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Category: Civil Rights

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“The Cruel Radiance of What Is” James Agee’s Introduction to Cotton Tenants

Imagine an introduction that cuts to the core of what you believe and demands you act without demanding that at all. And, imagine an insight that moves beyond race and class to how we set up society and how we treat each other. Just part of the introduction to James Agee’s Cotton Tenants does that. Fortune magazine cared about poverty in the South. It was 1936. Perhaps any magazine on economic issues had to cover poverty. Fortune sent James Agee and Walker Evans to Alabama to cover cotton farmers. That work led to a book, Let Us Now Praise Famous Men. But the original story, which was about 30,000 words, was never published, until now. Summers of The Baffler published a short version in the magazine, and now the book is out. In an interview in The Atlantic, Summers shows how bold Agee was. In Summer’s words, “This statement puts the reader at some pretty fucking serious risk. He’s writing a magazine article, but in order to proceed with him you must first agree with what he’s just said.” What he said applied then and now. Here’s the passage:

And since every possibility human life holds, or may be deprived of, of value, of wholeness, of richness, of joy, of dignity, depends all but entirely upon circumstances, the circumstances are proportionately worthy of the serious attention of anyone who dares to think of himself as a civilized human being. A civilization which for any reason puts a human life at a disadvantage; or a civilization which can exist only by putting human life at a disadvantage; is worthy neither of the name nor of continuance. And a human being whose life is nurtured in an advantage which has accrued from the disadvantage of other human beings, and who prefers that this should remain as it is, is a human being by definition only, having much more in common with the bedbug, the tapeworm, the cancer, and the scavengers of the deep sea.

I have not digested all that is here. That may take years, and I have as yet to read the full work. For now, I focus on this point. All our chances at success and joy are based on circumstances. Are all men created equal? I know some cringe at one, maybe two words, already. But circumstances can change. Disadvantages entrenched in society can change. Men may mean more today but has far to go. How did that change happen? Was it a fear of being less than human? A feeder on others? Agee may have been crying out against systems designed to maintain disadvantage. And he indicts those who know they benefit from such a system but wish it to continue. Yet Agee did not give up his place in the world. He was a writer, film critic, screenplay author, and more. As Summers offered, “There’s no specific argument for reform either–he’s not taking a position about what might or should be done to remedy this catastrophic rural poverty. There is no clear concept made of the difference between the is and the ought. There’s just a whole lot of is (the “cruel radiance of what is,” as he wrote in LUNPFM.)” Cruel radiance of what is. That is the key for me.

Seeing the world as it is; Conrad, Hemingway, Stendahl, almost any writer who writes about writing has said that is their goal. This passage from Conrad hit me in high school and never left: “My task which I am trying to achieve is, by the power of the written word to make you hear, to make you feel—it is, before all, to make you see. That—and no more, and it is everything. If I succeed, you shall find there according to your deserts: encouragement, consolation, fear, charm—all you demand—and, perhaps, also that glimpse of truth for which you have forgotten to ask.” Agee’s introduction makes me want to dive in and see what he saw. My bet is that our problems are not so different. My fear is that not much has changed. My hope is that there is a way out. Seeing what Agee and Walker saw is perhaps a start.

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Sherrilyn Ifill on Race v. Class: The False Dichotomy

My amazing colleague, guest blogger, and now President and Director-Counsel of the NAACP Legal Defense and Education Fund Inc. Sherrilyn A. Ifillhas a superb Op-Ed in the New York Times about the impending decision in Fisher v. Texas:20130109-ifill-BODY-1

 

The decision is in. All consideration of race in college admissions is over.

No, the Supreme Court has not yet announced its decision in the landmark case of Fisher v. University of Texas; that ruling is expected any day now. But an alarming number of scholars, pundits and columnists — many of them liberal — have declared that economic class, not race, should be the appropriate focus of university affirmative-action efforts.

How can we explain this decision to throw in the towel on race-based affirmative action? Are we witnessing a surrender in advance of sure defeat? Or just an early weariness with a debate that, a decade ago, Justice Sandra Day O’Connor predicted would last another 25 years?

