This seminar examined the role of law in creating and recreating race in our decidedly non-post-racial society. Topics covered included racial identity, education, and criminal justice. Readings included cases to understand the “law on the books;” law review articles to understand how legal academics interact the law and its implications; and social science research to understand “law in action.”
I have made some strategic choices about the scholarship I highlight here. First, attempting to cover a topic as expansive as “race in the law” is impossible to do in eight short weeks. Thus, I’ve had to make choices to give students a taste of some of the issues in the field. Second, I have privileged the voices of racially underrepresented legal scholars whenever possible. Third, this reading list is not nearly as intersectional as I’d like it to be. Perhaps a future class will focus more intentionally on intersectional issues.
I have set forth the intended reading schedule below. For law review articles, please only read the pages of actual text; you can ignore the footnotes unless there is something you want to delve further into. This is easiest to do using the links below to the WestLaw versions. Other readings will be available on Canvas. It is possible that I will adjust these readings as the quarter progresses.
Race in the Legal Curriculum
“The failure of our civil rights laws reflects law’s central role in the maintenance and justification of racism. Laws never create racial justice. Rather, in both their achievements and their failures, laws reflect the results of political struggle. Today’s freedom fighters will learn from those who fought for justice before them. What were our aspirations, our vision, and goals? Why were those aspirations not achieved, and what role has law played in denying racial justice?” ~ Professor Charles R. Lawrence
Why is it important for law students to study race?
- Charles R. Lawrence III. The Fire This Time: Black Lives Matter, Abolitionist Pedagogy and the Law. 65 J. Legal Educ. 381 (2015). [24 pages]
- Gary Peller. Legal Education and the Legitimation of Racial Power. 65 J. Legal Educ. 405 (2015). [10 pages]
The Social Construction of Race: Desiring Race, Creating Race, Defending Race
“The principle of ‘squatter’s rights’ apparently applies to words as well as to property. When men make a heavy investment in words they are inclined to treat them as property, and even to become enslaved by them, the prisoners of their own vocabularies. High walls may not a prison make, but technical terms sometimes do.” ~ Ashley Montagu
- Daynes, Sarah and Orville Lee. Desire for Race (2008). [Introduction, pages 1-20]
- Howard Winant, Race and Race Theory. 26 Ann. Rev. Soc. 169 (2000). [16 pages]
- American Anthropological Association Response to OMB Directive 15: Race and Ethnic Standards for Federal Statistics and Administrative Reporting (Sept 1997). [8 pages]
- Audrey Smedley and Brian D. Smedley, Race as Biology Is Fiction, Racism as a Social Problem Is Real: Anthropological and Historical Perspectives on the Social Construction of Race, 60 Am. Psych. 16 (2005). [11 pages]
- S. v. Bhagat Singh Thind, 261 U.S. 204 (1923). [6 pages]
- Doe v. State, 479 So.2d 369 (1985). [7 pages]
- LOUISIANA REPEALS BLACK BLOOD LAW, New York Times, July 6, 1983.
- Hudgins v. Wrights, 11 Va. (1 Hen. & M.) 134 (Va. 1806) [8 pages]
- Ian Haney Lopez, The social construction of race: some observations on illusion, fabrication, and choice, 29 Harv. C.R.-C.L. L. Rev. 1 (1994) [30 pages]
III. Reproduction and Children
“[M]any of the experiences Black women face are not subsumed within the traditional boundaries of race or gender discrimination as these boundaries are currently understood, and . . . the intersection of racism and sexism factors into Black women’s lives in ways that cannot be captured wholly by looking at the race or gender dimensions of those experiences separately[.]” – Professor Kimberle Crenshaw, Mapping the Margins: Intersectionality, Identity Politics, and Violence against Women of Color, 43 Stan. L. Rev. 1241, 1244 (1991).
- Dorothy Roberts, Killing the Black Body, Chapter 2 (Dark Side of Birth Control)
- Khiara Bridges, Quasi-Colonial Bodies: An Analysis of the Reproductive Lives of Poor Black and Racially Subjugated Women, 18 Colum. J. Gender & L. 609 (2008-2009). [39 pages]
- Pamela Bridgewater, Ain’t I a Slave: Slavery, Reproductive Abuse and Reparations, 14 UCLA Women’s L.J. 89 (2005). [30 pages]
“[T]here is no resource that is more vital to the continued existence and integrity of Indian tribes than their children . . .” – 25 U.S.C. S 1901
- Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30 (1989). [20 pages]
- Adoptive Couple v. Baby Girl, 133 S.Ct. 2552 (2013). [23 pages]
- Sarah Krakoff, They Were Here First: American Indian Tribes, Race, and the Constitutional Minimum, 69 Stan. L. Rev. 491 (2017). [26 pages]
What’s Wrong with School Choice?
“My consumer reporting taught me that things only work well when they are subject to market competition. Services improve when people are free to shop around and when competitive pressure inspires suppliers to invent better ways of doing things.” ~ John Stossel
- Robin D. Barnes, Black America and School Choice: Charting a New Course, 106 Yale L.J. 2375 (1997). [16 pages]
- Osamudia R. James, Opt-out Education: School Choice as Racial Subordination, 99 Iowa L. Rev. 1083 (2014). [21 pages]
- The African American Roots of Betsy DeVos’s Education Platform, The Atlantic, January 18, 2017, https://www.theatlantic.com/education/archive/2017/01/black-roots-school-choice/513569/.
- Kevin Brown, The Supreme Court’s Role in the Growing School Choice Movement, 67 Ohio St. L.J. 37 (2006). [14 pages]
Policing the Police
“C.P.D.’s own data gives validity to the widely held belief the police have no regard for the sanctity of life when it comes to people of color” ~ Chicago Police Accountability Task Force Report
- Sandra Bass, Policing Space, Policing Race: Social Control Imperatives and Police Discretionary Decisions, 28 Social Justice 156 (2001) . [21 pages]
- Department of Justice Report for Ferguson, Missouri (Released March 4, 2015). [page numbers TBD]
- Department of Justice Report for Chicago Police Department (Released Jan. 13, 2017). [page number TBD]
- Craig Futterman, Chaclyn Hunt & Jamie Kalven, “ ‘They Have All the Power’: Youth/Police Encounters on Chicago’s South Side,” University of Chicago Public Law & Legal Theory Paper Series, No. 573 (2016). [Pages 1-37]