Anti-Racism Topic Paper

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CEDA Topic Paper Anti-Racism Proposal 2016-17 Policy Debate

Claudette Colvin C.T. Vivian Chase Iron Eyes

T. R. M. Howard Yuri Kochiyama

Reies López Tijerina Daisy Lee Gatson Bates

Anti-Racism Topic Paper

April 2016

Janet Escobedo, Georgia State University; Samuel Hanks, Georgia State University; Nadia Hussein, Georgia State University; and Dr. Kevin Kuswa, Berkeley Preparatory in Tampa, Florida.

—with advice and feedback from Rashad Evans, University of Puget Sound and Dr. Tim Barouch, Georgia State University

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“Paradigms, however, are like frost crystals that disappear on exposure to the sun. As soon as one starts talking about a paradigm, its days are numbered,” R. Delgado, ’12

“We’re living in more chains today -- through lockdowns, ankle bracelets, halfway houses,… -- than we were in the early 1800’s. That’s something to think about.” Frank W. Wilderson, ‘14 CEDA Topic Paper Anti-Racism Proposal 2016-17 Policy Debate

Table of Contents

Anti-Racism Topic Area Proposal ...... 4

I. “Anti-Racial Exclusion” Phrasing ...... 9 Racial Disparity ...... 18 Racial Inequality ...... 22 Comments on Term of Art ...... 28

II. Policy Areas of Focus ...... 29 Education ...... 33 Criminal Justice ...... 52 Housing ...... 66 Voting Rights ...... 78 Immigration ...... 83

III. Wording Sketches...... 93 United States Agent ...... 94 Multitude of Agents ...... 95 Verb Options ...... 96

IV. Macro-Political Debates ...... 97 Politics DA ...... 100 The Court (Agent CPs) ...... 102 Critical Race Theory ...... 104 Anti-Binary Arguments Emerge from the Critique of CRT ...... 106 Mainstream social reform ...... 110

V. Micro-political strategies/tactics/methods of resistance ...... 111 methods of sentiment ...... 113 direct action ...... 115 academic resistance ...... 117 social movement activism ...... 119 criticism/performance ...... 120 Afro-pessimism...... 121

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“Paradigms, however, are like frost crystals that disappear on exposure to the sun. As soon as one starts talking about a paradigm, its days are numbered,” R. Delgado, ’12

Black optimism ...... 126 full negation ...... 131 standpoint epistemology ...... 132 revolution ...... 143 story-telling ...... 144 civil disobedience ...... 146 debate ...... 147

VI. Other arguments...... 148 Postracialism ...... 149 Intersectionality / Multisectionality ...... 151 Racial Binaries ...... 153 Economic Class ...... 156 Commodification / Racial Capitalism ...... 158

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“Paradigms, however, are like frost crystals that disappear on exposure to the sun. As soon as one starts talking about a paradigm, its days are numbered,” R. Delgado, ’12

Anti-Racism Topic Area Proposal

It’s time for the NDT-CEDA community to debate a topic centered on race in the United States. Certainly the community has been debating in this area on a number of levels already, but by “debate a race topic,” we mean directly and explicitly as called for by the specific wording of a resolution. With that objective in mind, we advocate in this paper that one of the following root configurations should be the starting point for the 2016-17 CEDA resolution.

Resolved: That the United States should drastically reduce institutional racism in housing, education, immigration, and or criminal justice in the United States.

Resolved: That the United States should substantially reform and expand its criminal justice, education, voting rights, immigration and/or housing policies to reduce racial disparity (racism, racial inequality) in the United States.

Resolved: That substantial and direct political action should be taken to reverse racial disparity (racism, racial inequality) {in incarceration rates, educational opportunities, housing, voting rights and/or labor} in the United States.

We are just over a half century since the Assistant Secretary of Labor under President Lyndon Johnson, Daniel Patrick Moynihan, published what’s now called the Moynihan Report, the bogeyperson of most progressive thinkers on race. The Report was supposed to lay out an agenda for addressing racial inequality by strengthening Black families, but its neo-liberal intent was swamped by its problematic rhetoric and its contribution to more conservative arguments in favor of incarceration and the perpetuation of other forms institutional racism.1 Moynihan relied on (and thus reinforced) a patriarchal notion of the family that classified many black families as in a “tangle of pathologies,” considered all single- parent families to be dysfunctional (and to blame for their condition), and counted every household led by a woman to be “disorganized.” These social “crises,” through the lens of the Report, were lodged in the communities themselves, not a product of capitalism and institutional racism. It’s telling to note Stokely Carmichael’s response to the Report: “The reason we’re in the bag we’re in isn’t because of my mama, it’s because of what they did to my mama.” Those familiar with CRT or Black Studies know that this public policy document is soundly refuted throughout the literature, from the beginning of Spiller’s “Mama’s Baby” article in Diacritics2 to Sexton’s work on Ante-Anti-Blackness, to any author tracing the rise of incarceration within Black communities over the last twenty years. The debate community has an obligation to rethink policy prescriptions and political approaches to race and its consequences in the United States. Since the time of the Moynihan Report, both the National Debate Topic and the legislative accomplishments of the Federal Government, with few exceptions and an understandably heated debate over whether the Civil Rights Act of 1964 would be considered an “accomplishment,” have not prioritized the battle against racial inequality. Reading a piece like Coates’s article in the Atlantic about Blacks and disproportionate incarceration,3 you would think that the debate community would have selected a resolution about race at least a few times since the 1940s. That’s not the case, however—no resolutions during the 60s and only one since the recorded history of NDT resolutions (two if you count the fact that one of the four Supreme Court decisions on the 2006-7 Courts topic dealt with race and education— Milliken v. Bradley (1974)). Seventeen years ago, in 1998-9, the topic had the USFG legislatively amend Title VII of the Civil Rights Act “to create additional protections against racial and/or gender discrimination.” It was a very good topic,

1 Sam Klug, Graduate Asst. in History @ Harvard, ‘16 (Dissent, Volume 63, Number 1, Winter 2016, pp. 48-55)

2 Spillers, Hortense J. (Summer, 1987). “’Mama's Baby, Papa's Maybe’: An American Grammar Book,” Diacritics, Vol. 17, No. 2, Culture and Countermemory: The "American" Connection, pp64-81.

3 Ta-Nehisi Coates, ’15 (Atlantic, Oct., “The Black Family in the Age of Mass Incarceration”)

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“Paradigms, however, are like frost crystals that disappear on exposure to the sun. As soon as one starts talking about a paradigm, its days are numbered,” R. Delgado, ’12

but it only addressed the limited area of employment (as covered by Title VII), the affirmative had to act through legislation, and it was seventeen years ago! That’s during the Clinton years, pre-9-11, pre-Katrina, pre-Obama, pre Trayvon Martin, and pre Ferguson. Pre-too much. We should debate more than a subsection of this area and we should do it now.4 As Robin Kelley says, “Black struggle matters. It matters because we are still grappling with the consequences of settler colonialism, racial capitalism, and patriarchy in the US.”5

Think about the context of the college students who will be debating the upcoming topic. The evidence urging a debate over these topics is compelling.

Henry Louis Gates Jr., ’16 (Feb 1, “Black America and the Class Divide,” is co-author of “And Still I Rise: Black America Since MLK,” host of “Finding Your Roots” on PBS and director of the Hutchins Center for African and African American Research at Harvard. http://www.nytimes.com/2016/02/07/education/edlife/black-america-and-the-class-divide.html?_r=0)

The disparity of opportunity plagues Black America perhaps even more starkly now, given its extremes, than the economic reality that motivated Dr. King to transfer the focus of his movement from civil rights to economic justice, as exemplified in his last, tragically aborted effort to mount a “Poor People’s Campaign.” The childhood poverty rate for African-Americans remains stubbornly close to what it was the day Dr. King was assassinated; unemployment for black Americans runs nearly double that of the national average; and the distrust between impoverished communities and the police continues to spiral (helped in no small part by the fact that blacks make up more than a third of the prison population, compared to only 13 percent of the overall population). And we still confront the question that arose the moment the first slave ships arrived: Do black lives matter?.... It is into this whiplash environment of economic inequality that college students have come of age. They were youngsters when Hurricane Katrina engulfed New Orleans — for a time the ultimate symbol of inequality of income and opportunity — and teenagers when George Zimmerman killed Trayvon Martin. They have been consumed by a roster of recorded police killings of unarmed black men and boys since August 2014, when Michael Brown was killed in Ferguson, Mo., followed by similar assaults in Staten Island, Cleveland, Chicago and North Charleston, S.C. Black women and girls haven’t escaped injustices, either. We need think only of the young girl in the Mall of America who was restrained by a security guard or the teenager in South Carolina who was thrown from her desk by a school resource officer, or the 13 black women who testified against the former Oklahoma City police officer Daniel Holtzclaw, who was convicted of rape. The nation’s African-American students are searching profoundly and visibly for a definitive end to racial

4 A good reinforcing citation: Emirbayer & Desmond, 15 (Mustafa and Matthew, The Racial Order, 520 pages, Chicago Press) What an abstract!

Proceeding from the bold and provocative claim that there never has been a comprehensive and systematic theory of race, Mustafa Emirbayer and Matthew Desmond set out to reformulate how we think about this most difficult of topics in American life. In The Racial Order, they draw on Bourdieu, Durkheim, and Dewey to present a new theoretical framework for race scholarship. Animated by a deep and reflexive intelligence, the book engages the large and important issues of social theory today and, along the way, offers piercing insights into how race actually works in America. Emirbayer and Desmond set out to examine how the racial order is structured, how it is reproduced and sometimes transformed, and how it penetrates into the innermost reaches of our racialized selves. They also consider how—and toward what end—the racial order might be reconstructed. In the end, this project is not merely about race; it is a theoretical reconsideration of the fundamental problems of order, agency, power, and social justice. The Racial Order is a challenging work of social theory, institutional and cultural analysis, and normative inquiry.

5 Kelly, ’16 (Robin D.G. Kelley, Gary B. Nash Professor of American History at UCLA, Yes, I Said “National Liberation,” 03/01/2016, http://www.blackagendareport.com/free_palestine_free_black_america, acsd 1-1-14) Also see this video from Robin Kelley: https://www.youtube.com/watch?v=AdbuhNaBcbc)

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“Paradigms, however, are like frost crystals that disappear on exposure to the sun. As soon as one starts talking about a paradigm, its days are numbered,” R. Delgado, ’12

injustice. College campuses, Du Bois’s proving grounds for the training and testing of social responsibility and

leadership, have once again become a primary front in the battle against inequality — from “I, Too, Am Harvard,” a concept that has spread from Berkeley to New York University, to the principled protest of football players at the University of Missouri against racial insensitivity, to demonstrations at Brown and Brandeis, Princeton and Yale. A number of administrators have voiced strong support for these protests as well as an institutional will to change, be it renaming buildings or re-evaluating the makeup of their student body and faculty. Change, even at the symbolic level, is difficult, of course, and it remains to be seen what this current wave of protests will accomplish. Will the fight against police brutality, symbols of the Confederacy and society’s plethora of micro-aggressions become the basis of a broader movement for the improvement of underfunded public school education, for the right to a job with decent wages, and for the end of residential segregation that relegates the poor to neighborhoods with murder rates as alarming as those on the South Side of Chicago? What is certain is that the outrage that led to Black Lives Matter and its spinoffs

will be with us for years to come unless these legacies of slavery and Jim Crow become remnants of a racist past .

More emphasis from Coates…white privilege requires resistance.

Ta-Nehisi Coates, Feb 8, 2016, “The Enduring Solidarity of Whiteness” http://www.theatlantic.com/politics/archive/2016/02/why-we-write/459909/

Nevertheless, my basic feelings about the kind of America in which I want to live have not changed. I think a world with equal access to safe, quality, and affordable education; with the right to health care; with strong restrictions on massive wealth accumulation; with guaranteed childcare; and with access to the full gamut of birth-control, including abortion, is a better world. But I do not believe that if this world were realized, the problem of white supremacy would dissipate, anymore than I believe that if reparations were realized, the problems of economic inequality would dissipate. In either case, the notion that one solution is the answer to the other problem is not serious policy. It is a palliative….That question is beyond my purview (for now). But what is obvious is that the systemic issues that allowed men as different as Bill Cosby and Daniel Holtzclaw to perpetuate their crimes, the systemic issues which long denied gay people, no matter how wealthy, to marry and protect their families, can not be crudely reduced to the mad plottings of plutocrats. In America, solidarity among laborers is not the only kind of solidarity. In America, it isn’t even the most potent kind. The history of the very ideas Johnson favors evidences this fact. At every step, “universalist” social programs have been hampered by the idea of becoming, and remaining, forever white. So it was with the New Deal. So it is with Obamacare. So it would be with President Sanders. That is not because the white working class labors under mass hypnosis. It is because whiteness confers knowable, quantifiable privileges, regardless of class—much like “manhood” confers knowable, quantifiable privileges, regardless of race. White supremacy is neither a trick, nor a device, but one of the most powerful shared interests in American history. And that, too, is solidarity.

A desire to debate about women and gender issues finds very stable traction throughout this entire topic area. There is an inseparability that goes beyond simple intersectionality here.

Kimberle W. Crenshaw, Professor of Law at UCLA and Columbia Law, ‘12 (August, 59 UCLA L. Rev. 1418 “From Private Violence to Mass Incarceration: Thinking Intersectionally About Women, Race, and Social Control”

The various gendered dimensions of racial retrenchment have continued to exact tragic consequences for racially marginalized women and their families. The articles in this symposium repeat and expand the dynamics that underscore the dramatic growth of punishment in women's lives. From their encounters within systems ranging from housing to employment, from juvenile justice to foster care, and from criminal justice to immigration, gender and class correspond with a host of vulnerabilities that fuel this explosion and that authorize some of its most debilitating consequences. As these narratives reveal, despite the dominant frames through which mass incarceration is understood and contested, the social construction of deviant publics is not exclusively gendered as male. To the contrary, the many permissions to

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“Paradigms, however, are like frost crystals that disappear on exposure to the sun. As soon as one starts talking about a paradigm, its days are numbered,” R. Delgado, ’12

incarcerate and punish large populations of men, women, and children are generated through broad constructions of deviance that gain traction through the representation of stigmatized women of color. n176 In tracing the genealogy of a few ideological contestations within the corpus of antiracist and feminist discourse, it is evident that the dynamics that are at play in constructing the underprotection and overpolicing of women of color are far from static. Attending to the connections between earlier mobilizations against violence and the contemporary rhetoric around mass incarceration reveals that intersectional failures from an earlier era become the beachheads upon which retrenchment politics play out in the next. The retrenchment politics underwritten by neoliberal ideology are powerful, yet they are sometimes inadvertently facilitated by feminist and antiracist advocates who concede to apologetic explanations for existing inequalities or who underestimate the consequences of policies that subvert the thrust of the originating demands. Thus, the relationship between underprotection and overpolicing is not solely a matter of state power but also the consequence of political elisions that have undermined the development of a more robust critique of social control and a more expansive vision of social justice. While the matters addressed in this symposium belie simple solutions, the efforts to attend to the paradoxes of overpolicing and underprotection are fruitfully grounded in and informed by the experiences of women of color. The current milieu that, in George Lipsitz's words, renders large numbers of people "arrestable, incarcerable, displaceable, and deportable" rests not only on the retraction of resources and notions of broad social responsibility. n177 It also is made possible by the presence of certain legitimizing beliefs, many of which pertain to the presumed dysfunction of women in need of discipline. The structural and discursive abandonment of women of color - the normalization of their socioeconomic marginality alongside the renewed fantasies of gender normativity - are key elements sustaining the beliefs that "people with problems are problems." n178 As Dorothy Roberts notes, however, until we recognize the centrality of the intersectional entrapment of racially marginalized women and girls with regard to contestations over mass incarceration and social welfare more broadly, the possibilities for building a more coherent politics that links constituencies with shared interests will remain unrealized.

It is not hard to dispute the need for this topic area. What we need to do then, is look at some different wordings and begin the very early discussions about research. Once an affirmative on this topic locates an area for action and determines what racial disparity the action needs to try to reverse, the direct advocacy against racial inequality has uniformity in purpose and focus. This paper has six sections in defense of a topic seeking a better approach to racial injustice, inequality, exclusion, and oppression. Part I is about the central noun or adjective-noun phrase of the topic—whether to seek a reduction in “racism,” “racial disparity,” or some other variant of racial inequality. Part II does initial research into some of the possible “policy areas” to focus on, such as criminal justice and incarceration, housing policy and education policy. The paper provides some details on a few of those areas alongside a larger list that might be of interest for future wording papers. Part III is the jumping off point for the casual reader or where wording paper authors will want to return after reading the document. This section has some suggested resolutions and it is divided into a United States agent wording and a multitude of agents wording. Part IV, in addition to the “policy areas” discussion in part II, is primarily about the “macro-political” debate over race and racism from the perspective of the negative. The vast vast majority of good negative ground, however, will come from specific case debates—an important goal for any topic area and one this will meet. The less explored and more critically oriented debate is initiated in Part V on micro-politics: the strategies, approaches, and methods of debaters as agents of change. Part VI basically says, “wow, we barely scratched the surface.” and “here’s a bunch of other argumentation that really matters and will get debated under this topic area.” Even though the paper is organized around two approaches to the aff—one that fiats legislative change through the USFG and one that does not (with a few straddling the fence, to be sure)—we also strive to address the concerns of “the topic as a curriculum,” the topic as “timely” without being too week-by-week or month-by-month, and a topic directionality (or stem) defended in the literature (what’s the mechanism?). Ultimately and sadly, the topic is stable in that its direction will have inherency:

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“Paradigms, however, are like frost crystals that disappear on exposure to the sun. As soon as one starts talking about a paradigm, its days are numbered,” R. Delgado, ’12

Matthew Delmont, Mar 31, ‘16, “When Black Voters Exited Left: What African Americans lost by aligning with the Democratic Party” http://www.theatlantic.com/politics/archive/2016/03/exit-left/476190/

In the 2016 Democratic primary, African Americans are challenging Hillary Clinton and Bernie Sanders to earn their votes. Whoever wins the nomination will likely garner support from over 85 percent of black voters, but African Americans still lack a mechanism to hold Democrats accountable once they are elected. Consequently, the outlook for blacks in the United States regarding housing, jobs, education, and criminal justice is little better today than when Kennedy helped get King out of jail in 1960. During this election year, they will again weigh what they won and what they lost when they cast their lot with the Democratic Party.

The good news is that this topic can be debated in a balanced way, with room for growth on both sides and three stable wording components for negative footings: the “term of art” that describes the harm (racial equality, institutional racism, etc.), the agent of action (even the passive voice opens up lots of avenues for the negative, let alone the United States or the United States government), and the sector or policy area (education, incarceration, voting rights, etc.).

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“Paradigms, however, are like frost crystals that disappear on exposure to the sun. As soon as one starts talking about a paradigm, its days are numbered,” R. Delgado, ’12

I. “Anti-Racial Exclusion” Phrasing

Short-version of this paper for the ballot: The US should reduce racial exclusion in one or more areas.

The topic committee should research in-depth whether to use “racial disparity,” “racism,” “racial inequality,” “racial discrimination,” “racial exclusion,” or another closely related term (including using racism with an adjective in front of it such as “institutional” or “structural”). The phrasings do mean different things, but are centered on a discursive, material, and constructivist approach to “race” that refuses to conceptualize it in primarily negative terms. That means giving the affirmative the ability to challenge the oppressive uses of race in the status quo that distinguish between groups in a way that affords an advantage to some groups and exclusion to others. These “advantages,” (that would be reduced by the affirmative) are conferred by a combination of historical, cultural, economic, and political arrangements primarily on white groups (also classified as “Anglo,” in some instances “of European decent” or “European American”). They range from preferential treatment in obtaining a job or purchasing a home to being more likely to receive a foundational education to even being able to vote or stay in the country in the first place. The forms of exclusion imposed on so-called “minority” or “non-white” groups (although these minority groups increasing outnumber whites throughout the United States) primarily effect, in distinct ways, “Blacks,” “Chicanos/as,” “Indigenous Peoples,” “Asian-Americans” as well as other instances where groups are defined by nationality (“Korean-Americans” or “Mexican Americans”) or even by religion (“Muslims”) with a racial component— typically any groups that can be classified as non-white.6

6 There are important debates surrounding these categories, including whether to use these terms or not. Most categories are intertwined with racist ideology on some level because the groups are socially constructed, not scientific-determinist, or biological, meaning that a particular term itself can carry with it the perceptions of its own stereotype. All of these histories deserve criticism… Brief history of racist ideologies…racism as racial inequality

Gregory Streich, Prof. Political Science U. Central Missouri, ’05 (‘Racial Equality” New Dictionary of the History of Ideas, http://www.encyclopedia.com/doc/1G2-3424300247.html, accessed 3-24-16)

The idea of racial equality has disputed long-standing beliefs in racial inequality that can be traced back several hundred years. Centuries ago, the colonization or enslavement of a people was often justified on grounds of cultural superiority (as in the case of British colonial control over India) and even on religious grounds (for example, slavery was rationalized as biblically ordained by Noah's curse of Ham or as a process of bringing Christianity to heathens). In the 1700s, however, racial inequality was increasingly given a scientific justification. Contemporary categories of race ("white," "black," etc.) were given a scientific status by Carolus Linnaeus and Johann Friedrich Blumenbach. Typical of the era, each explained race with reference to climate and geography. In 1758, Linnaeus classified humans as "Americanus" (currently Native American), whom he described as red, upright, choleric, and ruled by habit; "Europaeus" (currently European), whom he described as white, sanguine, muscular, and ruled by custom; "Asiaticus" (currently Asian), whom he described as pale yellow, melancholy, stiff, and ruled by belief; and "Africanus" (currently African), whom he described as black, phlegmatic, relaxed, and ruled by caprice. Later, in 1795, Blumenbach asserted the moral equality of races but still categorized and ranked them according to his conception of beauty: Caucasians were his ideal, with Malays and Ethiopians representing one line of "degeneration" and Americans and Mongolians representing a second line. These typologies had the inevitable result of not only reifying race as a scientific category, but also solidifying the alleged link between race, beauty, intelligence, and the capability of exercising self-government. In the nineteenth and early twentieth centuries, racial inequality was justified by several different scientific approaches. First, polygenism attempted to explain that each race is genetically distinct, with Europeans seen as superior to blacks, Asians, and Native Americans. Indeed, in his Essay on the Inequality of Human Races, Joseph Arthur de Gobineau asserted that whites were superior to other races and advised great nations to preserve their racial purity, since racial mixture, he claimed, led to cultural degeneration and political decline. Then craniometry was used in an attempt to explain intelligence according to brain size. Similarly, criminal anthropology attempted to explain criminality with reference to facial features such as the slope of one's forehead. Also, World War I–era intelligence quotient tests were originally used to link intelligence to heredity, ranking whites above European immigrants and African-Americans. By reducing race to biology, these approaches, as Ashley Montagu observed:

alleged that something called "race" is the prime determiner of all the important traits of body and soul, of character and personality, of human beings and nations. And it is further alleged that this something called "race" is a fixed and unchangeable part of the germ plasm, which, transmitted from generation to generation, unfolds in each people as a typical expression of personality and culture. (p. 14)

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“Paradigms, however, are like frost crystals that disappear on exposure to the sun. As soon as one starts talking about a paradigm, its days are numbered,” R. Delgado, ’12

The LSAC, as one extreme, sub-divides race and ethnicity into over thirty categories:

Lisa R. Pruitt, Professor of Law, University of California, Davis, ’15 (“The False Choice Between Race and Class and Other Affirmative Action Myths” 63 Buffalo L. Rev. 981, July)

See Kevin Brown & Tom I. Romero, II, The Social Reconstruction of Race & Ethnicity of the Nation's Law Students: A Request to the ABA, AALS, and LSAC for Changes in Reporting Requirements, 2011 Mich. St. L. Rev. 1133, 1184-85 (2011) (citing LSAC ethnicity questionnaire, and noting that LSAC records ethnicity along thirty-two subcategories, including Asian-Filipino, Asian-Indian, Asian-Vietnamese, Hispanic/Latino-Central American, Hispanic/Latino-Chicano/Mexican, Hispanic/Latino-Cuban).

Exclusions occur across virtually every sector of policy and every aspect of society, ranging from housing discrimination to sub-par educational opportunities, to a much higher chance of outright incarceration. Racial exclusion can occur in interpersonal and institutional contexts. And, importantly, to justify all the quotation marks, it must be said that these labels and categories have serious serious problems and involve furious debates surrounding their meaning and use (another educational justification for the topic area). The conflation of geographic origin with skin color, with external nationality, with internal “hypen-American” status, with language, and with religion is just the beginning of the complexity and multidimensional notion of race. As part of the key component of this topic area, the conversation about race itself will both destabilize and contextualize the discussion:

Malik, ’12 (Kenan, March 4, ‘Why Both Sides are Wrong in the Race Debate”, studied neurobiology (at the University of Sussex) and history and philosophy of science (at Imperial College, London). A research psychologist at the Centre for Research into Perception and Cognition (CRPC) at the University of Sussex https://kenanmalik.wordpress.com/2012/03/04/why-both-sides-are-wrong-in-the-race-debate/)

To define a race, therefore, it is insufficient for two populations to be geographically separate and genetically distinct. Race realists require an additional means of affirming that the peoples of Europe and sub-Saharan Africa are distinct races but those of Ithaca and Albany are not. The second common definition of race suggests that ancestry might provide just such an additional, independent distinguishing mechanism. Many race realists suggest that a race is defined as the continent from which your ancestors originated. When humans first came out of Africa around 60,000 years ago, they embarked on a series of complex migrations that took them across the globe. The first group of migrants probably set off from the Horn of Africa, walking along the Arabian coastline, then the coastline of India through to south east Asia. It is thought that a few then cast off in primitive boats, perhaps from the Indonesian archipelago, eventually making landfall in Australia. A second major migration took a band of the original Africans into the Middle East and then through to the steppes of central Asia. From here some moved south into the Indian subcontinent; some moved west into Europe (where they were joined by another group of migrants who had entered Europe via the Middle East); some turned south-east into what is now southern China; while another group moved north-east into Siberia and eventually, by crossing the Bering Straits, began the peopling of the Americas. Other groups, it is thought, made it into the Americas by following the coastline of the China and Japan north to Siberia and then on to the Bering Straits. This is, of course, a highly simplified picture of what was an astonishingly complex set of migrations. Some of that complexity is, however, encoded in our genes. Simply by chance, the bands that left Africa would have had slightly different genetic profiles to those who did not make the journey, as well as to those who made different journeys across the globe. On each journey, the travellers would have picked up new genetic mutations which would be present in the newly established populations, but not in the original populations whence they came, or among those who made different journeys. And since people tended to mate with those close to them, rather with those from distant populations, so these genetic differences would have been preserved locally, passed on from generation to generation. Defining someone by their continent of origin is really to establish in which of the first major migrations their ancestors took part. For instance, to say that someone has African ancestry is to say that his or her ancestors did not make the journey out of Africa. To describe somebody as a ‘Pacific Islander’ is

Because biological determinism alleges that race is fixed, unchangeable, and hierarchical, these approaches lend favor to discriminatory, reactionary, or do-nothing policy approaches (Gould, pp. 51–61). These approaches, however, were flawed both because they were tainted by the prejudices of the researchers and because they lacked scientific rigor. For example, Montagu's reanalysis of early intelligence quotient tests found that the average score for blacks from the North was higher than the average score for whites from the South. If these results reveal anything, it is not that intelligence is innately connected to race but that the quality of and funding levels for public education are strongly correlated with results (Gould, pp. 249–250). This lends support not to heredity and biology as inherently connected to intelligence but to an approach that stresses the social and educational environment in which a person grows up. Since racial inequality in practice provides some groups with access to good educational opportunities and denies them to others, it is no surprise if test scores differ across these groups. If racial inequality is affected by unequal social factors, this environmental approach suggests that improving those social factors will promote racial equality. In the twentieth century, scholars such as Franz Boas and Montagu have argued that attempts to reduce race to biology should be rejected because they prop up ideologies and practices of inequality. Going one step further, Montagu suggested, "[b]ased as it is on unexamined facts and unjustifiable generalizations, it were better that the term 'race,' being so weighed down with false meaning, be dropped altogether from the vocabulary" (p. 62). Many scientists continue to point out that race does not exist in any scientific sense. For example, human beings are genetically 99.988 percent identical, with more genetic variation existing within racial categories than between them. Despite this, social scientists have not dropped "race" from their vocabulary. Instead, while they agree that race is indeed a useless scientific category, it is nevertheless real because race has very real social consequences that affect an individual's or group's opportunities, rights, and resources, or lack thereof, in a particular society. In this sense, race is socially and legally constructed, and its meaning varies across time and place. F. James Davis, for example, illustrates how different legal definitions of "black" were codified during slavery and segregation to maintain the racial hierarchy on which each was based. Furthermore, Howard Winant illustrates how race is defined differently according to historical, cultural, economic, and legal contexts when one compares the United States, South Africa, Brazil, and other countries. Scholarship such as this rejects the biological or scientific notion of race as a myth but accepts the notion that race is socially, politically, and economically "real" because of the ways in which people are privileged or disadvantaged by its meanings and practices.

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to suggest that their ancestors made that very first journey along the coastline of Arabia and Asia, and then across the sea to Australia. We have seen that about four per cent of total human variation comprissd differences between the major Continental groups. That four percent is a reflection of the genetic differences between the various bands who made those original journeys. But this too is an inadequate definition of a ‘race’. ‘Geographical origins do not in themselves constitute races’, the philosopher Naomi Zack points out. ‘If all the people identified as white had ancestors alive in Europe at the same time that the people who are identified as black had ancestors alive in Africa, to say that these are racial ancestral differences adds no new information to the data on time and place.’ Race realists might argue that a Continental group is a race – that is how a race is defined. But this is to say something trivial about which there could be no debate. For the definition of a race to be non-trivial two questions need to be answered. What is it about Continental groups that distinguishes them as races? And why should Continental groups, as opposed to other population groups, be defined as races? Because, Neil Risch suggests ‘genetic differentiation is greatest when defined on a continental basis’. And, he argues, such differentiation is significant because many illness and diseases appear to be racially distributed. In fact the greatest genetic differentiation is not between Continental groups but between Africans and non-Africans. A number of studies have shown that Caucasians, East Asians, Native Americans and Pacific Islanders are closer to each other genetically than any of these groups are to sub-Saharan Africans. At the same time there is considerable genetic differentiation within Continental groups. And when it comes to illness and diseases, such differentiation is often far more important. Different populations certainly show different patterns of disease and disorder. North Europeans are more likely to suffer from cystic fibrosis than other groups. Tay Sachs, a fatal disease of the central nervous system, particularly affects Ashkenazi Jews. Beta blockers appear to be less effective on African Americans than on those of European descent. Yet race is not necessarily a good guide to disease. We all know, for instance, that sickle cell anaemia is a black disease. Except that it isn’t. In the USA, the presence of the sickle cell trait can help distinguish between those with, and without, African ancestry. But not in South Africa. In South Africa, neither blacks nor whites are likely to possess the trait. Sickle cell is not a black disease, but a disease of populations originating in areas with high incidence of malaria. Some of these populations are black, some are not. There are four distinct sickle cell haplotypes (a haplotype is a set of linked genes) two of which are found in equatorial Africa, one in parts of southern Europe, southern Turkey, and the Middle East, and one in central India. The majority of people in Africa, including those in southern Africa, do not suffer from sickle cell disease. Most people know, however, that African Americas suffer disproportionately from the trait. And, given popular ideas about race, most people automatically assume that what applies to black Americans applies to all blacks and only to blacks. It is the social imagination, not the biological reality, of race that turns sickle cell into a black disease. Each Continental group possesses a genetic profile slightly distinct from other Continental groups, the consequence of different early human migrations (though compared to the genes they possess in common, those differneces are miniscule). But Continental groups represent neither the greatest degree of genetic differentiation within humankind, nor necessarily the most useful way of dividing up human populations. It is an arbitrary choice, not a scientific necessity, to define Continental groups as races. As a result of these problems in defining a race, some race realists have bitten the bullet and accepted that race is effectively genealogy. ‘A member of race R’, the philosopher Max Hocutt argues ‘is an individual whose forebears were members of race R. Thus an animal is a coyote if it is descended from a coyote… A human being is an Afro-American if she is descended from Americans whose forebears were Africans.’ Or as Steve Sailer, founder of the self-styled Human Biodiversity Institute (which despite its grand title, is not an academic centre but a website and email discussion group) , puts it, ‘a race is an extended family that is inbred to some degree’. Hocutt accepts that ‘we cannot say with precision how big, how cohesive or how closed a breeding group must be or even how long it must last to count as a distinct race.’ But this is immaterial, he claims, for what he calls the ‘workaday definition of race’. In fact it is anything but immaterial. After all, British Jews are ‘an extended family and inbred to some degree’. So are French Jews. So are people from Sylhet in Bangladesh who have emigrated to Britain. Those who have emigrated to Canada form another ‘extended family inbred to some degree’. Presumably then, British Jews and French Jews are separate races; and British Sylhettis and Canadian Sylhettis each form a distinct race. The philosopher Naomi Zack points out that ‘there is no coherent explanation of what makes one population, such as inhabitants of sub-Saharan Africa, a race, while another breeding group, such as Protestants in Ireland, would fail to be considered a race.’ For Steve Sailer that is no problem: Northern Ireland Protestants, he argues, are a distinct race! Once again we come back to the old problem: when virtually any group can be a race, then the concept of race becomes meaningless. If everything from the British royal family to the entire human population can be considered a race (because each is an ‘extended family inbred to some degree’), then the category has little value. Max Hocutt acknowledges that ‘the workaday concept of race is too crude either to have much value for the science of molecular biology or to serve as the basis of preferential government policies’, but believes that ‘it does not follow and it is not true that the concept of race is either meaningless or devoid of objective basis.’ The concept of race, he suggests is something ‘Population geneticists can do without; social scientists and the rest of us cannot.’ So, a race is a ‘historical entity’ that molecular biologists and population geneticists ‘can do without’. But it is also a natural category with an ‘objective basis’ in human biology. Curiouser and curiouser, as Alice might have said. The problem for race realists today is the very opposite of that for nineteenth century racial scientists. Then racial scientists ‘knew’ the significance of race but could find no way of defining differences. ‘Race in the present state of things is an abstract conception’, wrote Paul Broca, the leading physical anthropologist of the late nineteenth century, ‘a conception of continuity in discontinuity, of unity in diversity. It is the rehabilitation of a real but directly unobtainable thing.’ Even the staunchest advocates of racial science despaired of establishing race as a real, physical entity. Every ‘scientific’ measure of racial type, from headform to blood group, was shown to be changeable and not exclusive to any one group. As racial scientists searched desperately for more and more trivial manifestations of race, the biologist WJ Solas noted, apparently without a hint of irony, that ‘it is on the degree of curliness or twist in the hair that the most fundamental divisions in the human race are based.’ Today, as numerous genetic studies reveal, we can clearly define differences between populations. But the significance of such differences no longer seems clear. Race only appears to have any validity if we are willing to be deliberately vague as to what constitutes a race, and what racial differences mean. Any scientific classification must possess three properties. First, there must be consistent and unique principles of classification. So, when biologists order the living world, the rules they use to define humans (Homo sapiens) as a species are the same as the rules they use to define chimpanzees (Pan troglodytes) as a species. Second, the categories must be mutually exclusive. A chimpanzee cannot belong to two distinct species. And third, a classification system must be complete and able to absorb even those entities not yet identified. If we discover a new species we can slot it into the system we use to classify all other known species. Racial classifications possess none of these properties. Races are difficult to define and there are no objective rules for deciding what constitutes a race or to what race a person belongs. People can belong to many races at the same time. You can be an Icelander, a European and a Caucasian at the same time. Of course, in the classification of the natural world, the same animal can be a chimpanzee, a mammal and a vertebrate. But the species Pan troglodytes, the class Mammalia and the phylum Chordata (which includes all animals with backbones) occupy different levels of the taxonomic hierarchy; each is a distinct classificatory unit. Icelander, European and Caucasian, on the other hand, are all considered by race realists to be the same kind of classificatory unit – a ‘race’. And, finally, new races are not ‘discovered’ and slotted into the existing classification system; they are ‘created’ by carving up the classification system in a different way. Consider, for instance, the racial categories used in the US census. In 1977, the US government established four racial categories for the census: American Indian or Alaskan Native; Asian or Pacific Islander; Black; and White. Twenty years later the categories were revised by the addition of a fifth race – ‘Native Hawaiian or other Pacific islander’ created by splitting the ‘Asian or Pacific Island’ category into two. This was not because a new race had been discovered, but because social changes had required new forms of identity. In the absence of a scientific classification of race, geneticists and anthropologists are forced to import the racial categories we use in everyday life. But everyday categories are both uncertain and contradictory. When we ordinarily talk about human differences, we are often vague about the terms we use. We may talk interchangeably about races, cultures, ethnic groups, or populations. We generally refer to

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whites or Europeans rather than Caucasians even though many Caucasians are neither white nor European. On the other hand, we use the term blacks and Africans interchangeably, even though there are many blacks who are not African. All this may not matter if we are having a casual conversation. It does matter if we want to use race as a scientific category. What is striking about scientific papers which deploy racial categories is the contrast between the tightness and technical quality of the language when the authors are discussing genes, diseases and physiological processes and the looseness of the language about racial differences.Take, for instance, a much-quoted paper in the New England Journal of Medicine that made the case for ‘The importance of race and ethnic background in biomedical research and clinical practice’. Published in 2003, the paper tried to demonstrate the ways in which genes responsible for disease vary across races:

Factor V Leiden, a genetic variant that confers an increased risk of venous thromboembolic disease, is present in about 5 per cent of white people. In contrast, this variant is rarely found in East Asians and Africans… Susceptibility to Crohn’s disease is associated with three polymorphic genetic variation in the CARD 15 gene in whites; none of these genetic variants were found in Japanese patients with Crohn’s disease. Another important gene that affects a complex trait is CCR5 – a receptor used by the human immunodeficiency virus (HIV) to enter cells. As many as 25 per cent of white people (especially in northern Europe) are heterozygous for the CCR5-delta32 variant, which is protective against HIV infection and progression, whereas this variant is virtually absent in other groups, thus suggesting racial and ethnic differences in protection against HIV…NAT2 [is] an enzyme involved in the detoxification of many carcinogens and the metabolism of many commonly used drugs. Genetic variants of NAT2 result in two phenotypes, slow and rapid acetylators. Population-based studies of NAT2 and its metabolites have shown that the slow acetylator phenotype ranges in frequency from approximately 14 per cent among East Asians to 34 per cent among black Americans to 54 per cent among whites… One of the best known examples of a gene that affects a complex disease is APOE. A patient harboring a variant of this gene, APOE e4 has a substantially increased risk of Alzheimer’s risk. APOE e4 is relatively common and is seen in all racial and ethnic groups, albeit at different frequencies, ranging from 9 per cent in Japanese populations to 14 per cent in white populations to 19 per cent in black American populations.

What is striking about this passage is the contrast between the tightness and technical quality of the language when the authors are discussing genes, diseases and physiological process and the looseness of the language about racial differences. The paper specifies the genes – or rather the alleles – exactly: CARD15; CCR5-delta32;APOE e4. No geneticist could confuse one with another. Similarly descriptions of diseases (venous thromboembolic disease, Crohn’s disease), explanations of the consequence of allelic variation (‘Genetic variants of NAT2 results in two phenotypes, slow and rapid acetylators’) and physiological illustrations (‘CCR5 – a receptor used by the human immunodeficiency virus (HIV) to enter cells’) are all specific and all make use of technical language. Descriptions of population differences, on the other hand, are entirely non-technical and often vague and confusing. Among descriptions used for population groups are ‘whites’, ‘white people’, ‘white people (especially in northern Europe)’, ‘white populations’, ‘East Asians’, ‘Japanese’, ‘Japanese populations’, ‘Africans’, ‘black Americans’, and ‘black American populations’. These are not scientific categories but the language of the saloon bar translated into a scientific idiom. The categories used in racial studies are often a horrible mishmash of groups that do not belong with each other. So, we are told that whites with Crohn’s disease possess three alleles of the CARD 15 gene none of which are found in Japanese patients. Whites, a group defined by skin colour, are compared to the Japanese, a national group defined by geographic origin. The slow acetylator phenotype that results from a particular variant of the NAT2 gene ‘ranges in frequency from 14 per cent among East Asians to 34 per cent among black Americans to 54 per cent among whites’. The three groups being compared here are a Continental group (East Asian), an admixed group that, in race realist terms, reveals both African and Caucasian ancestry but is socially defined as ‘black’ (black Americans) and a group with a particular phenotype (whites). These very different categories are treated as equivalent groups. Imagine a zoologist studying a particular behaviour, say hunting. And imagine this zoologist comparing the hunting behaviour of dogs, reptiles and hairy animals. The study would yield no useful information because the comparison groups are not equivalent. Dogs are a particular species of the class Mammalia; some dog breeds are hunters, other are not. Reptiles form a class taxonomically equivalent to mammals comprising many species. ‘Hairy’ is a description of physical appearance that applies to some dogs, but to no reptiles. Most people would agree that comparing the behaviour of dogs, reptiles and hairy animals would not be particularly useful because they are such different kinds of categories. The same is true of comparisons of diseases between East Asians, white people and black Americans. Even social scientists, who are generally forced to use more ambiguous concepts than those used by natural scientists, would balk at these kinds of comparisons. If an economist compared productivity rates among whites, black Americans and East Asians, it is unlikely that any reputable journal would publish the study. Nor if a sociologist compared attitudes to crime among ‘white people (especially from northern Europe)’ and ‘other racial groups’. Yet, such comparisons are common in genetic studies of populations differences – studies that one would expect to have a stricter methodology than econometric or sociological surveys. Even what appear to be equivalent kinds of groups in racial studies may not be so. It is impossible to know, for instance, whether ‘whites’, ‘white people’ and ‘white populations’ refer to the same population group; ‘white people (especially in northern Europe)’ clearly does not. Do ‘East Asians’, ‘Japanese’, ‘Japanese populations’ refer to equivalent populations? It is difficult to know. No wonder that one survey of medical papers concluded that ‘terms used for race are seldom defined and race is frequently employed in a routine and uncritical manner to represent ill-defined social and cultural factors.’ Why is the character of race in scientific research so ambiguous? Because race is a social category but one which can have biological consequences. There is no such thing as a ‘natural’ human population. Migration; intermarriage; war and conquest; forced assimilation; voluntary embrace of new or multiple identities whether religious, cultural, national, ethnic or racial; any number of social, economic, religious, and other barriers to interaction (and hence to reproduction); social rules for defining populations such as the ‘one drop rule’ in America – these and many social other factors impact upon the character of a group and transform its genetic profile. That is why racial categories are so difficult to define scientifically. There is no such thing as a ‘natural’ human population. Yet, many of the ways in which we customarily group people socially – by race, ethnicity, nationality, religious affiliation, geographic locality and so on – are not arbitrary from a biological point of view. Members of such groups often show greater biologically relatedness than two randomly chosen individuals. Such groups have often been ghettoized by a coercive external authority, or have chosen to self-segregate from other groups. Hence they are inbred to a certain degree and can act as surrogates, however imperfectly, for biological relatedness. Categories such as ‘African American’, ‘people of Asian descent’ and ‘Ashkenazi Jew’ can be important in medical research not because they are natural races but because they are social representations of certain aspects of genetic variation. They can become means of addressing questions about human genetic differences and human genetic commonalities. This is why race can sometimes be what the psychiatrist Sally Satel calls a ‘poor man’s clue’ in medicine: not because races are natural divisions of humankind but because investigating socially defined populations can provide a practical means of dividing humans into groups that show different degrees of biological relatedness. But it is a rough and ready process because there exists only a rough and ready relationship between social groups and natural populations. How rough and how ready depends on the particular group and the particular question we are asking. As we saw with sickle cell anaemia, the ways in which society customarily divides populations may not be the most useful in medical research. Race and ethnicity can be surrogates for biological relatedness, in other words, but not necessarily good ones. ‘Deciphering the relationships that may exist between social classifications and biological categories’, the anthropologists Morris Foster and Richard Sharp point out, ‘is not a simple matter’:

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The biological significance that a social distinction may have for one purpose can dissolve when those same social categories are used to answer other biological questions. Thus, it may be appropriate to use social categories as a proxy for biological relatedness (or unrelatedness) in some circumstances but not in others.

An individual can have a number of social identities some of which may be important to the research at hand, and some of which are irrelevant. An individual donating DNA might be simultaneously a resident of a particular Indian village in Arizona, a member of the Hopi tribe, a descendant of a Laguna tribal family, a Native American, and someone of Spanish ancestry, as well as an American citizen. Each of these identities, Morris and Foster observe, tells a different social story about the individual and leads to a different scientific perspective on genetic variation. Researchers, in other words, should not assume a priori that the world is naturally divided into a set of ‘races’. Rather, depending on the particular questions they are asking they have to decide which of the socially-given populations are most useful to sample. The importance occasionally of group differences in medicine does not reveal the reality of race. Indeed, what we popularly call races are generally least suited to genetic research. That is because the degree of biological relatedness in Continental groups is barely greater than in a randomly chosen group of people. That is what we mean when we say that just 4 per cent of total human variation exists between the major Continental groups. Races are, however, socially significant and a major way by which we divide up our societies. It may make social sense, therefore, for researchers and clinicians to use race as the basis by which they divide up the population. Races are not natural divisions of humankind. But socially defined populations provide, nevertheless, a rough and ready means of dividing humans into groups that show different degrees of biological relatedness. The irony is that in order to study human genetic diversity, scientists need socially defined categories of difference. The real question we have to ask ourselves today is not so much why people imagine race to be a valid biological category as why so many believe it to be a valid social category, and why society continues to define people by race. The debate about race is not a debate about whether differences exist between human populations. Jon Entine, a staunch defender of the idea of race, defines race as ‘human biodiversity’. That is meaningless. No one, on either side of the debate, would deny that there are a myriad of differences between different human populations. The real debate about race is not whether there are any differences between populations, but about the significance of such differences. The fact that a BMW saloon is of a different colour to a Boeing 747 is of little significance to most people. The fact that one has an internal combustion engine and the other a jet engine is of immense consequence if you want to travel from London to New York. But if you are a Yanomamo Indian living in the Amazon forest, even this difference may not be of that great an import, since it is quite possible that you will be unable – or will not need – to use either form of transport. If we want to understand the significance of any set of differences, in other words, we have to ask ourselves two questions: Significant for what? And in what context? One of the problems of the contemporary debate about race is that these two questions get too rarely asked.

Race as exclusion and inclusion

Another debate that makes race “become its opposite” is the shift from exclusion to inclusion, perhaps hinting at a term like “racial exclusion,” but also opening the door to critiques of exclusion and inclusion as interesting ground.

Janine Young Kim, Prof. Law Marquette, ’13 (“POSTRACIALISM: RACE AFTER EXCLUSION,”17 Lewis & Clark L. Rev. 1063)

This Article examines a profound shift in the concept of race. Although race is widely viewed as socially constructed through continuous struggles over meaning, its content has remained remarkably stable over time. Race, since the nation's founding, has been defined mainly by three social conditions: difference, denigration, and exclusion. Among these, exclusion has been central, driving the effort to differentiate and denigrate in order to justify exclusion. Especially after the ascendancy of multiculturalism in the 1990s, however, race has come to be defined by another set of social conditions. They are (in corresponding order) identity, equality, and inclusion. Under this new conception of race, identity is primary; it is the logic of identity that demands and necessitates both equality and inclusion in society. The first aim of this Article is to explain this turn in the meaning of race - a turn that has taken so long and is so significant that it may well be appropriate to describe it as "post-racial." The second aim of this Article is to consider the implications of the new conception of race to progressive politics, which may be obstructed by the fluidity of identity and the indeterminacy of equality. Inclusion, on the other hand, is a more concrete condition that can also serve as a political goal. Inclusion remains undertheorized, however, and this Article concludes with an initial effort towards addressing this deficit by identifying five types of racially problematic inclusion: conditional inclusion, limited inclusion, imperfect inclusion, revolving door inclusion, and overinclusion.

Debating about these types of inclusion will be excellent, particularly for negative ground. In terms of the actual wording, though, the adjective “racial” with a specific harm as the noun may offer a better term of art. There also a tricky balance between giving the aff the ultimate term of art and giving the negative another stable foothold to gain consistent traction.

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Structural or Institutional Racism

Structural racism is foundational—“primarily a system of hierarchy…characterized by white supremacy.”

Lawrence & Keleher, Aspen Inst. & UC Berkeley, ’04 (Keith Lawrence, Aspen Institute on Community Change and Terry Keleher, Applied Research Center at UC Berkeley For the Race and Public Policy Conference 2004, “Chronic Disparity: Strong and Pervasive Evidence of Racial Inequalities” http://www.intergroupresources.com/rc/Definitions%20of%20Racism.pdf)

Structural Racism Definition: Structural Racism in the U.S. is the normalization and legitimization of an array of dynamics – historical, cultural, institutional and interpersonal – that routinely advantage whites while producing cumulative and chronic adverse outcomes for people of color. It is a system of hierarchy and inequity, primarily characterized by white supremacy – the preferential treatment, privilege and power for white people at the expense of Black, Latino, Asian, Pacific Islander, Native American, Arab and other racially oppressed people. Scope: Structural Racism encompasses the entire system of white supremacy, diffused and infused in all aspects of society, including our history, culture, politics, economics and our entire social fabric. Structural Racism is the most profound and pervasive form of racism – all other forms of racism (e.g. institutional, interpersonal, internalized, etc.) emerge from structural racism.

Structural racism indicated by inequality in power, access, opportunity, treatment, and policy impacts and outcomes (could make for a good limiting term)

Indicators/Manifestations: The key indicators of structural racism are inequalities in power, access, opportunities, treatment, and policy impacts and outcomes, whether they are intentional or not. Structural racism is more difficult to locate in a particular institution because it involves the reinforcing effects of multiple institutions and cultural norms, past and present, continually producing new, and re-producing old forms of racism.

Structural racism resides in history, culture, and institutional policies (the term is not so rigid that the best affs will simply avoid the topic).

Structural Racism Structural Racism lies underneath, all around and across society . It encompasses: (1) history , which lies underneath the surface, providing the foundation for white supremacy in this country. (2) culture , which exists all around our everyday lives, providing the normalization and replication of racism and, (3) interconnected institutions and policies , they key relationships and rules across society providing the legitimacy and reinforcements to maintain and perpetuate racism.

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Institutional Racism

This just might be the best term…it is descriptive of the kinds of harm each area is referring to, it is the type of racism many affs will be able to advocate against, and it is definitely a place for great negative ground in terms of what it leaves out and its focus on macro-political change (not to mention unique types of essentialism arguments with the noun “racism” when compared to the adjective “racial.”).

** Note: one of the most important concepts we are trying to foreground in this phrase is “disparate impact”—the actual felt consequences of racism and racial inequality. To get the full force of disparate impact, the Court’s recent affirmation of the term may be our touchstone here (justifying “institutional racism” as a phrase or “race-based disparate impact”).

Jay Michaelson, ’15 (Daily Beast, 06.25.15 http://www.thedailybeast.com/articles/2015/06/25/supreme-court-institutional- racism-is-real.html “Supreme Court: Institutional Racism Is Real”)

In extending ‘disparate impact’ reasoning to housing cases, the court acknowledges that discrimination comes from more than just individual bad actors—it stems from a system that stacks the deck against black people. June 25 will be remembered as a crucial day for civil rights—not because of the Obamacare decision, and not because of the not-yet-announced marriage decision. It’s because on Thursday the Supreme Court saved a crucial part of civil rights law. You’d be forgiven for not knowing much about it. The principle, after all, is an obscure-sounding bit of legalese: “disparate impact.” But those words divided the court 5-4 on ideological lines, with Justice Kennedy writing to preserve, but restrict, the doctrine. Here’s why it matters. Most cases of discrimination—whether against women, African Americans, LGBT people, or other protected groups—are rarely as clear as they are in the movies. In media portrayals, discrimination is about evil individuals who fire someone because of who they are. But in real life, there’s rarely a smoking gun. First, racists are usually not dumb enough to leave records of their prejudice. They find some other reason to fire the employee, or keep the family out of the neighborhood. Second, and more importantly, discrimination is often systemic and structural, not individual. Often, not only is there no smoking gun, but there’s often no individual “bad actor.” Even neutral requirements—a high-school diploma for employment, a family-size limit for housing—can have huge de facto discriminatory effects, which may or may not be intentional. That’s where “disparate impact” comes in. Under some civil rights laws, plaintiffs can prevail even without evidence of a specific discriminatory intention if they can show a disparate impact on the affected group. That’s what happened in this case, Texas v. Inclusive Communities Project. A Texas state agency distributes tax credits given to developers to build low-income housing. The Inclusive Communities Project, a nonprofit, noticed that 92 percent of the credits ended up going to mostly non-white neighborhoods. And while about half of the applications in those neighborhoods were approved, the approval rate for mostly white neighborhoods was only 37 percent. The end result? Public housing got built in black neighborhoods, and not in white ones. That’s a classic case of disparate impact. The ICP didn’t have to go hunting for overt racism, which would be extremely hard to prove. Now, under disparate impact reasoning, the Texas agency had to prove that there were no better (i.e. non-discriminatory) alternatives—which it could not do. So, even without a specific smoking gun, the statistical data itself was enough for the policy to violate the Fair Housing Act—if disparate impact reasoning is allowed. Why wouldn’t it be? Well, because the statute never says so. Neither did the two other statutes where disparate impact reasoning has been allowed, Title VII of the Civil Rights Act and the Age Discrimination in Employment Act. Rather, as the two dissenting opinions (one by Justice Thomas and the other by Justice Alito) emphasize, this doctrine was created by the Equal Employment Opportunity Commission, and upheld by the Supreme Court in the 1971 case of Griggs v. Duke Power, which held that it barred acts “fair in form, but discriminatory in operation.” Yes, disparate impact comports with the statute. Yes, every circuit court has applied it in FHA cases. And yes, it was tacitly approved by Congress when it subsequently amended the FHA and rejected attempts to eliminate disparate impact. But the fact remains that it is not explicitly mentioned. That’s why the court was so divided on the issue, and why Justice Kennedy was long assumed to be the swing vote. Taking an expansive reading of a civil rights law, implying words that aren’t actually there, is simply not within the judicial philosophy of the court’s conservative members. Indeed, Justice Thomas suggested that Duke Power, itself, was wrongly decided—a radical view that is of a piece with other radical views he holds (such as that states should be able to establish official religions). But if Justice Kennedy and the liberals do not have language on their side, they do have reality. For example, why is it that, even today, there is a 33 percent economic differential between blacks and whites? Is it because corporations are racist and won’t hire African Americans for higher paying jobs? Mostly, no. Over 80 percent of the time, as Harvard economist Roland

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Fryer has shown, it’s because black applicants lack the very specific skills to get the better job—and that’s because communities of color are woefully undereducated in underperforming schools. Indeed, the best predictor of one’s subsequent economic success is one’s skill level in eighth grade. That’s the kind of structural racism that disparate impact reasoning addresses. You might not find any individual racist, but the system is stacked against people of color. That’s how privilege and oppression are maintained—not by villains like Dylann Roof, but by silent, macroeconomic factors that are structural in nature. Likewise in housing contexts. For decades, the practice of “redlining”—banks and realtors “encouraging” blacks not to move into white neighborhoods—perpetuated segregation and urban blight. And even when overt race-based policies were abandoned, majority-POC neighborhoods were locked in cycles of crime, under-education, and neglect by “neutral” policies regarding public housing, zoning, business permitting, and highway development. To be sure, the Texas department of housing may still ultimately prevail, and Justice Kennedy went out of his way to suggest that it might. For example, the department might show that it has a policy preference to revitalize inner city neighborhoods, and that justifies the disparate impact. Or it could point to market factors driving developers to build public housing in less affluent neighborhoods. But it has to show something. Had Justice Kennedy gone the other way, this case would have caused a sea change in civil rights law. Not only would disparate impact reasoning not extend to housing, it would be suspect in cases of employment as well. As long as there isn’t an obviously race-, gender-, or age- based restriction—which there almost never is—facially neutral practices that just so happen to disadvantage some people would be extremely hard to challenge. That’s why this case, with all its legalistic discussions of statutory language and methods of judicial reasoning, was so important. Whatever happens to the Texas housing policy, disparate impact reasoning remains a powerful, if controversial, tool for fighting the kind of discrimination that is often silent, systemic, and insidious.

Institutional Racism is direct or indirect discrimination by corporations, governments, or universities.

Taking Action Against Racism, no date (http://www.div17.org/TAAR/institutionalizedracism.htm)

“Institutionalized racism is a form of racism which is structured into political and social institutions. It occurs when institutions, including corporations, governments and universities, discriminate either deliberately or indirectly, against certain groups of people to limit their rights. Race-based discrimination in housing, education, employment and health for example are forms of institutional racism. It reflects the cultural assumptions of the dominant group, so that the practices of that group are seen as the norm to which other cultural practices should conform (Anderson and Taylor, 2006). Institutional racism is more subtle, less visible, and less identifiable than individual acts of racism, but no less destructive to human life and human dignity. The people who manage our institutions may not be racists as individuals, but they may well discriminate as part of simply carrying out their job, often without being aware that their role in an institution is contributing to a discriminatory outcome.”

Yes, not the best sourse, but pointing to something with the “giving negative treatment” description that can be pursued more fully in a wording paper or throughout the season….

Chegg Study.com, no date http://www.chegg.com/homework-help/definitions/institutional-racism-49

Institutional racism is a pattern of social institutions — such as governmental organizations, schools, banks, and courts of law — giving negative treatment to a group of people based on their race.

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“Paradigms, however, are like frost crystals that disappear on exposure to the sun. As soon as one starts talking about a paradigm, its days are numbered,” R. Delgado, ’12

It is discrimination and inequality based on race, created and extended by institutions.7

Institutional Racism. Institutional racism occurs within and between institutions. Institutional racism is discriminatory treatment, unfair policies and inequitable opportunities and impacts, based on race, produced and perpetuated by institutions (schools, mass media, etc.). Individuals within institutions take on the power of the institution when they act in ways that advantage and disadvantage people, based on race.

7 When we talk about white privilege, we should really be talking white supremacy—“privilege” is too light and comfortable for what white supremacy has been responsible for in the US.

GEIZA VARGAS -VARGAS , Prof. Law College of Charleston, ’14 (WESTERN NEW ENGLAND LAW REVIEW [Vol. 36: 131 “LATIN@S, DISRUPTING RACIAL NORMATIVITY,”)

For decades now, we have replaced supremacy with the less abrasive term, privilege. Privilege is easier to swallow, easier to accept. There is less judgment in privilege than in supremacy. “White privilege” is apologetic. It apologizes for the Ku Klux Klan, cross burning, and lynching that the White supremacy evokes. It apologizes for the abrasive reminder that the essence of the history of violence and slavery was White supremacy. White supremacy is the telltale heart that gives life to a juridical structure that dictates who is valued and who is not, a juridical structure that tells us who is visible and who is to be unseen, and whom, like The Space Traders, can be disposed of. In some respects, we benefit from a system, which values Whiteness, but the Whiteness that is supreme is not ours.

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Racial Disparity

This term appears most often in the context of the criminal justice system. There is “racial disparity” in incarceration rates, in sentencing, and treatment within the system. By contrast, “racial inequality” in the criminal justice system would be reflected in unequal numbers (statistics of disparity), but the problem of inequality would be more about access to justice, ability to have fair and impartial juries, and overall equal treatment through the law and policing. Racial equality in criminal justice would be a great debate and should result in less racial disparity throughout the system, but the connection is effectual between the two and they both represent slightly different (yet still overlapping) approaches.

To really force a change in the numbers—in the percentages of those imprisoned and caught up in the system based on race—the term to use is “racial disparity.”

Dennis Schrantz ; Jerry McElroy, 2000 (National Criminal Justice Reference Service, “Reducing Racial Disparity in the Criminal Justice System: A Manual for Practitioners and Policymakers,” https://www.ncjrs.gov/App/publications/abstract.aspx?ID=183513)

"Racial disparity" is defined as existing in the criminal justice system when "the proportion of a racial/ethnic group within the control of the system is greater than the proportion of such groups in the general population." Illegitimate or unwarranted racial disparity results from differential treatment by the criminal justice system of similarly situated people based on race. In some instances this may involve overt racial bias, and in others it may reflect the influence of factors that are only indirectly associated with race. In discussing the causes of racial disparity in the justice system, this manual addresses higher crime rates, inequitable access to resources, legislation that disproportionately affects minorities, and overt bias. A discussion of manifestations of racial disparity at key decision points in the justice system targets the following stages of processing: police action; arraignment, release, and preadjudicatory decisions; adjudication and sentencing; probation and community supervision; jail and prison custody; and parole decisions. Another section of the manual provides a framework for research that will enable a jurisdiction to determine the degree to which racial disparity exists in its criminal justice processing. Finally, options are described for reducing racial disparity in the following criminal justice operations: law enforcement, pretrial procedures, prosecution, defense, judiciary, probation, jails and prisons, parole, and in systemwide and legislative decisions.

Racial disparity in unemployment connected to discrimination.

Ritter & Taylor, Minnesota and Carnegie Mellon, ’11 (“Racial Disparity in Unemployment,” Joseph A. Ritter, University of Minnesota, Lowell J. Taylor, Carnegie Mellon University The Review of Economics and Statistics, February 2011, Vol. 93, No. 1, Pages 30-42)

In the United States, black workers earn less than their white counterparts and have higher rates of unemployment. Empirical work indicates that most of this wage gap is accounted for by differences in cognitive skills that emerge at an early age. In this paper, we demonstrate that the same is not true for black-white disparity in unemployment. A large unexplained unemployment differential motivates the paper's second contribution—a potential theoretical explanation. This explanation is built around a model that embeds statistical discrimination into the subjective worker evaluation process that lies at the root of the efficiency-wage theory of equilibrium unemployment.

Disproportionality rampant across many variables in criminal justice—racial disparity can be tackled in a multitude of ways.

Marc Maurer, ’10 (“Justice for All? Challenging Racial Disparities in the Criminal Justice System”, Marc Mauer is the executive director of The Sentencing Project and the author of Race to Incarcerate. Vol. 37 No. 4

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ww.americanbar.org/publications/human_rights_magazine_home/human_rights_vol37_2010/fall2010/justice_for_all_challenging_racial_dispariti es_criminal_justice_system.html

There are many indicators of the profound impact of disproportionate rates of incarceration in communities of color. Perhaps the most stark among these are the data generated by the U.S. Department of Justice that project that if current trends continue, one of every three black males born today will go to prison in his lifetime, as will one of every six Latino males. (Rates of incarceration for women overall are lower than for men, but similar racial/ethnic disparities pertain.) Regardless of what one views as the causes of this situation, it should be deeply disturbing to all Americans that these figures represent the future for a generation of children growing up today. This article will first present an overview of the factors that contribute to racial disparity in the justice system, and then it will recommend changes in policy and practice that could reduce these disparities without compromising public safety. In order to develop policies and practices to reduce unwarranted racial disparities in the criminal justice system, it is necessary to assess the factors that have produced the current record levels of incarceration and racial/ethnic disparity. These are clearly complicated issues, but four areas of analysis are key: • Disproportionate crime rates • Disparities in criminal justice processing • Overlap of race and class effects • Impact of “race neutral” policies

Disproportionate Crime Rates

A series of studies conducted during the past thirty years has examined the degree to which disproportionate rates of incarceration for African Americans are related to greater involvement in crime. Examining national data for 1979, criminologist Alfred Blumstein concluded that 80 percent of racial disparity could be explained by greater involvement in crime, although a subsequent study reduced this figure to 76 percent for the 1991 prison population. (Alfred Blumstein, Racial Disproportionality of U.S. Prison Populations Revisited, 64 U. Colo. L. Rev. 743, 751 (1993).) But a similar analysis of 2004 imprisonment data by sentencing scholar Michael Tonry now finds that only 61 percent of the black incarceration rate is explained by disproportionate engagement in criminal behavior. (Michael Tonry & Matthew Melewski, The Malign Effects of Drug and Crime Control Policies on Black Americans, 37 Crime & Justice 1 (2008).) Thus, nearly 40 percent of the racial disparity in incarceration today cannot be explained by differential offending patterns. In addition, the national-level data may obscure variation among the states. A 1994 state-based assessment of these issues found broad variation in the extent to which higher crime rates among African Americans explained disproportionate imprisonment. (Robert D. Crutchfield, George S. Bridges & Susan R. Pitchford, Analytical and Aggregation Biases in Analyses of Imprisonment: Reconciling Discrepancies in Studies of Racial Disparity, 31 J. Res. Crime & Delinq. 166, 179 (1994).) Thus, while greater involvement in some crimes is related to higher rates of incarceration for African Americans, the weight of the evidence to date suggests that a significant proportion of the disparities is not a function of disproportionate criminal behavior.

Disparities in Criminal Justice Processing

Despite changes in leadership and growing attention to issues of racial and ethnic disparity in recent years, these disparities in criminal justice decision making still persist at every level of the criminal justice system. This does not necessarily suggest that these outcomes represent conscious efforts to discriminate, but they nonetheless contribute to excessive rates of imprisonment for some groups. Disparities in processing have been seen most prominently in the area of law enforcement, with documentation of widespread racial profiling in recent years. National surveys conducted by the U.S. Department of Justice find that while African Americans may be subject to traffic stops by police at similar rates to whites, they are three times as likely to be searched after being stopped. Disparate practices of law enforcement related to the “war on drugs” have been well documented in many jurisdictions and, in combination with sentencing policies, represent the most significant contributor to disproportionate rates of incarceration. This effect has come about through two overlapping trends. First, the escalation of the drug war has produced a remarkable rise in the number of people in prisons and jails either awaiting trial or serving time for a drug offense—increasing from 40,000 in 1980 to 500,000 today. Second, a general law enforcement emphasis on drug-related policing in communities of color has resulted in African Americans being prosecuted for drug offenses far out of proportion to the degree that they use or sell drugs. In 2005, African Americans represented 14 percent of current drug users, yet they constituted 33.9 percent of persons arrested for a drug offense and 53 percent of persons sentenced to prison for a drug offense. Evidence of racial profiling by law enforcement does not suggest by any means that all agencies or all officers engage in such behaviors. In fact, in recent years, many police agencies have initiated training and oversight measures designed to prevent and identify such practices. Nevertheless, such behaviors still persist to some degree and clearly thwart efforts to promote racial justice.

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Overlap of Race and Class Effects

Disparities in the criminal justice system are in part a function of the interrelationship between race and class and reflect the disadvantages faced by low-income defendants. This can be seen most prominently in regard to the quality of defense counsel. While many public defenders and appointed counsel provide high-quality legal support, in far too many jurisdictions the defense bar is characterized by high caseloads, poor training, and inadequate resources. In an assessment of this situation, the American Bar Association concluded that “too often the lawyers who provide defense services are inexperienced, fail to maintain adequate client contact, and furnish services that are simply not competent.” (ABA Standing Comm. on Legal Aid & Indigent Defendants, Gideon’s Broken Promise: America’s Continuing Quest for Racial Justice, (2004).) The limited availability of private resources disadvantages low-income people in other ways as well. For example, in considering whether a defendant will be released from jail prior to trial, owning a telephone is one factor used in making a recommendation so that the court can stay in contact with the defendant. But for persons who do not own a phone, this seemingly innocuous requirement becomes an obstacle to pretrial release. At the sentencing stage, low-income substance abusers are also disadvantaged compared to defendants with resources. Given the general shortage of treatment programs, a defendant who has private insurance to cover the cost of treatment is in a much better position to make an argument for a nonincarcerative sentence than one who depends on publicly funded treatment programs.

