Month: December 2015

Victory in the Fight Against Money Bail and Private Probation

jail bars

Great news from Alec Karakatsanis (a member of our Board) about another step  toward justice.

Alec’s team won a major victory last night against money bail and private probation in Rutherford County, Tennessee.  The federal court in Nashville issued a 20-page opinion (see pdf link below) condemning the use of money bail to keep misdemeanor probationers in jail prior to revocation hearings.  The judge ordered sweeping changes to the way that thousands of cases are handled.  The judge also ordered the release of all of the prisoners, meaning that potentially hundreds of people will be home for the holidays and prevented from being jailed because of their poverty in the coming months.

Rodriguez v Providence Community Corrections Opinion Granting Injunction (pdf)

Agreeing with the local Sheriff (see video above), the federal judge  made some sweeping statements about the injustice of private probation.  Here is a sample:

The use of secured money bonds has the undeniable effect of imprisoning indigent individuals where those with financial means who have committed the same or worse probation violations can purchase their freedom. This effect stands in flat contradiction to the long-held and much-cherished principle that “[t]here can be no equal justice where the kind of [treatment] a man gets depends upon the amount of money he has.” . . . . The Fourteenth Amendment precludes imprisoning someone because he or she does not have enough money: “When a defendant is imprisoned for financial inability to pay a fine immediately, he is treated more severely than a person capable of paying a fine immediately. The sole distinction is one of wealth, and therefore the procedure is invalid.” . . .


Defendants in this case have determined that PCC probationers are eligible for immediate release upon payment of a monetary bond. They make this determination without any inquiry into indigency. In so doing, Defendants deny release only to those too poor to post bond, meaning that one’s freedom is conditioned upon one’s financial resources. The Constitution protects those in the criminal justice system from such perverse contingencies.


In sum, all four of the factors a court considers when presented with a request for a preliminary injunction weigh in favor of granting the sought-after relief. . . .  A preliminary injunction is an extraordinary remedy never awarded as of right.  But the injustice perpetrated here is just that: extraordinary.

Open Letter to HLS Community


Below is a letter signed by members of the teaching community at Harvard Law School.

December 9, 2015
An Open Letter to the Harvard Law School Community
We, as faculty members, lecturers, instructors and senior staff at Harvard Law School, have been profoundly affected by the recent, salient examples of racial injustice in this country, and the wave of protests that have followed.  There is a growing awareness that such racial injustices require our urgent attention and that institutions of higher learning are among those in need of  reform. We join the call for, and offer ourselves to participate in, change now.
Hundreds of students and staff have called on this community more fully to recognize the long history of discrimination and the sometimes subtle forms of inequality and exclusion that still exist within Harvard Law School. Those students and staff made a series of demands last Friday that they “believe are necessary first steps to making HLS the inclusive, diverse community that we all want it to be” and to promoting the HLS mission “to educate leaders who contribute to the advancement of justice and the well-being of society.”
We have been inspired by their efforts, and we are grateful for the courage, intelligence, dignity, and resiliency that they have exhibited in calling for reform in our School and in our nation. We believe those students and staff should not be raising their voices alone. Moreover, we think that the time has come for our institutional conversation to shift to the task at hand: real, concrete and timely action. In signing this letter, we are taking one small step to make clear our strong support for making those investments.
These issues are not new. As a group of faculty and staff put it in an open letter a year ago:  “To all those involved in efforts to push for change, we will engage, individually and collectively, to challenge and dismantle the institutional and structural sources of injustice, particularly racial injustice.”  We reaffirm that commitment now.  Complacency is not an option. We are ready to work with students and staff in an immediate, concrete and informed process or assessment and reform.  The current activism presents us with an opportunity that lovers of justice cannot afford to squander.


