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Student Work
Race, Racism and the Law
Spring, 2012
Thesis
The United States takes pride in being a melting pot where equality among citizens is considered a basic tenet in our society. The United States, however, has a history of exclusion and discrimination in its educational system. Universities were reserved for White American males only. White American women, African American men, Native American men, Latino men, and minority women have had to fight their way into universities. As a result of this history of exclusion, a problem arises with regard to institutionalized racism in American education and the curriculum in our institutions of higher learning. Students generally have very little or no knowledge of the real history of the United States, especially with regard to Native Americans, African Americans, and other minority groups. Law schools, in particular, lack a focus on civil rights, human rights, and justice. Thus, law students should be exposed to the role the law plays in perpetuating discrimination through the implementation of mandatory first-year curriculum that engages students in a critical examination of race and gender issues in American law.
Statutes
- 42 U.S.C § 2000d (1964). (Title VI of the Civil Rights Act of 1964)
- 42 U.S.C § 2000e (1964). (Title VII of the Civil Rights Act of 1964)
Regulation
- 28 C.F.R. § 50.3 (1964).
Cases
- Alexander v. Sandoval, 532 U.S. 275 (2001)
- Brown v. Bd. of Ed. of Topeka, Shawnee County, Kan., 347 U.S. 483 (1954)
- Regents of U. of California v. Bakke, 438 U.S. 265 (1978)
Law Review Articles
- Carolyn Copps Hartley, Ph.D. & Carrie J. Petrucci, Ph.D., Practicing Culturally Competent Therapeutic Jurisprudence: A Collaboration Between Social Work and Law, 14 Washington University Journal of Law & Policy 133, (2004).
- Cruz Reynoso, Cory Amron, Diversity in Legal Education: A Broader View, A Deeper Commitment, 52 Journal of Legal Education 491, (2002).
- David Aaron DeSoto, Ending the Conquest Won Through Institutionalized Racism in Our Schools: Multicultural Curricula and the Right to an Equal Education, 1 Hispanic Law Journal 77, (1994).
- Gwendolyn Zoharah Simmons, Racism in Higher Education, 14 University of Florida Law Journal & Public Policy 29, (2002).
- Joe R. Feagin & Bernice McNair Barnett, Success and Failure: How Systemic Racism Trumped the Brown v. Board of Education Decision, 2004 University of Illinois Law Review, (2004).
- Juan F. Perea, Richard Delgado, Angela P. Harris, and Stephanie M. Wildman. Thinking About Race and Races: Reflections and Responses Race and Races: Cases and Resources for A Diverse America., 89 California Law Review, (2001).
- Morrison Torrey, Actually Begin to Satisfy ABA Standards 211(a) and 212(a): Eliminate Race and Sex Bias in Legal Education, 43 Harvard Civil Rights-Civil Liberties Law Review 615, (2008).
- Morrison Torrey, You Call That Education?, 19 Wisconsin Women's Law Journal 93, (2004).
- Robert A. Williams, Jr., Do You Believe in the Rule of Law?, 89 California Law Review, (2001).
- 26 Chicana/o-Latina/o Law Review 183.
Other
- Bradley, Karen. The Incorporation of Women into Higher Education: Paradoxical Outcomes. Sociology of Education. Vol. 73, No. 1 (Jan 2000), 1-18.
- Hoffman, Diane M. Culture and Self in Multicultural Education: Reflections in Discourse, Texts, & Practice. American Educational Research Journal. Vol. 33, No. 3, 545-569.
- Panter, A.T., Daye, C.E., Allen, W.R., Wightman, L.F. and Deo, M. Everyday Discrimination in a National Sample of Incoming Law Students. Journal of Diversity in Higher Education 1, 67-79.
