Legal Pad Spring 2018

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On behalf of the National Magazine Committee, I welcome you to the Spring 2018 Edition of the Legal Pad. In this edition, the Magazine Committee highlighted the scholarly work of NBLSA members on the theme of "Embracing our Legacy: The Role of the Young Black Attorney." NBLSA members and alumni from across the nation submitted varying perspectives and we are proud to showcase a few of those submissions.

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Editor's Note About NBLSA Student Articles Debra Marie Bulluck - Understanding the Barriers that Prevent Black Women from Seeking Legal Rememdies for Domestic Violence and What Young Black Jurists Can Do Olurotimi Osha - More Black May Save Black Men from Jail Devron Brown - Soul Breanna R. J. Smith - What's Not Better Left Unsaid: Why Judges Should Voir Dire Jurors with Open-Ended Questions ABout Implicit Bias Johnathan Duffie - Vouchers, A Proxy for Racism Tyra Robinson - Empowering the Black Community Through SelfSufficiency, Self-Advocacy, and Representation Adria Harris - How Minoriries in Big Law Can Contribute to Our Communities: Reach Back to Pay It Forward


Alumni Article Chloe Woods, Esq. - Leach or Leader: The Power of Being Young, Black, and Laywered




NBLSA White Paper Jeremy McLymont and Meagan Sunn - The Student to Prison Pipeline

We hope you enjoy reading. Iman G. Lyons Editor-In-Chief, Spring 2018 Legal Pad

National Magazine Committee Staff Britney Retess, National Secretary Christy I. Watts, MABLSA Regional Historian Christopher Porsenna, National Director of Communications


The mission of the National Black Law Students Association is to increase the number of culturally responsible Black and minority attorneys who excel academically, succeed professionally, and positively impact the community.

Message from the National Chair This year, we are celebrating half a century of programming, education, advocacy, and pushing for a more diverse and inclusive legal profession. Since 1968, NBLSA has produced some of the finest attorneys in all industries and career paths. Our members are law students from Washington State to Washington, D.C. and our alumni are prosecutors, public defenders, general counsel, lawmakers, judges, attorneys general, as well as a former president and first lady of the United States.

Since the beginning of the 2017-2018 NBLSA Year on April 1, the 50th National Executive Board, as well as the various Regional Boards, have been hard at work in developing programming, establishing sound governance policies, and continuing to developing the NBLSA community. Let me take this moment to thank each and every one of you for your support of NBLSA's mission. Your efforts cultivate the next generation of brilliant Black and minority attorneys who will take this profession into the future.

Yet, our work remains unfinished.

"NBLSA continues to exist because the need for NBLSA in championing a more diverse legal community continues to exist." N B LSA Foun der Alg ern on J. Cooper, E sq.

Despite fifty years of work by distinguished men and women in BLSA chapters across the nation, there are many victories ahead for the organization and its members. Even so, we take this moment to celebrate the progress of this year, and we recognize the many people who have helped pave our way.

We look forward to our 50th National Convention, March 13-18, 2018 in Brooklyn, NY, where we will celebrate our legacy and rededicate ourselves to continuing to advance our mission into the next 50 years.

From our Founder, Algernon J. Cooper, who continues to be a supportive presence and influence to the organization, to our past National Chairs and Alumni Advisory Board members, to law school professors who mentor NBLSA's student members, our success would not be possible without the contributions and counsel of these dedicated individuals. Mark A. Dunham, Jr.


48th NBLSA National Chair

"The purpose for which this corporation is formed is to articulate and promote the professional needs and goals of [Black and minority] law students; to foster and encourage professional instill in the Black Attorney and Law Student a greater awareness of and commitment to the needs of the Black Community..." - NBLSA Articles of Incorporation




NBLSA works with an awareness and understanding of the history, the struggle, and the determination of our people. We also know that "Black law student" is reflective of the full range of the diaspora.

Taken from the articulation of its mission, NBLSA programming, events, and initiatives center around four principles that we believe are critical to the development of Black and minority attorneys.

ACADEMIC EXCELLENCE NBLSA works to create resources, hold programs, and build confidence in every Black and minority law student to excel and overcome the academic rigor of law school to become attorneys of the highest caliber.

NBLSA Members work to exemplify, defend, and promote these goals and ensure through oversight that our work is aligned with our mission.

PROFESSIONAL SUCCESS NBLSA works to help our members and our students build connections, develop skills, and take opportunities to pursue the career of their dreams and provide access to others who may follow.



NBLSA works to instill community commitment through facing the issues of our time and investing our time and talent into the community regularly.

STRUCTURE Our organization has national, regional, and local chapter structures. NBLSA members join at the local chapter level and have access to Regional and National events, programs, and leadership opportunities as a result of their NBLSA membership.

"A lawyer’s either a social engineer or … a parasite on society … A social engineer [is] a highly skilled, perceptive, sensitive lawyer who [understands] the Constitution of the United States and [knows] how to explore its uses in the solving of problems of local communities and in bettering conditions of the underprivileged citizens."

REGIONAL Led by a Regional Chair, the Regional Board, and overseen by a Regional Assembly, the six NBLSA Regions focus their efforts on providing critical networking opportunities and programming to certain geographical areas.

LOCAL The chapter at the law school level is the heart of NBLSA and where its work is most tangibly realized. Led by a president, an executive board, and overseen by the local membership, it works on behalf of students locally.

NATIONAL Led by the National Chair, the National Executive Board, and overseen by the National General Assembly, the National level of NBLSA provides the overarching policy and programmatic direction to the entire organization and provides resources to chapters for program development.


National Black Law Students Association For questions:

Understanding the Barriers that Prevent Black Women from Seeking Legal Remedies for Domestic Violence and What Young Black Jurists Can Do Debra Marie Bulluck 3L - University of Wyoming College of Law

Young Black attorneys have an opportunity to stand in the gap to advocate for a multitude of causes. From police brutality to mass incarceration, the justice system has repeatedly failed the Black community. However, there is one issue that often lays dormant in this advocacy narrative, domestic violence (DV). Black women comprise thirteen percent of women in the United States, yet, they make up half of the female homicide victims— “the majority whom were killed by current or former [intimate partners].”1

When slavery ended, the domestic and sexual violence that Blacks experienced and internalized during slavery did not end with it. According to a few scholars, during the Jim Crow Era, raping Black women was the new status quo for lynching Black men; it was a means to keep the Black man in his place.10 This framework portrays this violence as exclusively a Black man issue. Therefore, rallying to end the Black woman’s victimization was placed in the shadow to fulfill the pressing need to protect the Black man.11

The history of DV against the Black female body dates to slavery and continues to impact Black women and their families. “The intersection of different kinds of oppression for African American women is key to understanding their unique position and experiences” (Crenshaw 1991; Sokoloff 2005).2 Young Black legal-minds can change this narrative if they understand the primary barriers that contribute to this status quo of silence—historical maltreatment of Blacks, community dynamics, and notorious relationship with law enforcement—and how these barriers influence a Black woman’s decision to report and seek legal remedies. These barriers explain why Black women experience DV at a rate of 35% higher than their white counterparts, and why they are less likely to utilize social services to find relief, like a shelter.3 Thus, this understanding will enable these innovative, young attorneys to create trauma informed, culturally competent solutions that empower Black victimsurvivors to speak out against DV instead of conforming to the “one-size-fits-all” model.

This necessity to protect the Black man’s interest, the general fear of projecting negative stereotypes, and the bad advice from some well-meaning church folks have unintentionally become roadblocks for many Black woman from seeking help. It was deemed improper to seek help outside the four walls of the family home, especially if DV or rape was occurring.12 Bottom line, to protect the integrity of the Black community, it was “better” for Black women to suffer in silence to prevent negative stereotypes that white folks could use. In some instances, Black women who sought help from the church were greeted with reminders that God will not give her more than she can handle and biblical doctrines of forgiveness and submission.13

of oppression. By the time the law intervenes, she is or has already experienced various types of trauma. Assessing the needs and potential response she may have with courtlevel intervention must be a role young Black jurists play. Ultimately, young Black attorneys have the tools to change the Black woman’s narrative regarding the law and DV.


Mary Emily O’Hara, Domestic Violence: Nearly Three U.S. Women

Killed Every Day by Intimate Partners (October 2, 2017)


Id. Subsequently, the indictment was quashed and George was



10 Ammons, supra, at 1003, 1028-29.




Carolyn M. West, editor Violence in the Lives of Black Women:

Battered, Black, and Blue. “Fragmented Silhouettes”. Salamishah Tillet

Lettie L. Lockhart and Fran S. Danis editors, Domestic Violence:

Intersectionality and Culturally Competent Practice, 73-74. Columbia

(2002) The Haworth Press, Inc. 161, 173.

University Press (2010); Potter, supra, at 18.



Traci C. West, Wounds of the Spirit: Black Women, Violence, and

Resistance Ethics 58-60 (1999).

Women of Color Network, Domestic Violence in Communities of

Color: Facts & Stats Collection.


Traci C. West, supra, at 60.



