“Notwithstanding the dark picture I have this day presented…I do not despair of this country. There are forces in operation, which must inevitably work the downfall of (inequity)…I, therefore, leave off where I began, with hope.”
- Frederick Douglas July 4, 1852
In 2015, my daughter was 14 years old and starting her first year of high school. I was newly married, living in a new state, living a new life, excited about new possibilities. As we drove around, she noticed a stark difference in the paving of the road. “Welcome to Brockton,” she said each time we left the smoothly paved roads and largely White population of Holbrock and entered the rocky streets of our mostly minority town. It struck me years later that we were experiencing the evidence of structural racism. “Structural racism refers to “the totality of ways in which societies foster racial discrimination through mutually reinforcing systems.” Presumably, these differences in communities were the results of the wealth gap resulting from redlining and other policies that prevented people of color from gaining generational wealth, resulting in less capacity for communities of color to have communal economic supports. Now close to 10 years later, my work has me fully invested in understanding and reevaluating these experiences.
In 2024, a prevalent message is that we are living in a post racial America. After all some believe that slavery was abolished, Jim Crow ended, the Civil Rights Movement was a success, the need for diversity in colleges is no longer a compelling state interest. Some believe that affirmative action is not needed to create equity for access and opportunity resulting from the badges and incidents of slavery, when we are now a colorblind society, as the playing field is even, time has run out, and we had a Black president. Yet while in 2015, as we drove that rough road, 5,818 single incident hate crimes based on race, ethnicity, religion, and sexual orientation bias were documented in our nation; the latest statistics show that in 2022, hate crimes in America have almost doubled with 11,634 single bias incidents.
In 1865, the Thirteenth Amendment of the US Constitution ended slavery, yet it contained a provision which allowed for the enslavement of individuals to continue for those convicted of crimes. Several states took immediate advantage of these provisions, enacting statutes which were used to subjugate formerly enslaved individuals by arresting them for petty offenses. The prison system then leased these individuals out to work to the very same persons who had formerly enslaved them. Many argue that chattel slavery has been replaced by our prison industrial system. In ABA Resolution 503, “the American Bar Association urges federal, state, local, territorial, and tribal governments to repeal laws that provide an exception to the prohibition of slavery and involuntary servitude through prison labor.” This resolution notes that the US Congress “introduced bills to amend the Thirteenth Amendment to the U.S. Constitution to prohibit the use of slavery and involuntary servitude as a punishment for a crime.” Id. at 3. Still, the law remains. Given that Black People are incarcerated at a rate six-times higher than that of White People, slavery continues, largely for the same population.
The Jim Crow era was plagued with laws and policies limiting the ability of Blacks in America to enjoy the full rights of their citizenship. One of the main mechanisms through which this was done was by restricting access to the polls and preventing Black people from employing their right to vote. The Brennan Center for Justice’s most recent data shows that today there are 322 restrictive bills making it harder for eligible Americans to register, stay on the voter rolls, or cast a ballot in 45 states across the country. A fundamental right to citizenship continues to be impacted across the country, undermining the very democracy that makes America great.
The Civil Rights movement was a period in American history marked by a progression in the expansion and enforcement of the rights of marginalized people who were denied the opportunity to experience the full benefits of citizenship and economic advancement because of systemic discrimination. Several laws were enacted to ensure the protection of people from discrimination. While the Fifteenth Amendment to the US Constitution extended voting rights to Black men, the Civil Rights Act of 1957 guaranteed those voting rights by allowing federal prosecution of anyone who tried inhibit them. The Civil Rights Act of 1964 promised equal employment for all, limited the use of voter literacy tests, and allowed federal authorities to ensure public facilities were integrated. The Voting Rights Act banned all voter literacy tests. The Fair Housing Act prevented housing discrimination. While there is an extensive history concerning the efficacy of these protections, in the last few years, the Supreme Court of the United States of America (SCOTUS) has issued several decisions impacting individual rights.