Annotations
Statutes
42 U.S.C § 2000d (1964). (Title VI of the Civil Rights Act of 1964). Total pages read: 1
Title VI covers the prohibition against discrimination in programs receiving federal financial assistance. According to Title VI, “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination in any program receiving Federal financial assistance” (42 U.S.C. § 2000d). One of the enforcement provisions in Title VI authorizes the federal government to threaten the withdrawal of financial assistance if federal officials or the courts determine that institutional officials engaged in unlawful discrimination. The other enforcement provision in Title VI is that individuals can sue universities. Although there is no specific language in the Act granting awards of monetary damages, there is an implied right of private action for compensatory damages. Title VI has had a significant impact in cases dealing with equal educational opportunities for students of all races and the implementation of affirmative action programs. Law schools receive federal funding so it is important to adhere to Title VI regulations. WC=171
42 U.S.C § 2000e (1964). (Title VII of the Civil Rights Act of 1964). Total pages read: 1
Title VII covers equal employment opportunities. Title VII forbids employers, public and private, with 15 or more employees from discriminating against employees and prospective employees or applicants on the basis of race, color, national origin, religion, and sex. Title VII applies to hiring, discharge, transfer, promotion, demotion, compensation, and “terms, conditions, or privileges of employment” while also addressing other employment issues, including sexual harassment, maternity and religious leave, and retaliation for filing Title VII complaints. It is important to note, however, that Title VII allows officials at colleges or universities to employ individuals on the basis of sex, national origin, or religion if such characteristics are a bona fide occupational qualification necessary for their normal operations. In terms of institutional racism and implementing curriculum that does not demonstrate bias towards minorities and women, this may include the need for hiring minority professors and employees to achieve that purpose. If this can be found to be a bona fide occupational qualification, hiring minority faculty will not violate Title VII. WC=168
Regulation
28 C.F.R. § 50.3 (1964). Total pages read: 1
Section (a) of 28 C.F.R. § 50.3 states, “Where the heads of agencies having responsibilities under Title VI of the Civil Rights Act of 1964 conclude there is noncompliance with regulations issued under that title, several alternative courses of action are open. In each case, the objective should be to secure prompt and full compliance so that needed Federal assistance may commence or continue.” Section (c) states that “this statement is intended to provide procedural guidance to the responsible department and agency officials in exercising their statutory discretion and in selecting, for each noncompliance situation, a course of action that fully conforms to the letter and spirit of section 602 of the Act and to the implementing regulations promulgated there under.” These particular sections are important because they basically give funding agencies huge flexibility in responding to instances of discrimination. Although Title VI provides funding termination, termination is not mandatory under the Act. Rather, the Act provides other means authorized by law to effectuate compliance with the statute.
Cases
Alexander v. Sandoval, 532 U.S. 275 (2001).
Martha Sandoval brought a class action suit to enjoin the Alabama Department of Public Safety from administering state driver's license examinations only in English. Sandoval argued that the English-only policy violated the Department of Justice regulation because it had the effect of subjecting non-English speakers to discrimination based on their national origin. The Alabama Department of Public Safety is a recipient of federal financial assistance so it is subject to Title VI of the Civil Rights Act of 1964. The issue in the case was whether private individuals were able to sue to enforce disparate impact regulations under Title VI of the Civil Rights Act of 1964.
The Supreme Court held that plaintiffs can sue under the intentional discrimination provisions in Section 601 of Title VI. However, plaintiffs cannot bring lawsuits under the disparate impact regulations promulgated by Federal agencies under Section 602 of Title VI; there is no private right of action to enforce disparate-impact regulations promulgated under Title VI. Nevertheless, persons may still file administrative complaints with Federal agencies under the Title VI regulations.
*If a student brings forward a claim for discrimination and violation of Title VI, they can sue under intentional discrimination provisions; they cannot bring a private right of action to enforce disparate-impact regulations.
Brown v. Bd. of Ed. of Topeka, Shawnee County, Kan., 347 U.S. 483 (1954).
This case held that the segregation of children in public schools solely on the basis of race, even though the physical facilities and other tangible factors may be equal, deprives minority children of equal educational opportunities, and amounts to a deprivation of the equal protection of the laws guaranteed by the Fourteenth Amendment to the Federal Constitution. The Court held that the opportunity to education is a right which must be available to all on equal terms and the doctrine of “separate but equal” has no place in the field of public education; separate educational facilities are inherently unequal.
*Although schools may be officially desegregated, they nevertheless remain effectively segregated due to institutionalized racism in American education and racial bias in school curriculum. Moreover, there are a growing group of parents who are removing their children today from integrated schools and placing them in immersions schools because they believe that only separate can be equal because racism in schools has not been eliminated.
Regents of U. of California v. Bakke, 438 U.S. 265 (1978).