Ammons, supra, at 1003, 1006-07; Sheba McCants, Breaking


L. Ammons, Mules*, Madonnas, Babies, Bathwater, Racial Imagery and

Down Barriers for Domestic Violence Victims of Color (September 27, 2016

Stereotypes: The African-American Woman and the Battered Woman

12:35 PM MT)

Syndrome, 5 Wis. L. Rev. 1003, 1020-21 (1995).



Id. at 1025.

15 Ammons, supra, at 1003, 1018-19.


Linda L. Ammons, Mules*, Madonnas, Babies, Bathwater, Racial


Imagery and Stereotypes: The African-American Woman and the Battered


Lockhart and Danis, supra, at 73.

Woman Syndrome, 5 Wis. L. Rev. 1003, 1025 (1995).


Although the slave trade began as early as the 15th century, it is

Id. at 1003, 1006-07.



acknowledged that the first African slaves arrived in the Jamestown colony


George v. State, 37 Miss. 316, 1859 Miss. LEXIS 20 (Miss. 1859).

were in 1619. Staff, Slavery in America, (October 21,



2016, 5:07 AM MT),

Compound the dynamics of the Black community with a perpetual fear and distrust of law enforcement, Black women are met with yet another barrier.14 Pervasive stereotypes further stigmatize this “us versus them” practice on how the legal system works within the Black community. According to one case study, “…[Blacks] must overcome the presumption that their race predisposes them to engage in and enjoy violence…[besides] blacks are ‘normal primitives,’ or violence-prone.”15 Consequently, when deciding to involve the legal system, Black women often must consider 1.) whether their babies will be taken away from them, 2.) whether police will brutalize their partner, and 3.) whether police will brutalize them and not take their claims seriously.16 Statistics show that Black women are more likely to lose their children during a domestic dispute versus their non-Black counterparts.17 Thus, after nearly four hundred years of habitual, negative experiences with the legal system, it is difficult for Black women to continue to attempt to rely on a system that was never established to protect their interests.18

Black women have been targets of systematic violence since the birth of this nation. Slavery was an economic solution to infrastructure, but it quickly became a divisive tool dominated by hatred and domestic violence.4 People in power believed Black women were not people but property that must be controlled by savage rapes and beatings. Because a master could not trespass on his own property, courts held that a master could physically and sexually abuse his slave.5 Thus, enabling courts to per se legalize acts of DV upon Black women. Unfortunately, these forms of violence intensified and stained the nation’s “moral fabric.”6 In George (a slave) v. State, the Mississippi Supreme Court decided whether a male slave committed a capital offense by having sexual intercourse with a female slave who was under the age of ten.7 The court held that neither the common law nor statutory enactments…would be applied to a case where a slave raped another slave.8 The court stated, “The crime of rape does not exist in this State between African Slaves.”9

The antiquated “one-size-fits-all” approach to address the complexities of DV is a disservice to Black women. Effective legal services embrace her multi-dimensions, her strengths, understands how race and gender intersect in her life daily, and acknowledges the impacts of the long history




More Black Lawyers May Save Black Men from Jail Olurotimi Osha 2L - The George Washington University Law School

Being a lawyer is no trite affair. Being a black lawyer is a big deal. Now being a black male lawyer is even a bigger deal. And it is pretty amazing to be a black male Harvard grad lawyer - you can become President of the United States, like Barack Obama. It is phenomenal being a black male Harvard grad lawyer and Professor at Harvard Law School - you will save lives and change the world: just like Harvard Law Professor Ronald Sullivan. As a child, I had no doubt that I wanted to become a lawyer. Everyone who knew me in my country of birth, knew exactly what I was meant to do: law. Then in America, almost everyone tried to discourage me from becoming a lawyer: with most citing the overabundance of lawyers in society... claiming lawyers do not “make anything or build anything like engineers do, or heal the sick like doctors do.” Lawyers are social engineers, who build a more just society. You want to see black engineers graduating from MIT or black medical doctors from Johns Hopkins? Well lawyers made it possible through Brown v. Board, by effectively declaring segregation in public schools to be unconstitutional, and setting the stage for further anti-discrimination laws that move American society toward equality in fact. And remember a lawyer initiated steps towards outlawing slavery in America with the Emancipation Proclamation: Abraham Lincoln. Regarding the proliferation of lawyers or their oversupply in a utilitarian economy: this is not applicable to black lawyers. Especially, black male lawyers. Last year I was in a class section of about 80 law students. And I was the only black male for the entire year - arguably one place that’s not chocolate in “Chocolate City” –the sobriquet for Washington, DC (misnomer). In the neighboring state of Maryland, where I lived in my first year of law school, 72% of the prison population is made up of black men. It is abysmal, given black men constitute less than 12% of the population of the state. In fact, I argue that partly because there is a dearth of black male lawyers, black men are “overrepresented” in America’s prison population.

“It is abysmal, given black men constitute less than 12% of the population of the state. In fact, I argue that partly because there is a dearth of black male lawyers, black men are “overrepresented” in America’s prison population.”

When Thomas Paine wrote, “These are the times that try men’s souls”, he likely did not consider the soul that lives inside young black lawyers.1 Nonetheless, his discussion surrounding the toll in combatting British tyranny and conflict puts on the soul, is relevant now to young black lawyers more than ever.2 The times in our country have changed, regardless of whether it is good or bad change, the role of the young black lawyer, in ensuring the times keep changing, has not diminished.

It was disturbing when a black male law student, in a conversation, insinuated that black men were prone to crime and violence, and that was why they were possibly incarcerated at such astronomical rates. No. The answers (at least some of them) are in the tapestries of contrasting pictures. The folks sending black men to jail: non-blacks. If there were some hidden Tartarean conspiracy to paint black men as inherently criminal, even among blacks themselves it is working. But there is an unmindfulness and callousness in law enforcement and the criminal justice system. There is a seeming lack of empathy for the plight of black men or an apparent deficit in the connection between the legal apparatus and law enforcement and black communities being “judged.” Black communities are yet to be viewed within the body politic and enforcement framework as full citizens to be protected and served by the law). Lawyers are made to unravel such things and bust “grand collusion.”

The character, resilience, and determination of our foresisters and brothers has been memorialized as Soul. Over the years, this Soul has been passed down from lawyer to lawyer as lessons on community, style, and selflessness. Regardless of how underwater the world may make us feel, it is paramount to each of our journeys that we keep the Soul alive. Collectively, our souls are anchors that can pull us up when we feel weak, “hold us down” when we need support3, and serve as a home-base when we feel lost. These times can’t take our Soul.

If you know any black male, no matter how old: tell him to work on becoming a lawyer. Even in jail, he can study to become a lawyer. Mandela did it. And if the black male is free, encourage him to avoid the “bling bling” and live a life of denial in order to get his law degree. Already married and with kids, Mandela quit his job to become a full-time student subsisting on student loans for a while. Many ignorant detractors will say rubbish, but like Mandela, ignore them all. Because as a lawyer, you will be in good company, among men who changed the world: Abraham Lincoln, Alexander Hamilton, Nelson Mandela, Thurgood Marshall, Karl Marx, Vladimir Lenin, and Barack Obama.

A few weeks ago, I compared two different tapestries of photographs: one was mostly all whites with some Asian Americans. The second one was all black men. One was of graduating students entering the workforce as lawyers this year (it won’t take a rocket scientist to figure that one out). The other one—all black men—was of people convicted and in prison.

Soul Devron Brown 3L - The George Washington University Law School

traditions of office culture. While at the same time, lifting up one another and understanding that Soul is not limited to a region, skin color, hair style, lifestyle, school, or continent. There are Soulful sisters in Utah and Soulful brothers in Alaska. When Martin Luther King, Jr. said, “Change does not roll in on the wheels of inevitability, but comes through continuous struggle.”12 He considered the role of the young black lawyer because the Soul that lived inside him is the same Soul that lives inside every young black lawyer. It is up to us to embrace the Soul.

Watson 18, Commercial Place, City Road, Finsbury) (1835). 2

See supra id.


