Friday, April 20, 2018

Race and Racial Groups

Institutional Practices and the African American Boy

 Theresa Glennon

excerpted from: Evaluating Institutional Practices and the African American Boy , 5 Journal of Health Care Law and Policy 10-67, 10-14, 66-67 (2002)(393 Footnotes)

The media portrays young black men as dangerous, hostile and out of control. While many African American boys do succeed, statistics about black youth reveal serious achievement gaps between them and their Caucasian counterparts in school and high rates of arrest and referral to juvenile court. Research often focuses on family and cultural "deficits," looking to blame higher rates of single-parent households, poverty and an oppositional peer culture for these deeply troubling statistics.

The statistics presented in this article show that some of the same social institutions charged with nurturing children actually divert many African American boys from paths to successful development. Instead, these institutions label, discipline, segregate, punish, and confine them. Too often, they crush the souls of black boys. This article explores the statistics available to confirm the negative treatment that African American boys encounter in our educational, mental health and juvenile justice systems. The data collected here supports three main conclusions. First, African American boys are much more likely to be identified as disabled or delinquent than other children, including African American girls. Second, they are more likely than other children to be placed in educational, mental health, and juvenile justice programs that exert greater external control and deliver fewer services despite identified needs. Third, these negative experiences lead African American boys to stay away from or exit these institutional settings. These statistics are stark and disturbing. Unexplained by family structure, poverty, or culture, they reveal widespread institutional and personal racism.

I chose to become a lawyer in the belief that law can be an instrument for progressive social change. Unfortunately, the hopeful era of civil rights litigation, initiated by the NAACP and culminating in Brown v. Board of Education, is over. By now, judicial protection of a still separate and unequal status quo through doctrinal developments under the Equal Protection Clause and the Civil Rights Act of 1964 is clear. Scholars have documented the deepening divide between racial inequality and formalist interpretations of civil rights law that largely help white people protect entrenched advantages. Recent analyses of civil rights laws such as TitleVI of the Civil Rights Act of 1964 are apt to focus on their limitations rather than their promise. Work for racial equality, however, cannot stop.

Ideally, the racial disparities documented here would, on their own, spur educators, mental health professionals and juvenile justice officials to act affirmatively to evaluate and change the intertwining conditions of structural and unconscious racism that so negatively affect African American boys. However, given the ongoing and unchanging nature of these disparities, it appears necessary that our laws prohibiting racial discrimination be used as tools to force officials to change their institutional practices. Law invariably expresses our societal values. Thus, a turn to the legal system can be effective through the force of judicial decrees, and by the creation of social norms that value racial equality. While too often antidiscrimination law has been used to "create[ ] the illusion that racism is no longer responsible for the condition of the black underclass," legal challenges to racial inequalities remain one part of the "multi-dimensional groundwork" in the work for racial equality.

For the programs examined in this article, the most promising legal avenue involves the federal regulations developed to enforce Title VI of the Civil Rights Act of 1964. These regulations prohibit recipients of federal funds from engaging in policies and practices that have a racially disparate impact on African American boys and other minority children. However, the right of private plaintiffs to seek redress under the Title VI regulations is under siege. A recent decision by the U.S. Supreme Court restricted access to the courts to enforce the regulations. Lower federal court decisions in some jurisdictions have gone even further, completely eliminating private parties' access to judicial relief for violations of the Title VI disparate impact regulations. These regulations are vitally important to addressing racial discrimination by our publicly funded institutions, institutions that hold great power in the lives of our youth. Advocates must therefore challenge judicial restrictions and demand that Congress keep open this vital avenue for protecting civil rights.

The analysis in this article supports the importance of maintaining access to the courts to challenge policies and practices that negatively affect African American boys and other minority children. This article re-evaluates Title VI of the Civil Rights Act, and in particular its implementing regulations, to explore its promise as an effective tool to require the social institutions of childhood to effectively educate and aid African American boys. After documenting the dramatic disparities in the treatment of African American boys, this article examines doctrinal developments in the contexts of disability, language, minority and gender discrimination to suggest that a more vigorous approach to Title VI can help protect African American boys from the pervasive discrimination they face in our social institutions. Advocates have been breathing new life into Title VI by using it to attack structural racism in the form of school I suggest that advocates also focus on the biased practices within schools, mental health and juvenile justice programs that further unconscious racism, and challenge the interrelated practices of structural and unconscious racism. Advocates must work both to ensure access to the courts to challenge policies and practices that have a racially disparate impact on minorities and to ensure that private litigants effectively employ the disparate impact regulations to diminish the harsh disparities described here.

