[For Black History Month, we invited some of our alumni to provide their reflections as guest bloggers of the month. This post is from Kristen D. Hardy L’14.]
When probing and prodding at the legal profession’s existential, ever-persisting diversity and inclusion (D&I) crisis, race and gender are routinely discussed in separate vacuums. Thus, inclusion efforts focusing on the improvement of gender diversity have largely come to consider only one subset of women — the majority. Similarly, inclusion efforts targeting racial diversity also tend to focus on the majority, which in most cases refers to men. Articles and conferences promising to break down barriers and unpack bias for women lawyers either completely ignore, or barely mention, the added layer of complexity for women lawyers of color. And without the voices of minority women attorneys, spaces promising to offer diverse perspectives begin to feel homogeneous and exclusive.
There is no denying that many women, regardless of race or background, share similar instances of gender bias and discrimination. But women of color must grapple with a separate set of unique challenges that remain largely disregarded. When the D&I conversation shifts to improving gender diversity, the challenges associated with women of color are frequently, perhaps unintentionally, ignored. Consequently, solutions intended to eliminate barriers for all women in the profession are falsely presented as equally effective for White, Black, Hispanic, Asian, and Indigenous women. This phenomenon is not only isolating, but arguably detrimental to the progression of minority women within the legal profession.
Double-Bind and Double-Barreled Bias
Most know, at least anecdotally, about the double-bind bias apropos to women in leadership. This type of implicit bias is a haphazard blend of gender stereotypes and ostensible leadership characteristics that gum together to form what feels like a catch-22 for women. Continue reading “Don’t Forget About Women Lawyers of Color”
[For Black History Month, we invited some of our alumni to provide their reflections as guest bloggers of the month. This post is from Emil Ovbiagele L’14.]
The American story is an unfolding tale. A rich and diverse story still being crafted. There are chapters we ought to celebrate with fervent praise. There are pages where it hurts to look. And most importantly, there are more exciting narratives yet to be fully told.
(Gratitude to Rodrigo Sanchez for assistance in compiling data on 53206.)
The Shriver Center in Chicago provides training on a particular model of community-based lawyering. They define “community lawyering” as “using legal advocacy to help achieve solutions to community-identified issues in ways that develop local leadership and institutions that can continue to exert power to effect systemic change.” The concept grew out of the older ideas of community organizing generally pioneered by Saul Alinsky’s work in 1930s and 40s Chicago, where, broadly speaking, the goal is to promote the empowerment of citizens, i.e. members of the community, to address problems and effect change. These ideas were applied to the practice of law at least as far back as 1970 in the form of a Yale Law Journal article where Stephen Wexler outlined a number of ways in which effective lawyering in an impoverished community is different from the traditional practice of law.
Whereas the traditional lawyering model sets up an adversarial dynamic between parties, community lawyering may engage alternative systems of relational power or power sharing aimed at ultimate reconciliation or compromise, founded on a recognition of common interests between parties. (See Ross Dolloff & Marc Potvin, Community Lawyering—Why Now?,37 Clearinghouse Review 136 (July–Aug. 2003)). Whereas traditional lawyering may entail simply spotting issues that can be resolved through litigation or formal legal recourse, community lawyering can approach citizen-identified problems as opportunities to engage stakeholders in a broader conversation in the hope of building authentic, trusting relationships. Whereas the traditional lawyer model is that of a litigator, negotiator of claims, and counselor to the client, the community lawyer’s focus may be to “develop inside the client population a sustainable knowledge base that allows the population to build foundations for opportunity from within,” to identify and defeat the causes of poverty. Whereas in the traditional lawyering model the attorney is the “voice” of the client before the court, in a community lawyering model, the strategy and policies are accountable to the voice of the population being served. The lawyer assists a community in identifying a structural barrier (access to economic resources, housing, sustainability, stability, employment opportunities, political voice, etc.) and then helps build capacity within the community to take action (through organizing, relationship building, advocacy, policy development, traditional case work, etc.).