Sabi Ardalan
Ona Balkus
Roger Berlting
Cheryl Bratt
Esme Caramello
Stephanie Davidson
Fernando Delgado
Chris Desan
Julia Devanthery
Susan Farbstein
Stephanie Goldenhersh
Lee Goldstein
Tyler Giannini
Michael Gregory
Lani Guinier
Janet Halley
Jon Hanson
Duncan Kennedy
Eloise Lawrence
Jacob Lipton
Ken Mack
Maureen McDonagh
Toby Merrill
Lia Monahon
Dana Montalto
Deborah Popowski
Robert Proctor
Intisar Rabb
Stephanie Robinson
Ronald Sullivan
Jeannie Suk
Phil Torrey
Dehlia Umunna

Please note: there will be more signatures added over the next several days. If you want to add your name, email

You Have to Start Somewhere: Whitesplaining Harvard Law School’s Crest, Black Electrical Tape, and a Better College Campus

HLS Defacement

By SJP Friend Jay Willis (reposted from Needs Further Review):

With increasing frequency, students on college campuses across the country are forcing their  old, proud, veritable institutions of higher education to think critically and honestly about the echoes of entrenched racism on their campuses. Results have been…varied. At Georgetown, students recently successfully lobbied to rename a building named after a university president who used the proceeds from slave sales to pay the university’s bills. At Yale, there is an ongoing debate regarding the propriety of naming one of the university’s residential colleges after noted white supremacist and vocal slavery supporter John Calhoun. (So far, nothing doing). And at Harvard Law School, students have taken issue with the school’s crest.

Why the crest? Appearing nowhere on any list of “Fun Facts” about HLS is the fact it was founded in 1817 with a bequest from the estate of one Isaac Royall, a hilariously wealthy Antiguan plantation owner who, in addition to indirectly founding the world’s most famous law school, also suppressed a mid-drought slave revolt in 1736 by hanging six, breaking five on a medieval torture wheel, and burning 77 more at the stake. Harvard still uses the Royall family coat-of-arms as its crest, a rather unsettling fact about which more than a few professors have repeatedly and frankly expressed their discomfort (for example, when now-Justice Elena Kagan and Professor Martha Minow assumed the deanship, they both declined the traditional dean’s title of “Royall Professor of Law” for this reason).

In the largest building on campus, Wasserstein Hall, a series of small black-and-white portraits of the school’s tenured professors lines the first two floors. As far as I know, once a professor receives tenure, their portrait stays there forever. It’s a nice and fairly innocuous way to connect the present to the past; mostly, the suspenders- and pleats-laden portraits are there to show you just how handsome your ancient Property professor was as a young man, and/or to serve as a cautionary tale regarding apparently-once-trendy wardrobe choices. On Wednesday, November 18th, students from all Harvard schools, undergraduates and graduate students alike, marched in support of the protests at the University of Missouri. Some law students placed black electrical tape over the HLS crest that appears in Wasserstein Hall. On Thursday, November 19th, they arrived at class to find the same tape repurposed to deface the portraits of their African-American professors instead.

I saw this posted online by my friend Jonathan Wall, who, since I am now three full years out of law school, is the only person I know there anymore. It was more than a little surreal to see a longstanding throwaway aspect of the school’s interior decorating scheme so suddenly elevated in importance for such a terrible reason. Black students, shocked and outraged and afraid, spoke out about how incidents like this make them feel unsafe and uncertain and and unwelcome. About how they spend their entire academic careers (and then after that, their career careers) wondering if their professors and peers take them seriously or consider them products of affirmative action or diversity initiatives. And about how seemingly right when they start to think, no, I’ve got this, I belong here, something like this happens to bring it all tumbling town.

It is impossible to ask students of color to arrive at school, take this all in, and then to stride confidently past these portraits and into a classroom and pretend like everything is fine and take diligent notes on the Rule Against Perpetuities (note: it is always the Rule Against Perpetuities) or whatever. All students, irrespective of race, are trying to pull off the already-tough-enough task of going to lecture and taking notes and studying for tests and writing papers and making friends and falling in love and getting drunk at bar review and falling out of love and being kids and growing up, all at the same damn time. But students of color must also grapple with the daily reverberations of a legacy of racial discrimination and try and figure out how that fits into their puzzle, too. They’re at the same school, on the same campus, and in the same classrooms as white students. But on days like last Thursday, it has to feel a world away. Black students cannot have the same experience as white students when they know that any day could be interrupted by racism in a way that requires them to drop everything, consider, and respond.

