All content tagged with: Systemic Oppression

Filter

  • Department of Education Reopens Anti-Discrimination Case, Sparks Controversy

    By Rose Lapp Associate Editor, Volume 24 In 2011, The Zionist Organization of America filed a religious discrimination claim against Rutgers University with the Department of Education Office of Civil Rights (“OCR”). The complaint had three claims. One of these claims, the one being addressed by the Department of Education and by this piece, arose out of an event held on campus by a pro-Palestinian group.[1] Allegedly, there was originally free admission to the event, but the organizers began charging admission “only after [they] observed ‘150 Zionists’ who ‘just showed up.’”[2] Under Title VI of the Civil Rights Act of 1964, OCR has jurisdiction over discrimination on the basis of race, color and national origin.[3] Under Title IX of the Educational Amendments of 1972, the office has jurisdiction over sex discrimination claims.[4] Section 504 of the Rehabilitation Act of 1973 and the Age Discrimination Act of 1975 gives OCR jurisdiction over discrimination on the basis of disability and discrimination on the basis of age, respectively.[5] The office does not, however, have jurisdiction over religious discrimination claims. In 2014, on the grounds that there was insufficient evidence of discrimination on the basis of national origin, the Department of Education closed the case.[6] However, now four years later, Kenneth Marcus, the current Assistant Secretary for the Office of Civil Rights at the Department of Education, has reopened the case.[7] He has indicated that he will reexamine the complaint as “possible discrimination against an ethnic group,”[8] and has expanded the definition of anti-Semitism in the OCR context to a “working definition” that is used in other government agencies.[9] This definition includes “denying the Jewish people their right to self-determination” and “applying double standards by requiring of it a behavior not expected or demanded of any other democratic nation.”[10] These changes will likely have serious consequences for discrimination claims brought by Jewish students.

  • 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.

  • Fairness in the Exceptions: Trusting Juries on Matters of Race

    Implicit bias research indicates that despite our expressly endorsed values, Americans share a pervasive bias disfavoring Black Americans and favoring White Americans. This bias permeates legislative as well as judicial decision-making, leading to the possibility of verdicts against Black defendants that are tainted with racial bias. The Supreme Court’s 2017 decision in Peña-Rodriguez v. Colorado provides an ex post remedy for blatant racism that impacts jury verdicts, while jury nullification provides an ex ante remedy by empowering jurors to reject convicting Black defendants when to do so would reinforce racially biased laws. Both remedies exist alongside a trend limiting the role of the jury and ultimately indicate that we trust juries to keep racism out of the courtroom in the exceptions to our normal procedures.

  • 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.

  • Can They Do That? (Part 3): Reversing Modern-Day Redlining

    By John Spangler Associate Editor, Volume 23 Production Editor, Volume 24 Patrick Miles Jr. - Michigan candidate for Attorney General Detroit remains the most segregated metropolitan areas in the United States.[1]  This is in part thanks to historical practices such as “redlining” where majority African-American neighborhoods were deemed “too risky” for mortgage lending.[2]  Though overt discrimination in housing has been outlawed[3], the systems created for that purpose often remain, in whole or in part.  One Democratic candidate for Michigan Attorney General, Pat Miles, has pledged to use the office to combat modern-day redlining.[4]  Patrick Miles Jr., who prefers to go by Pat, is the former U.S. Attorney for the Western District of Michigan, serving from 2012 to 2017.  Prior to that appointment, his experience was largely in private sector and telecommunications law.  As part of our ongoing series examining the campaign pledges of candidates for that office, we have to ask: can he do that? The study Mr. Miles cited in his pledge to defend consumers was conducted by Reveal, a project of the Center for Investigative Journalism.  Its analysis of data from 61 metro areas across 2015 and 2016 resulted in a blunt conclusion: “Fifty years after the federal Fair Housing Act banned racial discrimination in lending, African Americans and Latinos continue to be routinely denied conventional mortgage loans at a rate far higher than their white counterparts.”[5]  In Detroit, that trend meant an African-American applicant was almost twice as likely to be denied a conventional home mortgage.[6] Defenders of current mortgage practices point to what they believe are flaws in that data.  They argue that high rejection rates are a result of large lenders and technology, making applying for a mortgage easier and leading to more applicants with subpar credit.[7]  Yet this explanation ignores that federal housing policy codified racial minority populations as a lending risk for years, and those policies’ effects persist today.[8]  Without the access to long-term investment and wealth from generations ago, today’s minority borrowers are still subject to these trends.[9]     

  • Reverse Redlining and the Destruction of Minority Wealth

    By Asma Husain Associate Editor, Vol. 22 In 2012, Wells Fargo entered into a $175 million settlement after being accused of pursuing discriminatory lending practices. Specifically, the bank and its subsidiaries were accused of charging African Americans and Latinos higher rates and fees on mortgages than their White counterparts.

