New York Law School

Consumer Racial Profiling: The Crime without Redress or Repercussions

America has a very long and documented history of racial profiling against people of color. Discriminatory practices like stop and frisk and poll taxes have been present in this country since the dawn of our government. Although the Civil Rights Act of 1964 aimed to outlaw these forms of discrimination, many of these practices simply morphed into much “subtler” versions of themselves. In particular, the unfair treatment of Blacks by law enforcement and the judicial system has been as present as ever. This continued stain of Black enslavement and repression is evidenced by disproportionately high arrest rates and stricter prison sentences for Blacks, as well as targeted efforts to vilify the Black population. Thanks to the efforts of President Barack Obama, Black Lives Matter, Social Media, and activists throughout the country, many of these issues are now being brought to the political mainstream, yet there still is much to be done in the fight against racial injustice. This fight is especially challenging in the realm of retail and private businesses. You see, just as police and judicial abuse against Blacks represents a legacy of Black legal inequality, Consumer Racial Profiling represents a legacy of public and societal inequality.

Consumer Racial Profiling (CRP) is the act of storeowners and/or their employees following, harassing, or ignoring individuals while they shop in their stores simply due to the shopper’s apparent race. While CRP affects people of all colors and backgrounds, it is Blacks that are most frequently targeted. In a 2004 Gallup poll, 65% of Black respondents reported widespread racial profiling when shopping in malls and stores. Hence why CRP is also known as “shopping while Black”, drawing on the similarities to “driving while Black”. These racially charged interactions often lead to Black people being publicly embarrassed due to unfounded accusations of stealing, being searched for goods that they did not steal, or even being wrongly detained or apprehended by police officers.

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Profiting off of Black Bodies: Racial Prejudice a Major Factor in Denying Pay to Elite Collegiate Athletes

College sports have become an extremely lucrative business. The National College Athletic Association (NCAA) is contracted to receive $7.3 billion from ESPN for game broadcast rights between 2014 and 2026, and $11 billion from CBS and Turner Sports to broadcast “March Madness” basketball games over the next 14 years. In 2013, NCAA Football revenue topped $3.4 billion dollars, making it one of the most profitable sports, college or professional, in North America. To put that into perspective, the revenue generated by NCAA football comes relatively close to the NHL ($3.7 billion), the NBA ($5 billion) and the NFL ($6 billion). With all of this money being generated by college sports, especially basketball and football, the way colleges compensate their athletes has also come under great scrutiny.

Although the revenue generated by college football rivals that of other professional sports, the difference is those leagues have unions, and their players get a large piece of the revenue, while collegiate athletes are “paid” with scholarships that cover tuition, room, and board. When you add up all of the time a collegiate athlete spends practicing, training, playing in games and participating in team events, it is evident that they “work” the equivalent of full-time hours for the universities they play for. The value of these scholarships, when compared to the hours worked and revenue generated, would be considered an insignificant compensation in any other industry or setting. Additionally, the opportunity to obtain a college degree for free, one of the major justifications for not paying collegiate athletes, often takes a back seat to the sport itself.

However, despite the above facts, there is still strong opposition against paying collegiate athletes wages comparable to their work and revenue generated. According to a Washington Post-ABC News poll, 64% of people oppose paying collegiate athletes. To add insult to injury, the NCAA actually restricts athletes from receiving other forms of compensation (such as selling their own merchandise, working at a job that pays them more than $2,000 annually, and accepting monetary help from coaches). Yet this lack of adequate compensation is not considered exploitation in the eyes of the general public. So what could be the reason society feels that these dedicated and hardworking athletes should not receive all of the fruits of their labor? It turns out that reason just may be racial prejudice. Read more

The Flint Water Crisis

When my siblings and I were younger, we each imagined ourselves growing up and becoming someone important. We were always taught to dream big. My sister Syrita always pretended to be a doctor, always pretending to perform life saving surgery. Today she is one. I, on the other hand, imagined standing before a jury giving the closing statement of all closing statements. Today, I am months away from realizing my dream.