Finally, this article outlines more recent legislation that responds to the striking disadvantages black youth experience in our education, mental health and juvenile justice systems and suggests using those provisions to advocate change in institutional practices as well as placing more such requirements into law through legislative advocacy.

This Nation has tolerated a shockingly high level of disparate treatment of racial and ethnic minorities. As this article clearly shows, African American boys have been excessively subjected to practices in our public education, mental health and juvenile justice systems that label, discipline, segregate, punish and confine them. When African American boys enter our schools, mental health and juvenile justice programs, the programs they receive should be equally effective and designed to enable them to achieve the academic success, good mental health and rehabilitation that are the goals of those programs. In order to accomplish this goal, advocates should argue for a strong interpretation of the Title VI disparate impact regulations to clearly attack the unstated racial norms of these institutions and the accompanying structural and unconscious racial discrimination that so impede African American boys. At a time when access to the courts to enforce the Title VI disparate impact regulations is under siege, advocates must act forcefully to protect that access and to utilize the regulations to their fullest in the service of racial equality.

Introduction to the Vienna Declaration and Program of Action of Africans and African Descendants

Vernellia R. Randall

Vernellia R. Randall, Introduction to the Vienna Declaration and Program of Action of Africans and African Descendants, 8 Washington and Lee Race and Ethnic Ancestry Law Journal 7 (Spring, 2002) (35 Footnotes omitted)


The Vienna Declaration and Program of Action was the result of a historical meeting of Africans and African descendants that took place on April 28 to 29, 2001 in Vienna, Austria. At that time about 135 African and African-descendant non-governmental organizations and individuals gathered to plan for the third United Nation World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance (WCAR) to be held in Durban, South Africa from August 31 to September 7, 2001. Prior to that meeting, Africans and African descendants met during the First World Preparatory and the Regional Preparatory Conferences (PrepCon) in Europe, Africa, Asia and America. From these meetings it became clear that the interests of African and African descendants were not being adequately acknowledged in the preliminary meetings and conferences.


Since its creation, the United Nations has struggled to find measures to combat racial discrimination and ethnic violence. This commitment is reflected in the adoption of a number of resolutions, conventions and declarations, including:

1. Convention of the Prevention and Punishment of the Crime of Genocide - 1948

2. Prevention and Punishment of the Crime of Genocide

3. Declaration on the Elimination of All Forms of Racial Discrimination - 1963

4. International Convention on the Elimination of All Forms of Racial Discrimination - 1965

5. March 21 was designated International Day for the Elimination of Racial Discrimination - 1966

6. International Convention on the Suppression and Punishment of the Crime of Apartheid - 1973

7. First Decade to Combat Racism and Racial Discrimination1973-1982

8. First World Conference to Combat Racism and Racial Discrimination Geneva, 1978

9. Second World Conference to Combat Racism and Racial Discrimination Geneva, 1983

10. Second Decade for Action to Combat Racial Discrimination 1983-1992

11. Third Decade to Combat Racism and Racial Discrimination 1994-2003

In December 1997, the General Assembly called for a third world conference against racism. In 1999, the General Assembly's Third Committee decided that the conference should be preceded by regional meetings. Each regional conference was charged with drafting a declaration and a plan of action on racism that would ultimately be synthesized into a single set of documents to be ratified in Durban, South Africa in 2001. The regional meetings were in Strasbourg, France; Santiago, Chile; Dakar, Senegal; and Tehran, Iran. In addition, the committee also decided to have two preparatory inter-governmental meetings at the United Nations in Geneva.

Previously, the two other world conferences, held in 1978 and 1983, had almost exclusively focused on apartheid in South Africa. The proposed third world conference had no such limitations. Apartheid had ended in South Africa in 1994, and the General Assembly expanded the conference to include not only issues of racism and racial discrimination, but also xenophobia and related intolerance. Consequently, the groups and issues vying for attention included an extreme range of diversity: the Dalits, the Russian Panthers, the Romas, the Sikhs, the Palestinians, the Jews and migrants and migrant workers.