In Students for Fair Admissions v. President and Fellows of Harvard College, and its companion case Students for Fair Admissions v. University of North Carolina, 600 U.S. 181(2023), SCOTUS held that Harvard and UNC’s admissions policies, which relied in part upon race-based affirmative action, violated the Equal Protection Clause of the 14th Amendment. SCOTUS decided that the proffered reasons set forth concerning why their policies were necessary did not constitute a compelling state interest.
“A compelling state interest is an element of the strict scrutiny test (for)… judicial review of … constitutional rights... An interest is compelling when it is essential or necessary rather than a matter of choice, preference, or discretion” As Justice Stone’s famous footnote four in United States v. Carolene Products Company (304 U.S. 144(1938)) indicated, “legislation should be ‘subjected to more exacting judicial scrutiny’ when it… is ‘directed at particular religious, or national, or racial minorities’—'against discrete and insular minorities’ that are victims of ‘prejudice’” Courts use a higher standard of review when dealing with, among other things, racial minorities. In assessing a compelling state interest, the question becomes whether diversity in the classroom is essential or necessary? Given the state of racial minorities in the country, this question requires an analysis of what diversity in the classroom produces, not just for the institution itself, but in the outcomes for our country, in determining whether the promotion of race-based diversity is merely an admirable goal or compelling.
The Declaration of Independence states, “We hold these truths to be self-evident, that all men are created equal,” but several authors didn’t actually believe that self-evident truth. We cannot fail to acknowledge the reality that despite their talk of equity, our forefathers, several of whom owned enslaved individuals, believed in the superiority of whiteness. The laws at that time bore out that truth, and today, years later, the impact of that truth is still real. Statistics, at every decision-making point in our criminal legal system, show inequities exist to the determent of people of color. Similar inequities in statistics hold true in housing, employment, healthcare, the wealth-gap and many other areas. Are these badges and incidents of slavery? Is ending inequities in our country essential and necessary? Some cities and states have declared racism an epidemic or note the disparities. These are the truths that are self-evident in virtually every system across our country. There are also statistics that demonstrate the benefits of diversity in education, business, healthcare, employment, and many other areas. Diversity in the workforce progresses from diversity in educational spaces. This foundation helps impact these statistics to create a more equitable society, ending the epidemic of racism, which is not merely a lofty goal, it is essential to thrive, reach our full potential, and provide our citizens with full access to their citizenship. These changes begin with equity in educational spaces.
Plessy v. Ferguson’s (163 U.S. 537(1896)) hallmark US Supreme Court decision that ushered in the "separate but equal" doctrine ruled that racial segregation was constitutional. In the great dissent of Plessy, Justice John Marshall Harlan declared, “(t)he white race deems itself to be the dominant race in this country. … But in view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.” Chief Justice John Roberts championed a color-blind reading of the Constitution in Harvard and in Parents Involved v. Seattle, (551 U.S. 701 (2007)) arguing against desegregation, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” While Justice Harlan’s colorblindness doctrine focuses on the inappropriateness of Whites promoting a dominant race position and using the law as support, Justice Roberts’ colorblindness canon discourages the use of the law to address the superiority issue Justice Harlan sought to attend. In Justice Roberts’ colorblindness, the caste or the systems which perpetuate inequities, either don’t exist or don’t matter. Accordingly, we cannot create rules or policies to address or mitigate the impact of these unseen systems. In referencing the separate but equal doctrine established under Plessy v. Ferguson, Justice Roberts notes that the “inherent folly…of trying to derive equality from inequality—soon became apparent” The folly of ignoring the caste that exists in our country by ending policies designed to mitigate that reality seems not to be apparent. Justice Roberts’ colorblindness hampers our ability to bring light to inequities in the criminal legal field because the idea that we should ignore the tangible impacts of race is the prevailing message from our highest arbiter of the law. In the SFFA v. UNC’s dissent, Justice Jackson voiced the "let-them-eat-cake obliviousness" principle saying the “majority…announces 'colorblindness for all' by legal fiat. But deeming race irrelevant in law does not make it so in life."