In this case, a white male applied to medical school and his application was rejected. He brought an action against the University of California challenging the legality of the school’s special admissions program in which 16 of 100 positions in the class were reserved for “disadvantaged” minority students. The standard the court relied on was that “racial and ethnic distinctions of any sort are inherently suspect and call for the most exacting judicial examination.” These suspect classifications are subject to strict scrutiny and can only be justified if they further a compelling government purpose and no less restrictive alternative is available. The Court ultimately held that the attainment of a diverse student body is a constitutionally permissible goal for an institution of higher education. However, ethnic diversity is only one element in a range of factors that a university may properly consider in attaining the goal of a heterogeneous student body.
*In Bakke, the Court found the state’s interest in diversity in higher education to be compelling. Many scholars argue today that the ridding of affirmative action programs in some jurisdictions is even more reason for law schools to review their approaches for achieving diversity. If affirmative action is diminished, minority enrollment will diminish. Thus, law schools will have to come up with alternatives to race-conscious admissions policies in order to satisfy ABA standards and achieve a diverse student body. Law schools should create a learning environment with a focus on multiculturalism and diversity in order to attract minority students.
Law Review Articles
Carolyn Copps Hartley, Ph.D. & Carrie J. Petrucci, Ph.D., Practicing Culturally Competent Therapeutic Jurisprudence: A Collaboration Between Social Work and Law, 14 Washington University Journal of Law & Policy 133, (2004).
In this article, the author discusses how there should be increased attention to race, ethnicity, and culturally competent practice in the lawyer-client relationship. The author discusses how multiculturalism can encompass a broad range of unique characteristics among groups of people, including race, gender, age, sexual orientation, social class, ethnicity, and religion. The author focuses her article on race and how white law students face challenges in becoming more culturally competent. This is because they enjoy most of the privileges in our society and these privileges tend to be unconscious privileges. Moreover, the author discusses how white students are more resistant to examining issues of racism and privilege.
Most importantly, the author correctly points out that racial disparities are rampant in our legal system and the majority of legal professionals are members of the white dominant culture. Racial minorities are unfortunately disproportionately represented in the criminal justice system. The author argues that studying issues of race are relevant to help law students become more culturally competent. Thus, the author advocates for a focus on race in classroom dialogue because race is one of the largest hurdles to clear when assistant lawyers in becoming more culturally competent. WC=194
Cruz Reynoso, Cory Amron, Diversity in Legal Education: A Broader View, A Deeper Commitment, 52 Journal of Legal Education 491, (2002).
The authors of this article set out to examine the goals of law schools to achieve diversity in enrollment. This article included several arguments for why law schools should implement different teaching pedagogies and address the barriers minorities face. The authors argue that most law schools have not met their goals for a diverse student population that is reflective of the demographic makeup of the community. Furthermore, the authors state that law schools have failed in creating an environment in which diversity thrives, and law school environments continue to be hostile and hinder the intellectual development of women and minorities. The authors correctly point out that peers, teachers, and administrators who adhere to racist stereotypes and sexist behavior create hostile law school environments.
The authors assert that diversity has a positive impact on the educational experiences of students and that a student’s exposures to diverse classmates that come from unique backgrounds develop his/her cultural competence. These skills are crucial for the practice of a law in a diverse society. The authors suggest that law school should take a more comprehensive approach to meet their goals of diversity by not solely focusing on enrollment of a diverse student body. Rather, law schools should focus on the barriers women and minorities face once in law school by changing teaching pedagogies; methods such as problem-based learning and working in teams could be more beneficial than the traditional adversarial Socratic method. The authors argue that infusing the law school curriculum with more practical skills can be more conducive to a diverse student body that may learn in different ways. WC=265
David Aaron DeSoto, Ending the Conquest Won Through Institutionalized Racism in Our Schools: Multicultural Curricula and the Right to an Equal Education, 1 Hispanic Law Journal 77, (1994).
The author of this article sets out to examine multiculturalism, multicultural curriculum, and the right to an equal education. This article did a good job of comparing our schools with schools abroad and arguing for a model of education that combats institutional racism. The author discusses the effects of European-based curriculum on minorities. The author argues that education may be the root of racial stereotypes, racial perceptions, and negative self-images. The authors discuss the inequities and everyday challenges that minority students face in school and how educators are often the source of racism. As a society, the author argues that we need to recognize that our institutions are often racist and not as neutral as they may seem.