Despite the fact that the only black lawyers and doctors my sister and I saw growing up were on TV, Syrita and I, like our other three siblings held onto our dreams, refusing to be woken up or deterred. We relentlessly envisioned ourselves being that next great lawyer or that next great doctor. Little did I realize at that time how lucky my siblings and I were by having the ability just to dream because for the thousands of black children in Flint, Michigan, who for the past two years, have drank, bathed and consumed food cooked in water from their home’s pipes, and the thousands of children yet to be born, State and Local officials may have poisoned those dreams.

Let me shed some light on the situation. Over the past two years, due to the inaction of State and Local officials, children, along with all other residents living in Flint, have been exposed to toxic water. This situation has been coined The Flint Water Crisis. Read more

Black Youth in the Special Education System: Overrepresented or Underrepresented?

For years it has been a truism that, due to over-identification and racial bias, school districts have disproportionately funneled Black students into the special education system. Racial justice advocates, education leaders and researchers have asserted that school districts often use special education placement as a way to segregate black students from their peers. When these students are placed in special or remedial education programs, students of average or above-average intelligence quickly fall behind their peers, creating a wide education gap and obstacles to success that will persist for many years. Read more

New Orleans: 10 Years after Hurricane Katrina

 

Silence filled each and every one of the 72,000 seats, seats in which fans once sat. The turf, once home to gridiron titans competing for glory and excellence, was covered by cots, tables and sleeping bags.   Players replaced by evacuees. Football helmets and shoulder pads replaced by damp clothes and bags filled with priceless memories. The blood, sweat and tears of athletic gods supplanted by the blood of the now homeless, the sweat of the living, and tears for the dead. When stillness finally rested upon the city, more than 1800 lay dead, scattered around the city. Eighty percent of the city was submerged beneath water. Ten years ago, New Orleans was the city of all cities. The best jazz, the best seafood, and the best southern style cooking one could find east of the Mississippi.   It was the place where the native New Orleanians made you feel as though New Orleans was your home too with their warm southern hospitality. Ten years ago the warm smiles and sweet sounds of jazz faded away and were replaced by the sound of howling winds, cries of hunger, and weeps of desperation. Ten years ago, we saw, and I say “we” meaning the people of this country, what the United States government and the State of Louisiana really thought about its people, specifically, its Black residents.

 

Ten years later; the Big Easy has grown, in some ways unrecognizable. As the city’s once darken image has grown lighter due to Whites and Latinos pouring into the city building town­houses where hous­ing pro­jects once stood, New Orleans has watched for the past ten years as the combination of rising housing costs and government policies push the poor, Black res­id­ents that returned and remained to the outskirts of the city in search of cheap­er rent—or to home­less camps un­der the city’s high­ways. Blacks, who once accounted for two-thirds of the city’s pop­u­la­tion be­fore Hurricane Kat­rina, now make up slightly more than half of the city’s pop­u­la­tion. The thousands of Latino im­mig­rants re­cruited to clean up and re­build the city remained in New Orleans increasing the size of their population. Ac­cord­ing to a study by pro­fess­ors at Tu­lane Uni­versity and Uni­versity of Cali­for­nia, Berke­ley, an es­tim­ated 10,000-14,000 Latino work­ers moved to New Or­leans with­in a year of Kat­rina.

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Mr. and Mrs. Irrelevant: Foster v. Chatman and the Problem of Jury Exclusion

2015’s Mr. Irrelevant…do you recall his name off the top of your head? No? Let me give you a hint; his name is essentially two first names. Give up? Gerald Christian. Does that name ring a bell? Do not be alarmed if it does not. His name probably does not mean anything to you unless you are an Arizona Cardinal fan and even then it probably still does not mean that much to you

Gerald Christian was the last pick in this year’s National Football League (“NFL”) annual’s draft which is probably why you do not recognize his name. See, as the last pick, Gerald was given the facetious title of Mr. Irrelevant. That title is bestowed each year on the last player picked in the NFL draft. The evolution of the title developed from the fact the last pick typically failed to make the selecting team’s final roster, thus rendering the player ultimately irrelevant.

