The Structural Dimensions of Race: Lock Ups, Systemic Chokeholds, and Binary Disruptions

Disrupting traditional conceptions of structural inequality, state decision making power, and the presumption of Black criminality, this Essay explores the doctrinal and policy implications of James Forman, Jr.’s Pulitzer Prize winning book, Locking Up Our Own, and Paul Butler’s evocative and transformative book, Chokehold. While both books grapple with how to dismantle the structural components of mass incarceration, state legitimized police violence against Black bodies, and how policy functions to reify oppressive state power, the approaches espoused by Forman and Butler are analytically distinct. Forman locates his analysis in the dynamics of decision-making power when African American officials wield power to combat crime with unintended consequences. He argues for incremental change focusing on discrete aspects of the system. By contrast, Butler offers a full conceptual attack on the oppressive machinery of mass incarceration—he seeks to break the grip of the systemic chokehold that threatens to strangle the life prospects of communities of color. Both books disrupt binary conceptions of the criminal justice system in the wake of Michelle Alexander’s The New Jim Crow and its progeny

Rhetorical Neutrality: Colorblindness, Frederick Douglass, and Inverted Critical Race Theory

Rhetorical Neutrality refers to the middle ground approach adopted by the Supreme Court in its race jurisprudence. This Article examines rhetorical neutrality as evinced in the narratives espoused in the opinions of Justices O\u27Connor and Thomas. In Grutter, both Justices employ neutral approaches, rooted in colorblindness. However, the underlying rhetoric, or how their reasoning is expressed in their respective opinions, is strikingly distinct. Neither Justice advances a remedial approach; both Justices start with the premise that race is inherently suspect, but their approaches diverge because they view colorblind neutrality in fundamentally distinct ways

The Rhetorical Allure of Post-Racial Process Discourse and the Democratic Myth

We are witnessing the power of distorted and neutral rhetoric that rings with deceptive clarity. This post-racial process discourse is advanced on many levels: in political discourse, by a distrustful citizenry energized by hateful rhetoric that appeals to their concerns of being “left behind” on the basis of “preferences” for minorities that diminish America’s “greatness,” and a Court that seeks to constitutionalize a mythic democracy that promises participation while implicitly endorsing structural exclusion. Voter initiatives should not determine the substantive core of the Fourteenth Amendment. While democratic participation is essential to our Republic, decisions like Schuette perpetuate a democratic myth of accessibility while the political process has been restructured to ensure that race-conscious remedies are invalid. The danger is that we will accept this inequality as a natural product of our democracy. The Court once acknowledged this danger in its political process decisions; and, while these decisions have not been explicitly overruled, Schuette marks the constitutionalization of post-racial process discourse and the democratic myth. Now, more than ever, we must reject the rhetorical allure of this contrived neutrality

From Louisville to Liddell: Schools, Rhetorical Neutrality, and the Post-Racial Equal Protection Clause

As we commemorate the inspiring legacy of Minnie Liddell and countless liberation activists who struggled for substantive equality in education for generations, it is appropriate to reflect on the current state and future of urban education. The school desegregation (integration) movements in Louisville, Kentucky and St. Louis, Missouri can best be understood as two distinct permutations of the Process Theory. In Louisville, the process-orientation tilts toward individual choice—neighborhood schools are at the core of all of the discussions about student assignment plans. Conversely, in St. Louis, the seminal process initiative is charter schools. Neither processual outcome addresses the present day effects of past discrimination, so there remain substantial systemic inequalities that have not been addressed. This is the quintessential problem with neutrality—it preserves the status quo. It is interesting to note that whether desegregation is achieved through political compromise and collaboration, as in St. Louis, or by court order, as in Louisville, the outcomes focus on process-based values like access (or choice), not substantive equality. On some level, the power of choice is overvalued. So, while there is access, this means something dramatically different when city and suburban schools are compared. This is the classically neutral rationale of access, which is at the heart of the Process Theory. Part I of this Essay posits the concept of Rhetorical Neutrality and sets the context for the Court‘s race jurisprudence in Brown and its progeny. Building upon this critique of neutrality, Part II references the Process Theory and unpacks it to critique the process-based outcomes in Louisville and St. Louis. Part III concludes with a critique of a Kentucky statute that preserves the right to attend neighborhood schools and the limited success of the St. Louis voluntary school assignment plan. Louisville and St. Louis represent the current state of urban education in America

Dismantling Structural Inequality: Lock Ups, Systemic Chokeholds, and Race-Based Policing - A Symposium Summary

The prominence of the carceral state in American society serves to undermine basic principles of democracy and justice, disproportionately displacing people of color and excluding them from all viable avenues of citizenship

Rhetorical Neutrality: Colorblindness, Frederick Douglass, and Inverted Critical Race Theory

Rhetorical Neutrality refers to the middle ground approach adopted by the Supreme Court in its race jurisprudence. This Article examines rhetorical neutrality as evinced in the narratives espoused in the opinions of Justices O\u27Connor and Thomas. In Grutter, both Justices employ neutral approaches, rooted in colorblindness. However, the underlying rhetoric, or how their reasoning is expressed in their respective opinions, is strikingly distinct. Neither Justice advances a remedial approach; both Justices start with the premise that race is inherently suspect, but their approaches diverge because they view colorblind neutrality in fundamentally distinct ways