Perhaps it is the presence of a black president that has encouraged so many to believe that race is simply no longer a significant factor in American life. It is true that we have come a long way since the days of Jim Crow segregation. But the plain fact is that race still matters. Read More

Purdy on Civil Disobedience

The “Moral Monday” protests at the North Carolina legislature have included religious leaders, teachers, and many concerned citizens. Law professor Jedediah Purdy reflects on his participation here:

Because North Carolina refused the Obamacare Medicaid expansion, I ended up in handcuffs in the Wake County Detention Center. That was my trigger, anyway. Statistically, next year more than two thousand people in the state will die who would have lived if North Carolina had accepted federal money to give health insurance to low-income families. (That’s our share of an estimated 19,000 preventable deaths nationwide in the 14 states that have rejected the expansion.) Because the state legislature was doing that in my name, I decided I needed to stand in front of it, at least until they took me away.

I can’t add much to Purdy’s article, except to say: what are own personal “red lines,” or government/corporate activities (and let’s not kid ourselves—that merger is the core, fused nature of power these days) that seem too egregiously wrong to let pass without personally protesting them? And given how frequently both right and left lament the “brokenness” of government, is Bernard Harcourt right to suggest that political disobedience is gradually displacing civil disobedience?

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Reviewing Dale Carpenter’s The Story of Lawrence v. Texas

Professor Marc Spindelman published an insightful review of Dale Carpenter’s Flagrant Conduct: The Story of Lawrence v. Texas in the Michigan Law Review. Lawrence v. Texas was indeed a great civil rights victory for lesbian and gay rights. In his review, Professor Spindelman explores the broader implications of Lawrence for equality along the often-intersecting lines of gender, class, and race.

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Can We Lean Anything from Brazil about Remediating the Lingering Consequences of Racial Discrimination?

This post marks the end of my guest appearance on Concurring Opinions, and as usual, I’ve enjoyed my run.

I sometimes show the 2007 documentary Brazil in Black and White in my Law in Film seminar to give my students some exposure to how other racialized countries handle the difficult business of mediating the lingering consequences of slavery and de jure race discrimination. I also have them read Tanya K. Hernandez, 2005 article To Be Brown in Brazil: Education & Segregation Latin American Style. Her recent book, Racial Subordination in Latin America: The Role of the State, Customary Law and the New Civil Rights Response (Cambridge Univ. Press, Oct. 2012), contains an even more nuanced discussion.

Like the United States, affirmative action in Brazil is a controversial issue. I remember having a deja vu like experience when I visited the country in 2007 and heard some of the discussions. Opponents’ arguments sounded very much like the arguments I had heard in the U.S. years earlier. But there are important differences between the two countries. Notions of race are far more complex and confusing in Brazil as the documentary and a recent article in The Economist explain. Further, unlike the United States public universities in Brazil are more prestigious than private schools. In addition, “Brazil’s racial preferences differ from America’s in that they are narrowly aimed at preventing a tiny elite from scooping a grossly disproportionate share of taxpayer-funded university places. Privately-educated (ie, well-off) blacks do not get a leg-up in university admissions.”

The notion of racial quotas never went over well in the United States, and most observers believe that our current weak form of affirmative action, most apparent in university admissions, is on its last leg. As we anxiously waited this term to see what the Supremes will do with the latest case, Fisher v. University of Texas at Austin, the Court agreed last month to hear another higher education affirmative action case, Schuette v. Coalition to Defend Affirmative Action. The issue in that case is “whether Michigan voters in 2006 had the legal right to bar the state’s public colleges and universities from considering race or ethnicity in admissions.” Briefs in the case can be found on SCOTUSblog. Whatever the outcome in Fisher, it seems clear that the ongoing controversy over affirmative action in higher education will not be resolved this term. Read More

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Cynthia Lee on Trayvon Martin, Self-Defense, Implicit Bias, and Making Race Salient