In our justice system, sometimes, potential jurors are given the title of either Mr. Irrelevant or Mrs. Irrelevant because like the players in NFL, these potential jurors typically fail to make the “team” as they are routinely excluded from serving on juries. Naturally, the follow up question is: “what do I mean that potential jurors fail to make the team?” Let me explain. In our legal system, lawyers have a tool called a peremptory challenge — a device through which either side in a case can strike a set number of would-be jurors from serving, based not on any demonstrated “cause” or “prejudice” on the part of any potential juror, but on a mere hunch or a feeling that the stricken juror would not be good for that lawyer’s side. But, the right to use peremptory challenges is not without limitations. In Batson v. Kentucky, the United States Supreme Court made it unlawful to strike a potential juror on the basis of race.

So here is the problem, some lawyers and courts have ignored Batson, allowing lawyers to strike potential jurors based on race. As a result, many criminal defendants are appealing their convictions arguing that the prosecution violated Batson in striking people of color from the jury. One of those cases, Foster v. Chatman, will be argued before the Supreme Court this fall. This Georgia case has the ability to reshape future juries throughout the country.

 

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Criminalization over Education: The Disproportionate Enforcement of Truancy Punishments and Suspensions on Low-Income and Black Youth

Around the country school systems have criminalized truancy, encouraging their counties to penalize students that miss too many days of school with fines, court fees, and in some cases even charging them, their parents, or their guardians with misdemeanors and pursuing jail time. These punishments often put an already struggling low-income family in an even deeper economic hole. Additionally, many school systems are attempting to remedy their student’s minor behavioral issues with out-of-school suspensions. This removal from the classroom causes students to miss out on valuable instructional time, resulting in students lagging behind their classmates due to a lack of understanding for the materials covered during their suspensions. Furthermore, a substantial amount of these suspensions are being sought for even the most inconsequential of incidents and school infractions. However, these truancy punishments and out-of-school suspensions are being pursued and enforced disproportionately against low-income and Black children with absolutely no regard for the long-term consequences of these actions.

The disproportionate enforcement of harsh disciplinary measures against low-income and Black youth is ground zero for what has been called the “school-to-prison pipeline.” The ACLU defines the school-to-prison pipeline as ”…policies and practices that push our nation’s schoolchildren, especially our most at-risk children, out of classrooms and into the juvenile and criminal justice system. This pipeline reflects the prioritization of incarceration over education.” In order to reverse this trend, school systems must come to the realization that truancy and behavioral issues can be symptoms of more serious problems, rather than simple rebelliousness. In addition to being signs of a larger problem, much of this behavior is often age-appropriate, but deemed punishable due to racial discrimination. Read more

Searching America’s Heart

Americans hear about domestic terrorism in the news everyday. We discuss it in our homes and offices. Since September 11, 2001 we have been taught to live with vigilance and have legitimate fear of terrorism. We are encouraged to be on guard at all times. If we see something that gives us pause, we should say something. What about the fear of violence that Black Americans have lived with for hundreds of years? I was deeply struck when I read Bryan Stevenson’s book, Just Mercy. He wrote about the day an older Black gentleman urged him to educate the public. The man reminded Stevenson that terrorism is nothing new to Americans; Black Americans have been terrorized by white supremacists for generations.

I believe that Americans have a duty to search within our collective hearts. The seed of white supremacy planted by slave traders in 1619 has grown into what we see today, white privilege. This can be just as dangerous because it is less overt and more challenging to identify by both individuals who enjoy certain privileges and individuals who do not. White supremacy and its progeny, white privilege, is the scourge that we bear as one nation. We must, therefore repair this ill, as one nation.

When pondering the issue of race and inequity in America I think of something my mother used to say, “You are only as sick as your secrets.” Pervasive white privilege and Black discrimination is America’s, not so well kept secret and it has made us sick. In The Case for Reparations Ta-Nehisi Coates posits that the racism Black Americans endure today began with slavery but did not come close to ending with abolition. Americans must reconcile with our racist history and confront the truth; today we all carry the burden and responsibility to make amends.