This sounds…exhausting. Yale student Aaron Lewis describes how many students of color have got to feel at this point:

Students should not have to become community organizers just to receive acknowledgement and respect from their administrators. It’s disheartening to feel like so few people in power have your back. Yes, we are angry. We are tired. We are emotionally drained. We feel like we have to yell in order to make our voices heard.

Right. I can understand that this must be horrible. I can even understand how horrible it probably is (as in, “very”). I can understand that it is a frightening, disheartening burden that on some days just makes them want to disappear, except they know that that is exactly what some people want them to do, so they instead have to find ways to manage and to move on. But no matter what I do, no matter how hard I try, no matter how many times I put on my Obama t-shirt and spin around in a circle in front of the mirror and shut my eyes tightly and whisper “post-racial society,” I can never actually feel the way that students of color of do. I can’t know what it is like to have my skin crawl as I walk past Slavery Hall, or how it feels to have the response to my protests be the publicly vandalized faces of the professors who look like me. Being a member of a group that is constantly subject to both overt and institutional speculation, scrutiny, and scorn is an experience I cannot know, because neither I nor anyone who looks like me has any way of doing so.

By itself, that’s not the problem, because short of pulling a Jess Row, there isn’t much I can do about it. The problem is instead that because there are more white people than black people in higher education, and those white people have grown mighty used to running things for several centuries now, black students’ license to express their discomfort and their discontent, and their ideas for addressing those feelings, is almost entirely contingent on white people’s willingness to hear them out and, hopefully, to take their word for it. Black students are authorized to voice their concerns only for so long as enough white people look at the purported problem and decide, sure, if you say that this is a problem, we will entertain proposals to do something else instead. Black students can make inroads against intolerance and demand systemic change as long as the majority finds the message acceptable, the methods nonthreatening, and the goals reasonable enough (all of which are metrics set by, again, generations of white people). And the moment that the powers that be decide that, no, this isn’t a real problem, you all need to calm down and quit complaining and find something more serious to get worked up about, all that momentum is suddenly and arbitrarily extinguished.

This dynamic is nicely encapsulated in that bastion of Old White People Who Know What’s Best: op-ed pages. Take this collection of drivel-laden paragraphs masquerading as an intelligent thought written by Colin McEnroe, that one second cousin that you dread having to talk to at Thanksgiving dinner, whose column in the Hartford (CT) Courant has some scorching Baby Boomer-era wisdom for today’s students who have the gall to object to racist things about which he has never thought (all emphasis mine).

I’ve got this to say to the Yale students engaged in bristling, expectorating confrontations with authority: You’re overindulged. You don’t know how to act right.

This just kind of feels like a paragraph from which an editor excised the word “uppity,” right?

You’ve come so completely unglued in a very low-stakes game that it’s tempting to conclude you’d be useless if the going ever got tough.

I want to crush this take up into a powder and sell it in baggies.

There’s not enough on the line. One of my favorite tweets from the week — I’ve lost track of the tweetist — was “When did students go from protesting the Vietnam War to protesting being offended?”


The 2015 counter-argument — and it’s not a specious one — is that white, male, hegemonic figures like [Yale President Kingman] Brewster and me can’t even imagine how that risk is lived and felt by more vulnerable minorities.

Wait…wait, yes, that’s exactly the point that students are trying to make here! Okay, so you get it! Hey, maybe this isn’t so bad after all, and maybe there is some hope at arriving at a more nuanced cultural understa–

Point taken, kids. But call me when you’ve got a big issue. Meanwhile, understand that mom and dad aren’t there anymore with the Purell and the wipes. 


