierarchy in the United States. Judicial decision-making, I argue, is itself a racialized systemic process in which judges transpose racially-bounded cognitive schemas as they make decisions. In the process, they assign legal burdens differentially across ethnoracial groups, to the disproportionate detriment of ethnoracial minorities. After presenting this argument, I turn to three mechanisms at play in racialized judicial decision-making: (1) whiteness as capital that increases epistemic advantages in the judicial process, (2) color-evasive approaches as effective tools to justify racially disparate outcomes, and (3) the elevation of racial discrimination into a status of exceptionalism that justifies heightened standards in proving racial anti-discrimination claims. I argue that the racialized judicial decision-making process reproducing the social racial hierarchy is institutionalized via the legitimacy courts wield. I conclude with a discussion on the agency and autonomy inherent in the judicial decision-making process, emphasizing judicial decision-making is not simply a reflection of ideology—personal or otherwise—individual biases, or cultural tides, and can as a system be leveraged to further racial equity in a democratic society.
Missing White Woman Syndrome: How Gabby Petito Reminded Us that Women of Color’s Disappearances are Largely Ignored
By Alexis Franks Associate Editor, Vol. 27 When Brian Laundrie pulled his white van into his family’s driveway on September 1st, 2021, friends and family all began asking the same question: where was Gabby? Brian and his fiancé, Gabby Petitio, had set out on a cross-country road trip one month…Law in the Shadows of Confederate Monuments
Hundreds of Confederate monuments stand across the United States. In recent years, leading historians have come forward to clarify that these statues were erected not just as memorials but to express white supremacist intimidation in times of racially oppressive conduct. As public support for antiracist action grows, many communities are inclined to remove public symbols that cause emotional harm, create constant security risks and dishonor the values of equality and unity. Finding a lawful path to removal is not always clear and easy. The political power brokers who choose whether monuments will stay or go often do not walk daily in their shadows. In recent years, eight Southern state legislatures enacted monument preservation legislation designed to thwart local removal efforts. These laws have prompted bitter conflicts, sometimes leading angry citizens to topple massive stone or bronze monuments themselves. The challenges present fertile ground for innovative lawyering. Creative applications of state property, nuisance and contract laws have led to removals notwithstanding the prohibitions of state preservation laws. When state law blocks removal or contextualization, communities may look to federal law as a source for taking antiracist action. First Amendment doctrine governing expressive speech has not provided a fruitful solution. Despite the expressive nature of Confederate monuments, efforts to weaponize the First Amendment by both sides of the monument debate have failed, largely due to the government speech doctrine. Given the age and quality of most monuments, copyright law is also not likely to provide an effective federal claim. The Federal Civil Rights Act offers an untapped but promising foundation for resolving these controversies. Title VI and Title VII could be used to challenge monuments that contribute to a hostile work or educational environment. Federal civil rights claims would supersede state legislation enacted to prevent removal of racially hostile symbols. Even when state law does not present removal barriers, communities who seek to take meaningful anti-racist action could ground their initiatives in the Civil Rights Act’s core value of equality. For all who are confronting this issue, this Article seeks to provide a legal and strategic framework for acknowledging history while reclaiming the symbolic heart of our public spaces and a means to assure that the symbols we elevate affirm shared contemporary values.
Implicit Bias Exposed: the Michigan Juvenile Justice System
By Lexi WungAssociate Editor, Vol. 26 I joined the Juvenile Justice Clinic as a student attorney during my fourth semester of law school. Immediately I dove into the intricacies of the juvenile justice system in Michigan, my client’s individual cases, and the realities of converting law school doctrinal classes into…
Uneven Distribution Leads to Increased Disparate Impact
By: Emma RosenAssociate Editor, Vol. 26 The rollout of the COVID-19 vaccines created a visible light at the end of the long, dark tunnel that has been the past ten months. This tunnel was even darker for those communities on which COVID-19 has had a disparate impact. COVID-19…
The Danger of Using “Terrorism” to Describe the Capitol Attack
By: Aashna RaoAssociate Editor, Vol. 26 On January 7, 2021, the day after the attack on the Capitol, President Joe Biden said of the Trump supporters who participated, “Don’t dare call them protestors. They were…domestic terrorists.”[1] Biden’s use of the word “terrorists” to describe the violent mob was intended…The Soul Savers: A 21st Century Homage to Derrick Bell’s Space Traders or Should Black People Leave America?
Note: Narrative storytelling is a staple of legal jurisprudence. The Case of the Speluncean Explorers by Lon Fuller and The Space Traders by Derrick Bell are two of the most well-known and celebrated legal stories. The Soul Savers parable that follows pays tribute to Professor Bell’s prescient, apocalyptic racial tale. Professor Bell, a founding member of Critical Race Theory, wrote The Space Traders to instigate discussions about America’s deeply rooted entanglements with race and racism. The Soul Savers is offered as an attempt to follow in Professor Bell’s narrative footsteps by raising and pondering new and old frameworks about the rule of law and racial progress. The year 2020 marks the thirty-year anniversary of Bell’s initial iteration of the Space Traders tale.
Are Caste and Race Really Analogous? Examining Caste-Based Discrimination in America
By Aashna RaoAssociate Editor, Vol. 26 As the U.S.’s South Asian immigrant population continues to grow, scholars across disciplines and cultures have attempted to reckon with the concept of caste-based discrimination in America.[i] Lawyers and authors alike have tried to draw parallels between caste and…
Overdue Expungement Legislation Signals Michigan’s Commitment to Criminal Reform and Recognition of Racial Inequality
By Meghan Patero Associate Editor, Vol. 26 2020 has drawn attention to the glaring consequences of racial inequality within the criminal justice system.[i] And while efforts to enact policies aimed at decreasing the number of people who enter the criminal justice system are important, we must also not forget…