Making amends does not mean we attempt to go back in time and change the past. We first admit that we have done wrong. Together, as one nation, we must say to those who have been injured, you were treated unfairly and we are sorry for ignoring your pain and suffering; by ignoring your pain you have further been injured.  The deliberate action of making amends begins first by recognizing that the actions of our founding fathers and predecessors have real and lasting consequences today and with deliberate intention, will begin to heal. This nation must begin the uncomfortable and difficult task of introspection to realize that our history of enslaving Africans has clear, existing consequences today.

One of the first ways we can begin the work of repairing our nation’s communities is by passing a bill in Congress, introduced in 1989 by Congressman John Conyers, Jr. The bill, HR 40, whose formal title is, “Commission to Study the Reparation Proposals for African-Americans Act,” allows the federal government to undertake an official study of the impact of slavery on the social, political and economic life of our nation. If passed, this study would examine the lasting effect that slavery has had on Black Americans.   After the publication of “The Case for Reparations,” in 2014, the bill gained some press and momentum but not enough support to pass.

Congressman Conyers explains that the bill would do four things. First, it would acknowledge the fundamental injustice and inhumanity of slavery. Second, it would establish a commission to study slavery and its subsequent racial and economic discrimination against freed slaves. Third, it would study the impact of those forces on today’s living Black Americans. Finally, the study would make recommendations to Congress on appropriate remedies to redress the harms inflicted on living Black Americans.

This would not be the first time the American government attempted to apologize and make reparations for the wrongs of our predecessors. During WWII, 1942 through 1946 the American government sent over 110,000 Japanese Americans to internment camps. In 1980 Jimmy Carter opened an investigation, the Commission on Wartime Relocation and Internment of Civilians. Eight years later, after the commission found that these camps were driven by racism, $1.6 billion in reparations were paid to 82,219 Japanese Americans and their heirs. One year after, the federal government admitted that the choices made by their predecessors were grave enough that reparations needed to be made they were unable to do the same for the Black community; HR 40 was and continues to be ignored.

By ignoring HR 40, our government, year after year, sends a clear message: the heirs of the millions of Black people who were enslaved throughout the 17th, 18th and 19th centuries, segregated during the 20th Century and today, imprisoned at a rate three times that of white Americans, are not worth the energy it takes to study such undeniable injuries. In tort law we look to the responsible party, the party who had a duty to the injured in order to attempt to measure the amount the injured party is owed.

Those who govern, the elected officials who take the oath to support and defend the Constitution and speak on our behalf, they are the responsible party. It is our government who has made the choice to be held accountable for the actions of their predecessors and therefore must take responsibility. I fear that the ignorance to white privilege keeps our government from assuming this responsibility. There can be no other reason HR 40 has been continually ignored for 26 years.

The problem of white privilege is pervasive; we need only look at the Criminal Justice System to find a case in point. Americans should seriously consider the extent to which incarceration has become a fixture in the life cycle of so many racial and ethnic minorities: 9% of Black adults are in prisons, jails, on probation or parole, as opposed to 4% of Latinos and 2% of White adults. Crimes are committed evenly across all ethnicities. Black Americans are being targeted by the criminal justice system.

President Obama sang the words of “Amazing Grace” during the eulogy of South Carolina State Senator, Rev. Clementa C. Pinkney as a testament to the forgiveness Rev. Pinkney’s family extended to his killer. His family and the families of the others who were slain demonstrated the courage of their convictions to extend such forgiveness. Where is our courage to reconcile with our past? Why do the majority of Americans ignore the need to fully recognize the horrible deeds of our past? Our silence is deafening. America is better than this. We are a country that cares about our fellow brothers and sisters and we do seek out to identify the wrongs of our past as we work to correct those mistakes. Our call to action begins with demanding HR 40 be openly debated and passed.