The author articulates that our society has assumed that racism ended with Brown v. Board of Education. However, the author states that “equality” is a white man’s illusion. The author argues for a multicultural model of education that emphasizes multiculturalism and states that this model of education is the only solution to combat institutional racism under our laws today. The author uses Britain as an example of a country that has embraced cultural diversity and tolerance in the classroom and does not encourage immigrants to conform to British culture. The author stresses that our country, like Britain, should take an approach that emphasizes multiculturalism because it is essential to the psychological sense of identity of minorities in the classroom.
Gwendolyn Zoharah Simmons, Racism in Higher Education, 14 University of Florida Law Journal & Public Policy 29, (2002).
The author of this article sets out to examine the history of racism in higher education and the present day problem of racism in higher education. This article did an excellent job of examining the history of the exclusion of minorities from higher education and the implementation of school curriculum that reflects the real history of the United States. The author begins by articulating how universities used to be reserved to upper-white class American males only and every other minority group has had to fight for entry into universities since then. The author argues that this practice of exclusion and discrimination in America’s educational system is an example of racism that is deeply embedded in our society. Throughout our history, minorities have been excluded from full participation in education. The author argues that this white dominance is perpetuated by the acquiescence of the majority of the population and this creates and defends institutional racism.
The author uses the attack on the implementation of affirmative action programs in higher education as an example of the majority’s hostility towards minorities and their civil rights. The author also correctly points out that racially motivated incidents on college campuses demonstrates that racism is not confined to groups such as the Ku Klux Klan but can also be attributed to the highest ranked universities in the nation. The author concludes by saying that our main problem concerns the curriculum in higher education. The author, a professor herself, teaches a course entitled “Race, Religion, & Rebellion.” She states that the students constantly as her why they never before heard or learned the information taught in her course. She states that her students, for the most part, have no knowledge of the real history of the United States and its treatment of Native Americans, African Americans, and other minority groups. The author advocates for the implementation of courses similar to the one she teaches in institutions of higher education to teach students the true history of the United States and the struggle for justice among minority groups. WC=341
Joe R. Feagin & Bernice McNair Barnett, Success and Failure: How Systemic Racism Trumped the Brown v. Board of Education Decision, 2004 University of Illinois Law Review. (2004).
Professors Feagin and Barnett set out to examine how systemic racism has trumped the Brown v. Board of Education decision. This article gives a very detailed analysis for reasons why we need to advocate for a change in curriculum that reflects multicultural education. The authors argue that Brown has not been successful in ridding American education of institutional racism. Although schools are officially desegregated, they remain segregated today due largely to racial bias in school curriculum. The authors explain how systemic racism involves the subordination of minorities by white Americans and the presence of racial stereotyping, prejudices, and discriminatory practices at institutions of learning. The authors argue that racial hostility and discrimination remain in desegregated schools, and the only thing desegregation accomplished was to change the demographic mix of students.
The authors present a study that found that racial bias in teachers’ expectations significantly affects student performance; white teachers expect more from their white students than from their black students. Moreover, the authors present another study that found that teachers are less supportive of black students than white students; white students got more feedback and were encouraged to participate in class. The authors suggest that this discriminatory behavior on behalf of teachers is directly linked to student achievement. Further, the authors argue that those students who feel stereotyped will not perform as well as they would if they were not being stereotyped. Finally, the authors conclude by saying that schools have not successfully integrated minorities and their history and experiences into curriculum. Thus, the authors conclude that there needs to be a significant change in curriculum that reflects multicultural education.
Juan F. Perea, Richard Delgado, Angela P. Harris, and Stephanie M. Wildman. Thinking About Race and Races: Reflections and Responses Race and Races: Cases and Resources for A Diverse America., 89 California Law Review, (2001).
In this article, the authors argue how when students are not exposed to the racial dynamics in law courses, issues of race and racism that should be raised are ignored. The authors urge us to understand the relevance of race to legal education by considering the vast amount of law that emerges when race and racism are used as organizing principles. For example, law school curricula could include a separate course on Indian Law, Civil Rights, Equal Protection, etc. The author also argues that the complexity of race supports the fact that we need to give a voice to all of the omissions of race from our law school curriculum. We need to provide history and resources to students that will enable them to talk about issues of race and the law and to be better equipped to practice law for historically under represented persons in the future.
