Excerpted From: Neil G. Williams, A Reflection on Integration, 17 Revista de Estudios Criticos del Derecho 35 (2021) (28 Footnotes) (Full Document Requested)

NeilGWilliamsMany argue that America is at its greatest degree of polarization since the Civil War. Whereas the fault lines that gave rise to the Civil War were primarily geographical, our divisions now are in large part racial, ethnic, and political, pitting a predominantly white Republican Party against a Democratic Party that appeals to the vast majority of voters of color. As I write this Essay in December 2019, the rancor among Americans is at a fever pitch. Incivility has become the norm in politics, starting at the very top with the current President--Donald Trump. Many of the recipients of his barbed attacks are people of color. But the deleterious impact of the Trump administration's policies extends far beyond the persistent use of intemperate language and hate speech; those policies have often been directed with laser-like precision to harm the interests and needs of people of color. One needs to look no further than the Trump Administration's border policies. Innumerable asylum seekers of color have been separated from their families, while even more have been forced to live in conditions of squalor. Too many have died in American custody due to the failure to provide these migrants basic medical care. To be fair, the atmosphere of hate and intolerance that currently envelops this nation did not start with Donald Trump. One can make a case that racial hatred has continually scarred our national development from the very start and that we have only lulled ourselves into ephemeral dreams, at times along the way, that we have made greater progress than we actually have. As an example, the post-racial America we yearned for when Barack Obama was first elected President never came to fruition.

Around a century ago a series of racial massacres across the United States laid the twentieth-century foundation for the hatred that still animates twenty-first-century American society. The decade of the 2010s has been particularly rife with racial and ethnic violence. White nationalists have been emboldened by their allies in the White House. In 2017 marchers affiliated with the Klu Klux Klan and Neo-Nazis despoiled the beautiful campuses of Charlottesville, Virginia, goose stepping with indifference to a young freedom fighter's loss of her life in the ensuing mayhem and violence. With guns so easily accessible in the America of the 2010s, mass murderers have left trails of bodies in (among many other places) a Black church, a Jewish synagogue, and a Mexican-American shopping center. Some white supremacists openly call for a race war. And their vile manifestoes have to be taken seriously; some experts fear that the nation might well be on a trajectory towards a second civil war.

Some modern developments have further stoked racial and ethnic tension. Technological advances (including the smart phone and the rise of social-media sites) have provided new platforms for racists to spew hate speech virtually around the world. In addition, there has been broad-based dissemination of numerous videos showing unarmed Black people being shot or maimed by white police officers in questionable circumstances. As one would expect, documented instances of less lethal acts of overt discrimination are even more prevalent nowadays. The internet is replete with videos showing whites calling the police on people of color for engaging in legal activities. On top of everything else, people of color are continually subjected to all the quotidian acts of discrimination that are not formally documented or on video--indignities that are beyond the reach of the law, but which nonetheless wear down the soul.

This descent into the abyss of racial and ethnic hatred is by no means an America-only phenomenon. Across Europe and Asia ethnic and racial tensions are likewise on the rise. In late 2019, for example, the German Chancellor Angela Merkel spoke at the site of the Auschwitz death camp, where she lamented the increasing numbers of apologists for Nazi crimes who (much like neo-Confederates in our country) seek to sanitize history by distorting it. Like America, Germany is experiencing a troubling rise in hate crimes against its Jewish citizens. Similar ethnic or racial attacks are taking place in jurisdictions across the European and Asian continents. A recent law passed by the Indian parliament grants immigration preferences to non-Muslims, thereby inciting violent confrontations between the Indian government and members of India's Muslim community. In another part of Asia, the Rohingya Muslims of Myanmar are arguably one of the most persecuted ethnic minorities in the world today.