 

 

 

 

Good Hair

The fine line between ethnic appropriation and ethnic embrace has always been vague. The discussion about whether a specific style of music, clothing, or image has been ripped from a particular cultural group is an issue that has been at the forefront of race relations.

Rachel Dolezal is a woman who, at the time her story made international news, was at the helm of the National Association for the Advancement of Colored People (NAACP) in Spokane, Washington. She identified as black and was “outed” by her parents as a white woman with no trace of African-American ancestry. While identifying as a black woman, Ms. Dolezal attended Howard University, a historically black university, married a black man, and worked part-time as an African studies instructor at Eastern Washington University. However, it was not just Ms. Dolezal’s actions that had caused uproar, but also her appearance. Gradually, Ms. Dolezal had transformed herself from a blue-eyed, blonde haired girl from Montana to a woman with a darker complexion and what many would consider “black hair.”

As the thorough examination of her life continued in the press, dozens of pictures from her social media account arose depicting Ms. Dolezal’s varying hairstyles.   She had sported box braids, dreadlocks, and springs, hairstyles traditionally associated with the black community. At one point Ms. Dolezal even worked as an “ethnic hair” stylist. In fact, in an interview with Amber Payne of NBCBLK, an affiliate of NBC, Ms. Dolezal admitted that she wears a weave and take cares of much of the upkeep herself.

This is not the only instance of ethnic hair being a topic of headline as of late. Fashion spreads in high fashion magazines, like Vogue and Elle, have elicited negative responses to photos that depict women of European descent with traditionally black hairstyles. Most recently, Teen Vogue was criticized for using a woman of European decent to model Senegalese twists [1]. Many were outraged: why was the magazine unable to find a Senegalese woman to model the beautiful hairstyle?

The fashion world has also recently “discovered” and attempted to “elevate” baby hair. For those unfamiliar with baby hair, they are the wisps of hair that grow from the front of the forehead towards the hairline. For women of color, who traditionally have coarser-textured hair, baby hairs are difficult to incorporate into a perfectly coiffed look.   They usually end up on the forehead or shooting straight up from the hairline.

Many women of color have embraced their baby hair as a manner of forging their own cultural identity, including Chicano women from Southern California known as “cholas.” Since the 1970s, cholas have been lined their lips with dark liner, plucked their eyebrows thin, and gelled their baby hair to their foreheads due to the needs of women within the marginalized Latino farming communities of Southern California to embrace their femininity and to find a sense of unity in a society run mostly by men [2]. Today, many Latina women, not just Chicano women, have embraced the chola look as a way to express confidence and independence. Unfortunately, popular culture has frequently generalized the chola culture to the point it has become a caricature associated with gang culture and low-income Latinas in the United States.

This past spring, Givenchy, a French Haute Couture fashion house that produces extremely high-end clothing, paraded fifty-one women on the runway with their baby hairs slicked on their foreheads with gel. The designer, Ricardo Tisci, described the collection as “Victorian Chola” [2]. Out of the fifty-one women who walked the runway for the collection, only four were women of color.

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As a young girl, I struggled with managing my hair.   Although my mother has always beamed with pride while telling the story of how she was able to put my newborn head of hair in a bow when she took me home from the hospital, growing up I found my hair to be more of a curse than a gift. It was incredibly thick and prone to tangles. It tended to get matted and stuck in the most random places. For the first few years of my life, my mother and grandmother attempted to tame the beast. Eventually, they gave up and decided to leave it to the professionals. My first blow out was at age five.

Growing up in Puerto Rico, I remember going to the salon with my mother and my grandmother every Saturday to get my hair blown out. For my mother and grandmother going to the salon was a fantastic social opportunity, as it is for a lot of women. It is a gathering spot to talk about their children, their jobs, their worries, and their friends.  It was the one day of the week that they were able to let loose. However, for me it was the equivalent to a torture chamber. The waiting around for the stylist, the scrubbing of the scalp and the hair with scalding water, and the final fiery blast of hell from the blow dryer were not the ideal way for a five-year old to spend her weekends.

