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Breaking the Silence

What's Behind the Wave of Police, Security, and Vigilante Killings of Black People?

Is American Law Inherently Racist?

Richard Delgado
Seattle University School of Law

Daniel A. Farber 
University of California, Berkeley - School of Law
Thomas M. Cooley Law Review, Vol. 15, No. 361, 1998 
an excerpt from a transcript of a verbal presentation

To make today's question more manageable, not to mention easier for me, I will define a system as inherently racist if it is recurrently so-that is, it keeps coming back to the behavior time and again and for each of the different minority groups. And second, it does so for reasons seemingly imbedded in its very structure and makeup, its social DNA, so to speak. Particularly if you are White, I hope you will listen with an open mind to the evidence that I will present today during my case-in-chief. Some of what you hear may be unfamiliar-not in standard history or constitutional law textbooks. It may go against your sense that things are better today for persons of color, as indeed they are for some.

White folks tend to see, literally, fewer acts of out and out racism than their brothers and sisters of color do. A merchant who is in the practice of hassling well-behaved black teenagers in his or her store, will generally not do so if white shoppers are there watching. A police officer who routinely stops motorists of color driving through certain neighborhoods may refrain from doing so if a well-dressed Caucasian is in the back seat of the car. Talk of racism also makes people feel defensive and want to change the subject-perhaps to that other group's responsibility for their low estate.

Yet as recent events show, denial is rarely a successful, much less helpful strategy. Coming to terms with the continuing legacy of race and racism, fairly and openly, is the path to a stronger society and a legal system that we can all be proud of.

The story one usually hears today about race and racial justice is what I call the triumphalist one. According to it, slavery was a terrible thing. But it ended with Lincoln's proclamation and the enactment of civil rights statutes this century and last. If African-Americans have not yet reached full equality, at least the law recognizes formal equality so that it is only a matter of time before they do. Some minority groups, according to the story, have risen. Others will follow when they adopt Anglo-American values of thrift, hard work, and family stability. Slavery may even have done African-Americans a favor, according to one recent writer, Dinesh D'Souza, [FN4] by bringing them here to this great land. Today black, brown, and Asian entertainers and sports figures are millionaires and well-accepted by majoritarian society, which pays money to see them perform. The black middle class is growing, it is said, so the need for affirmative action is fading. If anything, we may have gone too far in the opposite direction, disadvantaging white males of superior aptitude and credentials.

But coexisting with that upbeat story is a darker, less optimistic one. This story reminds us that slavery yielded an enormous economic boost to the South, and that oppression and economic exploitation did not end upon the North's victory in the Civil War. A regime of sharecropping and ruthless “Jim Crow” laws instead kept Blacks separate but in no way equal.

Forbidden from intermarrying with Whites, a prohibition that was not eased, legally, until Loving v. Virginia [FN5] was decided in 1967, Blacks who marry Whites today face social barriers so strong that only a handful-a few percent-do. During slavery, Blacks were forbidden from even learning to read and write, and so were excluded from exposure to literature, which was then replete with arguments about freedom and the rights of man. After emancipation, few school districts, and even fewer universities and colleges, would admit Blacks to white schools. Even today, the legal profession contains less than five percent black lawyers and one percent black judges.

Ambitious and upward-striving Blacks-especially ones with *367 political ambitions-were firmly discouraged. Ones who eyeballed white women, like Emmett Till, were lynched to send a message to others. African-Americans made some inroads in sports and the military, but were permitted to go only so far, especially in the officer ranks. During World War I, many Blacks made gains both in the services and in civilian war industries, but in a telling but little known incident, the United States Military persuaded the federal government to send an official directive to the government of France. Many U.S. soldiers were stationed in that country during that war, where the French treated the African-American ones in egalitarian fashion. This caused consternation among the others, which filtered up the chain of command until the United States finally asked the French authorities to instruct their people to stop relating to black soldiers on terms of equality. The directive explained that it made American white soldiers uncomfortable to see the French shaking hands and making friends with Blacks or inviting them into their homes.

The directive, in effect, instructed the French on how to be racist. It implied that this was expected of them and was the least they could do to advance the war effort.

Although formally racist laws are now forbidden, African-American disadvantage persists on dozens of fronts, including credit, home purchasing, average income, infant mortality, longevity, and educational attainment. Covert studies employing testers, one white and one black, but otherwise identical, show consistent discrimination when Blacks try to rent a house, buy a car, buy a house, or apply for a job. Handicapped even when they try to sue for redress for discrimination, Blacks and other minorities of color find the judicial system stacked against them. Although laws on the books ostensibly give them the right to recover for provable discrimination, judicially created burdens of proof, intent requirements, res judicata laws, and defenses such as business necessity make recovery much harder than for any other civil cause of action such as negligence, battery, defamation, or breach of contract. Many minority persons realize this and never bother to sue, reasoning, “What's the use?”

In the late 1960s, many colleges, universities, and businesses began using affirmative action, which helped a few of color rise to middle class status and provide financial security for their families. Today, even those modest programs are under attack by conservative think tanks and legal foundations abetted by a judiciary that seems bound to restore things to the way they were when the Supreme... Court, in Dred Scott v. Sandford, ... said that Blacks have no rights that Whites were bound to respect. Search and seizure law, ratified recently by the United States Supreme Court, holds that a black or brown motorist or pedestrian may be stopped on suspicion in a white neighborhood simply by virtue of being who they are. ...