In the decade after the American Civil War, Congress ratified three Amendments (the Thirteenth, Fourteenth, and Fifteenth) and passed five civil rights statutes (the Freedmen’s Bureau Act of 1866, the Civil Rights Act of 1866, the Civil Rights Act of 1870, the Civil Rights Act of 1871, and the Civil Rights Act of 1875) in an attempt to integrate African Americans into society and provide them with the full rights and privileges of citizenship. From rights to vote, hold property, and contract, to rights of access to the courts, public infrastructure, and the marketplace, these enactments represented a dream of reconstruction that strove toward a more universal application of the ideals of the Declaration of Independence. In striking down and interpreting these laws, the decisions of the Supreme Court played a crucial role in curtailing the promise of this older civil rights movement. The Court’s undermining of the laws led to the legal segregation, discrimination, terrorizing, denial of due process, lynching, murdering, exploitation, and injustice that characterizes the African American experience in the century that followed.
The highlight reel that we all study in Constitutional Law class includes:
Paul Butler refers to himself as “a recovering prosecutor.” A native of the south side of Chicago, he graduated from Harvard Law School, clerked for a judge, and went into private practice. He became a federal prosecutor with the hope he would part of solving problems in the criminal justice system that lead to so many people being incarcerated, especially African American men. He concluded that, as a prosecutor, he was part of the problem and not the solution. He left the job and is now the Albert Brick Professor of Law at Georgetown University and an advocate for major reform of the criminal justice system.
This third and final post reflecting the “In Search of Better Outcomes” theme of the new Marquette Lawyer magazine begins with a third pair of articles, the one that actually provides the quoted phrase (see here and here for the previous posts and previous pairs). These last two articles, with a brief introduction, look at the impact of law enforcement on people on different sides of the badge—and at possibilities for better outcomes both for those in law enforcement who are affected negatively by the cumulative trauma with which they deal and for offenders upon release, after they have served time in incarceration.
“Behind the Badge: A Growing Sense of the Need in Law Enforcement to Cope with Trauma” is an edited transcript of a panel discussion involving four people who have served in law enforcement. They offer insights on the need for better avenues for getting help for those who see so much violence and extreme behavior as part of their jobs protecting the public. The discussion was part of Law School’s Restorative Justice Initiative conference on November 9, 2018, titled “The Power of Restorative Justice in Healing Trauma in Our Community.”
“Putting a Period at the End of the Sentence,” an article by Alan Borsuk, draws on a conference, on October 4, 2018, of the Law School’s Lubar Center for Public Policy Research and Civic Education. Titled “Racial Inequality, Poverty, and the Criminal Justice System,” the gathering focused on issues facing people who are returning to the general community after incarceration. The story features some of the keynote remarks by Bruce Western, a sociology professor at Columbia University and author of Homeward: Life in the Year After Prison (2018). It also reports on observations by leaders of programs in the Milwaukee area that aim to help people leaving incarceration establish stable lives in the community.
A previous blog post discussed a pair of stories in the Summer 2019 Marquette Lawyer magazine and concluded by quoting one of them: specifically, an observation by Professor David Strauss of the University of Chicago, based on the Boden Lecture at Marquette Law School by Duke’s Professor Ernest Young, that “in the end, there is only so much the law can do to save a society from its own moral failings.” This post takes up a second pair of stories in the magazine, from which one might draw the same conclusion.
While it remains a fact about the large majority of schools in the Milwaukee area now, segregation of Milwaukee school students by race was the subject of great energy—attention, advocacy, and controversy—in the 1960s and 1970s. Two pieces in this summer’s Marquette Lawyer focus on the Milwaukee education scene of that earlier era.