Morrison Torrey, Actually Begin to Satisfy ABA Standards 211(a) and 212(a): Eliminate Race and Sex Bias in Legal Education, 43 Harvard Civil Rights-Civil Liberties Law Review 615, (2008).
The author of this article sets out to explain how we need to eliminate race and sex bias in legal education by actually satisfying ABA standards that mandate non-discrimination and equality of opportunity by requiring law schools to demonstrate a commitment to providing opportunities for the study of law by members of underrepresented groups. The author of this article, at times, seems to have quite a cynical tone and argues that law schools should actually make classrooms welcoming. She explains how law schools are filled with portraits of old, white men and how this could potentially convey the message that success is for old white men only. She argues that law schools should create an environment that is inspirational to all people. She argues, for example, to create an “Abolitionist Room” that has portraits of Fredrick Douglas, Harriet Tubman, and others. Changes like these are a way to welcome minorities who have achieved great things for our country through legal avenues.
Most importantly, the author argues for a change in first year curriculum that includes a required first year course centered on issues of subordination and privilege. Rather than providing this course as an elective for second and third year law students, she argues that these kinds of courses should be required and all students should be exposed to the role the law plays in perpetuating discrimination. She also argues that courses such as “Race, Racism, and U.S. Law” and “Sexuality and the Law” should be a part of mandatory curriculum because these classes will provide the necessary tools students need to have to be good lawyers. The author also advocates that all professors should be encouraged to talk about race and gender issues in all of their classes as it is extremely relevant to the practice of law. Finally, the author argues for a pedagogy that does not result in bias against minorities and women. She argues that the Socratic method has never been shown to be an effective pedagogy but rather has shown to have a negative impact on minorities and women. She argues that this pedagogy does not stimulate learning and often results in a loss of confidence and lower performance. She concludes by advocating for a teaching pedagogy that will benefit all different types of learners and will encourage confidence in students. WC=387
Morrison Torrey, You Call That Education?, 19 Wisconsin Women's Law Journal 93, (2004).
The author of this article takes a very critical approach to legal education today. She argues that rampant gender bias exists in our legal institutions and that mainstream legal pedagogy is full of flaws and bad teaching. In response to gender bias studies, she asserts that nothing has changed and probably nothing will change in legal education. The author harshly criticizes that the Socratic method ignores the students in the class that are not following along the questions in their head or participating. In reality, these students are busy being relieved for not being the victim of the Socratic method and desperately hoping they will not be the next student to be called upon.
The author also discusses how women constitute almost half of all law students today. In addition, the minority population is substantial. Given these two facts, she argues that study after study shows that the Socratic method does not work well for what is now the majority of students. Moreover, both women and minority men, in particular, report a loss of confidence in classes that utilize the Socratic method. This loss of confidence translates into poorer performance. Thus, the author advocates that we need a change in our pedagogy because it is inexcusable for law professors to not re-evaluate how they are teaching and changing their methods so that they do not just benefit one group and detrimentally affect other groups. WC=234
Robert A. Williams, Jr., Do You Believe in the Rule of Law?, 89 California Law Review, (2001).
The author of this article is a law professor who teaches federal Indian Law. He discusses how there are a few casebooks that offer a race perspective on American law. The author defines this race perspective as employing the concept of race and racism in our society as a tool to examine and understand how the dominant white society applies the rule of law to minority racial groups in America. Frustratingly, the author discusses how it is difficult to find many law school casebooks that adopt a race perspective on American law and this has had a direct effect on law professors being able to teach and design courses that talk about racism and the law. The author of this article describes his own experiences teaching rom a race perspective in American law and argues that this perspective requires you to tell the story of racial minority groups as a critical chapter in the legal history of racism in America.
