July 5 juillet 8:30 – 12:15
(extended session)
Room CMEL-102
Chair:
Juanita
Westmoreland Taoré,
Cour du Québec
Discussant: Egbert Gaye
, Community Contact, Montréal
Much has been written about the race-based, temporary detention of minorities. Indeed, in his book, “No Equal Justice”, David Cole recently noted that stories and incidents of black men being stopped because of skin color are so commonplace, they are no longer news.
This presentation highlights two remedial problems of Racial Profiling. First, the victim of such a stop may have no legal recourse against the police due to the fact that courts have created a myth that some detentions are voluntary in the mind of the person detained. According to these cases, a reasonable person who voluntarily stops to talk to the police has no constitutional remedy because a voluntary detention has no constitutional implications.
The second remedial problem is related to the fact that permanent police reports are frequently generated as a result of these stops of innocent people. Many jurisdictions have no procedure for expunging these police records, which are increasingly becoming part of regional electronic databases.
Mr. Walton will discuss, from a research and personal
encounter perspective, the judicial myth that blacks voluntarily stop and talk
to police. He will also discuss the prospects of tainting non-arrested
minorities with the stigma of a documented police encounter history.
The subject of my paper is an examination of Ruby Jackson McCollum as a metaphor for the historical complexity of black women’s medical narrative. In August 1952, in Live Oak, Suwannee county, Florida, Mrs. McCollum, married, pregnant, and the mother of four children, shot and killed her physician of seven years in his office. Allegedly, Dr. C. Leroy Adams, a graduate of the University of Arkansas Medical School at Little Rock: unethically exposed McCollum to drug abuse and sexual assault in his professional treatment, dating from the birth of her second daughter in 1945; was the father of her youngest daughter born in 1951; and the father of her unborn child as well. In the aftermath of the shooting and during the first of two trials, McCollum testified that she loved Dr. Adams. I suggest that the relationship between McCollum and Adams was one of power rather than love; and reifies Michel Foucault’s analysis of the investiture of physicians as a “therapeutic clergy.”
Professor Michele Goodwin will explore the psychological trauma associated with racial profiling in the context of the United States’ civil rights era and movement. In her talk she will refer to works written by James Baldwin and other prolific black authors of the mid 20th century who captured, in literature, the crippling and often deadly effects of racism on the American cultural psyche. Professor Goodwin draws upon one of Baldwin’s more obscure, yet incredibly profound, essays on Black American life, “Just Above My Head.” She highlights the moral conundrums, paradoxes and hypocrisy in American laws that often led to the physical and emotional trauma inflicted upon massive numbers of Black Americans. Goodwin provides a historical context to America’s racism and describes how racism became institutionalized through political structures. Government agencies, emboldened by ambivalent courts, then waged what was not only a physical war against African Americans, but to also engaged in emotional warfare.
This warfare has had the effect of hearing a voice crying fire in a dark theatre with unknown exits. One knows that she must run, and does so, never knowing whether a fire really exists or not, but also not wanting to be burned alive. In this dance of legitimate fear and possible paranoia (though one never knows for sure), one realizes that in the end she might be dead before exiting the hysteria or fire is possible. Racism is the roller coaster ride with an attendant asleep at the wheel. Goodwin suggests that racial warfare has resulted in traceable physical and psychological conditions manifesting disproportionately in communities of color.
This paper examines the issue of racial bias in the treatment of patients of color. The central argument is that a subtle form of racial profiling exists within medicine that governs the decision of whether or how to treat a patient of color. Cultural stereotypes and unscientific understandings about the efficacy of medical treatments, I argue, are institutionalized and lead to different and inferior medical care. Differential treatment, in turn, leads to countless excess deaths, growing health disparities between minority and majority populations, and a distrust of the health care system.
The remedy, I suggest, is to require each health care entity that receives federal funds to collect and report data on racial disparities in the use of services and the choices of diagnostic and therapeutic alternatives. Existing “report cards” offer an existing system for data collection; all that is needed is to stratify the reporting by race. This proposal has the obvious advantage of withholding federal funds from institutions that have statistically significant racial disparities. Equally important, it would force institutions to think about race and medical treatment.
As one part of the study of inhumanity, racial oppression deserves continuing scholarly attention. Racial profiling has emerged as one manifestation of the continuing problem of racial oppression in the U.S.
This article starts with the premise that a comprehensive approach to the study of the social-psychological effects of the institutionalized notions of white superiority on whites is critical to the management of race bias and oppression both within and through American law. Accordingly, this paper analyzes the problem of racial profiling through the lens of a broader objective: that of identifying the social-psychological effects of centuries-old practices and ideologies of white superiority, not on the minority population, but on members of the majority.
This article will discuss recent legal scholarship on race and color consciousness, and on the related concepts of white transparency and white privilege. These concepts will then be considered together as part of the larger, complicated issue of whites’ social-psychological responses to the persistence of white superiority in America. I suggest that white transparency, white privilege and other aspects of white race consciousness (such as, perhaps, “white race denial,” “white race weariness,” and the “fear of Blackness”) should be considered elements of what might be called “White Superiority Complex.” Indeed, “White Superiority Complex” may be understood as a particular social-psychological phenomenon, the invisibility of which may act as a latent barrier to the amelioration of continuing racial oppression.