Other nonwhite minority groups have fared little better at the hands of American justice.

Asian-Americans came to this country, not in chains like Blacks, but to build the nation's railroads and dig its mines. When these projects ended, Asians became surplus labor-their presence a source of irritation to local Whites. Because of their thrift and industry, many had opened businesses, such as laundries and farms that competed successfully with those of Anglo-Americans. The United States then passed racist immigration laws that virtually ended Asian immigration, laws that were upheld by the United States Supreme Court in the Chinese Exclusion Case. ... In that case, Justice Harlan, who had dissented courageously in Plessy v. Ferguson, ... the “separate but equal” case, joined in an opinion that portrayed Asian- American people as clannish, inassimilable, and inferior. ... The inability to help their wives and women friends to immigrate caused a serious imbalance in the Asian population, which quickly dwindled to a pool of aging solitary men.

By the time of World War II, numbers had risen, especially of Japanese on the West Coast. But Wartime Exclusion Order 9066, ... issued on flimsy and fabricated evidence, signed by the President of the United States and upheld by the United States Supreme Court, ... removed West Coast Japanese families to internment camps where they spent the war behind barbed wire. Many lost farms and businesses.

After a long campaign, the United States Congress finally passed a limited reparations bill, [FN13] which came too late for many Japanese *369 who had already died of old age. In recent years, many Asian-Americans, particularly of Japanese or Chinese descent, have improved their situation and have earned advanced degrees, particularly in science. But, by a perverse maneuver, mainstream society deemed them a model minority, deserving of no more help. When one looks behind the statistics supposedly indicating Asian success, one finds that certain Asian groups, particularly Indochinese and Filipinos, are living in abject poverty. Even with the two model groups, Japanese and Chinese, high household income often masks extended families with many adults living under one roof, all working at jobs, such as pharmacist, dentist, teacher, or lab technician. Studies also show that Asian-Americans, like Blacks and Mexicans, who attain a high educational level, such as a Ph.D., do not reap the same rewards as Whites who possess the same degree.

Speaking of Mexican-Americans, or Chicanos (my group), most people know that our lands in the Southwest, once part of Mexico, were seized in a war of naked aggression. The Treaty of Guadalupe Hidalgo, which ended that war, guaranteed persons of Mexican descent living in California, Texas, Arizona, New Mexico, and parts of Colorado and Utah the right to retain their land, language, and culture, and to become United States citizens. As with Native-Americans, however, these treaty rights turned out to be worth little more than the paper that they were written on.

American authorities set up land registration offices and rules that the Mexicans just happened to find impossible to meet. Conniving developers and lawyers cheated many out of their ancestral lands that the thrifty and industrious Mexicans had developed into farms for generations with irrigation, land tenure systems, wells, and roads. During the “Jim Crow” period when Blacks were being discriminated against in the South, signs in Texas said, “No dogs or Mexicans allowed.” Mexicans were called “greasers,” “spics,” and “wetbacks”-uppity ones were lynched.

When their labor was necessary for farming or work in the kitchens and restaurants of large cities, official programs, called bracero or guest worker regimes, brought in Mexicans by the thousands, who then were expected to conveniently disappear when the harvest was in. During the depression years and later, American authorities would order roundups, during which tens of thousands of Mexican-looking people, some of whom turned out to be legal United States citizens here for generations, were captured and summarily deported. Like the Japanese, they too lost everything-although at least they did not have to live behind barbed wire....

When school desegregation finally came for African-Americans, schools in Texas and the Southwest cynically declared that Mexicans were white and used them to integrate schools so that a public school with fifty percent Mexicans and fifty percent Blacks was certified as integrated. In Colorado, which many consider a bastion of clean living and racial fairness, conditions for migrant laborers in the sugar beet industry were some of the worst anywhere.

During the 1920's, the state was ruled by the Klu Klux Klan, its governor a member, as were a majority of legislators and countless mayors and chiefs of police. During that time, it goes without saying that Colorado was not exactly a welcoming state for Mexican-Americans, Jews, or Blacks moving to the great, free West. But even after the Klan period ended, a depressionera governor decided that too many Mexicans-probably no more than five or seven percent at that time-were living in the state. So he blockaded the southern border of the state to prevent Mexican or Chicano people from entering. Mexican-American people today still talk about that episode, although it is the sort of thing that you tend not to find in the official history books. Even today Colorado enjoys at best a guarded reputation in the Latino community.

Throughout the United States, Latinos today suffer from some of the worst poverty and school dropout rates of any minority group and enjoy even less political influence than Blacks, who have at least their share of big-city mayors and a vibrant and effective congressional black caucus-this, even though the numbers of both groups are nearly the same and Latinos will pass Blacks within about seven years as the largest minority group in the United States....

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These resources compiled at the request of the Spirit House Project for a National Teach-In, Worship Service, and Candlelight Vigil
held On April 22, 2014, in Washington, DC

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