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February 04, 2022 Appellate Issues | Winter 2022

Mirror, Mirror on the Wall: Dismantling Bias by Acknowledging Its Historical Facts

By M. Courtney Koger

Professor Gloria J. Browne-Marshall, Professor of Constitutional Law at the John Jay College of Criminal Justice, City University of New York, presented the session on dismantling bias. Professor Browne-Marshall opened the session by reminding everyone that we all have favorites (Hogan’s Heroes or Gilligan’s Island, for example?) and biases. She then introduced the concept of Sankofa, a Ghanaian term meaning that we must go back to go forward. She pointed out that we rarely – if ever – see the entire story of anything, so we have to fill in the blanks for ourselves.

Professor Browne-Marshall used herself as an example, noting that she lives in New York but is a fifth-generation Midwesterner. Knowing only one of those facts leaves a blank space that a stranger might not be able to fill in on their own, yet both facts are part of her history. She told a story of how, when she was living in Alabama for a short time and called someone up north, that person assumed she was stupid merely because she was in Alabama, an example of regional bias. The person on the other end of the telephone line did not know that she had lived in New York very recently and made incorrect assumptions based on her location.

Professor Browne-Marshall also shared a personal story of bias that affected her. She told the story of being in college and staying up all night to finish her law-school applications. The next morning, she proudly gave the sealed envelopes to the usual mailman, telling him they were her law-school applications. When she heard nothing from any of the law schools, she contacted them, only to discover that not one of those applications had arrived in the mail. Did the mailman throw them in the trash because he couldn’t see a black woman as a lawyer? If so, he failed, for instead of giving up, she applied to another school and was accepted.

Professor Browne-Marshall then highlighted some facts often omitted from history books and classes. She began with the story of Queen Nzingha Mbande of Ndongo and Matambu (in what is now Angola). Queen Nzingha (1583-1663) lived when Portuguese explorers began moving into Africa. This warrior queen, when she went to negotiate a treaty with the Portuguese, found that the Europeans had chairs for themselves, but only a mat on the floor for her. Recognizing this attempt to force her into a weaker position, Queen Nzingha summoned her servants, who knelt down and offered her a seat on their backs so that she could negotiate as an equal. She then spent much of the rest of her life fighting the Portuguese, who refused to honor their treaty obligations.

The first Africans were brought to the Virginia colony in 1619 – before the Mayflower arrived in Massachusetts. At the time, there were no laws in the colony providing for slavery, but indentured servitude was common. Yet African servants were treated differently than white servants. She pointed to the case of John Punch. In 1640, three indentured servants fled their master. They were captured and returned by bounty hunters. Punch was given to his master for life, but the two white servants merely had their terms of servitude extended. Yet, around the same time, African-Americans in Virginia could still own property and even have indentured servants of their own.

Next, Professor Browne-Marshall outlined some of the laws enacted to create the legal framework around enslavement in America. In 1662, Virginia passed a law holding that children of enslaved mothers and “Christian” (meaning white European) fathers had no right of inheritance. Contrary to slavery as it had existed historically in other cultures (e.g., ancient Greece), Virginia legislated that a child’s status would be that of its mother, not of its father. In 1669, Virginia enacted “An Act About the Casual Killing of Slaves.” This law provided that killing enslaved persons while disciplining them would not be deemed a felony. In 1680, Virginia enacted another law, prohibiting self-defense by enslaved persons, providing for punishment in the form of lashing.

Professor Browne-Marshall reminded the audience that the U.S. Constitution contains a fugitive-slave clause. And, of course, the Constitution also has the infamous three-fifths clause, counting enslaved persons as only three-fifths of a person. Even after the Civil War – in which more than 100,000 Blacks fought for the Union – the Constitution allows slavery as punishment for those convicted of a crime. Thus, the Convict Lease System came into being, where convicted Blacks could be used as slave labor. The need for labor led to the enactment of so-called “Black Codes,” which outlawed actions like being out after dark, or more than 2-3 Blacks standing together in public, etc. The arrests tended to peak around planting and harvest times, when the need for labor was most urgent.

Professor Browne-Marshall defined enslavement as “the ability to work people for free by law.” The Black Codes and Convict Lease System were as much a form of enslavement as the pre-Civil War institution of slavery had been.

Professor Browne-Marshall noted that the past cannot remain buried forever. She pointed to the 2018 discovery of nearly 100 bodies at a Texas construction site. Officials now believe those remains were the bodies of Blacks forced into labor after the Civil War. She also explained that an African-American burial ground was discovered in New York. Bodies there included those of children as young as age 3, some of whom already showed physical injuries to their spines from carrying heavy weights.

She asked the audience to consider these facts from American history, many of which have not been taught or talked about in textbooks or classes. She asked how each person’s view of American society that was formed without such vital historical evidence could be complete or accurate.

Professor Browne-Marshall invited the audience to think about how today’s systems might be continuing legal practices first enacted some 400 years ago. She reminded the audience that dismantling bias must begin inside each person and thus challenged everyone to look within. She quoted Frederick Douglass, who wrote “If there is no struggle, there is no progress.” Having given this history, she asked what each person would ask of themselves.

In her words, “What will you demand of yourself?”

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M. Courtney Koger


M. Courtney Koger is a Partner at Kutak Rock LLP in the Kansas City office. She focuses her practice on insurance coverage and business litigation, including employment, IP and contract disputes. She also focuses on appellate practice, handling cases in multiple jurisdictions.