You should read the rest of Mr. McEnroe’s column if you suffer from hypotension or insufficient rage or something, but those excerpts nicely summarize the crux of the institutional response to minority students’ pleas to a system of authority that was never built to hear them in the first place. Black students, your protests are tolerated until we decide that they are not any longer. Then, you are coddled, entitled, thin-skinned Millennial wolf-criers who cannot distinguish between a few minor slights and real, true adversity (WHICH, AGAIN, = VIETNAM WAR)

This is not a tenable state of affairs. Students of color already bear the burden of parrying not only overt discrimination but also the daily slights that slowly rob you of the will to try anymore. How many professors think they’re occupying the seat of a more qualified white student? How many students think that? How many people stop listening to them when they decide to speak in class? Did I get this bad grade on my paper because of race? Wait, did I get this good grade on my paper because of race? McEnroe and his ilk accuse black students of perceiving injustice where there is none, of playing the race card, of viewing everything through a racial prism. But this fails to acknowledge that black students have spent their whole lives being viewed through a racial prism. Why are they expected to not do the same thing?

At the same time, the university expects and demands that black students put their heads down, be thankful, and act like they’re comfortable. Well, hey, you made it here, too. You’re just like everyone else. Stop asking for special treatment. Why is it always black people talking about race? But the need for honest discussions about race in higher education is, by definition, a need that will be plain only to minority students. You never hear discussions of the pressing need for greater recognition of Western European culture in university curriculum because, um, Western European culture is just called “university curriculum.” White students don’t complain about the relationship between culture and pedagogy because that has never been a problem they have had to deal with. Black students who want to talk about race are not oversensitive or hysterical. Their desire simply reflects the reality that they are the only ones who have ever had to think about it.

The final piece of this really, really bleak puzzle is that many universities have responded not by formally examining their own practices but instead by tasking minority students with engaging in extracurricular guerrilla diversity. Students are expected to blend seamlessly into the academic environment while also serving as occasional unpaid spokespersons of The Minority Experience. My friend Andrew sent me a piece by one Alana Massey, who spoke out against the narrative that black students are responsible for teaching their peers about diversity and acceptance. Black students are there for the same reasons as anyone else, Massey argues: to get an education. Yet they find themselves conscripted as diversity ambassadors to a student body that is under no obligation to actually listen. This layer reveals the most insidious double (triple?) standard of all: black students are allowed to lobby for change, but only if the powers that be deem their requests acceptable, and then, only if they accept all responsibility for doing so. It is the job of universities, not the students of color who attend and pay tuition, to provide a holistic education. But universities have gotten very, very good at outsourcing that task.

There is no simple solution to these problems, though if you have any ideas, please tell them to me so that I can write about them and pass them off as my own. But I do think that there is a simple first step. Colin McEnroe won’t like it. Here it is anyway: listen to black students, about everything, and take their word for it, and do what they say, and then see what happens.

The powers that be need to stop analyzing every call for change to see if it is an acceptable de minimis tweak to The Way Things Ought To Be. They need to stop evaluating alternate viewpoints in light of what is easiest, or what is within the scope of preserving History or Tradition, or what they think will address the problem even when students plead for something else. Stop sneeringly wondering if “all this hubbub” about old building names is warranted. Stop dismissing suggestions for more inclusive curriculum as the naive complaints of entitled Millennials (SOMETHING SOMETHING SOMETHING VIETNAM), or as the calculated requests of lazy students unwilling to subject themselves to rigorous academic standards, or both. Stop telling people to just calm down, to relax, and to not make such a big deal out of everything. Start listening instead.

The American university is a remarkably successful institution. It is also four hundred years old and has, up until only very recently, been almost completely dominated by white people. While minorities of course now occupy some positions of power, the system in which they operate still favors the majority. So why blindly defend the integrity of an institution that only welcomes certain points of view regarding what counts as offensive, and what is okay? Why not give another way of making decisions a try, and see if a more inclusive place can work just as well?