See HOLD-DOWN, as a verb,

dictionary/hold-down at verb (last visited Oct. 4, 2017); see also HOLDDOWN (last visited Oct. 4, 2017). See



(last visited Oct. 4, 2017). The “Godfather of soul”. See JAMES BROWN BIOGRAPHY,


Our Soul is not easily defined by a list of rules or elements; it is something that evolves internally throughout life experiences. Merriam Webster’s defines soul as “the immaterial essence, animating principle, or actuating cause of an individual life.”4 Naming a few ingredients, you and I know soul as: James Brown5, food6, movies7, and Kanye West beats from 2000 – 20078. Most importantly, we recognize and know that black people are the soul of America.9 Yet, our soulful awareness comes with baggage. The first bag is given at birth, when external groups deem our names “uncommon”10 and our skin too dark or when internal groups deem our names too “white” or our complexion too light. The second comes from the legal practice when we question ourselves, asking sometimes daily: “Is this hairstyle okay?”, “Why am I only given these issues?”, and “Why does everyone think I’m only here because of diversity?” For the young black lawyer, at least two additional carry-on bags are certain. One from law school, either when we learn about the legal system’s acceptance of discrimination and injustice or when we learn about the legal system’s institutionalization of discrimination and injustice.11 The weight of these additional bags can break the soul. Together, we shall not let it. (last visited Oct. 7, 2017). See Sam Worley, Where Soul Food Really Comes From,


EPICURIOUS (June 29, 2016), real-history-of-soul-food-article. See Ranker Community, Black Entertainment Collection: List of


Black Movies, Ranked Best to Worst, RANKER (last visited Oct. 7, 2017), See Kanye West Production Discography, WIKIPEDIA (last visited


Oct. 7, 2017), _production_ discography. See All Things Considered: 20 Years Ago, Marvin Gaye Took


‘National Anthem’ To New Heights NPR




gayes-national-anthem; see also, Rolling Stone, Inside Michael Jackson’s Iconic First Moonwalk Onstage, ROLLING STONE (Oct. 5, 2015), http://


moonwalk-onstage-20151005; see also Rolling Stone, Obama: ‘I Wasn’t Worried’ About Singing Al Green, ROLLING STONE (Apr. 25, 2012), http:// 10

See David Sax, What’s up with black names, anyway?, SALON

(Aug. 25, 2008), ve_black_

So, what does the young black lawyer do with all this Soul? The role of the young black lawyer is to not only keep the Soul alive, but to also keep it well-nourished and supported. This means bringing diverse opinions into conference rooms. Challenging mediocrities, commonalities, standards, and




names/. 11

See generally Plessy v. Ferguson, 163 U.S. 537 (1896); see also

Terry v. Ohio, 392 U.S. 1 (1968). 12

See Martin Luther King, Jr. Quotes, https://www.brainyquote.

com/quotes/quotes/m/martinluth121065.html (last visited October 7, 2017).



What’s Not Better Left Unsaid: Why Judges Should Voir Dire Jurors with Open-Ended Questions About Implicit Bias Breanna R. J. Smith 3L - The George Washington University Law School Justice Harlan was perhaps far ahead of his time when in 1896 he wrote the sole dissenting opinion in Plessy v. Ferguson and stated that “in the eye of the law, there is in this country no superior, dominant, ruling class of citizens . . . [o]ur constitution is color-blind, and neither knows nor tolerates classes among citizens.”1 Although today de jure discrimination on the basis of race is unconstitutional2, as a Nation we still grapple with the remnants of racial discrimination in the form of implicit racial bias. Studies show that these biases not only taint the subconscious, everyday decision making of people of all hues3, but they also have the potential to affect the decisions that jurors make regarding who to send to jail and who may enjoy freedom. Indeed, in 2017, 121 years post-Plessy, studies show that we, as a Nation, are still not quite colorblind.

people have, and are unable to readily recognize. Jonathan Rapping offered the following example as an effective way for attorneys to question jurors about their implicit biases: You have just learned about the concept of [implicit racial bias]. Not everyone agrees on the power of its influence or that they are personally susceptible to it. I’d like to get a sense of your reaction to the concept of subconscious racial bias and whether you are open to believing it may influence you in your day-to-day decision-making. Let me start by asking for your reaction to learning about the idea of implicit, or subconscious racial bias.7

Though the sample question above was suggested for A trial judge has never been admonished by the Supreme attorneys, it may also be used by judges that conduct voir Court of the United States for asking potential jury members dire. Posing open-ended questions such as the example about their racial biases during voir dire.4 That said, above would allow judges and counsel to observe the judges, at least as a matter of prudence, should question would-be jurors’ verbal and non-verbal responses. Asking jurors about race. However, judges should ask possible questions of this nature would require the potential panel jurors about their racial biases in the form of open-ended to think about how they feel about implicit racial bias, and questions for three reasons. First, to inform potential jurors articulate any skepticism they may have. Additionally, about implicit biases. Second, to cause jurors to realize the judges and counsel would have the opportunity to observe possibility that they may have implicit racial biases. Third, the jurors’ verbal and nonverbal responses. As the term and then remove jurors from the factfinding process when voir dire literally means “to see them say,”8 the judge and the juror seems unable counsel would have the to put their biases aside “By contrast however, judges should format opportunity to see jury and have an evidence- their inquires as open-ended questions to candidates express, both driven discussion with verbally and nonverbally, fellow jurors about what “encourage reflection and thought about the their thoughts about the outcome of the case powerful influence of race,” and shed light implicit racial bias. should be. on the unconscious biases and prejudices Rapping’s example It has been argued that that many people have, and are unable to also gives judges an questioning jurors about readily recognize.” opportunity to educate whether they are racially jurors about implicit prejudiced is futile because jurors may become offended bias. The example above presupposes that the jury will when asked if they are racially biased or simply render the have just been informed about what implicit racial bias is, “politically correct” answer while standing before a judge and thus the court should explain to potential jury member and a room of peers in a court of law5. It is perhaps true that about what the concept is prior to asking a question of this many people would answer in the negative when posed a nature. Implicit racial bias is a fairly new concept that some close-ended question such as “are you racially prejudice.” people have a difficult time accepting, and so by having A closed-ended question would only elicit a potentially this dialogue during voir dire, many more people have the dishonest yes or no response. opportunity to become educated about it. By contrast however, judges should format their inquires as open-ended questions to “encourage reflection and thought about the powerful influence of race,”6 and shed light on the unconscious biases and prejudices that many

Not only does posing open-ended questions, such as Rapping’s, allow for jurors to become informed about what implicit bias is, their thinking about the concept may cause them to realize that they are affected by their own


subconscious racial prejudices. For those who never heard of the concept prior to being questioned during voir dire, this could radically alter one’s perspective. It poses an opportunity for jurors to better understand a viewpoint they have of which they were unaware. Once jurors understand the concept of implicit racial bias, that many people are affected by it, and they too may be affected, they can decide whether or not they will work to put such biases aside, and do their best to determine the case on the facts and evidence presented to them. If a juror demonstrates an inability to put their implicit racial biases aside or simply refuses to accept that implicit racial bias exists, then the may strike the juror that appears not to be unable to decide the case impartially.


E.g. Brown v. Bd. Of Educ. of Topeka, Shawnee Cty. Tex., 347 U.S.

483, 494-495 (1954) (holding that “separate education facilities are inherently unequal,” and to maintain segregated schools was a “depri[vation] of the equal protection of the laws guaranteed by the Fourteenth Amendment”). 3

“It is important to note that racial bias is not unique to any particular

group. While it is often assumed that racial bias means bias in favor of Whites and against Blacks, racial bias can cut in many different ways.” Cynthia Lee, A New Approach to Voir Dire on Racial Bias, 5 UC IRVINE L. REV. 843, 846 (2015). 4

See Turner v. Murray, 476 U.S. 28 (1986); Rosales-Lopez v. United

States, 451 U.S. 182 (1981); Ristano v. Ross, 424 U.S. 589 (1976); Ham v. South Carolina, 409 U.S. 524, 525 (1973); Aldridge v. United States, 283 U.S. 308 (1931). 5

Albert W. Alschuler, The Supreme Court and the Jury: Voir Dire,

Preemptory Challenges, and the Review of Jury Verdicts, 56 U. CHI. L. REV.

As evidenced by the Supreme Court’s holding eighty-six years ago in Aldridge, our justice system has worked to purge our jury panels of prejudice. However, it is clear that the issue of racial prejudice on juries still persists, and now in 2017, the problem is dressed in the clothes of implicit bias. Judges who preside in jurisdictions where voir dire is largely controlled by the judge, should take action to help remedy this problem, to insure that the factfinding process is done impartially. Judges should probe potential jurors with open-ended questions on implicit racial bias in an effort educate jurors about the problem, help jurors realize any subconscious biases they may have, and then the court may determine whether they can likely set their prejudices aside for purposes of the case. Taking the steps to ask jurors such questions will allow judges and counsel to have a more meaningful voir dire, to see them say whether they would be impartial factfinders in the case. 1

153, 161 (1989). Alschuler has argued that asking jurors about their racial prejudices would be “minimally useful” because if a potential jurors were asked questions such as “[p]ardon me. Are you a bigot?” the juror would feel the question was patronizing and become offended. However, this paper does not suggest that questioning be phrased in that manner. 6 Lee, supra note 2 at 867; See also Regina A Scheller et al., The Impact of Prejudice Screening Procedures on Racial Bias in the Courtroom, 33 Law & Hum. Behav. 320, 326 (2009) 7

Jonathan A. Rapping, Implicitly Unjust: How Defenders Can Affect

Systemic Racist Assumptions, 16 N.Y.U. J. LEGIS. & PUB POL’Y 999, 1032 (2013). 8

VIDMAR & HANS, supra note 19.

Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J., dissenting).