Impact of “Race Neutral” Policies

Sentencing and related criminal justice policies that are ostensibly “race neutral” have in fact been seen over many years to have clear racial effects that could have been anticipated by legislators prior to enactment. Research on the development of punitive sentencing policies sheds light on the relationship between harsh sanctions and public perceptions of race. Criminologist Ted Chiricos and colleagues found that among whites, support for harsh sentencing policies was correlated with the degree to which a particular crime was perceived to be a “black” crime. (Ted Chiricos, Kelly Welch & Marc Gertz, Racial Typification of Crime and Support for Punitive Measures, 42 Criminology 359, 374 (2004).) The federal crack cocaine sentencing laws of the 1980s have received significant attention due to their highly disproportionate racial outcomes, but other policies have produced similar effects. For example, a number of states and the federal government have adopted “school zone” drug laws that penalize drug offenses that take place within a certain distance of a school more harshly than other drug crimes. The racial effect of these laws is an outgrowth of housing patterns. Because urban areas are more densely populated than suburban or rural areas, city residents are much more likely to be within a short distance of a school than are residents of suburban or rural areas. And because African Americans are more likely to live in urban neighborhoods than are whites, blacks convicted of a drug offense are subject to harsher penalties than whites committing a similar offense in a less-populated area. A state commission analysis of a school zone drug law in New Jersey, for example, documented that 96 percent of the persons serving prison time for such offenses were African American or Latino. (New Jersey Comm’n to Review Criminal Sentencing, Report on New Jersey’s Drug Free Zone Crimes and Proposals for Reform 23 (2005).)

Recommendations for Policies and Practices

As indicated above, racial and ethnic disparities in the criminal justice system result from a complex set of policies and practices that may vary among jurisdictions. If we are committed to reducing unwarranted disparities in the system, it will require coordinated efforts among criminal justice leaders, policymakers, and community groups. Following are recommendations for initiatives that can begin to address these issues.

Shift the Focus of Drug Policies and Practice

State and federal policymakers should shift the focus of drug policies in ways that would be more effective in addressing substance abuse and would also reduce racial and ethnic disparities in incarceration. In broad terms, this should incorporate a shift in resources and focus to produce a more appropriate balance between law enforcement strategies and demand reduction approaches emphasizing prevention and treatment. Specific policy initiatives that would support these goals include enhancing public health models of community-based treatment that do not rely on the criminal justice system to provide services; identifying models of drug offender diversion in the court system that effectively target prison-bound defendants; repealing mandatory sentencing laws at the federal and state level to permit judges to impose sentences based on the specifics of the offender and the offense; and expanding substance abuse treatment options in prisons and providing sentence- reduction incentives for successful participation.

Provide Equal Access to Justice

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Federal and state policy initiatives can aid in “leveling the playing field” by promoting equal access to justice. Such measures should incorporate adequate support for indigent defense services and provide a broader range and availability of community-based sentencing options. These and similar initiatives clearly involve an expansion of resources in the court system and community. While these will impose additional short-term costs, they can be offset through appropriate reductions in the number and duration of prison sentences, long-term benefits of treatment and job placement services, and positive outcomes achieved by enhancing family and community stability.

Adopt Racial Impact Statements to Project Unanticipated Consequences of Criminal Justice Policies

Just as fiscal and environmental impact statements have become standard processes in many areas of public policy, so too can racial impact statements be used to assess the projected impact of new initiatives prior to their enactment. In 2008, Iowa and Connecticut each enacted such legislation, which calls for policymakers to receive an analysis of the anticipated effect of proposed sentencing legislation on the racial/ethnic composition of the state’s prison population. If a disproportionate effect is projected, this does not preclude the legislative body from enacting the law if it is believed to be necessary for public safety, but it does provide an opportunity for discussion of racial disparities in such a way that alternative policies can be considered when appropriate. A similar policy is currently in use in Minnesota, where the Sentencing Guidelines Commission regularly produces such analyses. Policies designed to produce racial impact statements should be adopted by legislative action or through the internal operations of a sentencing commission in all state and federal jurisdictions.

Assess the Racial Impact of Current Criminal Justice Decision Making

The Justice Integrity Act, first introduced in Congress in 2008, is designed to establish a process whereby any unwarranted disparities in federal prosecution can be analyzed and responded to when appropriate. Under the proposed bill, the attorney general would designate ten U.S. attorney offices as sites in which to set up task forces composed of representatives of the criminal justice system and the community. The task forces would be charged with reviewing and analyzing data on prosecutorial practices and developing initiatives designed to promote the twin goals of maintaining public safety and reducing disparity. Such a process would clearly be applicable to state justice systems as well. While reasonable people may disagree about the causes of racial disparities in the criminal justice system, all Americans should be troubled by the extent to which incarceration has become a fixture in the life cycle of so many racial and ethnic minorities. The impact of such dramatic rates of imprisonment has profound consequences for children growing up in these neighborhoods, mounting fiscal burdens, and reductions in public support for vital services. These developments also contribute to eroding trust in the justice system in communities of color—an outcome that is clearly counterproductive to public safety goals. It is long past time for the nation to commit itself to a comprehensive assessment of the causes and remedies for addressing these issues.

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Racial Inequality

Impossible to fully achieve, regardless of definition…includes beliefs and practices (discrimination and oppression)…takes the form of antiracism.

In reality, the ideal of racial equality, however defined, has not always been practiced, nor has it been fully achieved anywhere in the world. This is because the belief in racial equality has historically had to counter both deeply rooted beliefs in racial inequality as well as the concrete political, legal, and customary practices of racial discrimination and oppression. Hence racial equality is expressed in antiracist philosophy and in antiracist political mobilization.

Reasons to go with “racial inequality” would include:

1. Give the negative ground to criticize the notion of “equality.” There is a LOT here that we have not had time to include in the paper. Crafting Inequality by Condit and Lucaites is a good place to start, not to mention critical whiteness literature and also some powerful critiques of the anthropocentrism inherent in most notions of equality from a Deep Ecology perspective. See Brian Barry (2002), Culture and Equality: An Egalitarian Critique of Multiculturalism.

2. Give the affirmative a chance to get out of the problem associated with “racism” in the context of policy solutions—some of these problems are outlined in the Aubry quotation below. We also think that more evidence will use “racial inequality” and that it is disparate impact and differences in racial privilege that need to be corrected, shifting the meaning a bit more toward “institutional” or “structural racism.”

3. In some ways the term “racial inequality” gets at “institutional racism” more directly as opposed to the more individualized and psychological explanations prominent in definitions of racism.

Larry Aubry wrote in the LA Sentinel, March 17th of this year:8

In an era in which many claim America is a post-racial society, it is important to debunk that myth by taking an in-depth look at the issues surrounding race, “integration” and, more recently, “diversity.” Many feel the potential for racial integration in the United States is greater now than ever before. However, the central characteristics of race relations, i.e., ambivalence, hypocrisy and white people’s fundamental fear of Blacks, especially, gaining racial equality still exist. The leaders of the desegregation social protest movement mobilized millions with a simple demand, “freedom.” In the context of a still racially segregated society, post-World War II, freedom meant elimination of all social, political, legal and economic barriers that kept African Americans in a subordinate status. Implicit in the demand for desegregation (integration) were several assumptions: Desegregation would increase opportunities for Blacks in business, government and throughout society; desegregated educational institutions would promote greater racial harmony and understanding between people from different races, ethnic groups and communities, which in turn would promote residential integration; and affirmative action policies would gradually increase the number of African Americans, Latinos and others of color in good paying jobs. It was assumed as African Americans escaped the ghetto, racial tensions and bigotry would decline significantly and as Blacks were more thoroughly integrated into the economic system, the basis for racial confrontation would diminish. This thesis was fundamentally flawed in several respects. First, desegregation did not benefit the Black community uniformly- Black professionals, college graduates were the principal beneficiaries. And race continued to matter, especially for Blacks and the unemployed, the poor, and others whose lives were hemmed in by illiteracy, disease and desperation. Legal desegregation contributed to the popular illusion that

8 Aubry, ’16 (March 17, LA Sentinel, “The Rhetoric and Reality of Race,” https://lasentinel.net/the-rhetoric-and-reality-of-race.html)

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the basis for racial segregation no longer existed. Technically, the abolition of racially separate residential districts, hotels, schools, etc. convinced many white Americans the “Negro question” had been resolved and the passage of anti-discrimination legislation had eliminated all basic impediments to socio-economic and cultural advancement of Black Americans. However, as Black leaders continued to speak out against ongoing social injustices, their complaints were dismissed as self-serving rhetoric. And many whites believed, or said they believed, Blacks themselves must be racists-a virtual impossibility because racism is the ability to control other groups based on race, ethnicity or color. Arguably, civil rights leadership and the African American political establishment found themselves in a quandary of their own making. Their failure to develop a body of politics that represented a qualitative extension of the civil rights movement was directly linked to the paucity of their values, outlook and effectiveness. One school of thought suggests the weakness of African American leadership was its failure to distinguish between ethnicity and race and to apply both terms to the realities of capitalism and the power elite. To this group, African Americans were both a racial and ethnic group. Therefore, African American ethnicity was derived from the cultural synthesis of African heritage and experience with American society. W.E.B. DuBois observed a century ago that Black Americans are both African and American, “two souls, two thoughts, two unreconciled strivings; two warring ideals in one dark body whose dogged strength alone keeps it from being torn asunder.” This central duality is at the core of African American consciousness, forming the fundamental matrix of expressions of African American music, art, language, folklore, religious rituals, belief systems, the structure of families and other cultural manifestations and social institutions. In short, Blackness in the cultural context is the expression and affirmation of a set of traditional values, beliefs and social patterns, not their physical appearance or social class. Race is a totally different dynamic rooted in the structures of exploitation, power and privilege. It is an artificial social construct that was deliberately imposed on various subordinated groups of people at the outset of the expansion of European capitalism in the western hemisphere. The racial consciousness and discourse of the West was forged on slave ships carrying human cargos into the Caribbean and the Americas. The search for agricultural commodities and profits from the extreme exploitation of Black people, deemed as less than human, gave birth to the notion of racial inequality. In the United States, race is frequently defined as a group that has certain physical or biological traits, particularly phenotype (skin color), body structure and facial features. But race has no scientific validity as a meaningful biological or genetic concept. Its meaning shifts according to the power relationships between “racial” groups. In apartheid South Africa, Japanese people were considered as “white,” whereas, Chinese were classified as “colored.” In Brazil, a person of color could be “white,” “mulatto” or “black,” depending on the individual’s vocation, income, family connections and level of education. Even in rigidly segregated societies like the American South before the modern civil rights movement, race was frequently situational—a function not just a physical appearance, but also the explicit or implied power relations that connected the individual of color to local realities. In segregated cities such as Washington, DC, Arab and certain African diplomats were permitted to stay in “whites only” hotels. Also, African Americans who owned property or who were well respected professionals were occasionally granted social privileges extended solely to whites. To contend race no longer matters is a monumental mistake that serves to reinforce the barriers to social justice. Blacks cannot afford to make that mistake.

--Racial inequality has a wealth component that connects the inequalities of capitalism with racism. Although a bit dated, this focus on wealth (and not just income) points to important policy changes that are necessary in housing, education, and asset accumulation.

Thomas Shapiro, Prof. Sociology Brandeis U., ‘4 (“The Hidden Cost of Being African American,” February 1, 2004, https://www.americanprogress.org/issues/civil-liberties/news/2004/02/01/521/the-hidden-cost-of-being-african-american/)

American families are in the process of passing along a $9 trillion legacy from one generation to the next. This is a lot of money, but it is distributed very unevenly. Most whites do not inherit considerable wealth; an even smaller percentage of African Americans benefit. Hand in hand with this money, I submit, what is really being handed down from generation to generation is the profound legacy of reproducing racial inequality. This legacy will be difficult to discern because the language of family heritage hides it from our political consciousness. Mainstream sociological theory sees differences in jobs, skills, and education as the primary causes of inequality, and substantial wealth transfers embarrass this theory. The classical sociologist Emil Durkheim, for example, predicted that family inheritances would decline over time in favor of giving to charitable and nonprofit organizations, but studies examining actual bequests invalidate this prediction. Andrew Carnegie’s belief that giving relatives money only makes them lazy (a belief he put into action) may correspond with this perspective, but the empirical evidence tells a different story. In 1989 charitable bequests constituted less than 10 percent of proceeds of estates valued over $600,000 in the United States.2 Even Karl Marx was more concerned with production and the circulation of money than with property and family legacies.Wealth has been a neglected dimension of the social sciences’ concern with the economic and social status of Americans in general and racial minorities in particular. We have been much more comfortable describing and analyzing occupational, educational, and income inequality than examining the economic foundation of a capitalist society, “private property.” When wealth surveys became available in the mid-1980s, journalists and social scientists began to pay more attention to the issue of wealth. The growing concentration of wealth at the top and the growing racial wealth gap have become important public policy issues that undergird many

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political debates but, unfortunately, not many policy discussions.3 Social scientists typically analyze racial inequality as imbalances in the distribution of power, economic resources, and opportunities. Most research on racial inequality has focused on the economic dimension. This economic component has emphasized jobs and wages. Until very recently, the social sciences and the policy arena neglected the effect of wealth disparity and inheritance on the differing opportunities and well-being of white and black families. We are suggesting that wealth motivates much of what Americans do, grounds their life chances, and provides enduring advantages and disadvantages across generations. Wealth ownership is the single dimension on which whites and blacks are most persistently unequal.4 Our understanding of racial inequality comes typically from data on income. Primarily this represents earnings from work, but it also includes social assistance and pensions. Income is a tidy and valuable gauge of present inequality. Indeed, a very strong case can be made that reducing racial discrimination in the workplace has resulted in narrowing the hourly wage gap between whites and racial minorities.5 Reducing discrimination in jobs, promotion, and pay is an effective way to narrow racial inequality. The average American family uses income for food, shelter, clothing, and other necessities. Wealth is different, and I will argue that it is used differently than income. Wealth is what families own, a storehouse of resources. Wealth signifies a command over financial resources that when combined with income can produce the opportunity to secure the “good life” in whatever form is needed—education, business, training, justice, health, comfort, and so on. In this sense wealth is a special form of money not usually used to purchase milk and shoes or other life necessities. More often it is used to create opportunities, secure a desired stature and standard of living, or pass class status along to one’s children. It is obvious that the positions of two families with the same income but widely different wealth assets are not identical, and it is time for us to take this into account in public policy. The importance of wealth was borne out in the stories we heard from families about how they think about assets, how they strategize about acquiring wealth, how they plan to use assets, and how they actually use them. I want to emphasize that families consider income and wealth very differently so that wealth is seen as a special kind of money. We asked families directly if they treated wealth differently than income. The pattern of answers is resoundingly affirmative, especially among families with ample assets. Kathryn MacDonald summed it up succinctly by saying, “Income supplies life support, assets provide opportunities.” A middle-class Bostonian put it this way: “My income is limited. My assets I want to hang on to for future needs.” Jen Doucette of Los Angeles, whom we will meet in Chapter 2, captured the thinking of many we interviewed when she said that wealth “is definitely long term. We act as if it’s not even there.” Another person added, “We figure like the income is what we got to work with. Try and live within it.” We asked one Boston family if they ever used assets for expenses, and the answer was a Benjamin Franklinesque scolding: “Absolutely not. We are New Englanders. Never touch principal…. To me income is to pay bills; assets are to keep.” The way that families with few financial assets replied to questions about the role assets play in their plans to get ahead clearly indicates class differences. Some scoffed or simply laughed at the question because they have no assets to distinguish from income. Even among those with small amounts, though, assets are viewed as resources not to be touched so that they can face emergencies. In fact, we heard the words “emergencies,” “unexpected,” “rainy day,” and “cushion” more often from families who have few or no assets than from families with more. These families view their limited assets as cushions or safety nets against unexpected events like paying for a child’s orthodontic work that is not covered on the family health policy or family crises like helping a recently unemployed sister pay her rent, not as tools of opportunity. Working-class and poor families use wealth for life support, to cushion bad times, and to meet emergencies. Middle-class families, in contrast, use their assets to provide better opportunities that advantage them. In our conversations about the power of assets, working-class and asset-poor families dream that assets will give them freedom from a situation, ease a difficulty, relieve a fear, or overcome a hardship. Middle-class and asset-wealthy families see assets as power and freedom to leverage opportunities. I have made much of the distinction between income and wealth, but this would only be an academic distinction if the two were highly correlated, that is, if a family’s income were a reliable predictor of its wealth, and if savings were the primary source of wealth accumulation. If this were the case, we could continue to tell the income story as a sort of proxy for all resources, as we have in the past. If they are not powerfully correlated, however, fusing them prevents us from addressing an important basis of racial inequality, the increasing concentration of wealth, and public policies that mitigate the consequences of such inequalities. Sociologist Lisa Keister’s Wealth in America reviews this issue and concludes that the correlation between income and wealth is weak. This suggests that, according to Keister, “studies that focus solely on income miss a large part of the story of advantage and disadvantage in America.”6 Because wealth sometimes represents inequalities from the past, it not only is a measure of differences in contemporary resources but also suggests inequalities that will play out in the future. Looking at racial inequality through wealth changes our conception of its nature and magnitude and of whether it is declining or increasing. Most recent analyses have concluded that continuing racial inequality primarily results from disparities in educational achievement and jobs. Sociologist Christopher Jencks, for instance, argues that improving educational performance for African Americans would be the biggest step toward racial equality. William Julius Wilson has consistently maintained in several books that advances in the workplace are the linchpin of racial equality. The asset perspective does not neglect the importance of these powerful insights. I maintain, however, that exclusively focusing on contemporary class-based factors like jobs and education disregards the currency of the historical legacy of African Americans. A focus on wealth sheds light on both historical and contemporary impacts not only of class but also of race. Income is an indicator of the current status of racial inequality; I argue that an examination of wealth discloses the consequences of the racial patterning of opportunities. The legacy of the American dilemma of democracy and race continues to haunt the American scene. The dynamics of race and class intertwine in a way that becomes more clearly explicable upon examining how families use private wealth to expand their chances and—just as important—how lack of assets dampens aspirations. Americans highly value two cherished but contradictory notions: equal opportunity and a family’s ability to pass along advantages to their children. By focusing on assets rather than exclusively on income, we can unravel this legacy and examine how it affects racial inequality. In summary, I argue that we have been seriously underestimating racial inequality by focusing primarily on workplace and income and that an examination of wealth is an indispensable part of understanding inequality. Tragically, polices based solely in the workplace that seek to narrow differences will fail to close the breach. Taken together, however, asset and labor market approaches open new windows of possibility, an approach I will elaborate in the closing chapter. An Asset Poverty Line One of the disappointments of attempts to allay poverty is that policies only consider jobs and transfers that substitute for income. Changing the lens of analysis to wealth dramatically shifts our perspective on poverty and gives us new tools. The official poverty rate, based on annual income, dropped from 15.2 percent in 1983 to 12.8 percent in 1989 and to 11.7 percent in 2001 ($18,104 for a family of four). Using these numbers we could say that the rising tide of the long boom during the 1990s seemed to lift many, if not all, boats. The government releases these official numbers annually, and they give us a good idea of the scope and nature of poverty for that year.7 But sociologist Mark Rank suggests that to understand the true nature of poverty, we must see it in a different light.8 He argues that we should be looking at American families that will experience at least one year of poverty. Poverty touches a surprisingly high number of Americans, as 59 percent will spend at least one year below the official poverty line. While this number puts the economic fragility of America’s families in a new light, the shocking statistic is that nine of every ten black Americans will encounter poverty during

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their working adult years. If we think about poverty as a lifetime event and shift the perspective to examine family assets, our understanding of poverty and inequality and what needs to be done changes dramatically. And, as we will see shortly, the asset-poverty perspective captures the fragile economic status of American families, embracing nearly two in five families and over half of all African American families. The Nobel economist Amartya Sen highlights the affect of asset-poverty on the ability to avoid elementary deprivations including premature mortality, significant undernourishment, persistent illness, widespread illiteracy.9 His argument is that poverty is more than just lacking an adequate income; rather, poverty includes lacking the basic capacities for building and sustaining a better life. The Asset Poverty Line (APL) helps us understand the asset condition of American families. (See Figure 1.1, page 39.) The fundamental idea is to determine an amount of assets a family needs to meet its basic needs over a specified period, under the extreme condition that no other sources of income are available. We decided to tie this figure to the official income-poverty standard. In 1999 the official U.S. government poverty line for a family of four stood at $1,392 a month. In order to live at that poverty line for three months, a family of four needs a private safety net of at least $4,175. Families with less than $4,175 in net financial assets in 1999, then, are “asset-poor.” And this is a conservative standard because it incorporates the official government poverty line, which many believe underestimates the actual scope of poverty, as the basis for our calculation. It also employs a three-month standard even though one could argue just as reasonably for a six-month standard. Although I believe my built-in assumptions underestimate asset poverty among America’s families, I want to stay focused on the basic idea of asset poverty. It is my hope that as these ideas are accepted, bolder conceptions will follow. The APL measure allows an examination of asset-poor families since 1984, so we can track trends in asset wealth. Black Wealth/White Wealth reported the rate of asset poverty in America for 1988, and the result was truly appalling. One could argue that it has gotten even worse since. In 1984, 41 percent of American families fell below the Asset Poverty Line; and the rate held fairly stable until it dipped several points to 36 percent in 1999. Nearly four households in every ten in the world’s wealthiest nation do not own enough assets to live a poverty lifestyle for three months. The boom years of the 1990s, which produced enormous wealth and record-low unemployment, lifted only 7 percent out of asset-poverty. The Asset Poverty Line shows that the effects of the tremendous run-up in the stock market in the 1990s that created over $8 trillion in equity barely trickled down to typical families. The Asset Poverty Line also contains information on the official income-poverty line, which illustrates that looking at poverty through the asset lens changes the scope, magnitude, and understanding of what poverty means, not just the definition. One can view income-poverty as a phenomenon affecting a relatively small percentage of Americans, who, perhaps, have educational and skill deficits, physical disabilities, or personal deficiencies. But if poverty is something that affects not just one in every eight, nine, or ten families but four in ten, then we need to think about poverty very differently because it is much more characteristic of American families. Over half of black American families fell below the Asset Poverty Line in 1999. This represents a positive trend for black families, as it was 67 percent in 1984 and has declined steadily over 15 years. This downward trend is encouraging, although an asset poverty rate of 54 percent is shamefully high and more than twice the rate of white families. In 1984 one in four white families fell below the Asset Poverty Line; this rate remained steady in 1989, rose in 1994 to 33 percent, and then fell back to 25 percent in 1999. Figure 1.2 below provides information on children in asset-poor families. Thirty-nine percent of America’s children are being raised in families that fall below the Asset Poverty Line. Vivian Arrora’s children—Lamar, Bria, and Brittany—are growing up in an asset-impoverished family, and instead of viewing their circumstances as tragic or extraordinary, the reality is that this family represents the genuine asset circumstances and incapacities for two of every five children in America. The Arrora family is a good illustration of how much more difficult it is to permanently leave asset poverty than it is to escape income poverty. Vivian Arrora’s income barely extends past the official government poverty line, but on a personal and statistical level hers is a success story. It will take many, many years of working full-time, getting raises, and being promoted before her children will receive any benefits that go along with assets, unless she meets her millionaire. A further analysis of this already disturbing data discloses imposing and powerful racial and ethnic cleavages. In 1999, 26 percent of all white children grew up in asset-poor households, compared to 52 percent of black American children and 54 percent of Hispanic children. The rate for whites has held steady since 1984 at about one-quarter while the rate for Hispanic children has risen and the rate for blacks has fallen. An annual report card on the nation’s asset health would be a good start because it would provide information on family asset poverty and a regular tally on the extent to which important segments of the population lack this private cushion.10 In this chapter we got to know the Arrora, MacDonald, Ackerman, and Cummings families. As my argument takes shape in the rest of this book I will draw upon some of the other 178 families we interviewed. The detailed private information these families shared with us is the basis for our understanding of how families use assets to promote their betterment. Just as significantly, as we already have begun to learn, lack of financial assets typically acts as a critical barrier to advancement or launching social mobility. I will use the household surveys to examine questions about financial wealth in the United States, demonstrating that private wealth is the hidden fault line in American society and that a racial wealth gap persists. The next key step in my argument explores the lives of middle-class Americans to consider in greater detail the impact of private wealth on successful white and black families. After that, I examine the main routes by which past wealth inequality becomes the foundation for modern racial inequality. To accomplish this I focus on one of the bedrocks of the American Dream—homeownership. How young families acquire homes is one of the most tangible ways that the historical legacy of race plays out in the present generation and projects well into future. To understand how young families can afford to buy homes and how this contributes greatly to the racial wealth gap, we need to unravel the legacies of inheritance. Sorting out a modern notion of inheritance brings the racial legacy into closer view. An important element of my argument details how families leverage resources to position themselves in communities they deem to be advantageous in both class and race terms. I develop this theme further by describing the extraordinary extent to which families make sacrifices and expend resources to place their children in educational environments that give them important competitive advantages. Finally, I connect what we have learned to public policy recommendations, most particularly in the areas of homeownership, equitable schooling, asset development, and minimizing the ability of wealth to perpetuate inequality.

--perpetuated into elderly groups, racial inequality in retirement plans, household net worth, and savings.

Daniel Marans Reporter, Huffington Post, ’16 (These Charts Explain How Racial Inequality Continues Into Retirement: It’s gotten worse, not better, in the past decade. 03/03/2016 http://www.huffingtonpost.com/entry/racial-inequality-retirement_us_56d894e7e4b0000de403b939

You have a better chance of retiring in dignity in the United States if you are white. African-American and Latino workers are far less likely than their white peers to have any savings in a 401(k) plan or other retirement account, according to “The State of American Retirement,” a report released by the Economic Policy Institute on Thursday. The report finds that among households headed by someone aged 32 to 61, just 41 percent of black families and 26 percent of Latino families had any retirement account savings at all, compared with 65 percent of non-Latino white families. Savings rates are down for all three groups since 2007, but they have declined much more from peak levels in the early 2000s for black families and mid-1990s for Latino families, with Latinos experiencing the biggest drop. Those black and Latino families who have retirement account savings have far smaller amounts tucked away than their white peers. The median level of savings for white families with money in retirement accounts was $73,000 in 2013, compared with a median of $22,000 among both African-American and Latino families with such savings. The EPI report uses the Federal Reserve’s Survey of Consumer Finance data from 1989 to 2013 to document the failure of the new generation of private retirement accounts, and mainly 401(k) plans, at providing the adequate retirement income once offered by pensions. The report focuses roughly on the time period during which “defined contribution” plans, such as 401(k)s, began to replace pensions and other “defined-benefit” plans as the most common retirement plan offered by employers. “Defined contribution” plans are characterized by set contributions from employers, rather than set benefit amounts like those offered by “defined benefit” plans. They effectively shift risk onto the individual worker to manage investment choices, absorb market fluctuations and exercise judgment in timing

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withdrawals (which are permitted before retirement, but result in significant financial penalties). The report also highlights the need for a more viable alternative to these plans in light of the declining value of Social Security benefits, another crucial source of retirement income. As a result of cuts made to benefits in 1983, including an ongoing increase in the full retirement age to 67, benefits will replace just 31 percent of a typical worker’s pre-retirement earnings by 2030 — down from 38 percent in 2010. Monique Morrissey, the EPI retirement policy expert who authored the report, told reporters on Thursday that the data on African-American families is particularly disconcerting, because when pensions were more common, participation in employer-based retirement plans was a rare area of relative equality with whites. “Among people who still have pensions, [participation] is still fairly equal” between black and white people, Morrissey said. Black workers are about as likely as their white colleagues to receive pension benefits if they work for the government, for example, where pensions remain relatively common. Morrissey posits that the relatively low rate of African-American participation in today’s 401(k) plans and “defined contribution” retirement accounts may be due to the disproportionate number of African Americans working in low- paying jobs, which are now more likely not to offer such plans. When they do have access to such plans, lower-income people may also find that a plan they must contribute to and manage individually is not worth the hassle, Morrissey claims. “The same people who have seen their wages stagnate have been forced to take their money and shoulder the risk of retirement,” she said. Indeed, nearly 90 percent of families in the top one-fifth of earners have retirement account savings, compared to less than 10 percent in the bottom one-fifth of earners. In contrast with African Americans, retirement savings among Latinos has long been low. “I don’t have good news for Hispanics,” Morrissey said. “They have always been behind in retirement savings.” The low rates of retirement account savings among families of color, and relatively low balances in those accounts, is especially notable since it’s one feature of the overall racial wealth gap. The median net worth of white households was $141,900 in 2013, compared with $11,000 for black households and $13,700 for Latino households. Social Security benefits and public assistance are not enough to erase the racial disparity in retirement account savings and overall household wealth once working families reach retirement age. As a result, black and Latino seniors are more likely to live in poverty. Some 8 percent of non-Latino whites aged 65 or older lived in poverty in 2014, compared with 19 percent of African American seniors, and 18 percent of Latino seniors, according to analysis of census data by the Center for Global Policy Solutions.

Racial Inequality is Race-based Discrimination, folds back on Racial Disparity

US Legal Definition.com, no date (http://definitions.uslegal.com/r/racial-inequality/, accessed 3-20-16)

Racial inequality refers to the discrimination based on race in opportunity for socioeconomic advancement or access to goods and services. In American criminal justice system racial inequality have a strong effect on many realms of society such as the family life, and employment. In U.S., a large disparity between Whites and Blacks still exists. This racial disparity in the educational system, job sector, and neighborhoods have all contributed to the growing prison population in U.S.

Inequality = unfair differences between groups based on wealth, status, or opportunity.

Oxford.com, no date (http://www.oxfordlearnersdictionaries.com/us/definition/english/inequality, accessed 3-29-16)

inequality: noun the unfair difference between groups of people in society, when some have more wealth, status or opportunities than others; inequality of opportunity economic inequalities between different areas; racial inequality

“Racial” is defined by inequality, but also haterd, prejudice, tension, violence

Oxford.com, no date (http://www.oxfordlearnersdictionaries.com/us/definition/english/racial, accessed 3-29-16)

Racial: [only before noun] happening or existing between people of different races: racial hatred/prejudice/tension/violence

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racial equality. They have pledged to end racial discrimination in areas such as employment.

Racial Equality = Moral, Political, Legal Equality for all individuals, regardless of Race Status (Colorblindness links)

There is a very good debate to be had about the overall efficacy of this term that is connected to broader problems with “equality” itself. This will make for a good point of clash for the topic and provide intrinsic ground for the negative. In terms of racial inequality, the problems with “equality” in general (that is appeals to heavily to the law and the state, that it is still rigged and based on privilege, that is masks deeper, more structural problems, etc.) are compounded by it’s potential to be used as an argument for “colorblindness.” The link is clear in that racial equality, the general idea that groups are “morally, politically, and legally equal,” has two main components—that groups should be treated equally in the law and that there should be equal opportunities for individuals in education, employment, and politics.

Racial equality is the belief that individuals, regardless of their racial characteristics, are morally, politically, and legally equal and should be treated as such. Furthermore, it is the belief that different racial groups, as groups, are equal, with none being inherently superior or inferior in intelligence, virtue, or beauty. In the United States the term is commonly linked to the belief in equal treatment under the law as well as equal opportunity as a principle to ensure individuals, regardless of their race, an equal opportunity in education, employment, and politics.

http://inequality.org/racial-inequality/

Source: Institute for Policy Studies, Billionaire Bonanza: The Forbes 400 and the Rest of Us, December 2015

The billionaires who make up the Forbes 400 list of richest Americans now have as much wealth as all African- American households, plus one-third of America’s Latino population, combined. In other words, just 400 extremely wealthy individuals have as much wealth as 16 million African-American households and 5 million Latino households. - See more at: http://inequality.org/racial-inequality/#sthash.vgFuL2yp.dpuf

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Comments on Term of Art

Some of the determination of this term of art should depend on the various areas that are used and how the verb stem is constructed. It may even make sense to use slightly different terms of art for different wording choices. The way we see it is that the first choice is whether to use the noun “racism” or the adjective “racial.” When looking at the possible nouns, the term “race-based” is an option—“reduce race-based discrimination” or “reduce discrimination based on race”--but not used very frequently except in the context of preferences, admissions, or affirmative action (and in those instances the construction would need to be changed such that the affirmative is increasing race-based preferences). That type of wording could be considered for an education-only topic if narrowing to one area is desirable. We think at least three areas (with wording options for more) would make for a broad enough resolution and that it would be viable to have a passive voice option without any areas listed at all.

Thus, keeping in mind the likelihood of multiple areas being listed, if the best noun out of the possible nouns for the term of art is “racism,” would it be even better to use “institutional” or “structural” or another adjective in front of the noun? In other words, should we have the topic be more specific to the question, “What kind of racism?” Maybe—there are good arguments in both directions. Also keep in mind that the potential flaws in the term of art become intrinsic negative ground. Overall, given an assessment of some of the literature (if a fraction counts) and the value in debating a social harm as it has emerged along racial lines, our position is not to use the noun at all and to look primarily at the options for a different type of harm that has racial manifestations.

In other words, go with the adjective “racial” to stipulate the kind of harm, whether it is inequality, disparity, oppression, or a related term.

From there, “Inequality” and “disparity” are both good choices and are often defined interchangeably. In terms of the areas and where the harm is to be targeted, the wording choices that specify areas like housing and education could use “racial inequality” because the harm is a bit more about access and creating equivalent opportunities in those areas. There would be some overlap here and racial inequality can also be determined by outcomes and not simply opportunities, but it is a way to distinguish between “equality” and “disparity.” “Racial disparity” would be focused more on the current statistics and changing the outcome, moving the numbers. Certainly both of these work and we do not have a strong preference in general terms, although disparity is a bit better for criminal justice and housing and inequality is a bit better for employment and immigration, with education in the middle and great with either “inequality” or “disparity” (and all the policy areas would work well with either).

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II. Policy Areas of Focus

There is no set number or limit on the policy areas. There are good resolutions with one or two and good resolutions with seven or eight. We think the sweet spot would be between three and five, and this is probably where the bulk of the choice will emerge between different wording options on the slate. In other words, once the topic committee decides on a verb and the object of harm, it may make more sense to offer variety in the areas as opposed to the stem (although some options in the stem and definitely in the agent of action would be a good decision as well). Thus, the topic areas in the suggested wordings could be replaced, added to, reshuffled, etc. The main idea is to set up a more specific debate between an aff making improvements (through legislation or otherwise) in a particular area and the negative being prepared on the details of what sector will be targeted for reforms. If you wanted to have a couple of areas in all of the options, we would probably suggest Education and Housing, with Criminal Justice not far behind those two. That’s a loose preference, though, primarily based on both the significance of racial inequality in those areas and on not having debated in education or housing policy for some time. We also think there is strong argument in favor of a wording without a specified agent and without delineated policy areas. It would require very explicit wording for the verb and the object of harm and may also need the added stipulation of the broad mechanism of action (direct political action, democratic resistance, social movement allegiance, etc.) if areas are not listed. The other possibility would be to take some of the “micro-political methods and strategies” from below and develop a resolution that says “should substantially reduce racial disparity through one or more of the following strategies: performative resistance, social movement mobilization, direct political action, story-telling, etc..” It should also be noted here that the various policy areas have not been vetted for exact wordings. In other words, the limits and phrasings for each policy area should be research and double-checked. For example, education or “education policy” could be limited down to “public education,” pre-secondary and secondary education,” etc. and might specify particular legislation. Housing could be specified through improvements to the “Fair Housing Act and subsequent legislation,” “Home rental, ownership and financing,” or “residential equity,” etc. Same of all the areas. Also, keep in mind that the interlocking nature of all of these areas and sectors will give the negative a series of solvency arguments when the affirmative limits their action to one area and tries to claim big structural advantages.

History demonstrates that there are multiple strategies to pursue over time and across sectors. This evidence is a bit dated, but provides a good summary of the basic elements of the struggle.

Gregory Streich, Prof. Political Science U. Central Missouri, ‘05 (‘Racial Equality” New Dictionary of the History of Ideas, http://www.encyclopedia.com/doc/1G2-3424300247.html, accessed 3-24-16)

To combat and dismantle racial inequality, a variety of groups and tactics emerged throughout the twentieth century in the United States and other countries. The predominant strategy has been nonviolent disobedience, the political mobilization of resources, and moral suasion to mobilize public opinion. However, some groups have advocated armed self-defense or violence as a strategy for revolutionary change. By the dawn of the twentieth century, several strategies emerged to oppose Jim Crow and challenge the United States to live up to its professed ideals. Some reformers, such as Booker T. Washington, urged blacks to not push for civil and political rights but instead to

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work hard, acquire a trade, and eventually hope for white acceptance. Others, such as W. E. B. Du Bois, argued that black people had every right to mobilize for equal civil and political rights that were now constitutionally guaranteed and that to do anything less was to accept a permanent second-class status. Du Bois and other reformers formed what turned into the preeminent civil rights organization of the twentieth century, the National Association for the Advancement of Colored People (NAACP), in 1909. The NAACP marched, protested, and, under the guidance of Charles Hamilton Houston, created a legal defense fund to pursue a strategy of social change through litigation. This strategy came to fruition with the landmark Brown v. Board of Education, Topeka decision of 1954, in which the Supreme Court overturned the Plessy standard of "separate but equal" and declared that separate educational facilities are inherently unconstitutional. In the 1960s and 1970s, the litigation strategy and the NAACP Legal Defense Fund itself were used as models for other groups: the Mexican American Legal Defense and Education Fund (MALDEF), formed in 1968; the Puerto Rican Legal Defense and Education Fund (PRLDF), formed in 1972; and the Native American Rights Fund (NARF), formed in 1970. The economics of racial inequality were also opposed and changed with a range of tactics. In the United States there have been several campaigns organized under the "don't shop where you can't work" strategy. Furthermore, in the 1950s and 1960s, economic boycotts were used to withdraw financial support from businesses and public transportation systems that engaged in segregation. Many of these were successful, the most famous one being the Montgomery bus boycott of 1955, which made Rosa Parks a civil rights icon and helped Martin Luther King, Jr., become a national civil rights leader. In 1962, Cesar Chavez helped form the National Farmworkers Association (NFWA) to defend the rights of Mexican-American and Asian-American agricultural workers. The NFWA helped negotiate contracts with corporate growers and was supported by consumer boycotts of targeted products, such as grapes. Also, in the 1980s, a global antiapartheid movement used economic and cultural boycotts, as well as pressuring companies and governments to divest from South Africa, to force the National Party to negotiate the dismantling of apartheid. Nonviolent marches, sit-ins, and freedom rides were tactics used both to pressure private companies to end segregation but also to pressure the federal government to enforce civil rights laws in Southern states. The Southern Christian Leadership Conference (SCLC) was formed in 1957 with King as its leader. The SCLC drew on the organizational support of black churches and ministers to organize marches and protests across the South as well as the March on Washington for Jobs and Freedom in 1963, at which King gave his famous "I have a dream" speech. Other groups and tactics also emerged. The Student Nonviolent Coordinating Committee (SNCC) was led by college-aged black youth and eventually included white college-aged members. SNCC was active in sitins to integrate segregated lunch counters in Greenville, North Carolina. Together with members of the interracial Congress of Racial Equality (CORE), SNCC members were active in "freedom rides" to desegregate bus terminals in the South, and members of both organizations were active in voter-registration efforts in Mississippi in 1963 and 1964 (Dittmer). Such efforts finally pressured Congress and the president to act. The Civil Rights Act of 1964 guaranteed equal access and equal treatment under the law, banned segregated public accommodations, and prohibited discrimination in hiring on the basis of race, gender, or national origin. A year later, the Voting Rights Act of 1965 banned all discriminatory voter-registration laws and gave the Justice Department power to ensure that voting and election laws were not discriminatory. Indeed, with this act the promise of the Fifteenth Amendment was finally fulfilled. Also in 1965, immigration policies were reformed finally to dismantle any legacies of racial preference and discrimination. In 1968, the final major civil rights act of the era banned discrimination in the sale or rental of property and housing. With these victories in the courts and in Congress, many Americans thought the nation's principles of equality were finally matched by its practices. In one way, this is true. For example, black voter-registration rates in Mississippi went from about 6 percent of eligible voters in 1965 to about 63 percent in 1971 and 1972 (Lawson). On the other hand, while legislation and litigation helped establish the principles of equality under the law, voting rights, and equal access to public accommodations, there still exists a legacy of economic inequity and social injustice. Occasionally, groups pursued a strategy of armed self-defense or violence as a means to combat entrenched racial inequality. Contrary to the nonviolent philosophy of the civil rights movement in the 1950s and 1960s, individuals such as Robert F. Williams in North Carolina and groups such as the Deacons for Defense and Justice in Louisiana advocated civil and political rights but also reserved the right to self-defense when facing violent opposition (Tyson). In South Africa, the African National Congress (ANC) was formed to resist apartheid and originally set out on a course of nonviolent disobedience. However, some within the ANC eventually adopted a strategy of limited armed resistance that used selective acts of force for purposes of economic sabotage (Fredrickson, 1995). For this, Nelson Mandela was

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imprisoned until 1990, when he was released as part of South Africa's dismantling of apartheid. The Continuing Struggle Historically speaking, it is only recently that the belief in racial equality has refuted biological arguments that support racial hierarchies. In the early twenty-first century it has been commonplace for scholars to refer to race not as a biological concept but as a social construction. It is also only recently that the belief in racial equality has helped mobilize social change through a variety of tactics that resulted in the dismantling of legalized segregation in the United States and apartheid in South Africa. Despite these gains, however, racial equality remains elusive. As King and others had already observed in the late 1960s, changes in the attitudes of whites as well as legal and legislative changes to promote equal treatment, voting rights, and equal opportunity are all necessary steps in the effort to establish racial equality. The next set of steps includes a strong enforcement of civil rights as well as a major restructuring of economic resources, economic opportunities, educational opportunities, and political influence (King). In the United States, several issues since the early 1970s serve as reminders that racial equality remains elusive. Fifty years after the Brown decision, there are increasing levels of segregation in the public schools of large, Northern cities, indicating that residential segregation also exists. College attendance rates for Latinos and blacks continue to lag behind those of whites and Asian-Americans. Indeed, gaps in educational achievement measured by standardized test scores have spurred the reemergence of biological explanations of race and intelligence (Gould). Incidents of police brutality and the harassment of black motorists (referred to as "racial profiling" or "driving while black") are signs that civil rights enforcement is still needed. And despite an emerging black middle class, there is controversy surrounding "affirmative action," a range of policies to ensure equal educational and employment opportunity. On affirmative action and other issues, large differences of opinion between white and black Americans are emerging—so large that some scholars have labeled them "chasms" (Smith and Seltzer). Ironically, some invoke Dr. King's notion that individuals should be judged by the content of their character, not the color of their skin, to oppose policies intended to promote racial equality. Some find the goal of "color blindness" laudable; others believe diversity should be respected through pursuance of a "multiracial" set of policies that are conscious of race and targeted at ameliorating racial inequalities as a better path toward racial equality in the United States. In global terms, several issues continue to demand attention and controversy. The legacies of past injustices, such as the Holocaust, slavery, segregation, and apartheid, have led to debates surrounding apologies, compensation, and reparations. South Africa has established a Truth and Reconciliation Commission to document the injustices of apartheid as well as to promote national reconciliation as it builds a multiracial democracy. The U.S. Congress passed the Civil Liberties Act of 1988, which issued an apology and offered a small monetary compensation to Japanese Americans interned during World War II. However, calls for an apology or compensation to black Americans for the legacies of slavery and segregation remain controversial (Brooks). Additionally, the rights of economic and political refugees and migrants continue to be a focal point of the struggle for racial equality in Europe and the United States. Indeed, migrants and refugees constitute a cheap and exploitable source of labor but also spark xenophobic and nationalist reaction. Right-wing movements and leaders have emerged in France, Germany, Austria, and the United States to oppose the immigration of people they see as culturally, linguistically, or racially inferior. These and other concerns were the focus of the United Nations Conference against Racism, Racial Discrimination, Xenophobia, and Related Intolerance, held in Durban, South Africa, in August and September of 2001. However, due to concerns that the conference would take strong stands against Israeli treatment of Palestinians as well as potentially open the door to reparations for slavery, the United States did not participate. It is clear from these and other issues that the goal of racial equality remains in a constant and ongoing struggle against racism, both its current manifestations and its legacies, within the United States and around the world.

Thus, given the breadth of the struggle and the multitude of strategies, our purpose in this section is to begin the research on the best policy areas or sectors to specify.

Areas/Clusters of Policy with additional details in the paper below:

Education higher/secondary/all academic achievement

Criminal Justice criminal incarceration

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Housing access to affordable housing home ownership access to business/home loans

Voting Rights

Immigration

Other potential sectors to consider

Employment / Title VII

Urban Planning

Labor Rights

Homeland Security Anti-Islam, discrimination against Arabs and Muslims and profiles of “Middle Eastern decent”

Health Care access to health care/insurance health outcomes

http://www.nursingworld.org/MainMenuCategories/Policy-Advocacy/Positions-and- Resolutions/ANAPositionStatements/Position-Statements-Alphabetically/Copy-of-prtetdisrac14448.html

Environmental Justice clean air safe water

Welfare Forced sterilization, reproductive freedom

(thanks to R. Evans for many of these suggestions…)

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Education

The Elementary and Secondary Education Act, signed into law in 1965, has been updated and altered through No Child Left Behind among other recent pieces of legislation. These policies are not addressing disturbing trends toward greater segregation and increased racial bias in education opportunities and outcomes.

George Theoharis, Prof. of Education @ Syracuse University, ’15 (Oct 23,‘Forced busing’ didn’t fail. Desegregation is the best way to improve our schools.Racial achievement gaps were narrowest at the height of school integration.https://www.washingtonpost.com/posteverything/wp/2015/10/23/forced-busing-didnt-fail-desegregation-is-the-best-way-to-improve- our-schools/

Since the Reagan administration’s “A Nation at Risk” report pronounced that schools across the country were failing, every president has touted a new plan to close the racial academic achievement gap: President Obama installed Race to the Top; George W. Bush had No Child Left Behind; and Clinton pushed Goals 2000. The nation has commissioned studies, held conferences and engaged in endless public lamentation over how to get poor students and children of color to achieve at the level of wealthy white students — as if how to close this opportunity gap was a mystery. But we forget that we’ve done it before. Racial achievement gaps were narrowest at the height of school integration.U.S. schools have become more segregated since 1990, and students in major metropolitan areas have been most severely divided by race and income, according to the University of California at Los Angeles’s Civil Rights Project. Racially homogenous neighborhoods that resulted from historic housing practices such as red-lining have driven school segregation. The problem is worst in the Northeast — the region that, in many ways, never desegregated — where students face some of the largest academic achievement gaps: in Connecticut, Maryland, Massachusetts and the District of Columbia.More than 60 years after Brown v. Board of Education, federal education policies still implicitly accept the myth of “separate but equal,” by attempting to improve student outcomes without integrating schools. Policymakers have tried creating national standards, encouraging charter schools, implementing high-stakes teacher evaluations and tying testing to school sanctions and funding. These efforts sought to make separate schools better but not less segregated. Ending achievement and opportunity gaps requires implementing a variety of desegregation methods – busing, magnet schools, or merging school districts, for instance – to create a more just public education system that successfully educates all children.Public radio’s “This American Life” reminded us of this reality in a two-part report this summer, called “The Problem We All Live With.” The program noted that, despite declarations that busing to desegregate schools failed in the 1970s and 1980s, that era actually saw significant improvement in educational equity. When the National Assessment of Educational Progress began in the early 1970s, there was a 53-point gap in reading scores between black and white 17-year-olds. That chasm narrowed to 20 points by 1988. During that time, every region of the country except the Northeast saw steady gains in school integration. In the South in 1968, 78 percent of black children attended schools with almost exclusively minority students; by 1988, only 24 percent did. In the West during that period, the figure declined from 51 percent to 29 percent.But since 1988, when education policy shifted away from desegregation efforts, the reading test score gap has grown — to 26 points in 2012 — with segregated schooling increasing in every region of the country.Research has shown that integration is a critical factor in narrowing the achievement gap. In a 2010 research review, Harvard University’s Susan Eaton noted that racial segregation in schools has such a severe impact on the test score-gap that it outweighs the positive effects of a higher family income for minority students. Further, a 2010 study of students’ improvements in math found that the level of integration was the only school characteristic (vs. safety and community commitment to math) that significantly affected students’ learning growth.In an analysis of the landmark 1966 “Coleman Report,” researchers Geoffrey Borman and Maritza Dowling determined that both the racial and socioeconomic makeups of a school are 1¾-times more important in determining a student’s educational outcomes than the student’s own race, ethnicity or social class.But we continue to think about segregation as a problem of the past, ignoring its growing presence in schools today. Desegregating schools has become a political third rail, even though it is an essential solution to one of our nation’s most persistent problems.This month, Education Secretary Arne Duncan announced he would step down in December and his deputy, John King, would replace him. King, during his tenure as New York state’s education commissioner, visited both school districts mentioned above to advance the national Race to the Top agenda, but he never acknowledged the increasing school segregation apparent in the region. In 1989, Syracuse city schools were about 60 percent white, and just 20 percent of black and Latino students attended predominately minority schools. Today, the district is 28 percent white, while 55 percent of Latino students and 75 percent of black students attend predominately minority schools.Racial and economic segregation affects schools in various ways. Federal and state policies that impose sanctions on poor-

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performing schools — state takeovers and forced replacement of school leaders, for example — often make matters worse. For example, Westside Academy , the Syracuse middle school where no students passed the state eighth-grade math assessment, has has had multiple principals and saw 44-percent teacher turnover in the 2012-2013 school year.About a decade ago, the elementary schools that feed into Westside Academy and Wellwood Middle School adopted the same math curriculum program, touted as one of the best standards-based elementary programs available. As is typical, both districts struggled to implement the new curriculum initially. But a decade later, the schools in Wellwood’s district are still using it, with teachers becoming more skilled and comfortable with the new way to teach math. The schools in Westside’s district, however, changed their math program at least two more times, leaving teachers, students, and families in a constant state of churn and undoubtedly affecting student learning and test scores. In this era of accountability, this instability is not forced upon white, upper-middle class families.While much has been said about the failure of busing, it’s time to move beyond this myth. In one of the most famous examples of court-ordered desegregation, Boston began busing students between white and black neighborhoods in 1974, sparking violent white protests and boycotts by white students. White families fled to the suburbs. Supporting neighborhood schools and opposing school bus rides became rhetoric to fight desegregation without overtly racist language. But as black activists in Boston noted at the time, “It’s not the bus, it’s us.” Before the court order, nearly 90 percent of high school students rode a bus to school without protest. Today, most children get on a school bus to attend a segregated school. Busing ended because of a combination of white protest, media that overemphasized resistance, and the lack of systematic collection to judge the impact of desegregation. So we need to be sober about our history: Busing didn’t fail; the nation’s resolve and commitment to equal and excellent desegregated schools did.Busing is not the only way to desegregate our schools. We can unify school districts so they encompass racially and economically diverse neighborhoods. The countywide district centered in Raleigh, for instance, has been successful in integrating schools and achieving academic success, in contrast to the 18 schools districts across the metropolitan Syracuse area. Shaping districts like pie pieces, so they cut across urban, suburban and even rural spaces, could have the same effect.Creating more open-enrollment magnet schools would also bring families of various races and incomes into well-funded and themed schools. For existing public schools, we could merge two neighborhood campuses in segregated communities, so they attend one neighborhood school together from kindergarten through second grade and the other from third through fifth grades. Or we can incentivize school districts to take action, imposing segregation and providing financial resources to districts with aggressive desegregation plansbvCertainly, none of these approaches is easy or perfect, and desegregation alone is not a magic bullet to end the achievement and opportunity gaps. Even integrated schools face racial gaps. Many black and Latino kids end up in lower academic tracks and white parents protect exclusive opportunities for their kids. Still, knowing the benefits of integrated learning environments, we can’t continue to ignore the growing hold segregation has on our schools.We’ve heard soaring words from Duncan and Obama touting education as the route to a better life, saying it is a moral imperative that we work tirelessly to improve the education of our most vulnerable children. But rhetoric is no match for our failure of will to change the disparate realities of our separate educational systems. It is no match for our failure of courage to call out the persistent segregation of our schools.Some scholars have argued that King will be good for school integration. Time will tell if we are entering a moment that moves beyond rhetoric toward substantial desegregation.In this time of transition for the Education Department — in the last year of the Obama administration — are we going to continue ignoring the moral implications of separate schools? Our history shows that policy cannot focus on improving “failing” schools; it needs to also emphasize desegregating them. No matter how much we seek to improve the back of the education bus, it will always be the back.

There is no doubt that education would be a great area to debate and would not be a bad area to include in all the topic wording choices. It could be limited down further if necessary to academic achievement, graduation rates, public schools, secondary or post-secondary, or many other ways that a potential wording paper could explore. We will give a sense of what’s happening in this area and what some of the larger affirmatives might look like. The bottom line is that racial inequality is incredibly serious and persistent in education despite past attempts to solve the problem through everything from busing as a form of desegregation to race-based affirmative action. The allocation of education as an opportunity is far from equal, compounded by the reality that education itself is a major indicator of other access and chances for success in society.

Linda Darling-Hammond, ’98 ( Spring 1998 Unequal Opportunity: Race and Education http://www.brookings.edu/research/articles/1998/03/spring-education-darling-hammond)

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W.E.B. DuBois was right about the problem of the 21st century. The color line divides us still. In recent years, the most visible evidence of this in the public policy arena has been the persistent attack on affirmative action in higher education and employment. From the perspective of many Americans who believe that the vestiges of discrimination have disappeared, affirmative action now provides an unfair advantage to minorities. From the perspective of others who daily experience the consequences of ongoing discrimination, affirmative action is needed to protect opportunities likely to evaporate if an affirmative obligation to act fairly does not exist. And for Americans of all backgrounds, the allocation of opportunity in a society that is becoming ever more dependent on knowledge and education is a source of great anxiety and concern. At the center of these debates are interpretations of the gaps in educational achievement between white and non-Asian minority students as measured by standardized test scores. The presumption that guides much of the conversation is that equal opportunity now exists; therefore, continued low levels of achievement on the part of minority students must be a function of genes, culture, or a lack of effort and will (see, for example, Richard Herrnstein and Charles Murray's The Bell Curve and Stephan and Abigail Thernstrom's America in Black and White). The assumptions that undergird this debate miss an important reality: educational outcomes for minority children are much more a function of their unequal access to key educational resources, including skilled teachers and quality curriculum, than they are a function of race. In fact, the U.S. educational system is one of the most unequal in the industrialized world, and students routinely receive dramatically different learning opportunities based on their social status. In contrast to European and Asian nations that fund schools centrally and equally, the wealthiest 10 percent of U.S. school districts spend nearly 10 times more than the poorest 10 percent, and spending ratios of 3 to 1 are common within states. Despite stark differences in funding, teacher quality, curriculum, and class sizes, the prevailing view is that if students do not achieve, it is their own fault. If we are ever to get beyond the problem of the color line, we must confront and address these inequalities.

Empirically more resources and equal spending can make a difference in academic achievement, but we have not gone far enough in any way, with harmful consequences for “minority and economically disadvantaged students.”

Linda Darling-Hammond, ’98 ( Spring 1998, Brookings Report, “Unequal Opportunity: Race and Education” http://www.brookings.edu/research/articles/1998/03/spring-education-darling-hammond)

The Nature of Educational Inequality Americans often forget that as late as the 1960s most African-American, Latino, and Native American students were educated in wholly segregated schools funded at rates many times lower than those serving whites and were excluded from many higher education institutions entirely. The end of legal segregation followed by efforts to equalize spending since 1970 has made a substantial difference for student achievement. On every major national test, including the National Assessment of Educational Progress, the gap in minority and white students' test scores narrowed substantially between 1970 and 1990, especially for elementary school students. On the Scholastic Aptitude Test (SAT), the scores of African-American students climbed 54 points between 1976 and 1994, while those of white students remained stable. Even so, educational experiences for minority students have continued to be substantially separate and unequal. Two-thirds of minority students still attend schools that are predominantly minority, most of them located in central cities and funded well below those in neighboring suburban districts. Recent analyses of data prepared for school finance cases in Alabama, New Jersey, New York, Louisiana, and Texas have found that on every tangible measure— from qualified teachers to curriculum offerings—schools serving greater numbers of students of color had significantly fewer resources than schools serving mostly white students. As William L. Taylor and Dianne Piche noted in a 1991 report to Congress: Inequitable systems of school finance inflict disproportionate harm on minority and economically disadvantaged students. On an inter-state basis, such students are concentrated in states, primarily in the South, that have the lowest capacities to finance public education. On an intra-state basis, many of the states with the widest disparities in educational expenditures are large industrial states. In these states, many minorities and economically disadvantaged students are located in property-poor urban districts which fare the worst in educational expenditures (or) in rural districts which suffer from fiscal inequity.

The result of inequalities in secondary education is that minority students have…

--fewer and lower-quality books --fewer curriculum materials --fewer laboratories --fewer computers --significantly larger class sizes --less qualified and experienced teachers

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--less access to high-quality curriculum

Linda Darling-Hammond, ’98 ( Spring 1998, Brookings Report, “Unequal Opportunity: Race and Education” http://www.brookings.edu/research/articles/1998/03/spring-education-darling-hammond)

Jonathan Kozol s 1991 Savage Inequalities described the striking differences between public schools serving students of color in urban settings and their suburban counterparts, which typically spend twice as much per student for populations with many fewer special needs. Contrast MacKenzie High School in Detroit, where word processing courses are taught without word processors because the school cannot afford them, or East St. Louis Senior High School, whose biology lab has no laboratory tables or usable dissecting kits, with nearby suburban schools where children enjoy a computer hookup to Dow Jones to study stock transactions and science laboratories that rival those in some industries. Or contrast Paterson, New Jersey, which could not afford the qualified teachers needed to offer foreign language courses to most high school students, with Princeton, where foreign languages begin in elementary school. Even within urban school districts, schools with high concentrations of low-income and minority students receive fewer instructional resources than others. And tracking systems exacerbate these inequalities by segregating many low-income and minority students within schools. In combination, these policies leave minority students with fewer and lower-quality books, curriculum materials, laboratories, and computers; significantly larger class sizes; less qualified and experienced teachers; and less access to high-quality curriculum. Many schools serving low-income and minority students do not even offer the math and science courses needed for college, and they provide lower-quality teaching in the classes they do offer. It all adds up.

Issues surrounding race are critical to education reform and equality, creating a multidimensional debate that we need to have. There is a lot to do here.

Hochschild, H.L. Jayne Prof. Govt, Prof. African & African American Studies @ Harvard, ’14 (Jennifer Hochschild JL, Shen FX. Race, Ethnicity, and Education Policy. In: Oxford Handbook of Racial and Ethnic Politics in America. New York: Oxford University Press ; 2014)

Most questions raised in this chapter have no clear answers, and many important issues have barely been explored. Nevertheless, it is at least clear that race and ethnicity are central to understanding and evaluating education policy and practice in the United States. On average, Anglos and Asians attain more years of schooling and achieve more in school than do Blacks and Latinos. Non-Anglos are disproportionately enrolled in urban school districts, whose resources, political dynamics, and policy choices differ considerably from those of non-urban districts. The ruling federal legislation requires schools to categorize and evaluate students by race and ethnicity, even while the government recognizes that labeling students is much more difficult than it initially appears to be. As if this brief summary were not sufficiently daunting, a recent Commission on Research in Black Education (CORIBE) called for shifting “the research framework beyond a narrow focus on… ‘acting White,’… ‘stereotype threat,’ the ‘achievement gap… or quick-fix school reforms” to a more “transformative agenda” (King 2005: 349). It is right; there is plenty of work to be done, both in schools and in examining schools.

The literature on race in education tends to divide issues involving access and opportunity from questions of outcome and performance, but the two are incredibly intertwined. The pre-requisite, though, to those discussions about the quality differences and resource discrepancies found in education, is the determination of racial difference in the first place. You have to ask some questions about race itself to try to determine how it is represented in various student and employee populations in the educational system. This is an important debate to have because changing the categorization schemes and means of gathering the information (sampling, self-selection, active census, reporting) about race can radically alter the data and subsequent policies attempting to correct imbalances and discrimination.

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Most of the scholarship just reviewed rests on two assumptions that require revisiting. Researchers and policy actors usually assume that racial or ethnic groups have discrete boundaries and accepted definitions, and that there is a unitary “Black”, “Latino,”

“Anglo,” or “Asian” interest to be ascertained and advanced. We challenge both assumptions. Building on the efforts of legal scholars, critical race theorists in the field of education question whether race is useful as a category of analysis or politics (Ladson-Billings and Tate 1995; see also Villenas 1999). Racial classifications are fluid across individuals (Parker and Lynn 2002; Hochschild and Weaver 2009), and across institutions and time (Hochschild and Powell 2008; Williams 2006). The race and ethnic classifications introduced in 2007 for collecting data to be reported to the federal Department of Education were so confusing that the Department

published an aptly titled 90-page explanatory report, “Managing an Identity Crisis” (2008). Typically, either students choose a race (or their parents choose one for them) when they first enter a school, or teachers identify students based on skin color and appearance (Feldon 2006). States vary in whether students may identify with more than one race, and in the categories used for identification. States also vary in the number and array of immigrant students who do not understand themselves in terms of conventional American racial or ethnic labels. These variations are more than a statistical annoyance, since NCLB’s emphasis on subgroup accountability makes categorization inevitable and high stakes. Affirmative action policies and anti-discrimination policies also rest on an assumption that applicants and employees can be unproblematically sorted into groups -- and if that assumption is wrong, these policies need to be appropriately adjusted. Defining a “Black interest,” “Asian interest,” or “Latino interest” in education policy is even

less straightforward. For example, while LULAC (the League of United Latin American Citizens) and the NAACP (National Association for the Advancement of Colored People) both oppose school voucher programs and other privatization efforts (Scott, et. al. 2008), multivariate analyses controlling for income and education show that many Black and Latino parents, especially in urban school districts, support them (Moe 2001). The older civil rights organizations may have different interests than the younger parents of children in failing schools. Similarly, the category of “Asian American” must be disaggregated in order to recognize the differences in attainment and achievement across nationality groups. Some nationalities -- Japanese, Filipinos, Koreans, Asian Indians – are typically at the top of educational attainment measures, while others – Laotians, Hmong, Cambodian, and Vietnamese – are at the bottom (National Commission on Asian American and Pacific Islander Research in Education 2008). Two-fifths of California’s voting Latinos supported Proposition 227, while others, including nonvoters, passionately denounced it as an attack on immigrants, minorities, and Spanish language and culture. Middle class Blacks leave inner city schools almost as quickly as middle class Whites do, given the opportunity to enroll their children in a better school system. In short, scholars and policy makers alike need to remember that groups may not have a coherent interest in the arena of education policy and practice, beyond the powerful but anodyne desire for better schooling for their children.

In terms of possible policy, there is a massive structural inequality that can be addressed from many different levels, including some of the foundational issues outside of education itself: housing inequality is a huge impediment, segregation into low-income neighborhoods, political ignorance and a literal re-mapping of the social conditions that created such disparity in the first place. Other forms of structural racism compound problems in education which in turn limits the ability to rectify the problem in the future.

Richard Rothstein, Economic Policy Institute, ’14 (“The Racial Achievement Gap, Segregated Schools, and Segregated Neighborhoods – A Constitutional Insult” November 12, 2014 , Race and Social Problems 6 (4), December 2014. http://www.epi.org/publication/the-racial-achievement-gap- segregated-schools-and-segregated-neighborhoods-a-constitutional-insult/)

Concentrating students with these disadvantages in racially and economically homogenous schools depresses it further. Schools that the most disadvantaged black children attend are segregated because they are located in segregated high-poverty neighborhoods, far distant from truly middle-class neighborhoods. Living in such high-poverty neighborhoods for multiple generations adds an additional barrier to achievement, and multigenerational segregated poverty characterizes many African American children today. Education policy is constrained by housing policy: it is

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not possible to desegregate schools without desegregating both low-income and affluent neighborhoods. However, the policy motivation to desegregate neighborhoods is hobbled by a growing ignorance of the nation’s racial history. It has become conventional for policymakers to assert that the residential isolation of low-income black children is now “de facto,” the accident of economic circumstance, demographic trends, personal preference, and private discrimination. But the historical record demonstrates that residential segregation is “de jure,” resulting from racially- motivated and explicit public policy whose effects endure to the present. Without awareness of the history of state- sponsored residential segregation, policymakers are unlikely to take meaningful steps to understand or fulfill the constitutional mandate to remedy the racial isolation of neighborhoods, or the school segregation that flows from it.

The number of factors contributing to racial inequality in education is extensive enough that it begins to pose a solvency problem for the smaller and shallower affirmatives. We think that’s a positive development in that a broad topic wording with lots of flexibility that still requires the aff to take some meaningful and sizeable action (and action that can do something positive if big enough) is a good goal.

We cannot substantially improve the performance of the poorest African American students – the “truly disadvantaged,” in William Julius Wilson’s phrase – by school reform alone. It must be addressed primarily by improving the social and economic conditions that bring too many children to school unprepared to take advantage of what even the best schools have to offer. There are two aspects to this conclusion:  First, social and economic disadvantage – not poverty itself, but a host of associated conditions – depresses student performance, and  Second, concentrating students with these disadvantages in racially and economically homogenous schools depresses it further. The individual predictors of low achievement are well documented:  With less access to routine and preventive health care, disadvantaged children have greater absenteeism (Aysola, Orav, & Ayanian, 2011; Starfield, 1997), and they can’t benefit from good schools if they are not present.  With less literate parents, they are read to less frequently when young, and are exposed to less complex language at home (Ayoub et al., 2009; Brooks-Gunn & Markman, 2005).  With less adequate housing, they rarely have quiet places to study and may move more frequently, changing schools and teachers (Mehana & Reynolds, 2004; Raudenbush, Jean, & Art, 2011).  With fewer opportunities for enriching after-school and summer activities, their background knowledge and organizational skills are less developed (Entwisle, Alexander, & Olson, 2000; Neuman & Celano, 2001).  With fewer family resources, their college ambitions are constrained (Johnson, In Progress). As these and many other disadvantages accumulate, lower social class children inevitably have lower average achievement than middle class children, even with the highest quality instruction. When a school’s proportion of students at risk of failure grows, the consequences of disadvantage are exacerbated. In schools with high proportions of disadvantaged children,  Remediation becomes the norm, and teachers have little time to challenge those exceptional students who can overcome personal, family, and community hardships that typically interfere with learning.  In schools with high rates of student mobility, teachers spend more time repeating lessons for newcomers, and have fewer opportunities to adapt instruction to students’ individual strengths and weaknesses.  When classrooms fill with students who come to school less ready to learn, teachers must focus more on discipline and less on learning.  Children in impoverished neighborhoods are surrounded by more crime and violence and suffer from greater stress that interferes with learning (Buka, Stichick, Birdthistle, & Earls, 2001; Burdick-Will et al., 2010; Farah et al., 2006).  Children with less exposure to mainstream society are less familiar with the standard English that’s necessary for their future success (Sampson, Sharkey, & Raudenbush, 2008).  When few parents have strong educations themselves, schools cannot benefit from parental pressure for higher quality curriculum, children have few college- educated role models to emulate and have few classroom peers whose own families set higher academic standards. Nationwide, low-income black children’s isolation has increased. It’s a problem not only of poverty but of race.  The share of black students attending schools that are more than 90 percent minority has grown from 34 percent to 39 percent from 1991 to 2011 (Orfield & Frankenberg, 2014, Table 8; Orfield & Lee, 2006, Table 3). In 1991, black students typically attended schools where 35 percent of their fellow students were white; by 2011, it had fallen to 28 percent (Orfield & Frankenberg, 2014, Table 4; Orfield, Kucsera, & Siegel-Hawley, 2012, Table 5).  In 1988, black students typically attended schools in which 43 percent of their fellow students were low-income; by 2006 it had risen to 59 percent (Orfield, 2009).  In cities with the most struggling students, the isolation is even more extreme. The most recent data show, for example, that in Detroit, the typical black student attends a school where 3 percent of students are white, and 84 percent are low income (Detroit Public Schools, 2009, Enrollment Demographics as of 11/19/2009).

