New York Law School

Archive for 2015

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.

*          *         *

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.

*          *          *

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

[2) Barbra Calderon-Douglass, The Folk Feminist Struggle Behind the Chola Fashion Trend, April 13, 2015,

[3] Alice Newell-Hanson, What’s the deal with baby hair?, i-d Magazine, March 9, 2015

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

HIV Positive Black Men: The Crossroads

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Advantaging the Advantaged Once Again

Our system of funding higher education through grants and loans might be exacerbating income inequality, especially along racial lines. In the 21st century, a college degree is the new high school diploma, necessary to acquire any economic independence in a post-manufacturing era, although certainly no guarantee. And according to a Harris Poll survey, the overwhelming majority of college bound students identify economic reasons for attending: 91 percent want to improve employment opportunities; 90 percent want to make more money; and 89 percent want to get a good job.  All makes sense, right? Increasingly low income students, including students of color, flock to college to earn their swipe at the American Dream. To facilitate these aspirations, the federal government invests $140 billion annually, $30 billion in Pell Grants, and another $110 billion in federal student loans, to finance a college education. For the first time someone is asking: Is the system working for all students?

Maybe not, according to researchers William Elliott III and Melinda Lewis at Center for Assets, Education, and Inclusion at University of Kansas. The Real College Debt Crisis: How Student Debt is Eroding the American Dream will be hitting the book shelves at the end of July. What this book has found, alongside other research, should prompt an immediate national discussion and a major education policy shift.

Rather than study default rates and the impact of student loans on lenders, according to Elliott and Lewis, we should be studying whether financial aid policies are improving economic mobility for first generation college students. It’s an equity issue. These researchers have found that student loans constrain the ability of these students to build their asset base: marry, have children, buy a car, purchase a home, and finance their own businesses. And although sensational media stories highlight those students with $250,000 in loans, according to the Federal Reserve, they are the minority; only 4% of borrowers hold $100,000 or more in student loans. The largest cohort—39%–have debt of $10,000 or less. And it’s the students with under $5,000 of debt, many of whom dropped out of college and never got the advantage of a degree, who have the most difficulty paying it back. Although college enrollment among White and Black students is equalizing, White students are far more likely to graduate from college, even when comparing Pell Grant recipients, all qualifying as low income. One explanation is that part-time students are less likely to graduate and students of color are more likely to be attending college part-time, because of family and financial responsibilities. (see, Complete College America.) Another reason is that graduation rates from elite schools where diversity is less prominent are much higher. Ironically income-based loan repayment schedules meant to help debt-burdened students during the Great Recession further disadvantage this group by prolonging their indebtedness over time and growing the size of principle. And even with a degree, low income students with debt have to pay off loans in a depressed entry level job market.

A solution posed by Elliott and Lewis: Child Savings Accounts to engage low income children in making college their goals early in life.  The data are pretty convincing that high expectations at a young age can beat through the economic barriers.

Another possible solution: no interest or renegotiated lower interest student loans. Since these loans are not subject to bankruptcy, where is the risk? According to Elizabeth Warren, now that interest rates are so low, why shouldn’t students have the ability to renegotiate their student loan rates to match the low interest environment just as a corporation or homeowner can. And she asks: Why should the federal government be making money off loans to low income students?

Even more disturbing is who gets the grants and who gets the loans. As is true in law schools, undergraduate colleges and universities are spending their own scholarship dollars, that’s grants that don’t require repayment, on high credentialed students, many of whom have family assets to pay for college. They are often the least needy. First generation and low income students, especially students of color, who might already be disadvantaged by their attendance at lesser resourced public schools, are offered student loans, which require repayment. So we are exacerbating income inequality by advantaging the already advantaged and saddling our poorest and least academically prepared students with debt, more debt than they can possibly afford.

We have to question the policies that defunded public financing of our state and municipal colleges and universities. Although the causes of tuition inflation are complex, this defunding made college more expensive and transferred responsibility to finance college onto individual students and their families despite the enormous societal benefit an educated workforce offers the country. And more specifically, we have to question the college and university practices of attracting high credentialed students who don’t need financial assistance with merit scholarships (to raise their rankings in U.S. News & World Report) and saddling low income students with the burden of student loans. What is the public benefit to helping already advantaged students? Income inequality continues when these advantaged students begin to acquire assets soon after graduation while their debt-strapped colleagues have to pay off their loans first, sometimes for years to come.

Listen to a July 13, 2015 podcast of a portion of a conversation with these authors held at the New America Foundation, which is funding research of higher education policies.

Hazel Weiser is the deputy chief diversity officer at New York Law School.


Dear America

Dear America,

I hope this letter finds you well. I heard the economy is booming, unemployment rates are decreasing, and healthcare is finally reformed. With all of those things going on, I figured you must be in the dark about this.

I know how much you care about human rights – thank GOD you do! From conflicts in Cuba to Rwanda, your track record speaks to your relentless pursuit for justice in and outside your borders. I’ve felt horrible keeping this secret from you the last couple of months. Read more