Although Justice Harlan wrote these words in his dissenting opinion, his views were not shared by the majority of the Court. But see Plessy v. Ferguson, 163 U.S. at 550-552. In holding that separate but equal state public facilities were constitutional, the Supreme Court stated that “[w]e consider the underlying fallacy of the plaintiff’s argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it . . . If the two races are to meet upon terms of social equality, it must be the result of natural affinities, a mutual appreciation of each other’s merits, and a voluntary consent of individuals. As was said by the court of appeals of New York in People v. Gallagher, 93 N.Y. 438, 448: ‘This end can neither be accomplished nor promoted by laws which conflict with the general sentiment of the community upon whom they are designed to operate. When the government, therefore, has secured to each of its citizens equal rights before the law, and equal opportunities for improvement and progress, it has accomplished the end for which it was organized, and performed all of the functions respecting social advantages with which it is endowed.’ Legislation is powerless to eradicate racial instincts, or to abolish distinctions based upon physical differences, and the attempt to do so can only result in accentuating the difficulties of the present situation. If the civil and political rights of both races be equal, one cannot be inferior to the other civilly or politically. If one race be inferior to the other socially, the constitution of the United States cannot put them upon the same plane.” Plessy v. Ferguson, 163 U.S. at 551552 (quoting People v. Gallagher, 93 N.Y. 438, 448 (1883).



Vouchers, A Proxy for Racism Johnathan Duffie 2L - Case Western Reserve University

Since the Civil Rights movement, black attorneys have built a legacy by advocating for racial, social, and economic equality. Housing equality for low-income communities and communities of color is perhaps greatest civil rights issue of our time. One of the best means for young black attorneys to embrace the legacy established by the black attorneys of yesterday is to work to resolve barriers that operate invidiously to discriminate on the basis of racial or other impermissible classification.

because a much higher percentage of the county’s total African American population receives vouchers.8 The Court rejected this argument on the basis that the voucher program is voluntary. In Graoch Assoc. v. Louisville/ Jefferson, County Metro Human Relations Comm’n,9 the Kentucky Fair Housing Council Commission argued that the landlord’s withdrawal from the voucher program had a disparate impact on African Americans because seventeen of the eighteen voucher holders living in the landlord’s building were African American, and near the time of the case “6,270 of the 8,849 Jefferson County residents receiving Section 8 vouchers were black.”10 Unlike Knapp, this Court concluded that a landlord’s withdrawal from the voucher program can give rise to a disparate impact claim, however, the Court further concluded that the Commission could not show that the landlord’s withdrawal from the voucher program harmed a disproportionate percentage of the African American tenants.11

The Housing Choice Voucher Program has become a proxy for racism as landlords in low-poverty neighborhoods are able to lure tenants to her or his property, only to withdraw from the program upon realizing she or he has attracted a black, voucher-holding tenant. Consequently, many black families are forced to use their vouchers in even more segregated neighborhoods than the one they were already living in.1 If this practice is allowed to continue without any real legal consequences, there will be an enormous practical impact on the Department of Housing and Urban Development (HUD) who has to bear the burden of discriminatory housing practices against black voucher holders.

“The Housing Choice Voucher Program has become a proxy for racism as landlords in low-poverty neighborhoods are able to lure tenants to her or his property, only to withdraw from the program upon realizing she or he has attracted a black, voucherholding tenant.”

The voucher program is one of the primary methods of providing housing to low-income families; and as of 2015, the voucher program has assisted roughly 2.4 million households.2 Individuals who qualify to participate in the program are encouraged to rent units in low-poverty neighborhoods.3 However, because landlords are not legally required to rent to voucher holders many landlords in lowpoverty neighborhoods resist black voucher holders.4 There exists, then, the troubling idea that landlords are using the voucher program as a veil for racism. For example, in a study conducted by HUD, post-Hurricane Katrina, “nineteen percent of white voucher households used vouchers in lowpoverty neighborhoods in metro New Orleans, compared with only six percent of black households.” This study also showed that Latino voucher holders lived in slightly less segregated communities than blacks, but still more segregated than whites.6

The courts’ focus on the voluntary nature of the voucher program makes a mockery out of the Fair Housing Act because it allows landlords to claim that they are not discriminating by race, but instead, voucher holders are turned away simply because of their voucher status. What is more, under the Court’s analysis in Groach, a prudent landlord can mask her or his discriminatory intentions and escape the grasp of the disparate impact doctrine by arguing she or he has a legitimate business reason for not participating in the program.12 The bottom line is that the courts’ narrow focus on the voluntary nature of the voucher program allows blatant examples of discrimination to go unpunished.

Because landlords are not legally required to rent to voucher holders, courts have struggled with whether nonparticipation or withdrawal from the voucher program gives rise to a disparate impact claim. In Knapp v. Eagle Property Management Corp.,7 an African American applicant contended that the landlord’s refusal to accept any new vouchers had a disparate impact on African Americans

fact that they are participating in the voucher program.”13 The most obvious objection to this—which is consistent with Knapp and Groach—is that Congress cared that the voucher program was voluntary for landlords.14 Thus, even with SOI ordinances, landlords can discriminate against black voucher holders by simply withdrawing from the voucher program. Landlords who chose to participate in the voucher program should not be allowed to freely withdraw from the voucher program when she or he chooses to do so. Allowing landlords to veil her or his discriminatory behavior by arguing the voucher program is voluntary, insulates any racially motivated actions from legal challenge and makes a mockery of the Fair Housing Act. This veiled discrimination should be prohibited everywhere. Blacks have been systematically and unconstitutionally segregated for such a long period, and with such thorough repression, lawyers and housing advocates are required to make commitments to increase equal housing choice for Black voucher holders by expanding and vigorously contributing to the enforcement of fair housing laws by advocating for policies that promote residential integration and inclusive communities. 1

Eva Rosen, Rigging the Rules of the Game: How Landlords

Geographically Sort Low-Income Renters, 13 City & Community, 310, 312 (2014). 2

Daniel C. Phillips, Landlords Avoid Tenants Who Pay with

Vouchers, 151, Econ. Letters, 48, (2017). 3

Stefanie DeLuca et al, How Housing Policies Shape the Residential

Locations of Low-Income Minority Families, 647 The ANNALS of the American Academy of Political and Social Science, 268, 276, (2013). 4

Stacy Seicshnaydre, Missed Opportunity: Furthering Fair Housing

in The Housing Choice Voucher Program, 79 Law & Contemp. Prob, 173, 188 (2016). 5





54 F. 3d 1272 (7th Cir. 1995).




508 F.3d 366, 374 (6th Cir. 2007).


Id. at 370.


Id. at 378.


Jane M. Smith, Legis Att’y, R42151, Possible Legal Issues Facing

Landlords Who Choose Not to Accept Federal Housing Vouchers 1-19 (2012). 13

Lawyers Committee for Better Housing, Locked Out: Barriers

to Choice for Housing Voucher Holders Report on Section 8 Housing Choice Voucher Discrimination (2002), resources/2002-lcbh-housing-voucher-barriers-report.pdf 14

Chicago Policy Research Team, Not Welcome: The Uneven

Geographies of Housing Choice, xi (2017).

Source of Income ordinances (SOI) do nothing to prevent a landlord from discriminating against black voucher holders. For example, under the City of Chicago’s SOI ordinance, “it is illegal. . . to either refuse to accept housing vouchers or to discriminate in any way against tenants based on the




Empowering the Black Community Through Self-Sufficiency, Self-Advocacy, and Representation Tyra Robinson 2L - Case Western Reserve University Today’s political and social climate is not supportive to, conducive for, or, in ways even tolerable of black and brown communities. If you followed the news at all in the past few years, you know I don’t need to reference any specific events to demonstrate that there is an urgency for black and brown communities to become more self-sufficient. But, this cannot happen without those with power assisting in these efforts. With this in mind, the role of the young Black attorney in today’s social and political climate is to be a catalyst in sustaining our own communities by providing support, fostering self-reliance, and advocating vigorously for issues that affect our community.

and Asian attorneys combined currently make up seven percent.2 The diversity composition will continue to change only marginally unless attorneys of color speak up about it, and people with decision-making power do something to change it. This change requires more than having a diversity statement and plan. The change requires interpersonal interaction, including listening to the ideas of attorneys of color, asking questions to figure out how to retain Black associates in the corporate law field, making the public interest field more accessible for graduating law students of color with debt, and better relationship building with law students of color.

The newly minted Black lawyer’s role is to establish their footing in their new careers and eventually reach out to law students to mentor them, and help them grow as young professionals. As the young Black attorney becomes established in the legal community, they can start pointing out that the status quo of attorney demographics must change.

The young Black attorney’s role develops as the attorney does throughout their legal career. For the most part, this evolution develops from first-year law student, to fresh out of the bar exam JD practicing attorney, to experienced attorney. To begin this development, the young Black law student can welcome and exchange interpersonal support with other Black law students. The competitiveness of law school can sometimes elicit a detrimental animus from students. Interacting on a human or interpersonal level as opposed to the perpetually adversarial format counteracts this competitive mentality. This type of interaction means supporting and checking in with one another, which can come in the ways of academic, emotional, or social support. For me, this means asking if everything is okay when another Black student says they’re not doing so well. And, as a 2L and President of the BLSA chapter at Case Western, this means making sure I know each of the 1Ls’ names and letting them know that I am a resource for them whenever they need help. Supporting one another looks different for every person, but the purpose of these interactions is to ensure that if we are not receiving enough support from the university environment, that we at least provide it for each other.

in with the legal system, then work to address and fight against them. Some of the barriers affecting communities of color include: environmental racism4, racist and xenophobic immigration ideology5, and frequent challenges to legislation and initiatives that support communities such as universal health care and raising the minimum wage. Addressing these issues and fighting them requires time and resources, both of which are not infinite. But, the role of the young black attorney today is to pursue these issues by remaining in tune with the communities they wish to serve, supporting other Black attorneys, and by continuing to work on personal development as Black attorneys and Black people. Admittedly, it is easy for me to raise this call to action because my aspiration is to practice civil rights law and to advocate for environmental racial justice. But all Black attorneys should take a moment to reflect on whether they are doing as much as they can to effectuate change on issues which inevitably affect them and those they care about. As Black attorneys, we have a great deal of power to create change which can empower and support communities of color and we should be bold in exercising this power.