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It is inconceivable that significant gains can be made in the achievement of black children who are so severely isolated. This school segregation mostly reflects neighborhood segregation. In urban areas, low-income white students are more likely to be integrated into middle-class neighborhoods and less likely to attend school predominantly with other disadvantaged students. Although immigrant low-income Hispanic students are also concentrated in schools, by the third generation their families are more likely to settle in more middle-class neighborhoods. Illustrative is that Latino immigrants who had resided in California for at least 30 years had a 65 percent homeownership rate prior to the burst of the housing bubble (Myers, 2008).1 It’s undoubtedly lower after the bubble burst, but still extraordinary. The racial segregation of schools has been intensifying because the segregation of neighborhoods has been intensifying. Analyzing Census data, Rutgers University Professor Paul Jargowsky has found that in 2011, 7 percent of poor whites lived in high poverty neighborhoods, where more than 40 percent of the residents are poor, up from 4 percent in 2000; 15 percent of poor Hispanics lived in such high poverty neighborhoods in 2011, up from 14 percent in 2000; and a breathtaking 23 percent of poor blacks lived in high poverty neighborhoods in 2011, up from 19 percent in 2000 (Jargowsky, 2013). In his 2013 book, Stuck in Place (2013), the New York University sociologist Patrick Sharkey defines a poor neighborhood as one where 20 percent of the residents are poor, not 40 percent as in Paul Jargowsky’s work. A 20-percent-poor neighborhood is still severely disadvantaged. In such a neighborhood, many, if not most other residents are likely to have very low incomes, although not so low as to be below the official poverty line. Sharkey finds that young African Americans (from 13 to 28 years old) are now ten times as likely to live in poor neighborhoods, defined in this way, as young whites—66 percent of African Americans, compared to 6 percent of whites (Sharkey, 2013, p. 27, Fig. 2.1). What’s more, for black families, mobility out of such neighborhoods is much more limited than for whites. Sharkey shows that 67 percent of African American families hailing from the poorest quarter of neighborhoods a generation ago continue to live in such neighborhoods today. But only 40 percent of white families who lived in the poorest quarter of neighborhoods a generation ago still do so (Sharkey, 2013, p. 38, Fig. 2.6). Considering all black families, 48 percent have lived in poor neighborhoods over at least two generations, compared to 7 percent of white families (Sharkey, 2013, p. 39). If a child grows up in a poor neighborhood, moving up and out to a middle-class area is typical for whites but an aberration for blacks. Black neighborhood poverty is thus more multigenerational while white neighborhood poverty is more episodic; black children in low-income neighborhoods are more likely than others to have parents who also grew up in such neighborhoods. The implications for children’s chances of success are dramatic: For academic performance, Sharkey uses a scale like the familiar IQ measure, where 100 is the mean and roughly 70 percent of children score about average, between 85 and 115. Using a survey that traces individuals and their offspring since 1968, Sharkey shows that children who come from middle-class (non-poor) neighborhoods and whose mothers also grew up in middle-class neighborhoods score an average of 104 on problem-solving tests. Children from poor neighborhoods whose mothers also grew up in poor neighborhoods score lower, an average of 96. Sharkey’s truly startling finding, however, is this: Children in poor neighborhoods whose mothers grew up in middle-class neighborhoods score an average of 102, slightly above the mean and only slightly below the average scores of children whose families lived in middle-class neighborhoods for two generations. But children who live in middle-class neighborhoods—yet whose mothers grew up in poor neighborhoods—score an average of only 98 (Sharkey 2013, p. 130, Fig. 5.5.). Sharkey concludes that “the parent’s environment during [her own] childhood may be more important than the child’s own environment.” He calculates that “living in poor neighborhoods over two consecutive generations reduces children’s cognitive skills by roughly eight or nine points … roughly equivalent to missing two to four years of schooling” (Sharkey 2013, pp. 129-131). Integrating disadvantaged black students into schools where more privileged students predominate can narrow the black-white achievement gap. Evidence is especially impressive for long term outcomes for adolescents and young adults who have attended integrated schools (e.g., Guryan, 2001; Johnson, 2011). But the conventional wisdom of contemporary education policy notwithstanding, there is no evidence that segregated schools with poorly performing students can be “turned around” while remaining racially isolated. Claims that some schools, charter schools in particular, “beat the odds” founder upon close examination. Such schools are structurally selective on non-observables, at least, and frequently have high attrition rates (Rothstein, 2004, pp. 61-84). In some small districts, or in areas of larger districts where ghetto and middle class neighborhoods adjoin, school integration can be accomplished by devices such as magnet schools, controlled choice, and attendance zone manipulations. But for African American students living in the ghettos of large cities, far distant from middle class suburbs, the racial isolation of their schools cannot be remedied without undoing the racial isolation of the neighborhoods in which they are located.

The Court has entrenched segregation by making particular remedies impossible if the target is segregation that is not explicit. It shows the depth of the opposition to desegregation and the role that institutions such as the SCOTUS play in propping up this system of racial inequality.

In 2007, the Supreme Court made integration even more difficult than it already was, when the Court prohibited the Louisville and Seattle school districts from making racial balance a factor in assigning students to schools, in situations

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where applicant numbers exceeded available seats (Parents Involved in Community Schools v. Seattle School District No. 1, 2007). The plurality opinion by Chief Justice John Roberts decreed that student categorization by race (for purposes of administering a choice program) is unconstitutional unless it is designed to reverse effects of explicit rules that segregated students by race. Desegregation efforts, he stated, are impermissible if students are racially isolated, not as the result of government policy but because of societal discrimination, economic characteristics, or what Justice Clarence Thomas, in his concurring opinion, termed “any number of innocent private decisions, including voluntary housing choices.” In Roberts’ terminology, commonly accepted by policymakers from across the political spectrum, constitutionally forbidden segregation established by federal, state or local government action is de jure, while racial isolation independent of state action, as, in Roberts’ view, in Louisville and Seattle, is de facto. It is generally accepted today, even by sophisticated policymakers, that black students’ racial isolation is now de facto, with no constitutional remedy – not only in Louisville and Seattle, but in all metropolitan areas, North and South. Even the liberal dissenters in the Louisville-Seattle case, led by Justice Stephen Breyer, agreed with this characterization. Breyer argued that school districts should be permitted voluntarily to address de facto racial homogeneity, even if not constitutionally required to do so. But he accepted that for the most part, Louisville and Seattle schools were not segregated by state action and thus not constitutionally required to desegregate. This is a dubious proposition. Certainly, Northern schools have not been segregated by policies assigning blacks to some schools and whites to others – at least not since the 1940s; they are segregated because their neighborhoods are racially homogenous. But neighborhoods did not get that way from “innocent private decisions” or, as the late Justice Potter Stewart once put it, from “unknown and perhaps unknowable factors such as in-migration, birth rates, economic changes, or cumulative acts of private racial fears” (Milliken v. Bradley, 1974). In truth, residential segregation’s causes are both knowable and known – twentieth century federal, state and local policies explicitly designed to separate the races and whose effects endure today. In any meaningful sense, neighborhoods and in consequence, schools, have been segregated de jure. The notion of de facto segregation is a myth, although widely accepted in a national consensus that wants to avoid confronting our racial history.

Broader education policy, led by NCLB (No Child Left Behind) and an overemphasis on national standardized testing, is not working at all. This larger call for reform needs greater emphasis on racial inequality as part of the solution—some of the calls for “improvement,” such as Superintendent McGills, are lofty on ideals, address the need for more funding (the last paragraph of this card is pretty good on that point), but then failing to challenge the racial dimensions directly, even relying on the example of a segregated school from the 50’s to prove the point.

Michael V. McGill, former Superintendent, ’15 (April 10, 2015, The Answer Sheet Blog, “Guiding Principles for a More Enlightened US Education Policy” 'We will create schools for tomorrow when we understand that excellence is about unleashing talent, not imposing rigid rules.' http://www.commondreams.org/views/2015/04/10/guiding-principles-more-enlightened-us-education-policy)

In short, the accountability movement that began in the 1990’s, then became codified in NCLB, is not what America needs. Considering the human and financial resources that have been poured into the approach, its results are at best unimpressive and often worse. Instead of trying to improve education by the numbers so that performance converges on a low average, we need to establish ‘schools of tomorrow’ that will redefine what and how students learn in order to lift all of them up. It’s time to consider what a more enlightened policy might look like. After 16 years, I recently left the position of superintendent of one of the most successful school districts in the country, Scarsdale, New York. Graduation rates and college acceptances were exceptional. SAT scores were consistently in the top one percent of the top one percent. Scarsdale and its schools have admitted advantages. Nonetheless, we can learn from them, just as we can learn from overseas nations like Finland. The most important lesson may be that quality education isn’t the result of additional testing, more AP courses or doubling down on charter schools. It can be compatible with tenure laws and unions. Basically, it is the product of five factors:

*A collective commitment to quality. Community, parents, motivated students and professionals have a common sense of purpose and a belief in the value of the schools. Each is an essential part of a self-perpetuating cycle of achievement. The culture is what leads a Scarsdale freshman to say, “It’s cool to be smart here.” *An accomplished, self-motivated professional staff drawn from a strong, diverse applicant pool. Salaries and benefits are attractive. There’s an active effort to employ people who reflect the growing diversity of students, the community and the nation. Faculty have ample opportunities for professional learning, so that they remain questioning, vigorous, and abreast of best and emerging practices. In Scarsdale, faculty building has been the work of a century, and union involvement a positive force. Teachers are deeply invested in the welfare of schools and children. *Board and professional leaders who guide the schools in a positive direction. They understand the importance of developing trusting relationships; of listening to the wisdom of the people in the school community; of striving to improve and at the same time of being advocates for the schools. That was the orientation that led Scarsdale to drop AP courses and resist the abuses of high-stakes testing.

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* High expectations grounded in teachers’ own scholarship, the demands of a rich curriculum, assessments that get at “un-measurables” like critical thinking, and a high international standard of performance. To evaluate these efforts, for example, Scarsdale initiated the Global Learning Alliance, a group of high-performance schools in top performing nations whose goal is to discover what the strongest student work looks like and how schools help their pupils produce it. *A culture in which students and teachers are learners. The operating assumption is that nobody is ever a finished product, that people learn collaboratively, and that everyone continues to grow personally and professionally throughout his or her life.

These established principles are the foundations of quality schooling and have existed in many places, including high- performing segregated all black schools in the 1930s through 1950s, such as Washington D.C.’s Dunbar High School, for example. But an education for tomorrow blends the familiar with practices that are less common and, in some cases, still being invented…

More broadly, federal and state policies must evolve in three critical ways. First, they must recognize that a strategy of audit and control cannot produce the results of the same quality that human development can, let alone liberate the talent necessary to create an education for the 21st century. Second they should acknowledge that even though schools and educators must act as if they can make all the difference in the life of every child, many children fall short of their potential because they are disadvantaged by economic disparities or racial discrimination or both. It is essential and just to offset the burden of those inequities. Funding is an indispensable part of the solution. Some funding, doubtless, can be redirected from existing sources or used more effectively. California, for example, is trying to give communities more say in how to use state aid grants. At the same time, new revenue streams are also essential if every child is to have an education for tomorrow. Throwing money indiscriminately at our schools is not an answer. On the other hand, adequate funding s absolutely necessary, if not sufficient, for quality education. Finally, all the partners in the education enterprise—governments, localities, universities, the research community—must move beyond today’s reality, in which they too often talk past or fail to listen to one other.

For elementary and secondary schools across the country, racial disparity can be seen in at least four main areas:

School size Class size Curriculum and materials Teaching qualification

It is true that resources make a big difference, but there are compounding factors influencing racial inequality in education. To really target positive change for students, it becomes important to improve the conditions in at least one of those four areas (school size, class size, curriculum and materials, teacher qualification).

Linda Darling-Hammond, ’98 ( Spring 1998, Brookings Report, “Unequal Opportunity: Race and Education” http://www.brookings.edu/research/articles/1998/03/spring-education-darling-hammond)

Since the 1966 Coleman report, Equality of Educational Opportunity, another debate has waged as to whether money makes a difference to educational outcomes. It is certainly possible to spend money ineffectively; however, studies that have developed more sophisticated measures of schooling show how money, properly spent, makes a difference. Over the past 30 years, a large body of research has shown that four factors consistently influence student achievement: all else equal, students perform better if they are educated in smaller schools where they are well known (300 to 500 students is optimal), have smaller class sizes (especially at the elementary level), receive a challenging curriculum, and have more highly qualified teachers. Minority students are much less likely than white children to have any of these resources. In predominantly minority schools, which most students of color attend, schools are large (on average, more than twice as large as predominantly white schools and reaching 3,000 students or more in most cities); on average, class sizes are 15 percent larger overall (80 percent larger for non-special education classes); curriculum offerings and materials are lower in quality; and teachers are much less qualified in terms of levels of education, certification, and training in the

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fields they teach. And in integrated schools, as UCLA professor Jeannie Oakes described in the 1980s and Harvard professor Gary Orfield's research has recently confirmed, most minority students are segregated in lower-track classes with larger class sizes, less qualified teachers, and lower-quality curriculum.

The teacher qualification issue is huge. Incentives for better teachers, especially in underserviced schools, would go a long way toward improving education as a whole, including racial disparity. When teachers and resources are roughly equivalent for whites and minority groups, so are achievements and performance. The problem is that quality teachers, for example, are not equivalent and whites are more likely to have access to experienced instructors.

Linda Darling-Hammond, ’98 ( Spring 1998, Brookings Report, “Unequal Opportunity: Race and Education” http://www.brookings.edu/research/articles/1998/03/spring-education-darling-hammond)

Research shows that teachers' preparation makes a tremendous difference to children's learning. In an analysis of 900 Texas school districts, Harvard economist Ronald Ferguson found that teachers' expertise—as measured by scores on a licensing examination, master's degrees, and experience—was the single most important determinant of student achievement, accounting for roughly 40 percent of the measured variance in students' reading and math achievement gains in grades 1-12. After controlling for socioeconomic status, the large disparities in achievement between black and white students were almost entirely due to differences in the qualifications of their teachers. In combination, differences in teacher expertise and class sizes accounted for as much of the measured variance in achievement as did student and family background (figure 1). Ferguson and Duke economist Helen Ladd repeated this analysis in Alabama and again found sizable influences of teacher qualifications and smaller class sizes on achievement gains in math and reading. They found that more of the difference between the high- and low-scoring districts was explained by teacher qualifications and class sizes than by poverty, race, and parent education. Meanwhile, a Tennessee study found that elementary school students who are assigned to ineffective teachers for three years in a row score nearly 50 percentile points lower on achievement tests than those assigned to highly effective teachers over the same period. Strikingly, minority students are about half as likely to be assigned to the most effective teachers and twice as likely to be assigned to the least effective. Minority students are put at greatest risk by the American tradition of allowing enormous variation in the qualifications of teachers. The National Commission on Teaching and America's Future found that new teachers hired without meeting certification standards (25 percent of all new teachers) are usually assigned to teach the most disadvantaged students in low-income and high-minority schools, while the most highly educated new teachers are hired largely by wealthier schools (figure 2). Students in poor or predominantly minority schools are much less likely to have teachers who are fully qualified or hold higher-level degrees. In schools with the highest minority enrollments, for example, students have less than a 50 percent chance of getting a math or science teacher with a license and a degree in the field. In 1994, fully one-third of teachers in high-poverty schools taught without a minor in their main field and nearly 70 percent taught without a minor in their secondary teaching field. Studies of underprepared teachers consistently find that they are less effective with students and that they have difficulty with curriculum development, classroom management, student motivation, and teaching strategies. With little knowledge about how children grow, learn, and develop, or about what to do to support their learning, these teachers are less likely to understand students' learning styles and differences, to anticipate students' knowledge and potential difficulties, or to plan and redirect instruction to meet students' needs. Nor are they likely to see it as their job to do so, often blaming the students if their teaching is not successful. Teacher expertise and curriculum quality are interrelated, because a challenging curriculum requires an expert teacher. Research has found that both students and teachers are tracked: that is, the most expert teachers teach the most demanding courses to the most advantaged students, while lower-track students assigned to less able teachers receive lower-quality teaching and less demanding material. Assignment to tracks is also related to race: even when grades and test scores are comparable, black students are more likely to be assigned to lower-track, nonacademic classes. When Opportunity Is More Equal What happens when students of color do get access to more equal opportunities' Studies find that curriculum quality and teacher skill make more difference to educational outcomes than the initial test scores or racial backgrounds of students. Analyses of national data from both the High School and Beyond Surveys and the National Educational Longitudinal Surveys have demonstrated that, while there are dramatic differences among students of various racial and ethnic groups in course-taking in such areas as math, science, and foreign language, for students with similar course- taking records, achievement test score differences by race or ethnicity narrow substantially. Robert Dreeben and colleagues at the University of Chicago conducted a long line of studies documenting both the relationship between educational opportunities and student performance and minority students' access to those opportunities. In a comparative study of 300 Chicago first graders, for example, Dreeben found that African-American and white students who had comparable instruction achieved comparable levels of reading skill. But he also found that the quality of instruction given African-American students was, on average, much lower than that given white students, thus creating a racial

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gap in aggregate achievement at the end of first grade. In fact, the highest-ability group in Dreeben's sample was in a school in a low-income African- American neighborhood. These children, though, learned less during first grade than their white counterparts because their teacher was unable to provide the challenging instruction they deserved. When schools have radically different teaching forces, the effects can be profound. For example, when Eleanor Armour-Thomas and colleagues compared a group of exceptionally effective elementary schools with a group of low-achieving schools with similar demographic characteristics in New York City, roughly 90 percent of the variance in student reading and mathematics scores at grades 3, 6, and 8 was a function of differences in teacher qualifications. The schools with highly qualified teachers serving large numbers of minority and low-income students performed as well as much more advantaged schools. Most studies have estimated effects statistically. However, an experiment that randomly assigned seventh grade "at- risk"students to remedial, average, and honors mathematics classes found that the at-risk students who took the honors class offering a pre-algebra curriculum ultimately outperformed all other students of similar backgrounds. Another study compared African-American high school youth randomly placed in public housing in the Chicago suburbs with city-placed peers of equivalent income and initial academic attainment and found that the suburban students, who attended largely white and better-funded schools, were substantially more likely to take challenging courses, perform well academically, graduate on time, attend college, and find good jobs.

The new Every Student Succeeds Act, ESSA, the replacement to NCLB, basically guts federal oversight and therefore accountability, leaving implementation up to the States, many which have already proven they are not reducing racial inequality, they are magnifying it. Its few bright spots are not in the area of race, making this racial inequality in education topic incredibly unique, stable, meaningful to millions of lives, and capable of sustaining a reasonable number of good affirmative cases.

Edelman, President of the Children's Defense Fund, Dec. ’15 ( December 13, 2015 Huffington Post “The Education Inequality Struggle” Marian Wright Edelman. http://www.commondreams.org/views/2015/12/13/education-inequality-struggle)

This has been a hard year for poor children and children of color in a gridlocked and cantankerous Congress. The Every Student Succeeds Act (ESSA) replacing the No Child Left Behind Act was enacted after gutting a strong federal role in education policy designed to protect these children and jeopardizing their opportunity for a fair and adequate education to prepare them for work in our globalizing economy. Over the past 50 years, under the Elementary and Secondary Education Act, too many states violated their responsibility to serve their poor and non-White children equitably, did not comply with the law and misused huge amounts of the funds intended for poor children for other purposes. With the loss of federal accountability in the new Act, I hope we will not see the mistakes of the past repeated and poor children fall further behind. In 1969 the Children’s Defense Fund’s parent body, the Washington Research Project and the Legal Defense Fund, conducted a thorough study of how funds from Title I of the landmark Elementary and Secondary Education Act were being spent through on-the-ground monitoring and examination of federal audit reports from states. In our report, Title I ESEA: Is It Helping Poor Children?, we answered a resounding “no” as states widely used federal money as general state aid for all their children without targeting it to eligible children most in need, sometimes to maintain still segregated and unequal schools, and squandered money intended to lift achievement levels of poor children on things like swimming pools in suburban White schools. Massive and continuing state and local violations of accountability and poor achievement levels for the neediest children resulted in passage during the George W. Bush Administration of the No Child Left Behind Act with bipartisan support including Senator Ted Kennedy and Congressman George Miller — which attempted to build in a much needed stronger federal accountability role. The new Every Student Succeeds Act begins a new era but without needed federal accountability and relying on hopes that all states will fulfill their crucial responsibility to educate all their children fairly and prepare them for work and life. To ensure we do not repeat the mistakes of the past, all of us — every parent, child and community advocate who cares about our nation’s future — will have to work very very hard. It is a national threat when we look at how our children in public schools are performing in the fourth and eighth grades in 2015 and see more than 75 percent of lower income children, more than 80 percent of Black children and more than 73 percent of Latino children cannot read or compute at grade level. What is a child going to do in a competitive globalizing world if he cannot read and compute at very basic levels, is unable to graduate from high school, or is shunted into a Cradle to Prison Pipeline™ accelerated by unjust zero tolerance school discipline and misdirected special education policies? There is some good news in the new Act. Thanks to the leadership of Senator Patty Murray and Representative Bobby Scott, working with Senator Lamar Alexander and Representative John Kline, some of the most harmful proposals were excluded including one that would have diverted Title I funds from high poverty to low poverty schools — the portability provision. The new law requires states to continue to track the performance of all children and subgroups of children by race, ethnicity, disability, and English language learners, with data breakdowns by gender. While states will set their own goals and timelines for academic progress, their plans will require federal approval. States will be required to help fix schools where student test scores are in the lowest five percent, where achievement gaps are greatest, and in all high schools where fewer than 67 percent of students graduate on time using evidence-based programs approved by the U.S. Department of Education. The Act takes significant positive steps to help students in foster care who have not had targeted attention before by state and local education agencies. Although public child welfare agencies have had obligations for ensuring educational stability for these children for a number of years, the new law helps ensure their school stability and educational success. This should help prevent students from needlessly changing schools — falling further and further behind with each move. It ensures they can remain in their same school when they enter foster care and change placements unless it is not in their best interest. It also requires these children be immediately enrolled in a new school without the typically required records when a school change is necessary to eliminate gaps in their education, and encourages the prompt transfer of records when a child in foster care enters a new school. Both

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school districts and child welfare agencies must have reciprocal points of contact for students in foster care, and both systems must have a point of contact for them at the state level. Local education and child welfare agencies also must collaborate to develop and implement a plan for transportation for those students who will need it to remain in their school of origin. New data on high school graduation rates for students in foster care will help track their progress. There are important improvements in the Act for more than 1.3 million children and youth experiencing homelessness also focusing on school stability and success. State and local education agencies must ensure their Title I plans promote identification, enrollment, attendance and school stability of these children. Local education agencies must reserve a portion of their education funding to support homeless children. State report cards must include disaggregated information on graduation rates and other achievement measures for these children. The new Act increases by more than 20 percent the authorized funding level for the McKinney-Vento Homeless Assistance Program which offers critical protections for homeless children. As hard as it has been for poor and other vulnerable children to move ahead and to make adequate progress even with federal accountability, it will be even harder without it. Parents, community leaders, public officials and child advocates must hold state, district and school leaders accountable for establishing and meeting performance targets for children. They must join with state and local education agencies to insist on increased resources to address the needs of the most vulnerable children. Child advocates and parents must ask for and review state and local school plans and notify the U.S. Department of Education and local media if they think school districts are neglecting some children or violating the new law. At stake are millions of children’s hopes, lives and futures. Those unable to read and compute and graduate from high school are being sentenced to social and economic death. They deserve better in the world’s biggest economy.

The history of race relations in the United States is deeply connected to education policy and practice, especially the conditions and effects of segregation. On one hand, trying to tackle institutional racism in education also requires learning the history of residential segregation and connecting housing policies to the solution. On the other, even a small intervention in the curriculums’ treatment of discrimination and history of racism can make a major difference in what we learn and the policies we advocate.

Reacquainting ourselves with that history is a step towards confronting it . When knowledge of that history becomes commonplace, we will conclude that Parents Involved was wrongly decided by the Supreme Court in 2007: Louisville, Seattle and other racially segregated metropolitan areas not only have permission, but a constitutional obligation to integrate. But this obligation cannot be fulfilled by school districts alone. As noted above, in some small cities, and in some racial border areas, some racial school integration can be accomplished by adjusting attendance zones, establishing magnet schools, or offering more parent-student choice. This is especially true – but only temporarily – where neighborhoods are in transition, either from gradual urban gentrification, or in first-ring suburbs to which urban ghetto populations are being displaced. These school integration policies are worth pursuing, but generally, our most distressed ghettos are too far distant from truly middle-class communities for school integration to occur without racially explicit policies of residential desegregation. Many ghettos are now so geographically isolated from white suburbs that voluntary choice, magnet schools, or fiddling with school attendance zones can no longer enable many low- income black children to attend predominantly middle class schools (Rothstein & Santow, 2012). Instead, narrowing the achievement gap will also require housing desegregation, which history also shows is not a voluntary matter but a constitutional necessity – involving policies like voiding exclusionary zoning, placing scattered low and moderate income housing in predominantly white suburbs, prohibiting landlord discrimination against housing voucher holders, and ending federal subsidies for communities that fail to reverse policies that led to racial exclusion. We will never develop the support needed to enact such policies if policymakers and the public are unaware of the history of state-

sponsored residential segregation . And we are not doing the job of telling young people this story, so that they will support more integration-friendly policies in the future. Elementary and secondary school curricula typically ignore, or worse, misstate this story. For example,  In over 1,200 pages of McDougal Littell’s widely used high school textbook, The Americans (2007, p. 494), a single paragraph is devoted to 20th century “Discrimination in the North.” It devotes one passive-voice sentence to residential segregation, stating that “African Americans found themselves forced into segregated neighborhoods,” with no further explanation of how public policy was responsible.  Another widely used textbook, Prentice Hall’s United States History (2010, pp. 916-917), also attributes segregation to mysterious forces: “In the North, too, African Americans faced segregation and discrimination. Even where there were no explicit laws, de facto segregation, or segregation by unwritten custom or tradition, was a fact of life. African Americans in the North were denied housing in many neighborhoods.”  History Alive! (2008, p. 423), a popular textbook published by the Teachers’ Curriculum Institute, teaches that segregation was only a Southern problem: “Even New Deal agencies practiced racial segregation, especially in

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the South,” failing to make any reference to what Ira Katznelson, in his 2013 Fear Itself, describes as FDR’s embrace of residential segregation nationwide in return for Southern support of his economic policies. Avoidance of our racial history is pervasive and we are ensuring the persistence of that avoidance for subsequent generations. For the public and policymakers, re-learning our racial history is a necessary step because remembering this history is the foundation for an understanding that aggressive policies to desegregate metropolitan areas are not only desirable, but a constitutional obligation. Without fulfilling this obligation, substantially narrowing the achievement gap, or opening equal educational opportunity to African Americans, will remain a distant and unreachable goal.

Federal and State action (arguably both within “the United States” as agent), including funding, can make a world of difference.

Linda Darling-Hammond, ’98 ( Spring 1998, Brookings Report, “Unequal Opportunity: Race and Education” http://www.brookings.edu/research/articles/1998/03/spring-education-darling-hammond)

This state of affairs is not inevitable. Last year the National Commission on Teaching and America's Future issued a blueprint for a comprehensive set of policies to ensure a "caring, competent, and qualified teacher for every child," as well as schools organized to support student success. Twelve states are now working directly with the commission on this agenda, and others are set to join this year. Several pending bills to overhaul the federal Higher Education Act would ensure that highly qualified teachers are recruited and prepared for students in all schools. Federal policymakers can develop incentives, as they have in medicine, to guarantee well-prepared teachers in shortage fields and high-need locations. States can equalize education spending, enforce higher teaching standards, and reduce teacher shortages, as Connecticut, Kentucky, Minnesota, and North Carolina have already done. School districts can reallocate resources from administrative superstructures and special add-on programs to support better- educated teachers who offer a challenging curriculum in smaller schools and classes, as restructured schools as far apart as New York and San Diego have done. These schools, in communities where children are normally written off to lives of poverty, welfare dependency, or incarceration, already produce much higher levels of achievement for students of color, sending more than 90 percent of their students to college. Focusing on what matters most can make a real difference in what children have the opportunity to learn. This, in turn, makes a difference in what communities can accomplish. The common presumption about educational inequality—that it resides primarily in those students who come to school with inadequate capacities to benefit from what the school has to offer—continues to hold wide currency because the extent of inequality in opportunities to learn is largely unknown. We do not currently operate schools on the presumption that students might be entitled to decent teaching and schooling as a matter of course. In fact, some state and local defendants have countered school finance and desegregation cases with assertions that such remedies are not required unless it can be proven that they will produce equal outcomes. Such arguments against equalizing opportunities to learn have made good on DuBois's prediction that the problem of the 20th century would be the problem of the color line. But education resources do make a difference, particularly when funds are used to purchase well-qualified teachers and high-quality curriculum and to create personalized learning communities in which children are well known. In all of the current sturm und drang about affirmative action, "special treatment," and the other high-volatility buzzwords for race and class politics in this nation, I would offer a simple starting point for the next century s efforts: no special programs, just equal educational 9 opportunity.

9 This particular evidence is updated last year…Dr. Derrick L. Campbell, Ed.D, https://classroomracismexterminator.wordpress.com/2015/06/10/why-do-anti-racism-policies-fail/

What are some of the anti-racism school policies in the United States?

According to the United States Department of Education Office of Civil Rights there are several laws that prohibit discrimination in programs or activities that receive Federal funds from the Department of Education. These laws prohibit discrimination on the basis of race, color, and national origin, sex, disability, and on the basis of age. The laws extend to all state education agencies, elementary and secondary school systems, colleges and universities, vocational schools, proprietary schools, state vocational rehabilitation agencies, libraries, and museums that receive funds from the United States Department of Education. However, with such strong

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Higher Education

It may make sense to specify just Pre-Secondary and Secondary Education as a way to narrow the focus, although debating all the aspects of Education Policy implicated in institutional racism or racial inequality would be possible and outstanding. Looking just at Higher Education would pose some different issues, but racial inequality is a massive problem there as well. Hate speech v. free speech, affirmative action, and public school funding are just the tip of the iceberg, with admissions, student retention, graduation rates, job placement; and recruitment, hiring and retention of faculty and staff all adding to the list. The “Speech Code” debate, as one of many examples, foreshadowed many contemporary issues about protecting groups from hate speech that is racially or sexually offensive.

Universities have begun to promulgate speech codes designed to eliminate racially and sexually offensive speech on campus. Are such codes a reasonable measure to protect minorities from harassment, or is the cure worse than the disease? n348 A popular topic in the years immediately preceding Obama's seminar, the Delgado and Stefancic CRT bibliography included numerous articles addressing [*560] the topic of "hate speech" n349 and University efforts to promulgate and enforce speech codes. n350 Commentators focused on the two manners to approach these regulations--First Amendment freedom of speech protection and protection of equality--each triggering a different standard of review and thus potentially producing a different outcome. n351 A consistently repeated theme in these articles is the divisiveness of the issue amongst civil libertarians who--accustomed to arguing on the same side--were now in adversarial camps. n352 One CRT author suggested that racial slurs and epithets were the equivalent of unprotected hate speech, n353 another looked to other countries to find examples of successful and unsuccessful efforts in dealing with hate speech, n354 and two others focused on the [*561] international community's adoption of the International Convention on the Elimination of All Forms of Racial Discrimination. n355 The intense response to these speech codes and their supporting academic arguments were documented in Delgado's article, Campus Antiracism Rules: Constitutional Narratives in Collision, n356 and would have provided an excellent resource to student groups choosing this topic. In addition to the constitutional arguments, CRT authors also focused on the effect of hate speech on "victims, . . . perpetrators, and society as a whole." n357 Obama asked his students to consider whether the protections afforded by these speech codes were reasonable or whether "the cure [was] worse than the disease?" The cited authors concurred that eradicating racist speech was paramount, n358 deeming the good faith belief that the "best cure for bad speech is good speech, and ideas that affirm equality and the worth of all individuals ultimately will prevail over racism, sexism, homophobia, and anti- semitism because they are better ideas" to be an "empty ideal." n359 However, one civil libertarian warned that open-ended endorsements of these restrictions "offer[] no principled way to confine racist speech regulations" and could "warrant the prohibition of all racist speech, and thereby cut to the core of our system of free expression." n360

anti-racism policies, racism continues to be prevalent in the United States. The United States Department of Education has reported that historically underserved students who attend public schools get punished more and has less access to veteran teachers. Specifically, Black students are suspended or expelled at rate three times more when compared to White students. Five percent of White students were suspended annually. Black students have a sixteen percent suspension rate. Black girls were suspended at a rate of 12 percent which is far greater than girls and boys of other ethnicities.

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The binary between individual rights and equal protection is essentially a debate about the mechanism for legal change when confronting a situation where minorities are excluded, denigrated, or even oppressed. For both sides, the law can create positive change although it is usually designed to favor privileged groups. The equal protection side is about preventing harm through restraint (defense)—preventing one group from intruding on another. The individual rights side is about providing tools to minorities to respond to, and upend, structures of domination (offense).

Richard Delgado, Prof. Law Seattle U., ’12 (100 Calif. L. Rev. 431, “Centennial Reflections on the California Law Review's Scholarship on Race: The Structure of Civil Rights Thought”

Recent controversy over the regulation of hate speech illustrates the emergence of this second binary paradigm. n97 Some scholars argue for protecting minority interests, particularly on school campuses, by invoking the values of the Fourteenth Amendment. n98 Others argue, however, that the best way to protect minorities from insult and invective is to strengthen, not weaken, protection for free speech and encourage minorities to avail themselves of it. n99 Minorities should learn to talk back to the aggressor; more speech is the best remedy for speech that is wrong or insulting. n100 Indeed, if minorities knew their own history, they would realize how important free speech has been for social progress and would hesitate to demand rents in the vital fabric of speech-protection. n101 These scholars cite occasions, like Martin Luther King, Jr.'s speech at the Lincoln Memorial, that moved a nation to tears and that illustrate the vital role speech can serve for struggling groups. n102 Some of the most influential pieces on this controversy, particularly the equality side, have appeared in the California Law Review. n103 A recent symposium on critical race theory contained two pieces illustrating the equality view n104 and came down on the side of hate-speech regulation. n105 Pointing out how demeaning speech can easily silence its victim, proponents of the equality view noted that a rain of insults can end up reducing, rather than increasing, the net amount of interchange in society. n106 Two note how difficult it has been for judges to escape the influence of a free-speech narrative with long historical roots. n107 Others debunk some of the mantras and easy maxims of the free-speech camp, including the idea that hate speech can serve as a pressure valve allowing hateful sentiments toward minorities to dissipate safely. n108 2. Other Examples of the Individual Rights-Equal Protection Paradigm Many areas of civil rights jurisprudence exhibit this same dichotomous quality, with one group of authorities calling attention to the manner in which a social practice endangers equality or equal respect, and another weighing in for a liberal or libertarian solution. For example, an article by Robert Post in the California Law Review questions whether the legal system can or should regulate hate speech in order to promote the values of democratic dialogue. He notes, "American courts have consistently opted to protect individual autonomy against regulations of public discourse designed to maintain the integrity of collective thinking processes." n109 Another, in the same issue, by Phillip Johnson argues against political correctness and group-think and urges greater respect for individual liberties, including religious freedom and the right to dissent. n110 Many of the authors on both sides of this fence are fierce champions of progressive change and consider themselves friends and supporters of minority causes. But, as we have seen, one group believes that the best way to achieve this is by framing violations in broad equal-protection terms, while another favors strengthening the exercise of individual rights and freedoms.

The early affirmative action debates provide the platform for policies involving admissions, hiring, and three areas that then-Prof. Obama teaching Law in Chicago, divided into “Minority Set-Asides,” “Class-Based Admissions,” and the “Meaning of Merit.”

Affirmative Action Affirmative action, a hotbed of controversy, n361 was frequently referenced in the CRT annotated bibliography. n362 While most authors in the bibliography supported CRT ideals, there were some, such as Stephen Carter, that challenged the perspective generally embraced by CRT scholars, thus providing a springboard for CRT responses to his article. The perspectives of black conservatives, like Carter and Randall Kennedy, were more readily validated by CRT scholars as these authors had similar life experiences as people of color. n363 The future of affirmative action, its costs and benefits, and the rationale behind

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the remedy were all pervasive themes that Obama's students would have encountered while preparing for a group presentation. The landscape of affirmative action scholarship, like that of race and criminal law, was wide; therefore, Obama divided the topic into three specific areas where there was substantial scholarship and hearty debate. a. Minority Set-Asides

In Croson, Justice O'Connor argued that many minority set-aside programs are little more than race-based variants of the pork-barrel. Many commentators share this view, noting that minority contractors don't necessarily hire the poor and working--class blacks that suffer most from the legacy of racial discrimination, and are often serve as fronts for white contractors. Other commentators argue that public contracts have been a well-worn path for other immigrant groups to establish a foot-hold in business, and that the courts are [*563] simply changing the rules now that blacks control various levers of government. n364

The decisions rendered in Fullilove v. Klutznik n365 and City of Richmond v. J.A. Croson n366 both directly addressed minority set-asides in the realm of government contracts--one upheld and one struck down. n367 Obama credited Justice O'Connor with the argument that "many minority set-aside programs are little more than racebased variants of the pork-barrel." While this language is not present in the Croson opinion, Justice O'Connor did appear to reject the remedy of societal discrimination against minorities and repeatedly cited a lack of "probative evidence" of particular discrimination against minorities in Richmond's construction industry. n368 One CRT author deemed this analysis as "denying the actual victimization of black beneficiaries" n369 and another contended that "she seems to say that the city council members can't be trusted because they are black people voting on an affirmative action law." n370 An article not included in the CRT bibliography analyzed the decision from a different perspective contending: "[t]he City of Richmond Court bears an uncanny resemblance to the Lochner Court, picking and choosing among state policies according to the decisionmakers' personal visions of the just society." n371

Interestingly, although the Croson opinion provides a good perspective of the spectrum of the Court's positions on affirmative action--from Scalia's adamant opposition to Marshall's unbridled support n372 --neither the opinion, nor a summary [*564] by Derrick Bell, was included in the reading list. However, Thomas Ross' article, The Richmond Narratives, was included on Delgado and Stefancic's bibliography and would have provided sufficient background to serve as a catalyst for student groups to research other perspectives. n373 b. Class-based, Rather Than Race-based, Affirmative Action in College Admissions

As more and more universities chase after the pool of minority students with high SATs (students who frequently come from middle-class families and have gone to prep schools), some have argued for the replacement of race-based affirmative action with some sort of class/income based test. Such proposals go to the heart of the affirmative action debate, and our contrary understanding of the wrong it's designed to remedy: is it designed to make up for current racial/cultural bias against minorities? Or historical discrimination that has resulted in higher poverty rates, etc. among minorities? Or to promote diversity of viewpoints in the range of [U.S.] institutions? n374 The Bakke n375 and Defunis n376 decisions brought this issue to the forefront as the nation's elite universities faced challenges regarding their process for enrollment decisions and their rationale for making them. Rather than arguing for the advancement of one measure of affirmative action over another, the CRT articles focused on the value of affirmative action per se and the controversy within the academic and political communities that surrounded it. Derrick Bell dismissed any notion of "innocent whites" that were negatively affected by affirmative action decisions. n377 Richard Delgado alleged that affirmative action critics strategically [*565] "label[] problematic, troublesome, and ethically agonizing a paltry system that helps a few of us get ahead, critics neatly take our eyes off the system . . . [unjustified preferences in jobs and education resulting from old-boys network and official laws that lessened the competition] that enabled [whites] to develop rules and standards of quality and merit that now exclude us, make us appear unworthy, dependent (naturally) on affirmative action." n378 Jerome McAllister Culp, Jr. championed the role of affirmative action: "I believe that universities have a role to play in ending the racial apartheid that still exists in this country, and that affirmative action, diversity, and multiculturalism have an important role to play in helping society--including higher education and law schools--achieve that goal." n379 However, Culp noted that "[p]eople use affirmative action as an excuse to increase racial stereotypes" n380 and questioned the impact of the programs and the public's reaction to them. n381 Per Bell, "[t]he important question, of course, is whether the debilitating effects of racial discrimination can be remedied without requiring whites to surrender aspects of their superior social status." n382 From a slightly different perspective, an article not included in the CRT bibliography offered the myriad of reasons apart from race that are routinely used to determine university admissions and argues the use of the term "reverse [*566] discrimination" is merely a political device designed to generate a negative perspective of quotas or other non-merit devices to devices to determine enrollment standards. n383 Ultimately, the vast majority of articles available in the spring of 1994, would have led student groups seeking to present alternatives to solely race based arguments to find that "affirmative action demands the paradoxical solution of first taking account of race in order to get to a world where it is not taken into account." n384

The Meaning of Merit

With affirmative action increasingly justified on the basis of the desire for a diversity of view-points, the very notion of a fixed meaning to the idea of merit has come under attack? Is the notion of merit inherently political, embodying the preferences of the

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dominant group? Or is it possible to agree on some common standards by which jobs and university slots are allocated? Does it depend on the task? (e.g. law professors v. airline pilots). Do minorities gain or lose when fixed notions of merit give way to more flexible standards for allocating goods and privileges? n385 A myriad of possible approaches to this topic were contained within the CRT scholarship included in Delgado and Stefancic's bibliography. n386 Addressing the meaning of merit primarily in the context of affirmative action hiring preferences and tenure decisions, as well as whether minority scholars were truly invited into the "inner circle" of the legal academy. If a student group opted for a more academic or scholarly discussion of "merit," there were articles available to provide such a perspective; n387 however, the CRT authors' personal narratives were, arguably, more captivating.

[*567] For example, in an article focusing on the power of words, Charles Lawrence recounted his experiences as a child during recess. During recess, he dismantled the invisible wall separating him from the white children on the playground--he became one of the inner circle. n388 He remembered standing shoulder-to-shoulder in that circle with his white classmates each day as they performed the pre-game ritual of playing "enie menie minie mo." Lawrence described the physical sensations of waiting to see what or who would be caught by the toe during the pre-game ritual of playing. n389 This metaphor is a powerful tool--not only to demonstrate the lingering effect of the harm caused by words--because it pulls on a thread common in our humanness of wanting to be included and valued as equal members of the game. Regardless of the advances Lawrence felt he made with his classmates in disassembling the wall, when the pre-game ritual began the menacing wall reassembled. n390 Similarly, regardless of the advances minority scholars made within legal academia, the divisive wall was perceived to perpetually reassemble whenever issues of "race" were raised. In addition to the "fantasy" writings of Derrick Bell, many CRT authors used narratives similar to Lawrence's to bridge the chasm of race by retelling common experiences from the perspective of a person of color. The CRT scholars consistently perceived that majoritarian scholars and members of the judiciary were purposefully refusing to engage them in academic discourse or the legal process addressing civil rights issues. n391 The authors advanced many theories for this exclusion: the desire to "control the assumptions underlying [legal] discourse"; n392 [*568] the preference for articles that represent traditional approaches to legal scholarship; n393 and a lack of appreciation at best, and attempt to silence at worst, of the voices and experiential perspective of minority scholars. n394 Derrick Bell's imaginary tales regarding the hiring practices of minorities at Harvard n395 did not seem as far-fetched in light of the statistical representation of minority faculty at Harvard law school and comments from a Washington Post article the following year that the law school was unable to find any qualified female applicants of color to invite to join the law school faculty. n396 While these remarks were criticized as "pure sophistry and at its heart a disguised form of racism," n397 the limited pool of traditionally "qualified" minority candidates cannot be denied. n398 Student groups may have gravitated to comments by Richard Posner, a critic of affirmative hiring programs, who questioned its effect on legal scholarship and hiring standards. n399 Although purportedly detached from the Chicago law faculty, Obama was one of the few minority professors at the [*569] University of Chicago during his tenure n400 and may have had personal insight to share during the class discussion of this topic.

School financing—is public education a right and how do States construct their systems for financing public schools.

Public School Financing

With white and black middle class families increasingly choosing to exit from the public school system, many local public school districts are on the verge of financial collapse. Some commentators have argued that a school system based on property taxes necessarily creates a separate and unequal school system, and have challenged such school financing systems under state constitutional mandates of equal educational opportunity. How have such suits fared, and what does their success or failure say about the possibilities of bringing about genuine equality of opportunity for generations to come? n401 Regardless of how ideological aspirations of equality in educational opportunities are touted, choices related to funding those opportunities continue to reveal the limitations to the commitment. After the Supreme Court decided San Antonio School District v. Rodriguez n402 in 1973--determining that public education was not a fundamental right and decisions made on the basis of wealth were not subject to strict scrutiny--the states were given substantial freedom in determining how to best fund their public schools. n403 Various funding mechanisms designed by the states were challenged unsuccessfully in the courts until 1989, when three state courts declared their state's school financing system unconstitutional. n404 These decisions appeared to rejuvenate those challenging the current funding systems

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based on property taxes and the resulting disparity in educational opportunities for the state's entire student populace. Consequently, this topic generated significant academic commentary as individual states began to wrestle with the constitutionality of their own funding structures. n405 However, contrary to the other topics on the group presentation syllabus, neither the titles nor the summaries on the CRT bibliography contained any obvious reference to public school financing. For this presentation topic, Obama encouraged students to look at the results of lawsuits designed to challenge the constitutionality of school finance based on property taxes and to analyze the results to judge the "possibilities of bringing about genuine equality of opportunity for generations to come." This was the only topic that specifically asked students to apply their analysis to the future rather merely present opinions related to current and past issues.

Finally, we offer this evidence, not as a conclusion, but as a note that this area is a great beginning and almost all of the arguments discussed below have a specific connection to education and racial injustice. For example, the capitalism debates go a few levels deeper than they have on past topics…

Racial capitalism occurs in the educational context frequently

Nancy Leong, Assistant Professor, University of Denver Sturm College of Law, ’13 (June, 126 Harv. L. Rev. 2151, “RACIAL CAPITALISM”)

In the educational context, consider Diallo Shabazz . Shabazz did not seek commodification of his racial identity. But when administrators at the University of Wisconsin engaged in racial capitalism by Photoshopping him into the school's admission brochure, his response likewise reflected the principles of identifying, critiquing, penalizing, and discouraging racial capitalism, all with the overarching goal of facilitating productive discourse . Shabazz objected publicly to the use of his racial identity and brought attention to his injuries in a concrete way by filing a lawsuit. The form of relief he sought - a "budgetary apology" n366 - made clear that the school had commodified his identity. Moreover, Shabazz found a way to acknowledge and reject commodification simultaneously . He acknowledged the commodification by imposing a monetary cost on the school but rejected the thinking implicit in commodification by seeking forward-looking measures that would ameliorate racial inequality rather than simply seeking financial gain for himself. In Cohen's terms, this strategy framed the transaction in a way that expressed the goal of racial equality rather than instantiating racial capitalism. n367 The approach to dismantling racial capitalism I describe here also finds traction in the workplace. Individual nonwhite employees who find themselves constantly pulled into photos for the company website or overburdened with obligations to mentor more junior employees who happen to be the same race can call their employer's attention to this use. n368 Better still, others can communicate the same message with less risk. For example, white allies of the nonwhite employee or racial affinity groups within the workplace can communicate the same message with far less likelihood of negative individual repercussions. In so doing, they may be able to gain input into the employer's practices, including outreach, hiring, and marketing. Ultimately, such input may result in the employer changing its practices in ways that both improve racial relations in the workplace and reduce the incidence of racial capitalism. [*2224] Legal mechanisms offer a valuable opportunity to discourage racial capitalism according to the principles I have described. Again, I save for other work the detailed analysis that such mechanisms deserve, but I will offer a few preliminary ideas here, which I flesh out elsewhere. n369 First, the torts of right of privacy and right of publicity should be explicitly expanded to allow individuals to control institutions' use of their identities, racial and otherwise. Second, Title VII doctrine should be reformed in two ways. It should be expanded to provide explicit protection to non-job-related racial identity performance, which would mitigate the market tendency to make some racial commodities more valuable than others. And employers should receive immunity (roughly analogous to absolute immunity in constitutional tort law) for admission of past racial wrongdoing so long as they undertake good faith remedial measures, which would promote the honest dialogue that transition away from racial capitalism requires. Third, intellectual property law should adopt the European model recognizing so-called moral rights - in particular, the right to the integrity of a particular work - and should extend that right to protect many important forms of racial self-presentation from corruption. And finally, we should understand equal protection doctrine to recognize interests other than diversity as valid justifications for affirmative action, and also to

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recognize the purpose underlying the diversity rationale itself as a mechanism for righting past racial wrongs. Aside from fulfilling the overarching goal of progress toward eliminating racial capitalism, the transitional period I have described is more tolerable because it has some limited benefits in reshaping the way that we think about race. If, for example, employees see that nonwhiteness is valued in the workplace, or if students see that nonwhiteness is valued at their college, some may come to agree that it is valuable. Katherine Bartlett argues that showcasing women and people of color in leadership positions may result in such benefits because "the presence of female and minority leadership positions operates indirectly to reduce implicit bias" n370 and, more broadly, because "positive attitudes strengthen positive attitudes."

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Criminal Justice

While systems of criminal justice are foundational to the mission of the modern state, generally going hand-in-hand with their purpose to protect the people and punish wrongdoers, they are also vehicles that can be quickly turned against their citizens and used to reduce groups of people to shadows of their self, stripped of their rights and unable to access justice in the same way as their peers. Unfortunately our system of criminal justice, despite the stated aims of unbiased service from the American legal system, is not color blind. Even if it is assumed that not all of the individuals who work within the system are doing so with intent, the power of the police and courts has been used to drive a wedge between minorities in this country and the officials who are charged with keeping the peace. There is a huge amount of racial inequality in the way that people are treated in the system, from the way that laws are created to the way people are held, and debating racial inequality at all in the United States almost requires a look at how the criminal justice system has been used to reduce the access to justice for certain racial minorities.

Nellis, Ashley; Greene, Judy; and Mauer, Marc 08 (“Reducing Racial Disparity in the Criminal Justice System A Manual for Practitioners and Policymakers” The Sentencing Project, 2008. SDH. http://www.sentencingproject.org/doc/publications/rd_reducingracialdisparity.pdf)

Statistics at the community and national level show the cumulative impact of racial disparity through each decision

point in the criminal justice system . Decisions made at one stage contribute to increasing disparities at subsequent stages. For example, if bail practices result in minorities being detained before trial at greater rates than similarly situated whites, they will also be disadvantaged at trial and sentencing by having reduced access to defense counsel, community resources, and treatment options. Disparities in the system can be seen in the following examples:

• The widely-discussed phenomenon of “driving while black” illustrates the potential abuse of discretion by law enforcement. A two-year study of 13,566 officer-initiated traffic stops in a Midwestern city revealed that minority drivers were stopped at a higher rate than whites and were also searched for contraband at a higher rate than their white counterparts. Yet, officers were no more likely to find contraband on minority motorists than white motorists.3 • A New York state study found that minorities charged with felonies were more likely to be detained than whites. The researchers concluded that 10 percent of minorities detained in New York City and 33 percent in other parts of the state would have been released prior to arraignment if minorities were detained at the rate of comparably situated whites.4 • Thirty-eight percent of prison and jail inmates are African American,5 compared to their 13% percent share of the overall population.6 • Latinos constitute 19% of the prison and jail population7 compared to their 15% share of the population.8 • A black male born in 2001 has a 32% chance of spending time in prison at some point in his life, a Hispanic male has a 17% chance, and a white male has a 6% chance.9

The primary focus of this manual is on decision making within the adult criminal justice system but the impact of racial disparity is clearly seen in the juvenile justice system, too. While African American youth represent 17% of their age group within the general population, they represent: 46% of juvenile arrests, 31% of referrals to juvenile court, 41% of waivers to adult court10

Racial disparity challenges the basic values upon which the criminal justice system rests. To the extent that such disparity is a result of racism (that is, discrimination based on race), it represents an outright rejection of the principle of equal justice. A commitment to values of justice, fairness and public safety compels professionals to vigorously address disparate treatment when and where it exists . A sense that the criminal justice system is fair is essential to the functioning of a democratic society. Thus, there must be a nexus between societal values and personal values: fairness and a commitment to due process is an absolute societal and personal dictum. Without this commitment, confidence in the rule of law erodes. For example, since the police are the gatekeepers to the criminal justice system, fundamental mistrust and suspicion of police destroys the partnership between law enforcement and the community

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at the most direct contact point between the public and the system. Thus, proactive approaches to building trust between law enforcement agencies and communities are essential. Law enforcement and criminal justice agencies must publicly communicate their recognition of the fact that a racially imbalanced system will have a negative impact on families, communities and the larger society. In order for a democratic society to function effectively, communities must support law enforcement as an essential ingredient to good government. Law enforcement agencies must work in an organized and very public fashion to instill that trust. Similarly, the willingness and commitment of citizens to understand and respect the sentencing process is highly dependent on a sense that the system reflects societal values. In recent years, the criminal justice system has often served as a focal point for community frustration about racial problems in the larger society. For this reason, it is vitally important that unwarranted racial disparities are addressed aggressively and

publicly .

Specifically, the criminal justice system should find its success—or state of least harm—when the system punishes crime by incarcerating only those responsible for criminal behavior. If any persons are stripped of their freedom without such incarceration being a direct result of their participation in an act that breaks a just law, then there is a failure at some point. This failure exists today at an extremely high rate for minorities, providing evidence that a discussion about the various stages of the criminal justice system is needed in order to identify what must be changed to provide racial minorities with the protections they have a right to obtain.

Mauer, Marc 09 (“Testimony on Racial Disparities in the Criminal Justice System” Prepared for the House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security; 29 October 2009. SDH. http://www.sentencingproject.org/doc/publications/rd_mmhousetestimonyonRD.pdf)

A series of studies conducted over the past thirty years has examined the degree to which disproportionate rates of incarceration for African Americans are related to greater involvement in crime. Examining national data for 1979, criminologist Alfred Blumstein concluded that 80% of racial disparity could be explained by greater involvement in crime, although a subsequent study reduced this figure to 76% for the 1991 prison population.1 But a similar analysis of 2004 imprisonment data by sentencing scholar Michael Tonry now finds that only 61% of the black incarceration rate is explained by disproportionate engagement in criminal behavior .2 Thus, nearly 40% of the racial disparity in incarceration today cannot be explained by differential offending patterns. In addition, the national-level data may obscure variation among the states. A 1994 state-based assessment of these issues found broad variation in the extent to which higher crime rates among African Americans explained disproportionate imprisonment.3 Thus, while greater involvement in some crimes is related to higher rates of incarceration for African Americans, the weight of the evidence to date suggests that a significant proportion of the disparities we currently observe is not a function of disproportionate criminal behavior.

Empirics point conclusively to an extremely overrepresented minority population within the criminal justice system, which can only increase other types of inequality in the country.

Hartney, Christopher and Vuong, Linh 09 (“Create Equal: Racial and Ethnic Disparities in the US Criminal Justice System” NATIONAL COUNCIL ON CRIME AND DELINQUENCY; March 2009. SDH. http://www.nccdglobal.org/sites/default/files/publication_pdf/created-equal.pdf)

African Americans make up 13% of the general US population, yet they constitute 28% of all arrests, 40% of all

inmates held in prisons and jails, and 42% of the population on death row . In contrast, Whites make up 67% of the total US population and 70% of all arrests, yet only 40% of all inmates held in state prisons or local jails and 56% of the population on death row. Hispanics and Native Americans are also alarmingly overrepresented in the criminal justice system. 1 This overrepresentation of people of color in the nation’s criminal justice system, also referred to as disproportionate minority contact ( DMC), is a serious

issue in our society . DMC has been the subject of concern in the juvenile justice system since 1988, when a federal mandate required states to address the issue for system-involved youth. This mandate led to an increase in the information on racial disparities in the juvenile system and

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efforts to reduce these numbers. However, no such efforts have been made in the adult system. This report documents DMC in the adult criminal justice system by tabulating the most reliable data available. It does not seek to thoroughly describe the causes of DMC nor does it perform an advanced statistical analysis of how various factors impact disparity. Disproportionate representation most likely stems from a combination of many different circumstances and decisions. It is difficult to ascertain definitive causes; the nature of offenses, differential policing policies and practices, sentencing laws, or racial bias are just some of the possible contributors to disparities in the system. Some studies have begun to explore these issues and are so cited, but the purpose of this report is to describe the nature and extent of the problem. DMC is problematic not only because persons of color are incarcerated in greater numbers, but because they face harsher penalties for given crimes and that the discrepancies accumulate through the stages of the system . This report presents the data on DMC in arrests, court processing and sentencing, new admissions and ongoing populations in prison and jails, probation and parole, capital punishment, and recidivism. At each of these stages, persons of color, particularly African Americans, are more likely to receive less favorable results than their White

counterparts . The data reveal that, overall, Hispanics are also overrepresented, though to a lesser extent than African Americans, and that Asian Pacific Islanders as a whole are generally underrepresented. Correcting DMC in the adult system will require improvements in state and federal data collection. In contrast to juvenile DMC data, much of which can be found from a single source and can often be compared across the stages of the juvenile system, data for the adult system are only available through several independent federal and state data collection programs. Each dataset uses different sampling methods, in effect, obscuring how DMC accumulates in the system. All data in this report reflect national figures; when possible, data by state are also presented. All data reported are categorized by race and, when possible, by ethnicity. The latest available data are usually from 2003 to 2006. Most data are reported as a Relative Rate Index, a ratio of the rates at which people of color and Whites are represented in the system relative to their representation in the general population. Failing to separate ethnicity from race hides the true disparity among races, as Hispanics—a growing proportion of the system’s population—are often combined with Whites, which has the effect of inflating White rates and deflating African American rates in comparison. Asian American system populations, while small in comparison to the other groups, also need to be disaggregated. Disaggregation of “Asian,” for instance, allows researchers to assess subgroups such as Vietnamese, Chinese, Indian, Japanese, etc., some of which may have disproportion even when the overall group does not. Despite the shortcomings of the data, this report shows clearly that people of color are overrepresented throughout the adult system and that the system often responds more harshly to people of color than to Whites for similar offenses.

It is worth repeating that the problems in our criminal justice system are not always due to “conscious racism” by individuals, although that certainly exists, but can be found in the norms and practices that our legal system blindly follows. These can be changed with concerted efforts, allowing activists, legislators and citizens to have direct impact through policy changes.

Mauer, Marc 11 (“Addressing Racial Disparities in Incarceration” The Prison Journal, September 2011, vol. 91 no. 3 suppl 87S-101S 2008. SDH. http://www.sentencingproject.org/doc/publications/Prison%20Journal%20-%20racial%20disparity.pdf)

While differential involvement in crime (as measured by arrests) explains a significant portion of high rates of African American imprisonment, so, too, do policy and practice decisions contribute to these outcomes . This does not suggest that such decisions are necessarily a function of conscious racism by actors in the system, but they frequently may include unconscious bias in the use

of discretion, allocation of resources, or public policy decision making . Examinations of case processing over time also demonstrate that racial disparities in the justice system are cumulative. That is, disproportionate processing at one stage often contributes to widening disparities at succeeding points. For example, defendants who are detained in jail prior to trial are more likely to be convicted and receive lengthier prison terms than defendants released on bond (Schnake, Jones, & Brooker, 2010).

The remainder of this section, as a starting point for debating this area, will discuss legislation, the courts, corrections, policing, and women. Overall, we think debating this area would be educational and absolutely central to a topic about race and racial injustice in the United States. The only real objection to including this area in all of the wordings would be the degree of overlap between this and some portions of the legalization topic a few years ago. Our response to concerns about that overlap is three-fold:

1. Let the community decide by creating some wordings that do not include the criminal justice area. A racial inequality topic about voting rights, housing, and education would be outstanding, for example.

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2. There really isn’t as much overlap as it seems. Many teams did not discuss race at all and the crux of the legalization topic was about certain crimes of vice that should be legalized, not about the underlying conditions of racism.

3. The overlap that does exist, although relatively small, is part of an important topic that needs as much research and focus as possible. It may also be feasible to limit “criminal justice system” to focus on “police misconduct,” “rates of incarceration,” or something that is focused on disparate impact and treatment instead of a particular crime.

Regardless, the fact that the community debated about gambling, prostitution, and certain illegal drugs should not prevent us from taking on the questions of racial inequality in the United States as directly as possible.

1. Legislation

The problems of racial inequality in the criminal justice system start at the very top, in the way that our laws are made. Before the police or courts even enter the picture, representatives and members of government create policies that lay the groundwork for unequal treatment of racial minorities. While changing these laws does not solve the problem of, for example, police brutality or unequal sentencing, it does level the playing field in some way, removing some of the laws that cause racial inequalities before there is even any human contact. Well-known areas of policy that have had a hugely negative effect on minorities include the War on Drugs and Three-Strikes legislation. Discussion of these issues and specific pieces of legislation is not only crucial in reducing inequality moving forward, but could have prevented many of the more negative outcomes in the past.

Legislatures at the federal, state, and local level create the criminal justice system by enacting the laws that define prohibited behavior, the penalties for violating those laws, and the processes by which cases are to be disposed and sentences are to be determined. County and city legislatures also pass local ordinances that are enforced by the police and the criminal courts. Many of these laws have a disproportionate impact on minority communities , which could have been foreseen before the laws were passed. We now briefly review a few areas that have been significant in this regard.

The series of drug policies that collectively became known as the War on Drugs has had a profound impact on both the number and composition of people who are incarcerated for a drug offense. As we have noted, people of color are imprisoned for drug offenses at rates that greatly exceed their proportion of the drug-using population. This is due in part to law enforcement practices, but is also related to drug sentencing policies that have been enacted since the 1980s at both the federal and state level. Every state now has some form of mandatory sentencing, often applying to drug offenses. At the federal level, the mandatory five- and ten-year sentencing policies adopted for crack cocaine offenses in the 1980s have been the subject of much analysis and criticism for the racial disparities they produce relative to powder cocaine offenses. While the federal sentencing guidelines for crack cocaine offenses were amended by the U.S. Sentencing Commission in 2007, the legislatively enacted mandatory penalties are still in place. Many analysts have contended that the racial disparities resulting from these laws could

have been predicted in advance had lawmakers engaged in a rational assessment of likely outcomes.22 Had these predictable effects been identified and considered early on, different responses to the drug problem might have been developed. Representatives of the communities most likely to be affected might have been actively engaged in thinking through a more comprehensive, less damaging, and more effective strategy for addressing local drug

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problems. More reasonable distinctions between minor and major drug offenses might have been enacted. Studies indicate that many drug sellers are in the drug trade primarily to support their own addiction: a survey of federal and state inmates in 2004 showed that 17% of state and 18% of federal inmates committed their offense to obtain money for drugs. About half of the inmates (53% of state and 45% of federal inmates) met the Diagnostic and Statistical Manual of Mental Disorders (DSMIV) criteria for substance abuse or dependence.23 The figures among those in jail are even starker: 68% of jail inmates surveyed met the criteria for substance abuse or dependence.24 In many of these cases, enrollment in a substance abuse treatment program would have been a more constructive option than prison, where offenders are likely to receive insufficient treatment for their problem. A range of alternative responses for minor offenders, including broadly available drug treatment, might have been established. The discretion required to accurately distinguish between low-level drug sellers and professionals in the drug trade might have been left to the courts, which explore the actual circumstances of the offense and the histories of the offenders. Large-scale public financing of policing and incarceration might have been shifted to a significant degree for education, prevention, and treatment programs in the communities where the problem was most pronounced.

In 1993 states began passing laws that assign mandatory sentences of life without parole for three-time repeat felony offenders. By 1996, twenty-five states had passed some type of three-strikes legislation, and in some states a mandatory life sentence resulted after two felony offenses. Not unlike many criminal justice policies that quickly gain public support, the momentum for three-strikes legislation was largely prompted by a single but highly publicized event: the abduction and murder of Polly Klaas in 1993 by a repeat offender in California. Legislation motivated by such tragic incidents can encourage emotional, overly-punitive policy responses. The end result of three-strikes laws around the nation has been the costly and excessive imprisonment of many offenders who are near or at the end of their criminal careers anyway; these consequences have fallen disproportionately on

minorities . What is more, the legislation appears to have had no effect on lowering crime.25

The political furor over crime during the past two decades has driven legislatures to pass increasingly punitive laws resulting in enormous growth in prison and jail populations. At the end of 2006, one in 31 individuals was under some sort of criminal justice supervision (i.e., prison, jail, parole, or probation),26 and the majority of them were people of color. The enormous increase in the use of jails and prisons has taken place without persuasive evidence indicating that incarcerative strategies are the only, or even the most effective, approach to controlling crime. Very little by way of job training, rehabilitation, or education occurs in prison, so when inmates are released they face myriad obstacles as they attempt to reenter society. Sentencing practices need to consider both the short-term and long-term consequences of choosing imprisonment over sentencing alternatives that have demonstrated success. Thorough legislative impact analyses such as legislatively mandated racial impact statements would identify probable disproportionate racial consequences and signal the need to seek alternative problem-solving strategies to eliminate or significantly reduce such effects. In 2008, both Iowa and Connecticut passed legislation that requires lawmakers to consider the impact of proposed sentencing laws on racial and ethnic groups. Requirements to conduct racial impact analyses can promote a more deliberative strategy development process that encourages the use of public and private resources in the community.27

The racial context of legislation that negatively impacts minorities is often ignored, in favor of scholarship that frames the problems in more general ways.

For example, various articles addressed the imposition of additional penalties on pregnant minorities. Sapphire Bound! challenged the "rigid economic, social, and political categories that a racist, sexist, and class-stratified society would impose upon ['young, single, sexually active, fertile, and nurturing black women']" such applied to Crystal Chambers--a young, single, pregnant black woman discharged from her position as a teacher at the Omaha Girls Club. n263 In an effort to prevent "negative role modeling" for the young girls who attended the Omaha Girls Club, the Club's policy included dismissal "for

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single parent pregnancies." n264 The author noted the "policy appeal" of this outcome for those, such as the Club's white administrators and the court system, who lack an "understanding of the historical oppression of black women and no appreciation of their contemporary cultural practices." n265 Non-CRT authors similarly challenged the judges and legislators who made and enforced such laws. However, rather than seeing the laws as a demonstration of racial bias, non-CRT authors alleged the law attacked women in the name of fetal protection . n266

With regard to the issue of prosecution of drug use during pregnancy, CRT authors questioned prosecutorial discretion as applied to selective prosecution of drug-addicted mothers. n267 As most of the women prosecuted under these statutes were black and addicted to crack cocaine, n268 criminal prosecution of these mothers exemplified society's negative perception of this behavior and desire to regulate it. n269 CRT scholars argued that the "society" that set the norms and determined who was culpable was generally not the same "society" that was consequently prosecuted. n270 Obama's query of the correlation between the reduced ability to hire legal assistance and criminal sentencing was on point according to one CRT scholar who found: Most of the drug-addicted mothers that were prosecuted plead guilty, but "[o]f those who contested the charge none were convicted." n271

--- War on drugs Some discussion in the debate community about the War on Drugs happened during the legalization topic, but a deeper look at how our legislation impacts minorities every day is needed. This specific area of policy has had devastating impacts, and its application on the streets is almost fundamentally tied to race.

Alexandre 13, Michele. "First Comes Legalization, Then Comes What: Tips for Washington and Colorado to Help Break the Cycle of Selective Prosecution and Disproportionate Sentencing." (2013).( http://heinonline.org/HOL/Page?handle=hein.journals/orglr91&div=49&g_sent=1&collection=journals#1279) (accessed 7/31/2014) While racial profiling is a documented problem with law enforcement in general,4 the record is even more replete with examples of race-based profiling in the implementation of drug laws.5 This practice has led to selective arrests and prosecution for petty drug crimes, in turn resulting in the systematic incarceration of people of color.6 Scholars and citizens alike have registered their outcry against current drug policies. Some scholars, for example, assert that courts only care about providing symbolic equality to traditionally subordinated groups without addressing the substantive inequities they experience in the legal system.7 Others, notably Michelle Alexander, label the mass incarceration and veritable caste system resulting from biased enforcement

of drug laws the “New Jim Crow.”8 Regardless of the label, this pattern of subjugation is real, and may even worsen, if burgeoning reform efforts are not designed to ameliorate it.

This profiling happens despite no empirical evidence that racial minorities are any more likely to be drug users than any other group.