With the broad range of constituents struggling for attention, African and African descendants from Asia, Europe, North America, South America and the Caribbean attended the Vienna Conference because of a deep concern that the preparations for the third WCAR, had given little attention to issues of anti-black racism. For instance, at the November 2000 meeting of the European Preparatory Conference for European Non-Governmental Organizations (NGOs) and state governments in Strasbourg, France, there was very little discussion of anti-black racism. The situation was complicated by the European Union's position (both governmental and non-governmental organizations) regarding the term race. Specifically, the European Union (EU) adopted the position that addressing the problems of different races was inappropriate because there was only one race - the human race. Thus, according to the EU, the notion of racism as a theory based on the so-called superiority of a race or ethnic group over another is no longer pronounced, [although] theories of supposedly insurmountable cultural differences between groups can be observed. The EU acknowledged the problems of racism, racial discrimination and xenophobia, but was reluctant to address the problems of African descendants. This reluctance did not extend to other groups. Consequently, the EU's Declaration and Program of Action mentions Romas, Jews, and Immigrants. Amazingly, the European Declaration and plan of action makes no specific mention of African and African descendants or of anti-black racism.

Concerned about this lack of focus, a strong statement was issued by people of African descent at the Americas Prepcon in Santiago, Chile in December, 2000. However, subsequent documents from other WCAR-related meetings, most notably the Inter-sessional meeting in Geneva in March 2000, continued to ignore issues related to Africans and African descendants, most specifically, anti-black racism.

This is not to say that there was a total absence of any discussion around any issue of concern to Africans and African descendants. Compensation (or reparations) owed to descendants of victims of the slave trade, slavery and colonialism was a central issue of contention at the first World Prepcon in Geneva in February, 2000. Governments from North America and Western Europe clashed with African states and NGOs over whether compensation should be included under the theme of effective remedies for victims of racism. There was also disagreement over declaring slavery and the slave trade crimes against humanity. Thus, controversy over compensation and over declaring slavery a crime against humanity, coupled with the absence of focus on anti-black racism, left many Africans and African descendants feeling as though issues of importance to them would not be fairly represented in the final document emerging from WCAR. The one exception to this lack of attention was the America's Declaration and Plan of Action which included a number of sections specifically on African descendants and the African Report which addressed the issues of Africans. These circumstances set the stage for the Vienna Meeting of Africans and African Descendants.


The Vienna Meeting was not the first time Africans and African descendants had met to address the globalization of Anti-Black Racism. Pan-African meetings date back as far as 1900 when the first Pan-African Conference was held in London, England. After World War I and through the 1920s, African American scholar and activist W. E. B. Du Bois organized four Pan-African Congresses held in various sites around Europe. In 1945, the fifth Pan-African Congress, which Du Bois participated in but did not organize, was held in Manchester, England. In 1974 and 1996, the sixth and seventh Pan-African Congresses broke with history and were held on the continent of Africa, in Tanzania and Uganda, respectively. In all of these gatherings, issues of racism, colonialism, the legacy of slavery and the slave trade and Black Diaspora unity were addressed:

[the] exploitation of the continent of Africa and African people ... has driven the engine of capitalism from slavery, colonization to present day globalization. It is ... [the] exploitation of the continent of Africa and African peoples that has resulted in the particular form of anti-Black racism that is pernicious and marginalizes Africans and African descendants socially, economically and politically.

Thus, the Vienna Meeting represented a continuation of those discussions, concerns and issues echoed at previous efforts to bring together Africans and people of African descent.

The Vienna Meeting was called by the Rev. Ihueghian Victor, of the Association for Human Rights and Democracy in Africa (AHDA) and Chinedu Ene, of the Petadisis Community Organization. The co-chairs of the conference were Amani Olubanjo Buntu and Sithabile Mathe, both of the Afrikan Youth In Norway. The stated purpose of the meeting was to raise important issues and to seek a consensus about these issues in preparation for the WCAR and beyond. The meeting included a number of presentations on issues confronting Africans and African descendants including:

1. transatlantic slave trade and declaring it a crime against humanity;

2. compensation or reparations for victims of the slave trade, colonialism and present injustices related to racism;

3. lack of overall mention of people of African descent in WCAR preparatory declaration and plan of action documents;

4. action to combat racism;

5. legacy of apartheid, colonization and slavery;

6. migrants, asylum seekers and refugees;

7. education and employment;

8. health and health care;

9. youth; and

10. women.

On the second day of the meeting, a coordinating committee was elected to carry the work of the gathering to the Second World Preparatory Conference held in Geneva at the end of May, 2001. The members of this Committee included Vernellia Randall and Mildred Bahati, both from the United States of America, Eleonora Wiedenroth of Germany, Marian Douglas of Macedonia, Cikiah Thomas of Canada, Mutombo Kanyana of Switzerland and Annie Davies of Nigeria. This committee was specifically charged with drafting a Declaration and Program of Action.