In the Dred Scott decision (60U.S. 393(1857)), Black Americans were told, by virtue of our bondage, that we could never be American, but bondage made us the most American of all. Black Americans and other marginalized citizens force our country to take a hard look at itself, where it has fallen short of the American Dream and compels it to evolve. Civil Rights’ Laws were required to ensure the rights of marginalized communities who were not given the opportunity to experience the full meaning of citizenship. Now these laws have been used as a weapon against the very people they were designed to protect. ABA Resolution 107 urges that DEI training be a mandatory component of attorney CLEs. As attorneys, we need to fully understand how inequity impacts us, our institutions, organizations, and clients. Whenever we make a conscious decision that proclaims a colorblind, post racial society and fail to acknowledge that our society is replete with systems which perpetuate inequity, we fail to make America just, we perpetuate harm, and we support systems of inequity. Learning our history and how bias impacts us will help create better informed decisions on important issues.
SFFA v. Harvard did not end affirmative action, but it has had a chilling effect on DEI programs as “30 states have introduced or passed more than 100 bills to… restrict or regulate diversity, equity and inclusion initiatives” These bills restricting access to books, censor discussion, forbid the use of diversity, equity, and inclusion as a concept for schools and employers result in changing the history as it is taught for future generations. It is important to note that other SCOTUS decisions exacerbate marginalization. 484 anti-LGBTIQ+ laws restricting access to books, censoring discussions, preventing gender affirming care, limiting protections for youth and criminalizing supportive parents and medical professionals exist. These laws curtail the full rights and benefits of citizenship. They demonstrate how our Country is repeating some of the same issues that the Civil Rights Movement was designed to redress. With the accompanying rise in bias crimes, the terror that marginalized communities experienced during that Movement continues. Nevertheless, according to Equal Employment Opportunity Commission Chair Charlotte Burrows, it remains lawful for employers to implement diversity, equity, inclusion, and accessibility programs that seek to ensure workers of all backgrounds are afforded equal opportunity in the workplace. ABA Resolution 512 urges legal employers to continue considering DEI in their workforce. They advise being thoughtful about DEI programs to ensure they focus on redistribution of resources not on the basis of race, but in an effort to redress the inequities inherent in the formation and of such resources, thus making the scales equitable.
As a country, we have moments in time that hold great promise, where we come together as a nation and reckon with ourselves to inspire us to recognize our shortcomings and honor the potential of “All men are created equal.” Like the death of the 14-year-old Emit Till, the assassination of President Kennedy, the election of Barak Obama, 911, and the Boston Marathon Bombing, the Murder of George Floyd was one such moment. The horrific scene that played out before us as we watched George Floyd struggle for air sparked a movement. As a nation, we responded. This was a reckoning where a society awakened to racial injustice, and people where inspired to take critical steps to address inequity, trauma, and violence. The movement inspired real hope for change. Now, less than 4 years later, promoting diversity, equity, and inclusion is being outlawed and actions to address inequities are wronged.
“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” ignores the reality that racial discrimination is foundational to “All men” and structurally supported in the systems that perpetuate inequities. Structural bias is real and baked into America. The way to stop discrimination on the basis of race is to see the discrimination on the basis of race. Justice requires that we recognize it and do something about it. Sparked by the death of George Floyd, we recognized in our country a desire to do something different. Do not be swayed by the campaign to halt the thoughtful consideration of inequity. Fighting inequity is the foundation of our country. Recognizing when we get it wrong and doing something about it is what makes America great.
There is a fable attributed to Aesop, a Greek storyteller, about a lion who used to prowl a field where four oxen lived. The lion would attempt to attack the oxen and each time they would unite in their defense, turning their tails inward so the lion met their horns in every direction. In time, the oxen began to disagree, and they allowed their disagreement to overcome their good sense. No longer did they recognize the value of working together because they were too consumed by their differences to make space for each other’s perspective. They decided to separate and pasture alone. When the lion attacked, each ox alone could not stand. They all fell. This story is believed to be the original iteration of, “United We Stand,” a battle cry used throughout the centuries.
This country’s founding was intended to elevate freedoms, celebrate differences, and honor diversity. I invoke that battle cry in the hope that, despite our history, we can live up to these principles and unite or be destroyed by the lion.