Moore, Lisa 08 (The Department of Health Education, San Francisco State University) “Who’s Using and Who’s Doing Time: Incarceration, the War on Drugs, and Public Health” Am J Public Health. 2008 May; 98(5): 782–786. http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2374804/ There are discrepancies surrounding rates of drug use among the general public and the population serving prison time for nonviolent, drug-related offenses. In addition, social and health policy issues are created by these differences left undetected or unaddressed by those who have created them: the criminal justice system and the current political agenda. Public health as a discipline is now in a prime position to call attention to these discrepancies, design programs to assist both the incarcerated individuals and their families, and create the social environment necessary to change the political climate and social policy surrounding who’s using and who’s doing time. Drug use in suburban areas goes unchecked and underreported, while people of color are profiled in urban areas as potential drug users and dealers. Although there is a serious drug problem in urban, minority communities, the problem also exists in every other community. Profiling is more difficult to conduct in suburban areas; therefore, cities are most often the locations in which minorities are

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arrested for nonviolent drug-related offenses. Although the current rates of illicit drug use are roughly the same between Blacks and Whites (7.4% and 7.2%, respectively) and lower for Lations (6.4%), the number of White drug users is vastly greater than that of drug users of color because White people are a larger share of the population. In 1998, Whites composed 72% of all illicit drug users compared with the 15% share contributed by Blacks. Whites were nearly 5 times more likely than are Blacks to use marijuana and were 3 times more likely than Blacks to have ever used crack. The communities reporting drug use are not the only ones typically considered to be high drug traffic areas: drug use is prevalent in suburban, middle- class areas around the country as well as in rural settings and in cities. However, suburban police presence is largely concerned with the residents’ desire to keep the “bad element” out rather than turn attention to its own citizens. From a public health perspective, this is probably a good thing, because the middle class and affluent are more likely to use drug treatment, counseling, and simple maturation as solutions to problematic drug use. Persons of color compose 60% of the incarcerated population. In 1996, Blacks constituted 62.6% of drug offenders in state prisons. Nationwide, the rate of persons admitted to prison on drug charges for Black men is 13 times that for White men, and in 10 states, the rates are 26 to 57 times those for White men. People of color are not more likely to do drugs ; Black men do not have an abnormal predilection for intoxication . They are, however, more likely to be arrested and prosecuted for their use. The prison system is designed to remove a criminal from society, but it leaves an inadequate system to cope with what is left behind. A vital member of both a family and community is gone, weakening emotional family and community ties. Prisons are typically located far away from the cities in which most inmates live. For a family, the cost of transportation and accommodations, not to mention time to visit their incarcerated relative, will typically discourage frequent visits. Children lose vital contact with parents and other caregivers. Incarceration also bleeds the broader community of men and women who would otherwise contribute to the workforce and to community life. From a broader political perspective, this has led to systematic disenfranchisement of the poor and of people of color, particularly in the South. Persons who are incarcerated lose their right to vote, in some states for the rest of their lives. Because the US Census and other population surveys base residence on where one currently lives, as opposed to where one customarily lives, population counts in rural communities that house prisons are artificially bloated, whereas urban populations shrink proportionately. This has negative implications for cities in regards to the allocation of resources and political redistricting. Taken as a whole, the latter 3 points ultimately result in the erosion of representative democracy nationwide. The impact of the criminal justice system is evident in the Black and Latino communities in major cities who often suffer from underserved state and government assistance for education, health, and employment. Services that might prevent drug use are underfunded, and the budget for the war on drugs increases. More than $11 billion was spent on the war against drugs in 2003. That budget has steadily increased, with more than $12 billion in funding for 2006. State and local governments are spending another $30 billion on the offensive against drugs. There are more than 2 million men and women serving sentences in United States prisons, nearly three quarters for nonviolent offenses. The unequal enforcement of the war on drugs serves to fuel our spiraling incarceration rates and the removal of men, women, and children from our communities.

2. Courts

Not only does the law itself disenfranchise minorities, but the application of the law by the courts is also done in a way that consistently biases against those races, especially in determination of guilt

If Obama sought inspiration for subtopics from Delgado and Stefancic's bibliography, it would have been unnecessary to read many of the article summaries in the CRT bibliography--the mere titles of many articles are instructive and self-explanatory. n241 The Supreme Court's rejection of the empirical data offered by the Baldus study n242 analyzing Georgia's capital sentencing system and its decision to uphold the death penalty in McClesky v. Kemp n243 sparked significant academic commentary during this time. n244 The Baldus study demonstrated that when a victim is white, the perpetrator of the crime is over 400 percent more likely to be sentenced to death than when the victim is a minority, and black defendants received the death penalty twice as often as white defendants. n245 After McClesky various authors analyzed empirical data evincing racial bias in death penalty decisions and the sentences imposed under the federal sentencing guidelines; n246 one author's analysis focused on "unconscious racism" within the criminal justice system. n247 The author, Sherri Lynn Johnson, contended that unconscious racism continued to permeate the system due to "ignorance" or "denial" of its existence, "fear" of its implications, and "denial" of its subsequent effects. n248 Johnson compared the psychological rejection of the existence of unconscious racism with Derrick Bell's interest convergence theory: the "legal establishment does not respond to civil rights claims that threaten the status of privileged whites." n249

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McClesky brought the role of race in subjective sentencing to the forefront and, as president of the Harvard Law Review during this time, Obama's awareness of the academic commentary surrounding this issue should be assumed. For example, Hofstra Law Review's 1990 "Symposium on Drug Decriminalization" presented divergent views on the most effective ways to regulate, prevent, or punish drug use. Delgado and Stefancic's bibliography includes the Foreword to this symposium n250 which analyzes the spectrum of arguments and plots them on a grid comprised of metaphoric "carrots" and "sticks" based on their suggested approaches. n251 Additionally, the Emory Law Journal published a statistical analysis of the mandatory federal sentencing guidelines evaluating their effectiveness at meeting the congressional goals espoused during their establishment. n252 An article exploring non-mandatory sentencing, Black Innocence and the White Jury, n253 provides an in-depth CRT analysis of the issue of race and its effect on guilt determination, criminal stereotypes, and judicial sentencing. n254 The author uses evidence gathered by social scientists to reveal that most white subjects did not consciously demonstrate a bias "motivated by hostility" in which they attempted to penalize black defendants at every opportunity. n255 While significant bias by white mock jurors against black defendants at the guilt attribution stage was common , once deemed guilty, this same bias was less evident at sentencing, and black defendants did not appear to receive harsher sentences than white defendants. n256 These mock studies correlate with findings from actual case studies that demonstrate unfair racial bias primarily in older cases, in cases from Southern states, or in rape cases. n257 While the ultimate sentence received by the defendant had the potential to be race neutral, the author reminds the reader of the role of race in the initial determination of guilt. n258 Thus these articles provided Obama's students substantial CRT-influenced background for a group presentation as well as empirical data to support advances made by non-CRT authors regarding the documented racial disparities in sentencing.

Adjudication and Sentencing is a critical timeframe for those in the system, and care must be taken to ensure their fair treatment.

This stage of the criminal justice process begins with the continuance of a case beyond arraignment and ends with the disposition and imposition of sentence. Ensuring that minorities are not disadvantaged in this process is critical . Misdemeanors, which account for the majority of criminal cases, are brought to disposition and sentence in the lower courts. Although the sentences imposed in these courts are generally less severe than those imposed in the higher courts, a conviction becomes part of the defendant’s criminal history and can lead to harsher treatment in subsequent cases. The large number of cases at this level means that fewer resources are generally available for fashioning constructive, non-incarcerative sentences in the lower courts. Finally, attention to the lower court process is important because felony cases typically enter the system through arraignment and motion activity in the lower courts, and may be disposed there as well. More serious cases, with a range of more severe penalties in the mix, are handled in the higher courts (often called superior or circuit courts). The vast majority of these cases are disposed by plea. Thus, it is crucial that the publicly supported defense bar, which usually represents the vast majority of poor, minority defendants, be accorded full and early discovery and be provided with adequate resources for investigators, expert witnesses, and the development of alternative sentencing plans. There is some evidence that sentencing outcomes are dependent on type of counsel (i.e., no counsel, public counsel, or private counsel) even when relevant factors are controlled. Since minorities are less likely to have a private attorney, one who generally has more time to devote to the case than a public defender, it is especially important to monitor this decision point for racial disparities. It is also essential that community-based service organizations, especially those serving minority communities, are available for use by the courts as components of community-based supervision and service programs, and that their services are supported with public funds. Similarly, the probation service, which typically prepares pre-sentence reports for consideration by the court, especially in felony cases, should have the training, resources and access to the defendant’s community that are required to prepare multi-faceted sentencing proposals that respond effectively to offender need and accountability as well as public safety. A qualitative study of probation presentence reports in juvenile court cases in a northwest city illustrates the means by which racial bias may influence sentencing outcomes. In this study of probation officers’ assessment concerning motivation for offending by race, analyzed by reviewing the narrative descriptions of juvenile offenders, researchers found that probation officers tended to portray the delinquency of black youth as stemming from negative attitudinal and personality traits, while portrayal of white youth stressed the influence of the social environment. Black youth were judged to be more dangerous, which translated into harsher sentences than for comparable white youth.36 Of growing concern is the sentencing of youth to life without the possibility of parole. Recent data suggest that, aside from the constitutional issues associated with this practice in general, it is racially disparate as well: black youth serve life without parole sentences at ten times the rate of white youth.37 Finally, in recent years special purpose courts have addressed specific issues, such as drug cases in the instance of drug courts. These courts are based on the premise that when a court concentrates on a specific problem, that enables it

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to better hold offenders accountable for their behavior, and also to compel their participation in treatment, restitution, community service, and skill development programs. There is a concern that these courts will bring people into the criminal justice system whose problems would be better addressed outside it (i.e., widening the net), and that they will use resources that could be more effectively used in the community. Once the decision to adjudicate a case in court has been made, it is important that factors used to determine a defendant’s eligibility for transfer to specialty courts do not inadvertently discriminate against minorities.

Discretionary prosecution contributes substantially to racial disparities at the sentencing level.

STARR, Sonja B. (former Harvard debater) and REHAVI, M. Marit 12 (“RACIAL DISPARITY IN FEDERAL CRIMINAL CHARGING AND ITS SENTENCING CONSEQUENCES” Michigan Law, 7 May 2012. SDH. http://economics.ubc.ca/files/2013/05/pdf_paper_marit- rehavi-racial-disparity-federal-criminal.pdf)

This study provides robust evidence that black male federal defendants receive longer sentences than whites arrested for the same offenses and with the same prior records . On average black males receive sentences that are approximately 10% longer than comparable white males with those at the top of the sentencing distribution facing even larger disparities. Much of that disparity appears to be driven by decisions at the initial charging stage, especially by prosecutors’ filing of “mandatory minimum” charges , which, ceteris paribus, they do twice as often against black defendants . Our estimates of disparities in prosecutorial decisions are likely conservative, because they do not encompass gaps introduced by prearrest prosecutorial involvement in the case, nor do they account for possible disparities in law enforcement. The importance of mandatory minimums in sentencing disparity is particularly striking given that our sample consists of crime categories in which mandatory minimums are relatively uncommon and our conservative coding decisions almost certainly led us to underestimate their role quite substantially. Estimates using the Sentencing Commission’s recording of the presence of a mandatory minimum at conviction suggest that prosecutors’ decisions regarding mandatory minimums could even potentially explain all of the otherwise-unexplained racial gaps in sentencing in our sample, at all but the highest deciles. Furthermore, prosecutor’ decision-making does not end with the initial charges; they continue to be involved in the plea bargaining and sentencing phases of cases (including negotiating the stipulations that play a key role in sentencing factfinding), and could also play a role in the remaining unexplained disparity that we attribute to post-charging stages of the justice process. For these reasons, our estimates should be viewed as a lower bound on the impact of prosecutorial decision-making on sentencing disparity. Recent policy and scholarly debates about post-Booker racial disparities have focused heavily on the disparity risks associated with judicial discretion. This study suggests that those concerns may to a substantial extent be misplaced. Although this study does not attempt to isolate the impact of judicial sentencing decisions (which are only one part of the post-charge process), the results suggest that they are probably only a modestly important source of disparity. Sentence disparities at the mean and at most deciles can be largely explained by three factors: the original arrest offense, the defendant’s criminal history, and the prosecutor’s initial choice of charges. That leaves less than a 5% mean gap in sentences for the post-charge justice process (including judicial decisions) to explain—perhaps substantially less if our estimates understate the explanatory value of the mandatory minimum, as suggested above. However, there are somewhat larger unexplained gaps at the top of the distribution, so judicial decisions could be producing substantial disparities in the subset of defendants committing the most serious crimes or those with the most extensive criminal history. But overall, the results suggest that prosecutors’ charging decisions are at least as important a source of racial disparity

as judicial sentencing decisions are , if not more so. Such prosecutor-driven disparities pose a considerable policy challenge. Substantial prosecutorial discretion is fundamentally ingrained in the U.S. justice system and would be difficult to take away. Even if doing so were desirable, resources do not permit prosecutors to pursue every possible charge in every case, and prosecutors also must assess the strength of evidence, an inescapably discretionary process. Indeed, the racial disparities found here emerged despite the fact that during the entire sample period official DOJ policy purported essentially to eliminate discretion by requiring prosecutors to charge the most serious provable offense (Ashcroft 2003). Still, even if prosecutorial charging discretion is inevitable, sentencing law can help to shape the amount of influence these decisions have over the sentence. Perhaps the strongest potential policy implications suggested by this study concern mandatory minimum sentences. While racial disparities in the application of mandatory minimums have long been noted, it was previously unclear whether the gap was driven by disparate charging or, instead, by different underlying criminal offense patterns. This study provides evidence that it is not just that sentencing law applies mandatory minimums to crimes disproportionately committed by blacks. Rather, prosecutors appear to be nearly twice as likely to use the laws against black defendants when doing so is a

discretionary choice . This suggests that calls by policymakers to respond to post-Booker sentencing disparity by expanding mandatory sentencing rules in an attempt to constrain judicial discretion could be counterproductive.

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3. Corrections/Incarceration

Our system of punishment in criminal justice seems fundamentally flawed as well. After looking beyond the law and lawyers, the use of incarceration has become a tool that devastates minority communities. There is a constant dispute about the success of incarceration in preventing further crime, and the impact upon those not in prison is just as great.

While it may seem obvious to many that disproportionate rates of incarceration of minorities are problematic, others may believe that such outcomes are merely the result of criminal activity and are therefore necessary to promote public safety. But given the current scale of incarceration, there are several reasons why these issues should be of concern to all Americans. First, there is a growing consensus that the extreme

rate of incarceration in the United States is unsustainable . Across the country, political leaders concerned with severe fiscal constraints are recognizing that the cost of corrections is impinging on state support for higher education and other vital services. In California, for example, in 2010 Governor Schwarzenegger announced that he would advocate for a constitutional amendment prohibiting the percentage of the state budget earmarked for prisons from exceeding what is set aside for the public university system (Steinhauer, 2010). One presumed goal of mass

incarceration, to reduce crime, is increasingly subject to diminishing returns . With a surge of incarcerated drug offenders since the mid-1980s, there is now a growing population in prison for which there is little effect on public safety due to the fact that incarcerated low-level drug sellers are routinely replaced on the street. Extreme racial disparities in the use of imprisonment result in communities of color being disproportionately affected by the collateral effects of incarceration . These include family stress and dissolution, neighborhoods experiencing high mobility of residents cycling in and out of prison, and growing numbers of people with limited employment prospects. Incarceration has been demonstrated to reduce African American male wage earnings by 44% by the age of 48 (The Pew Charitable Trusts, 2010). Emerging research also suggests that highly disproportionate rates of incarceration contribute to

concerns regarding the perceived legitimacy of the criminal justice system . Research by Lawrence D. Bobo and Victor Thompson shows that perceived bias in the criminal justice system translates into a “crisis of legitimacy” (Bobo & Thompson, 2006, p. 463). When asked whether drug laws are “enforced fairly on all would be drug users,” 79.4% of White respondents answered affirmatively but only 33.7% of African American respondents did so. As a result of such perceptions, when asked whether they believed that the police would take seriously a complaint about a home burglary, only 35% of Blacks expected such a response, compared to 60% of Whites. Such an outcome should be of concern to all since law enforcement agencies can only operate successfully if they have the

cooperation and support of the community. If such trust erodes, then public safety is inevitably compromised .

We have to challenge racism in incarceration rates and policies.

Ta-Nehisi Coates, ’15 (Atlantic, Oct. “The Black Family in the Age of Mass Incarceration” http://www.theatlantic.com/magazine/archive/2015/10/the-black-family-in-the-age-of-mass-incarceration/403246/)

Mass incarceration is, ultimately, a problem of troublesome entanglements. To war seriously against the disparity in unfreedom requires a war against a disparity in resources. And to war against a disparity in resources is to confront a history in which both the plunder and the mass incarceration of blacks are accepted commonplaces. Our current debate over criminal-justice reform pretends that it is possible to disentangle ourselves without significantly disturbing the other aspects of our lives, that one can extract the thread of mass incarceration from the larger tapestry of racist American policy. In 1970 the national correctional system was much smaller than it is today, but even so, blacks were incarcerated at several times the rate of whites. There is no reason to assume that a smaller correctional system inevitably means a more equitable correctional system. Examining Minnesota’s system, Richard S. Frase, a professor of criminal law at the University of Minnesota, found a state whose relatively sane justice policies give it one of the lowest incarceration rates in the country—and yet whose economic disparities give it one of the worst black-white incarceration ratios in the country. The blacks

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incarcerated in this country are not like the majority of Americans. They do not merely hail from poor communities— they hail from communities that have been imperiled across both the deep and immediate past, and continue to be imperiled today. Peril is generational for black people in America—and incarceration is our current mechanism for ensuring that the peril continues . Incarceration pushes you out of the job market. Incarceration disqualifies you from feeding your family with food stamps. Incarceration allows for housing discrimination based on a criminal-background check. Incarceration increases your risk of homelessness. Incarceration increases your chances of being incarcerated again. “The prison boom helps us understand how racial inequality in America was sustained, despite great optimism for the social progress of African Americans,” Bruce Western, the Harvard sociologist, writes. “The prison boom is not the main cause of inequality between blacks and whites in America, but it did foreclose upward mobility and deflate hopes for racial equality.”

Some blacks were richer than others. Some were better educated than others. But all were constricted, not by a tangle of pathologies, but by a tangle of structural perils. To reiterate an important point: Surveys have concluded that blacks and whites use drugs at roughly the same rates. And yet by the close of the 20th century, prison was a more common experience for young black men than college graduation or military service. One in four black men born since the late 1970s has spent time in prison.

This affects millions because of the sheer number of people incarcerated.

Bonczar, Thomas 03 (“Prevalence of Imprisonment in the U.S. Population, 1974-2001” Bureau of Justice Statistics Special Report, August 2003. SDH. http://www.bjs.gov/content/pub/pdf/piusp01.pdf)

Based on rates of first incarceration in 2001, the lifetime chances for men of going to prison are 6 times greater than those for women (table 9). A male has a 11.3% (or 1 in 9) chance in his lifetime of going to prison, while a female has a 1.8% (or 1 in 56) chance. An estimated 9.6% of men and 1.5% of women are expected to go to prison by age 40, as first incarceration rates rise rapidly, then decline with advancing age (figures 4 and 5). In 2001, the chances of going to prison were highest among black males (32.2%) and Hispanic males (17.2%) and lowest among white males (5.9%). The lifetime chances of going to prison among black females (5.6%) were nearly as high as for white males. Hispnic females (2.2%) and white females (0.9%) had much lower chances of going to prison. As a result of changes in first incarceration and mortality rates between 1974 and 2001, black males experienced a greater increase in the chances of going to prison over the course

of a lifetime than any other group (from 13.4% in 1974 to 32.2% in 2001). Hispanic males experienced the second largest increase (from 4.0% in 1974 to 17.2% in 2001). White males experienced a smaller increase (from 2.2% in 1974 to 5.9% in 2001). The lifetime chances of going to prison increased more rapidly for black females (from 1.1% in 1974 to 5.6% in 2001) than for white males. Hispanic females (from 0.4% in 1974 to 2.2% in 2001) and white females (from 0.2% in 1974 to 0.9% in 2001) had smaller increases in their lifetime chances of going to prison. At every age men have higher chances of going to prison than women, and blacks and Hispanics have higher chances than whites. Based on current rates of first incarceration, an estimated 6.7% of black males will enter State or Federal prison by the time they are age 20, compared to 3.0% of Hispanic males and 0.8% of white males.

4. Policing

In recent years, the role of the police force has come to the forefront not just in discussion about criminal justice, but social relations as a whole. A number of events in which police were seen as not responding appropriately or exercising greater levels of force against racial minorities brought them into the public’s eye. A discussion of how a society’s need for policing must be balanced with protection of its minorities is not only timely, but has incredible application to current policy.

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In recent years, considerable media and policy maker attention has been focused on law enforcement practices and

their possible contributions to racial disparity . Beginning with high profile media accounts of racial profiling by state troopers on the New Jersey Turnpike in the 1990s, much public discussion has focused on the extent to which individual officers or agencies systematically detain or arrest persons of color on the basis of race. Litigation in a variety of jurisdictions has resulted in court orders for law enforcement agencies to engage in oversight and data collection of traffic stops and other police activity to ensure that police officers are not engaging in unwarranted profiling. Data from the Bureau of Justice Statistics demonstrate that it is not necessarily traffic or pedestrian stops in themselves that are the focal point for disparate practices. As of 2005, national data indicate that White, Black, and Hispanic drivers were stopped by police at similar rates. But of those drivers who were stopped, African American motorists were more than 2.5 times as likely as Whites to be searched by police and Hispanics more than double the rate (Durose, Smith, & Langan, 2007).

There are a number of solutions that could be implemented throughout our system of policing at the lowest level that would have tremendous impacts.

The police are the first and most visible agents of the criminal justice system . They are charged with responding to calls for service, monitoring citizens’ behavior in public, intervening with warnings, referrals, or arrests when violations of law are suspected or observed, and assembling evidence for the prosecution of cases resulting in arrest. To carry out these responsibilities, law enforcement agencies may prioritize high-crime areas; these neighborhoods are often heavily populated by minorities. Some speculate that increased police presence in minority neighborhoods draws more minorities into the system simply because there are more eyes on the street in these neighborhoods. Police exercise broad discretion in their decision of who to arrest and this can be problematic if safeguards are not in

place to protect the community from tendentious law enforcement. We offer the following suggestions as ways to counter the impact that misguided discretion can have at this stage of the system.

Engage the Community There is a tendency to assume that police are the sole participants in their own strategic and tactical decision-making. In fact, those decisions are subject to review and approval by superiors, including the office of the prosecutor, and frequently subject to positive or negative reactions from the legislative and judicial branches, as well as the public. Transparent and independent oversight of police departments fosters a sense of trust and accessibility among the public and ensures that police remain accountable to those they are tasked to serve. Citizen oversight committees are not uncommon in other arenas such as medicine, law, and education, and can be used to dispel the “code of silence” that often permeates law enforcement agencies. There are currently more than one hundred citizen oversight agencies around the nation.28 In recent decades, programs directed at community-oriented policing have emerged to foster better relations between police and the public. In some communities, groups of residents and area businesses work with police in formulating these strategic and tactical decisions and reviewing their effects. Advocates of community- oriented policing insist that such involvement should be the norm and they often work with police agencies and community organizations to cultivate it.

Require Cultural Competency Training Police-community relations are complicated by many factors, among them a lack of knowledge among police about minority cultures and language barriers. Police officers often work in areas that are culturally different from their own, yet most police training programs offer only minimal training on cultural competency, if any. In the absence of a more specific orientation to the language, norms, values, and traditions of other cultures, officers can misunderstand residents’ attitudes as disrespectful of law enforcement. As a result, relations between the police and the community can become seriously impaired. Ongoing cultural competency training of police officers can help in this situation. Language

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barriers can be overcome through the use of language assistance technology and multilingual staff.29 While some of the problems of community-police relations can be attributed to ignorance, not all can. Mere education will not eliminate all race-based policing. Support from one’s superiors in a police department for culturally knowledgeable policing can be an effective strategy toward objective decision making on the street. A policing study in St. Petersburg, Florida found that disrespect toward minorities was statistically lower than police disrespect toward whites, and the authors attributed this to the police chief’s visible work toward suppression of police abuses.30

Eliminate Racial Profiling Patrol officers may stop drivers for apparent traffic violations but use the occasion to search the vehicle for drugs. These pretext stops have become a matter of considerable concern based on the suspicion, supported with empirical data, that people of color are overrepresented among those who are stopped, cited, searched, and arrested.31 Most studies of traffic stops find, however, that discovery of contraband such as weapons and drugs is no more likely to be found among white drivers than among African American drivers.32 One study has also found that racial profiling was significantly higher in instances where minorities were driving in white, affluent neighborhoods.33 More recent studies examining the influence of Hispanic ethnicity on arrests find biased policing practices among this group as well.34

Profiling in particular came into the public consciousness following a set of laws passed at the state level that permitted the process. Also known as “statistical discrimination”, this method of categorizing has had impacts on the way that the criminal justice system sacrifices objectivity in favor of dangerous shortcuts.

Is the use of criminal profiles (e.g. black male with Starter Jacket and gold-chain) in establishing reasonable cause inherently discriminatory? (This can be expanded into a discussion of the non-criminal context--i.e. store-owners with door-buzzer). n280 [*548] Although several articles in the bibliography touch on this issue, Delgado and Stefancic specifically reference statistical discrimination and criminal profiling in two summaries. n281 CRT scholars endeavored to prove that race is a "central rather than a marginal factor in defining and explaining individual experiences of the law." n282 Racial stereotyping, and thus racial and ethnic profiling, "ascrib[e] to all members of a group characteristics thought to be possessed by some" the danger of racism influencing the ascribed characteristics is ever-present. n283 However, is the "danger of racism" inherently discriminatory? CRT scholars alleged that the routine practice of businesses and police officers engaging in racial and ethnic profiling of suspected gang membership sacrificed the civil liberties of those with the wrong physical appearance or fashion sense. n284 Where social scientists innocuously refer to this type of "rational, racespecific sorting" of people as "statistical discrimination," n285 CRT scholar, Stephen Carter, warned against the lurking and irrational aspects of racism that abound when categorizing people solely on the basis of race. n286 Carter reviewed the impact of race in various situations: the Bernard Goetz subway shootings and subsequent acquittal; the shopkeeper who locks her door to potential patrons; the taxi driver who selectively stops for customers; and the liberal who avoids certain neighborhoods at dark. To have a victim there must be an identified transgressor n287--yet who was the identified victim and who is the transgressor in each of these situations? Was Bernard Goetz the victim that responded to previous attacks of violence or was it the four youths that he shot? Was it the shopkeeper [*549] and taxi driver who feared being robbed or the potential customers who were excluded due to racial categorizations? The CRT articles cited suggest alternative views and incorporate many paradigm shifts to demonstrate the seemingly insidious effect of race on our personal, community, and political realities.

This would be a really good area to debate—even as a narrow version of criminal justice (“policing” or “police misconduct”) on everything from cameras on officers, to better process for prosecuting police abuse, to training law enforcement officers on racial equity/profiling/etc. 5. Women

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Incarceration is a vector of oppression, a structure that contributes to the very material and lived consequences of racism, but also a level of oppression itself. The unique interplay between structures like the prison industrial complex and foster care work to discipline and control the Black female mother.

Dorothy Roberts's use of intersectionality also does more than reveal the converging vulnerabilities that render some populations particularly amenable to control; she also captures the interface between two expansive social systems. These systems have been historically associated with various projects of social management, usually with race, gendered, or class elements either as central features or byproducts of their operation. n91 Bringing these systems together as Roberts does reveals how the current crisis that we call mass incarceration or punishment comprises multiple intersections - not just of identity and power but of systemic dynamics that themselves do the work of subordination. n92 Roberts brings these several elements together in her sobering account of the parallel and overlapping systems of child welfare and mass incarceration. n93 Her stunning narrative uncovers an intersectional infrastructure in which formal policy and discretionary decisionmaking contribute to the construction and punishment of so-called bad Black mothers. Roberts "investigates this particular systemic intersection to help elucidate how state mechanisms of surveillance and punishment work to penalize the most marginalized women in our society while blaming them for their own disadvantaged positions." n94 She forcefully argues that prison and foster care are not simply parallel systems, nor are they sequential in the sense that involvement in one leads to the other. Instead, Roberts shows "how both systems work together to punish black mothers in the service of preserving U.S. race, gender, and class inequality in a neoliberal age." n95 Like Ocen and Lipsitz, Roberts's analysis reveals that while the systems are related, and mutually constitute certain harms, they are also observable as distinct in their logics, agents, and consequences. As such, they can be understood both within their own institutional spheres and in relation to others. While acknowledging their interlocking dimensions of subordination, Roberts squarely confronts how these systems function both independently and together to regulate and punish Black women. Peeling apart the layers to reveal the unique ways in which these systems constitute social harm, she places advocacy and policymaking in better positions to take up the important task of articulating meaningful points of intervention.

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Housing

The Fair Housing Act of 1968 was originally passed to prohibit discrimination in rental and sales of houses based on race. The Act did not go far enough or was not enforced (or both) given the extent of racial disparity in financing and generally obtaining access to housing. Debating over housing policy would be a really valuable experience, not something the community has taken on directly, and a huge component in manifestations of institutional racism (and often interpersonal as well).

Title VIII of the Civil Rights Act of 1968 (Fair Housing Act) prohibits discrimination in the sale, rental and financing of dwellings based on race, color, religion, sex or national origin.

The newest manifestation of the Fair Housing Act is the federal government’s policy of housing vouchers—trying to move away from the stigma of concentrated public housing and give people a choice of where to live, but the effects of racism and poverty are deeper than what is being addressed by vouchers. It may be a helpful approach for many, but it has not been successful reversing racial disparity in housing.10

Eva Rosen, ’16 (Eva Rosen is a Postdoctoral Fellow in Sociology at Johns Hopkins University, in the Poverty and Inequality Research Lab. She is currently working on a book about housing vouchers in Baltimore. “How Housing Vouchers Can Fight Residential Segregation” March 15, 2016, http://www.thenation.com/article/how-housing-vouchers- can-fight-residential-segregation/)

A few months before I met Vivian Warner, she got the call she had been waiting so long for that she’d forgotten to hope for it. It was Baltimore Housing, the agency that oversees subsidized housing in the city. After four years on the wait list, Vivian would receive a housing voucher, and could finally move off of her sister’s couch into her own home. A few weeks later, Vivian boarded a bus with the other lucky winners and drove around the city to visit eligible homes. At the last stop, the bus pulled up in front of a low-rise apartment complex. It was not quite what Vivian had imagined, but there was a two- bedroom available, and Vivian would pay just $55 a month out of pocket from her part-time income. She signed the lease that afternoon. This article originally appeared at TalkPoverty.org. The housing voucher Vivian waited years to receive is part of the federal government’s most recent attempt to house the poor. Since the 1930s, it has employed housing assistance as a key tool in its war on urban blight and poverty. But these attempts have often failed those who they were meant to protect, at times recreating the very inequality they intended to undo. Postwar, the Federal Housing Administration underwrote home loans for millions of white Americans, while banks systematically denied them to black families, a process called redlining. Even in federally funded public housing, the poor had no respite from the marginalizing forces of inequality. In the 1950s and ’60s, high-rise public housing was erected in neighborhoods that already suffered from segregation, underinvestment, and decline. And when the Fair Housing Act of 1968 outlawed housing discrimination by “race or national origin,” local housing authorities in cities like Chicago, Baltimore, and Dallas continued to keep two separate housing lists: one for whites, and one for blacks. Vivian is part of a generation of poor urban dwellers who left the concentrated poverty of high- rise public housing towers, which by the 1990s were crumbling from neglect. Across the country, the buildings were torn down, and along with them an entire system for housing the poor was dismantled. In the place of public housing, the federal government needed a new solution, one that would remedy the concentrated poverty and segregation it had helped to create. This solution expanded an existing program relying on the private market to house the poor: housing vouchers. These vouchers make up the difference between what a needy household can afford and the cost of a unit in the private market. They are meant to allow families to rent in any affordable neighborhood, offering men and women like Vivian their very first chance to choose where to live. Today, of the 5 million households across the country receiving some form of federal housing assistance, over half now live in privately owned properties, many through the Housing Choice Voucher program, previously called Section 8.

10 See Alexis C. Madrigal, May 22, 2014 “The Racist Housing Policy That Made Your Neighborhood” http://www.theatlantic.com/business/archive/2014/05/the-racist-housing-policy-that-made-your-neighborhood/371439/ and Richard Rothstein, “How Government Policies Cemented the Racism that Reigns in Baltimore,” April 29, 2015, http://prospect.org/article/how-government-policies-cemented-racism-reigns-baltimore

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The program has undeniably positive effects. Vivian was able to regain custody of her twin boys thanks to her new home. For Tony Young, a 55-year-old man with HIV, receiving a voucher meant relief from the cold, hard bed under the bridge where he slept when there was no room at the homeless shelter. Joann Jones, a young mother of two, was able to buy fresh fruits and vegetables for her 7-year-old at the local store while he attended a high-performing public school nearby. The basic economic relief that vouchers provide cannot be understated. And they also give families something more: flexibility in times of crisis to respond to the demands of their jobs, their children’s needs, even the whims of landlords. By letting recipients choose where to live, vouchers confer dignity and affirm a sense of belonging potentially free from the stigma of “public” housing. Most important, they may help people to realize their dreams of a place to call home. By untethering federal housing aid from the disadvantaged neighborhoods to which it was once attached, vouchers offer millions of poor Americans the opportunity to move to a new neighborhood where streets are safe, schools have resources to teach their children, and jobs are bountiful. But not everyone does. Vivian, for example, might have used her voucher in a number of safer, more affluent neighborhoods. But time and resources to find an ideal home are limited. And America’s long history of discriminatory housing practices have shaped the residential landscape in ways that cannot be undone by simply offering families a “choice.” Though voucher holders have moved to areas that are less poor than the ones available in the heyday of public housing, many are reconcentrating in poor neighborhoods. This reconcentration matters for a reason that social scientists like William Julius Wilson have long known to be a fact, but they finally have the hard numbers to prove: Where you live matters. It matters for your quality of life, for how much money you make in your lifetime, and for your children. Raj Chetty’s new work shows that a child growing up in a city like Baltimore will make 14 percent less over his lifetime than one in a typical American county, even after accounting for individual factors like income and education. If where you live is so crucial, then we ought to pay attention to the role housing policy plays in where families end up. In a landmark case this past July, the Supreme Court ruled that housing discrimination need not be intentional to have harmful effects of segregation. This is the first time the legal concept of “disparate impact”—the idea that a policy may disproportionately affect certain groups even absent injurious intent—was applied to federal housing policy. The decision substantiates an important change in the way discrimination persists in contemporary America: We are moving away from the overt racism of Jim Crow, toward one maintained by enduring institutions that inadvertently perpetuate longstanding inequalities—a “racism without racists.” This shift is crucial to understanding how and why racial inequality continues to plague our nation. Housing vouchers offer a chance to remedy this disparity, but are not yet equipped to fully do so. Not all voucher holders succeed in finding a place to live, and those who do are often unable to find homes in neighborhoods that have jobs and good schools. And although vouchers are a potential tool to dismantle concentrated poverty and segregation, it turns outs that black voucher holders live in neighborhoods that are poorer and far more segregated than those of white voucher holders, revealing the program’s shockingly disparate impact on white and black families. If black voucher holders face obstacles that prevent them from using their vouchers in the same neighborhoods as whites, then something needs to be done. In their current form, vouchers fail to take account of an important lesson: A roof is not enough. Where you live matters. Vouchers shouldn’t merely keep people off the streets; they should help families move to neighborhoods with more opportunities. What can we do then to make the voucher program work better to reduce inequality? There are a number of policy fixes to reduce barriers that prevent families from using their voucher in low-poverty, integrated neighborhoods. For example, we could do a better job providing mobility counseling and transportation to help families explore new neighborhoods. There are also solutions related to landlords, like passing national legislation that makes it illegal to discriminate against someone who pays their rent with a voucher, and other policies that would encourage landlords in low-poverty areas to accept housing vouchers. Even with these fixes to modify the disparate impact vouchers often have, it is not enough to simply move the poor out of poverty-stricken neighborhoods. It is imperative that we address the root causes of poverty and inequality by implementing change at the level of the neighborhood itself, improving the environments around poor families by investing in schools, institutions, and the economy. But this systemic transformation cannot take place overnight, and it will face stark political opposition. It remains to be seen how the political climate of the next presidency will unfold to potentially make good on the Fair Housing Act’s recently renewed half-a-century-old promise to “affirmatively further fair housing.” While we wait for political change, we can act to undo the disparate impact this program has on minority families, who don’t fully reap its rewards. Housing vouchers could be a powerful instrument to remedy the indelible dangers of living in a poor environment, for families of all backgrounds.

What are some of the details about what can be done and where the major instances of racism are most manifest? This civil rights report provides some answers, but really there is racial discrimination throughout the process of finding a place to live, whether renting or as an owner, whether getting a loan or choosing a neighborhood, whether refinancing or obtaining services from city governments.

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Civil Rights.Org, no date (on-line access 3/6/16, http://www.civilrights.org/publications/reports/cerd-report-falling- further-behind/discrimination-in-housing.html)

Discrimination in Housing 2008-13 Concluding Observations of the Committee 10. The Committee recommends that “the State party review the definition of racial discrimination used in the federal and state legislation and in court practice, so as to ensure…that it prohibits racial discrimination in all its forms, including practices and legislation that may not be discriminatory in purpose, but in effect.” 16. The Committee “urges the State party to intensify its efforts aimed at reducing the phenomenon of residential segregation based on racial, ethnic and national origin, as well as its negative consequences for the affected individuals and groups.”

Introduction

92. U.S. constitutional protections fall short of meeting CERD's definition of discrimination, by, for example, omitting practices with discriminatory effects if not proven to be intentional.173 93. However, U.S. civil rights law provides additional protections from racial discrimination. For example, the Fair Housing Act applies to private, as well as government, actors and encompasses a discriminatory effects standard. Additionally, the Fair Housing Act requires that the government take affirmative measures to remediate discrimination and segregation in the implementation of its housing programs.174 While this law potentially provides a strong tool for CERD compliance, additional action is needed to ensure full enforcement and implementation (including through regulations, guidance, and program redesign). 94. Title VI of the Civil Rights Act of 1964 prohibits discrimination in federally funded programs (including housing programs), but falls short of its potential as a tool for CERD compliance. "Discriminatory effects" discrimination is not privately enforceable under Title VI. While federal agencies generally have regulations implementing Title VI, the Department of the Treasury (which runs the Low Income Housing Tax Credit program) lacks any such civil rights regulations.

The Impact of Housing Segregation

95. Access to housing is central to economic and personal security and to social inclusion, yet remains shaped by racial discrimination throughout the United States. Affordable housing is in critically short supply.175 Communities throughout the United States remain marked by a high degree of racial segregation and concentrated poverty, creating inequality in access to education employment, and healthy public spaces, and perpetuating gaps in opportunity for successive generations.176 These inequities were exacerbated by the economic downturn, and in particular, by the impact of predatory lending practices and residential foreclosures on minority communities. 96. Although safe and affordable housing is a basic need and provides access to key social resources, many government policies serve to reinforce the decades-long legacy of segregative housing programs. Discrimination by both private and public actors remains a significant problem, often in evolving forms (as in the financial sector), evincing the need for stronger enforcement of antidiscrimination laws. Moreover, additional resources, and improved policy designs, are needed to provide sufficient housing that is affordable to low-income people throughout the United States. 97. Housing discrimination and segregation are critical barriers to opportunity for people of color in the United States. In 2013, the U.S. Department of Housing and Urban Development (HUD) received 9,324 complaints of housing discrimination based on race, color or national origin combined. Discrimination based on race, color, and national origin were most often reported in the most racially and ethnically segregated metropolitan statistical areas (MSAs) in the United States. These complaints represent only a fraction of the estimated 4

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million complaints of housing discrimination that occur every year just in the rental and real estate sales markets .

Effects of the Foreclosure Crisis

98. The racial dimensions of the recent foreclosure crisis in the United States are undeniable. Continued residential segregation and the exclusion of racial minorities from access to quality mortgage credit created model conditions for predatory lending to poor households in communities of color.177 This has led to the massive loss of wealth built over generations in communities of color.178 99. Discrimination now affects the recovery from the housing crisis and the future of homeownership in communities of color. In an investigation into the maintenance and marketing practices of Real Estate Owned (REO) properties by banks, the National Fair Housing Alliance found that major banks around the nation maintain and market REO homes in White communities significantly better than in communities with higher concentrations of racial minorities.179 Failures by banks to maintain and market properties bring down neighboring home values and devastate the recovery in entire communities, and encourage investor purchasers over owner-occupant purchasers of those homes. 100. State and local actors that receive and administer federal housing funding are bound by the Fair Housing Act's affirmative obligations to administer funds in a way that affirmatively furthers fair housing and addresses segregation and encourages diverse and inclusive communities. Further, state and local governments must conduct thorough analyses of impediments to fair housing and identify ways to address those impediments. However, many jurisdictions fail to comply with the standards of both U.S. civil rights law and CERD. For example, jurisdictions frequently use federal housing programs, or allocate Low Income Housing Tax Credits, in a manner that fails to address segregation (and may perpetuate it) or to enable broader housing choice among families reliant on housing assistance.180

Progress to Date

101. In its 2013 national CERD submission, the U.S. highlighted the application of the discriminatory effects standard under the Fair Housing Act and the Equal Credit Opportunity Act. (Para. 8, 10, 124, 125.) The government noted instances of successful civil rights enforcement by HUD and the Department of Justice, as well as the Department of Housing and Urban Development's 2013 issuance of a discriminatory effects regulation implementing the standard. (Para. 10, 126, 127, 128.) The government described the role of federal housing assistance programs in subsidizing affordable housing, highlighting the Baltimore Housing Mobility Program's success. (Para. 39.) In addition, the government also described its efforts in addressing the problem of homelessness. (Para. 40.) 102. In 2013, HUD also released a draft regulation addressing the Fair Housing Act's requirement that jurisdictions operating housing programs "affirmatively further fair housing," that is, promote residential integration and equality in housing choices, 42 U.S.C. § 3608.

Recommendations

103. Housing Segregation a. HUD should increase the number of complaints using the discriminatory effects standard to challenge discriminatory lending practices. b. There should be a meaningful independent evaluation of all HUD housing and community development programs for their impacts on residential segregation.

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c. The Obama administration should withdraw funds from entitlement jurisdictions and local participants of programs if administration of those funds and programs yields discriminatory results or increases residential segregation. d. The Obama administration should engage in meaningful implementation of the affirmatively furthering obligation (including finalization of the regulation, if not yet issued). e. The Obama administration should issue civil rights standards for the Low Income Housing Tax Credit Program, including implementation of Title VI of the 1964 Civil Rights Act and the Fair Housing Act (including its affirmatively furthering provision). f. The Obama administration should enact policies that facilitate mobility in the Section 8 program, such as the use of small-area Fair Market Rents and incentives for mobility outcomes in the Section 8 Management Assessment Program. g. The Obama administration should enact explicit mobility standards and incentives for programs such as Moving to Work and the Rental Assistance Demonstration, and high standards for affordable housing siting in programs such as Choice Neighborhoods. h. There should be increased staffing of HUD's Office of Fair Housing and Equal Opportunity to conduct additional compliance reviews of entitlement jurisdictions' efforts to affirmatively further fair housing. i. The Obama administration should issue a regulation that details what constitutes racial harassment by housing providers and other tenants under the Fair Housing Act. 104. Foreclosure Crisis and Unfair Lending Practices a. HUD and the financial regulatory agencies should issue guidance on compliance with the obligation to maintain and market REO properties in a nondiscriminatory manner. b. The Obama administration should require reporting and public disclosure of data by mortgage servicers to report loss mitigation outcomes by protected class similar to the reporting requirements of the Home Mortgage Disclosure Act (HMDA). c. The Obama administration should engage in increased supervision and enforcement of mortgage originators and servicer activities for compliance with the Equal Credit Opportunity Act and the Fair Housing Act. d. The Consumer Financial Protection Bureau (CFPB) should amend its mortgage servicing rule to require loan servicers to offer loan modification options if it is in the best interest of the mortgage investor. e. The CFPB must collect protected class data, including race, in its consumer complaint process, and make such data available in its public complaint database.

Contributing Organizations: The National Fair Housing Alliance and the Poverty & Race Research Action Council contributed to this section.

The history of housing policy and how extensive de jure and de facto discrimination is throughout the entire social process of “residency” sets up an incredibly important debate based on trying to address the causes, if not the effects, of this racial inequality.

The federal government led in the establishment and maintenance of residential segregation in metropolitan areas. From its New Deal inception and especially during and after World War II, federally funded public housing was explicitly racially segregated, both by federal and local governments. Not only in the South, but in the Northeast, Midwest, and West, projects were officially and publicly designated either for whites or for blacks. Some projects were “integrated” with separate buildings designated for whites or for blacks. Later, as white families left the projects for the suburbs, public housing became overwhelmingly black and in most cities was placed only in black neighborhoods, explicitly so. This policy continued one originating in the New Deal, when Harold Ickes, President Roosevelt’s first public housing director, established the “neighborhood composition rule” that public housing should not disturb the pre-existing racial composition of

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neighborhoods where it was placed (Hirsch, 1998/1983, p. 14; Hirsch, 2000, p. 209; e.g., Hills v. Gautreaux, 1976; Rothstein, 2012). This was de jure segregation. Once the housing shortage eased and material was freed for post-World War II civilian purposes, the federal government subsidized relocation of whites to suburbs and prohibited similar relocation of blacks. Again, this was not implicit, not mere “disparate impact,” but racially explicit policy. The Federal Housing and Veterans Administrations recruited a nationwide cadre of mass-production builders who constructed developments on the East Coast like the Levittowns in Long Island, Pennsylvania, New Jersey, and Delaware; on the West Coast like Lakewood and Panorama City in the Los Angeles area, Westlake (Daly City) in the San Francisco Bay Area, and several Seattle suburbs developed by William and Bertha Boeing; and in numerous other metropolises in between. These builders received federal loan guarantees on explicit condition that no sales be made to blacks and that each individual deed include a prohibition on re-sales to blacks, or to what the FHA described as an “incompatible racial element” (FHA, 1938; Jackson, 1985, pp. 207-209, 238; e.g., Silva, 2009). This was de jure segregation. In addition to guaranteeing construction loans taken out by mass production suburban developers, the FHA, as a matter of explicit policy, also refused to insure individual mortgages for African Americans in white neighborhoods, or even to whites in neighborhoods that the FHA considered subject to possible integration in the future (Hirsch, 2000, pp. 208, 211-212). This was de jure segregation. Although a 1948 Supreme Court ruling barred courts from enforcing racial deed restrictions, the restrictions themselves were deemed lawful for another 30 years and the FHA knowingly continued, until the Fair Housing Act was passed in 1968, to finance developers who constructed suburban developments that were closed to African-Americans (Hirsch, 2000, pp. 211-212). This was de jure segregation. Bank regulators from the Federal Reserve, Comptroller of the Currency, Office of Thrift Supervision, and other agencies knowingly approved “redlining” policies by which banks and savings institutions refused loans to black families in white suburbs and even, in most cases, to black families in black neighborhoods – leading to the deterioration and ghettoization of those neighborhoods (see, e.g., USCCR, 1961, pp. 36-37, 42- 51). This was de jure segregation. Although specific zoning rules assigning blacks to some neighborhoods and whites to others were banned by the Supreme Court in 1917, explicit racial zoning in some cities was enforced until the 1960s. The Court’s 1917 decision was not based on equal protection but on the property rights of white owners to sell to whomever they pleased. Several large cities interpreted the ruling as inapplicable to their racial zoning laws because they prohibited only residence of blacks in white neighborhoods, not ownership. Some cities, Miami the most conspicuous example, continued to include racial zones in their master plans and issued development permits accordingly, even though neighborhoods themselves were not explicitly zoned for racial groups (Mohl, 1987; Mohl, 2001). This was de jure segregation. In other cities, following the 1917 Supreme Court decision, mayors and other public officials took the lead in organizing homeowners associations for the purpose of enacting racial deed restrictions. Baltimore is one example where the mayor organized a municipal Committee on Segregation to maintain racial zones without an explicit ordinance that would violate the 1917 decision (Power, 1986; Power, 2004). This was de jure segregation. In the 1980s, the Internal Revenue Service revoked the tax-exemption of Bob Jones University because it prohibited interracial dating. The IRS believed it was constitutionally required to refuse a tax subsidy to a university with racist practices. Yet the IRS never challenged the pervasive use of tax-favoritism by universities, churches, and other non-profit organizations and institutions to enforce racial segregation. The IRS extended tax exemptions not only to churches where such associations were frequently based and whose clergy were their officers, but to the associations themselves, although their racial purposes were explicit and well-known. This was de jure segregation. Churches were not alone in benefitting from unconstitutional tax exemptions. Robert Hutchins, known to educators for reforms elevating the liberal arts in higher education, was president and chancellor of the tax-exempt University of Chicago from 1929 to 1951. He directed the University to sponsor neighborhood associations to enforce racially restrictive deeds in its nearby Hyde Park and Kenwood neighborhoods, and employed the University’s legal department to evict black families who moved nearby in defiance of his policy, all while the University was subsidized by the federal government by means of its tax-deductible and tax-exempt status (Hirsch, 1998/1983, pp. 144-145; Plotkin 1999, pp. 122-125). This was de jure segregation. Urban renewal programs of the mid-twentieth century often had similarly undisguised purposes: to force low-income black residents away from universities, hospital complexes, or business districts and into new ghettos. Relocation to stable and integrated neighborhoods was not provided; in most cases, housing quality for those whose homes were razed was diminished by making public housing high-rises or overcrowded ghettos the only relocation option (Hirsch, 2000, pp. 217-222; Weaver, 1948, p. 324, USCCR, 1961, p. 96). This was de jure segregation. Where integrated or mostly-black neighborhoods were too close to white communities or central business districts, interstate highways were routed by federal and local officials to raze those neighborhoods for the explicit purpose of relocating black populations to more distant ghettos or of creating barriers between white and black neighborhoods. Euphemisms were thought less necessary then than today: according to the director of the American Association of State Highway Officials whose lobbying heavily influenced the interstate program, “some city officials expressed the view in the mid-1950’s that the urban Interstates would give them a good opportunity to get rid of the local ‘niggertown’” (Schwartz, 1976, p. 485 n. 481). This was de jure segregation. For a sense of how federal policy was infused with segregationist impulses, consider the 1949 Congressional debate over President Harry S Truman’s proposal for a massive public housing program. Conservative Republicans, opposed to federal involvement in the private housing market, devised a “poison pill” guaranteed to defeat the plan. They introduced amendments in the House and Senate requiring that public housing be operated in a non-segregated manner, knowing that if such amendments were adopted, public housing would lose its Southern Democratic support and the entire program would go down to defeat. The Senate floor leader of the housing program was the body’s most liberal member, Paul Douglas, a former economist at the University of Chicago. Supported by other leading liberal legislators (Senator Hubert Humphrey from Minnesota, for example), Senator Douglas appealed on the floor of the Senate to his fellow Democrats and civil rights leaders, beseeching them to defeat the pro-integration amendment: “I should like to point out to my Negro friends what a large amount of housing they will get under this act… I am ready to appeal to history and to time that it is in the best interests of the Negro race that we carry through the housing program as planned, rather than put in the bill an amendment which will inevitably defeat it…” The Senate and House each then considered and defeated proposed amendments that would have prohibited segregation and racial discrimination in federally funded public housing programs, and the 1949 Housing Act, with its provisions for federal finance of public housing, was adopted (Davies, 1966, p. 108; Julian & Daniel, 1989, pp. 668-669). It permitted local authorities in the North as well as the South to design separate public housing projects for blacks and whites, or to segregate blacks and whites within projects. And they did so. Although there was an enormous national housing shortage at the time, one that denied millions of African Americans a decent place to live, it remains an open question whether it really was in their best interests to be herded into segregated projects, where their poverty was concentrated and isolated from the American mainstream. It was not, however, federal policy alone that segregated the metropolitan landscape. State policy contributed as well. Real estate is a highly regulated industry. State governments require brokers to take courses in ethics and exams to keep their licenses. State commissions suspend or even lift licenses for

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professional and personal infractions – from mishandling escrow accounts to failing to pay personal child support. But although real estate agents openly enforced segregation, state authorities did not punish brokers for racial discrimination, and rarely do so even today when racial steering and discriminatory practices remain (Galster & Godfrey, 2005). This misuse of regulatory authority was, and is, de jure segregation. Local officials also played roles in violation of their constitutional obligations. Public police and prosecutorial power was used nationwide to enforce racial boundaries. Illustrations are legion. In the Chicago area, police forcibly evicted blacks who moved into an apartment in a white neighborhood; in Louisville, the locus of Parents Involved, the state prosecuted and convicted (later reversed) a white seller for sedition after he sold his white- neighborhood home to a black family (Braden, 1958). Everywhere, North, South, East, and West, police stood by while thousands (not an exaggeration) of mobs set fire to and stoned homes purchased by blacks in white neighborhoods, and prosecutors almost never charged well-known and easily identifiable mob leaders (Rubinowitz & Perry, 2002). This officially sanctioned abuse of the police power also constituted de jure segregation. An example from Culver City, a suburb of Los Angeles, illustrates how purposeful state action to promote racial segregation could be. During World War II, its state’s attorney instructed the municipality’s air raid wardens, when they went door-to-door advising residents to turn off lights to avoid providing guidance to Japanese bombers, also to solicit homeowners to sign restrictive covenants barring blacks from residence in the community (“Communiques from the housing front,” 1943). This was de jure segregation. Other forms abound of racially explicit state action to segregate the urban landscape, in violation of the Fifth, Thirteenth, and Fourteenth Amendments. Yet the term “de facto segregation,” describing a never-existent reality, persists among otherwise well-informed advocates and scholars. The term, and its implied theory of private causation, hobbles our motivation to address de jure segregation as explicitly as Jim Crow was addressed in the South or apartheid was addressed in South Africa.

It’s not just history.

The Continuing Effects of State Sponsored Residential Segregation Even those who understand this dramatic history of de jure segregation may think that because these policies are those of the past, there is no longer a public policy bar that prevents African Americans from moving to white neighborhoods. Thus, they say, although these policies were unfortunate, we no longer have de jure segregation. Rather, they believe, the reason we don’t have integration today is not because of government policy but because most African Americans cannot afford to live in middle class neighborhoods. This unaffordability was also created by federal, state, and local policy that prevented African Americans in the mid-twentieth century from accumulating the capital needed to invest in home ownership in middle-class neighborhoods, and then from benefiting from the equity appreciation that followed in the ensuing decades. Federal labor market and income policies were racially discriminatory until only a few decades ago. In consequence, most black families, who in the mid-twentieth century could have joined their white peers in the suburbs, can no longer afford to do so. The federal civil service was first segregated in the twentieth century, by the administration of President Woodrow Wilson. Under rules then adopted, no black civil servant could be in a position of authority over white civil servants, and in consequence, African Americans were restricted and demoted to the most poorly paid jobs (King, 1995). The federal government recognized separate black and white government employee unions well into the second half of the twentieth century. For example, black letter carriers were not admitted to membership in the white postal service union. Black letter carriers had their own union but the Postal Service would only hear grievances from the white organization (“Same work, different unions,” 2011). At the behest of Southern segregationist Senators and Congressmen, New Deal labor standards laws, like the National Labor Relations Act and the minimum wage law, excluded from coverage, for undisguised racial purposes, occupations in which black workers predominated (Katznelson, 2013). The National Labor Relations Board certified segregated private sector unions, and unions that entirely excluded African Americans from their trades, into the 1970s (Foner, 1976; Hill, 1977; Independent Metal Workers, 1964). State and local governments maintained separate, and lower, salary schedules for black public employees through the 1960s (e.g., Rothstein & Miles, 1995). In these and other ways, government played an important and direct role in depressing the income levels of African American workers below the income levels of comparable white workers. This, too, contributed to the inability of black workers to accumulate the wealth needed to move to equity- appreciating white suburbs. Today (2010), median black family income is 61 percent of the white median, but black median family wealth (net worth, or assets minus debts) is an astonishingly low 5 percent of the white median (Mishel, Bivens, Gould, & Shierholz, 2012, Tables 2.5 and 6.5). The wealth gap does not only reflect the desperate financial situation of the poorest disadvantaged families. Thomas Shapiro, co-author of Black Wealth/White Wealth (1995), has estimated the relative wealth by race for middle-class families. Calculating relative wealth for black and white families with annual incomes of $60,000—slightly above the national median—from his most recent data in 2007, he found that black middle-class wealth was only 22 percent of whites’ (T. Shapiro, personal communication, May 3, 2014). This gap has undoubtedly widened since 2007 because the housing collapse harmed blacks—who were targeted disproportionately for exploitative subprime loans and exposed to foreclosure—more than whites. In short, middle-class African Americans and whites are in different financial straits. Total family wealth (including the ability to borrow from home equity) has more impact than

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income on high-school graduates’ ability to afford college. Wealth also influences children’s early expectations that they will attend and complete college. White middle-class children are more likely to prepare for, apply to, and graduate from college than black children with similar family incomes. This widely acknowledged difference in educational outcomes is, in considerable part, the enduring effect of de jure segregated housing policies of the 20th century, policies that prevented African Americans from accumulating, and bequeathing, wealth that they might otherwise have gained from appreciating real estate. Levittown, described above as a Long Island suburban development built with federal financing and restricted to whites, illustrates these enduring effects. William Levitt sold his houses to whites in 1947 for $7,000, about two and a half times the national median family income (Jackson, 1985, pp. 231-245; Williamson, 2005). White veterans could get VA or FHA loans with no down payments. Today, these homes typically sell for $400,000, about six times the median income, and FHA loans require 20 percent down. Although African Americans are now permitted to purchase in Levittown, it has become unaffordable. By 2010 Levittown, in a metropolitan region with a large black population, was still less than 1 percent black. White Levittowners can today easily save for college. Blacks denied access to the community are much less likely to be able to do so. Segregation in many other suburbs is now locked in place by exclusionary zoning laws – requiring large setbacks, prohibiting multi-family construction, or specifying minimum square footage – in suburbs where black families once could have afforded to move in the absence of official segregation, but can afford to do so no longer with property values appreciated.

Why the efforts of deconcentrating poverty and not dealing with discrimination fail

Seicshnaydre 2015 Seicshnaydre, S. The Fair Housing Choice Myth. Journal Of Affordable Housing & Community Development Law [serial online]. January 2015;23(2):149-203. Available from: Academic Search Complete, Ipswich, MA. Accessed April 25, 2016.

When efforts to deal with what is really the legacy of racial segregation are framed as efforts to "deconcentrate poverty," this policy unwittingly requires poor victims of segregation to bear all of the costs of the effort (displacement without opportunity); the policy may insinuate that poor people are "less than" and so must not dwell together in large numbers; it may detonate a deep distrust about the motives for upsetting the status quo, for displacing and dispersing, and for ultimately destroying what may have been the only home these households have ever known.[162 ]When efforts to dismantle segregation are framed as "deconcentrating poverty," the focus is on removing poor households as a means of revitalizing neighborhoods seeking to reverse patterns of disinvestment.[ 163] If there is greater focus on neighborhoods than on segregated households, then policy-makers allocate resources in ways that seem to benefit everyone but the segregated households, thus fueling further distrust.[ 164] When efforts to dismantle segregation are framed as "deconcentrating poverty," then the focus is on reducing housing density and altering building configuration as a means of creating more vibrant communities and neighborhoods. While important, reducing a dense public housing footprint without fully addressing the needs of those who will inevitably fall outside of the footprint leaves the majority of segregated households to navigate in the private market.[ 165] For the reasons enumerated above in Part II.A, it is unlikely that the segregated households leaving public housing pursuant to a deconcentrating-poverty rationale will experience expanded housing choice.[ 166] The problem with policy initiatives focused on poverty deconcentration is that they are frequently disconnected from a larger policy agenda that is focused on regional equity and inclusive communities.[ 167] Unless programs consist of both exit and entrance strategies tied to deliberate initiatives to provide mobility counseling and advocacy, poor people of color will perceive that something is being taken away, without anything being given in return. If the only message delivered with any urgency to poor communities of color is that their communities must be "deconcentrated," without any corresponding policy imperative related to creating housing opportunities outside the ghetto, then there will naturally be suspicion about the true motives behind the deconcentration of impoverished neighborhoods. This is especially the case where the deconcentration comes in the form of the wrecking ball. Fair Housing Act is flawed—Assumes that everyone can engage in decision making freely in the housing market

The FHA has not delivered true housing choice to consumers of color, however, because the integration many consumers of color would choose depends on the housing choices of third-party white consumers. Equal housing opportunity law -- with its focus on protecting minority home seekers from discrimination perpetrated by housing providers -- does not address the anti-integration housing choices

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of white consumers in any meaningful way. The law reaches only two parties in a three party tango -- and the segregated ghetto lives on. This gap in the law's coverage is important because the construct of choice, as understood in the context of "equal housing opportunity," assumes that all consumers can engage in decision-making in the housing marketplace in a free and voluntary fashion. For example, a choice to make an integrative housing move would no more be imposed unilaterally on white housing consumers than it would be imposed on minority consumers. Given this fact, the isolated choices on the part of individual white consumers to live in homogeneous neighborhoods generally go unquestioned. But the demand for white, homogeneous neighborhoods is strong. In 2000, nearly a quarter of all census tracts in the 100 largest metropolitan areas (23.8%) were more than ninety percent white.[ 20] This demand for homogeneity creates enormous incentives for communities to use their zoning powers to deliver this "choice" for white consumers.[21 ]When local governments -- subsidized by the federal government -- use local zoning powers to create a healthy supply of segregated housing options to meet the demand of white consumers,[ 22] they help deny housing choice to minority housing consumers.[ 23] It is time to re-examine whether the choices exercised by whites in favor of segregation are truly neutral, and whether the Fair Housing Act is designed to deliver true housing choice to everyone, or whether this construct is more myth than reality.

Persistence of Racial Residential Segregation

Racial residential segregation persists in the United States, its effects are not neutral, and it is not likely to abate

through increased fair housing enforcement actions . By 2000, segregation had declined according to some measures, with increasing numbers of neighborhoods integrating black and white households yet remaining stable.[ 24] Initial census results for 2010 indicate similar, modest declines.[ 25] Although these trends are encouraging , progress is slow, the national absolute median rates of racial segregation remain high, and

blacks remain the most isolated of any racial group.[ 26] Also, there is a reversal in the level of segregation in schools that bodes poorly for

neighborhood segregation: "After steady decline from the 1950s through the 1980s, black segregation in schools has

increased to levels not seen in thirty years."[ 27] Racial residential segregation helps create what Xavier de Souza Briggs and

others describe as an "uneven 'geography of opportunity.'"[ 28] "For blacks and for some Hispanic subgroups, extreme racial isolation is a marker

for extreme social and economic distress."[ 29] As poor people became more concentrated in places with fewer jobs, conditions associated with high concentrations of poverty flourished.[ 30] Links between neighborhood, physical and mental

health, and life prospects demonstrate that continuing racial residential segregation is not a neutral phenomenon. [31

] With respect to educational opportunities, segregation translates into school systems "characterized by high student poverty rates, limited school resources, less experienced and credentialed teachers, less educated parents, high

student turnover, overcrowded and disorderly classrooms, and a host of health and other problems."[ 32] Further, "a growing body of evidence suggests that housing segregation contributes to persistent racial disparities in exposure to crime and violence, physical and mental health status and health-related behaviors (disease, trauma, and other

stressors, poor diet and exercise habits), and a variety of environmental health hazards, including pollution."[ 33] Researchers have found that "metropolitan areas with higher levels of residential segregation by race also show larger jobs- housing mismatches by race."[ 34] Throughout the 1990s, more jobs were created and business expanded in the suburbs than in the cities, and "[b]y the mid-1990s, about 70 percent of all jobs in the manufacturing, retailing, and wholesaling sectors … were in the suburbs."[ 35] Black and Hispanic households are most affected by the mismatch because they are less likely to live near job growth and have unequal

access to transportation .[ 36] Despite some improvement for blacks during the 1990s in the "jobs-housing mismatch," " blacks on average

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remain more physically isolated from jobs than members of any other racial group. "[ 37] According to Peter Marcuse, the contemporary American "black ghetto, with its perceived permanence, the outcast ghetto, is the most disastrous of all the manifestations racial separation has taken over the last hundred and thirty years in the United States."[38 ]The causes of persistent racial residential segregation in the post-Civil Rights Era have been thoroughly explored. Scholars have posited that no one theory or cause can explain segregation.[ 39 ] Some of the many causes that have been suggested focus on enforcement and include: inadequate enforcement of civil rights laws; weaknesses in the FHA's enforcement provisions, its focus on isolated acts of discrimination,[ 40] lack of public awareness of federal fair housing protections, the difficulty of detecting discrimination,[ 41] and low rates of reporting or complaining about discrimination.[ 42]

Systematic Discrimination is rarely prosecuted Logan 2016 Logan J. Separate and Unequal: Residential Segregation. Communities & Banking [serial online]. Winter2016 2016;27(1):20-22. Available from: Business Source Complete, Ipswich, MA. Accessed April 25, 2016 A longstanding question about black-white segregation has been how it can persist at such high levels despite other social changes that would suggest optimism: the growth of a black middle class with many affordable choices of where to live, the passage of fair housing legislation at the national level and in some states and cities, and evidence from surveys that suggest increasing white openness to living in more diverse neighborhoods. Part of the answer is that systematic

discrimination in the housing market persists and is seldom prosecuted. Fair housing laws are enforced mainly when

minority home seekers can document discrimination and pursue a civil court case without assistance from officials. 4 Another part of the answer is urban history. As African Americans in the 1940s and 1950s moved in large numbers from the South to northern industrial cities, it was clear where they were allowed to live, and the ghettos then created persist. The history for Hispanics and Asians is different because they are newer arrivals. Except in cities with a long history of Puerto Rican and Mexican settlement, Hispanics and Asians have experienced less discrimination and have been less segregated than blacks. There is also evidence that individual success (gaining more education, learning English, living longer in the United

States) results in considerable mobility out of ethnic neighborhoods—much less true for African Americans . Yet because Hispanic numbers are growing rapidly, their geographic mobility cannot overcome the inflow into ethnic neighborhoods. Another factor is the difference in the quality of collective resources in neighborhoods that have predominantly minority populations. It is especially true for African Americans and Hispanics that their neighborhoods are often served by the worst-performing schools, suffer the highest crime rates,

and have the least valuable housing stock. Few whites with other options will return to these neighborhoods while they suffer from such problems. At this time, it appears that integration of neighborhoods rarely results from white in-migration but is mostly conditional upon the ability of minorities to move into previously all-white areas. That is happening more, especially in stable middle-class neighborhoods. But too often it results in white flight.