During the Vienna Meeting, a small-group process was utilized to brainstorm items that should be included in the Declaration and Program of Action. Each small group presented their list to the entire body where the items were discussed. The drafting committee headed by Professor Vernellia Randall generated a draft that was circulated via email to all the attendees at the Vienna Meeting. After redrafting, the document was circulated to the African Caucus Group. This group included Africans and African descendants who attended any of the preparatory meetings and included several hundred individuals throughout the Black Diaspora. After feedback, comment and redrafting, the final document was adopted by consensus via e-mail.


An English version of the declaration was distributed at the Second World Preparatory Conference and was a foundational document for much of the lobbying activity that occurred. French, English and Spanish translations were widely distributed at the World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance. The Vienna Conference and the resulting Vienna Declaration played a pivotal role in the work of Africans and African descendants at the World Conference Against Racism, Racial Discrimination, Xenophobia, and Related Intolerance. As noted in the final Report of the Africans and African Descendant Caucus:

A major development in the ability of Africans and African Descendants to independently organize was the international African and African Descendants Conference [(AADC)] held in Vienna, Austria in April, 2001. This historic conference, attended by representatives covering most of the Black World, was convened by Africans and African Descendants in a concerted effort to refute the efforts at Strasbourg and the attempts by the Western European countries to subvert the work and unity of the Africans and African Descendants manifesting itself in the international and regional preparatory meetings. The Vienna Conference produced a groundbreaking declaration which eloquently articulated and delineated many key positions which would be read and advocated by African and African Descendants throughout the WCAR process. Without question the Vienna Declaration's unique and unadulterated, sharpened, and keenly intellectual expression of the key issues and programmes of action for Africans and African Descendants was used as guidance by the Drafting Committee of the AADC and would inform the content of many of the position papers of the AADC.

Professor of Law, University of Dayton, School of Law, B.S.N. 1971 University of Texas, M.S.N. 1978 University of Washington, J.D. 1987 Lewis and Clark College Northwestern School of Law.

On Becoming Black American

 Devon W. Carbado

excerpted from: Devon W. Carbado, (E)racing the Fourth Amendment, 100 Michigan Law Review 946-1044, 947-964 (March, 2002)(374 Footnotes)

I remember the very day I became colored.  Zora Neale Hurston

If there were no black people here in this country, it would have been Balkanized . . . . But in becoming an American, from Europe, what one has in common with that other immigrant is contempt for me--it's nothing else but color . . . . So in that sense, becoming an American is based on an attitude: an exclusion of me. Toni Morrison


It's been almost two years since I pledged allegiance to the United States of America--that is to say, became an American citizen. Before that, I was a permanent resident of America and a citizen of the United Kingdom.

Yet, I became a black American long before I acquired American citizenship. Unlike citizenship, black racial naturalization was always available to me, even as I tried to make myself unavailable for that particular Americanization process. Given the negative images of black Americans on 1970s British television and the intra-racial tensions between blacks in the U.K. and blacks in America, I was not eager, upon my arrival to the United States, to assert a black American identity. My parents had taught me "better" than that.

But I became a black American anyway. Before I freely embraced that identity it was ascribed to me. This ascription is part of a broader social practice wherein all of us are made intelligible via racial categorization. My intelligibility was skin deep. More particularly, it was linked to the social construction of blackness, a social construction whose phenotypic reach I could not escape. Whether I liked it or not, my everyday social encounters were going to reflect standard racial scripts about black American life.

And in fact they did. I was closely followed or completely ignored when I visited department stores. Women clutched their purses upon encountering me in elevators. People crossed the street to avoid me. The seat beside me on the bus was almost always racially available for another black person. Already I wanted to be a black American no more.

But that racial desire was at odds with my racial destiny. There was nothing I could do to prevent myself from increasingly becoming a black American--and more particularly, a black American male. Resistance was futile. The politics of distinction or self-presentation strategies with the intra-racial signification, "I am not really like other black people, I am the new Negro," was not going to help. Out of racial necessity, my black identity developed one racial interpellation after another. My collective dis-eminence was inevitable.

Nor could I count on colorblindness to protect me. That veil of ignorance became only too transparent. Colorblindness, I would come to learn, is precisely what prevents African Americans from becoming black no more. Its racial ideology casts all of us in the ongoing national drama, "An American Dilemma."

Like many black Americans, I developed the ability to cope with, manage, and sometimes even normalize certain micro-aggressive racial encounters. I have come to view them as incidents in the life of a black person, part of the racial mystique of life--the thing that has a name: the colorline. Indeed, today I consider it an aberration every time I manage to escape the normality of interpersonal, everyday racism.