It is in the context of this world-wide devolution into hatred that a debate has emerged whether America is truly an “exceptional” exemplar of morality and human rights. In Part I of this Essay I argue that American exceptionality on a moral plane is real, and it is rooted in the nation's largely untapped potential to live up to its founding principles of equality and inclusion. When America is at its best, it provides a map for citizens across the globe to push for change in their own national governments. It follows, then, that America's exceptionality emanates from the lofty aspirations of its founding principles, particularly the goal of equality expressed in the Declaration of Independence and the value of inclusion inherent in the Latin maxim “e pluribus unum”--out of many one. American moral exceptionalism, however, isn't so much in the actualization of these founding principles; from its inception in the shroud of slavery to the persistence of racism today, America has always fallen short of its professed national values. Rather, in an analogy to the laws of physics, American exceptionalism is inherent in the vast potential (stored) energy inherent in its lofty goals, but this potential energy is transformative only when it is unleashed as kinetic energy in the form of real, meaningful progress towards the goal of recognizing the basic dignity of every human being. This kinetic energy can start a chain reaction when Americans model positive behaviors that inspire freedom advocates in this country and around the world to push their societies to become less hateful and more equal and inclusive.

Professor Steven Ramirez and I recently introduced the term “deracialization” into the lexicon. In Part I, I will devise a working definition of “deracialization,” one which grows out of its rootedness in the core American concepts of equality and inclusiveness. Effectively bringing Americans together across racial fault lines will require no less than reverse engineering the racist actions of state, local, and federal governments that helped separate us by race and ethnicity in the first place. Our present state of disunification constitutes a dire national emergency; and, accordingly, courts should recognize that deracialization constitutes a compelling state interest for purposes of Constitutional jurisprudence. Regrettably, American courts (in particular the Supreme Court) have chosen to pursue ahistorical approaches to racial separation and have used syllogistic reasoning to erect unnecessary barriers to many good-faith attempts to undo the pervasive effects of past and still ongoing conduct that undermine racial equality and unity.

In Part II, I will focus on two of the most well-known tools that governments have used to chip away at racial and ethnic segregation--integration and (its close cousin) diversity. In the course of the discussion, I will show that approaches to integration and diversity have been, in part, hamstrung by judicial requirements that place strict-scrutiny limitations on the ability of officials to consider race when trying to dismantle edifices built on race, limitations that would largely disappear under a deracialization-as-a-compelling-state-interest approach.

Part III starts with a brief review of the sociological and scientific studies that establish childhood as the optimal time for a human being to be placed in diverse environments. This, in turn, renders the continuing legal and social resistance to effective school integration all the more unfortunate. I close Part III with a reflection on my childhood experiences with racism and integration while growing up in Atlanta in the civil-rights era of the 1960s and early 1970s. Coming to Atlanta for the 2019 LatCrit conference sparked a series of memories and reflections that made the meeting especially poignant for me.

Part IV closes this Essay with a reflection on the special significance of the 2019 LatCrit conference being held in Atlanta, paradoxically a cradle of both the old confederacy and the civil rights movement. For reasons detailed in Part IV, I conclude that holding this special meeting in Atlanta was a coup de maître in that the conference itself represented a microcosm of Dr. King's and John Lewis's “beloved community.”

[. . .]

There is special significance, for me, in the 2019 LatCrit conference being held in Atlanta, paradoxically a cradle of both the old confederacy and the civil-rights movement. I recall a time when many streets in Atlanta bore the names of those who fought for the confederate cause. Prominently displayed all over the city, back in those days, were plaques that heralded civil-war battles in prose that made it seem the South had won. Over the years the vestiges of the confederacy are being erased; for example, streets that were once named for civil-war generals are now named for civil-rights luminaries. But the Atlanta LatCrit sessions were squarely focused on the reality that new powers are rising to take the confederacy's place in the eternal battle between those who wish to oppress and those who oppose oppression. There is no time to relish temporary victories because new challenges are emerging all around us.

The work done in Atlanta by LatCrit scholars is helping to push the world ever closer to the promised land of a deracialized world. Through our shared knowledge, love, respect, and comradery, we were transformed for a few special days into a microcosm of Dr. King's and John Lewis's “beloved community.”

Professor Neil Williams teaches contracts and commercial law courses at Loyola University Chicago.