FHA was not designed to address income disparities

Some suggest that income and wealth disparities between racial groups explain persistent racial segregation.[ 48] It is true that the lowest income households -- those most isolated and affected by housing segregation -- -- function largely in isolation from the

housing marketplace .[ 49] Scholar David Troutt has referred to these persistently poor, ghetto neighborhoods as "antimarkets."[ 50] Considering that the housing market operates in a "pay to play" fashion, those who cannot pay or play are not able to benefit

from laws designed to ensure that the playing field operates fairly. in this sense, antidiscrimination protections are only triggered when a household has the resources to participate in (or "play") the housing market by exercising some

choice among options. once a household enters the housing marketplace, it will be entitled to equal treatment in negotiating and competing for housing, equal terms and conditions in the provision of housing, accurate information about housing availability, and the right to be free from steering to or away from certain

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neighborhoods on the basis of race.[ 51] it stands to reason that poor people of color who operate wholly outside of private-market housing transactions are similarly outside the ambit of these core provisions of federal fair housing law. Therefore, the core nondiscrimination provisions of the FHA seem irrelevant to those residing in the most distressed, segregated neighborhoods and have contributed little to the

dismantling of the ghetto. [ 52] Given the nature of an equal housing law that assumes participation in the housing

marketplace, it might be argued that housing choice should correlate with income. According to this theory, the lowest-

income households have the fewest housing options purely as a function of income -- -- not race -- and the FHA was not

designed to address income disparities . Yet there are additional race-neutral, market-based assumptions embedded in this theory that must be questioned. The disparate income theory of segregation assumes baseline parity with respect to the housing choices available among all racial and ethnic groups at all income levels, assumes that housing choice expands with greater income, and assumes that all race and income groups have equal access as their households attempt to climb the housing ladder.[ 53] These assumptions play out in the following ways. First, the marketbased assumptions maintain that if rising income buys more housing choice for all racial and ethnic groups, then all groups have the same incentives to enhance income, thus expanding access to neighborhoods with more favorable amenities.[ 54] Second, the market-based assumptions hold that if all race and income groups have the same quality and quantity of choices at all income levels, then the failure of households at the lower end of the housing ladder to act on the incentives of the market reflects more on the motivation of the household than on any institutional barriers to mobility.[ 55] Third, the assumption is that although we would likely admit that white households at the lowest income levels do not face the same adverse neighborhood conditions as do blacks (concentrated poverty, low-performing schools, and high rates of crime and violence), we might believe that the lowest-income households of color have somehow chosen their neighborhoods over other options, or are responsible for their neighborhood conditions.[ 56] The market-based assumptions also discount the ways in which adverse neighborhood conditions can fuel racial disparities relating to rates of incarceration, job readiness, and physical and mental health.[ 57] They particularly ignore the fact that different neighborhood dynamics at play for whites and people of color likely affect

the respective ability of each group to climb the housing ladder out of poverty .[ 58]

White Housing Choices are given Precedence

Despite a substantial decline in the proportion of whites with uniformly negative stereotypes of people of color, the vast majority of whites still

harbor some negative stereotypes of blacks and Hispanics .[ 93] Further, "[w]hite households may not dislike living next to a black household

per se; rather, many white households may associate predominantly black neighborhoods with diminished neighborhood quality and resilience."[94 ] The evidence suggests that white people fear that increasing levels of integration will trigger "declining property values,

rising crime, and white flight."[ 95] These kinds of fears among whites cause them to avoid neighborhoods black people

are entering , creating a self-fulfilling prophecy of racial change and neighborhood decline.[ 96] Put another way, some whites may choose

segregation because they expect that most other whites will choose it. [ 97] This self-fulfilling prophecy is compounded when members of the real estate industry operate on assumptions about white consumer preferences

in ways that reinforce segregated housing patterns .[ 98] What is clear from the research is that whites are more likely to be able to exercise their optimal housing choices than their black counterparts. The research supports the notion that blacks would prefer greater integration than whites.[ 99] As blacks enter a neighborhood in increasing numbers seeking neighborhood integration at levels of fifty percent or greater, white residents will exceed their integration comfort zone. Thus, although whites would be comfortable living in a neighborhood made up of one-third black residents, they could presumably vote with their feet and exercise the choice to move to a more predominantly white neighborhood at the point when the black population exceeds one-third. Assuming that there are more neighborhoods where whites are the super- majority than there are neighborhoods that are fifty percent white and fifty percent black, whites can exercise housing choice in ways that blacks cannot.[ 100] Nevertheless, judging from whites' increased comfort with higher levels of integration in the early 1990s (compared to those surveyed in 1976), there is cause for optimism that tolerance for racial integration among whites will continue to increase. The research also demonstrates increased comfort with higher levels of integration among younger, more educated whites, which provides additional cause for optimism about the possibility for converging neighborhood preferences between whites and blacks.[ 101] Also, despite the differences in racial preferences noted among whites and blacks, there is considerable overlap.[ 102] Importantly, more than one-third of blacks would be willing to "pioneer," i.e., "to be the first black family to move into an

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exclusively white neighborhood with attractive, affordable housing."[ 103] Further, more than one-half of whites would be "comfortable" in a neighborhood greater than one-third black.[ 104] As John Yinger notes, "not all neighborhoods contain whites with average preferences," and some whites will be comfortable with even higher levels of integration.[ 105] It appears, therefore, that both whites and blacks may be comfortable with a greater level of integration than the housing market provides.[ 106] Therefore, there is some hope for the enterprise of seeking wider housing choices for consumers of color. Subprime lending is also a contributor to Housing Discrimination—Predatory practices in the Black Community. Howell, B. (2006). Exploiting Race and Space: Concentrated Subprime Lending as Housing Discrimination. California Law Review, 94101.

Subprime lending, the extension of loans to those with less-thanperfect credit at higher rates, has developed almost

overnight into a multibillion dollar industry. As the Califomia Supreme Court recently recognized, by bringing access to capital to borrowers who do not meet the "prime" market's creditworthiness standards, subprime lending may have "enabled an entire class of individuals with impaired credit to enter the housing market or access the equity in their homes."" However, the rise in subprime lending has also opened the door to "predatory lenders," who resort to high-pressure sales tactics, half-truths, and outright fraud to convince borrowers to take out

subprime loans with excessive fees and exorbitant interest rates. '^ One economic model estimates that homeowners lose $9 billion in home equity to predatory lenders annually.'^ Policy makers face the difficult task of determining when a lender's destructive profitmaximizing practices cross the line of legality.'" The most disturbing aspect ofthe rapid rise of subprime and predatory lending is its significant racial and

geographic concentration. A report by the United States Treasury and the Department of Housing and Urban Development ( HUD) found that

black borrowers were five times more likely to take out a subprime home equity loan than white borrowers'' —a trend that persists at higher income levels.'^ Moreover, a Federal Reserve Board govemor noted that as many as half of subprime borrowers have credit scores that would qualify them for a prime loan.'' Together, these statistics suggest that black borrowers consistently overpay for home finance. Subprime lending is geographically concentrated in the same minority neighborhoods once denied access to banks

and excluded from federal homeownership programs because of their racial composition . Although geographic discrimination alone is not actionable under the Fair Housing Act (FHA or Title VIII),'* if a lender exploits historic racial segregation by marketing higher- priced loans to minority neighborhoods to profit from borrowers' lack of other options, such profiteering may constitute actionable housing discrimination. Discrimination is deeper than income with housing.

Address by ELIZABETH WARREN, U.S. Senator (D-Massachusetts)IT COMES TO US TO CONTINUE THE FIGHT. (2015). Vital Speeches of the Day, 81(11), 347.

And the problem went beyond just income. Look at housing: For most middle class families in America, buying a home is

the number one way to build wealth . It’s a retirement planpay off the house and live on Social Security. An investment option-mortgage the house to start a business. It’s a way to help the kids get through college, a safety net if someone gets really sick, and, if all goes well and Grandma and Grandpa can hang on to the house until they die, it’s a way to give the next generation a boostextra money to move the family up the ladder. For much of the 20th Century, that’s how it worked for generation after generation of white Americans— but not black Americans. Entire legal structures were created to prevent African Americans from building economic security

through home ownership. Legally-enforced segregation. Restrictive deeds. Redlining. Land contracts. Coming out of the Great Depression, America

built a middle class, but systematic discrimination kept most African-American families from being part of it. State- sanctioned discrimination wasn’t limited to homeownership. The government enforced discrimination in public accommodations, discrimination in schools, discrimination in credit—it was a long and spiteful list.

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Voting Rights

The Fifteenth Amendment to the United States Constitution states:

Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

Given the awful implementation of this Amendment, particularly given the fact that section two ensures that Congress will have the necessary powers to enforce this action, we need to debate what is currently happening in the United States to the right to vote. Congress passed the Voting Rights Act of 1965, but even today there are a number of ways that the right can be restricted, not the least of which is “racial gerrymandering” where districts are either clustered together or massively dispersed in order to minimize the impact of the votes of minorities. 2006 saw one of the many extensions of the Voting Rights Act, where the Senate attempted to reverse some discriminatory practices to no avail.

A good way to divide the voting rights area is to look at voter dilution, racial bloc voting, political isolation, and codifying a violation of the VRA of 1965.11

Rathod, Duke U. Law, ’11 (13 Berkeley J. Afr.-Am. L. & Pol'y 139, “A Post-Racial Voting Rights Act”)

As Congress contemplates how to modernize the Voting Rights Act and make it better-suited to reduce the salience of race in America, let's hope they consider the career of the nation's first post-racial president. First, Congress should encourage the formation of crossover districts that reward conciliatory post-racial candidates, facilitate minority success in statewide races, and advance civic nationalism as the organizing principle of American society. Second, Congress should fortify safeguards against practices that have a disparate impact on minority voters' access to the ballot. Third, it should trust election officials to do their jobs by wiping the preclearance slate clean while maintaining a deterrent effect through a trigger mechanism. Simply put, Congress should let a post-racial president sign a post- racial Voting Rights Act.

Recent Court action influences the debate

The Supreme Court might change this and rescue Section 5 of the Voter Right’s Act that requires preclearance for changing voting practices. This footnote explains what it looked like before the Court vacated Section 5 in 2013.12 There

11 Stacey Marlise Gahagan and Alfred L. Brophy, ’14 (“READING PROFESSOR OBAMA: RACE AND THE AMERICAN CONSTITUTIONAL TRADITION,” Visiting Clinical Assistant Professor of Law, University of North Carolina School of Law, Judge John J. Parker Distinguished Professor of Law, University of North Carolina, 75 U. Pitt. L. Rev. 495

12 Specifically, “preclearance”—the requirement that a certain jurisdiction obtain DOJ clearance for any changes to voting practices—use to be in effect, but applied to the wrong States in many instances, indicating a number of major changes to implement (including re-instituting some oversight from the DOJ).

Rathod, Duke U. Law, ’11 (13 Berkeley J. Afr.-Am. L. & Pol'y 139, “A Post-Racial Voting Rights Act”)

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is also a decision before the Court right now that looks like it will be 4-4 and uphold Virginia’s ability to “race bloc” districts and make most of the minority votes contained in one district. It’s a cornerstone of civil rights that is being systematically stolen from minorities and we need to take action to stop the trend.

Kira Lerner of ThinkProgress, ’16 (April 12, “What Happens To Democracy After You Gut The Voting Rights Act,” Apr 12, 2016, http://thinkprogress.org/politics/2016/04/12/3768441/voter-suppression-map/)

This year marks the first presidential election in 50 years without a functioning Voting Rights Act — and it’s not going well. Republican lawmakers have been devising efforts to make it harder for Americans to vote for many years, since the GOP took over statehouses across the country in 2010. Those efforts culminated in 2013 with the Supreme Court’s decision to strike down key portions of the Voting Rights Act (VRA), a formerly untouchable cornerstone of civil rights. For the past three years, states and jurisdictions have no longer had to clear potentially discriminatory laws with the Department of Justice — at least not as long as a Congress controlled by radical, right-wing factions continues to sit on the rewrite of the VRA. Meanwhile, emboldened by that Supreme Court victory, other Republican-controlled states have accelerated their efforts to disenfranchise low-income, minority voters, whether it’s through photo identification requirements or limiting the number of polling locations. In 2016, 17 states will have new voting restrictions in place for the first time in a presidential election. While Republican lawmakers like to claim that the laws are not suppressing votes, stories from across the country speak for themselves. In Arizona, voters waited up to five hours in line in order to cast ballots. In South Carolina, people were given misleading information about the state’s voter ID law. And in Wisconsin, students were disenfranchised because polling places refused to accept their out-of-state IDs. ThinkProgress has traveled across the country to speak with people about how voter suppression measures — from voter ID to felon disenfranchisement laws — and poorly organized elections are affecting their participation in the electoral process. In 2013, the U.S. Supreme Court issued an opinion that effectively gutted the Voting Rights Act. By overturning Section 5 of the landmark civil right law — a provision that required states with a history of discrimination to get pre-approval of voting changes — the court opened the floodgates for states to pass voter suppression measures. In the years since that decision, dozens of states have enacted new laws making it harder to vote. The 2016 election is the first presidential election in 50 years without the full protections of the VRA.

Section 5 establishes a set of "covered jurisdictions" that must receive preclearance for all changes to voting practices with the U.S. Department of Justice (DOJ) or the U.S. District Court for the District of Columbia to ensure that the changes are not discriminatory in purpose or effect. n515 The drawing of district lines constitutes a practice that must be precleared for covered jurisdictions. n516 The original formula for determining whether a jurisdiction qualifies as covered is whether the state or political subdivision: (1) used a discriminatory test or device (such as a literacy test), and (2) had low voter turnout in elections in 1964, 1968, and 1972. n517 Other jurisdictions have been expressly added when Congress has amended the VRA. n518 The preclearance mechanism proved to be a tremendously powerful tool in crushing minority disenfranchisement, particularly in the South in the wake of massive resistance to the Civil Rights Movement. n519 Prior to preclearance, the federal government was consistently a step behind the resistance movement. n520 Resisting jurisdictions would develop a new way of disenfranchising minority voters, the federal government would regulate the practice, and then yet another method would be devised. Preclearance ended the riddle. n521 The question is whether this intrusive measure is still required today. n522 Congress used the same thirty-five-year-old criteria when it renewed Section 5 of the VRA in 2006. n523 Section 5 currently applies to: Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, and Texas; most of Virginia; counties and townships in California, Florida, Michigan, New Hampshire, North Carolina, and South Dakota; and three New York City boroughs. n524 The coverage scheme is flawed on several levels. First, it leaves states uncovered that have long histories of racial discrimination (such as Arkansas) n525 and jurisdictions uncovered with recent spates of racially-tinged disenfranchisement (such as Ohio and the densely populated portions of Florida). n526 Second, it covers states even though they have made significant strides in minority voter registration and turnout. For example, while voter registration for white citizens [*210] exceeded black citizens by 50 percentage points in the covered states of Alabama, Louisiana, and Mississippi in 1964, the white registration exceeded black registration by only 3 percentage points in Alabama and 8 points in Louisiana in 2006. n527 In Mississippi, black registration surpassed white voter registration by 1.5 percentage points. n528 Perhaps most tellingly, if coverage were based on voter registration and turnout under 50 percent at the county level for the 2000 and 2004 presidential elections, hundreds of counties currently covered would no longer be, and counties in states as far-flung as Montana, Missouri, and Maryland would be covered. n529

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This is a CRITICAL AND “MUST-BE-DEBATED” ISSUE. These legislators in Virginia explicitly added minority voters to districts that were already predominantly non-white, thereby insulating surrounding districts from minority votes and attempting to protect incumbents. The policy-makers were explicit about it, creating the ridiculous scenario of interpreting clearly racist and unconstitutional policy as primarily “natural political behavior.” Unbelievable—this is happening across the country in different forms of disenfranchisement. This is the best way to debate the Voting Rights Act in terms of a legislative solution to the dilution of the right to vote based on race and a great set of negative arguments about the way that reform would actually look in practice.

Mark Joseph Stern, ’16 (“Was Virginia’s clearly racist gerrymandering unconstitutional?” Slate Magazine-Mar 22, 2016 http://www.slate.com/articles/news_and_politics/supreme_court_dispatches/2016/03/was_virginia_s_clearly_racist_gerrymandering_unconstitut ional.html)

Here’s where my bad chair metaphor comes in: Just as Scalia’s absence forced a rearrangement of other chairs, the redrawing of one district inevitably affected several others. Specifically, the court-mandated map shuffled new Democratic voters into Republican Rep. J. Randy Forbes’ formerly red district. With refreshing honesty about his profound devotion to retaining power, Forbes abandoned his old district and will run in a safer one this year. In Wittman, Forbes has assumed the role of defending the old map and assailing the new one. The question of whether a legislator really has the standing to attack redistricting to defend his incumbency is a novel and unorthodox constitutional issue in its own right, one the court will decide for the first time. But more centrally, Wittman is the latest chapter in a long-running debate about voting rights and racial redistricting. The Voting Rights Act actually requires states to consider race when redistricting. Specifically, states must construct congressional districts in a way that doesn’t negate minority voters’ abilities to elect their preferred candidates. But they cannot do so by using quotas or percentages, and race cannot be the “overriding, predominant force” in redistricting, because, under the 1995 ruling Miller v. Johnson, that would violate the Equal Protection Clause. This goes the other way—the unconstitutional districts in Miller were drawn to help minority voters, but race also cannot be the predominant factor for redistricting that might hurt minority voters. For challengers of the redrawn Virginia district, the game is to prove that the Virginia legislature did not draw its original map by shoving more black voters into a black-majority district simply because they were black.

It’s a fascinating legal, political, and social debate.

Unsurprisingly, the challengers chose Michael Carvin—a rude, rambling libertarian who peppers his arguments with Donald Trump–esque vitriol—to dispute the existence of a racial gerrymander. Carvin does not fare better on Monday than he did when attacking the Affordable Care Act during oral arguments in 2015’s King v. Burwell in a performance that included so much talking over the female justices that Sotomayor finally encouraged him to “take a breath.” (His interruptions are at least gender-neutral this time around; by my count, he ignored Chief Justice John Roberts as many times as he powered past the women.) In fairness, Carvin has a tough task: The Virginia legislature was rather brazen about its attempts to push black voters into the contested district, even setting a statistical goal. He tries to argue that politics, not race, guided the redistricting—and partisan gerrymandering is considered constitutional. If race and politics happened to align here, he contends, that’s not a constitutional problem. Kagan floats a hypothetical about “racist map-drawers” who segregate blacks into a single voting district because they don’t like blacks. “ ‘We don’t like African American voters, and we’re just going to keep them all in one district,’ ” Kagan says, speaking for this imagined group. “ ‘But we also have a second aim. … It turns out that African Americans vote in a particular way. And so our second aim is that we are going to achieve some kind of partisan advantage as a result of this segregation.’ ” “So is that unconstitutional?” Kagan asks. Nope, Carvin says—if racist redistricting was equally motivated by political concerns, it passes constitutional muster. Carvin has nibbled the cheese, and you can almost hear the mouse trap snap shut. “That sounds to me,” Kagan says, with her signature quizzical head tilt, “as though it’s a harmless error rule for racial discrimination.” In other words, Carvin’s proposal would allow racial gerrymandering— even outwardly racist redistricting!—so long as legislators assert that they would have drawn identical maps in order to protect their incumbencies. At least in the realm of redistricting, the Equal Protection Clause would be defanged. Roberts attempts to run interference for Carvin, a position once savored by Scalia, Carvin’s SCOTUS spirit animal. “How do you show what the motive of the legislature was?” Roberts asks, implying that the court should trust legislators when they swear that politics, not race, guided their redistricting. Carvin nods eagerly—but Justice Ruth Bader Ginsburg effectively neuters this line of argument by asking how the court

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can assume politics is the guiding principle behind a particular redistricting. “Rightly or wrongly, the drafter of the plan represented to the court, ‘I haven’t looked at partisan performance. It was not one of the factors I considered in drawing districts,’ ” Ginsburg tells Carvin. Implication: He looked at race instead. Ginsburg’s and Kagan’s questioning mounts a strong case that the legislature’s map was unconstitutionally racist—that it used race as a primary guide to redistricting—and the court should craft a rule that forbids such blatant racial gerrymandering. And oddly enough, the justices have a friend in Virginia, which has performed an about-face on its own districts. When voters filed their lawsuit against the legislature, the attorney general was arch-conservative Ken Cuccinelli, who once argued that Virginia should be exempted from the Voting Rights Act. But now the attorney general is Mark Herring, a very sane Democrat who’s happy to keep the newly drawn, nonracist district in place. Herring and his solicitor general, Stuart Raphael, argue that “politics didn’t control” the initial redistricting; race did, so the racial gerrymander must remain invalidated. Alito, who spends much of Raphael’s argument time cracking up with Kagan over something she whispered, asks the solicitor general whether “anything happened” between “the time when your office took the prior position and your appearance here today?” The justice wants to dismiss the change in position as a partisan flip-flop, but Raphael stays on point, laying out the abundant evidence that the gerrymander was, indeed, racial. Alito eventually gives up and goes back to joking with Kagan, who promptly makes him laugh so hard that he covers his mouth with his hand. (It is strangely reassuring to see Alito display an earnest expression of joy.) In a case like this, you’re supposed to keep all eyes on Justice Anthony Kennedy, who is the swing vote on racial gerrymandering and pretty much every other case ever. But Kennedy seems uncertain about the proper course of action here, probing both sides for a workable solution but ending the morning with no easy path forward. The escape hatch in Wittman—to deny Forbes standing and refuse to rule on the merits—is likely off the table: A majority of the justices seem to agree that Forbes had, in Kagan’s words, “a legally cognizable interest” in suing to get back his old district “when some court has taken it away.” But the heart of the case, the possible conflict between the Voting Rights Act and the Equal Protection Clause, remains a Gordian knot. The VRA was designed in part to help give minority voters the ability to elect their preferred candidates by concentrating their voting power in certain districts. History, however, shows us that states can abuse race- conscious redistricting, sorting minorities by race then cramming them in a single district while cloaking racism in partisanship. The record amply demonstrates how Virginia legislators did just that. Now we’ll see whether the court of color blindness is willing to challenge racial discrimination so obvious you can spot it on a map.

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The Voting Rights Act is a great domestic issue, particularly in terms of reaffirming its ability to keep racial disparity at a minimum for the ballot act. The Court would be great negative ground and in many ways has set up the space for a few good affirmatives with lots of debate on both sides. It’s really flush for debate.

Robert Barnes March 21, ’16 (https://www.washingtonpost.com/politics/courts_law/supreme-court-may-decide-against-va- republicans-in-redistricting-fight/2016/03/21/eb7bfac0-ef79-11e5-a61f-e9c95c06edca_story.html

Supreme Court may decide against Va. Republicans in redistricting fight Because of the death of Justice Antonin Scalia, the court is operating with only eight members. Even a tie would uphold the lower court’s decision, which has scrambled Virginia politics and could mean a change in the state’s congressional delegation. The hearing lasted more than an hour and displayed the intricacies and high political stakes that come when states divide their residents into congressional districts. Carvin generally represents Republicans and his adversary and fellow Washington lawyer Marc E. Elias represents Democrats, and their Virginia battle is being replicated in courts around the country. Under the Supreme Court’s somewhat hazy guidance and the Voting Rights Act, state lawmakers must consider the race of those who populate each district to ensure minorities have a fair shot at being represented. But lawmakers fail if they let race become the predominant issue in drawing the lines. The three federal judges who examined the commonwealth’s plan said it veered from partisan gerrymandering aimed at protecting incumbents — for which the Supreme Court has shown a high tolerance — into racial gerrymandering, which the Constitution forbids. The judges gave the legislature a chance to redraw the map, but legislators were unable to do so. So the panel imposed a map of its own. In a separate proceeding, the Supreme Court refused to stay that plan, and voters in June will go to the polls to elect members of Congress from the revised districts. Carvin told the court that when redrawing the map after the 2010 Census, the Virginia General Assembly was motivated by protecting incumbents — the state’s congressional delegation consisted of eight Republicans and three Democrats — and preserving core areas of existing districts. It was a success, he said. “Every incumbent was reelected.” But former state delegate Bill Janis (R-Glen Allen), who devised the commonwealth’s congressional map, testified that he did not consider partisan implications of his plan. He said he decided the voting-age black population in Scott’s district should be increased to at least 55 percent to comply with the Voting Rights Act. “That’s what the drafter of the plan said,” said Justice Ruth Bader Ginsburg. “He didn’t take into account partisan performance.” Chief Justice John G. Roberts Jr. said that did not mean that the entire legislature was motivated by racial decision-making. “How do you show what the motive of the legislature was?” he asked. But Justice Anthony M. Kennedy was concerned. Even if politics motivates the line-drawing, Kennedy said, “May we then use race to move people from one district to another, simply because that’s the easiest way to do it? We know that this is a race that votes strongly for a particular party, so we can use race for this ultimate neutral purpose?” Carvin said no, but that race and politics in this case were “co-extensive.” Justice Elena Kagan said that did not matter. “Does the fact that it also has political benefits, does that insulate these line drawers from what you would think is the obvious conclusion, which is this is unconstitutional conduct?” she asked. Representing Virginia, state Solicitor General Stuart A. Raphael said the commonwealth originally defended the legislature’s work, but now believes the decision of the lower court should be accepted. “Did anything else happen between the time when your office took the prior position and your appearance here today?” asked Justice Samuel A. Alito Jr., to laughter. His obvious reference was that the state’s governor and attorney general are now Democrats, where Republicans previously held the jobs. Although Raphael supported the lower court, he also said that, on the question of standing, Rep. J. Randy Forbes (R), who currently represents District 4, should be able to challenge the lower court’s decision to radically change his district. Forbes currently has decided to run for the seat being vacated by Rep. Scott Rigell (R). But Elias, and Deputy Solicitor General Ian H. Gershengorn, representing the federal government, said he should not. They said Kagan and other justices were correct to question whether a member of Congress has a legally recognized right to challenge unfavorable changes to his district. “Under the American system, voters choose candidates,” said Elias. “They choose their elected officials. It is not the other way around.” The case is Wittman v. Personhuballah.

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Immigration

Immigration laws are key to maintaining the border of the nation state, but a revitalization of the current immigration laws are needed in order to solve back for the racial profiling and fearmongering caused by current immigration legislation. Immigration reform has become an important topic in the 2016 presidential race. Immigration reform has been shoved into the forefront this presidential election because of the influx of refugees, migrant workers, and recent terrorist attacks. However, Congress has failed to produce a comprehensive immigration bill since 2013 despite the economic benefits that would occur from immigration reform. This is because xenophobic beliefs have stalled any progress for reform, but the arrival of a new administration and (possibly) Congress could spark the potential for new immigration reform

Parker, Christopher 14 (“The (Real) Reason Why the House Won't Pass Comprehensive Immigration Reform” Brookings. 2014. http://www.brookings.edu/blogs/fixgov/posts/2014/08/04-immigration-tea-party-constituencies- parker) It’s been a year since the Senate passed a comprehensive immigration bill. George and Jeb Bush and Sens. John McCain and Lindsay Graham support it. Conservative public intellectuals such as David Brooks, Grover Norquist, and Karl Rove also support it, as well as more than 100 conservative economists, the Wall Street Journal and the CATO Institute. Comprehensive immigration reform enjoys a level of popularity that should make it a win-win for all involved. Still, House Republicans refuse to support it — even though the Senate recently passed a bipartisan bill with which many conservatives are satisfied. With every reason to pass comprehensive immigration reform, why are House Republicans standing in its way? Many claim that the Senate bill amounts to amnesty, a measure they suggest leaves us no better off than we are now. They stress securing the border and expelling the 11 to 12 million “illegal aliens” residing in the United States. House Republicans argue that the Senate bill amounts to nothing more than a breach of the rule of law – a foundational conservative tenet. But something beyond ideology drives House Republicans’ resistance to comprehensive immigration reform. Let’s review the case against comprehensive immigration reform from the House GOP’s perspective. They argue that the conservation of law and order requires the following. First, the 11 million “illegal aliens” must be expelled. To do what the Senate bill suggests, and legalize the undocumented six months later, amounts to amnesty rewarding criminal behavior. Second, legalization is accompanied by nominal preconditions. However, House Republicans complain that the fine imposed by the Senate bill, at $2K, isn’t enough. According to their calculations, it’ll only amount to $7 per month, and can be waived. Third, House Republicans also contend that the requirement to pay back taxes will be difficult to enforce. Fourth, the criterion for passing the criminal background check has a major loophole. It seems that some “illegal aliens” will be eligible for legal status even if they’ve been convicted of a felony—albeit one that was ultimately plead down. Here’s the rub, though: In addition to prioritizing law and order, conservative doctrine also requires a commitment to fiscal responsibility. The Senate bill goes a long way toward addressing this need. For starters, the nonpartisan Congressional Budget Office (CBO) estimates that the bill will save approximately $135 billion during the first decade of implementation, a figure that includes the cost of securing the border. The bill will also save taxpayers as much as an additional 685 billon in the ensuing ten years. That’s a savings of almost $1 trillion ($820 billion) over twenty years. Additionally, the CBO estimates that the Senate bill promises to reduce illegal immigration by at least one-third to one-half in the ten years following its enactment. Conservatives not affiliated with the House embrace the legislation because it’s consistent with major tenets of conservatism. Why, then, do many House Republicans oppose comprehensive immigration reform, as presented in the Senate bill? It’s because House Republicans aren’t motivated by true conservatism. Rather, they represent constituencies haunted by anxiety associated with the perception that they’re "losing their country" to immigrants from south of the border. The Republican Party is 89 percent white, and 97 percent of Republican House districts in the 113th Congress have white majorities. Moreover, 67 House Republicans won seats with the support of the Tea Party. And people who are highly identified with the Tea Party are anxious about Latino immigrants taking over “their” country. In some instances, Tea Party groups are leading the charge against comprehensive reform. Nativism enjoys a strong presence in the Tea Party Caucus among House Republicans. Indeed, according to the most recent data gathered by the Institute for Research & Education on Human Rights (IREHR), approximately 70 percent of the House Tea Party Caucus overlaps with the anti-immigrant House Immigration Reform Caucus. If opposition to immigration reform is motivated by conservatives' concern with law and order, as House Republicans claim, we should observe no differences between Tea Party and non-Tea Party conservatives in the mass public on immigration policy, but that’s not what’s happening. A national survey I conducted revealed significant discrepancies between Tea Party conservatives and non-Tea Party conservatives, especially when it comes to “illegal” immigrants and immigration policy: When asked whether or not "restrictive immigration policies are based in part on

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racism," 40 percent of non-Tea Party conservatives say that racism has something to do with restrictive immigration policy versus 18 percent of Tea Party conservatives. Almost two-thirds (66 percent) of Tea Party conservatives want to eliminate birthright citizenship (part of the 14th Amendment) versus 46 percent of non-Tea Party conservatives — a 20-point difference. Only 30 percent of Tea Party conservatives support the DREAM Act versus 50 percent of non-Tea Party conservatives, another 20-point difference. It’s clear that Republican constituents are fraught with anxiety induced by the perception of a cultural threat. To verify this point, I probed how Tea Party identifiers felt about “illegal” immigrants’ presence in America. When asked about how they feel about “illegal aliens,” it turns out that 82 percent of Tea Party identifiers are either anxious or fearful of them. This is the real reason why the House GOP refuses to pass the Senate bill: their constituents are anxious, even fearful that immigrants will take over the country. If history is any guide, these discrepancies will have tangible consequences for the Republican Party. In the early 1960s, the Republican Party faced a similar crisis in which the more moderate, mainstream wing of the party, led by George Romney, Richard Nixon, and Nelson Rockefeller, faced off against the reactionary wing, led by Barry Goldwater. We know the result: Johnson trounced Goldwater in 1964. In the years that followed, the Republicans adopted a different strategy, one that included pursuing new constituencies: working-class, ethnic whites in cities of the "North" and white southerners. As a result, Nixon won the White House twice in the following years. Like the GOP of the past, the current Republican Party needs to pursue a new constituency. Only this time the constituency it needs to win over aren’t “real” Americans, at least according to the Tea Party faction of the GOP. In other words, the GOP needs to win over Latinos if it wishes to remain a viable party in the long run. However, recent public opinion suggests that Latinos reject House Republicans’ law and order approach to immigration. For instance, only 13 percent of Latinos agree with the priority House Republicans place on securing the border first. Likewise, only 23 percent agree with the proposition that more immigrants should be sent to jail or detention centers. If Republicans continue letting the Tea Party's nativist politics lead its legislative agenda, it will lose an opportunity to help deliver comprehensive immigration reform to America. Given the demographic trends and popularity of this legislation, this failure could, in turn, cost Republicans the White House again in 2016 and cause them to lose even more seats in Congress than they did in 2012.

1. Legislation

American immigration laws have always been racialized, starting with European colonization and the Middle passage, then becoming into full force with the Chinese Exclusion Act. Modern immigration laws contain racial quotas offset by capitalistic interest, which have morphed together to create a binary of the “worthy/unworthy” immigrant. Immigrants are views as assets that need to be surveilled through the 1986 Immigration Reform and Control Act that weeds out the unwanted immigrant. New legislation is needed in order to offset the disparity caused by current immigration laws. Drevdahl, Denise J 07 (Exclusive Inclusion: The Violation of Human Rights and US Immigration Policy, Advances in Nursing Science, October/December 2007 - Volume 30 - Issue 4 - p 290–302.)

The United States is a nation of immigrants. With the exception of Native American groups and some Mexican descendants, few in the population can point to an ancestry that has its origins within US geographic borders.4 Over the years, many immigrants have settled in the United States, with the hope of finding freedom from oppression, improving their economic situations, and building lives in relatively safe and stable environments. Those fleeing places of political and economic oppression are seeking, in many instances, freedoms of speech, religion, and political safety, as well as wage and job opportunities. To secure these freedoms and opportunities, early American lawmakers drafted the US Constitution and the Bill of Rights (the first 10 amendments to the constitution). While the nation's founders—Jefferson, Hamilton, Madison—needed immigrants to assist with populating the young nation, they remained uneasy about the political leanings, language, and work ethics of some of the newcomers. From their perspectives, not everyone was welcome to the country's shores.4 Unfortunately, tensions between “worthy” and “unworthy” foreigners have not diminished with the passage of time. Initial federal immigration policies, beginning with the Immigration Act of 1875, had their birth just after the US Civil War and were driven primarily by downturns in economic growth.5 Early immigration policy was racialized; besides identifying prostitutes and convicted felons as personae non grata, Asians also were on the excludable “alien” list. Racialization of immigration policy was in full force by 1882 with adoption of the Chinese Exclusion Act. This act launched an almost yearly passage of revised or new immigration legislation, much of which was propelled by racist assumptions about “physically, genetically, and intellectually inferior” immigrants.6(p532) In

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1903, beggars, epileptics, the insane, and anarchists were added to the list of those who could be denied legal admission to the United States, followed 21 years later by the Immigration Act of 1924, which limited legal immigrants to 150,000 individuals per year. The Immigration and Nationality Act (INA), better known as the McCarran-Walter Bill of 1952, provided the basic framework of present-day US immigration law.7 In this act, although some quotas based on race remained, children and spouses of citizens were exempt. Quota preferences were granted to immigrants with skills needed in the US workforce, to parents of adult US citizens, to spouses and children of legal aliens, and to siblings and married children of US citizens.5 In 1965, the INA was substantially modified in 3 ways. First, quotas by national origins were phased out. Second, a system of preferences was altered from emphasizing national origin to emphasizing reunification of family members and finding workers for those occupations deemed to be in short supply (eg, nurses and physicians). Third, labor certification was initiated. Known as a Labor Condition Application, this step mandated that the US Department of Labor verify that foreign workers were filling jobs for which there were insufficient qualified US workers and that employment of foreign workers did not harm the working conditions or wages of US workers.7,8 By 1965, several categories of visa status were in place. Permanent residence (immigrant) status meant that the incoming individual had the possibility of becoming a citizen with all its attending rights and privileges, while temporary (nonimmigrant) status allowed a foreign worker into the United States for a limited time, and, generally, for a specific job. Currently, temporary status is used to either meet seasonal job needs (such as for agriculture) or to fill more permanent positions often considered undesirable by native workers (often low-wage jobs such as those offered in the fast food industry) or for which native workers lack the requisite skills. Highly skilled workers, such as registered nurses (RNs), usually enter through the H-1 program, a category constituted by “aliens of distinguished merit and ability.”7 The 1986 Immigration Reform and Control Act established civil and criminal penalties for employers who knowingly hired illegal immigrant. Each new immigration legislation resonates of earlier legislation that, at times, restricts immigration and, at other times, expands employment-based immigration.9 For example, the 1990 Immigration Act actually increased annual immigration levels such that there was a tripling of occupational visas from 54,000 to 140,000. This act also implemented a new H-1b program for nonimmigrants entering in “specialty occupations,” making it much easier for professional workers to gain temporary employment.10 Requirements for the H-1b included the applicant having at least a bachelor's degree and the employer submitting a Labor Condition Application. Attempts at immigration “reform” continued with passage of the 1996 Illegal Immigration Reform and Immigrant Responsibility Act. This legislation focused on stemming illegal immigration through increasing both the border patrol and civil penalties for illegal entry. New immigration legislation was introduced, yet again, in the US Congress in early 2007, and would have allowed illegal immigrants to obtain a “Z” visa starting them on the process to citizenship, added 20,000 more border agents, created a new temporary guest worker program (primarily for lower skilled workers), established an employment-based point system for new immigrants on the basis of education and skill level, and provided an additional 40,000 H-1b visas for skilled workers with advanced degrees.11 In June 2007, the immigration bill failed to pass out of the US Senate and with it any possibility that the Bush presidency would sign into legislation a revised immigration policy. Noteworthy was the proposal's deemphasis on admitting those with family ties and the creation of a new merit-based points system determined by an applicant's education and skills. The new legislation would have reinforced treating immigrants differently on the basis of education and skills, pointing to disparity in treatment for various immigrant groups and raising questions about the fundamental fairness of US immigration policy. Of particular interest to us were the high value and preference given to healthcare workers in comparison with manual/low-wage workers. Justification for this disparity and the international competition for RNs generally revolve around growing healthcare demands and the diminishing number of nurses.

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2. Capitalism

The current immigration policies create a process of othering marginalized immigrants, making it impossible to gain social inclusion and turning wanted immigrants into high value commodities and unwanted immigrants into hypervisible target that need to be eliminated. Center Reform is needed to solve back for this.

Drevdahl, Denise J 07 (Exclusive Inclusion: The Violation of Human Rights and US Immigration Policy, Advances in Nursing Science, October/December 2007 - Volume 30 - Issue 4 - p 290–302.)

Construction of some groups as being more valued and with more due respect and privilege than others occurs in all societies. Becoming the “other”36—the unwanted outsider—is a process that “defines and secures one's own identity by distancing and stigmatizing an(other).”37(p1933) “Othering” serves to establish what is “normal” (us) and what is “abnormal” (them). Part of that process is seeing lower wage immigrants as abnormal in that they are rarely seen as individuals “with agency, skill or resilience, with capacity to contribute and be an asset to their new communities.”37(p1935) Instead, they are burdens to society who use up supposedly limited resources, including medical resources. Consequently, “othering” leads to negative emotions such as distrust, dislike, and resentment that then are linked to particular groups according to signifiers such as race, nation of origin, and language. Once an individual or group has been marked as “not us,” they are seen as existing on the outer boundaries of society, marginalized by the majority of that society.38 This positioning away from the Center (ie, dominant structures, policies, and other sources of power) generally means the marginalized have limited access to resources, are subject to differential treatment, and exert minimal social influence and authority.† Although Vasas claimed that “marginalized people are invisible to those in the Center,”38(p196) this is not the case for the unwanted foreign worker. The Center is constantly reminded of the worker's presence through such symbols as the fence being built on the US-Mexican border and the individuals who serve in the US Border Patrol. Individuals, social structures, and policies that maintain the Center also function to maintain the margins.38 Thus, immigration policies function to further perpetuate a process of “othering,” especially with unequal allocation of assistance in securing a work visa. The immigrant entering an unfamiliar culture often encounters difficulties in finding his place in the new society. For the immigrant who is in the country illegally, marginalization and social exclusion are actively sought as he tries to hide his existence and identity from authorities and those who can expel him. Since the Center and its attendant structures and policies focus on these acts of deception and dishonesty, the unstated message is that it is the “responsibility of the [S]tate to uphold moral principles, and fulfill a range of legal duties and obligations.”37(p1935) If this responsibility is true, it is contradictory that the State maintains policies that determine who merits being included in US society and who should be excluded (policies that are inherently immoral and unjust), and yet can prosecute an immigrant on moral grounds of deception. It is unlikely therefore, that the State, in the context of immigration, holds the moral high ground here. Harris and Williams refer to social inclusion as a “policy metaphor” and suggest that “official” social inclusion policies are linked to ideas of national identity, which, in turn, “set out the attributes and values of a person who truly belongs.”39(p206) Social inclusion “works” in much that same way that citizenship and community do—it tells us who belongs to a particular group and who does not.40 Social inclusion simultaneously determines the included and the excluded. Thus, enforcement of immigration policies that provide expedited visa processes to “high-value” workers, such as nurses and other healthcare professionals, produces a community of undesirable and low-value workers (eg, factory workers) through the construction of foreign nurses as more “worthy” immigrants. Often the answer to exclusion is to cross the border and become an insider in a society whose exclusionary structures and practices often go unchallenged. In modern society, employment is the mechanism by which the once excluded are brought into the fold of society.41

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Prohibited from working, the unworthy immigrant worker has little chance to move from margin to the Center. And if, by chance, she does move closer to the Center through employment, there is little incentive for her to interrogate those structures that created the Center and margin in the first place, particularly if she is working illegally and is in constant fear of deportation. If the marginalized are unwilling or unable to question and analyze social structures that keep them marginalized, then who should? We believe the answer is those of us who are welcomed and included in society.

3. Anti-Blackness/Xenophobia

The sqou creates a normative model of citizenship is centered on whiteness being an image of innocence, making nonwhite persons an image of deviancy. CXapply the Drevdahl evidence reporting that House Republicans oppose relaxed economically beneficially immigration reform because of the fear of the deviant “other”

Harris P., Williams V. 03, (Social inclusion, national identity and the moral imagination. Drawing Board: Aust Rev Public Aff. 2003;3(3):205–222.)

In the first part of the 20th cen tury, the most influential representations of national identity centred on a white, racialised self based upon the British ‘national type’. The Immigration R estriction Act 1901 did not just exclude undesirables. It also affirmed a particular national identity, expressing in McQueen’s terms ‘a code of civic morality ... a doctrin e full of affirmative values, offering much more th an a negative rejection of other peoples’ (1986, cited in Kane 1997 , p. 118). The desired attributes of civic behaviour hinged on a moral, social, and psychological type who was to be independent, egalitarian, and confident ( White 1981, p. 64). The connective element of this version of national identity centred on Australian mateship underpinned by a commitment to hard work and independence. This version set the contours of social inclusion for a long time, for, although its gendered dimensions have changed, the commitment to the ‘battler’ — as well as a tendency to cast the ‘fair go’ in terms of paid employment — endures. The emotional foundations of this prototype were clear from the outset: vulnerability about the national vision (was it really possible to build a new, egalitarian version of Britishness in this vastly different land?) coupled with fear and distrust of the indigenous and neighbouring Asiatic populations. Prophetically, this linked national identity with the denigration of ‘what we are not’, with Alfred Deakin commenting that ‘no motive power operated more universally on this Continent ... than the desire that we should be one people, and remain one people, without the admixture of other races’ (cited in Willard [1923] 19 67, p. 119). The prejudicial attitudes to which this gave rise are widely known. For example, the outbreak of smallpox and leprosy in the late 19th century was widely presumed to have been introduced by Chinese arrivals (Willard [1923] 1967, p. 61) and, more generally, the Chinese were held responsible for ‘disease, defilement, depravity, misery and crime’. Worse still, they ‘cannot be trusted in a household or near any of its female members’. To the Premier of New South Wales, Henry Parkes, ‘they were amoral and social pestilence’ (all cited in Immigration Reform Group 1962, p. 11).

“The racial category “black” is not merely an excluded category in a history of documented Western preference for “white” immigrants. Comparative historical evidence shows clear strategies to keep black persons out of First World nations, except as temporary labour. In this climate, black migration occurs partly because each nation has an ambivalent relationship to the black labourers, soldiers and seamen who offer their service expecting membership in the polity in return. Finding such membership objectionable, Western governments individually avoid black immigration” –direct quote

Bashi Vilna 04 (Globalized anti-blackness: Transnationalizing Western immigration law, policy, and practice. Ethnic and Racial Studies Vol. 27 No. 4 July 2004 pp. 584–606)

In this period, a more explicit language of equality and rights masks continued illiberal immigration policy and continued ambivalence about the merits of admitting the black labour, since blacks are still undesirable citizens. Black admittance is couched within contract labour schemes (begun, for the most part, in the 1950s) that attempt to force black workers to be temporary sojourners with neither equal opportunity nor rights. Meanwhile, governments continue to watch the policies the others adopt with regard to blacks. Canadian policy-makers’ anti-black sentiments continued, 14 even if much of the published immigration literature on Canada suggests that the Canadian government in 1962 removed the most discriminatory provisions from their

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books. A longstanding ‘White Canada policy [was] officially abandoned only in 1962’ (Jakubowski 1997, p. 11) and ‘indeed the whole lengthy episode of White Canada is often played down, or clothed in discreet silence or simply not extrapolated from its historical context.’ 15 To be specific, in 1967 Canada abandoned the use of family reunification policies meant to ensure a white immigration pool, declaring family reunification policies to be racist. Canadians instead implement a ‘Points System’ emphasizing occupation and education as entry criteria, and black West Indians begin to arrive in far greater numbers. Over 70 per cent of the black immigration into Canada at this time was from the Caribbean (Winks 1971, p. 444). But the new law brought back ad hoc discrimination by requiring black immigrants to present bonds to prove they had enough money to support themselves, while whites had no such burden (Boyko 1995). Although the racist letter of the law may have changed in the early 1960s, politicians’ antipathy towards the black immigrant did not. In January, 1966, for example, Tom Kent, the newly appointed deputy minister, was informed about “the long range wisdom” of preventing “a substantial increase in negro immigration to Canada,” particularly given the current “racial problems of Britain and the United States.” Another brief warned that Canadians, who “in normal circumstances would not have any prejudice in respect to race, colour, or creed, have shown concern that through rapid increases in the intake of undereducated and un-skilled immigrants, especially if multi-racial, we could end up with situations [race riots] similar to those in the United Kingdom”. (Avery 1995, p. 204) It was agreed that Caribbean workers might be brought in as seasonal contract labour to relieve shortages in the agricultural sector, because as temporary workers they ‘would not have the privilege of sponsoring innumerable close relatives’ – a quote from a letter to the Deputy Minister from the Assistant Deputy Minister at the time. 16 ‘The commitment, in theory, to the elimination of racial discrimination was more formally enshrined in the Immigration Act of 1976,’ however, ‘immigration law is still racist[, for] the number and location of immigration offices outside of Canada and the discretion awarded to immigration officers in determining adaptability suggests that immigration, to some degree, is still being [racially] “controlled,”’ and amendments to the 1976 Act [both] reinforced racial discrimination and ‘naturalized’ racial inequality in Canada (Jakubowski 1997, pp. 19, 21). In the 1970s’ domestic worker scheme, Canada issued permits to work for only two years. At first, women recruited under this scheme were denied access to citizenship and government benefits, but in response to protests domestics were allowed to apply for citizenship after three years. Conversely, few restrictions were imposed against whites who desired to immigrate to Canada. The US, in its 1965 Act, also significantly changed the racial language of its immigration policy – adopting a policy of family reunification. By one researcher’s reasoning, this occurred because ‘Lyndon Johnson [was] in the presidency and a liberal Congress [was] focused on expanding civil rights’ (Calavita 1984, p. 62). However, the policy supported retaining the racial and ethnic immigration structure of the national-quota system, even as they abolished overt mechanisms of that system (i.e., the quotas themselves) (Briggs 1984, pp. 68–9; Borjas 1990, pp. 30– 33). Just as had been done in 1924 and 1952, US legislators sought ways to racially discriminate among immigrants, while not projecting obvious racial bias in the law’s language. 17 Lawmakers reduced occupational preferences to 20 per cent of the available visas and downgraded their priority, and allocated 24 per cent of all available visas to a new family reunification preference group (for siblings of citizens). Even with renewed restrictions on blacks desiring to enter the UK and US, recruitment of labour under contract conditions was the order of the day. These contract agreements staffed New York City and London hospitals with black nurses and aides, and British Rail and London T ransport (London’s unified bus, coach, trolley, and rail service) with black men’s labour. (London Transport had active recruitment programmes in Barbados, Jamaica, and Trinidad and Tobago – of the nearly 40,000 workers (including supervisors) in its employ in 1975, nearly 7,000 were black workers from the Caribbean islands; (Brooks 1975)). The ambivalence over inviting black labour persisted, for black workers faced job discrimination, and found that their co-workers held a general ‘antipathy’ towards immigrants in general, and a more vehement animosity towards black immigrants. In Britain, the image of black women workers was particularly unfavourable (Brooks 1975). T he 1981 Nationality Act, finally removing the rights of citizenship from black former colonial subjects, solidified West Indians’ ‘undesirable’ status in the UK. Introduced by Prime Minister Thatcher, this law made explicit the assumption that Britain was threatened by ‘outsiders’ of a different colour. Home Secretary William Whitelaw declared it necessary because some ‘holders of the present citizenship may not unnaturally be encouraged to believe, despite the immigration laws to the contrary, that they have a right of entry to the United Kingdom,’ 18 and the law would ‘dispose of the lingering notion that Britain is somehow a haven for all those whose countries we used to rule.’

Immigration rhetoric centers on criminological discourse that supercharges white innocence/black deviance and encourages a series of surveillance illegal immigration legislation the mirror the surveillance of runaway slaves. It is important to discuss immigration policies in order to interrogate our positions of privilege, marginalization and power

Woods Tyron P. 08. (The Plantation Society: Discussing immigration through the lens of Criminology. Project Muse. Radical Teacher. Number 84, Spring 2008)

In this reflection on my teaching, I wish to share the problems I have encountered in teaching criminology students about immigration in general and the politics of immigration in particular. I suggest that these challenges are in many ways indicative of the general need for educators in the academy to do more in re-evaluating how we teach and learn about power. There is much about my experience that will be familiar to other radical teachers who attempt to confront complex social issues in the classroom at a historical juncture when such matters are more commonly reduced to individual failures (e.g., as prejudice, criminality, immorality). At the same time, I argue that my experience reveals an uncommon insight, one largely missing from progressive or radical discourse on immigration. Namely, what my criminology students have shown meis that anti-immigrant discourse is fundamentally reliant upon criminological tropes widely distributed throughout the society. These tropes are so basic to our society that while it took teaching criminology for me to recognize it as such, it certainly did not take learning criminology for my students to apprehend the immigration issue in criminological terms. Students come to my classroom well-versed in the prevailing misperceptions of immigrants as “criminals.” Rather than simply meeting this discourse of criminality on its own terms, my teaching implicates it in the legacy of white supremacy which, as I will explain below, is its condition of possibility. Despite the historic variation in immigration policy, the criminological underpinnings remain constant.2 During the period of nativism in

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the 1950s, immigrants from Latin America were charged with disrupting the job market and displacing “American” labor. This argument led to “Operation Wetback,” the infamous policy of mass deportation of Mexican immigrants (along with many Mexican-Americans). Although “stealing jobs” never really disappears from the discourse, the 1990s anti-immigrant resurgence, especially in California, took the form of “resource depletors”: immigrants and their children were represented as depleting scarce fiscal and natural resources.3 As with welfare recipients, ex-prisoners, or even the poor generally, immigrants are disqualified through a discourse that holds a rule-breaker as morally deficient, socially inferior, and unworthy of civic inclusion. This moral discourse is racialized and owes its deep roots to Europe’s imperial project. “Resource depletor” is a more expansive formulation of “job stealer,” and both are simply different ways of saying “thief”—a criminal of the most basic kind. In the present day, this criminological discourse occurs amidst an important divergence between crime and immigration. Since the 1990s, immigration to the United States—both documented and undocumented—has reached historic highs, and yet rates of violent crime and property crime have declined sharply over the same period, with the violent crime rate reaching historic lows.4 This divergence is mirrored in the basic contradiction of contemporary criminal justice policy: since the 1970s, the overall crime rate has declined while the rate of incarceration and prison-building has increased dramatically. In other words, much as there is a fundamental structural disconnect between crime and incarceration, the evidence shows that immigration does not contribute to increased rates of crime.5 Despite the post-9/11 conflation of terrorism (crime) with immigration, immigrants are far less likely to commit crimes than are the native-born. If the politics of immigration nonetheless continue to live through a more fundamental politics of criminality, then we need to understand the basic properties of criminological discourse as it prepares the ground on which people are encouraged to see the presence of (certain) immigrants in the United States as illegitimate. As I will argue, there is no way of getting at the essential components of criminology (as discursive practice and as indispensable appendage to the massive state apparatus of control that is the criminal justice system) without a sustained examination of black existence in the modern Western world, and of slavery in particular. Consequently—and I believe this point is most salient for the overall [End Page 32] intervention that Radical Teacher offers with this special issue—the basic characteristics of black positionality provide the fundamental parameters for understanding key issues in immigration today.6 U.S. society has a despotic approach to the “criminal” because it has always maintained despotic relations with its black subjects. As Toni Morrison’s quotation in the epigraph suggests, black (non-) existence serves as the metaphorical and structural scaffolding, largely occluded from view, which sustains the animated debates about immigration. It is only within this larger structural context that my students’ perspectives make sense. By the same token, the context threatens to rob them of their moral courage, of their humanity. Criminology students, regardless of race and ethnicity, and more so than students in any other major, know that so-called “white-collar” criminals are responsible for the majority of the harm caused by criminal behavior in this country. Since it is a basic feature of the curriculum in the department, the students are exposed to the facts that show that immigrants or gang members or drug addicts, or any of the other “usual suspects” of the criminal justice system, do not warrant the obsessive fear with which society tends to regard them. And yet they are immersed in a society, a field of study, and a career path that encourages them to disregard these facts. What are the components of this ethical evasion and how can an educator productively disrupt this process of social formation, literally the making of police officers, prison administrators, probation officers, juvenile counselors, and the everyday citizen amenable to “law and order” rhetoric and policy? To better relate my experiences with these questions, I should say more about the contexts in which I work. I currently teach in the Department of Criminology and Criminal Justice Studies at Sonoma State University in northern California. Most of my students are white, from working to lower-middle class economic backgrounds in rural or suburban northern and central counties of the state. There are small numbers of Mexicano/Chicano students, followed much further behind by Asian Americans and Native Americans; statistically speaking, blacks are only an occasional presence in my classrooms. The criminology major also tends to attract somewhat more men than women (though not as disproportionately as masculinist stereotypes of criminal justice professions might cause one to expect). Additionally, most of my students are headed into careers in various law enforcement agencies, come from law enforcement families, or are already working in the criminal justice system in some capacity. The “typical” student in my classroom, I would argue, has much in common with the main subjects of U.S. civil society. He is white, but comes from areas in which Mexicanos/Chicanos—immigrants, migrants, and long-time residents/citizens—are the largest minority group (and a majority in many places). Although generally speaking Mexicanos/Chicanos are more likely to be integrated into white spaces than blacks, my typical student’s geography remains well-segregated. Mexicano/Chicano and African American communities thrive throughout the state’s Central Valley, but they largely exist along the internal margins of a dominant paternalistic Anglo social structure.7 My typical student, therefore, is accustomed to seeing and even interacting [End Page 33] with people of color—principally people of Mexican origins—but largely through relations that reproduce social distance, rather than bridge it. Rural segregation is mirrored in the small cities that border the heavily populated San Francisco Bay Area, such as Santa Rosa near where my institution is located. The immediate historical context here is the process by which the rural communities of California have emerged from three decades of a radically changing political economy whereby agriculturerelated industries have been superseded by the prison industrial complex.8 The ascendancy of the prison industry in rural California is a manifestation of the massive political, economic, and social shifts attending the transition from welfare to warfare state.9 Capital flight, deindustrialization, and state restructuring produced surpluses in land, capital, labor, and state capacity—the antidote to which became, in part, a dramatic prison building frenzy and social policy of mass incarceration. Prisons became the simplistic answer to a series of complex questions. The state’s job is no longer to provide for the common well-being of its citizens; it has restructured itself away from this capacity, and in a period of permanent crisis, through the mechanics of domestic militarism, presents its social necessity in terms of an impossible mandate: the war on crime in its proliferating forms (drugs, gangs, terrorism, immigration). To put it another way, in terms of social position, the typical criminology major in my classroom is the product of a socio-political geography in which “law and order,” replete with its constitutive racial imaginings, continues to acutely inform their self-identities, albeit with a nagging sense that somehow the “good guys” are losing their grip. Sometimes this shadow manifests in my students as cynicism or bitterness, but often it gets mobilized into a penchant for punishment. They exorcise the economic anxieties that have been such an insidious part of the landscape of their lives by means of racialized antagonisms that they articulate in criminological terms (as in: if you do the crime, be ready to do the time!). The most illuminating discussions about immigration take place in my Criminology seminar. This course is a core class in the major, and generally when it is taught by criminologists, the focus is on the gamut of theories in the discipline about why people do crime and how best to punish and prevent offenders. I find this pedagogy a good formula for making a very bad problem (the prison industrial complex) much worse, but not for much else. 10 As a teacher of students embarking upon careers devoted to controlling the liberty of criminalized Others, I find myself struggling to come up with ways to teach about the problems criminology takes as its objects of study (“crime,” violence, “deviance,” policing, incapacitation), while simultaneously providing students with a “coherent framework” through which to interrogate the very power that criminology (and each one [End Page 34] of my students) most takes for granted: the right to seize the freedom of another human being in the first place. To put it more succinctly, criminology empowers us to judge the Other. What I want to do in my Criminology seminar, on the other hand, is to teach about power. Before we even get to what criminology has to say for itself, therefore, we spend almost two months building a context in which to situate our study of criminological theories.11 We discuss the rise of capitalism and Enlightenment moral theory, the expansion of Europe through imprisonment and the convict trade. The centerpiece of this history, however, is an analysis of slavery. What was it and what role did it play in the genealogy of criminal justice?12 We discuss W.E.B. DuBois’ analysis of the social relations necessary for slavery to function.13 DuBois develops a lesson about power that is basic for conscious people: dominance succeeds only through division. If a small handful of white people owned all of the slaves and most of the land—in other words, held the wealth in the society—how could they possibly hope to maintain their control without the assistance of all of the other whites (the majority)? The slave owners needed overseers, bounty hunters, and slave patrols to police their plantations. As DuBois points out, however, it made no rational sense for the average, landless white worker to go along with the slave system since it was precisely slavery that was

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keeping him impoverished. In short, most whites had more in common with the African slaves—in terms of poverty, self- determination, material security—than they had with the wealthy planters. From where we sit today, it seems a matter of course that the white workers would identify with other whites, even though the owners were their oppressors too, and not with blacks, but it is important for students today to understand that this division had to be created and reproduced on a daily basis. As DuBois (and historian David Roediger much later) observed, the white worker was paid off with the “wages of whiteness”: in the face of continued immiseration and landlessness, he could take solace in the comfort that he was white.14 I find that this story is actually a poignant one for today’s college students, most of whom have all come up in a post-civil rights era in which slavery is recognized as a tragic evil in our nation’s past. The problem, of course, is that we continue to endure slavery’s aftermath, both culturally and in terms of society’s structures: the criminal justice system evinces this legacy perhaps more than any other institutional setting.15 Moreover, racism not only thrives today, but conventional narrow understandings of it betray an implicit faith in the system’s capacity to be reformed and an unwillingness to face the evidence that white supremacy and state violence are two sides of the same coin.16 I discussed with my students how the fact that the criminal justice system served as the lynchpin on which slavery was remade as a contemporary legal institution meant that we need to pay closer attention to the social relations of slavery. Who were the police of the slave society? Who’s playing the role of the white workers today? Who are the slave patrols, the overseers, the bounty hunters, the slave trading merchants? The point is not to reduce one to the other, to argue that imprisonment today is slavery. Instead, we discuss two principal lessons of slavery for the study of criminology. First, that [End Page 35] white supremacy is a hierarchy in which all groups are pitted against each other in competition to distance themselves from blackness, at the bottom, and to get close to whiteness on top. In other words, the social system of white supremacy creates an anti-black world that captures all races within its binary logic: in such a context, racial identity is indexed by two polar realities, one embodying value (whiteness) and the opposite embodying value’s absence (blackness). A second principal lesson of slavery for the study of contemporary criminology is that the function of policing historically has been to contain the political desires of the white worker by binding him to the state. It is not surprising, then, that the slave patrols were the first official organized police force in this nation’s history. As DuBois noted, the white worker was kept from seeing himself in the black worker because he was bound to the planters and repelled from the slaves and even from the mass of white laborers because “they constituted the police patrol [that] could ride with the planters and now and then exercise unlimited force upon recalcitrant or runaway slaves.”17 In class, we discussed how the act of policing entails an unconscious identification with the state and against the objects of police action. When the state is white supremacist, then policing too becomes an act of identification with (and desire for) whiteness. While many of my students were able to process the implications of this history, to recognize both the error and the injustice of the “wages of whiteness,” they saw it mostly as rhetoric or analogy (as in, today is like yesterday in these ways . . .), rather than as a descriptive analysis of what is currently. When I attempted to ground this historical lesson about power into the context of their own lives with the example of immigration, they vigorously resisted, swiftly condemning “illegal” immigration. For example, I asked them, how does the current immigration debate illustrate the historical example of the white worker and the “wages of whiteness”? I brought up the case of California’s anti-immigrant Proposition 187 (which occurred before many of my students had reached kindergarten) and how it won support from a significant number of black and Latino voters.18 Was this not an example of how white supremacy and racial capitalism work, in this case encouraging oppressed workers and people of color to police themselves by demonizing immigrants and thereby distracting attention from the true source of their oppression? And what about those white workers again, how did they cast their lots this time? The students were quick to defend their position against immigrants. One senior (who has since gone on to a career as an agent with the California Department of Alcohol Beverage Control: “we carry guns,” she told me in response to my query, why?) became particularly agitated. She talked about her father who has owned a landscaping business in Sonoma County for a long time. She said: “My dad is being undercut by immigrants who don’t have proper licensing because they’re undocumented and therefore can charge much less than he does.” She was angry. Is this student’s story a specific illustration of the general failure of this country’s immigration policies? It is, in part. We cannot verify any of the asserted facts, of course, but discursively this student’s story communicates the time-worn theme of the immigrant as “job-stealer,” and therefore [End Page 36] implicitly as “thief.” Although the student appeared to understand the concept of the “wages of whiteness” intellectually, when it came to her life, her unconscious emotional investment in white supremacy (understood criminologically) won out and the immigrant was blamed for her father’s declining fortunes. Her viewpoint found ample support among her classmates. When I remind them of the requirements of a capitalist system, of how competition for finite resources like jobs comes about, and of how the increasing hardships and economic anxieties that their own families are enduring today are only extended by transferring the problem onto other struggling workers, they respond simply: “but they broke the law by coming here.” This point, the criminological take on the immigration issue, is also precisely the general failure of criminology and criminal justice: obscuring complex social problems by seeing society through the lens of individual morality. The tradition of Western liberalism, in which the rational, self- interested, autonomous individual subject is seen as the primary agent of history and thus as existing ontologically prior to the social structures of this history, is deeply ensconced in the U.S. academy across its disciplines. Western liberalism is also racialized at its core, lending the emotional investment in individualism a greater urgency given our racially stratified world. In short, it is not that the students are insensitive to the hardships faced by immigrants, but sensitivity is not the same as a structural analysis of individual behavior: “But they shouldn’t have come that way,” as if undocumented immigration is merely a matter of preference; “They should try to make things better in their country,” as if an individual can resolve historical contradictions on their own; and, “It’s wrong that they’re treated unfairly, but they don’t make an effort either, they need to meet us halfway,” as if the schisms of racial capitalism were actually problems of diplomacy and good-will. What are these emotional investments? As Marlia Banning observed in an earlier issue of Radical Teacher, “there are no obvious pedagogical solutions that address the emotional attachment to political beliefs.”19 I concur—and I wish to build on, yet depart slightly from, this insight. In the symbolic economy of anti-immigrant discourse, the immigrant is not even a primary figure. The central criminological trope in the anti-immigrant discourse—illegals—and the converse promoted by immigrant supporters—no human being is “illegal”—are both part of a larger deception. The formulation of the immigrant as a thief draws upon the idea of a fraudulent person. But an immigrant is not a fraudulent person; rather, he is a person who, according to anti-immigrant discourse, has committed fraud by attempting to pass as a citizen, or more

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accurately, given the historical conflation of whiteness and citizen, as a legalized resident. To be a fraudulent person, on the other hand, is to be caught impersonating a human being. There is only one such position in the anti-black world and it belongs to the black. As DuBois once put it, blacks are constructed not as people with problems, but rather as “a problem people.” 20 Slave codes in the southern United States demanded that slaves receive clothing, food, and lodging sufficient to their basic needs. Slaves, although dead to civil rights and responsibilities— social death—are reduced to nothing but the physical body, unprotected against mutilation or [End Page 37] torture.21 The functioning of social death is, again, premised on the context itself as anti-black. The post-Emancipation era of the Black Codes, convict leasing, and lynching ensured that blackness meant social death not by virtue of enslavement, but instead as a product of criminality and imprisonment. Blackness remains to this day the essential marker of criminality and deviance.22 Black existence and its signifier “criminal,” then, serve a central metaphorical and structural purpose for a white supremacist bourgeois society. In the contemporary debates on immigration, it provides the menacing content for the construct “criminal” that gives the anti-immigrant position its purchase in mainstream society. To put it differently, we as educators cannot effectively undo the racism of anti-immigrant discourse without also challenging the anti-blackness of crime and punishment. In concrete terms, moreover, we need to recall the destruction of the black community base, the deindustrialization of the political economy, dismantling of the welfare state, and the installment of the prison industrial complex. These processes collectively produced a black population available on a massive scale for social transfer to the living death of prison cages. These dislocations and debasements were the conditions of possibility for the political economy that draws immigrants to this country, while at the same time, the institutionalization of the (vanquished) black liberation movement serves as the prerequisite for the very struggles against the exploitation of immigrant labor that have, rightfully, gained momentum today.23 In other words, there would be no immigrant labor to speak of if the black liberation movement had not been systematically destroyed, and, ironically, that very same social movement history would not otherwise be available to other oppressed groups to learn and benefit from. Needless to say, I have not been at all successful in realizing this kind of analysis with my students. In much of its practice, criminology is an exercise in bad faith in that it encourages students to flee a displeasing truth for a more comforting lie. The criminological discourse on immigration is an expression of bad faith as well. My students live this lie in their own ways. Although they know that “crime” is far more complex and messy than a simple case of immorality, the fact that the United States has the largest prison population in the world, both in total numbers and per capita, eighty percent of whom are people of color, and that Immigration and Customs Enforcement (ICE) holds some 23,000 people in immigration jails on a given day and about 200,000 annually, does not, in any sincere way, trouble them much.24 At some level in their consciousness, perhaps they know that people (immigrant and non-immigrant alike) do not have what they need to survive in this society, and that in their capacities as law enforcers, they are not making things better for these millions of people. These are tough ethical problems for young people emerging from a context in which their futures are mortgaged ever more by the racial state’s commitment to the needs of capital. My students also know all too well from their own backgrounds in hardworking and increasingly abandoned communities that power and wealth concentrate in the hands of a very select few at the expense of people like themselves. They might recognize, should they dare to admit it, that when they fight on behalf of the [End Page 38] state, whether it is in patrol cars, along catwalks or borderlines, or in foreign military escapades, they win only dimmer futures not only for the people of color they apprehend, but also for themselves. The question of ethics, in these ways, lurks throughout the dialectics of race and class in the prison regime that shapes immigration policy. I honestly do not know how to proceed, pedagogically, in this context. Is a Freireian pedagogy possible within an anti-black world? What would it look like to correspond with these students across our differences in social positioning and emotional attachments, as a pedagogy of self-awakening?25 James Baldwin, as always, assesses the challenge with clarity: “One may see that the history, which is now indivisible from oneself, has been full of errors and excesses; but this is not the same thing as seeing that, for millions of people, this history—oneself—has been nothing but an intolerable yoke, a stinking prison, a shrieking grave.”26 Teaching about immigration within criminology shows me that black- brown-white remain insoluble antagonisms. I remain open to what the answers may be, and, in the interim, try to act ethically myself in confronting the anti-blackness of both criminology and much of the discourse on immigration.

