Category Archives: Race
Savannah Law Review has just published a symposium issue on “[Re]Integrating Spaces” that is full of great articles. Al Brophy’s article is particularly timely and interesting given the demands students are making across the country regarding the naming of buildings on university campuses. And for those interested in property and dispossession, Kali Murray’s article is great! But the whole issue is loaded with good stuff, so congrats to Savannah Law Review and to Marc Roark.
Volume 2, Number 1 | 1 SAVANNAH L. REV. 1 (2015)
Alfred L. Brophy
Jeffrey M. Schmitt
Marc L. Roark
Alberto B. Lopez
Caprice L. Roberts
Anthony V. Baker
Andrew McCanse Wright
Angela P. Harris
New Article: Noah Zatz, The Many Meanings of “Because Of” A Comment on Inclusive Communities Project, Nov. 12, 2015, Stan. L. Rev. Online.
News Coverage: Paul Kiel and Annie Waldman, The Color of Debt: How Collection Suits Squeeze Black Neighborhoods, ProPublica, Oct. 8, 2015.
-Thanks to Kaaryn Gustafson for the heads up!
New Article: “Can’t We Be Your Neighbor? Trayvon Martin, George Zimmerman, and the Resistance to Blacks as Neighbors”
New Article: Jeannine Bell, Can’t We Be Your Neighbor? Trayvon Martin, George Zimmerman, and the Resistance to Blacks as Neighbors, 95 B.U. L. Rev. 851 (2015).
New Article: Peter A. Joy, Unequal Assistance of Counsel, Kansas J. L. & Pub. Pol’y 2015. Abstract below:
There is now, and has always been, a double standard when it comes to the criminal justice system in the United States. The system is stacked against you if you are a person of color or are poor, and is doubly unjust if you are both a person of color and poor. The potential counterweight to such a system, a lawyer by one’s side, is unequal as well. In reality, the right to counsel is a right to the unequal assistance of counsel in the United States.
The unequal treatment based on the color of one’s skin is reflected by the racial disparity throughout the criminal justice system in which minority racial groups are involved in the criminal justice system as suspects and defendants at rates greater than their proportion of the general population. This is illustrated by the “driving while black” phenomenon in which law enforcement officers initiate traffic stops against persons of color and subject them to searches at a higher rate than whites, even though law enforcement is more likely to find contraband on white drivers than persons of color.
The Sixth Amendment promises the effective assistance of counsel to every person accused of a crime where incarceration is a possible punishment. This guarantee suggests that everyone, rich and poor, is equal before the law. But the reality of the criminal justice system is much different for the majority of those charged with crimes. If one does not have the financial means to hire effective counsel, or is poor and not lucky enough to have a well-funded, effective public defender or appointed counsel, the defendant’s right to counsel is unequal. This disparity is driven largely by the wealth of the accused and falls most harshly on people of color, who are twice as likely as whites to live in poverty and are accused of crimes at rates much higher than their proportion of the population. As a result, class and race are largely determinative of the lawyer, and often the amount of justice one receives.
This article explores how unequal assistance of counsel contributes to unequal justice. The article begins with a brief overview of racial disparities in the ways laws are enforced. The initial step in the criminal justice system, whether the police stop someone, can lead to arrest, charges, and the need for a lawyer. Next, it analyzes the systemic barriers to effective assistance of counsel at the state level, which is driven largely by excessive caseloads and an ineffective assistance of counsel standard that tolerates bad lawyering. It concludes with strategies for achieving more effective assistance of counsel, which emphasize the ethical imperative to provide meaningful assistance of counsel, the importance of data collection by public defender systems, and systemic litigation that positions assistance of counsel claims prior to trials.
New Article: Gavin Wright, The Regional Economic Impact of the Civil Rights Act of 1964, 95 B.U. L. Rev. 759 (2015).
New Article: Stephen Clowney, Boundary Work in Black Middle-Class Communities, 2 Savannah L. Rev. 225 (2015). Abstract below:
This piece, written for the “Re-Integrating Spaces” symposium at Savannah Law School, explores the spatial reality of black middle-class communities.
Most African-Americans are not poor. In fact, an overwhelming majority of black Americans are squarely entrenched in the rungs of the (lower) middle class. Despite this statistical reality, almost all of the legal scholarship on African-Americans focuses on the struggles of the very poorest black citizens. This brief Article hopes to reverse the trend. Building on insights from sociology and economics, the following pages explore the housing situation of middle-class African-Americans and the resulting geographic setting of non-poor black neighborhoods. In short, this Article asks three questions: (1) Where do black strivers live? (2) Why does it matter? and (3) Can the law mitigate the spatial phenomena that restrict black achievement?
Section I recaps an emerging body of empirical research showing that middle-class black workers reside in communities that are qualitatively worse than their white counterparts. Section II explains how the unique geography of middle-class black life erodes the physical health of African American strivers, threatens the transmission of middle-class values from one generation to the next, and makes it difficult for families to pass on hard-won economic gains to their children. Finally, Section III presents five brief policy proposals that could help reinvigorate middle-class black neighborhoods and spark a sustainable revival of urban environments. Instead of focusing on grandiose but unachievable plans to reformulate the American economy or reanimate public-sector unions, decision-makers should put increased emphasis on: creating new historic preservation districts in black neighborhoods; granting middle-class African Americans greater autonomy from their less well-off black peers; improving public transportation; strengthening school choice programs; and reformulating inheritance rules to prevent irresponsible children from taking over the property of their parents.
New Article: “Disparate Impact and the Role of Classification and Motivation in Equal Protection Law after Inclusive Communities”
New Article: Samuel R. Bagenstos, Disparate Impact and the Role of Classification and Motivation in Equal Protection Law after Inclusive Communities, 101 Cornell L. Rev. __ (forthcoming). Abstract below:
At least since the Supreme Court’s 2009 decision in Ricci v. DeStefano, disparate impact liability has faced a direct constitutional threat. This paper argues that the Court’s decision this past Term in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc., which held that disparate impact liability is available under the Fair Housing Act, has resolved that threat, at least for the time being.
In particular, this paper argues, Inclusive Communities is best read to adopt the understanding of equal protection that Justice Kennedy previously articulated in his pivotal concurrence in the 2007 Parents Involved case — which argued that state actions that do not classify individuals based on their race are not constitutionally suspect simply because they are motivated by the purpose of integrating the races. Applying that understanding, Inclusive Communities makes clear that disparate impact need not surrender to equal protection, but that the Constitution demands some limitations on disparate impact liability. Although the limitations should make a difference at the margins, they are not nearly as severe as some may have feared.
The broader goal of this piece is to offer an account of how the principle that Justice Kennedy articulated in Parents Involved, and that the Court seems to have adopted in Inclusive Communities, fits into prior equal protection doctrine. The piece argues that this interpretation of equal protection represents the most attractive approach consistent with the decided cases. But although the Inclusive Communities approach to equal protection represented the best path available to the Court in light of prior cases, it has substantial drawbacks. In addition to ignoring key normative considerations, the Court’s formalistic focus on the existence or nonexistence of a classification as a trigger for strict scrutiny is likely to prove unstable.
Here: Bertrall Ross, “Poor Lives Matter Too,” Prawfsblawg, Aug. 25, 2015, http://prawfsblawg.blogs.com/prawfsblawg/2015/08/poor-lives-matter-too-.html#more.