The Summer 2019 issue of Marquette Lawyer features three pairs of stories with an underlying common theme that can be summed up by one of the headlines: “In Search of Better Outcomes.” This issue of the Marquette Law School semiannual magazine overall has a substantial historical orientation, but it also speaks strongly to current realities and issues—as has become even clearer since the magazine hit the streets a few weeks ago. Simply put, learning about the past helps in understanding the present and considering the future. This post takes up one pair of articles: the cover story and a reaction to it.
The cover story, “Dying Constitutionalism and the Fourteenth Amendment,” is an edited version of the Robert F. Boden Lecture given at Marquette Law School in fall 2018, by Ernest A. Young, the Alston & Bird Professor at Duke Law School. While the Fourteenth Amendment later would be crucial to the growth of constitutional protections and the extension of civil rights—the linchpin of America’s “second founding,” as it is sometimes called—Young focuses on the first 75 years after the amendment was ratified in 1868. It was a period of broad suppression of civil rights, particularly those of African Americans—the Fourteenth Amendment not working much to the contrary.
Young’s purpose is not so much historical as jurisprudential: He presents his essay as a cautionary tale about “living constitutionalism,” demonstrating that, while that mode of constitutional interpretation was not the Court’s stated approach in those 75 years, it could have been: For “every one of [living constitutionalism’s] modalities strongly supported the compromise or even abandonment of the amendment’s core purpose of freedom and equality for black Americans.” Simply stated, the history of the use of the amendment is a reminder that “social progress is not inevitable, that social forces can push constitutional meaning in bad as well as good directions, that living can turn into dying constitutionalism if we are not very, very careful,” Young writes.
In a comment on Young’s lecture, David A. Strauss, Gerald Ratner Distinguished Service Professor of Law at the University of Chicago and author of The Living Constitution (Oxford 2012), says that the early failures under the Fourteenth Amendment need to be reckoned with by those who are proponents of living constitutionalism. He writes that Young’s lecture shows that “in the end, there is only so much that the law can do to save a society from its own moral failings.”
On June 20, 2019, the United States Supreme Court reversed the conviction of Curtis Flowers. The most recent appeal marks the sixth time that Mr. Flowers has been tried for charges arising from a quadruple homicide that occurred at the Tardy Furniture Store in Winona, Mississippi. Mr. Flowers has been incarcerated for over 20 years, as he awaits trial. Throughout this time, Mr. Flowers has consistently maintained his innocence. By way of background, Mr. Flowers is black. Douglas Evans, the prosecuting attorney of all six trials, is white.
APM’s investigative podcast titled In the Dark conducted an in-depth analysis of the case. The podcast explores the nature of the circumstantial evidence that the prosecution relied upon. It scrutinizes the methodology of the investigating officers and explores alternative innocent interpretations of the evidence proffered. But, for the purpose of the appeal, sufficiency of evidence is not at issue. The narrator, Madeleine Baran, explains that “we’ve talked to hundreds of people who live in this part of Mississippi and it’s clear that the way people think about the Curtis Flowers case for the most part depends on whether they are white or black.” And it is the issue of race, which is at the heart of the appeal recently decided by the United States Supreme Court. Continue reading “Out of the Shadows: Peremptory Juror Strikes At Issue in Flowers v. Mississippi”
On our first full morning in Tel Aviv, we turned to some (other) hard issues facing different parts of the population in Israel. Our first speaker was Mazal Bisawer, a PhD candidate and student leader at Tel Aviv University. Mazal spoke to us about the Ethiopian population in Israel—a minority within a minority—most of whom immigrated to Israel in the 1970’s and 1980’s. We’ve had visits with other Ethiopian Jews over the years (see blogs from 2017 here and 2015 here) dealing with the issue of diversity in Israel. And even on the main street in Tel Aviv, the concept of refugees is front and center with this beautiful mosaic:
Shayla Sanders identified with Mazal’s comments:
She spoke broadly about police brutality against young Ethiopian men and emphasized that while only 2% of the population in Israel, Ethiopian young people make up 60% of the population in juvenile detention facilities. I was struck in this moment with a sickening, yet somehow validating sense of déjà vu. I recognized these statistics. I know that African Americans in the US face a similar plight. In hearing her speak to some of these issues, I heard some of the same emotions I myself experience when discussing racial issues here in the US. I heard in her the same passion I feel when discussing instances of injustice against my people. I heard her pain when she told us how people would say that Ethiopians should feel lucky to only be experiencing minor levels of racism because they are the only group of black people not brought by force into a country and compelled into slavery. I felt her frustration when she emphasized that speaking out on these issues, she is often met with the same reaction as if she had stated a belief in little green aliens and UFOs… I have myself been written off as a radical idealist who plays the race card all too frequently. I have been faced with those who would rather police my tone than address and confront the truth in my statements. So, imagine my utter lack of shock when our very own tour guide immediately dismissed Mazal as radical and gave an open invitation to our tour group to take her opinion with a grain of salt not granted to any of the other speakers we had seen thus far.