1 2017

American Bar Association, National Lawyer Population Survey (Feb.



administrative/market_research/national-law yer-population-10-yeardemographics-revised.authcheckdam.pdf 2



Shaila Dewan, Private Probation Company Accused of Abuses in

Tennessee, NY Times (Oct. 5, 2015), us/private-probation-company-accused-of-abuses-in-tennessee.html 4

American Civil Liberties Union and New York Law School Racial

Justice Project, Unshared Bounty: How Structural Racism Contributes to the Creation and Persistence of Food Deserts (Oct. 6, 2017), http://www.

The importance of representation is immeasurable. Particularly in the legal field, representation is vital because of the profession’s far reaches into numerous communities and lives of many individuals. The daily work of an attorney can implicate matters of life and death, result in years of hardship for individuals and their families, and affect entire communities through policy change. Ensuring there is Black representation from law school applicant pools to law firm boardrooms, to the prosecutor’s office, to lawmakers, to the bench, and beyond is crucial for Black communities because legal decisions substantially, and too often disproportionately, affect these communities in negative ways through, for example, over-policing, underpolicing, the money bail system, and using the court system to build profit by excessively fining residents.3

The newly minted Black lawyer’s role is to establish their footing in their new careers and eventually reach out to law students to mentor them, and help them grow as young professionals. As the young Black attorney becomes established in the legal community, they can start pointing out that the status quo of attorney demographics must change. If this is not possible in the work setting the young Black attorney is in, they can continue to welcome connections with students and introduce them to other legal professionals. The percentage of lawyers of color remain startlingly low. Based on statistics reported to the American Bar Association, Black attorneys currently make up five percent of the legal profession,1 and Hispanic YLSFood-Deserts-Report.pdf 5

Trump v. International Refugee Assistance Project, 137 S. Ct.

2080 (2017) (granting stay of lower court preliminary injunctions which were against enforcement of President’s proposed travel ban).

While racism remains prevalent and blatant across the country, the young Black attorney’s first role is to recognize the intricate issues and barriers within communities of color, such as the school-to-prison pipeline, money bail system, educational inequality, and mental health and wellness access. By identifying the issues, the young Black attorney can work to communicate how the issues tie-




How Minorities in Big Law Can Contribute to Our Communities: Reach Back to Pay It Forward Adria Harris 3L - University of Southern California Gould School of Law

Accepting a job in big law comes with an obscene amount about what you inspire others to do. For a lot of our youth, of money – and for most African American law students, an merely seeing people in prestigious careers who look like obscene amount of guilt. Far too often, African American them encourages them and gives them the confidence boost law students are shamed by others for pursuing careers in needed to pursue their dreams. By making yourself visible big law. Black law students as a positive role model, you are expected to pursue People often use their influence to are showing the younger criminal defense and/or advance themselves. Instead, use those generations that it is possible public interest work to “give networks to gain influence and help to be a black American and back to the black community.” achieve success. However, there are more legal enact legislative and social change for career paths that provide us the betterment of our communities. As Muhammad Ali once said, the opportunity to give back “Service to others is the rent – including in big law. As a big law associate, below are you pay for your room here on earth.” Take the job in big several ways you can contribute to your community. law – and don’t feel guilty about it. Instead, use your new platform to become a leader, inspire others to dream, and Use your money. Given that money is widely regarded as uplift the black community. “the root of all evil,” the massive six-figure salaries big law associates earn are likely the primary source of guilty feelings. However, associates can pour the excess money back into the community by funding pipeline programs to help black students to get into law school. An example would be providing scholarships for African American students to receive LSAT test prep. Use your influence. Big law lawyers quite often have vast and powerful networks. People often use their influence to advance themselves. Instead, use those networks to gain influence and help enact legislative and social change for the betterment of our communities. Hire up. The percentages of black associates and partners at big law firms are incredibly low. Getting a foot in the door is the first step to a career in big law. Work as hard as you can so you can be in a position to advocate on behalf of black students who are pursuing employment or promotions in big law. Get them in the door so that progress can be made towards improving African American representation at big law firms.

Leach or Leader: The Power of Being Young, Black, and Laywered Chloe Woods, Esq. BLSA Alumni

Last week, upon being introduced to a recent transplant, we exchanged our job titles and employers and spoke about what an average day was like. A doctor at a prominent hospital, he described the look of surprise some patients had upon learning he would be their attending physician. “Maybe it’s because I look young?” he said, as we both ignored the more likely factor.
“I’ve had my share of people assuming I’m
the secretary,” I said. “But maybe it’s because I’m a woman?” We laughed and exchanged
a few more pleasantries before he asked, “do people ever call you a sell out?” The question confused me and the look on my face must have projected that sentiment because he hurriedly added, “You know...Ferguson.”

kindergarten through the desegregation
order. My primary education prepared me to succeed at Mary Institute & St. Louis Country Day School (MICDS) of which I am a proud graduate and the sole African American member of the Young Alumni Board. My performance at MICDS garnered me admission to 19/20 of the colleges to which I applied. After choosing Ivy League, Columbia University, then working for a few years, I was ready to return home to attend Washington University in St. Louis for law school. I often wonder what my life would have been but for those young, Black and gifted attorneys? Had they not pushed the envelope and sought leave of the judicial process to address educational inequity in this country?

For a Black doctor to suggest that a Black prosecutor is a sellout (and for me to immediately want
to distinguish my title and duties from his imagined “Prosecutor” to my actual role as “City Attorney,” rather than challenge
the premise of the comment overall) shows
that implicit bias cuts across race, gender and class. Our shared experiences, learned perspectives and cultural assumptions color and shape even the most open-minded of us. The election of our nation’s first African American Commander-in-Chief as well
as the incidents surrounding the deaths of Trayvon Martin, Jordan Davis, Michael Brown, Walter Scott, Jonathan Crawford, Tamir Rice, Freddie Gray, Philando Castile, and Anthony Smith have prompted soul-searching conversations about race, class, and the criminal justice system [in addition, birthed a proliferation of Constitutional scholars
on Facebook]. For many Black attorneys, myself included, it’s been a difficult and painful realization that the administration of justice is not always [color]blind.

Now, when I am asked “what’s it like to be an African American attorney in St. Louis,” I know how to respond. It’s just like being
an Asian, Hispanic, Native American, or Caucasian attorney, but with a bit more cognizance of the history and the trailblazers that have paved the way for your success. As homage to those who have come before you, and who have sacrificed so that we may succeed, you must endeavor to be a social engineer. To my NBLSA loves, our future young
Black attorneys, here is my advice: Volunteer, often. Be Courteous to everyone you encounter. (You should greet the janitor with the same respect as you would the CEO). Be a resource for friends and family, informing them of legal aid, job training, or other education programs for which they may be eligible--- as attorneys, possibly the most-educated individuals in our communities, our understanding of, and ability to navigate the legal process is a gift. Share it when practical to do so. Serve on a few boards. Be passionate for a worthy cause. Be the change you want to see. Carpe diem. Be the epitome
of professionalism. Join a bar association. Actually, join several. Affinity bar membership is important but don’t put yourself in a box. Expand your network. Engage. Seek leadership opportunities. Take pride in every task you undertake (whether shining shoes or running
a hedge fund, your work ethic should be a constant; reputation is currency.) Don’t be afraid to ask questions. Be humble. Finally, always remember to give this profession and your oath the respect they deserve. I offer you this advice because you represent something bigger than yourself, whether you want to or not.