I have not, however, been able to normalize my experiences with the police. They continue to jar me. The very sight of the police in my rear view mirror is unnerving. Far from comforting, this sight of justice (the paradigmatic site for injustice) engenders feelings of vulnerability: How will I be over-policed this time? Do I have my driver's license, insurance, etc.? How am I dressed? Is my UCLA parking sticker visible? Will any of this even matter? Should it?

And what precisely will be my racial exit strategy this time? How will I make the officers comfortable? Should I? Will I have time--the racial opportunity--to demonstrate my respectability? Should I have to? Will they perceive me to be a good or a bad black?

These questions are part of black people's collective consciousness. They are symptomatic of a particular colorline anxiety: a police state of mind. This racial dis-ease is inflicted on black people ostensibly to cure the problem of crime. Its social effect, however, is to make white people feel good about, and comfortable with, their own racial identity and to make black people feel bad about, and uncomfortable with, being black.

My first racial episode with over-policing occurred only two weeks after I purchased my first car: a $1500 yellow, convertible Triumph Spit Fire. I had been living in America for a year; my brother had been in the States for under a month. It was about nine p.m., and we were on our way to a friend's house.

Our trip was interrupted by the blare of a siren. We were in Inglewood, a predominantly black neighborhood south of Los Angeles; a police car had signaled us to pull over. One officer approached my window; the other stationed himself beside the passenger door. He directed his flashlight into the interior of the car, locating its beam, alternatively, on our faces. The characters: two black boys. The racial stage was set.

"Anything wrong, officers?" I asked, attempting to discern the face behind the flashlight. Neither officer responded. Against my racial script, I inquired again as to whether we had done anything wrong. Again, no response. Instead, one of the officers instructed, "Step outside the car with your hands on your heads." Effectively rehearsing our blackness, we did as he asked. He then told us to sit on the side of the curb. Grudgingly, we complied. Though we were both learning our parts, the racial theater was well underway.

As we sat on the pavement, "racially exposed," our backs to the officers, our feet in the road, I asked a third time whether we had done anything wrong. One officer responded, rather curtly, that I should "shut up and not make any trouble." Perhaps foolishly, I insisted on knowing why we were being stopped. "We have a right to know, don't we? We're not criminals, after all."

Today I might have acted differently, less defiantly. But my strange career with race, at least in America, had only just begun. In other words, I had not yet lived in America long enough to learn the ways of the police, the racial conventions of black and white police encounters, the so- called rules of the game: "Don't move. Don't turn around. Don't give some rookie an excuse to shoot you." No one had explained to me that "if you get pulled over by the police "[n]ever get into a verbal confrontation . . . Never! Comply with the officer. If it means getting down on the ground, then get down on the ground. Comply with whatever the officer is asking you to do." It had not occurred to me that my encounter with these officers was potentially life threatening. This was one of my many racial blind spots. Eventually, I would develop my second sight.

The officer discerned that I was not American. Presumably, my accent provided the clue, although my lack of racial etiquette--mouthing off to white police officers in a "high-crime" area in the middle of the night-- might have suggested that I was an outsider to the racial dynamics of police encounters. My assertion of my rights, my attempts to maintain my dignity, my confronting authority (each a function of my pre-invisibility blackness) might have signaled that I was not from here and, more importantly, that I had not been racially socialized into, or internalized the racial survival strategy of, performing obedience for the police. From the officer's perspective, we were, in that moment, defiant ones.

The officer looked at my brother and me, seemingly puzzled. He needed more information racially to process us, to make sense of what he might have experienced as a moment of racial incongruity. While there was no disjuncture between how we looked and the phenotypic cues for black identity, our performance of blackness could have created a racial indeterminacy problem that had to be fixed. That is, to the extent that the officers harbored an a priori investment in our blackness (that we were criminals or thugs), our English accents might have challenged it. At best, this challenge was partial, however; racial inscription was inevitable. The officer could see-- with his "inner eyes" --that we had the souls of black folk. He simply needed to confirm our racial stock so that he could freely trade on our blackness.

"Where are you guys from?"

"The U.K.," my brother responded.

"The what?"



"Yes, England."

"You were born in England?"


"What part?"


"Uhmm . . . ." We were strange fruit. Our racial identity had to be grounded.

"Where are your parents from?"

"The West Indies."

We were at last racially intelligible. Our English identity had been dislocated, falsified--or at least buried among our diasporic roots.

"How long has he been in America?" the officer wanted to know, pointing at me.

"About a year," my brother responded.

"Well, tell him that if he doesn't want to find himself in jail, he should shut the fuck up."