4. Immigration Policy

Much of the recent controversy surrounding the United States' policy towards Haitian refugees centers around the suspicion that blacks in particular, and people of color in general, are subject to a different set of rules when it comes to who is allowed to immigrate into the [U.S.]. At the same time, Latinos have long argued that immigration policy and INS enforcement not only unfairly targets undocumented workers from poor countries, but also increases discrimination in hiring in regard to [U.S.] minorities. These issues could be dealt with either together or separately. n288¶ The racial issues underlying immigration controversy during Obama's presidency have not differed significantly from those he outlined for his students in 1994. Where Obama's student groups focused on Haitian refugees and Immigration and Naturalization Service (INS) enforcement against Latinos, today the controversies surround federalist issues as to how states enforce immigration policies against targeted racial and ethnic groups. The CRT bibliography includes two articles addressing immigration; the title of Gerald Lopez's article--Undocumented Mexican Migration: In Search of a Just Immigration Law and Policy--is directly on point with Obama's suggested discussion topics. n289¶ Basing his "search [for] a just immigration law and policy" on the "push-pull" theory of migration, Lopez began with the basic assumption that "the primary motivation underlying modern mass migration is the desire to survive and prosper." n290 He addressed the popular perceptions regarding the evils of undocumented workers: a one-to-one displacement of American workers for every undocumented alien and the drain on American public service resources by these [*550] undocumented workers. n291 Although Lopez advanced significant empirical data to contradict these perceptions, he acknowledged their existence and the resultant "social friction." n292 Lopez found the United States culpable for perpetuating the status quo through its solicitation of immigrant workers "to serve the self-perceived needs of American employers to cheap

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temporary labor," lax enforcement of the immigration laws passed to assuage "domestic labor's demands," n293 and willingness to ignore the substandard wages and working conditions of the workers to widen the profit margin of U.S. businesses. n294¶ Lauding Derrick Bell's use of storytelling and narratives, another CRT scholar, Michael Olivas, deemed The Slave Traders Chronicle "ahistorical" claiming "this scenario has occurred, and occurred more than once in in our nation's history." n295 Olivas demonstrated his thesis by exploring the experiences of three distinct ethnic groups that predate Bell's fictional invasion: the Cherokees, the Chinese, and Mexican agricultural workers. He concluded with a [then] contemporary accounting of the state of immigration: INS set up camps to hold detained undocumented adults and unaccompanied minors without access to "health, educational, and legal services" as a "deterrent to Central American refugees and as 'bait' to attract their families already in the United States." n296 The makeshift rafts of approximately 20 thousand Haitian "boat people" were being intercepted at sea: INS granted asylum only to six. n297 The (then) current reality of U.S. immigration policy led Olivas to conclude with the ominous statement: "The cycle of United States immigration history continued, and all was ready for the Space Traders." n298¶ [*551] In addition to the CRT commentary, there was also significant non-CRT academic commentary on the United States' approach to immigration in the early 1990s that would have provided ample background for Obama's students. n299 The history of American immigration policy and the quotas once assigned based on race and country of origin seem more appropriate topics for a middle school research paper, so it is unlikely that Obama was hoping for a mere regurgitation of these facts. As in all the topics on Obama's syllabus, it was the subtle, lurking, insidious nature of racism that Obama encouraged his students to search for, name, and discuss. For example, if only six out of 20 thousand Haitians were granted asylum, as Olivas suggested, then who was granted asylum in greater numbers and why? Was there an element of interest- convergence theory lying beneath the surface? Skeptical scholars were asking these same questions, thus it is likely that Obama's students would ultimately be led to their writings.

Le, C.N. 2016. "The 1965 Immigration Act" Asian-Nation: The Landscape of Asian America. (April 15, 2016).

The emerging presence of these post-1965 Asian immigrants have also led to occasional tensions as old-time residents and/or U.S.-born minority groups accuse many Asians of trying to "take over" or "exploit" their communities. In addition, the attempts of these post-1965 Asian immigrants at attaining political power commensurate with their demographic emergence and economic success has been a slower process. What we need to keep in mind is, being an immigrant does not mean a person is not an American.

These immigrants from Asia have contributed economically and culturally to not only their own ethnic communities here in the U.S. but also to the entire Asian American population, and to that of our entire country. In short, the ramifications of the 1965 Immigration and Nationality Act have been profound in many ways, with more developments likely to come as we move forward in the 21st century.

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III. Wording Sketches

Just a head start for wording papers…

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United States Agent

US should expand/reform policies in particular areas to reduce racial inequality

R: That the United States should substantially reform and expand (its) criminal justice, education, labor and/or housing (policies/policy) to reduce* (racial inequality / racial disparity / race-based inequity / racism / structural racism / institutional racism) in the US.

US should reduce racial inequality in particular areas

R: The United States should substantially reduce (racial inequality / racial disparity / race-based inequity / racism / structural racism / institutional racism) in its education, criminal justice, and/or housing policies.

USFG should reduce disparities that exist in particular areas

Rashad Evans’ suggestion: The United States federal government should adopt a policy to substantially reduce racial disparities that currently exist in one or more of the following areas: criminal incarceration, health care, academic achievement, or housing.

Some additional options to inequality could include:

eliminate or strengthen: affirmative action, voting rights protections, labor unions

increase federal control/oversight/regulation of education, prisons, policing/police, voting requirements, air/water quality/safety, predatory lenders

NOTE: The US is probably better than the USFG to prevent States-federalism from swamping the importance of the education debates among others.

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Multitude of Agents

Favored…

R: That substantial and direct political action should be taken to reverse* racial inequality in the United States.

* see “reduce” below.

Bigger version

R: Racism should be substantially resisted (in the United States) through ______.

With areas

R: That substantial and direct political action should be taken to reverse racial inequality in the United States in one of the following areas: criminal justice, education, etc.

With stipulated strategies/methods

R: That racial exclusion in the United States should be substantially reduced through one or more of the following strategies: performative resistance, social movement mobilization, direct political action, story-telling.

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Verb Options

“Reduce”

Lessen Minimize Eliminate Resist

AND add another adverb (substantially reduce)

fundamentally reverse significantly improve radically shrink meaningfully diminish drastically curtail

Flip the verb in the other direction…

substantially enhance protections against disparate impact in one or more (areas): significantly improve conditions resulting from institutional racism housing double the number of effective remedies to racial disparity voting rights expand and reform existing legislation that addresses racial inequality education measurably augment legal liability for racial discrimination criminal justice substantively increase funding and enforcement against racial bias immigration ADV + VERB or V & V NOUN (plural?) + ADJ PHRASE ADJ PHRASE (NOUN/ADJ) OBJ of PREP (NOUN)

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IV. Macro-Political Debates

It’s all about US policy (or can be). All three branches and State and local governments are indisputably responsible for both racial inequality and racial equality, making the appeal to government a complicated and incredibly important issue. Don’t forget about the Constitution itself and the way the document started as an instrument of slavery and the interests of Southern slaveholders (perhaps a compromise making the document itself possible) only to become the document entrusted with equality for all and the elimination of slavery (13th amendment), the notion of equal rights for each person (14th amendment), and the explicit right to vote (15th amendment). That document and the policies stemming from it is just a small piece of the policy issues surrounding racism in the United States.

In the United States, the Constitution accommodated the interests of the slaveholding states in three areas: first, the famous "3/5ths clause" that counted five enslaved blacks as three free persons for purposes of taxation and representation; second, the new Congress was prohibited from even considering abolishing the importation of slaves until 1809; and third, the Constitution (Article IV, section 2) required states to assist in returning any person escaped from bondage back to the state from which they had escaped. Indeed, citing the intent of the framers of the Constitution, the Supreme Court ruled in the Dred Scott decision of 1857 that enslaved Africans and their descendants in the United States were never intended to be citizens. The Court ruled that black people "had no rights that the white man was bound to respect." Racial equality was constitutionally established through three amendments during the Reconstruction Era. The Thirteenth Amendment barred slavery or involuntary servitude, the Fourteenth Amendment established standards of due process and equal treatment under the law for all citizens, and the Fifteenth Amendment guaranteed that the right to vote could not be denied due to race, color, or previous condition of servitude. However, by the end of the nineteenth century blacks were effectively disenfranchised as a result of violence, intimidation, and a range of tricks adopted by states (e.g., the Grandfather Clause, white primaries, poll taxes, and literacy tests) to avoid compliance with the Fifteenth Amendment. Furthermore, the Supreme Court issued decisions that limited the effectiveness of the civil rights acts passed by Congress during Reconstruction. Finally, in the Plessy v. Ferguson decision of 1896, the Supreme Court ruled that "separate but equal" accommodations in public transportation were not a violation of the Fourteenth Amendment's equal protection clause. This phrase, "separate but equal," was then applied to all spheres of life and epitomized the era of "Jim Crow" segregation. Facilities were separate but they were anything but equal. For example, white schools in some states received ten times the financial support compared to black schools (Fairclough). In Germany, the biological determinism of nineteenth-century writers such as Gobineau was influential in the emergence of nationalism, fascism, and Nazism. For instance, Jewish people were seen as a biologically inferior race that represented a cultural and political threat to the superiority and purity of the Aryan race idolized by Adolf Hitler. As a result, they were subjected to economic and political ghettoization, used as forced labor, and targeted for genocide. Also, in South Africa, a gradual process of racial separateness, or apartheid, began with the Native Land Act of 1913 that divided land to promote white ownership and domination as well as limited face-to-face interaction between blacks and whites. With the victory of the Nationalist Party in 1948, apartheid was fully institutionalized as a complete set of policies whereby the white minority completely segregated and dominated the black majority (Frederickson, 1981, pp. 239–249). Countries have also used immigration policy as a discriminatory device, often basing immigration law on notions that certain racial groups were inferior and represented cultural or economic threats. In the mid-1800s in the United States, Chinese laborers were relied on to help build the transcontinental railroad. However, a nativist movement emerged, with white working-class men viewing Chinese laborers as an economic threat. As a result, the U.S. Congress passed the Chinese Exclusion Act in 1882, which prohibited Chinese immigration as well as the naturalization of Chinese laborers already in the United States. By 1917, U.S. immigration law prohibited immigration of labor from all of Asia except for Japan, as well as placing a tax on Mexican employees. Also in the early twentieth century, Australia adopted immigration laws designed to limit the number of Indian, Pacific Islander, and Asian immigrants. Such laws were adopted on the biological-determinist argument that these immigrants were racially inferior and a cultural threat to the superior "white Australia" (Miles, pp. 90–98).

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Of course, even though macro-politics have been, are, and will be concerned with questions of national and group politics (and the effects of various pieces of legislation), the “macro” cannot easily be extracted from the individual starting point of in-round advocacy and discourse. Who are we to discuss and debate these issues? It may be convenient to “begin” with externalized debates over the consequences of political action, but even those assessments operate within a particular paradigm of race, a paradigm that will have local roots. Thus, the classic paradigm, and one that will generate a great deal of clash on this topic even if race scholarship has moved beyond this split, is one between liberal and conservative views about race.

Richard Delgado, Prof. Law Seattle U., ’12 (100 Calif. L. Rev. 431, “Centennial Reflections on the California Law Review's Scholarship on Race: The Structure of Civil Rights Thought”

To see how paradigms work, it can be useful to examine two familiar examples, racial conservatism and racial liberalism. n34 Racial liberals believe that racism is not dead and that combating it is a worthy goal. n35 They believe that discrimination can take many forms, such as structural, unconscious, and institutional. n36 They believe that most of the problems of African Americans are the product of slavery, Jim Crow laws, and discriminatory treatment extending over centuries. n37 For them, a large body of evidence illustrates the enduring nature of discrimination, including the strident opposition to President Barack Obama; society's insistence on using high-stakes tests even after their validity has come under question; and the persistence of black underrepresentation in many fields, such as the law, and their overrepresentation in the nation's prisons and jails. Racial conservatives, on the other hand, adhere to a different paradigm that includes a different set of premises and deems different facts to be material. They believe that black poverty is largely the product of a host of cultural factors, such as preferring sports, music, and entertainment to diligent study; n39 that society is now largely postracial; n40 and that active discrimination is mainly a thing of the past. n41 Racial conservatives also deem a different set of inquiries to be interesting and relevant to understanding contemporary issues of racial inequality. They ask, for example, are blacks interested in science and math? n42 Does their reluctance to enter into stable marriages account for the poor performance of some of their children in school? n43 Can the fear that many white citizens feel toward African Americans be explained by the high crime rates that are common to many poor black communities, and if so, is that fear entirely irrational?

The liberal and conservative approaches will play out in the various policy areas described earlier in the paper, but we recognize that it is obviously harder for a liberal-minded debate community to defend racial conservativism (if only that were also true for the country as a whole). From an optimistic perspective, however, this dichotomy has shifted slightly and made way for more difficult debates within the camp that believes racism is real and needs to be challenged. That’s where legal change becomes a broader paradigmatic battleground for macro-politics, with the liberal-conservative debate on race already over, to a degree (with significant outliers), and new articulations ranging from small incremental reforms in specific areas—even while allowing rollbacks in others, to widespread revolution calling for complete upheavals to bring about new ways and vastly different policy across the board of social, economic, cultural, and political realities. In the middle of that spectrum, concerning the reduction of racial inequality in the United States, rests the possibility of enacting change through the law. Such an appeal to the law simultaneously gestures to a larger ideological binary that governs the kind of legal change that follows. A thorough way to describe that larger ideological binary is provided by Delgado’s “individual rights vs. equal protection” formulation.

Richard Delgado, Prof. Law Seattle U., ’12 (100 Calif. L. Rev. 431, “Centennial Reflections on the California Law Review's Scholarship on Race: The Structure of Civil Rights Thought”

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A second binary paradigm, long latent in writing and thinking about social issues, is beginning to attract attention and a name. n95 This new paradigm highlights how attention to human needs, problems, deprivation, and flourishing may proceed under one of two banners, individual rights or equal protection. Both approaches aim at the same goal, both result in heightened judicial scrutiny, and the choice to proceed under one banner or the other is largely a matter of tactics, ideological commitment, or perceived public sentiment. n96 As with the broader conception of racial analysis urged by Juan Perea and others, this second paradigm has begun to emerge as a critique and revision of traditional scholarship on race.

One way to interpret the split between “individual rights” and “equal protection” approaches is to emphasis the conditions facing a certain individual vs. those confronting a group of people belonging to the same race. That “personal v. collective” perspective is not the most productive distinction, however, because it neglects the role of the government that is being appealed to in both formations. That’s where the kriticisms of governmental action can articulate separate links to assistance and to protection. Assessing some governmental policies as providing tangible aid or assistance (primarily sectors like education, health care, SNAP, or other distribution policies considered to be a form of entitlement or welfare) lets us assess racial inequality. Assessing other governmental policies as protecting people from racial discrimination or worse (primarily in sectors like employment, housing, voting, etc.) lets us assess disparity—the statistics of racism. There is abundant overlap here and some sectors like criminal justice claim to offer protection but have actually become the source of institutional racism and apartheid-style oppression. In any of these areas, a macro-political policy that acts through legislation, the Court, or executive action will be susceptible to a myriad of negative strategies, including arguments against the agent (and agent/internal mechanism CPs), trade-off arguments about other sectors (housing reforms trade-off with education reforms, etc.—or race-based improvements will take away from improvements for other groups), compelling solvency arguments that the legislation is too shallow or will otherwise be circumvented, deeper structural arguments that the aff does not address the root cause, and local backlash arguments about ways that resistance to antiracism can fester on a local level and work against the aff’s proposed changes.

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Politics DA

--Race is at the epicenter of political partisanship and the fear motivating the new Right…have at it.

Elias Isquith, Mar 14, 2016, In one particular way, Barack Obama really did create Donald Trump — and it reflects horribly on Republicans, http://www.salon.com/2016/03/14/in_one_particular_way_barack_obama_really_did_create_donald_trump_and_it_reflects_horribly_on_republicans/

Given the limited amount of evidence we currently have at our disposal, though, I think a recent piece from Slate’s Jamelle Bouie is the best of the first drafts. Not necessarily because Bouie’s argument is unlike the ones we’ve heard already; but because it refuses to strip Trumpism from its context. And what is that context? The eighth-straight year in which an African-American man by the name Barack Hussein Obama is president. Here’s how Bouie sees it. Globalization and the GOP’s embrace of white identity politics have both “been in play for years,” he writes, correctly. So the relevant variable here is almost certainly something else. And considering this is American politics we’re talking about, that something else is — you guessed it — race: Race plays a part in each of these analyses, but its role has not yet been central enough to our understanding of Trump’s rise. Not only does he lead a movement of almost exclusively disaffected whites, but he wins his strongest support in states and counties with the greatest amounts of racial polarization. Among white voters, higher levels of racial resentment have been shown to be associated with greater support for Trump. All of which is to say that we’ve been missing the most important catalyst in Trump’s rise. What caused this fire to burn out of control? The answer, I think, is Barack Obama. Now, before anyone starts righteously thundering about all the ways in which President Obama has been a centrist, neoliberal sellout, know this: Generally speaking, Bouie does not disagree. It’s not Obama’s policies that have led to Trump; on the substance, Obama is, Bouie writes, “no radical” and “well within the center-left of the Democratic Party.” But the “symbolism,” as Bouie puts it, of an Obama presidency? That’s something considerably different. Bouie writes: In a nation shaped and defined by a rigid racial hierarchy, his election was very much a radical event, in which a man from one of the nation’s lowest castes ascended to the summit of its political landscape. And he did so with heavy support from minorities: Asian Americans and Latinos were an important part of Obama’s coalition, and black Americans turned out at their highest numbers ever in 2008. The point here is not to say that all Trump backers have a viscerally negative reaction to African-Americans, though it’s undoubtedly the case that many of them do. The point, rather, is that Obama’s ascension — as well as his success and, perhaps most importantly, his endurance — is perceived by Trumpists as a threat to one of their last sources of stability and comfort. Namely, the privilege of being white. And we’re not talking about the ill-defined, amorphous version of “privilege” that gets turned into click-y listicles for BuzzFeed. This is not about the privilege of not having to worry on Halloween that an acquaintance of yours will wear a costume that you find personally offensive. This is a concrete, tangible kind of privilege, the kind of privilege that provided material security: In the recent past, holding the favored spot in our racial hierarchy brought benefits. As historian and political scientist Ira Katznelson details in “When Affirmative Action Was White: An Untold History of Racial Inequality in Twentieth-Century America,” being white was traditionally a pathway to middle-class security, the key that won access to vital mortgage and education programs, as the federal government worked to build a white middle-class in the middle part of the 20th century. Even after the civil rights movement and the end of formal discrimination against black Americans, it was still true that being white and middle-class offered protection from the worst of our economy’s ravages. Drugs, ghettos, and dependency existed among whites in pockets of the country, but they were popularly understood as black and Latino problems, not white ones. Now, that isn’t true. Now, middle-class whites face addiction and dependence, which adds a racial element to economic anxiety, as the security provided by whiteness no longer exists for many Americans. This is the America that Trump supporters have come to know; it’s the America they want to escape and make “great” again. It’s a world in which one of the most deep-seated assumptions of American society — that there is an unspoken social hierarchy in America, one in which white, straight, and Christian Americans are always on top — was all that many people had left. And now that it’s gone, now that Obama succeeded in “fundamentally transforming” the country as they knew it, these people are yearning for someone who will bring it back. Perhaps these people would be equally hysterical if we were nearing the end of a Hillary Clinton presidency (it’s not like patriarchy isn’t a part of what shaped American society, too). It’s possible. But I doubt it.

You don’t have to worry about “spinning the issue,” politicians will do that for the argument…

Rathod, Duke U. Law, ’11 (13 Berkeley J. Afr.-Am. L. & Pol'y 139, “A Post-Racial Voting Rights Act”)

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Pandering politicians round out the race-industrial complex. n250 Living in perpetual fear of electoral defeat, they seek endless ways to maximize funds for the next election and expand their voter base. Even high-minded politicians calibrate their rhetoric and policy positions to the shifting winds of public opinion, rationalizing that the gravest compromises are still an improvement from what their opponent would accomplish. The race-industrial complex provides a reliable bank of money, votes, and manpower. Consequently, many politicians are compelled to support race-based entitlements and extol the benefits of primordialist-oriented diversity. They are likely to exploit the corporate commodification of racial identity by waging racially-tailored campaigns in minority magazines and on minority radio. For most politicians, the arrangement is great.] They generate support by performing a script of good racial manners and providing token support to multicultural policies, such as diversity-based affirmative action, in minority outlets. The difficult policy decisions that could have a real impact on mitigating institutional racism - on issues like criminal sentencing for drug offenses - are postponed indefinitely.

Voting blocks make a difference, despite the fact that interests diverge and promised policy changes often do not materialize.

When Bill Clinton and the “New Democrats” emerged victorious in the 1990s, thanks in large part to 83 percent support from black voters in 1992 and 84 percent in 1996, they adopted policies, such as welfare reform (Personal Responsibility and Work Opportunity Reconciliation Act of 1996) and a crime bill (Violent Crime Control and Law Enforcement Act of 1994) that proved ruinous for many black Americans. “It is difficult to overstate the damage that’s been done,” the legal scholar Michelle Alexander noted recently of Clinton’s presidency. “Generations have been lost to the prison system; countless families have been torn apart or rendered homeless; and a school-to-prison pipeline has been born that shuttles young people from their decrepit, underfunded schools to brand-new high-tech prisons.” Clinton acknowledged last year that the crime bill “cast too wide a net” and made the problem of mass incarceration worse. More recently, as more groups—evangelicals, gays and lesbians, and gun owners, among them—lobby for specific policies, black voters have seen their interests deemed too “special” for consideration by a democratic administration. President Obama has felt the pressure to connect with black voters while distancing himself from black interests. Although his signature accomplishment, the Affordable Care Act, will surely benefit black Americans, he has been reluctant to endorse policies that cannot be pitched as universal. In a 2012 interview with Black Enterprise Magazine he said, “I want all Americans to have opportunity. I’m not the president of black America. I’m the president of the United States of America.” In the 2016 Democratic primary, African Americans are challenging Hillary Clinton and Bernie Sanders to earn their votes. Whoever wins the nomination will likely garner support from over 85 percent of black voters, but African Americans still lack a mechanism to hold Democrats accountable once they are elected. Consequently, the outlook for blacks in the United States regarding housing, jobs, education, and criminal justice is little better today than when Kennedy helped get King out of jail in 1960. During this election year, they will again weigh what they won and what they lost when they cast their lot with the Democratic Party.

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The Court (Agent CPs)

Just a week or so ago, on April 20th, was the 45th Anniversary of Swann v. Charlotte-Mecklenburg Board of Education which permitting busing as a form of desegregation. The problem is that school districts could only act against de jure discrimination—a problem, but not the only form of discrimination. De facto segregation continued and made Swann less effective. The point, however, is that the Curt is an important agent in these areas and the debates over legitimacy, hollow hope, activism, etc. should be very good. We currently have a 4-4 with a major dispute over Obama’s nomination of Judge Garland (by dispute, we mean that the Republicans in the Senate will not even listen to the nomination) and no matter what happens in this arena, it will be great to debate from the perspectives of the aff and the neg. Even though the SCOTUS is a white institution and can be sharply criticized for its complicity in maintaining racist structures in the U.S., it is also one of the few institutions that has a specific history of antiracism and checks against governmental abuses. The white members of the Court do not preclude it from progressive action, as is the case with the NAACP and the Black Panthers:

Denise Oliver Velez, ’13 (Nov 3, “Anti-racism is not 'anti-white,' no matter what Republicans say ,” http://www.dailykos.com/story/2013/11/3/1251982/-Anti-racism-is-not-anti-white-no-matter-what-Republicans-say)

The history of the civil rights movement in this country is one that has been forged out of the activism of people of all backgrounds. I'm always surprised when people question me about my former membership in the Black Panther Party, assuming it was anti-white, simply because of it having "black" in the name, and its militancy. Yet anyone familiar with the history of the Rainbow Coalition forged by Fred Hampton knows that to be a lie as well.

As housing demonstrates, disparate impact is a major obstacle to fairness in the housing market—pointing to a dimension not mentioned in the housing section—the ability to get insurance based on the cost of rebuilding, not on the price of the house. The Court is the primary impetus for change in that area right now, with a recent decision that resurrects many of the laws and policies following the Fair Housing Act that took place in the 70s. You can view this as a chance for affirmatives to actually make a difference in some of the issues surrounding housing given the affirmation by the Court of the use of disparate impact to hold the housing industry accountable. Or, you can view this as the beginnings of a Court CP that could use in the next test case to clarify/alter/augment the Texas Dept. of Housing decision.

Alan Pyke, ‘15 (Jun 30, 2015, White Racism, NIMBYism, And The Surprise Supreme Court Ruling That Could Finally Desegregate Cities, http://thinkprogress.org/economy/2015/06/30/3675548/supreme-court-housing-segregation-consequences/)

The people who fight housing discrimination and residential segregation in America were bracing for a defeat last Thursday when the U.S. Supreme Court’s ruled on Texas Department of Housing v. Inclusive Communities Project. But instead of gutting a decades old legal theory known as “disparate impact,” as court watchers had predicted, Justice Anthony Kennedy penned a strong defense of the anti-racism tool on behalf of a 5-4 majority. Prior to Thursday, the prognosis for fair housing work seemed grim. If the Justices had stripped or curtailed disparate impact arguments, University of Minnesota School of Law professor Myron Orfield told ThinkProgress, “it would have taken away one of the best tools to go after segregation that Congress ever created. It would’ve been really hard to go after institutional entities like banks and brokers whose discrimination is difficult to prove.” “Disparate impact” means that a government policy or business practice produces a more segregated world, regardless of what feelings toward people of color were in the hearts of the policymakers or businesspeople responsible. “If you’re a racist bastard and you wanna segregate tax credits, what you do is put them all in black areas marked by slums and blight,” Mike Daniel, who argued the case on behalf of the Texas non-profit along with his legal partner Laura Beshara, explained. “That’s what happened in Houston and Dallas. Now, whether you’re a racist or not, what you’ve gotta do is quit. You can no longer put all the units in minority neighborhoods marked by slums and blight,” he said. Both Justice Clarence Thomas and Chief Justice John Roberts argued that disparate impact

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lawsuits will be used to paralyze housing development efforts in cities where segregation is already extreme. Thomas predicts that cities like Houston will find it impossible to build or repair any low-income housing units, because segregation levels are so high that any additional housing capacity would produce the kind of statistical evidence of increased segregation that is the backbone of a disparate impact suit. The ruling asserted the country’s core interest in preventing the country from devolving into a split pair of worlds where white and non-white citizens live entirely separately and enjoy radically different social and economic possibilities. The Court is giving heart to fair housing advocates around the country, Orfield said. “There were a lot of very good decisions on the Fair Housing Act in the 1970s. But people were concerned they were no long good law and they weren’t using them anymore. This returns a lot of the good tools that were already there and reaffirms that they exist,” he said. As advocates retreated from aggressive disparate impact arguments, a kind of stasis took hold in the affordable housing development world that allowed segregation to worsen. “Most of these big cities are just saturating every single unit of affordable housing in poor neighborhoods,” Orfield said, to satisfy pledges to build new housing without doing the harder, concerted work required to foster real mixed-income and mixed-race communities. “This decision calls that out and says that’s not acceptable.” The decision will help steer federal dollars to affordable housing development in more desirable neighborhoods. “Now they may or may not be minority neighborhoods,” IPC attorney Daniel said, “but they’re not gonna be built next to landfills. Which, believe it or not, all of those neighborhoods that are near landfills right now are minority neighborhoods.” “Nothing about this decision forces people to leave their neighborhood,” Orfield said. “It forces you to give people choices. What it says is you can’t build every unit of housing in the neighborhood where everybody already has the choice to live there.” If governments are going to succeed in providing geographic and school district choice for people of color who have never really had more than one option, they’ll have to start understanding housing diversity as more than just a city problem. “When cities undertake efforts to desegregation by themselves, it doesn’t work very well. People just leave the cities. But when you do it as a metropolitan area, it works very well,” Orfield said. “There are two major reasons we haven’t made more progress. One is white racism and NIMBYism. The other is the enormous strength of a poverty housing industry” that reinforces the problem instead of combating it, Orfield said. “For every white NIMBY, there’s someone making a living building affordable housing in segregated neighborhoods or operating a charter school that intentionally served a segregated population.” Such projects prop up the existing level of segregation in a city by ensuring that people of color continue to face limited options for where to live and where to send their kids to school. Meanwhile, the strength and clarity of the court’s majority opinion in the case gives advocates confidence that various housing industry actors will start looking for ways to get proactive about fighting segregation, instead of digging in their heels. “Governments and industry people are gonna pay attention to it, not wait til they get sued,” Daniel said. Daniel isn’t alone in predicting such a quasi- voluntary adaptation to clear and settled housing discrimination law. It’s happened before, National Fair Housing Alliance general counsel Morgan Williams said, with concrete benefits across the entire housing market. “We’ve seen market players become fairer by becoming smarter,” he said, such as when court decisions in the 1990s forced the housing insurance industry to stop capping coverage at the on-paper value of a home. “That’s a policy that in communities of color, with historic undervaluing in African- American communities, would create fundamental unfairness in the structure of the insurance industry,” he said. But court decisions and advocacy outreach created “an insurance industry that’s based on coverage for the cost of rebuilding. As a result, communities of color now are able to access coverage that more fully ensures they’re able to rebuild in the face of destruction, as anyone in other communities would be able to do.” If cities and developers respond with both the proactive planning that Williams and Daniel hope for and the expanded understanding of the problem that Orfield says is necessary, there’s a chance that the country could start seeing real progress on the physical divisions that are at the root of more explosive racial conflict. “I think we’re seeing the fruits of this self-reinforcing segregation in Ferguson, in Baltimore, and all over the country,” Orfield said. “We have to use our housing system to make progress toward a more integrated society, not just rebuilding and resurfacing slums.”

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Critical Race Theory

It may seem wrong to conclude the “macro-political” section of the paper with a look at a dated kritik argument that was once a staple for the negative on Court topics. Many manifestations of CRT extend into more contemporary arguments like the ones discussed in micro-political options below, as well as the area-specific (criminal justice, education, housing, etc.) research above. And, as all arguments, it lives on in certain times and certain places. For our purposes, though, the entire macro-political debate on race re-focused itself through the lens of an implied hope for change through the law. As an early compilation of some of these criticisms, see Daniel Farber & Suzanna Sherry, Beyond All Reason: The Radical Assault on Truth in American Law (1997). The position against some of the critical scholarship came through a rejection of the binary on race between Black and white. To expose that binary, however, and recognition the third element being excluded, not to mention the fourth, fifth, sixth, etc., requires some appeal to either individual rights or equal protection. In some ways, then, CRT has experienced a demise (or “shelving”) at the hands of two opposite contentions: 1. That it is not radical enough within its narrow focus on legal reform; and, 2. That it is too dismissive of the human rights and the conditions of oppression occurring among minority groups that are not black. Our current President, for example, worked through these various debates in depth while developing and teaching a curriculum for his Law School class in the area. These ten tenets are worth elaboration as different ways to generate ground from a macro-political perspective. How do we make change? It may start with our ideological framework, but it does not have to end there.

Therefore, we suggest that Delgado and Stefancic's CRT bibliography is a good framework for demonstrating Obama's interest in topics that were also central to CRT. Thus, we rely on their definitions of ten key tenets of CRT to help frame the exploration of the group presentation topics and the potential influence of these tenets on the students' individual exploration of racism and law in their assigned research papers. n188 As we show below, those tenets were often interlaced in the class discussion questions. Beginning with the ten key tenets of CRT that Delgado and Stefancic outlined, the analysis that follows is based solely on articles and editions of texts that were available to Obama when drafting this syllabus. Thus, these resources are likely those employed by his students as they prepared their chosen topics for presentation in class.

A. Ten Primary Tenets of Critical Race Theory n189

1. Critique of liberalism: Many CRT theorists find liberalism an ineffective means to address issues of race. While many of the articles to which Delgado and Stefancic attribute this characteristic deal with specific liberal programs, attitudes, or actions designed to promote racial equality--"affirmative action, neutrality, color blindness, role modeling or the merit principle" n190-- others merely carry the theme throughout the article.

2. Storytelling/counter-storytelling and "naming one's own reality": CRT scholars find most mainstream discussions and perceptions of race emanate from the "majoritarian mindset" and the "presuppositions, received wisdoms, and shared cultural understandings" n191 that the [*531] majority brings to any discussion of race. To counteract this mindset and demonstrate an alternative perspective, CRT authors use stories and parables to elucidate the fallacies of the majoritarian mindset.

3. Revisionist interpretations of American civil rights law and progress: CRT scholars question the source of the ineffectiveness and cyclical nature of America's attempts to institute and enforce antidiscrimination laws. CRT authors seek explanations in the "psychology of race . . . [and] white self-interest" among other sources. n192

4. A greater understanding of the underpinnings of race and racism: Articles credited with this tenet often look to another discipline--social science--for insight on American society's view of race to see how it affects the way the law is applied. A specific example, included in an article on Obama's syllabus, is: "understanding how majoritarian society sees black sexuality helps explain the law's treatment of interracial sex, marriage, and adoptions." n193

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5. Structural determinism: These CRT articles recognize the effect that established legal and cultural structures have on maintaining the statusquo. The authors posit that naming and understanding these "constraints" provides society the freedom "to work more effectively for racial and other types of reform." n194

6. Race, sex, class, and their intersections: Are these "separate disadvantaging factors?" n195

7. Essentialism and anti-essentialism: Does the black middle class have the same needs and interests as the black urban poor? Do all "oppressed people" have the same interests? n196

8. Cultural nationalism/separatism: These CRT scholars assert the belief that the interests and advancement of people of color is best effectuated [*532] through separation from mainstream American society; and preserving diversity promotes the welfare of all. n197

9. Legal institutions, critical pedagogy, and minorities in the bar: These articles discuss the representation of minorities in law school, the bar, and offer alternative CRT pedagogical approaches. n198

10. Criticism and self-criticism/responses: CRT, due to its countermajoritarian nature, provokes substantial criticism. This final tenet includes this criticism and the subsequent responses from both those within and outside the CRT movement. n199

CRT Pedagogy

Stacey Marlise Gahagan and Alfred L. Brophy, ’14 (“READING PROFESSOR OBAMA: RACE AND THE AMERICAN CONSTITUTIONAL TRADITION,” Visiting Clinical Assistant Professor of Law, University of North Carolina School of Law, Judge John J. Parker Distinguished Professor of Law, University of North Carolina, 75 U. Pitt. L. Rev. 495 Within the Delgado and Stefancic CRT bibliography, there are several articles that address the importance of acknowledging--and then teaching--students to identify the racial issues that underlie many aspects of the law. n200 One article, Charles Lawrence's The Word and the River: Pedagogy as Scholarship as Struggle, n201 provides suggestions for how to teach CRT. Lawrence shares the successes he has experienced implementing a "student-centered, student-generated pedagogical method." n202 Lawrence assigned articles by noted CRT scholar Alan Freeman and asked students to "keep Freeman's challenges in mind as they approached the reading, exercises and discussions throughout the course." n203 He encouraged his students to wrestle with how to "become effective advocates for liberation while living and working within institutions and cultures that appeared hell-bent on perpetuating racist domination." n204 This same method was advocated by Derrick Bell and employed in the course offered at Harvard during Obama's first year as a law student. n205 Although there is no evidence that Obama read Lawrence, there are similarities between Obama's method and the "student-centered, student-generated pedagogical method" that Lawrence advanced. Thus, as we have suggested above, Obama may have been relying explicitly on Lawrence, or similar works on CRT pedagogy, or he was drawing from some other teaching tradition or developing such parallel ideas on his own. Just as Freeman's work served as a cornerstone for Lawrence's classes, Derrick Bell's work provided a starting point for Obama's course--though as we suggested in Part II, much of the assigned reading--went in different directions from Bell.

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Anti-Binary Arguments Emerge from the Critique of CRT

Labels—Why CRT? What are its theories and where is it headed?

Devon Carbado, Prof. Law UCLA, ’11 (CRITICAL RACE THEORY: A COMMEMORATION: AFTERWORD: Critical What What?, 43 Conn. L. Rev. 1593, July)

More than twenty years after the establishment of Critical Race Theory (CRT) as a self-consciously defined intellectual movement, defining oneself as a Critical Race Theorist can still engender the question: critical what what? When asked, the inquiry is not just about the appellation, though this is certainly part of what engenders the question. Indeed, when my colleagues and I proposed the establishment of a Critical Race Studies specialization at UCLA School of Law more than a decade ago, the only push back we got was over the name. Why Critical Race Studies? Why not Civil Rights? Race and the Law? Anti-Discrimination Studies? Ultimately, we succeeded in persuading our faculty that it made sense for us to trade on and signal a connection to an intellectual movement of which several of us considered ourselves a part. n1 But the episode suggested that there was something in and about the name. By any other name, n2 our faculty meeting on the matter would have been considerably shorter. To borrow from George Lipsitz's contribution to this Commentary collection, our engagement with our colleagues about this particular institutional naming was a moment of "organizational learning." n3 This should not lead one to conclude that the "Critical what what?" question is only about the name. The query is about the whatness (or, less charitably, the "there there") of CRT as well. What is the genesis of CRT? What are the core ideas? What are its goals and aspirations? What intellectual work does the theory perform outside of legal discourse? What are the limitations of the theory? What is its future trajectory? This Afterword employs Professor Kimberle Crenshaw's lead article, and the responses to it, to take up the foregoing questions. As will become clear, my engagement, which includes a number of "internal" critiques of CRT, is decidedly incomplete and should be read more as a gesture towards answering each of the questions than as a definitive response to them.

Ten Conclusions Merging out of CRT

Devon Carbado, Prof. Law UCLA, ’11 (CRITICAL RACE THEORY: A COMMEMORATION: AFTERWORD: Critical What What?, 43 Conn. L. Rev. 1593, July)

1. Marking Boundaries. I have already expressed my hope that part of the future of CRT will include more efforts to define the core concepts within the movement, without ever rendering CRT an intellectual accomplishment, whose parameters are fully worked out. I worry that our failure to do so will render the idea of CRT more important than the ideas within CRT? In other words, I worry that CRT could become (is becoming? has become?) a "name" that has no clearly identifiable "thing." n150

2. Assessment. How should we assess the work that CRT has performed? The number of law review articles that reference the term? Cases that cite to our work? Our numbers in the legal academy? The reach of the literature outside of law? Our engagement with communities outside of the academy? Who is our primary constituency? Should we think of ourselves first and foremost as academics? In short, how do we know whether we are measuring up-and with respect to what standard? After twenty years, we have to begin asking ourselves-and answering-these questions. 3. The Critique of the Black/White Paradigm. Notwithstanding the currency of the term "the Black/White Paradigm," it remains decidedly under-theorized in CRT. n151 My hope is that scholars will think harder about what this term means and what work, if any, Critical Race Theorists should mobilize the "Black/White Paradigm" rubric to perform. Currently, the term stands in for too much (any discussion of black and white race relationships seem to trigger the term)-and too little (offering insufficient guidance on what our multi-racial engagements should look like and producing instead a proliferation of identity-specific theorizing). While I am not against identity- specific theorizing per se, that intellectual activity should not stand in for multiracial analyses. Declaring, for example, an "Asian American moment," as Bob Chang did almost two decades ago, a move that crucially highlighted Asian American legal subjectivity, is not the same thing as declaring a Multiracial Moment. n152 The two are, of course, related. The more we know about Asian Americans, the more complete our racial picture of the American landscape. Chang's article brought pieces of that landscape into sharper focus. Written in 1993, Chang's intervention was an important early effort to further expose and disrupt the racialization of Americans as both "perpetual foreigners" and "model minorities." His work built on and helped to generate organizational and theoretical efforts that challenged the duality of this racial construction….

5. Implicit Bias and Other Forms of Empiricism. In 2005, Jerry Kang published the Trojan Horses of Race in the Harvard Law Review. n201 The article continued a project begun early by, among others, Charles Lawrence n202 and Linder Krieger n203 of mobilizing social psychology to broaden our understanding of discrimination. Kang's specific intervention was to draw on a number of implicit bias studies to critique antidiscrimination models that require plaintiffs to prove discriminatory intent. His article has helped to generate a body of implicit bias literature within CRT n204 and is a foundational article in the still-emerging intellectual movement-"behavioral realism." n205 These developments are, I think, enormously important. At the same time, I echo Glenn Adams and Phia Salter's concern about the scientification of epistemology. What does it mean for

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Critical Race Scholars to turn to science as a marker of truth-and if not truth with a capital "T," as a marker of facts? What are the normative implications of CRT's empirical turn? Are some empirical methods more simpatico with CRT than others? Are some disciplines better suited to advance a CRT empirical project than others? Darren Hutchinson has argued, for example, that empirical findings within political science might be particularly helpful to CRT's normative claims about majoritarian politics and the ideological nature of Supreme Court jurisprudence. n206 Should CRT scholars employ these and other empirical findings pragmatically-that is, be results-oriented in their appeal to "verify" facts? This last question suggests that CRT's engagement with science might not need to be about truth per se but about "facts." The difference between "facts" on the one hand and "truth" on the other is not semantic; it tracks the realism versus anti-realism debate within the philosophy of science. n207 But, quite apart from whether facts are "true" in the sense of capturing "reality" is whether they matter in the sense of influencing decision- making-and clearly they do. Which is to say, facts, and perhaps especially scientific facts, perform epistemological work. This helps to explain why, currently, as best as I can tell, not a single CRT scholar is on record rejecting Claude Steele's work on stereotype threat, notwithstanding that the work is clearly "science." n208 Instead, CRT [*1637] scholars invoke the "scientific fact" of stereotype threat to critique existing antidiscrimination regimes. More generally, CRT's most powerful critiques of law and society turn precisely on facts-that racism exists; that whiteness confers privileges; that discrimination exists outside of intentionality; that society is not colorblind. Conservatives, for their part, contest these factual assertions. How do we settle these competing factual claims when omniscience is impossible? Standpoint epistemology? Presumably not….

…6. Immigration and Global Affairs. Critical Race Theorists should continue to grapple with the problems of race and immigration. Kevin Johnson's work in this area has been particularly helpful. n215 One issue ripe for engagement is the ways in which immigration interacts with, and shapes the doctrinal content of, other areas of law, including, welfare law, employment law, family law, and criminal law and procedure. In the context of criminal procedure, for example, the Supreme Court expressly permits immigration officials to employ race as one factor among many in deciding whether a person is undocumented. n216 Put another way, the Court expressly authorizes immigration officials to racially profile people of "apparent Mexican ancestry" on the assumption that such persons are "illegal." According to the Court, employing Mexican ancestry as a basis for suspicion does not violate the Fourth Amendment's prohibition against unreasonable searches and seizures. n217 The Court's ruling in this respect is [*1639] not limited to immigration enforcement at the border; it applies to immigration enforcement in the interior as well. n218 This is just one example of how the plenary power of immigration interacts with race to weaken the procedural protections another area of law affords. These other areas of law in effect domesticate the plenary power doctrine, or more accurately, the plenary doctrine becomes domesticated in these other areas of law. n219 Critical Race Scholars should more systematically mark these dynamics. Doing so would help to paint a more complete picture of the racial dimensions of immigration law and enforcement. CRT Scholars should also continue to engage global affairs. Adrien Wing has been pushing this point for quite some time. n220 Here, too, progress has been made. An emerging intellectual movement among international law scholars-Third World Approaches to International Law or TWAIL-is explicitly shaped by, and considers itself an expression of, CRT. n221 Crenshaw has also helped to establish "Critical Race Theory Europe," an annual retreat that draws lawyers, law students, and activists together to discuss and develop a CRT approach to understanding the role of law in the context of European debates about racism, Islamophobia, and homo- nationalism. These efforts should be encouraged and supported, not only because international legal norms and international political organizing are both increasingly becoming mechanisms through which legal and political actors seek to effectuate domestic racial reform; n222 but also because of the transnational racial dynamics that Sumi Cho and Frank Valdes describe and the comparative dimensions of race that Tanya Hernandez highlights.

7. Race and Sovereignty. CRT Scholars have insufficiently analyzed the [*1640] intersection of race and sovereignty. n223 This inquiry deeply implicates but is not exhausted by concerns about indigeniety. Race and Sovereignty was the focus of UCLA's 5th Annual Critical Race Studies Conference that Cheryl Harris and Addie Rolnick organized. To provide an indication of the kinds of questions CRT Scholars might pursue, I quote extensively from our program description: Sovereignty, like race, has been invoked, understood, and deployed in contradictory ways. Historically, sovereignty has been an important vehicle through which hegemonic power has been enforced, for example, by articulating citizenship as a racial project rooted in the power to exclude. Sovereignty has also been an important tool of anti-colonial resistance crucial to libratory struggles of people of color in the U.S. and worldwide. Race shares this complex dimension, serving as both a technology of oppression and a vehicle for resistance to that oppression. Despite these parallels, race and sovereignty have, for the most part, been engaged as separate and mutually exclusive projects: sovereignty has primarily been linked to the struggles of Native Americans and other indigenous peoples, while the struggles of other people of color have largely been cast through a standard antiracist narrative of citizenship and inclusion. The symposium proposes, instead, to examine how race and sovereignty intersect and are mutually constitutive, even as important distinctions remain. We propose to examine how race enters into concepts of sovereignty and how sovereignty enters into concepts of race. Among the questions to be considered are the following: How has the exercise of national sovereignty explicitly and implicitly relied upon race as a criterion of membership? How might a sovereignty framework provide a counter- [*1641] narrative to the story of inclusion often associated with civil rights? How can a comparative racial analysis contribute to understanding the possibilities and limits of sovereignty? How has race influenced the cognizability of claims to sovereignty? Does the assertion of sovereignty by oppressed peoples stand subject to the same or similar critiques of the exercise of sovereign power by dominant national formations? n224 There is not nearly enough CRT scholarship exploring the foregoing themes.

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8. Post-racialism. We need to think very carefully about how we articulate CRT's relationship to post-racialism. As I suggested earlier, post-racialism is becoming, but is not yet, the rhetorical replacement for colorblindness. What do we do about that? We could engage post-racialism as though it were already the new colorblindness. And, in fact, there are CRT scholars who have critiqued postracialism in precisely those terms. Alternatively, we could attempt to re-claim, or "normatively turn," the still-emerging ideological valence of post-racialism. Which approach makes the most sense? This, for me, is a genuinely hard issue: Should we treat post-racialism as though its racial valence is exhausted by a colorblind normativity? Can we do to post-racialism what conservatives have done to colorblindness-make it our racial project? Crenshaw articulates the "[t]he stakes in interrogating post-racialism" this way: In interrogating the many possible ways that "post" can be thought to be doing a certain kind of ideological work, it is apparent that "post racial" need not take on the meanings to which I attribute the term herein. For example, the "post" in post- colonial or post-apartheid signals that the past does not simply precede the present but partly constitutes it. In this sense, the significance of "post" is not in the signaling of a before and an after, but in signaling a range of factors-potentially undefined-that make the contemporary social order a variation of the prototype, not its opposite. By contrast, the function of the "post" that garners considerable traction in post-racial discourse today operates not only to de-historicize race in American society, but also to reframe the contours of this contemporary moment as constituting the opposite of what preceded it. By these lights, a post-racial America is a racially egalitarian America, no longer measured by sober assessments of how far we have come, but by congratulatory declarations that we have arrived. n225 Whether the "post" in post-racial comes to mean "the variation of the prototype" turns at least in part on how CRT Scholars describe and mobilize the term.

9. Doctrinal Interventions. Critical Race Theorists should spend more time thinking about doctrinal interventions, notwithstanding that the space for doctrinal reform is decidedly cramped. Against the backdrop of juridical retrenchment, it makes sense that most of our work would be deconstructive. But what are the reconstructive possibilities? This question need not, and indeed should not, be limited to Supreme Court jurisprudence. Nor should we focus entirely on federal law. Finally, in pursuing this effort, we should be thinking about legislative and administrative reform possibilities as well. This project might be especially important given CRT's engagement with CLS on the question of race, rights, and reform.

10. Reproducing CRT. What are the current institutional mechanisms for reproducing CRT? I mean to ask this question on multiple levels, including law school admissions practices, trajectories into teaching, and venues for nurturing the development of CRT. Where are we having collective conversations about how to reproduce CRT Scholars and scholarship? Is this what LatCrit Conferences currently do? Should the CRT Workshop be revived? If so, what institutional form should it take? Frank Valdes gave a wonderful presentation at the National People of Color Conference at Rutgers Law School, Camden, last year (which I hope he will publish) in which he indicated the careful and strategic organizing that led to the development and institutionalization of the Federalist Society. Are CRT scholars engaged in a similar organizational effort? Should they be? How would any such effort interact with the American Constitution Society, which fashions itself as the progressive alternative to the Federalist Society? The foregoing questions invite us to think about our collaborative interactions more generally.

A Latina perspective on binaries

The move from “Hispanic” to “Latino” has taken place over the past decade, but “Latinos” still references that colonial relationship and “Chicanos” has become a better (although still problematic) reference. There are both distinct and co-terminous forms of inequality and racial oppression in the Chicano/as communities as there are in Black communities and Asian American communities. Whiteness, although socially constructed (Ignatiev’s How the Irish Became White), has very material consequences through all of these relationships where “American” stand in for “white American” and corresponds to massive privileges in society whether the advantages comes at the expense of Chicanos, Asian Americans, Blacks, Native Americans (also Indigenous Peoples, occasionally referred to by tribe), or other non-white groups.

Maritza I. Reyes, Prof. of Law, Florida A&M University, ‘14 (17 Harv. Latino L. Rev. 1, Harvard Latino Law Review, “OPENING BORDERS: AFRICAN AMERICANS AND LATINOS THROUGH THE LENS OF IMMIGRATION

As demographic changes cause the United States to move away from a majority-White population and toward a "majority-minority" n26 population, n27 these demographic shifts increase the political power of the two largest minority groups--African Americans and Latinos. Consequently, more scholarship should analyze how the input and dynamics of these groups, in relation to each other, will influence the political and societal future of the United States. n28 This necessity was identified as one of the concerns of LatCrit n29 scholars when they began a movement, n30 among other things, to move [*6] legal scholarship beyond the status quo. n31 LatCrits sought to consider how the diverse racial groups should collaborate with each other. n32 How do we as African-Americans, we as White-Americans, we as Asian-Americans, we as Latino/Latina Americans participate together in struggles that involve people who are not ourselves? Fundamentally, we have to figure out how to hear what other people are saying, how to participate in the struggle of those others who are involved with us in the larger struggle to reduce racial and gender oppression and how to understand what this project as a racial, ethnic, or nationality concern ought to entail and ought to make for us. n33 As this Article approached its final stage, the verdict in the Zimmerman case was rendered. n34 This case

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polarized the country along perspectives about race in America. n35 It reminded the nation that we are still divided in our experiences with racial injustice. n36 It also reminded us why it is important to explore and understand how race influences our individual and group views on legal, political, and social issues. Authors who choose to challenge the status quo open themselves to criticism and to being labeled controversial. n37 However, some of us have to be willing to open critical dialogues and propose solutions about issues of our time that impact nearly every aspect of law and society. Great efforts have been made during the writing of this Article not to essentialize the experiences of African Americans and Latinos because members of these communities are not monolithic. n38 To "essentialize" [*7] minorities means to ascribe certain characteristics and experiences to all individuals within a particular group. n39 However, notwithstanding individual differences, "there are still issues where which race [a person is] makes a difference in perception. And that perception informs political views and attitudes." n40 This is why race and its impact on individual and group actions and reactions are analyzed in this Article. There is ample legal scholarship analyzing racial dynamics between Whites and minorities, but the taboo subject n41 of how minorities engage in "racialized politics" n42 around political issues, such as the immigration debate, is in its early stages. n43 This Article examines, through the lens of immigration, how demographic shifts, race, and politics affect coalitions between African Americans and Latinos. n44 In this Article, it is taken as established that African Americans and Latinos are socially-constructed racial groups in the United States. n45 Part I illustrates how the media "racialized" the Latino vote during the 2008 Democratic Primary elections when the majority of Latinos in those early elections supported U.S. Senator Hillary Clinton, a White woman, rather than U.S. Senator Barack Obama, a Black man. n46 This Part shows the need for more nuanced discussions about race and race relations, and explains why Americans should not rely on incomplete and misguided media representations of Black-Brown alliances and conflicts. n47 Part II considers the elephant in the room--race--in relation to interactions between African Americans and Latinos. Racism is generally not cited, at least not in a direct and explicit way, when scholars examine the reasons [*8] why African Americans sometimes join with Whites in opposition to immigration and immigrants. n48 But, as the events surrounding the Zimmerman case demonstrate, avoiding the issues of race and racism, including within minority communities, does not cure the problem. When minority groups fail to acknowledge that they are not immune from racist tendencies, they repeat the learned cycle of oppression against members of other groups, including against other people of color. n49 This Article confronts race and racism candidly in an effort to put them on the table as conscious and unconscious reasons for the lack of support for immigration reform in some African-American circles. Part III examines the views of African Americans about Latino immigration, thereby expanding beyond the usual Latino-White immigration paradigm n50 to a Black-Latino paradigm. Paradigms center the interests of particular communities. n51 It is valuable to consider the interests of African Americans vis-a-vis Latinos in the immigration debate. This Part includes, by way of background, a brief discussion of the African American experiences with immigration and migration. Finally, this Part challenges the main reasons cited for anti-immigration positions: nativism, economics, and politics. Part IV describes some of the historical civil rights struggles of African Americans and Latinos and analyzes why the groups should collaborate in the fight for civil rights for all. The communities are disenfranchised, including through racial profiling, segregated and substandard education systems, denial of voting rights, and detrimental immigration policies. These experiences demonstrate that the groups should work together in support of common interests. In conclusion, the Article proposes that African-American and Latino interactions and coalitions may set the tone for the sociopolitical future of the nation.

GEIZA VARGAS -VARGAS , Prof. Law College of Charleston, ’14 (WESTERN NEW ENGLAND LAW REVIEW [Vol. 36: 131 “LATIN@S, DISRUPTING RACIAL NORMATIVITY,”)

With The Space Traders, I conclude with the matter of Professor Gleason Golightly, the conservative economics professor and “unofficial black cabinet member”53 to the President. Professor Golightly’s character, equally one-dimensional as the Aliens, occupies the role of the “Uncle Tom,” or that Black individual that has overcome his Blackness, so to speak, and has secured a position of relative power within the government. Professor Golightly’s world is shattered with the news of the Alien transaction, and what we see is his attempt to appease the President and at once protect “his people.”54 But he fails; he also fails to save himself. While Professor Golightly had broken through racial barriers—seemingly—and achieved roles that justified his internal dialogue, he was quickly reminded that his acceptance within the dominant race structure, one in which Whiteness controls, was temporary. In other words, his status was provisional, and when the moment of efficacy presented itself—would Golightly be spared from having to board the ship?—he was reduced to his Blackness and abandoned along with all other Blacks.55 Within this end to The Space Traders is the powerful suggestion, carried earlier in the greater text, that racism is permanent. While there is controversy in the suggestion, there is tremendous power in it as well. At least for me, it shifts the focus of life to living one of efficacy, in which I do not surrender my consciousness or agency. This is not to suggest a liberal awakening, but a circumstance in which I ultimately embrace my role as disruptive model. In the end, embracing the extent to which Latin@s disrupt the race dialogue—pushing truth and possibility beyond fixed borders and beyond binaries. And precisely because Latin@s are able to cross borders, flow in and out of the binary, we hold tremendous power to effectuate change. We must first, however, let go of the gaze.

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Mainstream social reform

This area fits in countless other places, certainly in micro-political approaches calling for individual activism, not to mention all the ways that laws and their enforcement rely on a certain adherence by citizens to continue to function in the way they do.

Thus, if there is racism in an institution, what do we do about it?

http://socialimpactarchitects.com/wp/racism-in-the-social-sector/

Racism is Real As agencies in the social sector, it can be easy to think that because we serve diverse clients that we are free of racism, but racial diversity does not necessarily equate to racial equity. Today, racism is not usually overt, but as we know, it affects both our clients and employees in covert, often unconscious, ways. Studies have shown how people of color are denied help, housing and credit. Even some of the most progressive institutions on the forefront of racial justice – universities – are susceptible to unequal treatment of minorities. As social sector leaders, we must take action to ensure that we are not silently condoning institutional racism.

Racism is Rectifiable A great way to evaluate whether our social sector agencies are helping move the needle forward is by utilizing Racial Equity Impact Assessments (REIA). Race Forward developed a helpful REIA guide to assist organizations in evaluating the impact policies and programs have on different racial groups in order to make more informed, equitable decisions. What we like about REIA is that it combines three essential elements in evaluating any policy or program:

 Research – REIA recommends getting a solid baseline of where the organization stands through internal and external market research. For example, the REIA can be used to evaluate promotion practices in your agency. The assessment’s initial steps recommend that you look at your data, such as the current representation of people of color in upper management compared to the breakdown of candidates who apply. These figures can be compared to national studies of diversity in the nonprofit workforce to provide additional context.  Scenario Analysis – Steps 6 through 8 of REIA get into analyzing the impact of current policies or practices and their alternatives on racial equity. This part of the process assesses who is helped or hurt by policy alternatives and how negative impacts can be mitigated. Organizations can use scenario analysis to play out what the consequences would be for changing promotion criteria or performance evaluation rubrics and assess which tools are most free from bias.  Impact Measurement – Lastly, REIA supports developing a plan to measure the success or failure of any policy or program an organization implements. For example, when changing promotion practices, an organization should measure changes in candidates applying, improvements in performance and changes in the composition of upper management. Setting target outcomes for new policies is important to accurately gauge whether or not the policy is helping the organization achieve equity.

Tackling issues of race can be uncomfortable, but the social sector needs to be proactive about pursuing racial equity for both our clients and employees. This requires us to take a look at how we are really doing and consider that there may be unintended ways we discriminate against certain groups through seemingly benign policies. We invite you to share the ways you have successfully fought for equity in your agencies and ask you to join us next week for our blog on how a vision statement can help your organization stand out.

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V. Micro-political strategies/tactics/methods of resistance

Riding With Death, Jean Michel Basquiat

Although the focus here is on approaches that rely on micro-political action for change, this is not to imply that there is a border between micro and macro politics or that one form of advocacy cannot become the other or act as both. This is more to distinguish the kinds of competitive options the negative has available on the passive voice topic. Some of these categories fit inside others, some don’t quite fit at all, and still others imply areas that are not listed. It’s a collage more than a diagram. Admittedly the collage has become a bit unwieldy and what started as a garden has become a thicket trying to reach forest status. Here’s the best way to view this section. It is a set of possibilities for how the affirmative might interpret, embrace, and advocate the critical wording of the resolution. In addition, many of the strategies/methods detailed below will provide negative options against particular affirmative choices, depending on how the aff is framed and what the negative is trying to turn into a competitive strategy. With many social movement tentacles, there is always a good debate that one needs prioritization over the others (versus the permutation) The second way to evaluate this section is as a series of ways to talk about what happens, or could happen, without working through legislative fiat and the hypothetical passage of a certain policy by officials that are outside of the debate. Thus, in many ways this is negative ground. If the laws do not work to resolve the underlying problems, than we have to turn elsewhere.

Stephanie Wildman, Prof Law Santa Clara U., ’14 (47 U.C. Davis L. Rev. 1047 “In Honor of Angela Harris: Finding Breathing Space, Embracing the Contradictions, and "Education Work", April)

Yet conversation about race, racism, and discrimination remains fraught with tension in current U.S. society. n22 As a nation that declared independence from a colonial power, the United States might have been expected to exhibit more empathy toward colonized peoples. But the founders, as colonizers themselves, embedded oppression of American Indians and people of African descent into the nation's founding document. Some argue this history is old and irrelevant; "after all," they say, "the U.S. elected a black president." In public discourse the refrain, "Aren't we post-racial?" or the making of some reference to a "post-racial" era have become common. n23 Yet race, racism, and discrimination remain relevant and problematic today because of a multi- layered system that enforces messages about power and lack of power across multiple identity categories. This system, which often allows stigma, n24 stereotyping, n25 hate speech, n26 microaggressions, n27 systemic privilege, n28 and discrimination, n29 reveals that laws aimed at ending discrimination address only a fraction of the behaviors that make the discrimination possible. Part of the difficulty and tension society faces in trying to talk about race is the conflation and confusion that

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surrounds these distinct practices. As a society, we are clear that discrimination is bad and that racism is bad. Whites seek to show they are "good" and not racist. But those with power participate, often unwittingly, in these other behaviors that are part of the skeletal structure that scaffolds the beast of discrimination. The microaggression offers one example of how systemic oppression remains intact, even while Congress has enacted powerful antidiscrimination laws. n30

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methods of sentiment

rage

…more on Afro-pessimism below (this is not to define particular manifestations of rage as “political projects,” but to talk about the aesthetics and ontology of social death.

Wilderson, ’14 (This is a transciption of an radio interview with Frank B. Wilderson, III taped in October of 2014, “We’re trying to destroy the world” Anti-Blackness & Police Violence After Ferguson: An Interview with Frank B. Wilderson, III, accsd 12/2/14, An audio recording of the interview can be found under the title “Irreconcilable Anti-Blackness and Police Violence” on the show’s website: http://imixwhatilike.org/2014/10/01/frankwildersonandantiblackness-2/, p17-18, 20)

Many years ago, right before George Jackson was murdered, Angela Davis was being interviewed by a journalist, who asked her: ‘George Jackson has said that America is a fascist state. Do you agree with that?’ And what’s important here is the next thing that she said, because this is the moment where we see how the Black psyche is coerced by the hydraulics of terror. She said that, ‘if I were to say as Jackson did that America is a fascist State, the only way I can say that is if there were some outside force that was ready to come in and deal with it’, and she referenced the Americans and the allies going into Nazi Germany, bombing the hell out of it, and turning it into something other than a fascist state. So what I’m trying to say here, and this is something that happens to all Black people including myself, is that you’re faced with this person who wants something coherent from you, so her mind moves from the question, which is a question of pure analysis, ‘is this fascism?’, and shifts over to the register of Lenin’s question, ‘what is to be done?’ What her unconscious here had done at that moment is to realize that the totality of the fascism we live in is beyond what I can think of as redress. So let me then corrupt my own analysis, and say that this is not fascism, so that I can have some kind of speech act about what is to be done. She avoided the question, or the unconscious made a switch from pure analysis to ‘ooh, let me come up with an answer’. This is what happens to us all the time. If we can help Black people to stay, as Saidaya Hartman says, ‘in the hold of the ship’, that is, to stay in a state of pure analysis, then we can learn more about the totality and the totalizing nature of Black oppression. And then, move into a conversation about what is to be done, realizing that our language and our concepts (post-colonial, marxist discourse) are so much a part of other peoples’ problems, problems that can be solved, that we’ll really never get to the thing that solves our problem — because it’s already there in Fanon: the end of the world — because at least if we don’t have a strategy and tactics for this end of the world, at least we will not have altered and corrupted our space of pure analysis to make it articulate with some kind of political project…. What freaks them out about an analysis of anti-Blackness is that this applies to the category of the Human, which means that they have to be destroyed regardless of their performance, or of their morality, and that they occupy a place of power that is completely unethical, regardless of what they do. And they’re not going to do that. Because what are they trying to do? They’re trying to build a better world. What are we trying to do? We’re trying to destroy the world. Two irreconcilable projects.

Sexton, UC Irvine, ’16 (Rhizomes, Issue 29, Jared, http://www.rhizomes.net/issue29/sexton.html)

Returning to Lomax, we see that she is no stranger to what the incomparable Audre Lorde once called "righteous rage." Indeed, Lomax defends it elsewhere against all those who would, for instance, advise black mothers of slain children to manager their anger (Lomax 2014). And still, she is careful to distinguish and even to distance rage from violence and would seem to solder rage and hope together lest the former become despairing or vengeful. In foregrounding black rage with black hope, I suspect she means to avoid, say, the tragic violence of an Ismaaiyl Brinsley, whose self-styled retaliatory execution of two officers of the New York Police Department and subsequent public suicide in December 2014 was preceded by his shooting and wounding a former intimate partner, a black woman named Shaneka

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Thompson—an entrenched pattern in which black men commit reactionary forms of domestic violence they understand to be prefatory or preparatory to public acts of insurrection against the state, a pattern that, I would add, reposes fundamental questions about what constitutes revolutionary (and reactionary) violence in the first place.

love

Stephanie Wildman, Prof Law Santa Clara U., ’14 (47 U.C. Davis L. Rev. 1047 “In Honor of Angela Harris: Finding Breathing Space, Embracing the Contradictions, and "Education Work", April)

Many students come to law school caring about justice and then ask, "Where was the class about justice?" Recognition of emotion, especially passion, and mindfulness are crucial tools for addressing social change. Offering a mindfulness seminar was Angela's statement that growth in these areas remains crucial to life and to law. In a recent essay, written for a Mindfulness Symposium in the Journal of Legal Education, Angela recounts her work with Stephanie Phillips to offer a course called "Mindfulness and Professional Identity: Becoming a Lawyer While Keeping Your Values Intact" at SUNY Buffalo. n54 Angela relates their dilemma in considering how to explain mindfulness to the students in terms of its relationship to values. As Angela explains, mindfulness could be taught as purely secular: "In its most stripped-down form, it could be offered as pure stress reduction. This mindfulness "economy package' would include instruction in breathing, relaxation and basic awareness training, but nothing more." n55 Or at the other end of the possible spectrum, the course could connect mindfulness to a religious or spiritual worldview. The course they decided to offer did have a distinct moral orientation. The practices "encouraged the cultivation of love and compassion for ourselves and others and discouraged the cultivation of anger, hatred, jealousy, resentment, envy and other "negative' emotions." n56 Angela and Stephanie's choice of this "middle ground" kept the mindfulness practice true to the tradition that practitioners use mindfulness within an ethical framework.

Bending, School of Development Studies,’02 [Tim, “Power Versus Love: The Production and Overcoming of Hierarchic Repression,” Alternatives 27, p. 135-137].

[The concept of imagination is important. It is not that we get close and there is some magical transference of information; it is that, with love, we make a great effort of trying to imagine the “Being” of the other, the message they are trying to convey. Love is, following Ahmed, “the affect of an engagement which moves us, and yet cannot “move us across” (to the other).” It cannot give us real objectivity, but it moves in the direction of objectivity, away from the impulse to universalize and to fall back on conventional coding. “The direction of attention is, contrary to nature, outward, away from the self which reduces us to a false unity, towards the great surprising variety of the world, and the ability so to direct attention is love.

Attention toward this “unutterable particularity” cannot be disinterested but is an emotional upheaval. As Spivak says of the “secret,” the thing that we see is there but it is that which does not get across, “This trace structure (effacement in disclosure) surfaces as the tragic emotions of the political activist, springing not out of superficial utopianism, but out of the depths of what Bimal Krishna Matilal has called ‘moral love.’ This again parallels Murdoch:

The tragic freedom implied by love is this: that we all have an indefinitely extended capacity to imagine the being of others. Tragic, because there is no prefabricated harmony, and others are, to an extent we never cease discovering, different from ourselves….Freedom is exercised in the confrontation by each other, in the context of an infinitely extensible work of imaginative understanding, of two irreducibly dissimilar individuals. Love is the imaginative recognition of, that is respect for, this otherness.

This love is not the possessive, desiring direction of attention that is often connoted by the term. It is the love one associates with compassion and a longing for a nonaloneness in which we can share our worlds. Its tendency is not to make judgments of value, putting things into hierarchies.

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direct action

sit-ins, boycotts, culture jamming?, property destruction, graffiti, other various forms of protest, more extreme cases of violence, etc.

--direct action necessary in any and all instances to respond to the mutating forms of racism.