Practicing in St. Louis, specifically, has its own racial and historical baggage that make being a young Black lawyer even more of
a privilege and an honor: From Dred Scott1 
to Shelley v. Kraemer2, an African American attorney must be resilient, finding power in pain, continually reinforcing our love and reverence for the law. I believe, just as I always have, that the law is the best tool to address injustice; my own life is a testament to this principle. Charles Hamilton Houston, “The man who killed
Jim Crow” once said, “A lawyer is either a social engineer or a parasite on society.” His training prepared Thurgood Marshall to argue Brown v. Board of Education of Topeka, 347 U.S. 483, and Brown II, 349 U.S. 294, and change the course of this little brown girl’s life. Although I’ve always been a City of St. Louis resident,
I attended the Ladue school district since

Do pro bono work. Most large law firms have a pro bono requirement, and some have no limit on the number of pro bono hours that count towards billable hours. There is no shortage of people who need legal help but cannot afford to retain legal counsel. Use your pro bono hours to advocate on behalf of our underrepresented communities. Not only will you help people in need, but you will also gain valuable experience that will likely be applicable to your other work. Be a role model. Representation is severely underrated – success isn’t just about what you accomplish. It’s also




Scott v. Sanford, 60 U.S. 393


334 U.S. 1












The School to Prison Pipeline Jeremy McLymont - 3L, National Attorney General, Florida International University College of Law Meagan Sunn - 3L, National Director of Social Action, Catholic University of America

NBLSA FLASHBACK p.24 p.24 p.25






I. Intro II. Defining the School to Prison Pipeline III. The School to Prison Pipeline Originated Out of a Desire by Southern Whites to Preserve Segregation a. Various Scenarios Indicate the Existence of a Black Push out Problem After Brown Desegregation Order b. Criminal Legislation Produces New Vehicles to Prison for Youth that Were Pushed Out of the Public-School System IV. Attempts by the Federal Government to Curb the School to Prison Pipeline Movement a. Supreme Court Hands Down Several Rulings to Combat Those who were Fighting to Preserve Segregation b. Lyndon B. Johnson Passes the Civil Rights Act of 1964 With Key Provisions to Help the Desegregation of Public-Schools V. Assigning Responsibility to Those who Stimulated the School to Prison Pipeline a. Local School Boards Use Their Power to Eliminate Black Presence From Public-Schools b. Politicians Conspired to Fight Against the Spread of Desegregation in Public-Schools c. The Nixon Administration Discourages Desegregation d. Southern White Citizens Join the Desegregation Countermovement VI. A Way Forward: Solutions to Ending the School to Prison Pipeline a. Diversify the Public-School Boards b. Enroll Black Youth Into School Systems that Want Them to Succeed c. Continue to Seek Relief Through the Law VII. Conclusion



I. Introduction The purpose of this paper is to challenge the basic understanding that the School to Prison Pipeline is both contemporary and coincidental in nature. In fact, what has become known as the School to Prison Pipeline started out as a movement by southern Whites to keep their public institutions and schools, separate and unequal, post Brown v. Board of Education. This countermovement to the desegregation of publicschools was supported by a range of different people and institutions: from civilians, to local politicians, to congresspersons, and several Presidents of the United States. The original goal was simply resistance, legal or illegal, to the Supreme Court’s mandate for desegregation. However, as the Supreme Court of the United States continuously combated the resistance of the countermovement, those in the countermovement began to think of new ways to keep Black students out of their schools. Immediately after the Supreme Court’s ruling to desegregate public-schools, Black students fell victim to hostile school environments, intimidation, exclusion from extracurricular school activities, disproportionate suspensions, expulsions, pushouts and more. None of these aggressions on the existence of Black students in public-schools occurred by chance or by nature. Instead, the countermovement was calculated, organized, and relentless. The Black students who suffered from truancy as a result of being suspended, expelled, and pushed out of public-schools were more likely to be swallowed by the United States’ War on crime, and young people. The media and even numerous presidents of the United States created the moral pretext to justify the caging of Black youth.

students with disabilities, and students from [lower socioeconomic statuses]—out of school” and into the criminal justice systems.1

they work for the state attorney’s office rather than an educational facility. Black students are disproportionately affected by these environments.16

A perfect embodiment of the School to Prison Pipeline occurred on November 1, 2017, when two brothers were arrested after a fight broke out Jeffersontown High School in Louisville, Kentucky. This was the third fight of the day, but for some reason it was the only fight where School Resource Officers got involved.2 When this fight broke out, school staff requested assistance from the School Resource Officer, who then called for more back up.3 When the officers stopped the fight, Rajae Tinker, a young Black student, was taken to the ground and arrested.4 Roghae Tinker, Rajae’s brother, saw his brother being arrested so he tried to go outside to where Rajae was being detained but he was told to go back inside.5 Roghae refused to listen and a physical altercation between Roghae and several officers ensued.6 Before being Tasered, three officers tackled Roghae to the ground, drove their knees into his back, neck, legs, and head, all while school employees told students to turn off their recording devices.7 The concerned crowd of students began to circle the officers and protest the level of force and aggression the officers were using.8 Immediately, one officer jumped up and pointed his taser at the students threatening them and demanding that they back up.9

The adoption of many policies and methods similar to those in the criminal justice system results in children who go to school in hostile, jail like environments.17 Zero tolerance policies were virtually unheard of in the early 1990s, however, by the 1996-1997 academic year, 94 percent of U.S. public-schools had zero tolerance policies.18 These policies pertain to things such as possession of weapons, illegal drugs, fighting and more.19 Federal money was given to school districts to increase the amount of school resource officers in public-schools.20 This funding fostered a growth in the number of school resource officers from 9,446 in 1997 to an all-time high of 14,337 in 2003.21 “By 2010 an estimated two million students were being suspended or expelled from high schools every year.”22

Police Chief Ken Hatmaker later blamed the officers taser threat on the “mob like mentality” of the students “rushing the officers.”10 When asked whether it was necessary for three officers to handle a kid in the ninth-grade in such a manner, Hatmaker responded, “[t]hese teenagers were my size these were not children. These men were, these young men were bigger than most everybody in this room.”11 As Hatmaker justified his officer’s actions by over masculinizing the characteristics of the teenage boys, he then proceeded to explain how, despite his officer being a “good sized kid”, Roghae was still able to overpower his officer.12 To Hatmaker, his officer was a “kid” while the ninth-grade boys were “men”. Both brothers were arrested on felony charges.13

Today, the history of the School to Prison Pipeline is largely ignored or forgotten. The focus is placed on things like Zero Tolerance Policies the Gun Free School Zones Act and School Resource Officers. Many publications suggest that putting an end to Zero Tolerance Policies will cripple the School to Prison Pipeline. While this may be true, the way forward is to also understand the historical context of the School to Prison Pipeline so we are better equipped to pinpoint a practical and more realistic set of solutions.

Hatmaker fully supported and justified his officer’s actions, he even told the press that additional officers would be present in the school the next day.14 The high school principle released a statement to the students in which he said, “I am in the process of reviewing school security footage to determine every student involved in this afternoon’s incident, and those students will be disciplined to the fullest extent our policies will allow.”15

The School to Prison Pipeline originated out of a desire by southern Whites to preserve segregation after the Supreme Court’s decision in Brown v. Board of Education to desegregate public-schools. If we realize that the School to Prison Pipeline originated under that stimulus we may be able to keep Black youth on the path to graduation and save them from the criminal justice system. Let’s get started.

At its height, this is what the School to Prison Pipeline looks like. Students made to go to school where they are at war with the police because school resource officers occupy public school campuses like military forces. School resource officers who don’t know how or are unwilling to deescalate situations without violence and ultimately arrests. High school principals that threaten students with disciplinary action to the fullest extent of the disciplinary code like

II. Defining the School to Prison Pipeline. The School to Prison Pipeline is a “collection of punitive laws, policies, and practices that push young people— particularly African-American students, male students,


was terrifying and discouraging. As Black students were entering White schools, riots and protests broke out in opposition to desegregation. For example, in 1956 “It took six hundred armed troops and seven M-41 tanks to restore order in Clinton, Tennessee, after thousands of whites rioted against twelve black students entering the local high school.29 In 1957, the infamous Little Rock nine, could not get into Central High school after the National Guard barred their entrance, so President Eisenhower had to call in 1,000 troops from the 101st airborne division of the U.S. Army.30 In South Carolina, a mob overturned two buses while screaming at, spitting at, and stoning the buses occupants.31 Protests and mobs of this kind occurred all over America. In addition to the civilian protests, the environment that Black Students had to survive in, in desegregated schools made them susceptible to disproportionate suspensions, expulsions, and pushouts.32 Black students perceived their new school environments as alien, threatening and hostile.33 “Desegregation puts Black students into schools dominated by White culture and tradition […] school confrontations are provoked through discrimination in disciplining Black students, use of Confederate symbols, and the displacement of Black principals, teachers, and coaches. This leaves Black students without Black role models.”34 Under these conditions some Black students reacted aggressively and violently to the rampant racism in desegregated school and ultimately these students dropped out.35

After years of implementing these new policies and tactics studies show that Black students have been disproportionately affected.23 The following statistics help frame the issue of race as it pertains to this situation.24 40 percent of the students expelled from schools in America each year are Black.25 Blacks are 3.5 times more likely to be suspended from school than their White counterparts.26 70 percent of students arrested in school or referred to law enforcement are Black or Latin.27 Lastly, a study from 2007 found that for every 100 students who are suspended, 15 were Black, 7.9 were American Indian, 6.98 were Latin and 4.8 were White.28

The numbers bear out the claim that American schools were disproportionately pushing Black students out. In a publication entitled School Desegregation: A Report Card From the South, April 1976, the Southern Regional Council reported on the pushout/dropout issue in 11 southern states.36 The report said, “No one knows the full extent of the student pushout/dropout problem, but it is generally acknowledged to be extremely serious: and in virtually every place where spotchecks have been made, the students who leave school by choice or by compulsion are disproportionately Black and overwhelmingly poor.”37

The explanation of the School to Prison Pipeline as it is recognized today is not a complete picture of the School to Prison Pipeline. It is missing a great deal of historical context that will be discussed next. III. The School to Prison Pipeline Originated Out of a Desire by Southern Whites to Preserve Segregation. Thousands of publications highlight contemporary policies and tactics as the school to prison pipeline catalyst. They focus on things like Zero-tolerance policies and the Gun Free School Zone Act which suggests that the School to Prison Pipeline is a recent development or movement towards the elimination of Black bodies from the American public-school system. Authors like James Kilgore believe that the School to Prison Pipeline “fully began” in the 1990s, while its delivery of student prisoners increased in intensity in the early 2000s. However, a deeper analysis indicates that the pipeline is rooted in the desegregation of American schools.

