Race and the Law Series

Professor Ahmed White will explore how in recent years, “diversity” and “inclusion” have taken hold as governing precepts of “social justice” activism and given new meaning to civil rights and renewed relevance to the quest for social equality. But these concepts have also emerged as ways of justifying the extraordinary economic inequality that defines our times, as they counsel legal and political reforms that accept the essential legitimacy of the structures that underlie economic inequality and are preoccupied with making those structures more representative.  In this way, diversity and inclusion have served less as means of advancing genuine equality than as methods for lending the appearance of democracy to a fundamentally undemocratic social order.

This program of diversifying inequality has its roots in a reconciliation of leftism with the politics of liberalism in New Deal and Postwar America, and likewise in a fateful dispute within the civil rights movement that ended with an initial push for structural economic reform sidelined in favor of an approach to racial justice premised, instead, on private litigation, individual rights, and the principles of antidiscrimination. It draws essential support from a class of affluent minorities and women that it helped create. And it is fully realized today in the great success with which powerful corporations, oligarchs, and privileged professionals use diversity and inclusion to assert their own legitimacy and rule over the workplace, the cultural sphere, and the political order.

Clinical Professor Ann England and Anne-Marie Moyes, director of the Korey Wise Innocence Project, examined the role of race in wrongful convictions. They explored why they happen more to people of color, how race informs the lack of adequate reforms, and why exonerations take longer for Black versus white defendants. Wrongful convictions occur at significant rates and disproportionately affect communities of color. Scholars have identified various factors that contribute to wrongful convictions in studying hundreds of exonerations from the past three decades. Yet, progress has been slow in addressing the police practices, flawed forensic science, prosecutorial misconduct, and underfunded indigent defense at the root of most wrongful convictions. 

In this lecture, Professor Helen Norton will examine different interpretations of the Equal Protection Clause and their impact on racial inequality. It wasn’t until the Fourteenth Amendment’s ratification in 1868 that the Constitution included an explicit textual commitment to equality. Contemporary debates over the meaning of the constitutional term “equal protection” often turn on the choice between anti-subordination understandings of equality law (think, for example, of Justice Harry Blackmun’s statement that “In order to get beyond racism, we must first take account of race. There is no other way”) and anti-classification approaches (recall, for instance, Chief Justice John Roberts’ statement that “The way to stop discriminating on the basis of race is to stop discriminating on the basis of race”). This talk will examine when and how the distinction between these approaches makes a difference in courts’ and policymakers’ ability to address structural inequality.

In his lecture, Dean Anaya discussed how race and the idea of equality have played out in federal law, through the lens of several U.S. Supreme Court and other appellate cases. He examined the extent to which racism and its legacies are still present or enabled in federal law and judicial decision-making, and discussed how law’s call to equality can be a rival but not always sufficient force. Finally, he highlighted the need for an energized anti-racist stance by all legal professionals, in as much as each one may influence or determine the law’s content and application.