The history of racial violence in his words existentially moved us. We were now squarely within a sub-region of the borders of American Blackness. Our rite of passage was almost complete.

My brother nudged me several times with his elbows. "Cool it," he muttered under his breath. The intense look in his eyes inflected his words. "Don't provoke them."

By this time, my brother needn't have said anything. I was beginning to see the white over black racial picture. We had the right to do whatever they wanted us to do, a reasonable expectation of uncertainty. With that awareness, I simply sat there. Quietly. My brother did the same. We were in a racial state of rightlessness, effectively outside the reach of the Fourth Amendment. The experience, in other words, was disciplinary. Although I didn't know it at the time, we were one step closer to becoming black Americans. Unwillingly, we were participating in a naturalization ceremony within which our submission to authority reflected and reproduced black racial subjectivity. We were being "pushed" and "pulled" through the racial body of America to be born again. A new motherland awaited us. Eventually we would belong to her. Her racial burden was to make us Naturalized Sons.

Without our consent, one of the officers rummaged through the entire car--no doubt in search of ex post probable cause; the other watched over us. The search yielded nothing. (No drugs.) (No stolen property.) (No weapons.) Ostensibly, we were free to leave.

But what if the search had resulted in the production of incriminating evidence? That is, what if the officers' racial suspicions were confirmed? Would that have rendered their conduct legitimate? Would they thereby become "good" cops? Would that have made us "bad" blacks--blacks who confirm negative stereotypes, blacks who are undeserving of public sympathy, blacks who discredit the race?

One of the officers asked for my driver's license, which I provided. My brother was then asked for his. He explained that he didn't have one because he had been in the country only a few weeks.

"Do you have any identification?"

"No. My passport is at home." We both knew that this was the wrong response.

The officers requested that we stand up, which we did. Pursuant to black letter law, or the law on the street for black people, they forced us against the side of the patrol car. Spread-eagled, they frisked and searched us. (Still no guns.) (Still no drugs.) (Still no stolen property.)

The entire incident lasted approximately twenty minutes. Neither officer provided us with an explanation as to why we were stopped. Nor did either officer apologize. By this time, I understood that we were not in a position to demand the latter, even as I did not understand that, in some sense, the entire event was racially predetermined. The encounter ended when one of the officers muttered through the backof his head, "You're free to go."


"I said you can go now."

And that was that. The racial bonding was over (for now). I wanted to say something like, "Are you absolutely certain, Officer? We really don't mind the intrusion, Officer. Do carry on with the search. Honest." But the burden of blackness in that moment rendered those thoughts unspeakable. Thus, I simply watched in silence as they left.

The encounter left us more racially aware and less racially intact. In other words, we were growing into our American profile. Still, the officers did not physically abuse us, we did not "kiss concrete," and we managed to escape jail. Relative to some black and Blue encounters, and considering my initial racial faux pas--questioning authority/asserting rights--we got off easy.

Subsequent to that experience, I have had several other incidents with the police. In this respect, and like many black people, I am a repeat player. While each racial game bears mention (as part of a broader informal naturalization process that structured the racial terms upon which I became American ), I shall recount only one more here. This encounter, too, occurred on my way to American citizenship. And, like the first, it facilitated my (intra)racial integration into black American life.

Two of my brothers and my brother-in-law had just arrived from England. On our way from the airport, we stopped at my sister's apartment, which was in a predominantly white neighborhood. After letting us in, my sister left to perform errands. It was about two o'clock in the afternoon; my brothers wanted some tea. I showed one of them to the kitchen. After about five minutes, we heard the kettle whistling. "Get the kettle, will you." There was no answer. My other brother went to see what was going on. Finally the kettle stopped whistling, but he never returned. My brother-in-law and I were convinced that my brothers were engaged in some sort of prank. "What are they doing in there?" Together, we went into the kitchen. At the door were two police officers. Guns drawn, they instructed us to exit the apartment. With our hands in the air, we did so.

Outside, both of my brothers were pinned against the wall at gunpoint. There were eight officers. Each was visibly edgy, nervous and apprehensive. Passersby comfortably engaged in conspicuous racial consumption. Their eyes were all over our bodies. The racial product was a familiar public spectacle: white law enforcement officers disciplining black men. The currency of their stares purchased for them precisely what it took away from us: race pleasure and a sense of racial comfort and safety. This racial dialectic is a natural part of, and helps to sustain, America's racial economy, an economy within which racial bodies are differentially valued, propertized, and invested with so cial meaning. No doubt, our policed presence confirmed what the on-looking racial interpellaters already "knew": that we were criminals.