At last summer’s New York City Puerto Rican Day Parade (Parade), groups of men sexually assaulted at least 57 women while police officers refused to intervene. This article concludes that police inaction resulted from the confluence of (1) inherent flaws in the Terry doctrine—its “yo-yo” effect—and (2) the politics of identity then prevailing in New York City.
Terry’s “yo-yo” effect is its inherent tendency to lead, first, to over-policing of racial minorities, and, then, to under-policing of racial minorities. That occurs because judicial review of police Terry stops is so limited, it provides no basis for moderating police action in individual cases. The Terry doctrine lends itself to racial profiling for the following reasons: (1) its “reasonable articuable suspicion” test has become increasingly easy to satisfy; (2) it defers substantially to officer interpretation of seemingly innocent conduct; and (3) it does not punish officers for racially motivated stops. In turn, racial profiling lends itself to controversy over policing of racial minority communities. As a result, police “yo-yo” between over-utilization and under-utilization of the Terry doctrine in order to suggest overall moderation in policing of racial minority communities.
The politics of identity in New York City at the time of the Parade had a great deal to do with the Terry doctrine’s yo-yo effect. For six years prior to the Parade, the Giuliani administration had conducted an experiment in full utilization of the Terry doctrine. Just prior to the Parade, the administration had come under intense criticism for police harassment of racial minority men. After the Parade, officers explained their inaction as required to refute claims of racial bias. The officers chose a racialized reading of the event—requiring inaction—over a gendered reading—requiring action—because they wanted to protect the reputation of the Giuliani administration.
Query the validity of racism-related mental illnesses. Is it a legitimate hypothesis that mental illness may be exacerbated, or caused, by racism? There is increasing evidence to support the existence of racism-related mental disorders. If a supportable response to one or both of these investigations reveals the existence of racism-related mental disorders, should the law recognize and incorporate such vulnerability into existing legal doctrine?
Specifically, the Tort law doctrines of Thin-skulled plaintiffs, Egg-Shell Personalities and Assumption of Risk as potentially responsive conceptual frameworks might be instructive points of departure for such an exploration. Taking the “Thin Skull” problem first, it has been held that the reasonable foreseeability test instructs that a tortfeasor “takes his victim as he finds him.”(Smith v. Leech Brain & Co. [1961] 3 All. E.R. at 1161) The reasonable forseeability test requires only that there be foreseeability of the type of injury and not its extent or the manner of its occurrence. Thus, if one were to apply this principle to a scenario with an injury inflicted by a white tortfeasor upon a racialized person, who is particularly vulnerable due to the ravages of racism, the fact that the effect of the tort is more serious than one would have expected ought to be of no particular consequence in the formulation of an appropriate remedy.
“The test is not whether these defendants could reasonably have foreseen that a burn would cause cancer and that Mr. Smith would die. The question is whether these defendants could reasonably foresee the type of injury he suffered, namely, the burn. What, in the particular case, is the amount of damage which he suffers as a result of that burn, depends on the characteristics and constitution of the victim. “(ibid. at 1162)
Hence, a defendant tortfeasor will be held liable for the full extent of the plaintiff’s injuries, notwithstanding that they were more serious due to a pre-existing condition, or the increased vulnerability of the plaintiff, as long as the initial injuries were of a kind that was reasonably foreseeable. Thus, there may be possibilities for compensating racialized defendants, who are “thin skulled” due to racism, for the tortuous wrongdoings they have suffered. Utilization of this doctrine together with “Egg Shell Personality” and Assumption of Risk principles may prove useful tools in more accurately defining and shaping the proper remedy for racialized persons who are particularly vulnerable or susceptible to injuries due to micro- and macro-racial aggression.
This presentation will discuss a study which examined white teachers’ perceptions of racial issues in their schools. White teachers’ conceptions of race and racism reveal how their traditional ways of “knowing” often lead to the phenomenon of labeling, tracking and “blaming the victim,” threatening the mental health of African American children who are over-represented in the problematic categories of special education. The study also considers the affects of these racial disparities on the mental health of white students and teachers. I will examine how individual or subjective racism is manifested in teacher-student interactions and in the general culture of the school. This presentation places this problem in historical context examining the historical precedents from slavery.
Racial bias in the juvenile justice system attracts comparatively little public attention, although a growing number of studies appearing in the literature explicitly consider the race of adoptive children as one potentially relevant variable. Mr. Shadlen frames the debate about racial injustice in the Adoption and Safe Families Act of 1997 (ASFA), by surveying several examples of potential abuse. By using his experience in the office of the guardian ad litem, he connects these examples to existing practices and suggests changes to ASFA to reduce the potential for racial discrimination. In a society that remains marked by little hopefulness about race relations, the equitable provisions of the four major permanency options in the juvenile system - reunification, adoption, guardianship, and independence - represent an important area that demands prompt and serious attention. Indifference to the plight of those families who have little access to political power is intolerable; indifference is participation. Mr. Shadlen asks a fundamental question to those who claim to be sensitive to the plight of such families in need of services to reunify them with their children. Is ASFA simply a natural progression in the drive to reduce the number of children in foster care and the length of their stay, or is it, by design, another in the long string of decisions that reduce constitutional protections for those who are powerless to protect themselves?
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