DeAnza Cook, Mar 21 ‘16, “Justifying radical responses to systematic oppression,” DeAnza Cook is a contributing writer for The Cavalier Daily. http://www.cavalierdaily.com/article/2016/03/cook-justifying-radical-responses

On Aug. 8th, 2015, cable news erupted with images and news clips from Black Lives Matter, or BLM, activists taking over Vermont Sen. Bernie Sanders’ stage in Seattle. The protest sparked a tidal wave of controversy that even captured Donald Trump’s attention when he spoke to CNN. He said, “I would never give up my microphone. I thought that was disgusting…” Trump wasn’t alone in his disgust. Liberal America loathed the seemingly irrational tactics of the BLM Seattle protestors. Commentators from all sides of the political spectrum demanded to know why the BLM movement would attack and berate the most progressive and liberal candidate in the presidential race. The activists responded, “We honor black lives by doing the unthinkable, the unapologetic and the unrespectable.” Specifically, BLM activist Marissa Johnson named “white supremacist liberalism” as a crucial barrier to “holding Sanders and other white progressives accountable for failing to support [the BLM] movement.” Still the question remains: why do present-day activists, like Johnson, rely on “the unthinkable, the unapologetic and the unrespectable” as means for proclaiming their message of freedom and justice for black lives? The answer is simple: because black political activists, like those of BLM, are responding to the evolution of racism and systemic oppression in the 21st century. America no longer uses “white” and “colored” public signs to segregate and marginalize black populations. The politicians of today, with the exception of Donald Trump, no longer consider it politically viable to explicitly endorse black economic and political subjugation. Nowadays, racial discrimination and disenfranchisement takes on a more insidious and covert form. Instead of battling outright racists, black Americans are confronted with white supremacist views masked in “color-blind,” “post-racial” rhetoric. Thus, contemporary social activists are compelled to respond accordingly. However, abuses against people of color are not all inconspicuous. Extrajudicial killings of black people by law enforcement are the worst kept secrets of American history. From the establishment of colonial slave patrols to the development of the modern American police state, police brutality against people of color in the U.S. is old news — 300-year-old news. Black political activists of today are still attempting to raise awareness about police brutality. The hashtag #BlackLivesMatter was born out of long historic tradition of black activists fighting to “[broaden] the conversation around state violence to include all of the ways in which Black people are intentionally left powerless at the hands of the state.” We cannot ignore the rallying cry against police brutality. Historically this issue has been at the epicenter of racial justice conflict. Police violence against people of color harkens back to deeply rooted social and racialized inequalities that have existed in America since its founding. The Civil Right Movement — as victorious as it may have been in some respects — left behind a legacy of unfinished business that activists today are addressing in the contemporary moment. The issues of black America are being re-televised and reinterpreted through hashtags, Twitter chats and other online forums connecting advocates from around the globe faster than ever before. Whether we like it or not, we are witnessing the next chapter in civil rights history. America’s moral conscience cannot afford to entertain the gross dichotomy of Black Lives Matter vs. Blue Lives Matter that dominates American political discourse today. We owe it to succeeding generations to tackle issues of criminal and civil justice head-on and permanently eliminate historical injustices. Regardless of skin color or ethnicity, all people have a role to play in race-related debates. These issues are not solved in isolation and are certainly not overcome by silence or passivity. When opportunities present themselves, we ought to respond, offer constructive criticism and contribute to the broader mission of constructing a truly inclusive America. However, sidestepping the process of addressing the historical roots of America’s racial divisions will only delay much-needed social progress. Until we confront and acknowledge the abuses embedded in American institutions and ideologies, social epidemics like police brutality will endure.

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--example of links to non-violent direct actions in Palestine

Kelly, ’16 (Robin D.G. Kelley, Gary B. Nash Professor of American History at UCLA, Yes, I Said “National Liberation,” 03/01/2016, http://www.blackagendareport.com/free_palestine_free_black_america, acsd 1-1-14) Also see this video from Robin Kelley: https://www.youtube.com/watch?v=AdbuhNaBcbc)

Thanks to fearless journalism and relentless activism, spectacular violence in Gaza and the West Bank has swelled the ranks of the Boycott, Divestment and Sanctions (BDS) movement, largely because it offers a tangible, ethical, nonviolent strategy to challenge occupation, the slaughter of civilians, and Israel’s egregious violations of international law. Even when the movement’s financial impact is minimal, the educational effect has been enormous. Thanks to years of sustained, protracted debate, the public knows a lot more about the occupation, who profits from it, and the historical roots of dispossession going back to 1948. During the bloody summer of 2014, I encountered more and more people in the United States openly describing Gaza as the largest open-air prison in the world, citing the fact that our taxes subsidize Israel’s garrison state to the tune of 6 million dollars a day, criticizing the US for consistently vetoing UN resolutions condemning Israel’s human rights abuses while violating our own Arms Export Control Act prohibiting the use of US weapons and military aid against civilians in the occupied territories. Even a few American liberals no longer see the question of Palestine as an Arab-Israeli “conflict” rooted in some ancient, irreconcilable hostility, but rather as a colonial occupation and violation of international law and human rights, subsidized by the United States.

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academic resistance

(teaching, curriculum, subversive writing, publishing, debate)

Academic Forms of resistance

“Phantasmic Trauma Narrative”

from Octavia Butler—criticism, ficto-criticism, genealogy, political-fantasy, historiography (much of which works through the literary device of the ogbanje figure).:

MELUS: Multi-Ethnic Literature of the U.S., Volume 41, Number 1, Spring 2016, pp. 93-124

The phantasmic trauma narrative can be used as a tool for articulating cultural traumas and encouraging empathic responses from multi-ethnic readers. Butler adapts the ogbanje figure in Kindred to suit an African American context; specifically, she galvanizes the border-crossing potential of this figure as a means of facilitating reader identification with Dana. This identification permits readers access to not only her lived experience of slavery but also her experience as a contemporary black woman negotiating issues of race and gender in the twentieth century. The felt connection that arises as a result of this identification encourages readers to consider the ways in which history continues to inform discussions of race in the present day. The novel guides readers in this line of ethical questioning by modeling cross-cultural empathy as performed by Dana when her failure to bear witness to her own traumatic experience causes her to recognize the historical suffering of other groups. The novel’s enactment of repetitive compulsion in Dana’s final, voluntary return to Maryland stands as a reminder to readers of the need to confront the historical traces of slavery that remain in our social, cultural, and political institutions.

academic theory

As debates over the meaning of “Afro-pessimism” demonstrate, “theory” can mean embracing academic institutions for support or speaking truth to power regardless of the cost…

Sexton, UC Irvine, ’16 (Rhizomes, Issue 29, Jared, http://www.rhizomes.net/issue29/sexton.html)

The attentive reader may have noticed that the development of what once went by the name of "theory" has taken on a new, or perhaps renewed, bifurcation of late. And what might be a fork in the road has presented students and practitioners with an uncanny decision between being institutionally supported, socially sanctioned and well liked, and being educated in such a way that might allow for the posing of a relevant question and the possible articulation of an effective truth. Though this bifurcation would seem to follow a rough determination marked by the relative presence or absence of racial blackness shaping one's fate and fortune, the tension, in fact, shoots straight through what Spiller's called above "our anxious mind" and wreaks havoc on our arguments, right down to the level of the sentence – verb tense and word choice beware. That is to be expected when the field and function of speech is prohibited by organized violence, and when it is opened, or, pace Spillers, earned in an atmosphere of counter-violence. To reverse the popular adage: easier done than said. [35] Perhaps that's the difference between a theory and a tendency, a tendency and an impulse, an impulse and a wish. For if Afro-Pessimism is defined by anything—a theory or theorem, a method or approach, a motley crew or citational network, an ensemble of questions or set of postulates—then it may be the motive force of a singular wish inherited in no small part from black women's traditions of analysis, interpretation, invention, and survival; what sometime social commentator Cedric Kyles, in a moment of comic insight, once termed "the wish factor." Born of a confrontational style that assumes a general antagonism, the wish factor

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contrasts sharply with "the hope creed" characteristic of those engaging the politics of everyday life through the assumption of a general consensus disrupted by conflict. [12] If Afro-Pessimism strikes a nerve, confusing the bounds of the intramural and the extramural in the process, then it is not unrelated to a certain conjuring of spirit, or attitude, of those still willing to fight for what is right and necessary rather than simply in the immediate interest. For our contributors, the benefit and the strength of the scholarly endeavor arises, in part, from the decreased distance between those dual considerations, a politics pursued without need of a base or margin of power, a struggle that radicalizes every struggle it touches, inside and out.

Critical theory and rubbing up against black aesthetics / vernacular

Fred Moten, PhD Berkeley, UC Riverside, ‘15 (Interviewd by Adam Fitzgerald, Aug. 5th, http://lithub.com/an-interview-with- fred-moten-pt-i/) Literary Hub contributing editor Adam Fitzgerald interviewed Fred Moten this month. Moten lives in Los Angeles, where he teaches at the University of California, Riverside. In 2009, he was recognized as one of ten “New American Poets” by the Poetry Society of America.

MOTEN: Well it’s about love and it’s about a very specific kind of, let’s say, uh, libidinally-driven rigor. That’s – so, yeah I love the way they sound. I love when Douglass talks about the unmeaning jargon of the slave songs; I don’t separate in my mind, or hierarchize, let’s say, Derrida’s unmeaning jargon and Douglass’ unmeaning jargon – I’m invested and interested in both of ‘em. And ultimately they blur for me. They form or are a part of a radical entanglement. So to get back to the other part of your question, I’m not interested in what people call “code-switching” and I’m not interested much in collision. Maybe, you know, well, collision is probably a better term for it just in the sense of…but I think that the word I would use, maybe the word that I get from my friend Steve, from Stefano, that he really first started talking about and that we’ve tried to elaborate together is, you know, rub. You know, or brushing together, brushing up against one another. That rub, that feel. And for me, when I read Louis Armstrong’s letters and Walter Benjamin’s letters they brush up against one another, for me. There’s a feel they share. That’s – so yeah, I’m interested in that stuff. I’m interested in all these things.

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social movement activism

(lots of very broad definitions here of "social movement"--but some sort of collective action, probably as part of a group bigger than one debate round),

* training13

Making links and awareness matters. For example, link Ferguson to Gaza.

Then in August, as the war on Gaza rose to the top of the news cycle, so did the escalation of racist police violence in the US. The killings of Eric Garner, Ezell Ford, Kajieme Powell, John Crawford III, and most significantly, Michael Brown of Ferguson, Missouri – all unarmed, all in the space of a couple of months – were immediately linked to events in Gaza. The people of Ferguson who took to the streets to decry Brown’s unwarranted murder (he was on his knees with his hands up when Officer Darren Wilson fatally shot him) faced down riot police, rubber bullets, armored personnel carriers, semiautomatic weapons, and a dehumanizing policy designed to contain and silence. Activists readily drew connections between Israeli racialized state violence in the name of security and the US – from drone strikes abroad and the killing of Black men at the hands of police—and the role Israeli companies and security forces have played in arming and training US police departments. Palestinian solidarity activists issued statements about the Ferguson protests and the NYPD killing of Eric Garner, and Palestinian activists in the West Bank have put out their own solidarity statements along with advice on how best to deal with tear gas. “Activists readily drew connections between Israeli racialized state violence in the name of security and the US.” The Gaza to Ferguson link has been revelatory in other ways. In our lexicon – especially post 9/11 – cops and soldiers are heroes, and what they do is always framed as life-saving, defensive action in the name of public safety. Police occupy the streets to protect and serve the citizenry from (Black and Brown) criminals who are seen to be out of control. This is why, in every instance, there is an effort to depict the victim as assailant – Trayvon Martin, Michael Brown, Darrien Hunt – the sidewalk is a weapon, their big bodies are weapons, they lunge, glare, flail their arms as evidence of threat. In Israel/Palestine, wars of pacification and annihilation are branded as efforts to neutralize the threat of terrorism. The blockade of Gaza is presented as necessary for Israel’s security. People who live under occupation experience the world as victims of perpetual war. Indeed, the police department’s decision to leave Mike Brown’s bullet-riddled, lifeless body on the street for four and a half hours, bleeding, cold, stiff from rigor mortis, was clearly an act of collective punishment. This is the point of lynching – the public display of the tortured corpse was intended to terrorize the entire community, to punish everyone into submission, to remind others of their fate if they step out of line. Collective punishment violates the laws of war, though in this case the Geneva Conventions do not apply. Collective punishment takes other forms as well: routine stops, fines for noise ordinance violations (e.g., playing loud music), fare-hopping on St. Louis’s light rail system, uncut grass or unkempt property, trespassing, wearing “saggy pants,” expired driver’s license or registration, “disturbing the peace,” among other things. If these fines or tickets are not paid, they turn into possible jail time, making bail, losing one’s car or other property, or losing one’s children to social services. The criminal justice system is used to exact punishment and tribute, a kind of racial tax, on poor/working-class black people. In 2013, Ferguson’s municipal court issued nearly 33,000 arrest warrants to a population of just over 21,000, generating about $2.6 million dollars in income for the municipality. That same year, 92 percent of searches and 86 percent of traffic stops in Ferguson involved black people, this despite the fact that one in three whites was found carrying illegal weapons or drugs, while only one in five blacks had contraband.

Social movements challenge and reinforce different conceptions of change. Of course one especially inspiring example is the Leaders of a Beautiful Struggle in Baltimore, directed by former policy debaters, and organizing against government and institutional abuses. Some of their ideas and critical foundation can be found in Dayvon Love and Lawrence Grandpre’s (Dir. & Asst. Dir. of Research & Public Policy for LBS), The Black Book: Reflections from the Baltimore Grassroots.

13 Katz, Judith. White Awareness Handbook: Training for Anti-Racism, 1978, reprnt 2003. Norman, Ok; U. of Oklahoma Press, 2003. Lots of direct action suggestions, training exercises, etc. The middle of Part 2, “Confronting Racism,” is all about debate.

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criticism/performance

(might include some types of debate?) (thinking otherwise)

Music and poetry

Theater

Bethlehem’s Aida Refugee Camp is home to the Alrowwad Cultural and Theatre Society, a genuine community center and youth theater founded by director, poet, playwright, and educator Dr. Abdelfattah Abusrour, who believes theater is a “nonviolent way of saying we are human beings, we are not born with genes of hatred and violence.” Having grown up in the camp, Abusrour gave up a promising career in science to devote his life to creating a “beautiful theater of resistance” aimed at releasing the creative capacity of young people to turn their stories into transformative experiences. Abusrour’s play, We Are Children of the Camp, is something of a collaborative venture, incorporating the kids’ own stories into a sweeping narrative about Palestine since 1948. The children speak from personal experience about Israeli soldiers invading the camps, shooting their parents, and then denying them access to hospitals on the other side of the wall. They long for human rights, a clean environment, freedom, a right to return to their land, and the right to know and own their history. Condensing nearly seventy years of history in the play’s title song, they sing of being made refugees in their own land, of colonies built, and villages demolished.

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Afro-pessimism

Why do these frameworks matter? There is good clash here for both sides and it’s a place to help ground the research. Do not get the impression that these two intellectual currents of Afro-pessimism and Black optimism are completely opposed to one another—in many ways they are more alike than different. On the other hand, there are a couple of points of contention between the two strands about what makes for productive politics. This would be a really good area for the community to learn and research.

Sexton, UC Irvine, ’16 (Rhizomes, Issue 29, Jared, http://www.rhizomes.net/issue29/sexton.html)

Afro-Pessimism is a contemporary phenomenon, some may even scoff that it is trendy, but its political and intellectual evolution is considerably longer and its ethical bearings much broader than one might expect, and there is work yet to be done regarding a genealogy of its orientation and sensibility. No individual or collective effort, of course, springs forth whole cloth and yet the controversy that has accompanied the emergence of this discourse over the better part of the past decade has suffered greatly from a refusal—on the part of most critics and too many proponents as well—to follow the old Jamesonian edict to historicize the theoretical aim and object (Herman 2003). I only note the problem here, as the development of proper context would require far more space than available at present. The vacuum-packed controversy has been surprisingly pointed as a result, and it is easy to miss the true significance thereof between the epiphanic tone of recent acquaintance and the acrimony of recurrent denunciation….The reticence expressed about the force and signification of Afro-Pessimism, which in some quarters has bloomed into open if largely uninformed resistance, has taken on the logic of preemptive strike. Though we have little engagement in print thus far, due in part to the recentness of the published literature, certain discussions are nonetheless afoot on the left "devoted to blaming pessimism for whatever crisis is thought to occupy us at the moment." Afro-Pessimism, in this case and on this count, is thought to be, in no particular order: a negative appraisal of the capabilities of black peoples, associating blackness with lack rather than tracing the machinations through which the association is drawn and enforced, even in the black psyche, across the longue durée; a myopic denial of overlapping and ongoing histories of struggle and a fatal misunderstanding of the operational dynamics of power, its general economy or micro-physics, reifying what should be historicized en route to analysis; a retrograde and isolationist nationalism, a masculinist and heteronormative enterprise, a destructive and sectarian ultra-leftism, and a chauvinist American exceptionalism; a reductive and morbid fixation on the depredations of slavery that superimposes the figure of the slave as an anachronism onto ostensibly post-slavery societies, and so on. The last assertion, which actually links together all of the others, evades the nagging burden of proof of abolition and, moreover, fails to acknowledge that one can account for historically varying instances of anti-blackness while maintaining the claim that slavery is here and now. Most telling though is the leitmotif of offense, and the felt need among critics to defend themselves, their work, their principles and their politics against the perceived threat. In place of thoughtful commentary, we have distancing and disavowal. The grand pronouncement is offered, generally, without the impediment of sustained reading or attempted dialogue, let alone careful study of the relevant literature. The entire undertaking, the movement of thought it pursues, is apprehended instead as its lowest common denominator, indicted by proxy, and tried in absentia as caricature.[1] [6] Astonishingly, all of this refuses to countenance the rhetorical dimensions of the discourse of Afro-Pessimism (despite the minor detail that its principal author is a noted creative writer and its first major statement is found in an award-winning literary work of memoir) and the productive theoretical effects of the fiction it creates, namely, a meditation on a poetics and politics of abjection wherein racial blackness operates as an asymptotic approximation of that which disturbs every claim or formation of identity and difference as such.[2] Afro-Pessimism is thus not against the politics of coalition simply because coalitions tend systematically to render supposed common interests as the concealed particular interests of the most powerful and privileged elements of the alliance. Foremost, Afro-Pessimism it seeks, in Wilderson's parlance, "to shit on the inspiration of the personal pronoun we" (143) because coalitions require a logic of identity and difference, of collective selves modeled on the construct of the modern individual, an entity whose coherence is purchased at the expense of whatever is cast off by definition. The subject of politics is essentially dividual and there is in effect always another intervention to be made on behalf of some aspect of the group excluded in the name of the proper.[3] The ever-expansive inclusionary gesture must thus be displaced by another more radical approach: an ethics of the real, a politics of the imperative, engaged in its interminably downward movement. This daunting task entails making necessity out of virtue, as it were, willing the need for the black radical imagination and not just its revisable demand. If certain scholars whose work has been instructive or inspirational for Afro-Pessimism miss this point too, it may have something to do with the search for a method of gaining agency that, while rightly suspending the assumption of an a priori agent, nonetheless rushes past the hidden structure of violence that underwrites so many violent acts, whether spectacular or mundane.

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Afro-pessimism as negative ground

The entire affirmative project and attempts to reduce racial inequality are systemically bound to fail because they are within a civil society, a social world, an existence that is already dead for Blacks (only extinction is a possibility within the lived experience of social relations) and premised on anti-Blackness.14

By R.L., 5 June 20’13 “Wanderings of the Slave: Black life and Social Death,” Metamute, http://www.metamute.org/editorial/articles/wanderings-slave-black-life-and-social-death, R.L. is an informal theorist working on the problematic of racialised identities, gender and communisation theory

In the face of continual black relegation, a line of thinking loosely assembled under the label ‘Afro-pessimism’ has emerged in the past decade as a theoretico-political intervention. The term ‘Afro-pessimism’ addresses a period throughout the duration of which questions of ‘race’ were either sidelined by the ‘postracial society’ or made ambiguous by multiracialist perspectives. Theorists adhering to the name have sought to discuss the reconfigurations of white supremacy and reorient its critique towards its essential foundation, the specificity of anti-black racism. For the Afro-pessimists, it is the continual perpetuation of anti-blackness that forms the ground of white supremacy, all other racial identities being formulated through this essential polarisation.4 For it is the question of black existence and the abolition of the condition of its existence that brings to light the precise meaning of what a struggle for absolute freedom would have to entail.

Rough and brief genealogy of “Afro-pessimism.” Stretches to Fanon as a critique of the Enlightenment as racial terror through continual enslavement.

Afro-pessimism is not a positive theory of black identity. Nor is it an affirmative philosophical movement of black subjectivity. Neither does it constitute a conscious and programmatic political position. And it does not attempt to grapple with anything resembling a single unified theory of white supremacy. Afro-pessimism is rather an informal tendency that could be designated as a constellation of theorists, ideas and artistic works ruminating upon the structural condition of black existence as indelibly marked by the residual echoes of the slave relation. For the Afro-pessimists, the advent of emancipation did not signal any substantial break with the content of slavery. Instead the passage from slavery to freedom marked the transition from one mode of racialised domination to another. Following the abolition of slavery, the formal determinations of slavery were subsumed under the racial category of blackness (synonymous with the construction of ‘race’), naturalising and thereby ontologising the slave relation as the essential principle of black existence.6 The status of the slave devolved into the phenotypic appearance of ‘blackness’ – the black subject was no longer a slave in relation to a master, but a slave to their appearance. Blackness displaced the form of the slave and the structural determinations of enslavement were ‘epidermalised’.7 The origin of the term ‘Afro-pessimism’ can be traced back to the works of Frank B. Wilderson, III. While Wilderson was the initial conscious architect of the expression, one can also follow its theoretical elaboration within the works of Jared Sexton, Saidiya Hartman and Hortense Spillers, to name a few.8 Leading Afro-pessimist thinkers such as Wilderson, Sexton and Achille Mbembe seek to draw out a political ontology of black existence vis-à-vis a Left-Heideggerianism influenced by contemporary philosopher Giorgio Agamben. Alongside Agamben’s political ontology, Afro-pessimist theorists also heavily draw from the works of Frantz Fanon, the figurehead and consistent reference point for many of the theorists. In this way a genealogy of Afro-pessimism can be traced between all these thinkers who deal with the concept of the human, the existential and affective structures of being, and the ambiguities of vitalism and life. Afro-pessimism poses a critique at the junction of political economy and the libidinal economy of white supremacy.9 At this theoretical intersection, black existence emerges as a categorical distortion that gives birth to the classical Humanist subject as a product of Modernity and the Enlightenment. For the Afro-pessimists, the black subject is exiled from the human relation, which is predicated on social recognition, volition, subjecthood, and

14 Some good Q & A on Afro-pessimism and Frank Wilderson can be found here: http://incognegro.org/afro_pessimism.html

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the valuation of life itself. Thus black existence is marked as an ontological absence, posited as sentient object and devoid of any positive relationality, in contradistinction to the human subject’s presence.

afro-pessimists don’t really use the term to describe their work, although they do not reject it. Sexton argues the term has a certain productive affect as well as some serious risks. At least two problems would counsel against the term: first, it gets conflated with a debate over structural adjustment in the 80s and whether sub – Saharan Africa was capable of good governance. Second, it calls for a philosophical debate instead of psychological one, bogging itself down in Gramsci and Marxist distinctions.15

Jared Sexton, ’11 (Prof. of African-American Studies & Film and Media Studies “The Social Life of Social Death,” In Tensions Journal, by York University (Toronto, Canada) Issue 5 (Fall /Winter 2011), http://www.yorku.ca/intent/issue5/articles/pdfs/jaredsextonarticle.pdf

In emphasizing just how motley is this crew, it should be said that afro - pessimism (I use the lower - case deliberately) is not, as Wilderson himself notes, “ anything as ostentatious as a school of thought ” and the moniker “ neither infringes on their individual differences nor exaggerates their fidelity to a shared set of assump tions ” (Wilderson 2008: 58). Wilderson lists a dozen or so among the “ who ’ s who ” of afro - pessimists in his text, but there is no one on that list, including this author, that identifies themselves or their work by that term. That does not mean I think the heading is simply an imposition. The term emerges as an effect of a reading, a reading that is compelling in many ways, even as I find the term enabling and disabling precisely to the extent that it remains open to a supposed contradistinction to black optimism. The term, and its counterpart, is also open to confusion with respect to another iteration in the field of African Studies in the 1980s and 90s regarding “ the perception [among Western creditor countries] of sub - Saharan Africa as a region too riddle d with problems for good governance and economic development ” (Onwudiwe 2005). My fear is that the interlocution between afro - pessimism and black optimism today resonates too strongly with the limitations of that earlier debate between afro - pessimism and afro - optimism before the backdrop of structural adjustment. See Hartman & Wilderson (2003) for an account of Wilderson ’ s adaptation of this term. “Generalized impropriety ” is from Marriott (2011). At another level, one would need to approach the encounter of afro - pessimism and black optimism by distinguishing between pessimism and optimism as philosophical positions rather than psychological conditions, a distinction that requires revisiting tensions among Leibniz, Schopenhauer and Nietzsche, to name only a few of the most critical sources (Dienstag 2006). This much would likely recast Gramsci ’ s famous aphorism: “ pessimism of the intellect, optimism of the will ” (which Gramsci actually attributed to the French novelist Romain Rolland). Not the least of the points raised therein would have to do with frictions between anarchist and Marxist formulations (Manders 2006: xlix - l).

Sexton makes effective use of the term in other locations. Ultimately, to deploy the terms, it is necessary to recognize that afro-pessimism is not in opposition to Black optimism and that getting to that comparison in the first place requires taking into account the discursive-material practices of antiblackness.

This article is an attempt to think through an ambivalence that invests the differentiated field of black studies. Maybe we share it and maybe we don’t, or maybe we don’t know it, or don’t show it. And maybe we can’t. But this isn’t just a personal story, in any case. It is a meditation on the conditions of an intellectual practice among those that pose the greatest problem for intellectual practice. I have only been able to outline two associated points: 1) the paradigmatic analysis of afro - pessimism and the black optimism of performance studies relate through a set - theoretic difference rather than dialectical opposition or deconstruction; 2) afro - pessimism remains illegible — and unduly susceptible to dismissal — without attending to the economy of enunciation that sustains it and to the discursive - material formation in which it intervenes. That discursive - material formation is global in scale, approximating the terms of “the antiblack world

15 Another place to check out these articles and more is this great book: Time, Temporality and Violence in International Relations: (De)fatalizing ... edited by Anna M. Agathangelou, Kyle D. Killian, 2016.

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” (Gordon 2000), and that economy of enunciation resists the attenuation of black freedom struggle against the convergence of colorblindness, multiracialism, and what I introduced in a recent article as “ people - of - color - blindness ” (Sexton 20

What are the demands? That’s the wrong question entirely. The point is to destroy—the ontology of death is the move and intent.

Of course such dereliction cannot be left unmanaged. Desocialisation of the wage relation means the intensification of black subjection, either through police control, imprisonment or death. Racial segregation, despite the so-called ‘diversity’, in the American metropolis remains at an all time high and shows no sign of letting up. Contemporary post-crisis struggles against anti-blackness therefore have two principle features in common: confrontation with the police and the socio-spatial closure that entails in its material and symbolic forms. Whether it is the police as such, or the confinements of the ghetto and the possibility of escaping it through education, or even the free movement of black bodies through space, struggles against anti-blackness orient themselves toward the disorganisation of this controlled space. In relation to riots in particular, calls for ‘social justice’, ‘rights’, ‘police accountability and transparency’ obscure the essence of these movements, whose meaning resides entirely on the surface. They are fundamentally demandless and intentionally destructive. There is no ‘point’ except for utter dissolution of the current state of affairs. As viewed by the Afro-pessimists, the demandlessness of these struggles cannot be reduced to any single empirical aspect – freedom here and now must be absolute not relative. An irreconcilable antagonism produces black existence positioning it against humanity. This antagonism can only be resolved by the cathartic purge of violence. It is the use of violence that must first be expropriated, both materially and symbolically. Various automatons of public opinion have increasingly remarked on the nihilistic nature of such destructive acts, stinking of paternalism and moralistic authority: ‘why not be more selective?’ or ‘why do you destroy your own neighborhoods?’ or ‘how does this achieve anything?’ It is always the same series of questions that are posed, the impoverished ethicality of a white world in crisis. The disorder perpetuated by the black subject does not assert an emphatic statement of ‘I exist’. It appears to destroy every apparatus that prohibits the ‘I’ of black existence from coming fully into being. To drown out the daily sorrows of violence that subjectivises black existence. And to unmake the world that posits black existence as socially dead:

in allowing the notion of freedom to attain the ethical purity of its ontological status, one would have to lose one’s Human coordinates and become Black. Which is to say one would have to die.16

According to Sexton, Lewis Gordon (2010, 198) argues in “Theory in Black” that Blackness is the dark side of theory or “theory itself, understood as self-reflective, outside itself.”

Jared Sexton - African American Studies - University of California, Irvine, no date (“ANTE-ANTI-BLACKNESS: AFTERTHOUGHTS [1]” http://lateral.culturalstudiesassociation.org/issue1/content/sexton.html

In his article, "Theory in Black," Lewis Gordon writes the following:

 Theory in black...is...a phobogenic designation. It occasions anxiety of thought; it is theory in jeopardy. [...] There is a form of illicit seeing...at the very beginnings of seeing black, which makes a designation of seeing in black, theorizing, that is, in black, more than oxymoronic. It has the mythopoetics of sin. [...] Blackness, in all its metaphors and historical submergence, reaches out to theory, then, as theory split from itself. It is the dark side of

16 Frank B. Wilderson, III, Red, White & Black: Cinema and the Structure of U.S. Antagonisms, Durham & London: Duke Univerity Press, 2010.

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theory, which, in the end, is none other than theory itself, understood as self-reflective, outside itself (Gordon 2010: 196-8).

I am guided in the following task by a two-sided idea derived from Gordon's arguments: 1) all thought, insofar as it is genuine thinking, might best be conceived of as black thought and, consequently, 2) all researches, insofar as they are genuinely critical inquiries, aspire to black studies. Blackness is theory itself, anti-blackness the resistance to theory.

….Wilderson's is an analysis of the law in its operation as "police power and racial prerogative both under and after slavery" (Wagner 2009: 243). So too is Moten's analysis, at least that just-less-than-half of the intellectual labor committed to the object of black studies as critique of (the anti-blackness of) Western civilization. But Moten is just that much more interested in how black social life steals away or escapes from the law, how it frustrates the police power and, in so doing, calls that very policing into being in the first place. The policing of black freedom, then, is aimed less at its dreaded prospect, apocalyptic rhetoric notwithstanding, than at its irreducible precedence. The logical and ontological priority of the unorthodox self-predicating activity of blackness, the "improvisatory exteriority" or "improvisational immanence" that blackness is, renders the law dependent upon what it polices. This is not the noble agency of resistance. It is a reticence or reluctance that we might not know if it were not pushing back, so long as we know that this pushing back is really a pushing forward. So, in this perverse sense, black social death is black social life. The object of black studies is the aim of black studies. The most radical negation of the anti-black world is the most radical affirmation of a blackened world. Afro-pessimism is "not but nothing other than" black optimism. [24]

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Black optimism

Critical theory and rubbing up against black aesthetics / vernacular

It’s not about “deciding to study criticism” and then picking up some Black authors. Moten went through a transformative process in interactions with Baraka, sparking a connection to the “black radical intellectual tradition” that was not a linear step from particular events as an “eruptive force of blackness in and through and against the very idea of work.” That’s the immersion, the investment…

MOTEN: Well, the one thing that I was always pretty committed to when I was in graduate school was that I was gonna write about stuff that I like. I feel like critique – or, at least, critique as it is usually practiced now in the humanities and in certain kinds of art practice – is important and it has its place, but it’s not at all – I don’t ever have any sense of critique being my primary function as an intellectual, let’s say. It’s got a place, but its place, as far as I’m concerned, is relatively small. So I was trying to write about what I like. And critique was only for me gonna move in the service of that. There were certain sentences that I just kinda liked. There was a certain kind of syntactic event that I was really invested in. One such event occurs in Hölderlin, in that poem that’s usually translated as “In Lovely Blue,” and there was another event I fell into or fell in love with like that in John Donne’s “Devotions Upon Emerging Occasions.” And there was a moment like that that occurred right in the middle of Clarissa. At first, my idea for a dissertation, was that I was gonna write a kind of comparative analysis of that kind of event. But there was one such event – which came to signify more fully that event in general – in Baraka, in this essay called “the Burned Green Affair” and that became the focus of the dissertation. I really zeroed in on that, or just got immersed in that. What happened is that in reading Baraka and not just in reading Baraka but in – well, anyway. Let’s just put it this way: I was not interested, even when I was thinking of this kind of more comparative thing, I wasn’t interested in trying to introduce you know black writers into the literary canon or to… I didn’t care… that was not my concern at all. What I learned, what I began to understand, through immersion in Baraka’s work, which basically was a way, for me, for understanding more deeply and more richly the social and intellectual air that I was raised in, okay, is that the kind of literary and artistic event I was interested in is best understood and most rigorously thought and celebrated in the “black radical intellectual tradition.” Okay? So, if there was, if anything, I came to understand that event in Donne, that event in Samuel Richardson, that event in Hölderlin – I understood those events as a kind of instance of the eruptive force of blackness in and through and against the very idea of the work. So in immersing and situating myself in the study of Baraka, the study of Baraka studying, what I became aware of, or what I am still beginning to become aware of, is this eruptive force of blackness in poetry, in art, and in social life. And that’s what I’m invested in.

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Some of this tradition is rooted in literature and performance art and it is well beyond the nomenclature of “Black optimism,” but fits here as a celebratory expression of blackness and a distinct tradition from advocates of a more sweeping dismissal of social life/death.

Joyce A. Joyce, Prof. of English @ Temple, winner of the American Book Award for Literary Criticism, ’95 (http://xroads.virginia.edu/~drbr/joyce.html, “The Black Canon: Reconstructing Black American Literary Criticism.”)

In the September 1983 special issue of Critical Inquiry, Professor Barbara H. Smith's comments on the classic canonical author can analogously illuminate how values are transmitted through literary theory as well. She says simply, "The endurance of a classic canonical author such as Homer . .. owes not to the alleged transcultural or universal value of his works but, on the contrary, to the continuity of their circulation in a particular culture." 9 Thus, in adopting a critical methodology, the Black literary critic must ask himself or herself: "How does a Black literary theorist/critic gain a voice in the white literary establishment?" Moreover, despite Professor Smith's and the poststructuralists' attenuation of values, the Black literary critic should question the values that will be transmitted through his or her work. The Black critic must be ever cognizant of the fact that not only what he or she says, but also how he or she writes will determine the values to be circulated and preserved over time once he or she is accepted by mainstream society, if this acceptance is his or her primary goal. Despite writers like John Oliver Killens, John Williams, Gayle Jones, Naomi Long Madgett, and Ann Petry, who are seriously overlooked by the white mainstream, the most neglected aspect of Black American literature concerns the issue of form or structure. I agree fully with Professor Gates when he says that social and polemical functions of Black literature have overwhelmingly superseded or, to use his word, "repressed" the structure of Black literature. l0 But I must part ways with him when he outlines the methodology he uses to call attention to what he refers to as "the language of the black text." He says, "A study of the so-called arbitrariness, and of the relation between a sign, of the ways in which concepts divide reality arbitrarily, and of the relation between a sign, such as blackness, and its referent, such as absence, can help us to engage in more sophisticated readings of black texts.'' 11. It is insidious for the Black literary critic to adopt any kind of strategy that diminishes or in this case--through an allusion to binary oppositions--negates his blackness. It is not a fortuitous occurrence that Black creative writers for nearly two hundred years have consistently addressed the ramifications of slavery and racism. One such ramification that underpins W. E. B. Du Bois's essays and Langston Hughes's poetry and that emerged undisguised in the 1960s is the issue of Black pride, self-respect as opposed to self-abnegation or even self-veiling. The Black creative writer has continuously struggled to assert his or her real self and to establish a connection between the self and the people outside that self. The Black creative writer understands that it is not yet time--and it might not ever be possible--for a people with hundreds of years of disenfranchisement and who since slavery have venerated the intellect and the written word to view language as merely a system of codes or as mere play. Language has been an essential medium for the evolution of Black pride and the dissolution of the double consciousness. For as evidenced by David Walker's Appeal, Claude McKay's "If We Must Die," Richard Wright's Native Son, the poetry of Sonia Sanchez and Amiri Baraka, and most recently by Toni Morrison's Tar Baby, the Black writer recognizes that the way in which we interpret our world is more than a function of the languages we have at our disposal, as Terry Eagleton asserts.12 Even though Innis Brown in Margaret Walker's Jubilee cannot read or write, he understands clearly--he interprets quite accurately--that he has been wronged when his white landlord attempts to collect from Innis money for services Innis has not received. And though he too cannot read or write, Jake, Milkman's grandfather in Morrison's Song of Solomon, dies rather than surrender his land to the whites who shoot him. Shared experiences like these can bond a people together in ways that far exceed language. Hence what I refer to as the "poststructuralist sensibility" does not aptly apply to Black American literary works. In explaining that an essential difference between structuralism and poststructuralism is the radical separation of the signifier from the signified, Terry Eagleton presents what I see as the "poststructuralist sensibility." He writes, "... nothing is ever fully present in signs: it is an illusion for me to believe that I can ever be fully present to you in what I say or write, because to use signs at all entails that my meaning is always somehow dispersed, divided and never quite at one with itself. Not only my meaning, indeed, but me: since language is something I am made out of, rather than merely a convenient tool I use, the whole idea that I am a stable, unified entity must also be a fiction" (129-30). For the Black American--even the Black intellectual--to maintain that meaningful or real communication between human beings is impossible because we cannot know each other through language would be to erase or ignore the continuity embodied in Black American history. Pushed to its extreme, poststructuralist thinking perhaps helps to explain why it has become increasingly difficult for members of contemporary society to sustain commitments, to assume responsibility, to admit to a clear right and an obvious wrong. Yet we can only reluctantly find fault with any ideology or critical methodology that seeks to heighten our awareness and cure us of the political, elitist, and narrow pedagogical and intellectual biases that have long dictated what we teach as well as how we teach. Interestingly enough, discussions such as Barbara Smith's "Contingencies of Value" and Richard Ohmann's "The Shaping of a Canon: U.S. Fiction, 1960-1975,'' l3 and even Robert E. Scholes's "The Humanities, Criticism and Semiotics'' l4 all echo some of the ideas espoused at length by the Black theoretician Larry Neal, by poets like Sonia Sanchez, Amiri Baraka, and Haki Madhubuti, and by scholars like Addison Gayle and Stephen Henderson. All of these writers have given continuous attention to how the needs and values of the hegemony have attempted to dictate the subject matter of the Black American writer and to determine whether a writer is published at all. To my knowledge only Sonia Sanchez and perhaps Gwendolyn Brooks have met this dilemma by having their works published exclusively by Black presses. This act implicitly suggests their response to the issue of their intended audience and to the question of their attitude toward their acceptance by the intellectual mainstream.

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Ka'Ba

"A closed window looks down on a dirty courtyard, and Black people call across or scream across or walk across defying physics in the stream of their will.

Our world is full of sound Our world is more lovely than anyone's tho we suffer, and kill each other and sometimes fail to walk the air.

We are beautiful people With African imaginations full of masks and dances and swelling chants with African eyes, and noses, and arms tho we sprawl in gray chains in a place full of winters, when what we want is sun.

We have been captured, and we labor to make our getaway, into the ancient image; into a new

Correspondence with ourselves and our Black family. We need magic now we need the spells, to raise up return, destroy,and create. What will be the sacred word?

Amiri Baraka, http://www.math.buffalo.edu/~sww/poetry/baraka_jones.html#abara217

Moten seeks “social development” in the same way he perceives Baraka to push for such openings. There is a rub between poststructural theorists and back intellectual critics and artists.

And so, see, what I feel like, I think that when Baraka’s reading Dorn, when Baraka’s hanging out with the Black Mountain Poets and the New York School folks, I feel like Baraka feels like he hears and sees, let’s say, in Frank O’Hara, is what he would recognize as the social and aesthetic eruption of blackness that he also loves in Miles Davis’ music. He might not – I mean I never had a chance to talk with him about that or ask him about

17 There is beauty and anger, love and violence, confusion and serenity in his poems, as poetry pushes (crosses) boundaries and creates edges. The widely influential poet and author, Amiri Baraka, was Poet Laureate in New Jersey until politicians there literally banned him as a poet following a piece called “Somebody Blew Up America?” (https://www.youtube.com/watch?v=KUEu-pG1HWw) that included controversial comments about 9-11. He also apologetically reflected on these views later and contributed far far more than just that piece.

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that, so I could be saying something that he would totally disagree with or disavow, but that’s my best understanding of it now, that that’s what he was drawn to in that work. So in the autobiography, when he talks about, uh, finding Ginsberg’s work and reading Howl and being immersed in Ginsberg’s work, and relates this kinda terrible moment when he’s in Puerto Rico and he’s reading the New Yorker and he just kinda bursts into tears because it has nothing to do with him. And he’s like, well what do I have to do? And he finds in Ginsberg something that does have something to do with him. So, that’s what In the Break is about – I’m not trying to use or apply Marx and Freud and Derrida and Lacan or whoever – I’m interested in their work, not even so much because I think it helps to illuminate something elsewhere, but I feel like in the rubbing together, in the haptic sort of rub that exists independently of my kind of bringing them together, there’s something that exists between Freud and Baraka, between Freud and DuBois, between Derrida and Adrian Piper, even though she might not like him, and that rub, that hapticality, is what I’m invested in, and if I was to put it in a simple kind of way I would say that the way I read Freud and Marx is that they are a part of the black radical tradition. And I read them that way, rather than trying to create a kind of text that kind of makes an argument for Baraka being a full-fledged, vested member of the Western intellectual and aesthetic canon.

FITZGERALD: And I think that’s what’s so original and brilliant about your thinking! This brings us back to entanglement. The way that these things are already participatory, in your vision. I want to ask you about Baraka as an agent of active contradiction, where all the sides and tones and forces that shape and influence him also allow for these absolute disconnects, separations from his past and present selves. He supersedes Ginsberg and company. He moves to Harlem. He invents the Black Arts Movement then suddenly, in the early 70s, he allies with Marxism and Socialist thinking to such an extent that there’s yet another radical shift, break, or about face of what he’s been about. I treasure his complexity as an artist and mind because of these angular separations in which he recreates in his own aesthetic memory. Yet you as an artist, in comparison, seem much invested in blurring those separations, holding them together in tension, simultaneously. I wondering, now, also, how well you knew Baraka?

MOTEN: Well, you know, I met him the first time actually when I was in graduate school and he came to San Francisco to read. I met him and talked to him for a few minutes and, then, once I had gotten through school and was working in New York, he used to hold a kind of monthly salon at his and his partner Amina Baraka’s house in Newark called Kimako’s Blues People in honor of his late sister. I went to that salon a couple times. That was where I first heard Tracie Morris read, in the Barakas’s basement. He would have musicians and they would cook a big pot of soup or something and it was great, you know. And it was all kinda people there – young students from Rutgers, mostly white, who were involved in the group Unity and Struggle. And then the last few times I met him – he came to Duke and gave a reading and I talked to him for a while and we became more aware of each other in a way. And then we spent a really cool few days together at an art festival in Glasgow. And then I saw him the week that I was at Naropa, the year before last, just a few months before he passed. So I did get to know him, just enough to be able to tell him how much he meant to me, or at least try to indicate that. Miles is someone he referred to as his ultimate cultural hero, in that great elegy that he wrote for Miles. Baraka says we’ll always be Miles’s children and I feel we’ll always be Baraka’s children, too. In early poems, like in The Dead Lecturer, you know, he’s talking about being a man who is loud in the changing of his ways. And that’s something, too, you could say of Miles, in an Olson formulation: what does not change is the will to change. But what I tend to focus on in Baraka is maybe what…probably what…I guess what I’m saying is there’s change and then there’s also continuity, “the changing same,” as he puts it. It’s not that you choose one over the other; change and same are inseparable from one another. They are interarticulate. And both are so much at work in his work. And not jut change and continuity but also entanglement and difference, or maybe unity and struggle is how he would put it. And so, I don’t think of his work at all as being driven by a kind of urge for separation. I think of it as the opposite of that. So that the words that he would use, that I’ve heard him use and read him use, is that his art is concerned with social development, and that’s how I would characterize it. And as a body of work that includes not only what he wrote – all the poetry, all the plays, all the essays, but also just the way he lived his life, whether you’re talking about the Black Arts Repertory School in Harlem, or Spirit House in Newark, or just those various lofts that he was living in with Hettie Jones in the Village when he was the engine of that downtown artistic community. It was him and Diana DiPrima and Cecil Taylor who were up at night stapling together the mimeographed copies of Floating Bear. He was always building up stuff for people to work on and to work with and to work through. He never stopped doing that. Ever. So that’s how I see him. And I’m just trying to follow in his footsteps, so to speak, in the most sorta minimal and kinda [laughs] pitiful kinda way, you know.

FITZGERALD: Oh, not pitiful at all. Is there someone who has affected you more, was or is there a contemporary more important than Baraka?

MOTEN: There’s a bunch of folks who have influenced me that we’ve already mentioned, Derrida’s work, for me, and the work of my teachers – Barbara Johnson, Avital Ronell, Julian Boyd, Stephen Booth, Ann Banfield, Martin Kilson, B Jenkins, above all. Well, what I would say is that the obvious person to come to mind… well I figure there are maybe three people that I would mention, besides Baraka: Samuel R. Delany and Gayl Jones for me are like these touchstones whose work I always come back to. But if there’s one person who stands out, maybe – and then also the great political theorist and teacher Cedric Robinson, who coined that phrase “black radical tradition,” and to whose work I was just trying to offer a kind of supplement. But the other person, the main person I suppose, who is also someone I’ve gotten to know and is someone I’m proud to be able to call a friend, is Nate Mackey. And I would just basically – I would just say, that there’s nothing that I’ve ever said and nothing I ever will say, that he hasn’t said, and hasn’t said, you know, better. I feel like, I read stuff of his and then, I don’t even realize how derivative my stuff is. And the thing is, I think maybe it’s the kinda thing that makes some people feel bad, you know, when they’re faced with the reality of their utter non-originality, but I feel good about it to be perfectly honest, man. If someone ever wrote that I was derivative of Nate Mackey I would take that shit as like the greatest compliment ever. I’m trying to be. That’s what I’m trying to be, is derivative of Nate [laughs].

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So we do what we do without abandoning the desire and capability to crush instances of racism when they arise.

MOTEN: It’s just… I mean, I think about it this way – Charley Patton is an experimental musician. So is Charlie Parker. I feel like, you know, Hurston is an experimental writer. In other words, I feel like the figures that I would want to embrace and celebrate as these fundamental figures in the black radical and aesthetic tradition, they’re all experimental, and part of it is because black social life is experimental – not only because of what it is that we have to make up, because of what it is we have to produce, what it is we have to survive within the context of a brutal anti-sociality or sociopathy which is invested in our death and in our living. This is to say that our experimentation happens in and against the backdrop of our having been subjected to an experiment. You take 45, 50, 60, 70 however many million people and take ‘em from one continent to another, that’s a fucking experiment, you know? Some absolute mad scientist type of shit.Heidegger wrote a weird little poem in which he says, “poetically man dwells…” I would say, you know, experimentally blackness dwells. I suppose one has a choice about whether or not to be experimental, but it never seemed like much of a choice to me. Then the question emerges, okay, how do you live that choice or how do you deal with it? How do you deal with the historic anti-blackness that basically imagines experimentalism to be, in some sense defined by its non-blackness , or by a radical black incapacity for it, at the same time as it also imposes the absolute necessity for experimentation on blackness and, at the same time, when it understands and seeks to devalue blackness as experimentation and as a kind of embrace of and refuge for the experiment? I mean, let’s just put it this way – that kinda stuff, the venal and murderously neurotic expression of anti-blackness, gets annoying , you know? But my tendency is to wanna deal with those annoyances as they come, so to speak, on a kind of case by

case basis, on a personal level, and to deal with those annoyances as viciously as I possibly can . But then there’s, you know, because I just wanna keep – there’s this thing that I’m trying to be part of, and I don’t want to spend so much time on the annoyances that I don’t do what it is I’m trying to do. It doesn’t mean that the annoyances aren’t real, it doesn’t mean that they shouldn’t be crushed whenever their ugly heads are raised, and then one goes about the business of doing that, but I don’t know. The essay that I’m thinking of by Nate, is, well, the one that I’m thinking of may not be the one that you’re thinking of …you’re saying the one that you’re thinking of is called what? FITZGERALD: It’s called “Expanding the Repertoire.” MOTEN: Yeah, yeah, no, and that’s, uh, I remember when that came out, and I think it was in relation to a series of questions that emerged at a conference, the proceedings of which were published in a magazine, the name of which I can’t remember. I can’t think of anything anymore. But the point is that, and I think that Harryette Mullen was involved in that same conference, along with some other folks. I can’t think of the name of the magazine. It kind disappeared for a little while and then it started back up again recently. FITZGERALD: Tripwire? MOTEN: Yeah, Tripwire. That’s the stuff from Tripwire I think. Yeah, look, the one I was thinking of is a little short essay he wrote, not even a page long, called “Destination Out,” in which talks about what he calls centrifugal writing. Now I’ve always been invested in this relationship that he kind of implies between the fugitive and the centrifugal. It’s cool, to me. And I learned that from him, and then learned that lesson again from Harryette Mullen and from… all kinds of… you know, from Cecil Giscombe and Tyrone Williams and Dawn Lundy Martin and giovanni singleton. I just feel like I wanna be a part of

a kind of community or whatever you want to call it of centrifugal writers or black experimental artists that expands, ultimately, in the direction of anyone who wants to claim it. And look: there are things you have to deal with, given

the racial domination and racist denomination of the art world , which is to say of the poetry world, to the extent that you have to be part of this world even on a temporary or intermittent or unnaturalized basis. You have to deal with that stuff. But my primary concern is being with the other folks who are within that fugitive, centrifugal social and aesthetic

field and us doing what we do .

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full negation (nihilism? say no),

--You cannot reduce/solve racism in a narrow way because it will outflank

Achille Mbembe, ’14

(July 18, Mail & Gaurdian, University of the Witwatersrand's Institute for Social and Economic Research. He is a co-convenor of the Johannesburg Workshop in Theory and Criticism, Blind to colour - or just blind?”)

The utopian ideal of a world free of the burden of race has powered the struggles of the oppressed since the advent of the modern age. It gave meaning and purpose to the campaigns for the abolition of slavery in the 19th century. It was central to the decolonisation struggle, the Civil Rights movement in the United States, and some of the radical attempts to change the world in the 20th century. As racism has kept mutating, though, so have forms of intersections between race, class and gender. Although local in its manifestations, racism has always been a global phenomenon and part of its persistence is a result of its globalisation. Furthermore, the force of racism in our world stems from its capacity to mutate and to reappear constantly in ever-changing forms in the most unexpected sites of everyday life. The weakness of most antiracist struggles is the result of our inability to keep up with the mutating structures of racism and their virulence. As racism worldwide takes on a genomic turn and is now propelled by the war on terror, various anti-migratory policies, the resurgence of compensatory forms of nationalism and mass incarceration, South Africa is caught between various contradictory processes.

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standpoint epistemology

Arguing from the knowledge base of a certain identity construction opens the door to a number of arguments designed to emancipate—or at least recover marginalized voices. As CRT turns to empiricism, however, the narrative methodologies that often undergird standpoint epistemology are decentered. This is a very fruitful arena for clash on both sides.

Devon Carbado, Prof. Law UCLA, ’11 (CRITICAL RACE THEORY: A COMMEMORATION: AFTERWORD: Critical What What?, 43 Conn. L. Rev. 1593, July)

This is not to say that CRT scholars should eschew standpoint epistemology; in many ways, the debate about narrative in CRT is a debate about the legitimacy and efficacy of standpoint epistemology as a form of legal scholarship. n209 While I have always thought that Critical Race Theorists overstate the extent to which narrative is central to and a crucial methodogical component of CRT (I do not believe that narrative is a necessary entailment of CRT), the methodology is important, and I have certainly employed it in my own work. n210 Thus, I am not arguing against standpoint epistemology tout court; I am simply suggesting that it is an unlikely candidate for resolving the "factual" contestations I describe above. This brings us back to Adams and Salter's admonition about science, which Critical Race Theorists should take seriously. Doing so does not portend the wholesale rejection of science but rather a critical engagement with science. Part of this might entail more direct analyses of the interrelated problems of "facts" and "truth"-and not reactively in response to critiques that CRT is insufficiently foundational and inattentive to questions of "facts" and "truth," n211 but proactively in the sense of articulating CRT's terms of engagement with science-terms that should spell out precisely why CRT is turning to science and precisely what the [*1638] theory seeks to bring back. This, I believe, is what Adams and Salter are urging us to do. One could, of course, frame the foregoing questions about science in terms of empiricism more generally. What precisely should CRT's engagement with empiricism look like? To what extent should CRT be empiricized? As indicated earlier, Jerry Kang has framed this issue in terms of "Behavioral Realism." Mitu Gulati and I engaged it via an exploration of what we called "The Law and Economics of Critical Race Theory." n212 Laura Gomez n213 and Laura Beth Nielsen n214 have pursued the relationship between CRT and empirical methods in the context of law and society scholarship. And Osagie Obasogie and Joan Williams have taken up the issue in the context of two workshops at which CRT scholars and empiricists-political scientists, sociologists, and social psychologists-critically engaged each other's work. I do not mean to suggest that these are the only efforts to explore whether and to what extent CRT should be empiricized. I reference them simply to suggest that the time is ripe for what one might call "Critical Race Empiricism"-that is, a methodological approach that would constitute an empirical intervention into CRT and a CRT intervention into empirical studies.

In other words, standpoint epistemology is connected to a huge number of “platforms” with degrees of overlap and exclusiveness, based on various identities and identifications.

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Motherhood and feminism are woven throughout the entire topic of race and inequality.

There is a riveting dichotomy between the removal of any matriarchal benefits of lineage or inheritance while at the same time being the hyper-visible head of household. It’s nuanced and perhaps the perfect kind of inter- or multisectionality to allow for depth and innovation all season.

Spillers, Vanderbilt, ’87 (Prof. English, Hortense J. (Summer, 1987). “’Mama's Baby, Papa's Maybe’: An American Grammar Book,”Diacritics,p80)

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Black feminism is certainly part of the core of the topic…(tags are not from Collins)

Patricia Hill Collins, U. Maryland, ’90 (“Defining Black Feminist Thought,” http://www.feministezine.com/feminist/modern/Defining- Black-Feminist-Thought.html, acsd 12-16-12)

a). Rejection complements new demands

the demand to end a deficient consciousness must be joined to a demand to eliminate the conditions which caused it" (personal communication, 1988).

b) Black feminism merges thought and action explicitly

The struggle for a self-defined Afrocentric feminist consciousness occurs through a merger of thought and action.

c) We can tackle policy and rethink larger structures at the same time.

This dimension of a Black women's standpoint rejects either/or dichotomous thinking that claims that either thought or concrete action is desirable and that merging the two limits the efficacy of both.

d) There is a both/and to theory and policy

Such approaches generate deep divisions among theorists and activists which are more often fabricated than real. Instead, by espousing a both/and orientation that views thought and action as part of the same process, possibilities for new relationships between thought and action emerge.

e) Black women have experiences that uniquely positions them aware of the both/and, regardless of the varying contexts.

That Black women should embrace a both/and conceptual orientation grows from Black women's experiences living as both African-Americans and women and, in many cases, in poverty. …

Very different kinds of "thought" and "theories" emerge when abstract thought is joined with concrete action. Denied positions as scholars and writers which allow us to emphasize purely theoretical concerns, the work of most Black women intellectuals is influenced by the merger of action and theory. …

Contemporary Black women intellectuals continue to draw on this tradition of using everyday actions and experiences

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Thus, debates over these positions in terms of power are critical

Patricia Hill Collins, U. Maryland, ’90 (“Defining Black Feminist Thought,” http://www.feministezine.com/feminist/modern/Defining- Black-Feminist-Thought.html, acsd 12-16-12)

Sheila Radford-Hill stresses the importance of rearticulation as an essential ingredient of an empowering Black feminist theory in her essay "Considering Feminism as a Model for Social Change." In evaluating whether Black women should espouse feminist programs, Radford-Hill suggests, "the essential issue that black women must confront when assessing a feminist position is as follows: If I, as a black woman, 'become a feminist,' what basic tools will I gain to resist my individual and group oppression"(1986, 160)? For Radford-Hill, the relevance of feminism as a vehicle for social change must be assessed in terms of its "ability to factor black women and other women of color into alternative conceptions of power and the consequences of its use" (p. 160). Thus Black feminist thought aims to develop a theory that is emancipatory and reflective and which can aid African-American women's struggles against oppression.

Race and the environmental movement is a significant and undertheorized intersection

Shamara Shantu Riley, ’03 author in Poli Sci. writing on race, gender and the environment, 2003 (chap. in Liberating Faith: Religious Voices for Justice, Peace, and Ecological Wisdom ed Roger S. Gottlieb, " Ecology Is a Sistah's Issue Too: The Politics of Emergent Afrocentric Ecowomanism.”)

Adopting these concepts would transform humans’ relationship to nonhuman nature in a variety of ways. By seeing all components of the ecosystem affecting and being affected by one another, such a world perspective demonstrates a pattern of living in harmony with the rest of nature, instead of seeking to disconnect from it. By viewing ourselves as a part of nature, we would be able to move beyond the Western disdain for the body and therefore not ravage the Earth‘s body as a result of this disdain and fear. We would realize that the Earth is not merely the source of our survival, but also has intrinsic value and must be treated with respect, as it is our elder. The notion of community would help us to appreciate the biological and cultural diversity that sustains life. Because every entity is viewed as embodying spirituality under immanence, culture wouldn’t be viewed as separate from, and superior to, nature, as it is seen in mainstream Western religions. Communalism would also aid us in reformulating the social constructions of race, gender, species, class (among other variables), which keep groups separate from one another. And finally, the environmental movement in particular would view politics as rooted in community and communally take actions to reclaim the Earth and move toward a life of interdependence for generations to come.

Feldman & Hsu, Stanford U. and UC-Davis, ’07 (Mark B. Feldman and Hsuan L. Hsu “Race, Environment, and Representation” Discourse Volume 29, Numbers 2 & 3, Spring & Fall 2007)

Du Bois's later works also push toward an "anti-pastoral"6 conception of the environment: "Have you ever seen a cotton-field white with the harvest—its golden fleece hovering above the black earth like a silvery cloud edged with dark green, its bold white signals waving like the foam of billows from Carolina to Texas across that Black and human Sea?"7 Here, the deceptively lush landscape is produced by economic, political, and semiotic factors, its "signals" of white cotton supported by a less visible "Black and human Sea" of laborers. Du Bois's description of a "dark green" landscape

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shaped by black labor and the political economy of cotton illustrates why terms like environment and nature cannot be fully understood without accounting for histories of social and racial stratification . As environmental justice scholars have documented, race, class, and gender have influenced the distribution not only of private property, but also of access to protected natural spaces, involvement in political decisions that have environmental impacts, and exposure to environmental risks. Du Bois's understanding of the interlinkings of race, class, labor, and environment seems to anticipate recent developments in the interdisciplinary field of ecocriticism. For example, Buell characterizes second-wave environmental criticism as tending to take anthropocentric approaches, focusing on how humans relate to and shape their environments.8 In contrast, earlier ecocriticism tended to focus on the representation and stewardship of untouched natural spaces— echoing a long history of U.S. exceptionalist discourses about virgin land and the frontier. The second wave conceives of environment more broadly, exploring how our perception of nature is mediated by race, class, gender, and geography. Not only urban dwellings and parks, but suburbs, garbage dumps, and offshore vacation destinations thus become key sites of environmental contestation and criticism.

Gender and race can conflict—Black feminism centers race and its simultaneity

Socialism & Democracy, ’11 (April 20, 2011, http://sdonline.org/33/black-radical-theory-and-practice-gender-race-and-class/ his entry was posted in 33, Volume 17, No. 1. “Black Radical Theory and Practice: Gender, Race, and Class”)

But the broader history of gender and the Black freedom struggle in the l960s and l970s is more complex and radical. Sometimes women did fight for gender power. Thus it is also important to distinguish womanism from radical Black feminism, which directly confronts patriarchy and explicitly articulates the intersectionalities of capitalism, racism and patriarchy. Indeed there have been tensions between womanists, who emphasize culture and race, and Black feminists, who emphasize class, gender, and race. These were the Black radical women who began to articulate the interconnectedness of race, class, and gender (Burnham 2001).

Immigration and Crime—Latino Racial Inequality

YOLANDA VÁZQUEZ, Prof. of Law, University of Cincinnati, ’15 (Ohio State Law Journal, 2015, Ohio State Law Journal, 76 Ohio St. L.J. 599, 10257 words, ARTICLE: Constructing Crimmigration: Latino Subordination in a "Post-Racial" World)

While strides have been made towards racial equality, the United States remains "categorically unequal." n4 Disparities exist between Latinos n5 and other groups of the population in incarceration rates, n6 poverty rates, n7 unemployment [*603] rates, n8 and in the detention and removal rates in the immigration system. n9 Blacks and Latinos n10 within the United States are incarcerated at higher rates than whites, named "hyper or mass incarceration" to describe the exorbitant number of individuals incarcerated and its disproportionate impact to particular groups. n11 And, while immigration laws are now facially race neutral, [*604] the removal rate of immigrants of color is disproportionately higher than whites. In fact, the vast majority that are currently detained, prosecuted, and removed under U.S. immigration law are Latinos, comprising over 90% of those impacted. n12 The historical number of removals from the United States as well as its disproportionate impact on Latinos as a group makes crimmigration a system of racialized mass or hyper removal. n13 Despite the alarmingly disproportionate impact on Latinos, however, little has been explored concerning this phenomenon. One reason that may explain the lack of clamor is the belief that those who are accused and found to have violated immigration laws, like criminals, are in their predicament due to personal "choice and behavior" as opposed to racially discriminatory treatment. Supporters of this position point to the race-neutral laws which Latinos are charged with violating as proof that race is not a factor in Latinos' detention and removal rates. n14 Another reason that may drive away vocal [*605] opposition is the overwhelming belief that those who are deported are a threat to America. The Department of Homeland Security (DHS) emphasizes its mission is to target those noncitizens who pose "the most serious public safety and national security threats." n15 The "criminal aliens," n16 therefore, are America's greatest threat--they are foreigners and they are criminals. American society owes them nothing. As a result, the United States has systematically and increasingly removed Latinos from its borders with little opposition despite clear evidence that immigrants are less likely to cause crime,

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n17 the vast majority of those removed as "criminal aliens" are removed for non-violent offenses, crime rates in the United States have been declining since its inception, n18 and unauthorized immigration rates from Latin American countries have been declining. n19 Therefore, if rising deportation rates do not correlate to rising levels of crime, violence, national security risks, or migration rates, why is the United States increasingly spending billions of dollars to combat a threat that doesn't exist among the targeted group? n20 Why does America allow for the destruction [*606] of families and communities that will further strain the economic stability of America's economy? And if Latinos do not commit "dangerous" crimes nor pose a serious threat to national security, why are they detained and removed from the United States at exponentially higher rates than other racial groups? This Article posits that despite the abolishment of race-based laws, race continues to play an essential role in structuring and representing American society. Michael Omi and Howard Winant have asserted that "the attempt to banish the concept [of race] as an archaism is at best counterintuitive." n21 Loïc Wacquant finds that America's hyperincarceration cannot be supported by increasing rates of crime or by an efficient criminal justice system, but rather the system is grounded in "political choices informed by cultural values and made to matter by asymmetries of power." n22 When discussing the development of mass incarceration, Michelle Alexander further posits, "What has changed since the collapse of Jim Crow has less to do with the basic structure of our society than with the language we use to justify it." n23 This Article argues that the same holds true for crimmigration. Crimmigration cannot be supported by increased threats by Latinos to America's national security and public safety. The United States' prosecution and removal of individuals is derived from political choices and cultural norms, enforcing "colorblind white dominance." n24 What has changed since the 1960s has less to do with American society's enlightenment on the equality of all racial groups and more to do with the methods and tactics that American society uses to enforce racial hierarchies. At a time when the Latino population has been steadily increasing in the United States and overt discrimination has been outlawed, a new tactic needed to be implemented to maintain racial inequality [*607] and "colorblind white dominance." n25 From these concerns, crimmigration was created. The structure of crimmigration disparately impacts Latinos and the disproportionate rates of incarceration, detention, and removal reify the conclusion that Latinos break more criminal and immigration laws due to their behavioral choices instead of exploring whether criminal and immigration laws are created and enforced to promote discriminatory treatment and outcomes. Society looks only to the sheer numbers as the "logical" proof. The Latino has become the "criminal alien" and through this structure the Latino is legally discriminated against through various forms of exclusion and exploitation, such as housing, employment, education, and most severely, actual banishment. As a result, Latinos' ability to enter into American society, gain economic stability, and achieve political power continues to elude them, maintaining the status quo of white racial dominance despite Latinos' majority--minority status. Crimmigration has only recently received the attention it deserves. In fact, prior to 2006, the phenomenon had no name. n26 Since then, legal scholars, such as Jennifer Chacón, Gabriel Chin, Ingrid Eagly, César Cuauhtémoc García Hernández, Kevin Johnson, Daniel Kanstroom, Stephen Legomsky, and Juliet Stumpf have begun to identify various components and characteristics of crimmigration. n27 Last year, César Cuauhtémoc García Hernández first argued in Creating Crimmigration, that crimmigration developed as a backlash to the civil rights movement. n28 In a continued attempt to limit the number of nonwhite individuals who entered and remained in the United States, the immigration system began to use criminal status as a proxy for race. n29 [*608] This Article expands on that thesis. While the achievements of the civil rights movement and its political backlash played an important role in the development of crimmigration, crimmigration's historical beginnings can be linked to strategies to reduce and control Latino migration already in place prior to the 1960s. Finally, while crimmigration successfully works against other racial groups, crimmigration emerged through various legislative acts, policies, decisions, and procedures that particularly targeted Latinos. Finally, while overt racism has played a role in its development, structural inequality works to mask and entrench racism within the system as it allows for the continued racial disparities in a post-racial world--court decisions refuse to recognize it, society refuses to acknowledge it, and individuals can forcefully insist that they support the system as it stands because it is not based on race or racism. That is its complexity, and that is its success. Formal equality shields structural inequality and, specifically with the criminal justice system, while the system may be constructed through racial animus or result in a disparate impact on certain groups, the structure is protected and racial

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hierarchy continues as any discriminatory effects will only be construed as inevitable parts of our criminal justice system. n30 This Article explores the development of crimmigration as a mechanism through which the historical identity of Latinos, as temporary and subordinate, can be enforced without ever using race explicitly. Part II briefly discusses the relationship between immigration and crime, finding little correlation between the two, thereby calling into question the justification for increasing removal rates over the years. Part III discusses the history of Latinos in the United States as temporary, menial, and subordinated. Part IV discusses the creation of crimmigration over the last sixty years. This section examines the converging legislative acts, policies, and decisions as well as the shifting politics and culture that have structured crimmigration in a way that has led to the inevitable effect--racialized mass removal and the continued subordination of Latinos, which is more fully discussed in Part V. n31 We are only now starting to uncover the complexity of crimmigration. It will take decades to understand crimmigration's multiple dimensions--its purpose, its impact, and its extent. This Article cannot do it all. It does, however, start the discussion as to crimmigration's underlying purpose in the hope that future research can build off this hypothesis to further uncover crimmigration's structure and look to ways to end its destructive nature.

Gender and race break through the binary

Richard Delgado, Prof. Law Seattle U., ’12 (100 Calif. L. Rev. 431, “Centennial Reflections on the California Law Review's Scholarship on Race: The Structure of Civil Rights Thought”

See, e.g., Catharine A. MacKinnon, From Practice to Theory, or, What Is a White Woman Anyway?, 4 Yale J.L. & Feminism 13, 13 (1991) (responding to black-feminist critiques of intersectionality and essentialism and denying that her own scholarship commits either error); Roy L. Brooks & Kirsten Widner, In Defense of the Black/White Binary: Reclaiming a Tradition of Civil Rights Scholarship, 12 Berkeley J. Afr.-Am. L. & Pol'y 107 (2010) (disagreeing that American race-remedies law incorporates an implicit black-white binary paradigm; asserting that, if it does, the paradigm is fully justified because of blacks' unique history; that the binary paradigm is readily capable of expansion to take account of the types of discrimination that visit nonblack groups; and asserting that this expansion has in fact occurred several times in history); Farber & Sherry, Critique of Merit, supra note 6; Daniel Farber & Suzanna Sherry, Telling Stories Out of School: An Essay on Legal Narratives, 45 Stan. L. Rev. 807 (1993) [hereinafter Farber & Sherry, Telling Stories] (critiquing critical race scholarship and praising the conventional version for its adherence to scholarly norms).

Latin@s face distinct experiences within a racism perpetuated by whiteness in America.