At the age of eight, my family and I moved to Florida. While we were still trying to find our bearings in our new suburban neighborhood, the struggle to find a stylist that could “handle our hair” was becoming increasingly difficult. My mother rightfully believed that the struggle of moving to a new city and learning the new language were difficult enough. Therefore, she decided to leave my hair alone for the time being. I was elated to no longer have to endure long hours at the salon. I loved my natural hair in all of its curly, kinky glory.

That love was short-lived. I was one of two Latino kids in my fifth grade class at a small private school in Florida. Even two years after our move, it was difficult for me to find friends, as I was still learning the language and the culture. In a juvenile effort to assimilate, I begged my mother to brush my hair out into a ponytail and place butterfly clips in it. My mother, after struggling for hours to tame my hair, did the best she could. The following day, I went to school with my head held high thinking that I would finally make some friends. However, I was only met with chuckles and the new nickname “hairy forehead monkey girl.” Pulling my hair back into a ponytail had called attention to all of the small, dark hairs on my forehead.

Of course, children will be children; sometimes they will be mean-spirited without realizing what they are doing. Yet, this time the children were targeting me not because I misspoke in class or tripped on the playground, but specifically because I looked different than them. The children were mocking me because my baby hair was something unfamiliar and scary. That day, the hair issue became less about aesthetics and transformed itself into an issue of race. I came home with eyes swollen from crying. I never wanted to see my hair again, not as it was that day. I begged my mother to fix it. That afternoon, she made an appointment to permanently relax my hair.

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Many women in Latino and black communities love, respect, and cherish their God-given hair and don it proudly as a badge of honor. However, there are many, like me, that because of the stigmatization of ethnic hair as something that is “ghetto,” “unkempt,” and “dirty” because it does not conform to the Eurocentric standards of beauty that our media promotes, have spent thousands of dollars on straightening, frying, and dying their manes in an attempt to not stand out. It is therefore incredibly ironic that the seizure of black and Latino hairstyles by the fashion industry has been used to make models do just that, to stand out. Of course, it is in the very fabric of our country to be a melting pot of different cultures. However, the line is drawn when cultural practices of certain groups of people are ridiculed and then used to marginalize them. Yet, when these practices are sported in the name of fashion, they are chic. The practice of cherry-picking certain aspects of any culture for any selfish or commercial reason is a pervasive form of racism. The fashion industry steals identifying aspects of cultures and exalts them while leaving the people who have created these styles in the dust.

This is where I must divert back to Ms. Dolezal’s hair. Ms. Dolezal’s hair and the styling of it in traditionally black styles permitted her to legitimize herself in the community she was involved in as a black woman. Although Ms. Dolezal appropriated certain aspects of black culture for purely selfish reasons, she supported the societal bettering of individuals in the black community through her work in the NAACP. Yes, Ms. Dolezal is not perfect and guilty of some morally reprehensible offenses, but, arguably she has at least done her part to give back.

 

[1] Julia Brucculieri, Teen Vogue Under Fire for Featuring ‘White Model’ in Senegalese Twists Story, Huffington Post Canada, June 24, 2015 http://www.huffingtonpost.ca/2015/06/24/teen-vogue-senegalese-twists_n_7655962.html

[2) Barbra Calderon-Douglass, The Folk Feminist Struggle Behind the Chola Fashion Trend, April 13, 2015, http://www.vice.com/read/the-history-of-the-chola-456

[3] Alice Newell-Hanson, What’s the deal with baby hair?, i-d Magazine, March 9, 2015 https://i-d.vice.com/en_us/article/whats-the-big-deal-with-baby-hair

Racism’s New Face

 

Racism’s New Face

Not much more than 60 years ago, Black people, who were legally relegated as second-class citizens, began a movement to put an end to the terror that was part of their everyday lives. The Jim Crow system, which operated primarily in the southern states, made their lives a living hell. Not only were Blacks disenfranchised by the laws, they were also caste into a position of permanent social inferiority. Black people faced indignities on a daily basis with signs such as “No dogs or Negroes Allowed,” “White only Drinking Fountain,” or “Colored Served in Rear.” Read more