  • The Tyranny of Small Things

    In this legal-literary essay, I recount a day I spent watching criminal sentencings in an Alhambra, California courthouse, highlighting the sometimes mundane, sometimes despairing, imports of those proceedings. I note that my analysis resembles that of other scholars who tackle state over-criminalization and selective law enforcement. My original addition exists in the granular attention I pay to the moment-by-moment effects of a sometimes baffling state power on poor and minority people. In this approach, I align myself with advocates of the law and literature school of thought, who believe that the study (or, in this case, practice) of literature will encourage calls for justice by disclosing buried, yet critical, human experience and emotions.

  • The Price of Carceral Citizenship: Punishment, Surveillance, and Social Welfare Policy in an Age of Carceral Expansion

    The unprecedented rise in the number of people held in U.S. jails and prisons has garnered considerable attention from policy makers, activists, and academics alike. Signaled in part by Michelle Alexander’s New York Times bestseller, The New Jim Crow, and the unlikely coalition of activists, policy makers, celebrities, and business leaders on both sides of the political aisle who have pledged to end mass incarceration in our lifetime, the prison system has returned to public policy discourse in a way that was unforeseen less than a decade ago. On any given day in 2014, just over 2.3 million people were held in U.S. jails and prisons.1 This figure represents a tenfold increase in the inmate census since 1973, and about 22 percent of the world’s prisoner population.2 Unfortunately, while the causes and consequences of mass incarceration warrant rigorous examination, the focus on arrest and imprisonment has left a curious, yet equally historic phenomenon hidden in plain sight—the rise of a supervised society, and with it, an alternate track of citizenship.

  • Keynote Remarks

    In communities across America today, from Ferguson, Missouri, to Flint, Michigan, too many people—especially young people and people of color—live trapped by the weight of poverty and injustice. They suffer the disparate impact of policies driven by, at best, benign neglect, and at worst, deliberate indifference. And they see how discrimination stacks the deck against them. So today, as we discuss the inequality that pervades our criminal justice system—a defining civil rights challenge of the 21st century—we must also acknowledge the broader inequalities we face in other segments of society. Because discrimination in so many areas—from the classroom, to the workforce, to the marketplace—perpetuates the inequality we see in our justice system. And for those already living paycheck-to-paycheck, a single incident—whether an arrest by the police or a fine by the court—can set off a downward spiral. It can lead to a cycle of profound problems that ruin lives and tear apart families. Problems like losing your health care, your job, your children, or your home. As someone who focuses on civil rights work and criminal justice reform, I see these problems every day. But today in America, I also see a country on the cusp of change. Across a wide range of political perspectives, policymakers and advocates have come together to bridge divides and support meaningful criminal justice reform. And I’m proud to say that this administration—and this Department of Justice—has made criminal justice reform a top priority. We believe that our country needs, and deserves, a criminal justice system that more effectively protects our communities, more fairly treats our people, and more prudently spends our resources. And we believe that no matter how deeply rooted and long-standing the injustices that underlie inequality in our criminal justice system—with clear thinking, hard work and collaboration—we can make real progress.

  • Without Representation, No Taxation: Free Blacks, Taxes, and Tax Exemptions Between the Revolutionary and Civil Wars

    This Essay is the first general survey of the taxation of free Blacks in free and slave states between the Revolutionary and Civil Wars. A few states treated all equally for tax purposes, but most states enacted taxation systems that subjected free Blacks to different requirements. Both free and slave states viewed free Blacks as an undesirable population, and this Essay posits that—within the relevant political constraints—states used taxes and tax exemptions to dissuade free Black immigration and limit the opportunities for free Blacks within their borders. This topic is salient for at least two reasons. First, the Essay sheds light on laws and events that the literature—and the American educational system—has largely ignored. It directly contradicts the commonly held belief that free Blacks largely enjoyed the same set of rights and privileges as their White counterparts until Jim Crow and the Black Codes set in after the Civil War. Second, by juxtaposing then-widely prevailing views with historical tax laws, this Essay underscores the inherent relationship between tax policy and social policy. Taxes have never been just about bolstering the public fisc. Although this Essay will hopefully never have direct applicability to contemporary events, it can provide insight into current and future tax policies and the extent to which history, prejudice, and economic concerns inform policymakers’ decisions.