The officers wanted to know whether there was anyone else inside. We answered in the negative. "What's going on?" my brother-in-law inquired. The officer responded that they had received a call from a neighbor reporting that several black men had entered an apartment with guns. "Rubbish, we're just coming in from the airport."

"Do you have any drugs?"

"Of course not. Look, this is a mistake." The officers did not believe us. We were trapped inside their racial imagination --the heart of whiteness. (Quite possibly they were as well.) The body of evidence-- that is to say, our race--was uncontestable. We were uncovered. At the very least we were race traffickers. Our only escape, then, was to prove that, in a social meaning sense, we were not what, phenotypically, we quite obviously were: black.

"May we look inside the apartment?"

"Sure," my brother in-law "consented." "Whatever it takes to get this over."

Two officers entered the apartment. After about two minutes, they came out shaking their heads, presumably signaling that they were not at a crime scene. In fact, we were not criminals. Based on "bad" information-- but information that was presumed to be good--they had made an "error." "Sometimes these things happen." At least, they were willing to apologize.

"Look, we're really sorry about this, but when we get a call that there are [black] men with guns, we take it quite seriously. Again, we really are sorry for the inconvenience." With that apology, the officers departed. Our privacy had been invaded, we experienced a loss of dignity, and our blackness had been established--once more--as a crime of identity. But that was our law- enforcement cross to bear. In other words, the police were simply doing their job: acting on racial intelligence. And we were simply shouldering our racial burden: disconfirming the assumption that we were criminals. No one was really injured. Presumably, the neighbors felt a little safer.

My eyes followed each officer into his car. As they drove off, one of them turned his head to witness the after-spectacle: the four of us (racially) traumatized in the gunned-down position they had left us. Our eyes met for a couple of seconds, and then he looked away. It was over. The racial transaction--routinized social power freely expended upon black bodies--was complete. Another day in the life, for the police and for us.

Simple injustice.

We went inside, drank our tea, and didn't much talk about what had transpired. Perhaps we didn't know how to talk about it. Perhaps we were too shocked. Perhaps we wanted to put the incident behind us--to move on, to start forgetting. Perhaps we needed time to recover our dignity, to repossess our bodies. Perhaps we knew that we were in America. Perhaps we sensed that the encounter portended a racial taste of things to come, and that this experience of everyday social reality for black Americans would become part of our invisible life. Perhaps we understood that we were already black Americans, that our race had naturalized us. Perhaps we knew that this naturalization was fundamentally about race and place, a project in social positioning that rendered us the racial embodiment of social transgression.

We relayed the incident to my sister. She was furious. "Bloody bastards!" She lodged a complaint with the Beverly Hills Police Department. She called the local paper. She contacted the NAACP. "No, nobody was shot." "No, they were not physically abused." "Yes, I suppose everyone is alright."

Of course, nothing became of her complaints. After all, the police were "protecting and serving." We, like other blacks in America, were the unfortunate but necessary casualties of the war against crime. We were impossible witnesses to police abuse. Eventually, we would learn that within America's racial environment, policed black identity is a natural and national resource. It is the raw material for a nation-building project to make America feel safer--ostensibly for all of us.

Race and the States' Use of Police and Military Force

 Gerald Jerome Smith

Excerpted  From of States' Use of Police and Military Force to Arrest, Detain, and Confine American Citizens Because of Race, 27 Oklahoma City University Law Review 451-473, 451-455 (Spring 2002)

Over eighty years ago, one of the worst race riots in American history was surreptitiously concealed underneath the charred rubble that was once the flourishing Greenwood District, located in the City of Tulsa, Oklahoma. Today, the Tulsa Race Riot Commission and other state and city officials continue to speculate as to how many men, women, and children were killed or had their property destroyed by fire between May 30 and June 2, 1921. It is hoped that these extended committee discussions will determine and finalize the issue of reparations, which will inevitably leave a long-lasting impact on all citizens of Oklahoma.

First, this article will present a proposal for use in analyzing allegations against the City of Tulsa for purported unlawful acts carried out by Tulsa's chief of police and his officers against African Americans living in the Greenwood District. Next, a practical methodology will be used to examine prior legal reasoning regarding the impending liability imputed to Oklahoma through the conduct of its National Guardsmen from Tulsa, Muskogee, Wagoner, and Oklahoma City who responded to the riot. Finally, two controversial United States Supreme Court decisions rendered in 1944, which interpreted the Fifth and Fourteenth Amendments of the United States Constitution in relation to the curtailment of the rights of a single racial group, will be discussed.

