Volume 105

Procedural Justice, Legal Estrangement, and the Black People’s Grand Jury

In recent years, increased attention has been drawn to the violence and oppression communities of color experience at the hands of police. This is most evident when looking at the rise of Black Lives Matter. Despite historically going unnoticed, the movement has catapulted police killings of Black people into the spotlight. Due to the actions of dedicated activists, the names of Michael Brown, Eric Garner, Philando Castile, Alton Sterling, Freddie Gray, Sandra Bland, and many others have appeared in the news and on social media timelines, forcing society at large to become acutely aware of the atrocities committed by the police against people of color.

While there has been increased debate and scrutiny concerning the actions of police officers, there has been little in the way of justice or remedies. Black communities have watched time and time again as the police who killed Brown, Garner, Gray, and so many others have evaded justice. Police who kill Black civilians are rarely convicted for their actions. This has led to frustration on the part of Black communities, who have expressed disdain for the current system, which they do not believe will treat them fairly. This is particularly evident in Ferguson, Missouri, following the death of a Black teenager named Michael Brown, at the hands of White police officer Darren Wilson. Brown’s death resulted in social unrest, not only in the city of Ferguson but throughout the country. This tension was exacerbated after the grand jury failed to indict Wilson. Two months later, activists associated with the International People’s Democratic Uhuru Movement (“Uhuru Movement”) convened the “Black People’s Grand Jury” (“BPGJ”) in Ferguson, Missouri. The BPGJ was a response to the non-indictment of Wilson for the death of Brown. In stark contrast to the institutional grand jury, the BPGJ was composed of jurors chosen by the community, had proceedings that were open to the public, and provided a historical analysis for contextualizing Michael Brown’s death as a systematic occurrence.

By utilizing Ferguson as a case study, this Article seeks to provide an understanding of courts as important and central actors that produce and legitimize police misconduct, thus contributing to a sense of exclusion for communities of color. This entails a theoretical framework that does not assume courts are simply one entity of a broader legal system but, instead, seeks to situate courts as an integral body and state institution that legitimizes police violence against communities of color.

This Article also serves as an expansion of existing theoretical frameworks accounting for the fraught relationship between communities of color and formal legal structures. This analysis also acknowledges the agency demonstrated by the BPGJ, which emerged as a remedy for the community’s disillusionment with a formal legal structure that it felt was unjust. By developing a Critical Race approach that is attentive to notions of legal estrangement, procedural justice, and social movement theories, this Article develops an epistemological framework for understanding how communities of color, when faced with perceived illegitimate structures, seek to create their own. While the BPGJ had no legal standing, it would be a missed theoretical opportunity to not interrogate how it served as not only an indictment of Darren Wilson but, more importantly, as an indictment of the police, the courts, and—by extension—the legal system as a whole.

Reconceptualizing the Harms of Discrimination: How Brown v. Board of Education Helped to Further White Supremacy

For decades, literature has played a vital role in revealing weaknesses in law. The classic novel To Kill a Mockingbird by Harper Lee is no different. The long-revered work of fiction contains several key scenes that illuminate significant gaps in the analysis of one of our most celebrated decisions: Brown v. Board of Education, the case in which the U.S. Supreme Court held that state-mandated racial segregation in public schools violated the Equal Protection Clause of the Constitution. In particular, the novel opens a pathway that enables its readers to visualize the full harms of white supremacy, which include not only the detrimental effects of experiencing discrimination for Blacks but also the dehumanizing effects of perpetrating discrimination, whether voluntarily or involuntarily, for Whites. More specifically, the book constructs a narrative from which society can begin to understand how the Brown Court defined the harms of discrimination too narrowly and, more so, how this limited understanding of the harms of discrimination—here, segregation—has unintentionally resulted in the development of anti-discrimination doctrine that is unable to lead us to true racial equality.

On Charlottesville

This year marked the first anniversary of the white supremacist rally that terrorized Charlottesville, Virginia, and the 150th anniversary of the vote to ratify the 14th Amendment to the United States Constitution. The confluence of these two commemorations offers an opportunity to draw lessons from the national resurgence of racism and nationalism that has erupted in Charlottesville and throughout the country, in light of the 14th Amendment’s still unfulfilled promise of equality. Section 1 of the 14th Amendment forbids any State to “deny to any person within its jurisdiction the equal protection of the laws” in America. Known as the “Reconstruction Amendment,” it granted citizenship to enslaved Americans and “[a]ll persons born or naturalized in the United States.” It further forbid states from lawfully discriminating against “any person within its jurisdiction.” Yet, by 1883, the United States Supreme Court had reversed congressional efforts to ensure that states would uphold equal rights for African Americans, and instead acquiesced to the segregationist interpretation that argued that constitutional equality did not mean social equality. In The Civil Rights Cases, the Supreme Court interpreted the 14th Amendment to allow racial segregation and discrimination by private actors. Then in 1896, the Supreme Court upheld the constitutionality of state laws that enforced racial segregation in public spaces, by declaring the Constitution of the United States powerless to put the “inferior” colored race on the same social plane as the white race. Thus, the Supreme Court gave legal grounding to gross inequities of the Jim Crow era and restored constitutional protection to the dehumanization of blacks. Indeed, the conviction that blacks are less than or a lesser form of human is the animating assumption that underlies and unites explicitly and implicitly racist American laws. Specifically, dehumanization undergirds explicit and implicit segregation. 

Using Charlottesville as a case study, this Article explores the theory, mechanisms, and impact of legally constructed residential segregation—the crown jewel of systemic dehumanization, both historically and contemporarily—that isolates black and white Americans from one another, withholding from the former the rights, resources, and relationships that make equality possible in America, notwithstanding the plain language and intent of the 14th Amendment. By way of introduction, the Article begins with a summary of terminology important to the theory and argument presented here. None of these terms are new to the equality discourse, but they have reappeared amid the chaos and resurgence of racism that Charlottesville now epitomizes. Therefore, rather than trust the variety of meanings that may have emerged, I will first define the terms dehumanization, white supremacy, white nationalism, racism, segregation, and racial bias before setting forth the substance of my case against current misinterpretations of the 14th Amendment.

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