“It requires little knowledge of human nature to anticipate that those who had long been regarded as an inferior and subject race would, when suddenly raised to the rank of citizenship, be looked upon with jealousy and positive dislike, and that state laws might be enacted or enforced to perpetuate the distinctions that had before existed.” – Strauder v. West Virginia, 100 U.S. 303, 306 (1879)
As ominously foreshadowed by the Supreme Court in 1879, current state and federal laws and practices continuously present disadvantages to people of color. Removed from enslavement and the oppressive nature of the Jim Crow Era, today many of the participants in our justice system and in politics are blind to discrepancies within this nation’s criminal justice system and erroneously believe that the black defendant enjoys the same rights as the white defendant. The black defendant is seldom given a jury that racially represents him or her, and this lack of representation is a product of case precedent, judicial reasoning, and discriminatory practices. In Wisconsin, these discriminatory practices take the form of both state and federal jury pooling procedures. As such, the purpose of this blog post is to draw attention to the disproportionate jury pooling practices in Wisconsin circuit courts as well as federal district courts in our state, and to provide a forum for debate on this important issue.
Federal Jury Pooling in Wisconsin and the Depleted African American Voting Population
The right to a jury is so critical to the makeup of our system of justice that the Constitution mentions juries in four different sections. However, while individuals have a constitutional right to a jury, the pooling and selection of such juries is not always constitutionally executed. Both the Eastern and Western District Courts of Wisconsin have jury pooling practices that raise constitutional concerns due to the disproportional impact that those practices have on black criminal defendants. Continue reading “Racial Discrimination in Wisconsin Jury Pool Practices”
On the 135th Anniversary of the Supreme Court’s opinion in The Civil Rights Cases, it is worth reflecting on how that opinion — which came after Reconstruction but before Jim Crow—reflects the tensions at play today concerning how constitutional law can, through unrelenting formalism and a preference towards denying the power of the history of slavery and the salience of race, contributes to enduring white supremacy.
This week marks the 135th anniversary of the U.S. Supreme Court’s opinion in The Civil Rights Cases, 109 U.S. 3 (1883). While to some this is a mere historical footnote, the decision is worth remembering because it reflects the tensions at play today concerning how constitutional law can, through unrelenting formalism and a preference towards denying the salience of race, contributes to enduring structural oppression. The reasoning in The Civil Rights Cases is an object study in how to maintain white supremacy—and a mirror to our society today.
The opinion overturned the Civil Rights Act of 1875. It sought to protect recently freed African-American slaves from discrimination in the use of “inns, public conveyances on land or water, theaters, and other places of public amusement.” In striking down this nineteenth-century public accommodations law, thus allowing private businesses to deny services to African Americans because of their race, Justice Joseph P. Bradley, speaking for the 8-1 Supreme Court majority, made three arguments. Continue reading “The Mirror of Racial Tyranny in The Civil Rights Cases”