II. Background

On Monday morning, May 30, 1921, a nineteen-year-old Black man, Dick Rowland, allegedly assaulted a young white divorcee, Mrs. Sarah Page. By 3:15 that afternoon, the Tulsa Tribune had distributed its newspaper with an article entitled, "Nab Negro for Attacking Girl in an Elevator." "Less than an hour after the Tribune story reached the streets, there was talk of a lynching 'to avenge the purity of a white woman."'

Early Tuesday morning, May 31, 1921, young Rowland was arrested by two Negro police officers and placed in the city jail. Subsequently, he was moved to the county jail for security. Between the hours of 7:00 p.m. and 7:30 p.m., three hundred white men had formed around the county jail. An attempt was made to enter the jail and take Rowland out. At 9:30 p.m., "(t)wenty-five or thirty Negroes, some of whom were reportedly armed, approached" the county jail. Moments later, gunfire was exchanged between the two gathered groups and one Negro was wounded.

In the early morning hours of June 1, Tulsa's chief of police, sheriff, and district judge asked for help from the Governor of Oklahoma, J.B.A. Robertson, by Western Union Telegram. The telegram unambiguously described the urgency of the situation in Tulsa. "Race riot developed here. Several killed. Unable handle situation. Request that National Guard forces be sent by special train. Situation serious."

Meanwhile, over five hundred armed local citizens were voluntarily deputized with "special commissions." The word got around that being deputized authorized one to "go out and shoot any nigger you see and the law'll be behind you." Consequently, the local militia was heavily armed with weaponry, including a machine gun and three experienced machine gun operators.

On the morning of June 1, 1921, at 1:46 a.m., Governor Robertson telegraphed orders to the Oklahoma National Guard Adjutant General, Charles F. Barrett, ordering troops to suppress a "Negro Uprising." Over four hours had passed between the triggering event at the county jail and the Governor's activation of the National Guard. Governor Robertson declared martial law throughout Tulsa County by sending a Western Union Telegram to General Barrett stating: "I have declared martial law throughout Tulsa County and am holding you responsible for maintenance of order, safety of lives and protection of property. You will do all things necessary to be done to attain those objects."

At 8:00 a.m., June 1, General Barrett, with approximately 150 Oklahoma City National Guardsmen, witnessed "(t)wenty-five thousand whites, armed to the teeth, (ravaging) the city in utter and ruthless defiance of every concept of law and righteousness." After arriving in Tulsa from Oklahoma City by train, General Barrett and his guardsmen had breakfast. When a concerned white citizen of Tulsa protested about the Oklahoma City National Guards' seeming lack of urgency in the restoration of order, he was arrested and jailed.

"All available National Guardsmen, including companies from Muskogee, Oklahoma City, and Wagoner, who had arrived (in Tulsa by 9:00 a.m.) were stationed in the (N)egro quarter (Greenwood District)." Detachments of guardsmen were scattered throughout the city (Greenwood District) with machine guns ready for action." General Barrett ordered out three companies of National Guardsmen, sending instructions to the commanding officers in nearby towns to rush men there on immediate notice.

According to a New York Times article, men, women, and children were arrested and detained. Detention camps were established for Negroes who had fled from the blazing section of Tulsa that had once been their home. National Guardsmen assisted in rounding up Negroes and segregating them into the detention camps. A National Guardsman described the scene during his tour of Greenwood at 6:30 a.m. on June 1. "I discovered (N)egroes fleeing to the Northeast. We immediately proceeded to overtake them and when overtaken they were commanded to halt and put up their hands, which orders were promptly complied with." Unconfirmed reports described 25,000 white rioters running rampant through Greenwood and National Guard troops using machine guns to shoot Negroes in the streets.

On June 2, the New York Times printed an article with a sub-byline entitled, "Angered Whites Surround Negro Quarter and Set It on Fire." As the Times reported, "(T)he known dead were 77, of whom 9 were whites and 68 (N)egroes. One hundred whites and 300 (N)egroes are estimated to have been wounded, many seriously." However, estimates of those dead ran as high as three hundred, and property loss far exceeded the initial estimate of $4 million.

At some time on June 2, General Barrett issued Field Order Number 4, which decreed that "all able bodied (N)egro men remaining in detention camp at the Fairgrounds and other places in the City of Tulsa (would) be required to render such service and perform such labor as (was) required by the military commission."

After the most devastating riot in Oklahoma history, Tulsa Chief of Police John A. Gustafson was indicted by a grand jury and convicted in Tulsa district court "for failure to take proper precautions for the protection of life and property during the rioting."


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