Most importantly, the author describes how teaching his students from a race perspective on Indian law has allowed him to teach his students to question their beliefs about the meaning of the rule of law in America. This way, his students learn about how the legal tradition in our history was to justify the conquest of “savage” people and his students learn to examine critically how this legal tradition justified the Europeans’ superior rights of sovereignty in the New World. Finally, the author argues how a race perspective has helped his students develop an awareness of the complex relationship between law, power, dispossession, and violence in the legal history of our country. As my thesis argues, the author of this article also argues how exposing students to race perspectives in the law school curriculum leads to many valuable benefits such as being able to better appreciate the complexities of achieving racial justice for any racial minority group in the United States. The author ends by advocating for a course that employs multiple race perspectives on American law, which will close the gaps to most law students’ legal education.
26 Chicana/o-Latina/o Law Review 183. Total pages read: 19
The authors of this article set out to examine the concept of internalized racism. They define internalized racism as the conscious and unconscious acceptance of a racial hierarchy where whites are consistently ranked above “people of color.” The authors argue that the role of schools in perpetuating internalized racism within “students of color” has rarely been researched. The authors set out to examine the racialized experiences within classroom pedagogy, curriculum, and unequal school resources. The authors argue that curriculum is the foundational tool in the transfer of knowledge in the classroom and directly shapes pedagogy. The authors argue that it is crucial that curriculum is evaluated to make sure that it is not perpetuating racism in our society. The authors assert that a majority of schools in the United States implement curriculum that reinforces the hierarchical status-quo of white supremacy. Thus, the race and cultures of non-whites are taught to be inferior. This article supports my position that we need to implement curriculum in our law schools that focuses on race and gender issues. The authors state that the constant bombardment of messages that are embedded in our curriculum about whites being superior and non-whites being inferior can directly affect minority students and contribute to internalized racism. I agree with the author’s assertion that although schools claim to reflect multiculturalism, this has consistently not been true practice.
Other
Bradley, Karen. The Incorporation of Women into Higher Education: Paradoxical Outcomes. Sociology of Education. Vol. 73, No. 1 (Jan 2000), 1-18.
In this article, the author discusses how gender differentiation has declined surprisingly little. The author examines the ways in which higher education structures and policies affect women and how changes in those structures and policies improve women’s experiences. The author further discusses how the occupational distribution of women and men has changed surprisingly little over time. This research is related to my thesis statement because with the implementation of curriculum that reflects the struggles women have faced in the law and a focus on how gender affects the law today, the experiences of women in law school would be much more positive. This would, in turn, lead to higher enrollment by women into law schools that will not be turned off by the traditional teaching pedagogies that tend to benefit white males. On that same note, the implementation of curriculum that reflects the history race has had on the law would attract more minority students. WC=155
Hoffman, Diane M. Culture and Self in Multicultural Education: Reflections in Discourse, Texts, & Practice. American Educational Research Journal. Vol. 33, No. 3, 545-569.
In this article, the author discusses contemporary American multiculturalism from an anthropological perspective. She argues that contemporary American multiculturalism is needed in order to advance research and promote more genuine forms of multicultural teaching and learning. With a focus on multicultural education, we can focus on developing models for learning culture that can promote transformation in a way that we conceptualize and practice education. In addition, we can research what forms of teaching are more effective and what teaching methods are not effective. This study is directly focused to my thesis because with an implementation of multicultural and race focused legal education, we would promote an understanding of each other that would help each of our skills in becoming more effective lawyers for the multicultural society that we live in. Moreover, it will promote a dialogue among colleagues in the law school about the impact race had on the law in our history. WC=153
Panter, A.T., Daye, C.E., Allen, W.R., Wightman, L.F. and Deo, M. Everyday Discrimination in a National Sample of Incoming Law Students. Journal of Diversity in Higher Education 1, 67-79.
The authors of this article argue that law students are at a greater risk for stress related health problems. This annotation focuses on how everyday discrimination of law students affects learning and success. Based on research, the authors found that “engagement, social support, and perceptions of academic success” were directly linked to an enhanced satisfaction of life among law students. The authors discuss the fact that everyday discriminatory experiences are associated with negative mental and physical health, less positive cross-racial counseling relationships, and alienation in educational environments for underrepresented racial and ethnic groups. The authors conclude that smaller and more diverse law schools with high quality class discussions were more conducive to life satisfaction. When law students were able to participate in class discussions and engage with their classmates, law students were more satisfied with their lives. Finally, when students felt support from their academic community, they were more successful. WC=151