I attended a fantastic colloquium talk yesterday at which Cynthia Lee (GW) presented on her forthcoming article about the Trayvon Martin case. (The TJSL colloquium committee, including my colleagues Alex Kreit and Meera Deo, have done a fantastic job of bringing speakers to campus.) Professor Lee drew on her own prior work as well as groundbreaking new research, and used the Martin case as a lens:

This Article uses the Trayvon Martin shooting to examine the operation of implicit racial bias in cases involving claims of self-defense. Recent research on race salience by Samuel Sommers and Phoebe Ellsworth suggests that individuals are more likely to overcome their implicit biases if race is made salient than if race is simply a background factor, known but not highlighted. Sommers and Ellsworth demonstrate through empirical research that making race salient, or calling attention to the relevance of race in a given situation, encourages individuals to suppress what would otherwise be automatic stereotypic congruent responses in favor of acting in a more egalitarian manner. Building on these insights, Professor Lee suggests that in the run of the mill case, when an individual claims he shot a young Black male in self-defense, the police, the prosecutor, the judge, and the jury are likely to find reasonable the individual’s claim that he felt he was being threatened by the young Black male unless mechanisms are in place to make the operation of racial stereotypes in the creation of fear salient. In the Trayvon Martin case, race was made salient by the huge public outcry over the Sanford Police Department’s failure to arrest Zimmerman and extensive media coverage. Most criminal cases, however, do not receive the kind of media attention received by the Trayvon Martin case. In most interracial criminal cases, race is a background factor but generally is not something either party tries to highlight. Professor Lee concludes with some suggestions as to how prosecutors and defense attorneys concerned about the operation of implicit racial bias can make race salient in the criminal courtroom.

Professor Lee’s previous scholarship has explored in some detail the ways in which racial biases can infect verdicts, especially in areas like self-defense where subjective intent can be important. Her article Race and Self-Defense is foundational, and I assign it every year in my Critical Race Theory class (along with other important work in this area, like Paul Butler‘s writings on jury nullification and on mass incarceration). It was a delight to hear Professor Lee present about her new work, and I’ll absolutely be using this as I teach in the fall. And Professor’s Lee’s talk illustrated one silver lining to the Trayvon Martin case: The intense media scrutiny focused public attention on possible racial biases, and this created a public awareness which may ultimately lead to a more just criminal justice system.

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“Brain Spyware”

As if we don’t have enough to worry about, now there’s spyware for your brain.  Or, there could be.  Researchers at Oxford, Geneva, and Berkeley have created a proof of concept for using commercially available brain-computer interfaces to discover private facts about today’s gamers. Read More

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Fortune’s Bones: Is There Dignity after Death?

In 1995 Gunther von Hagens presented his Body Worlds exhibit, described as a collection of real human bodies that have been “plastinated” to prevent their decay and make them more malleable. Some of these plastinated bodies were cut open to reveal their inner organs and then positioned in lifelike poses. The exhibit toured the world and was wildly popular.

Body Worlds also generated some criticism. Canadian social scientist, Lawrence Burns, argued that “some aspects of the exhibit violated human dignity.” (7(4): 12-23 Amer. J. Bioethics 2007)  Although touted as an educational experience Burns and others worried that the bodies were being used as “resources to make money from the voyeurism of the general public.” A key concern was that the bodies were denied burial and that this was a dignitary affront. Burns conceded, however, that the concept of human dignity as applied to deceased individuals is unclear.

I started to think about whether there is dignity after death and, if so, what are its parameters, when I read a news article from the New Haven Register, about the skeleton of an enslaved man that was being studied by the anthropology faculty and students at Quinnipiac University prior to burial.

The enslaved man who died in the 1798 (slavery was not abolished in Connecticut until 1848), was named Fortune. At the time of his death Fortune was the human chattel of a Waterbury Connecticut physician who upon Fortune’s death boiled his body to remove the flesh keeping his skeleton to study human anatomy. Fortune’s body remained unburied and was on display as late as 1970 at the Mattatuck Museum where until recently it was still housed. Read More