Wednesday September 15, 2021

More of This The civil rights lawyer who invented critical race theory

The town of Harmony, Mississippi, which owes its origins to a small number of formerly enslaved Black people who bought land from former slaveholders after the Civil War, is nestled in Leake County, a perfectly square allotment in the center of the state. According to local lore, Harmony, which was previously called Galilee, was renamed in the early nineteen-twenties, after a Black resident who had contributed money to help build the town’s school said, upon its completion, “Now let us live and work in harmony.” This story perhaps explains why, nearly four decades later, when a white school board closed the school, it was interpreted as an attack on the heart of the Black community. The school was one of five thousand public schools for Black children in the South that the philanthropist Julius Rosenwald funded, beginning in 1912. Rosenwald’s foundation provided the seed money, and community members constructed the building themselves by hand. By the sixties, many of the structures were decrepit, a reflection of the South’s ongoing disregard for Black education. Nonetheless, the Harmony school provided its students a good education and was a point of pride in the community, which wanted it to remain open. In 1961, the battle sparked the founding of the local chapter of the N.A.A.C.P

That year, Winson Hudson, the chapter’s vice-president, working with local Black families, contacted various people in the civil-rights movement, and eventually spoke to Derrick Bell, a young attorney with the N.A.A.C.P. Legal Defense and Educational Fund, in New York City. Bell later wrote, in the foreword to Hudson’s memoir, “Mississippi Harmony,” that his colleagues had been astonished to learn that her purpose was to reopen the Rosenwald school. He said he told her, “Our crusade was not to save segregated schools, but to eliminate them.” He added that, if people in Harmony were interested in enforcing integration, the L.D.F., as it is known, could help.

Hudson eventually accepted Bell’s offer, and in 1964 the L.D.F. won Hudson v. Leake County School Board (Winson Hudson’s school-age niece Diane was the plaintiff), which mandated that the board comply with desegregation. Harmony’s students were enrolled in a white school in the county. Afterward, though, Bell began to question the efficacy of both the case and the drive for integration. Throughout the South, such rulings sparked white flight from the public schools and the creation of private “segregation academies,” which meant that Black students still attended institutions that were effectively separate. Years later, after Hudson’s victory had become part of civil-rights history, she and Bell met at a conference and he told her, “I wonder whether I gave you the right advice.” Hudson replied that she did, too.

Bell spent the second half of his career as an academic and, over time, he came to recognize that other decisions in landmark civil-rights cases were of limited practical impact. He drew an unsettling conclusion: racism is so deeply rooted in the makeup of American society that it has been able to reassert itself after each successive wave of reform aimed at eliminating it. Racism, he began to argue, is permanent. His ideas proved foundational to a body of thought that, in the nineteen-eighties, came to be known as critical race theory. After more than a quarter of a century, there is an extensive academic field of literature cataloguing C.R.T.’s insights into the contradictions of antidiscrimination law and the complexities of legal advocacy for social justice.

Read the story on New Yorker

Speaking Of… Lawyers can be social engineers

Princess Manasseh is a journalist turned lawyer and a ChangeLawyers Fellow at Al Otro Lado. She works on the Border Right’s Project, providing direct representation to detained asylum seekers.

“A lawyer is either a social engineer or a parasite on society.”

As a young lawyer, these sage words by Charles Hamilton Houston serve as a daily reminder of my capacity to either help or harm communities.

Evidence of this reality is written all throughout history.

Years before he was a Supreme Court Justice, Thurgood Marshall argued the landmark Brown v. Board of Education case which declared segregation in schools illegal. Immediately after segregation was struck down, a different lawyer, Attorney General John N. Mitchell, used his power to stall desegregation in the South.

Marshall and Mitchell’s respective roles in history illustrate how lawyers can serve to either build new systems or uphold the status quo.

I have seen this power struggle first hand. For the past year, I worked as a staff attorney at Al Otro Lado, thanks to a fellowship I received from ChangeLawyers. Al Otro Lado is a legal service organization at the US-Mexico border serving deportees, refugees, and separated families.

Facing everything from death threats, kidnapping, and extortion, to beatings and assaults, my clients fled the only homes they knew seeking refuge in what they believed to be the land of opportunity. What they got instead, was a jail cell in a government sanctioned, privately owned, for-profit detention facility.

As a Black American, this experience was triggering. The corporations who own detention facilities for Brown and Black immigrants are the same corporations who own private prisons for Black and Brown Americans. The business model is the same: monetized bodies and forced labor.

Migrants pursuing the constitutional right of asylum are being housed in facilities identical to jails, working for around $1 an hour and being held for anywhere between several months and several years. All of this, after having committed no crime at all. Again, this is civil detention. My clients had fled their home countries, made it through treacherous journeys to arrive at the U.S.-Mexico border, waited in line and presented themselves at ports of entry explaining that they were fleeing persecution and needed asylum. Having gone through all the proper channels and protocol, they were given an orange jumpsuit and assigned to a jail cell.

The prison-industrial complex has expanded; its tentacles first reached out and grabbed Black and Brown Americans, and then it grabbed migrants who commit no crime at all. This is a dangerous step in the wrong direction.