More specifically, in Louisville, the Louisville Times published statistics on the disparity of suspensions at several schools within the city.38 The numbers were shocking, and in almost all 48 schools that were listed, the Black suspension rate exceeded that of their White counterparts.39 Some of the ratios of suspension were as follows: 15.4 to 1 and Butler High School; 19.5 to 1 at Woerner Junior High School; 21.6 to 1 at Meyzeek Junior High School; and 51.6 to 1 at Kamerer Middle School.40 The situation in Louisville was so bad the Community Relations Office of the United States Department of Justice did a case study on the city.41 In its report, the DOJ found more alarming disparities for Black students.42 The DOJ compared suspension rates for the city and county combined for the year prior to desegregation (1973-74) and the year after desegregation (1975-76).43 Pre-desegregation,

a. Various Scenarios Indicate the Existence of a Black Pushout Problem After Brown Desegregation Order. Going to school as a Black student during desegregation



grew from $60 million to $800 million.51 Around this same time the FBI unveiled its Counter Intelligence Program.52 If that was not enough, Nixon signed the Drug Enforcement Agency into existence in 1973. It is important to note that mass incarceration and the School to Prison Pipeline are not mutually exclusive. In fact, they coexist and operate within the Prison Industrial Complex. So, although many names exist: School to Prison Pipeline, War on Drugs, get tough on crime, etc. they all have the same purpose, lockup young Black people and throw away the key.

the suspension rate for White students was 7.9 for every 100 White students compared to Black students where there were 17.3 suspensions for every 100 Black students.44 During the year after desegregation, Whites were suspended at a rate of 16 for every 100 White students, and Blacks were suspended at a rate of 69.4 for every 100 Black students.45 There were several major issues that caused these disparities: a lack of uniformity with discipline, unfamiliarity with the rules of behavior and the disciplinary process, and school administrations who were ill prepared to teach non-white children.46

IV. Attempts by the Federal Government to Curb the School to Prison Pipeline Movement

From this evidence (protests, mobs, statistical disparities) it is apparent that the pushout aspect of the School to Prison Pipeline Movement originated out of a desire by southern Whites to preserve segregation after the Supreme Court’s decision in Brown v. Board of Education to desegregate public-schools.

Between some U.S. Presidents and certain Supreme Court benches, the federal government attempted to combat the resistance to desegregation, ultimately combating the School to Prison Pipeline Movement. However, the desires of southern Whites who refused to desegregate were very strong and they battled hard against the federal government. Despite the order to desegregate in Brown, Whites enacted laws, implemented policies and employed practices aimed at pushing Blacks out of Public spaces, including schools. In 1955, Herman Talmadge, the Governor of Georgia, wrote in his book, “Let us pledge ourselves to litigate this thing for 50 years. If one remedial law is ruled invalid, then let us try another; and if the second is ruled invalid; then let us enact a third.”53

b. Criminal Legislation Produces New Vehicles to Prison for Youth That Were Pushed Out of the Public-School System. The pushout issue is only half of the problem. The other half deals with how the criminal justice system became intertwined in the effort to eliminate Black students from the public-school system. Today, School Resource Officers receive a lot of attention for their roles as vehicles in the School to Prison Pipeline. School Resource Officers aside, a combination of other forces ensured that these young Black students who had been pushed out of school would soon be rounded up into the criminal justice system. Media influence, political gamesmanship, and racism created the atmosphere for an increase in juvenile detentions.

a. Supreme Court Hands Down Several Rulings to Combat Those who were Fighting to Preserve Segregation. In Goss v. Board of Education of Knoxville (1963), the Supreme Court Struck down a desegregation plan that allowed students to transfer schools only if they were in a minority race in their district, transferring to a district where they were a member of the majority race.54 This scheme is the exact opposite of what integrationists wanted. The scheme only allowed Black students to change school districts if they were already in a majority White school district, and if so, they could only transfer to a majority Black school district. The Court said, the plan lends itself to the perpetuation of segregation and it violated the Equal Protection Clause of the Fourteenth Amendment.55 This decision exposed the Knoxville Board of Education for the racist games and practices they employed to preserve segregation.

A few years after Brown, in the 1960s, the FBI began to report that there was a dramatic rise in crime and there was a growing sentiment in the country that the crime rate was rising because the country was too generous with how it was treating Blacks.47 By 1968, 81 percent of those responding to Gallup Polls agreed with the statement that “law and order has broken down in this country,” and the majority blamed “Negroes who start riots.”48 Politicians like Barry Goldwater, and Richard Nixon used this information to lay the foundation for the get tough on crime movement.49 In the midst of this moral panic, individuals were easy targets just for being young, Black and outside and due to the increased number of Black students being suspended, expelled and pushed out of schools it was as simple as being caught in the crosshairs of an enemy’s weapon and the government had many weapons.

Also, in Griffin v. School Board of Prince Edward County (1964), the Supreme Court found that the school board had violated the Equal Protection Clause of the Fourteenth Amendment by closing its school system rather than choosing to desegregate it.56 The court stated “The time for mere deliberate speed has run out … There has been entirely too much deliberation and not enough speed in enforcing the constitutional rights which we held in Brown v. Board of Education.”57

Legislators had the support to begin enacting the legislation that led to the increased incarceration of Black youth. “Members of congress who voted against civil rights measures proactively designed crime legislation and actively fought for their proposals.”50 During Nixon’s first term (1969-73), the federal government’s law enforcement budget tripled, and federal aid to state and local law enforcement


Additionally, in Swann v. Charlotte-Mecklenburg Board of Education (1971), the Supreme Court upheld a District Judge’s decision to go over the Charlotte-Mecklenburg County’s Board of Education to create a new desegregation plan.58 The Supreme Court further stated that where there were previous violations of mandates directed at desegregating schools, the district courts’ equitable powers to remedy past wrongs were broad and flexible.59 This case was important because it put all school boards on notice that the time for delays in desegregation was over, follow the rules or district court judges will overpower you.

Power trickles down from each state, to local school boards in the following manner. Each state has control over the public-school system in their state.63 Each state [then] decentralizes its authority by distributing control over certain decisions to individual school districts.64 School districts are required to operate within the provisions of the state constitution and statutes but may, through the authority of their individual school boards, select resources to implement the state’s curriculum.65 These resources include textbooks, library resources, instructional and noninstructional staff, and funds.”66

These decisions and many others proved to be harmful to the desegregation countermovement. If the countermovement was going to continue to thrive it would have to come up with new methods and tactics to remove Black students from the public-school system.

A school board can positively or negatively impact the issue of student suspension, expulsions and pushouts. Post Brown, it seemed like most school boards in the South were working to keep Black students out of the public-school system. School boards were implementing the disciplinary policies that led to the disproportionate punishments and pushouts of Black students in American schools.67 Dress codes and school regulations were and still are too easily manipulated in an unfair and arbitrary manner to restrict contemporary life styles often first introduced by Blacks.68 For example, a student could be disciplined for possessing a weapon if they were found with a metal comb pick, an offense directly aimed at Black students.69

b. Lyndon B. Johnson Passes the Civil Rights Act of 1964 With Key Provisions to Help Desegregation of Public-Schools. The federal government attempted to curb the constitutional violations of those who refused to allow students to integrate by passing of the Civil Rights Act of 1964 which did many things.60 Title VI of the Act authorized federal officials to withhold funding from school districts that disobeyed court ordered desegregation decrees.61 Title II of the Act allowed for the DOJ to become a party in school desegregation suits, thus lawyers could skip state courts and go directly to the Federal courts.62 These provisions gave the Brown decision some teeth and would lead the way for an easier path to desegregation.

In Jefferson County Louisville, the school board did not implement a desegregation plan until its school board was forced to do so in 1975, 21 years after Brown.70 When the school board did comply, the plan ensured that Black students would remain minorities in all desegregated schools.71 According to the plan, Black students had to make up at least 12 percent of students but no more than 40 percent of students in elementary and 35 percent of students in middle and high school.72 This attempt to keep Black students in the minority was to ensure that Whites never lost power to Blacks. This same county also had issues with its disciplinary code.73 During a hearing conducted by the U.S. Commission of Civil Rights, witnesses at the hearing cited the disciplinary code as a reason for the number of disproportionate Black students being suspended.74

V. Assigning Responsibility to Those who Stimulated the School to Prison Pipeline Desegregation countermovement folk worked in conjunction with one another to run the School to Prison Pipeline like a well-oiled machine. Congress persons supported states who vowed to resist desegregation by legal and illegal means. States gave power to local school boards to implement disciplinary policies that negatively and disproportionately targeted Black students. Politicians in the south ran campaigns on who could be more resistant to desegregation. United States Presidents appointed conservative Supreme Court Justices to fight desegregation. Presidents also made public statements to notify local judges and state legislatures that they should slow down their efforts to desegregate because they were doing too much.