GEIZA VARGAS -VARGAS , Prof. Law College of Charleston, ’14 (WESTERN NEW ENGLAND LAW REVIEW [Vol. 36: 131 “LATIN@S, DISRUPTING RACIAL NORMATIVITY,”)

Latin@s, in effect, occupy a precarious space. Language, and in some respects geography, unites us, but we have many differences that stem from our (i) status as U.S. citizens or not; (ii) class profiles, or degrees access to income, capital, and wealth; (iii) skin color (varying shades of brown); (iv) physical features (degrees of European or our mixed race Mestizaje); (v) religious affiliations; (vi) sexual orientation or gender identities, the list goes on. Our experience in the United States is directly a result of how these differences intersect, and therefore, within our own group, our experience with racial privilege is messy. Latin@s are subject to multiple gazes and multiple narratives that tell us who and what we are. And because the dominant paradigm operates along a binary, we are penetrated both by Whiteness and Blackness and become trapped (or better said, required to fit) within a monochromatic picture.

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Racial Realities Outside the Black-white Binary

Richard Delgado, Prof. Law Seattle U., ’12 (100 Calif. L. Rev. 431, “Centennial Reflections on the California Law Review's Scholarship on Race: The Structure of Civil Rights Thought” I explore the mechanism by which ousting outdated paradigms contribute to a more inclusive legal system in Section II.A infra, by explaining how an inchoate sense of dissatisfaction always attends recognition of a paradigm, legal or otherwise. When the paradigm is binary, the discontented faction is apt to be a third group that finds itself marginalized by the current one. See supra note 13; infra notes 131-46 and accompanying text; see also Tanya K. Hernandez, Afro- Mexicans and the Chicano Movement: The Unknown Story, 92 Calif. L. Rev. 1537, 1544 (2004) (noting that many Chicano scholars carefully ignore their black roots); Bill Ong Hing, Beyond the Rhetoric of Assimilation and Cultural Pluralism: Addressing the Tension of Separatism and Conflict in an Immigration-Driven Multicultural Society, 81 Calif. L. Rev. 863 (1993) (considering whether separatism is a viable approach to achieving racial justice in a culturally pluralist United States); McClain, Chinese Struggle, supra note 6; Rachel Moran, What if Latinos Really Mattered in the Public Policy Debate? 85 Calif. L. Rev. 1315, 1316 (1997) (noting the absence of Latino issues from social-policy agendas and arguing that this absence "can obscure the special concerns of Latinos and prevent them from emerging as a complex and compelling people in their own right").

Delgado and Stefancic's bibliography provides one CRT article by Kenneth Karst, Paths to Belonging: The Constitution and Cultural Identity, that contained the answers to all Obama's queries. n329 Karst also offered a guided explanation to the variant that Obama suggested to this topic--"examin[ing] the degree to which the bi-polar model of black/white relations is or is not relevant to the struggles and aspirations of other racial minorities." n330 Karst outlines the three progressive, generalized steps cultural groups must take to assimilate into the majoritarian society: (1) taking part in the institutions and activities previously accessed only by members of the larger society--attending public schools and universities, working, and moving away from culturally segregated neighborhoods; (2) improving the economic position of members of the cultural group which is generally the effect of better paying jobs secured due to higher education; and (3) forming identifiable bonds with those of the majoritarian society with whom the group members now [*557] live and work. n331 Karst identified that "[o]ne of the most pernicious features of the Jim Crow system was that it fed on itself, polarizing Southern society and inhibiting the diversification of identities and attachments." n332 So although Brown v. Board of Education theoretically offered blacks the opportunity to begin the assimilation process, the Jim Crow system effectively prevented it from progressing. Contrary to one of the important premises of CRT scholars, Karst posited that across the United States' history, all ethnic groups eventually assimilated into the greater American society, n333 because immigrants quickly learn the importance of assimilation in American society. Assimilation provides not only better economic opportunities, it provides security. n334 However, the greater American society is comprised of cultural, ethnic, racial, social, and economic groups, each with distinct values and often competing values. Such intercultural conflicts have existed throughout American history and, although emotionally fueled under the guise of preserving distinct cultural values, the underlying competing interests are economic. n335 Is it surprising then, that inter-ethnic tensions continue to exist in ethnically diverse communities that are all competing for the same finite supply of economic opportunities? Despite the economic causes and effects of intercultural clashes, as a cultural group begins to assimilate, it participates in the political process and in order "[t]o carry its influence outside ethnic enclaves--a step necessary for the achievement of many status goals and virtually all welfare goals--the group must form coalitions with other interests." n336 The wave of "bias crime" in the five years preceding Obama's class brought this issue to the forefront and--without Obama's commentary and suggested approach--student groups may have addressed this issue from various [*558] perspectives. n337 Obama asks his students to consider the sources of the racial tensions that may increase due to the "browning of America" and whether "Latinos, Asians, and other more recent immigrants [are] adopting the racist sentiments of white America in their eagerness to assimilate, or are they just the victims of unjustified black resentment?" n338 It is impossible to avoid noting Obama's choice of language that factually states the existence of white racism against blacks. If students accepted Obama's suggested hypothesis of the spreading of white racism "in [immigrants'] eagerness to assimilate," they were effectively limited to accept the conclusions advanced by CRT scholars.

white ally-ship

Angela Harris’ “education work” opens up collaboration and white allies as valuable. An interesting perspective from her co-author

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Stephanie Wildman, Prof Law Santa Clara U., ’14 (47 U.C. Davis L. Rev. 1047 “In Honor of Angela Harris: Finding Breathing Space, Embracing the Contradictions, and "Education Work", April)

The choir members walk in two parallel processions down the side aisles of the church, entering from the rear and marching to the front, singing "hallelujah" and carrying candles. Their expressions are serious, but one face, framed with braids, radiates gladness. Her face lit with joy, Angela Harris, wearing a royal purple sateen tunic, enters and takes her place on the stage right of the choir. n1 As the choir assembles in the front of the church, twenty-two members strong, I cannot help but notice that hers is the only visibly brown face, although two members do appear Asian. n2 The choir appears predominantly white. I am reminded again about the many places in her life in which Angela finds herself as "the minority," and often "the only," and many times "the first." In one of her many articles, Angela named "the private, interpersonal work of fostering empathy for minorities "education work.'" n3 Has she had to perform "education work" with the choir, even in this place of sanctuary that clearly brings her joy? I try to breathe deeply, as I listen to the music of her voice melded with the others, hoping she finds some respite here from the "education work" that marks large parts of her life. As a white person, part of my privilege permits me not to engage in that work. n4 My privilege insulates me from feeling the cost of engagement, or the cost of skipping the confrontation, with obtuse others over the spoken microaggression n5 or outright slur that people of color face all too often in modern culture. As a friend, I try to notice and to speak up, sometimes surprising other whites who thought they were "safe" to make a disparaging racial remark or who did not understand the comment made as offensive. As a teacher, I hope I am setting a better example for other white allies of how to "do education work." Angela Harris is a true innovator in legal education who inspires both in her teaching and her scholarship. I have experienced the pleasure of working with Angela as a co-teacher in a law and social justice seminar n6 and as a co-author on a textbook about race. n7 I have audited the course she taught from that text. And we have shared hikes, chocolate expeditions, and yoga classes. Most of all I feel proud to consider her a friend. In Privilege Revealed: How Invisible Preference Undermines America, n8 I counseled, as a white person, other white people, advising them to "make a friend" of color. This recommendation cautioned the reader not to seek a token or trophy friend, but rather to build a deeper friendship that could enable one to begin to see the world through the friend's eyes. n9 Seeing the world as the friend experiences it is one small step toward developing the empathy that derives from "education work." I wrote that passage in part because of an experience I shared with Angela. We had flown together from the San Francisco Bay Area to Minneapolis for a Society of American Law Teachers ("SALT") conference. n10 As we disembarked together from the plane and started to walk through the Minneapolis airport, I noticed that not one African American person appeared in evidence, other than Angela. In this crowded sea of white faces, Angela and I drew many stares, not all of them friendly. The environment did not feel totally safe, although we were in a public airport. I was glad that she was not traversing that terminal alone, and I told her so. In that moment, I felt a glimmer of what she must have frequently experienced being an "only" in the many white spaces that she inhabited. *** It is an honor, indeed, to share some insights gained from my longtime collaborative work with Angela and to express my appreciation and debt to her for her teaching, scholarship, and friendship, as I try to recognize the time and place for "education work" and try to become better at performing it. Noting that collaborative work is not always valued by the academy, Angela wrote about my own collaborative projects that they "demonstrated a remarkable gift for facilitating the mysterious process by which a group becomes larger than the sum of its parts." n11 As the adage states: "It takes one to know one." n12 Angela also possesses that gift for collaborative teaching, scholarship, and service that has enriched us all. Her work mentoring junior faculty deserves special note, as that kind of collaborative effort can make such a difference in another's career. In Part I, this Essay explores Angela's notion of "education work," n13 suggesting the concept provides an opportunity for another kind of collaborative work that whites can perform so that people of color do not carry the entire burden of that "education work." Whites who step up as educators can cement their role as allies and build bridges for working across racial lines. n14 In Part II, this Essay considers an aspect of Angela's scholarship, in which she argues for reframing legal education to acknowledge emotion and mindfulness as key attributes for social justice lawyering. She has been a pioneer in this effort. "Education Work" Breathe in slowly and exhale slowly. As you breathe in and out slowly, try to notice the space in between each inhale and the exhale. Inhalation and exhalation are seemingly opposite motions - in and out. But spaces exist between each inhale and exhale, suggesting that the breath is made up of more than just two opposing parts. Each of these four parts of the breath - the inhale, the space between the inhale and exhale, the exhale, and the space between the exhale and the next inhale - has a different quality. Notice how each part feels and especially notice the spaces. n15 In her essay On Doing the Right Thing: Education Work in the Academy, n16 Angela highlights the limits of legality in fostering antidiscrimination. Rather, she explains, "private, interpersonal relationships" foster empathy and understanding for minority members of society. n17 Her essay considers the theory and practice of such work from her perspective as a racial minority faculty member. Education workers cross boundaries when they challenge hurtful remarks and risk sacrificing "community," even when that community [*1053] may be illusory from a minority's perspective. n18 "Trying to respond to perceived bigotry and affirm the relationship at the same time is doing education work." n19 The burden of such work undoubtedly falls more heavily on minority community members. Helping in "education work" is an important role that white allies can play. Majority community members (whites in the racial paradigm) face less risk of being labeled outsiders if they engage in "education work." And indeed Angela suggests "that the burdens of doing education work should be lifted from the shoulders of "diverse'" colleagues whenever possible. n20 One need not be a minority group member to empathize

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with that perspective or to recognize a hurtful, racist dialogue in the institutional setting. In the racial context, whites should strive to acquire this knowledge. As Angela observes, "Education work is work as well as education." n21

There is something contradictory about it—embrace the contradictions.

Stephanie Wildman, Prof Law Santa Clara U., ’14 (47 U.C. Davis L. Rev. 1047 “In Honor of Angela Harris: Finding Breathing Space, Embracing the Contradictions, and "Education Work", April)

Being a friend equals being a friend, but a white person can be a better friend by mindfully taking on "education work." One ethical framework for practice is an antiracism and anti-oppression stance; recognizing whiteness is a first step in

that practice. Angela writes about teaching the contradictions, because she lives her life at the junction of these kinds of contradictions - between silence and action, belonging and not belonging. Perhaps that insight of the need to live in the contradiction is the biggest lesson of her work. Contradictions twist and squeeze and constrain. But in helping each of us to find the spaces between the breath's inhale and exhale and, thus, aiding the possibility of embracing the contradictions , Angela shows her brilliance as a teacher and her wisdom as a practice-ready person.

Suggested readings (18 must reads books for any whites interested in “being an ally”)

Crystal Paul, ’16 (March 8, http://www.bustle.com/articles/144531-18-books-every-white-ally-should-read

18. How Does It Feel to Be A Problem?: Being Young and Arab in America by Moustafa Bayoumi 17. Colonize This! Young Women of Color on Today’s Feminism by Daisy Hernandez 16. Invisible Man by Ralph Ellison 15. The New Jim Crow by Michelle Alexander 14. Between the World and Me by Ta-Nehisi Coates 13. Citizen: An American Lyric by Claudia Rankine 12. The Making of Asian America by Erika Lee 11. Yellow: Race in America Beyond Black or White by Frank Wu 10. The History of White People by Nell Irvin Painter 9. White Like Me: Reflections on Race from a Privileged Son by Tim Wise 8. Hillbilly Nationalists, Urban Race Rebels, and Black Power by Amy Sonnie and James Tracy 7. All Souls: A Family Story From Southie by Michael Patrick MacDonald 6. How The Irish Became White by Noel Ignatiev 5. Blues City by Ishmael Reed 4. An Indigenous People’s History of the United States by Roxanne Dunbar-Ortiz 3. Coming to America by Roger Daniels 2. How Europe Underdeveloped Africa by Walter Rodney 1. Open Veins of Latin America by Eduardo Galeano

After epistemology…

What does the aftermath of operating through such epistemologies look like?

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Richard Delgado, Prof. Law Seattle U., ’12 (100 Calif. L. Rev. 431, “Centennial Reflections on the California Law Review's Scholarship on Race: The Structure of Civil Rights Thought”)

What will the new paradigm look like? Will it include both race and class? See Richard Kahlenberg, The Remedy (1997). Races other than the black and white? What about discrimination on the basis of religion, especially minority religions like Islam? Will it find a place for discrimination on the basis of disability and sexual orientation? Will it include new forms of judicial review and tiers of scrutiny? Time limits (such as 25 years) and grandfather clauses? Will it be simple (a unified theory of discrimination) or complex, with differentiated analyses corresponding to different groups and settings? My guess (hope, really) is that it will include all these matters and in unified fashion.

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revolution

-- advocating revolution has a long history, takes many forms.

But in the early 1980s, we were influenced by a group of activists/intellectuals who believed another world was possible, but only through revolution. Walter Rodney, Manning Marable, June Jordan, Ngugi wa Thiong’o, Angela Davis, Chinweizu, Cedric Robinson, Vincent Harding, Cornel West, Barbara Smith, Stuart Hall, not to mention Edward Said, Eqbal Ahmad, and Samir Amin, wrote about the ravages of racial capitalism, the violence of patriarchy, the futility of parochial politics in the face of global imperialism, and the absolute necessity to resist. We were living in the last decade of the Cold War, the era that gave rise to Reaganism and Thatcherism, new imperialist wars, and new revolutions in Africa, Asia, and Latin America, from El Salvador, Haiti, and Grenada to Nicaragua and South Africa. Here in the belly of the beast, capital flight, the erosion of the welfare state, neoliberal privatization schemes, the weakening of antidiscrimination laws and policies, and a wave of police and vigilante killings struck our communities with the force of a cluster bomb. The decade, in fact, opened with police killings and non-lethal acts of police brutality emerging as a central political issue, resulting in a massive urban insurrection in Liberty City, Florida, in May of 1980. That same year witnessed the founding of the National Black United Front (NBUF) and the National Black Independent Political Party (NBIPP). Black radicals took factory jobs to reach the working classes, demanded freedom for political prisoners, threw their energies behind building a socialist Africa, continued the long tradition of community-based organizing, and participated in acts of solidarity occasionally chanting “Free Palestine.”

Palestinian lives matter. Black lives matter. All lives matter. This should be self-evident. The children at the Aida Camp remind us that what matters most is struggle. Here I am not speaking only about self-defense. To struggle is to overturn the logics of a racial regime that uses security to justify dispossession, military rule, and the denial of the most basic rights. To struggle is to begin building the future in the present, to prefigure a post-apartheid/post-Zionist society. As one song from Children of the Camp put it: “Occupation never lasts . . . The government of injustice, vanishes with revolution.” The same vision of revolution is evident among the young activists in Ferguson, Missouri. They, too, remind us that Black struggle matters. It matters because we are still grappling with the consequences of settler colonialism, racial capitalism, and patriarchy in the US. It mattered in post-Katrina New Orleans, a key battleground in neoliberalism’s unrelenting war on mostly Black, Latino, Vietnamese, and Indigenous working people, where Black organizers lead multiracial coalitions to resist the privatization of schools, hospitals, public transit, public housing, and the dismantling of public sector unions. The young people of Ferguson struggle relentlessly, not just to win justice for Mike Brown or to end police misconduct but to dismantle racism once and for all, to bring down the Empire, and to ultimately end War. As they reach out to Palestine, and Palestine reaches back to Ferguson, the potential for a new basis for solidarity is being born – one rooted in revolution.

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story-telling

Hortense Spillers

Currently the Gertrude Conway Prof. of English at Vanderbilt University. Large number of relevant publications, a crucial author for Black Studies, Black feminism, critical resistance, cultural studies.

Great personal discussion about selecting an academic profession (almost went into broadcasting), working on the dissertation (interesting story about paying a typist even though she did “everything else”) at her home page: http://as.vanderbilt.edu/english/bio/hortense-spillers

key work (among many) : Conjuring: Black Women, Fiction, and Literary Tradition, eds. Hortense J. Spillers and Marjorie Pryse (Bloomington: Indiana University Press, 1985). With Afterword by Hortense J. Spillers.

Lola Okolosie…

is an English teacher and writer as well as a self-proclaimed black feminist.

Lola Okolosie is an English teacher and writer. She has produced work for the Observer, guardian.co.uk and Red Pepper. She is a member of Go Feminist and Black Feminists. She writes in a personal capacity. http://www.theguardian.com/commentisfree/2013/dec/09/black-feminist-movement-fails-women-black-minority

I call myself a black feminist and hold that label dearly, but the naming happened after the fact. I was a black feminist from the moment, as a child, I recognised the domestic violence was gendered and somehow seen as acceptable because of this. When neighbours called the police to our back-to-back terrace in what is now the red light district of Bradford, I would feel anger that my mother's fear of the police and what they stood for took precedence over her own safety. As a Nigerian immigrant whose abuser had full control of her documentation and the processes through which she had managed to remain in the country, my mother believed that speaking truthfully to the police was not a choice she could make. As I grew, my childish anger gave way to a recognition that my mother was a black woman caught in her own particular understanding of what it meant during the 80s and 90s to be black and a woman in Britain: a place where over half the population agreed that we lived in a racist society; a place where immigration was (and continues to be) seen as a damaging factor in British life; a place so hostile to her presence that a walk home from work resulted in racist abuse so regular that it wasn't worth mentioning. Through the work of feminists looking at race, class, disability, sexuality and nationality, I came to understand my mother as a person who was, as we all are, constructed by social and cultural forces beyond her control. My jumbled-up feelings and ideas found full voice in the work of literary and academic black feminists: women like Alice Walker, Toni Morrison, bell hooks, and Kimberlé Crenshaw showed the meaningless of separating sexuality, class, race and gender oppression when they simultaneously affect the lives of black women. What a relief it was to discover that in "feminism" you could find a place that collated all the experiences of women like my mother – women who were, and continue to be, routinely ignored by the dominant feminist movement. Within the media, and indeed the movement, there has been much celebration of our feminist resurgence. Yet our success is being marred by infighting. White, middle-class and young women are often seen as the ones spearheading this new wave of activity. Their high-profile campaigns – to have women on banknotes, challenge online misogyny and banish

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Page 3, for example – though necessary and praiseworthy, do not reflect the most pressing needs of the majority of women, black and minority-ethnic women included. The problem is not that these campaigns exist, but that they are given a focus and attention that overshadows other work feminists are engaged with. Organisations such as Women Asylum Seekers Together, which has groups in London, Liverpool, Leeds, Cardiff and Manchester, are not only meeting to support and empower themselves through their shared experience. They are also working on challenging gender discrimination within the UK immigration system – a system that can still ask whether a rape victim had adequately resisted her rapist, or whether a trafficked woman had enjoyed her work as a prostitute. Women from countries such as the Democratic Republic of Congo – which the UN calls "the rape capital of the world" – are met by a culture of disbelief that sees them as asylum claimants to be interrogated and caught out rather than as vulnerable and in need of support. This is a feminist issue, too, but the movement is largely silent on the plight of such women. Or organisations such as Manchester's Lesbian Immigration Support Group, which offers practical help to members with asylum applications based on sexuality. Or the London-based black feminist organisation Imkaan, which is working in partnership with Women's Aid to support and maintain specialist services dealing with violence against women for black and refugee women. In these times of austerity, the ability to save refuges from closure is no small feat and should be celebrated. Yet such groups do not make the headlines or gain enough support despite the profound change in lives that they enable. The majority of women both in the UK and across the globe do not live lives that are negatively impacted by sexism alone. Because of this reality, the black feminist concept of intersectionality, the idea that oppressions criss-cross and compound each other, has been seismic. Through it black feminists have been able to point out the failures of the wider feminist movement – which lie in its continual failure to capture and reflect the extreme differences in how women live their lives. That we sometimes point this out with a lack of patience has garnered more column inches than the critiques we are making. This is saddening but predictable. It is a type of quibbling that enables procrastination in the matter of the difficult work of turning feminism into feminisms – something more representative of our wonderful variety. It is ironic that even some within the feminist movement, when engaging with criticism from black feminist quarters, use the stereotype of the angry and humourless black woman. At the black feminist meetings I attend we are angry with a lot of things, because – shock horror – we live in a world where racism, sexism and economic inequality abound. Our meetings are, however, also filled with laughter and a deep love for having a space in which much that is said is empathised with, not minimised, questioned and treated defensively. I call myself a black feminist because I am unwilling to be silent and complicit. The black feminist academic Sara Ahmed puts it well when she writes that "sometimes you can only stand up by standing firm. Sometimes you can only hold on by becoming stubborn". Emotionally, black feminism reminds black women that the racism and sexism they experience on a daily basis are not a figment of their individual imaginations but are real and structural. Critically, black feminism is championing a more nuanced understanding of how oppression and privilege operate. We, all of us, must understand that at the level of the individual, we can at differing points occupy positions of privilege. I am a black woman from a working-class background. I also have qualifications from elite universities that mean I am able to access a career, friendships and a lifestyle my 18-year-old self would never have imagined. When and where I experience privilege or oppression changes from day to day, hour to hour. Though women who live in the "real world" – ie outside academia – may not bandy the word intersectionality, it nevertheless speaks to our lives within it. This is not to deny that power can be invested in language and that for some the term is perhaps alienating. It would be great if we had a word already in existence that conveys the complex and complicated nature of oppression. We do not. The language that we currently use serves to compartmentalise inequalities. It won't do. I am less interested in whether feminists choose to use the word or replace it with (no less academic) phrases such as multiple oppressions. What is of greater concern is how we work to empower women whose lives are impacted by a number of inequalities. Despite prevailing misconceptions, intersectionality is not merely concerned with the academic; it is and always has been about tangible positive change for those who so easily slip through the gaps of popular thinking and attention. Organisations such as Southall Black Sisters, which are committed to meeting the needs of black and minority-ethnic women, did not exist in my hometown. My mother remained locked in an abusive relationship, living in shame and fear, isolated and helpless. I cannot dare to imagine what difference such a group might have made to her as a young black woman. It is too painful to think of what could have been. For the feminist movement, it is also best to not repeat the mistakes of the past. It would demonstrate an inexcusable carelessness for the lives of women like my mother who are too often silenced and unheard.

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civil disobedience

Blurs with non-violence, both tactics of change that may be part of a call to revolution.

The point of civil disobedience was not to keep the status quo intact, to make the regime slightly more just or fairer. The point was to overturn it. More than a regime change, King called for a revolution in values, a rejection of militarism, racism, and materialism, and the making of a new society based on community, mutuality, and love.

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debate

This is not the place for an extended history of race in debate, but that history unquestionably points to a long and growing list of debaters and coaches who have worked to bring more conversations about race to the community and achieved the greatest of accomplishments in the activity. There is much work to be done, but this paper can at least state with confidence that the work has started and there are many trailblazers competing and coaching at the highest ranks. Most importantly, it means there three things:

1. Literature

There is already a vast and deep reservoir or arguments and research to draw from across the board. New specificities such as housing or education will carry a great deal of weight, but it won’t be completely uncharted territory.

2. Both/And

The debate community itself will and should play a role as both a material manifestation of the harms being discussed and a powerful metaphor representing various views of the topic.

3. Find intersections through research

Let’s debate these policies and these conditions. This quote from Dr. Shanara Reid-Brinkley being interviewed by Scott Odekirk may not apply to everyone, but it still needs to be said to a surprisingly large percentage of the community.

DSRB, Prof. Comm @ U. of Pittsburgh, ’12 (Dr. Shanara Reid-Brinkley, April 2, interview transcript online, https://puttingthekindebate.wordpress.com/tag/dsrb/)

Where are we? I thought we were good at debate. I thought we are in debate. I thought we did research, I thought that’s what sort of defined our community. So you’re telling me you can’t go find the afro-optimists who answer the afro-pessimists? It astounds me. I don’t get it. So I think step one is; shut up about complaining about framework and do some [ed] research. There is black literature being produced every moment of every day. There is a whole area of the library, sections of the stacks, with relevant information that might be useful for you. Go read some African American history, go find the little out about Africa and Chattel Slavery and the slave trade. It is so simple to me that I don’t understand why the debate community is refusing to do research. Odekirk: Yeah, fair. Dr. Reid-Brinkley: So how about we just start there? Step 1: do some research. Odekirk: Yeah.

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VI. Other arguments

These arguments in one way or another may appear on the aff or on the neg…in short, they represent major areas of importance and independently justify taking on this area as a topic.

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Postracialism

What does it mean? The question may be harmful in that the term asks us to consider an “end” to race. For that reason and others, “postracial” is not a useful term, but it is circulating through public discourse.18 Indeed, one of its interpretations is that it signifies a deepening of racism and the racial divide, giving it another dimension and making it even more important to think about and debate.

Janine Young Kim, Prof. Law Marquette, ’13 (“POSTRACIALISM: RACE AFTER EXCLUSION,”17 Lewis & Clark L. Rev. 1063)

We are living in an age of proliferating "posts": post-modern, post-colonial, post-structural, and in the United States of late, post-racial. n1 Although much has been written about postracialism, a settled definition remains elusive. Some interpret postracialism as a claim that society is now free of racism. n2 Others say it is a claim that society is now free of race and racialization. n3 Still others argue that postracialism is an ideology designed to prolong and even worsen the subordination of racial minorities. n4 A term popularized by the media, coverage of postracial America appears to be, at best, ambivalent. News stories and commentaries probably spend less ink proposing that we are beyond race than recounting all the ways we are not. As linguist John McWhorter has observed, "the question ... "Is America post-racial in the age of Obama,' is actually a summons for us to ritualistically affirm that we are aware that race still matters in America. The stray person who claims that it doesn't is to be corrected (and probably ridiculed)." n5 It would seem, then, that the idea of a postracial America was never a truth but a debate. Accordingly, postracialism may not herald the death of race but rather its revitalization in public discourse. n6 In particular, it has raised important questions about the ways in which our views about race may have changed over time. There is little disagreement that much has changed since the beginning of our nation. Debate instead tends to revolve around how much progress these changes signal, and whether it is appropriate to celebrate that progress (and end race-based remedies like affirmative action) or to lament how far we still have to go (and renew our efforts toward social justice). n7 In other words, the harder and more interesting part of this debate is not about whether race still matters but what to do with the fact that it does. This Article focuses, however, on another aspect of change that seems to be largely overlooked in the debate about postracialism: the shifting conception of race itself. Since the mid-twentieth century, Americans have come to accept the explanation that race is a social construction. Under the constructivist view, race is not fixed and stable but under constant transformation through political struggles over how "human bodies and social structures are represented and organized." n8 This understanding of race suggests that as cultural representation and social organization change, race - as a concept - also changes. Any such conceptual change would and should have a significant impact on the debate over what to do about race, for surely what we do about race must be informed by an understanding of how race matters. Thus, the question, "Is America postracial?" may be usefully rephrased in the following way: Has racial progress so altered the way we think, live, and order ourselves that race means something significantly different today than it did in the past? Perhaps by addressing this conceptual question, we can begin to make sense of a so- called postracial era that remains deeply preoccupied with race.

For Kim, “postracial” is an invitation to study how race has changed (more discursively than materially— perhaps an argument in and of itself) over the past 25 years.

Janine Young Kim, Prof. Law Marquette, ’13 (“POSTRACIALISM: RACE AFTER EXCLUSION,”17 Lewis & Clark L. Rev. 1063)

This Article has sought to offer an explanation of the postracial phenomenon by framing the issue around two different conceptions of race that coexist in American society today: (1) race-as-difference, - denigration, and -exclusion, and (2) race-as-identity, - equality, and - inclusion. On a discursive level, the shift from the first to the second is nothing short of revolutionary; on a material level, however, we have seen only gradual and tentative changes. Nonetheless, I believe that these changes

18 Harris & Lieberman, ’15 (March April, Frederick C. and Robert C., Foreign Affairs, “Racial Inequality After Racism: How Institutions Hold Back African Americans,” https://www.foreignaffairs.com/articles/united-states/2015-03-01/racial-inequality-after-racism)

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are significant enough to support the notion that race means something very different today than it did even 25 years ago. It is only in this narrow sense that I think we can consider ourselves "postracial." Our society is not one in which there is no such thing as race or racism; instead, it is a society in which race means different things to different people in different contexts. Far from death, race has become prolific. We have achieved much racial progress to get to this point. This, I realize, can be a dangerous statement in an environment where racial conservatives seize on any small sign, however inappropriate, to call for the end of racial remedies. n380 Indeed, postracialism itself can be read as a triumphalist, conservative assertion. I have tried to redefine postracialism to serve a racially progressive cause, not as a pragmatic concession to fashionable race-speak but as a theoretical framework for recognizing new social conditions that I hope will be useful toward achieving greater racial justice. In this way, I consider the postracial dilemma to be one that is situated within the progressive movement, born from the struggle to redefine race as a foundation for identity, equality, and inclusion. Accordingly, postracialism is not something to be proved or refuted; rather, it is something to be studied. Ideally, such postracial studies would interrogate the profound shifts in the meaning of race that have been occurring, and also begin the work of imagining those yet to come.

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Intersectionality / Multisectionality

The structural and political dimensions of gender violence and mass incarceration are linked in multiple ways. The myriad causes and consequences of mass incarceration discussed herein call for increased attention to the interface between the dynamics that constitute race, gender, and class power, as well as to the way these dynamics converge and rearticulate themselves within institutional settings to manufacture social punishment and human suffering. Beyond addressing the convergences between private and public power that constitute the intersectional dimensions of social control, this Article addresses political failures within the antiracism and antiviolence movements that may contribute to the legitimacy of the contemporary punishment culture, both ideologically and materially.

The incarceration vector is particularly significant, and already rooted in race. Intersectionality occurs across many dimensions, but also includes “interlocking” structures of oppression that operate on the race dimension in a more controlling way, requiring analysis that looks at multiple identities such as gender and degree of incarceration, yet continue to foreground race.

Smith's story not only illuminates dimensions of mass incarceration that have underwritten the disproportionate surveillance of women of color; it also suggests that while intersectional vulnerability might reasonably be framed as "interlocking," it remains important to understand and interrogate its constituent parts. Mass incarceration also points to vulnerabilities created by the interface between systems that structure social relations and the dynamic dimensions of social control that operate within them. Within this interface, identities - understood as categories that are made salient through their relationship to social hierarchy - are not irrelevant or wholly transparent in these processes. They mark aggregations of advantage and disadvantage that are repositories of social power and vulnerability. While these identities are not static or unchanging over time, they are neither imaginary nor easily transcendable. Priscilla Ocen brings these dimensions to the fore in her analysis of a case involving the surveillance and control of subsidy-reliant single Black mothers in Antioch, California. n69 As Ocen notes, single Black mothers are disproportionately low income, a socioeconomic consequence that is itself a product of the interlocking dimensions of race, class, and gender inequality. n70 But it is not this socioeconomic fact alone that accounts for their vulnerability to the policing strategy that Ocen so vividly recounts. It is their stereotypical representation as the incubators of Black pathology that allows them to be singled out for punitive surveillance and punishment. n71 Ocen recounts the troubling story of how Black female recipients of Section 8 housing vouchers were subjected to public and private policing in predominantly white communities when economically distressed homeowners began accepting [*1442] the vouchers, thereby opening up middle-class neighborhoods that had previously been inaccessible to single Black mothers. In response, the police department put together a special unit to meet this perceived threat. n72 As Ocen describes, Black women were singled out for constant monitoring and intrusive house searches by this special unit, and neighbors were invited to participate in the surveillance through flyers that the unit distributed throughout the community. In an episode that tragically captures the theme of this symposium - overpoliced and underprotected - one of the plaintiffs recounted how a police visit to intervene in a domestic assault turned into a compliance investigation and search of her home. n73 No investigation into the domestic violence complaint was ever pursued. Evidence suggests that this pattern of manufacturing suspicion is widely experienced by Black women in other communities as well. n74 Ocen's analysis draws out a more complicated picture not only of the interface between public and private power but also of the institutional interface between subsidy programs and policing. n75 The multiple dimensions of this specific vulnerability are vexing and point [*1443] to the distinct way that the plaintiffs' identities as Black women authorized the surveillance they encountered. n76 Equally troubling is the fact that neither the police nor their white, middle-class neighbors were the only antagonists; men of color, women, and presumably other struggling families antagonized them as well. The role of identity in this intersectional story is further reinforced by the fact that not all of the women who were subsidy reliant were among those singled out and that several women who were not subsidy reliant but were targeted by the special unit were African American. n77 That it was African American women who prompted this response illustrates how specific identities prompt disciplinary strategies tailored to the risks that are projected on them. This is not solely a story of intersectional vulnerability. It also reveals how convergences such as these undermine the potential to build communities of interest. The social stigma associated with surveillance constitutes an open invitation to all nonsuspect groups to erect distance between themselves and the family with the police car stationed outside its house. Once these Black mothers were singled out, their commonality with other single mothers, with other two-parent families, and with other people of color became obscured by the meaning attached to being "suspect." No doubt, among those who believed they were being protected and served were others who were also subsidy reliant but were not stigmatized

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as Black single mothers. Ocen's analysis widens the lens through which the intersectional dimensions of social control are legible. As she illustrates, intersectional vulnerability to social control extends beyond the formal carceral regime. n78 Her analysis of the Antioch case reveals how the converging vulnerabilities that render some populations particularly amenable to control can be premised on the intersection of formal status (beneficiaries of social support services) and ascriptive identities (African American). Entrapped as such, the plaintiffs were available targets of both public (police) and private (neighborhood watch) mechanisms of surveillance and social control.

Richard Delgado, Prof. Law Seattle U., ’12 (100 Calif. L. Rev. 431, “Centennial Reflections on the California Law Review's Scholarship on Race: The Structure of Civil Rights Thought”

On discrimination against intersectional individuals who are members of two or more groups, see, for example, Kimberle Williams Crenshaw, Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Policies, 1989 U. Chi. Legal F. 139, 139 (exploring the "problematic consequences of the tendency to treat race and gender as mutually exclusive categories of experience and analysis" and noting that this "single-axis framework ... is dominant in antidiscrimination law"); Angela P. Harris, Jurisprudence of Reconstruction, supra note 4, at 767-68; Angela P. Harris, Race and Essentialism in Feminist Legal Theory, 42 Stan. L. Rev. 581, 608 (1990).

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Racial Binaries

The notion of “binary” means a number of things in identity literature, particularly race. Within the racial context, “binary” often refers to an overly rigid classification between white and Black, leaving other races either outside the calculus or forced into one group or the other based on hard to defend stereotypes. The phrase “model minority,” for example, is a racist attempt to maintain the binary and the centrality of whiteness by putting certain non-white groups into the white category based on certain accomplishments or characteristics. Richard Delgado, one of the foremost legal scholars of race in the world, takes on the issue of racial binaries by analyzing articles in the California Law Journal, one of the most important publications for trends and developments in race in America.

Richard Delgado, Prof. Law Seattle U., ’12 (100 Calif. L. Rev. 431, “Centennial Reflections on the California Law Review's Scholarship on Race: The Structure of Civil Rights Thought”

Of all American legal journals, the California Law Review has published perhaps the richest and most extensive body of scholarship on the subject of race and equality in the country. With foundational articles by Tussman & tenBroek, n1 Derrick Bell, n2 Juan Perea, n3 Angela Harris, n4 Ian Haney Lopez, n5 and many others over the years, n6 the California Law Review stands virtually alone in its contribution to and influence in this socially important field. Centennial occasions like this one are opportunities to step back and examine accomplishments like these and to take a broad view of the path one has trod. In what follows I examine the Review's race scholarship as a whole, looking for patterns, signs of strain, significant changes, and theoretical breakthroughs. I look primarily for broad outline and structure. Thus, I do not plan to critique any particular article, respond to ones I disagree with, or put any article or group of them under the lens. Instead, I shall be looking at all of them at once in search of contours that only emerge on taking this more encompassing view. In undertaking this survey, I hope to illuminate where we are today in our thinking on American race theory, and highlight the role that the California Law Review has played in bringing us here. What I find, upon examination, is essentially two different binary paradigms of racial thought, n7 one familiar to readers of this literature, n8 the other less so. n9 The first and more familiar paradigm conceives of American race relations as occurring within a black-and-white dichotomy. The second paradigm, which has emerged more recently, focuses instead on the relationship between individual rights and equality protection. What is most surprising is not so much the existence of two different paradigms, but rather that they are nested, with one inside the other. n10 The black-white paradigm approaches racial discrimination, a subset of general equality concerns, by thinking in terms of racial groups, and has resisted approaching race in individualized terms. The individual rights- equal protection paradigm, which addresses broader equality issues, thinks in terms of classes of protection, and had resisted approaching equality in individual liberty concerns. Furthermore, recent scholarship has (separately) criticized both paradigms for their balkanizing approaches to equality concerns, offering more unifying approaches.

Proponents of the Black-white binary defend it in many ways, just as critics attack it from a multitude of angles.

Richard Delgado, Prof. Law Seattle U., ’12 (100 Calif. L. Rev. 431, “Centennial Reflections on the California Law Review's Scholarship on Race: The Structure of Civil Rights Thought”

To understand race in America, then, one must begin with the black experience. The experiences of other groups - for example, Japanese with World War II internment n58 or Latinos with language discrimination n59 - may merit attention, but are nevertheless subordinate to the more foundational and pervasive variety of discrimination experienced by blacks. Indeed, if one understands the relationship of blacks and whites and the forces shaping that relation, one will find a template for understanding the reception society has afforded other groups lying at the periphery of the American experience. n60 The principal exponent and critic of this way of looking at race is Juan Perea. In a landmark article in the California Law Review, n61 Professor Perea sets out his interpretation of the black-white binary paradigm and gives examples of it from the writing of leading race scholars. n62 He shows how writers and jurists who subscribe, consciously or not, to this paradigm tend to give short shrift to the problems and histories of nonblack groups. n63 According to Professor Parea, they either ignore these issues entirely or assume that one can understand and address them by analogy to familiar problems affecting blacks. n64 Like many critics of the black-white binary of civil rights thought, Perea does not rest content with merely describing the foibles of this form of thought, but actively attacks it. For him and other critics, the binary is not just an

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interesting habit of mind, or even a perfectly understandable choice to [*446] emphasize one set of topics over another, like a torts scholar who focuses on intentional torts rather than ones of negligence. Instead, the black-white binary does affirmative harm by marginalizing the problems of other groups and forcing them to analogize the injuries they suffer to ones that befall blacks. n65 The paradigm also impairs coalitions by encouraging nonblack groups to wait their turn. n66 Further, it obscures how America's legal history of race is a patchwork of advance and retreat, with one group now progressing while another moves backward, and the groups trading positions as the interests of the majority group dictate. n67 Others take the opposite normative position. The paradigm's defenders include black exceptionalists who believe that the problems of this group are unique, serious, and deserving of a central place in any discussion of race. n68 The category also includes traditional scholars reluctant, sometimes out of inertia, to extend their analysis to new groups. n69 It also includes those who hold that attention is a limited commodity, so that pondering the issues facing smaller or less important groups is a digression from the civil rights community's main task, namely, solving the problems of the one group that has suffered the longest, namely, blacks. n70 [*447] Some of these scholars attempt to stake out a middle ground, holding that the rich body of race-remedies law created with African Americans in mind is readily capable of expansion to cover the milder troubles that visit, say, Hispanics or Japanese Americans. Leading defenders of this view include Angela Harris, writing in the California Law Review, n71 as well as Roy Brooks and Kirsten Widner, writing in the Berkeley Journal of African-American Law & Policy, n72 and John Hope Franklin, who, as chair of a national race commission urged at its first meeting that it limit its consideration to the problems of blacks because understanding those problems represented the first step toward obtaining the same insights and remedies for members of other groups. n73 According to Franklin, since America "cut its eyeteeth" on racism against blacks, they deserve to be at the center of analysis, with the others respectfully taking seats off to the side. n74

Black-White Binary (Dis)operation

Two big questions: What is the Black-White binary? and How does it operate or decompose?

Devon Carbado, Prof. Law UCLA, ’11 (CRITICAL RACE THEORY: A COMMEMORATION: AFTERWORD: Critical What What?, 43 Conn. L. Rev. 1593, July)

As Athena Mutua explains, "[b]y shifting the Critical Race Theory lens to other racialized [i.e., non-Black] groups, . . . analyses [like Chang's] brought in important discussions of both historical and contemporary . . . [significance]." n153 She would thus encourage more work of the sort that Chang produced, as would I. But she would also encourage "shifting bottoms," which she articulates "as a complement to the process of 'rotating centers.'" n154 The basic idea here is that no one group should permanently occupy the center of our anti-racist analysis. No one group should stand in for "the bottom" or monopolize our racial imagination. While this framework leaves some questions unanswered (by what criteria do we shift or rotate the bottoms?), Mutua's argument moves us in the right normative direction. Thus, I build on it below. In addition to shifting bottoms or rotating centers, a Multiracial Moment might require more "racially integrative" modes of analysis. Here, the question would not be whether we have moved from discussing Black/white relations to, for example, discussing Asian/white relations. Rather, the question would be whether our racial analyses integrate the experiences of multiple racial groups. Two examples of work in this category are Laura Gomez's book, Manifest Destinies, and Bob Chang and Neil Gotanda's article, The Race Question in LatCrit Theory and Asian American Jurisprudence. n155 I discuss each project in turn. Nowhere in Manifest Destinies does Gomez employ the term the Black/White paradigm. Yet, her work is one of the most sophisticated and historically robust accounts of how people of Mexican descent became a race, of the role law played in that process, and of the ways in which that racialization interacted with, shaped, and was itself shaped by, the racialization of other subordinate groups. Calls to get beyond the Black/White paradigm often stand in for, but do not actually perform, this kind of intellectual work. This is part of what troubles me about the critiques of the Black/White paradigm. Bob Chang's and Neil Gotanda's, The Race Question, similarly offers a robust account of multiracialism. While, unlike Gomez, Chang and Gotanda embrace the Black/White Binary terminology, The Race Question is a careful argument about both the role racism plays in structuring minority-minority interactions and the antiracist potential of different forms of multiracialism. Part of what is productive about their analysis is their explicit claim that the problem-and potential-of racial binaries transcends whether they are articulated in black and white terms. My hope going forward is that LatCrit and CRT scholars will build on their work. In addition to the limited way in which multi-racialism figures in the Black/White Paradigm critique, there are other difficulties with the standard arguments scholars rehearse against the Black/White Paradigm, some of which I sketch out below. n156 The Black End of the Binary. Scholars should not employ the Black/White paradigm to suggest, explicitly or implicitly, that America has grappled fully with the nature and extent of racism against Blacks. The fact that Blacks may occupy a central racial space in the American social and political imagination does not mean that the ways in which Black people are imagined (a) comport with how Blacks see themselves or (b) reflect their cumulative social experiences on the bottom. Nor should arguments against the Black/White paradigm obscure the costs associated with occupying

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one end-the negative and subordinating end-of a polarity. Much of the critique of the Black/White paradigm focuses on how the Black/White paradigm privileges the racial victim status of African Americans. Little attention is paid to the ways in which African Americans might be disadvantaged as a result of being included in the paradigm. Consider, for example, that while Blackness can stand in for general criminality (because of stereotypes about race and crime), welfare abuse (because of the racial trope of the welfare queen), and the [*1629] unqualified affirmative action beneficiary (because of racial assumptions about black intellectual deficit), the category cannot stand in for general working class disadvantage, including joblessness (because of arguments about black cultural pathology and work ethic), the difficulties of motherhood (because of the perception of black women as bad mothers), or the problems of mass incarceration (because of the perceived criminal propensities of black men and women). These are just some of the costs of occupying the subordinating end of a polarity.

The Court has already made race—even within a Black-White paradigm, a determination of status. A rigorous assessment of Black-White framing becomes multiracial by necessity.

Devon Carbado, Prof. Law UCLA, ’11 (CRITICAL RACE THEORY: A COMMEMORATION: AFTERWORD: Critical What What?, 43 Conn. L. Rev. 1593, July)

The critique of the Black/White paradigm should not essentialize or monolithically represent Black/White understandings of American racial dynamics. There is not one Black/White framing of American race relations, but several. Critiques of the Black/White paradigm implicitly suggest that Black/White framings of race advance a single thesis about American race relations that is primarily or exclusively about White and Black Americans. But a Black/White analysis of race can have a multiracial focus. One could, for example, examine the ways in which all people of color, and not just Blacks, have been racially subject to Black/White-structured legal and political regimes. Three examples will suffice to make this point. First, in People v. Hall, n157 the Supreme Court considered whether a California law that prohibited Blacks, Mulattos, and Native Americans from serving as witnesses in cases in which a White defendant was on trial also prohibited people of Chinese descent from so serving. Hall was charged with the murder of a Chinese woman. At trial, after hearing testimony from three Chinese witnesses and one White witness, the jury returned a verdict of guilty. n158 The Supreme Court overturned the conviction. Reasoning, in effect, that Blackness is a racial metaphor, a signifier for non-White identity, the Court held that the testimony of the three Chinese witnesses was improperly admitted. n159 Under the Court's view, the Chinese witnesses were, for purposes of California law, Black. Second, in Ozawa v. United States, n160 the Supreme Court was called upon to determine whether Takao Ozawa was eligible for naturalization under an immigration and naturalization statute that granted the right of naturalization to "free white" people and persons of "African nativity" and of "African descent." n161 Invoking both his skin tone and his assimilated lifestyle, Ozawa asserted that he was White. The Supreme Court rejected his claim. Ostensibly applying a scientific test, the Court argued that [*1630] people of Japanese descent are "clearly of a race which is not Caucasian . . . . A large number of the federal and state courts have so decided . . . . These decisions are sustained by numerous scientific authorities . . . ." n162 Here again, the experiences of a non-Black/non-White group are being shaped by a law that is articulated in Black/White racial terms. Because Ozawa was neither Black nor White, he lacked the racial standing to naturalize. A final example of this phenomenon is Gong Lum v. Rice. n163 Gong Lum challenged the separate but equal regime in Mississippi when his daughter, Martha Lum, was denied the right to attend an all-White high school. His argument was that because Martha was not "colored . . . mixed blood, but . . . is pure Chinese," n164 the state of Mississippi could not legally prevent her from attending the all-White high school in her district. n165 The Supreme Court affirmed the Mississippi Supreme Court's rejection of Lum's argument. The Mississippi Supreme Court had held that the Mississippi Constitution required the state to have colored schools and White schools. n166 It reasoned that because there was no controversy with respect to Martha being non-White, she was ineligible to attend the White schools. n167 Central to the Court's analysis was the idea that while the term "colored" emerged with reference to Black identity, its meaning in the Mississippi Constitution was broader, covering non-White identity as well. Stated differently, for purposes of Mississippi law, Martha Lum, was not simply non-White; she was also colored. Hall, Ozawa, and Gong Lum illustrate that while legal regimes are sometimes framed in Black and White racial terms, they will often have a multiracial regulatory effect. The critique of the Black/White paradigm should reflect an awareness of the historical manifestation and contemporary significance of this racial dynamic.

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Economic Class

A great deal of the literature is about the intersection of class and race, especially in terms of the interaction between the chances to obtain and accumulate wealth and minority status. The creates everything from a very nuanced version of the Capitalism Bad/Marxism position to specific governmental programs for individuals are confront racial inequality along with financial hardships and conditions of poverty.

Institutionalized racial inequality is also intertwined with economic inequality. In the United States, enslaved blacks provided a labor source for the Southern agrarian economy. Even after slavery was abolished, Southern blacks were still treated as a source of tenant farmers and laborers. In the twentieth century, blacks have typically faced twice the unemployment rate of whites and have struggled against discrimination in hiring, promotion, and pay. In 1942, due to labor shortages caused by World War II, the U.S. government established the Bracero program, under which Mexico sent to the United States workers who were given some legal status but exploited as cheap labor. Also during World War II, Japanese-Americans, but not Italian-or German-Americans, were subject to relocation and internment because of President Roosevelt's Executive Order 9066 in 1942, resulting in a gross violation of civil rights as well as a loss of property and businesses.

On the flip side, the debates about intersectionality, root cause, ethical prioritization, and strategy are outstanding, with examples of the need for racial perspective when discussing economic class and vice-versa.

Devon Carbado, Prof. Law UCLA, ’11 (CRITICAL RACE THEORY: A COMMEMORATION: AFTERWORD: Critical What What?, 43 Conn. L. Rev. 1593, July)

Class. CRT scholars should more directly engage class. For the most part, scholars outside of the field of CRT are framing the debate about race and class. The CRT literature on race and class is decidedly thin. n176 I am certainly not the first CRT scholar to call for a more meaningful engagement of class within CRT. Richard Delgado, n177 Athena Mutua, n178 Daria Roithmayr, n179 Lani Guinier and Gerald Torres, n180 Angela Harris, n181 Anthony Farley, n182 Trina Jones, n183 and Darren Hutchinson, n184 among others, have urged the same. Nor do I want to overstate the absence [*1634] of class in CRT analyses. Some scholars are in fact taking class seriously. n185 Still, I agree with Richard Delgado and Jean Stefancic that Critical Race Theory has yet to develop a comprehensive theory of class." n186This does not mean that I share the material/discursive dichotomy that Delgado has articulated as a point of departure for his "materialist" critique of CRT. According to Delgado, "after a promising beginning, [CRT] began to focus almost exclusively on discourse at the expense of power, history, and similar material determinants of minority- group fortunes." n187 While it is beyond the scope of the point I am making here to fully engage the discourse/power disaggregation that underwrites Delgado's claim, it might be helpful to invoke Michael Omi and Howard Winant's notion of a racial project to explain why that disaggregation is flawed. Omi and Winant describe a racial project as "simultaneously an interpretation, representation, or explanation of racial dynamics, and an effort to reorganize and redistribute resources along particular racial lines." n188 Under their theory, which they link to broader claims about "racial formation," interpretations and representations (what Delgado would presumably call the discourse or discursive) are constitutive of re-organizations and redistributions (what Delgado would presumably call the material). Nevertheless , Delgado is entirely right to suggest that we can, and should, do better with respect to the space class occupies in CRT.One indication that we have not paid enough attention to class is that CRT scholars are virtually absent from the debates about corporate power and income redistribution. Cheryl Wade, n189 Len Baynes,

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n190 Dorothy Brown, n191 Beverly Moran, n192 Steven Bender, n193 Emma Jordan and Angela [*1635] Harris, n194 and Tom Joo, n195 among others, have each taken up various aspects of these themes in their work. But not enough of us are doing so. CRT interventions are directed primarily at anti-discrimination law, constitutional law and, to a lesser extent, criminal justice reform. We have paid little attention to corporate governance, taxation, and income redistribution. Another indication that CRT scholars insufficiently engage class is the fact that class-based critiques of racial remediation have gone largely uncontested. n196 These critiques issue not only from the left (via the argument that "the real question that haunts American politics is the class question" n197 ), but also from the right (via the argument that affirmative action and other racial remediation policies privileges middle class people of color and the focus is typically on Blacks) n198 and do little to help the truly disadvantaged. n199 What are the Critical Race responses to these arguments? How precisely should CRT theorize the relationship between race and class? What does Critical Race Theory have to say about middle and upper class communities of color? Are CRT's engagements with race sufficiently particularized with respect to class? While the CRT literature on intersectionality and gender is far from complete, it is much more robust than the CRT literature on intersectionality and class. Going forward, CRT scholars need to pay more attention to class than they have heretofore. n200

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Commodification / Racial Capitalism

This is a complicated argument and as context dependent as any of the positions about race. Nancy Leong’s law review has some major shortcomings about the “choice” to engage in commodification or not, but it is a great piece for introducing these arguments and showing the myriad of ways that positive intentions can backfire. It is important to recognize that attempting to “lift up” racial minorities often positions anti-racism within capitalism as something that can be bought and sold, commodifying difference for the benefit of the larger system and entrenching inequality.

Nancy Leong, Assistant Professor, University of Denver Sturm College of Law, ’13 (June, 126 Harv. L. Rev. 2151, “RACIAL CAPITALISM”)

Racial capitalism is both pervasive and troubling. It harms individuals - particularly nonwhite individuals - and impedes social progress toward racial equality. My view is that we should ultimately end racial capitalism. We should instead promote more robust forms of social capital that strengthen both interracial and intraracial networks, thereby furthering inclusiveness in social, educational, and employment settings while preserving respect for racial identity. Some might argue that commodification of racial identity, and the use of racial identity as capital, is inevitable, even in the best possible world. One colleague with whom I discussed this project observed that being a person of color within an institution means that "you're going to get used," and that the best and only response is to make sure you get as much as possible in return. But my own view is that racial capitalism is not inevitable. Ending racial capitalism may take a great deal of effort across generations, but in the end I think it can happen.

Description of the process and explanation of the argument.

Nancy Leong, Assistant Professor, University of Denver Sturm College of Law, ’13 (June, 126 Harv. L. Rev. 2151, “RACIAL CAPITALISM”)

Racial capitalism - the process of deriving social and economic value from the racial identity of another person - is a longstanding, common, and deeply problematic practice. This Article is the first to identify racial capitalism as a systemic phenomenon and to undertake a close examination of its causes and consequences. Racial capitalism has serious negative consequences both for individuals and for society as a whole. The process of racial capitalism relies upon and reinforces commodification of racial identity, thereby degrading that identity by reducing it to another thing to be bought and sold. Commodification can also foster racial resentment by causing nonwhite people to feel used or exploited by white people. And the superficial process of assigning value to nonwhiteness within a system of racial capitalism displaces measures that would lead to meaningful social reform. In an ideal society, racial capitalism would not occur. Given the imperfections of our current society, however, this Article proposes a pragmatic approach to dismantling racial capitalism, one that recognizes that progress must occur incrementally. Such an approach would require a transition period of limited commodification during which we would discourage racial capitalism. Moreover, we would ensure that any transaction involving racial value is structured to discourage future racial capitalism. I briefly survey some of the various legal mechanisms that can be deployed to discourage racial capitalism through limited commodification. Ultimately, this approach will allow progress toward a society in which we successfully recognize and respect racial identity without engaging in racial capitalism.

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White privilege generates racial capitalism.

Nancy Leong, Assistant Professor, University of Denver Sturm College of Law, ’13 (June, 126 Harv. L. Rev. 2151, “RACIAL CAPITALISM”)

Whiteness has been a source of value throughout our history, conferring power and privilege on the possessor. For centuries, American courts explicitly recognized the value of whiteness - for example, numerous courts held that calling a white person "black" constituted defamation and therefore qualified for legal redress. n10 Litigants have also acknowledged the value of whiteness - for example, in Plessy v. Ferguson, n11 Homer Plessy referred to the perception of his whiteness as the "most valuable sort of property ... the master-key that unlocks the golden door of opportunity." n12 And scholars have examined the value of whiteness - for example, Cheryl Harris's acclaimed work Whiteness as Property posits that whiteness is a kind of "status property" that can be both analogized to conventional forms of property and literally converted to those forms. n13 Nonwhiteness has been valued differently and more ambiguously. The practice of using nonwhiteness as a justification for the commodification of nonwhite individuals is older than America itself, as our bitter history of slavery demonstrates. For centuries, nonwhiteness was used as a basis for withholding value by denying nonwhite people legal rights and privileges. More recently, however, nonwhiteness has been considered a source of value; decisions such as Regents of the University of California v. Bakke n14 and Grutter v. Bollinger n15 have validated affirmative action programs in the interest of fostering racial diversity in colleges and universities. This rationale both reflects and reifies the premium that privileged segments of American society place upon diversity, both within and beyond institutions of higher education. In part as a result of judicial action, nonwhiteness has acquired a new sort of value. We have internalized the idea that racial diversity is a social good, and as a result, we assign value to the inclusion of nonwhite individuals in our social milieu, our educational institutions, and our workplaces. Nonwhiteness has therefore become something desirable - and for many, it has become a commodity to be pursued, captured, possessed, and used. To be clear, I see nothing inherently problematic in encouraging racial diversity within social groups and formal institutions, and I am convinced that such diversity is a necessary prerequisite to improving racial relations in America. The efforts of colleges and universities, employers, and other institutions to promote racial diversity should be celebrated, not disparaged. But problems with racial capitalism arise when white individuals and predominantly white institutions seek and achieve racial diversity without examining their motives and practices. Striving for numerical diversity, without more, results in awareness of nonwhiteness only in its thinnest form - as a bare marker of difference and a signal of presence. This superficial view of diversity consequently leads white individuals and predominantly white institutions to treat nonwhiteness as a prized commodity rather than as a cherished and personal manifestation of identity. Affiliation with nonwhite individuals thus becomes merely a useful means for white individuals and predominantly white institutions to acquire social and economic benefits while deflecting potential charges of racism and avoiding more difficult questions of racial equality. This instrumental view is antithetical to a view of nonwhiteness - and race more generally - as a personal characteristic intrinsically deserving of respect. Worse still, the instrumental view of nonwhiteness inhibits efforts at genuine racial inclusiveness and cross-racial understanding. The irony, then, is that our legal and social emphasis on diversity - while intended to produce progress toward a racially egalitarian society - has instead in many cases contributed to a state of affairs that degrades nonwhiteness by commodifying it and that relegates nonwhite individuals to the status of "trophies" or "passive emblems." n16 Racial capitalism frequently does not benefit the nonwhite individuals whose identities are the source of capital, nor does it necessarily benefit society as a whole.

The commodification of race is a major problem and entrenches inequality, but the solution cannot be to completely “de-commodified in one fell swoop” or it will leave existing hierarchies in place. We have to incompletely commodify and work against its worst tendencies.

Nancy Leong, Assistant Professor, University of Denver Sturm College of Law, ’13 (June, 126 Harv. L. Rev. 2151, “RACIAL CAPITALISM”)

Racial capitalism is rampant in American society, harming both nonwhite individuals and society as a whole. But how do we end racial capitalism? In this relatively brief Part, I sketch the preliminary contours of a way to dismantle racial capitalism. My account is intentionally impressionistic, and for now I emphasize the qualities that a solution should have rather than describing the details of a specific solution. Consequently, this Article will serve as a foundation for future work offering both a broader discussion of identity capitalism and a more detailed account of how to deploy both legal and social mechanisms to decommodify race. n349 The first obstacle to mitigating racial capitalism is simply that reform is difficult. Decommodification of racial identity poses what Radin describes as a "transition problem": there are difficulties inherent in moving from our current, nonideal world to an ideal one. n350 With respect to race, the view of race as a commodity is so deeply entrenched in our collective imagination that it will take time to achieve decommodification by altering individual minds and collective social norms. Yet even if instant decommodification were possible, that prospect raises what Radin terms a "double bind": commodification powerfully symbolizes and legitimates racial hierarchy, yet an immediate, wholesale decommodification of race would freeze existing racial hierarchies as they currently stand. n351 Such instantaneous decommodification would leave behind a society stratified along racial lines as the result of past commodification and would offer no way of altering this status quo.

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Radin's approach to these difficulties is a pragmatic one. n352 In the nonideal world in which we live, "it may sometimes be better to commodify incompletely than not to commodify at all," n353 and "in choosing the best alternative now available to us ... we may have to tolerate some things that would count as harms in our ideal world." n354 Put another way, "we cannot make progress toward the noncommodification [*2221] that might exist under ideal conditions of equality and freedom by trying to maintain noncommodification now under historically determined conditions of inequality and bondage." n355 The challenge is thus to "structure an incomplete commodification that takes account of our nonideal world, yet does not foreclose progress to a better world." n356 Radin analyzes the transition problem in the contexts of sexuality and family life. Taking the problem into account leads her to conclude that the commodification of sex, infants, and surrogacy impedes human flourishing, and that in an ideal world such things would remain market-inalienable. n357 In our nonideal world, however, Radin believes that the sale of sexual services should be governed by a regime of incomplete commodification. n358 We should decriminalize the sale of sexual services, but we should work to prevent a domino effect of sexual commodification by banning pimping and recruitment and advertising of such services. n359 The commodification of race endemic to racial capitalism raises a particularly difficult transition problem. As I discussed in Part III, many harms ensue from the mutually reinforcing practices of commodification and racial capitalism, and collectively, these harms instantiate inequality. In an ideal world, race would not be commodified. Yet commodification's harms in the current world also highlight the difficulty of disallowing commodification. Racism and discrimination are deeply entrenched both in the very structure of society and in the hearts and minds of even the best intentioned of us. Although the diversity rationale has reinforced a way of thinking of race as a commodity, it has also had certain material positive effects on the life trajectories of many individuals. n360 To decommodify race immediately and completely would remove a potential tool - flawed, but not entirely useless - for addressing lingering social inequality.

Must reject instances of racial capitalism where possible.

Nancy Leong, Assistant Professor, University of Denver Sturm College of Law, ’13 (June, 126 Harv. L. Rev. 2151, “RACIAL CAPITALISM”)

I therefore propose an approach that takes into account the complexities of dismantling racial capitalism and provides for a transition period during which limited commodification has a role in facilitating progress. n361 As a baseline matter, we should discourage racial capitalism and the racial commodification it requires and reinforces. When racial capitalism does occur, we should deploy several strategies to advance [*2222] the ultimate goal of productive discourse. First, we should respond by explicitly and publicly identifying instances of racial capitalism. Second, we should call attention to racial capitalism's harms. Third, we should impose penalties on those who engage in racial capitalism. Fourth, those penalties should be directed to the project of furthering racial equality and reducing future commodification. And finally, the transaction should be explicitly structured to express condemnation of racial capitalism and to facilitate the overarching goal of productive discourse directed at ending racial capitalism. This overarching goal reflects the reality that ending racial capitalism requires a shift in thinking, not merely a prohibition on certain behavior.

Can’t have blanket dismissal – perm is legitimate

Nancy Leong, Assistant Professor, University of Denver Sturm College of Law, ’13 (June, 126 Harv. L. Rev. 2151, “RACIAL CAPITALISM”)

I am persuaded by the evidence that Bartlett and others have marshalled to demonstrate that positive depictions of nonwhite individuals, in sufficient quantities, have the potential to reduce implicit bias and other negative psychological reactions. Thus, a carefully circumscribed, contextualized, and explicitly temporary form of commodification is not inherently inconsistent with improving the long-term prospects of nonwhite individuals. Suppose, for example, that a company engages in racial capitalism by placing a nonwhite employee in a leadership position in order to improve relations with customers and enhance its recruiting efforts. Even if the majority of the company's decisionmakers view her promotion in cynical and purely financial terms, the nonwhite individual and others troubled by racial capitalism may still turn the commodification into a productive event by contextualizing it

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for those within and outside the company. That is, they may use the incident to identify, critique, penalize, and discourage racial capitalism, as well as to facilitate productive discourse about racial capitalism. The transitional approach I have described serves as a guide for how such contextualization may take place. As I have discussed, commodification risks promoting a view of nonwhite individuals as commodities rather than as role models. Moreover, the backlash against affirmative action programs suggests that simply announcing that nonwhiteness is valued via hiring or promotion of nonwhite individuals may have precisely the opposite effect from what its proponents intend. Nonetheless, an individual placed in a leadership position may acquire the power to articulate the deficiencies of the current system. She may be able to explain to the company leadership what is wrong with their beliefs about race. She may be able to articulate to other employees a better set of beliefs. At the same time, her presence may defuse stereotypes and prejudices: social science research suggests that increased exposure tends to defuse such irrational cognitive biases. n372 And her racial identity may have powerful symbolic value, encouraging and inspiring other employees. n373 In an ideal society, racial capitalism would not exist, and race would have no bearing on our social and economic status. But we live in a flawed society of injustice and inequality, one in which racial capitalism is deeply ingrained. In our current society, then, the unavoidable reality is that commodification has a circumscribed and temporary role as we transition toward a better society.

K of Consumerism

Another way to view the debate is primarily through an anti-capitalist lens that emphasizes consumerism and the way that corporations profit off of racial differences that are marketed and then fulfilled.

Rathod, Duke U. Law, ’11 (13 Berkeley J. Afr.-Am. L. & Pol'y 139, “A Post-Racial Voting Rights Act”)

Perhaps even more than lingering white racism, the diffusion of racial representations and expectations throughout American society is sustained by what I term America's "race-industrial complex." The race-industrial complex refers to the intricate web of relationships among New Left academics, corporate marketers, racial bloc activists, and pandering politicians. Each stands to profit handily from the continued salience of the ethno-racial pentagon in American consciousness and the All Fool's Day glorification of ancestral blood that Ralph Ellison observed in the 1970s. As a result, each is instrumental in the reproduction of race. For transnational corporations, the ethno-racial pentagon fuels a multi-billion dollar industry. Magazines, television programs, radio shows, clothes, food, hair products, medicine, and dozens of other products all come racially tailored. n225 The goods are so readily consumed, in the words of Richard Ford, because they "offer an easy solidarity, a V.I.P. pass to belonging ... [,] companionship, distinction, a sense of purpose, a link to history." n226 The beauty in the prefabricated identities for corporations is that the tie to the blood magic of the underlying five categories is so malleable that the products can retain the power of the primordial and endlessly shift in substance. Without anyone thinking twice of it, a consumer's prefabricated black identity one year of Hammer pants and Malcolm X hats becomes baggy jeans and do-rags the next. Consumerist culture undeniably extends beyond racial identity, n227 but its pervasiveness in this context seems particularly troubling because it entrenches racial scripts, encouraging individuals like Crystal Chambers to internalize racial caricatures as personal identities. n228 The wholesale commodification of racial identity also exaggerates differences among communities, sending a pernicious message that "the status distinctions that divide society ... are defined ... by real and profound differences in lifestyle, morality, temperament, norms and aesthetic sensibility." n229 As a result, interracial cooperation and mixing, as well as attempts at establishing a common culture, are misperceived as futile. It is a grave irony that a community that popularized abrasive critiques of capitalism and fought racial segregation now capitalizes on the commodification of racial identity and constitutes a pillar of a race-industrial complex. The phrase "New Left" refers to a class of youthful activists who fought racial segregation in the 1960s affiliated with minority racial power movements in the wake of the Vietnam War, and then stridently advanced multiculturalism, particularly in the realm of higher education, from the 1970s onward. n230 The New [*170] Left is fully institutionalized, having long ago ended its protests in Berkeley's People's Park to post articles on Berkeley Electronic Press. n231 Its adherents have every incentive to ossify racial categories as it cements their legacy and lines their pockets. Admittedly, this group's efforts to challenge conformist impulses in mainstream culture and expand the range of voices attended to in academia were laudable. Unfortunately, though, as Professor Ford puts it, "the best "multicultural thought' traveled less well than the excesses of the worst." n232 Among the latter can be included standpoint epistemology and ethnic theme houses. n233 The common thread is erecting boundaries to solidify provincial communities and insulate them from meaningful exchange with each other and the mainstream. The interests of the business elite dovetail nicely with the initiatives of the New Left. The business elite train adolescent minds to form "authentic" identities by donning the mass-produced apparel of racial difference. Once college-aged, the New Left supplies them with an ideology dictating that they have not just a choice to flaunt a prefabricated identity of racial difference, but a right to do so in a bloc of similarly colored classmates. n234 The implicit business-academic partnership produces students with a strong sense of self, a cause to fight for, and a connection to the primordial. Unfortunately, it does so by prompting the internalization of racial stereotypes and depriving the country of the benefits of an amalgamated culture and a unified citizenry.

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“We’re living in more chains today -- through lockdowns, ankle bracelets, halfway houses,… -- than we were in the early 1800’s. That’s something to think about.” Frank W. Wilderson, ‘14