As a young, Black lawyer, I often feel overwhelmed. But I also feel excited and hopeful. I remind myself that I have a choice. In fact, all lawyers have a choice. We can do what Attorney General Mitchell did when he used every lever of power at his disposal to stop progress and kill desegregation. Or we can be the next generation of Thurgood Marshalls — we can use our training to engineer new systems that center the humanity of all people.

Read the story on Medium

Less of This The conservative Supreme Court is drunk on its own power

The Supreme Court of the United States is more conservative today than at any point since the 1930s. It’s also more confident in its own power than any panel of justices since the Franklin Roosevelt administration. And it is quite eager to wipe away foundational precedents that have stood for decades, sometimes without much warning that a transformational decision is around the corner.

Consider the Court’s recent decision upending five decades of abortion jurisprudence. By allowing a Texas law banning at least 85 percent of abortions to take effect, the justices followed none of the procedural norms that their predecessors typically adhered to before upending a famous Supreme Court precedent.

The order allowing Texas’s anti-abortion law to go into effect is one paragraph long. It does not even attempt to engage with the legal questions presented by that law. And it was decided on the Court’s “shadow docket,” a mix of emergency motions and other rushed cases that receive only cursory briefing before they are decided by the justices. In total, the justices seem to have spent about two days pondering this case before upsetting a half-century of law.

As the Atlantic’s Adam Serwer wrote, “neutralizing Roe through normal channels would have taken time, and the Supreme Court’s conservatives did not want to wait.” So the five justices in the majority decided that the ordinary rules did not apply “because they felt like it, and because they don’t believe anyone can stop them.”

This sort of behavior, in which conservative justices hand down sweeping pronouncements while only barely pausing to consider what they are doing, is now a regular affair for the Supreme Court.

Read the story on Vox

Speaking Of… How we treated women before Roe v. Wade
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Leslie J. Reagan professor of history, law, and gender and women’s studies at the University of Illinois at Urbana–Champaign.

Twelve police officers with walkie-talkies and binoculars hid in the nearby fields and in the farmhouse next door, waiting and watching. It was dark. After seeing a car drive up carrying two women, who then went inside the house, the officers unlocked the front door and went in. They walked down the halls and into the bedrooms, where they found one woman wearing only a slip in one room, two lying in bed in another, and two more who, having removed their skirts and underwear, sat waiting for their abortions in a third. The police questioned, photographed, and fingerprinted each woman. Then they drove them in police cars to a doctor, to be vaginally examined while in police custody.

This is the beginning of a true story of a raid on an underground abortion clinic by Pennsylvania state troopers in the late 1950s. It began when a suspicious neighbor called the police after listening on her party-line phone and overhearing her neighbor’s conversation about a pregnancy. The raid was easy: Since the landlord had given the police a key, they walked in and surprised everybody there. The police didn’t act in response to reports of injury or deaths. Abortion was simply illegal, and police raids based on reports from suspicious neighbors or doctors were standard methods of enforcing the law.

Standard, too, was the approach of capturing women in the midst of an abortion procedure and gynecologically examining them for evidence. Women who sought abortions were not targeted for prosecution (although some states allowed it). Prosecutors who tried to go after women who sought abortions in the 19th century had quickly learned that juries refused to convict and shifted to pursuing abortion providers when women died. By the 1940s and 1950s, though, police were shutting down providers even if they were safe. The law treated aborting women as “victims” and used them for evidence. Being captured, examined, interrogated, occasionally jailed, and forced to testify in court, however, punished women for seeking abortions even if they were never prosecuted or convicted of a crime.

The Texas abortion ban that took effect last week is designed to encourage private citizens to spy and report on suspicious people and activities, in the same way that the Pennsylvania woman reported her neighbor in 1958. In fact, the Texas statute permits only nonstate actors to bring civil lawsuits against individuals or organizations they suspect have “aided” or “abetted” any abortion that occurs after six weeks. This unusual law excludes state officials and police from enforcement—typically their job, of course—in order to make challenging its constitutionality difficult. And the Texas statute, like those in some states before Roe, doesn’t allow women themselves to be sued for getting abortions. This tactic allows anti-abortion activists to claim they are “on women’s side,” and don’t intend to harass them, but rather to target what they call the “abortion industry.”

Read the story on Slate​

Demystifying Federal Judicial Appointments 

Virtual panel featuring: Judge André Birotte Jr., Judge Jacqueline Nguyen, and Lane Dilg.

Moderated by ChangeLawyers Board Member Kalpana Srinivasan

To attend, please RSVP to Jessica Bughman at Susman Godfrey (JBughman@susmangodfrey.com)

Fellowship Opportunity: Disaster resilience fellow wanted

NLSLA’s Equal Justice Works Disaster Resilience Fellow will join a national cohort of 14 attorneys who have been deployed at partner organizations to provide direct legal services to disaster survivors.

More information >

Job Opportunity: Community & Housing Lawyers wanted

CLSEPA seeks a full-time community lawyer to work with its housing team and a a full-time attorney to conduct litigation with its housing team.

CLSEPA is a legal services non-profit that combines policy advocacy and impact litigation with direct legal services. We specialize in housing, immigration, and economic advancement.

Community Lawyer more information >
Housing Lawyer more information >

Constitution Day with Cal LAW

Featuring our guest speakers, UC Davis School of Law Dean, Kevin Johnson and UC Legal Associate Campus Counsel, Maleah N. Vidal.

September 17. Register >