School boards have the power to implement programs, policies, and disciplinary codes and these school boards chose to use their authority to ensure Black suspensions, expulsions, and pushouts. b. Politicians Conspired to Fight Against the Spread of Desegregation in Public-Schools. Several Governors and legislators participated in the pushout process. In the late 1950s, the Virginia Governor, Thomas Stanley, enlisted legislators to defend the state’s education system against the “insidious spread” of desegregation, thereafter legislation was passed that guaranteed a district wide shut down if schools began to integrate.75 Mr. Stanley was so adamant about preserving segregation that he would have preferred to have the entire public-school system shut down before schools in his state

Those responsible for The School to Prison Pipeline used their voices and their power to organize for Black removal from public-schools and then for Black Criminalization. a. Local School Boards Use Their Power to Eliminate Black Presence in Public-Schools.



were going to desegregate.

to today’s DOJ that ignores police brutality under Donald Trump, while the Obama administration took on the issue very aggressively.

During the fifties, sixties and even into the early seventies, most of the politicians in the south ran their campaigns on segregation. Just to put it in perspective, North Carolina senator, Sam Ervin Jr., drafted “the Southern Manifesto,” in 1956, which vowed to fight back against Brown v. Board of Education by all legal means.76 The manifesto attacked the Justices in Brown for abusing their power and claimed that the Supreme Court trespassed upon states’ rights.77 Out of the 128 congress persons in the 11 original Confederate states, 101 of them signed the Manifesto.78

Nixon also used his power to nominate Supreme Court Justices who shared similar political views as him.88 This was shown in the Supreme Court’s 1974 decision in Milliken v. Bradley where the Court rejected desegregation across school district lines.89 It was a 5-4 decision and four of the five judges in the majority were nominated to the bench by Nixon.90 d. Southern White Citizens Join the Countermovement

More specifically, Georgia Governor, Herman Talmadge, wrote an entire book entitled You and Segregation that was written to encourage others to band together to stop desegregation in public-schools.79 He wrote,

Besides the individuals in office, there are those who decided to fight desegregation under the table. “White Citizens’ Councils’ and other grassroots resistance organizations promised to make it difficult, if not impossible, for any Negro who advocates desegregation to find and hold a job, get credit, or renew a mortgage.”91 These White Citizens’ Councils were formed in almost every southern city and small town, made up of primarily middle to upper class White folks.92 These types of threats and promises were difficult for the federal government to challenge and regulate.

I do know that if the citizens of these states are determined to preserve segregation, they have it within their power to do just that. It will take courage, determination and organization, but I am confident that we in the South can preserve our way of life and our schools if we so desire.80 Another Georgia politician, Marvin Griffin, campaigned for governor on the slogan “Come hell or high water, races will not be mixed in Georgia schools.”81

In some instances, school boards were pressured by White parents to reverse desegregation plans.93 In West Virginia, The Greenbrier County Board of Education voted to end segregation in its system.94 Immediately, White parents held a meeting where they agreed that they would physically remove Black students from schools if they chose to integrate.95 In short time, the Greenbrier County Board of Education rescinded its action and ordered segregated schools again.96

Furthermore, there were politicians who acquired certain posts, just to make sure that work did not get done. Robert Finch, head of the Department of Health, Education, and Welfare (HEW) under Nixon, basically allowed the 1964 Civil Rights Bill to become useless. When it came time to enforce the rules under the bill, Mr. Finch allowed school districts to have more time in their efforts to desegregate, as nonexistent as those efforts may have been.82 Instead of enforcing the Civil Rights Bill as it should have been done, HEW Secretary, Elliot Richardson lied to the public when he announced that 97 percent of the south’s school districts were desegregated.83 In actuality, at the beginning of the next year a report was released which showed that only 38.1 percent of Black students attended schools with their white counterpart.84

VI. A Way Forward: Solutions to Ending the School to Prison Pipeline The School to Prison Pipeline originated out of a desire by southern Whites to preserve segregation after the Supreme Court’s decision in Brown v. Board of Education to desegregate public-schools. If we realize that the School to Prison Pipeline originated under that stimulus we may be able to keep Black youth on the path to graduation and save them from the criminal justice system.

c. The Nixon Administration Discourages Desegregation.

a. Diversify the Public-School Boards.

Former President Richard Nixon was very active and vocal with his efforts to preserve segregation and keep Black students out of the White public-school system. In 1973, Nixon told the nation that lower courts had gone beyond what the Supreme Court said was necessary in requiring busing.85 Under Nixon, HEW and the DOJ seemed to ignore the issues of desegregation.86 It was a stark difference between the current administration and the last, because under the previous President, these organizations had been very active and helpful in the fight to desegregate publicschools.87 The inactivity of these organizations was similar

As discussed earlier, public-school boards maintain vast amounts of power and authority over what happens in public-schools. Like several decision-making bodies in this country, Blacks are underrepresented on public-school boards. All over this country, we have majority white school boards making decisions for Black students that they don’t understand. Efforts should be focused on diversifying these school boards and then holding the school board members responsible for their actions. This means that Blacks need


to run for positions on the local school boards in our communities. By doing this, we can take control of our school boards and thus our schools and our communities. We would no longer have to ask the government to end the School to Prison Pipeline because we could do it ourselves. Additionally, Black people need to be present in school board meetings so that Black opinions and concerns are heard and addressed. School boards members have influence and control of the school discipline codes, the contracts for school resources, School Resource Officers and much more.

closing at least five juvenile detention centers after numerous reports of abuse, Texas lowered the population of juveniles in state facilities from about 3,500 in 2006 to just over 1,000 in 2015. In the first decade and a half of the twenty-first century, ten states, including some of those with the highest incarceration rates, such as Louisiana and Mississippi, have lowered the number of juveniles behind bars by more than 60 percent. Colorado and at least ten other states have passed laws that forbid holding juveniles in adult facilities before they are sent to trial.98

b. Enroll Black Youth Into School Systems that Want Them to Succeed. Parents should consider enrolling their Black children into school systems that do not operate as vehicles for the School to Prison Pipeline. For example, the Nation of Islam has its own schools and none of the children are at risk of having an encounter with the police. The school administration at the National of Islam schools doesn’t believe in calling the police to handle their problems. The children are taught discipline through learning about knowledge of self, community development, drilling exercises, and various other methods, not through handcuffs. The children are also not at risk of being suspended, expelled or pushed out. The difference between the public-school system and the Nation of Islam school system is that the Nation of Islam actually wants Black students in their school systems, whereas the public-school system doesn’t necessarily operate under the same stimulus.

There have even been several Supreme Court decisions limiting the ability of the state to impose certain punishments on juveniles. Juveniles are no longer death eligible for crimes they commit.99 Juveniles also are no longer allowed to be sentenced to life in prison without the possibility of parole.100 VII. Conclusion Despite these successes that have ultimately made juvenile punishments less severe and lowered the number of incarcerated juveniles, the School to Prison Pipeline Movement remains intact. The fundamental aspect of the School to Prison Pipeline Movement, the pushout aspect, still remains in the hearts of those that create the policies that disproportionately push Black students out of American public-schools.

Alternatively, children don’t have to go to religious schools. Parents can create their own schools without the religious aspect. Blacks may never gain equal treatment under the public-school system so another way to avoid risking your children’s future with the criminal justice system in the public-schools is to create our own schools or home school Black children. While these alternative schooling options don’t seem ideal, they are practical and they shouldn’t be ignored.

While the last set of solutions dominates current publications, solutions to the original School to Prison Pipeline Movement are forgotten and often times never even considered. Ending Zero Tolerance policies is a great start to ending todays version of the School to Prison Pipeline, but it will not prevent a resurrection if the School to Prison Pipeline comes back under a different guise in the future. The School to Prison Pipeline originated out of a desire by southern Whites to preserve segregation after the Supreme Court’s decision in Brown v. Board of Education to desegregate public-schools. Simply put, these people don’t want Black people in their public-schools and they will continue to find new tactics and methods to keep Black people out. If we realize that the School to Prison Pipeline originated under that stimulus we may be able to keep Black youth on the path to graduation and save them from the criminal justice system.

c. Continue to Seek Relief Through the Law. Some publications regarding the School to Prison Pipeline base solutions around things such as shutting down juvenile detention centers. Other have concluded that the School to Prison Pipeline Movement can be stopped if zero tolerance policies are replaced with various forms of restorative justice. Some schools have made the transition and instead of zero tolerance, they have begun to use conflict resolution and peace-building processes. For example, under these practices, two students caught fighting are made to participate in a facilitated discussion to try to resolve the issues without punishment or incarceration.97


Jason B. Langberg & Barbara A. Fedders, How Juvenile Defenders

Can Help Dismantle the School-to-Prison Pipeline: A Primer on Educational Advocacy and Incorporating Clients’ Education Histories and Records into Delinquency Representation, 42 J.L. & EDUC. 653 (2013)

There has been major success in reversing some of the effects of the School to Prison Pipeline movement.


John P. Wise, Jtown PD defends officers, shares another look at

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Through a range of policy changes, including






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