I willingly concede that buildings named after long-dead racists and antiquated crests borrowed from long-forgetten bloodthirsty torturers are not the most significant problems that face minority students today. And renaming every single building and disposing of every offensive symbol would not be a panacea for racism on campus. But it does not follow that universities should therefore ignore things like this completely. Universities that sincerely engage with students on even seemingly minor issues build trust, and universities that balk or fight back in the name of “dealing with the Real Problems on Campus” only exacerbate the perception of imbalanced power dynamics as firmly entrenched. If administrators won’t listen to earnest requests for renaming one stupid building, how are black students supposed to envision a world in which administrators also care about ending racial profiling or unequal access or de facto segregation or any of the other Real Problems on Campus, too?

The fact that a change is simple and easy does not mean it is not worthwhile. Symbolism counts. Trivial though they may seem to some, building names and school logos are as good a place to start as any.

Get much more of Jay’s insightful analysis at Needs Further Review.

The Illusion of Color-Blindness


From Harvard Gazette:

According to Yale Professor John Dovidio, “Whites spend a lot of time pretending they don’t see race.” But, he said, unconscious bias is pervasive, and unconscious biases by whites impact nearly every aspect of black lives, including vital areas such as health care and employment.

Dovidio, the Carl Iver Hovland Professor of Psychology at Yale University, was the guest speaker at the Faculty of Arts and Sciences’ second Diversity Dialogue of the year. “But I Don’t See Color! Consequences of Racial Color-Blindness” was held Dec. 2 at Harvard Hillel.

Biases are built into our society and it’s normal to absorb them, said Dovidio to the audience of more than 150. “Subtle bias by well-intentioned people is one of the hardest things to overcome.”

Prejudice is embedded in the way people think, which makes it insidious, he said. “If I see a person of color and I claim to be color-blind, what color do I see? White. And that’s racist.”

Dovidio cited several studies that showed disparities in interactions between physicians and patients. He said a 2003 study found, “Race-discordant visits are shorter, involve less positive affect, and are less participatory.” Another study, he noted, reported that 57 percent of blacks say they experience discrimination “often” or “very often” in interactions with white physicians.

Implicit bias by white physicians, he said, results in fewer verbalizations, shorter visits, and faster speech. They are less patient-centered. In response, the patient is less involved and there is less clinician respect. Further, the patient does not like or trust the clinician, and lacks confidence in him or her, according to the studies cited by Dovidio.

In the workplace, Dovidio said he does not buy managers’ arguments that “We tried to have a diverse [field] of candidates, but couldn’t find any” when filling job positions. He said senior leaders should not care about good intentions, but only about results.

“If you value something, it’s the outcome that matters,” he said. “If you want diversity in the workplace, you have to fight for it.”

Dovidio said unconscious bias in the workplace frequently prevents blacks from getting jobs. He cited research that showed that in a pool of black and white candidates who may be slightly deficient in qualifications for the same job, the white candidates are more likely to be chosen. White deficiencies are more likely to be overlooked or forgiven. Hiring managers often cite the deficiencies in the black candidates to justify not hiring them. In other words, he said, “White candidates get the benefit of the doubt. If there is some ambiguity, the black person suffers.”

* * *

Returning to his extensive research regarding race and white bias against blacks, Dovidio cited what he called “aversive racists” who “sympathize with victims of past injustice, support principles of racial equality, and genuinely regard themselves as non-prejudiced, but at the same time possess conflicting, often non-conscious, negative feelings and beliefs about blacks.”

These negative feelings, Dovidio said, “are rooted in basic psychological processes [e.g., social categorization] that promote racial bias. In addition, the negative feelings that aversive racists have toward blacks do not reflect open hostility or hatred. Instead, aversive racists’ reactions typically involve discomfort, anxiety, or fear.”

Dovidio concluded that contemporary bias is subtle and unconscious. But he said there are ways to confront it. He suggests that organizations create strong diversity committees, involve people of color, and make diversity part of employee performance reviews.

* * *

Read entire article here.

#HLSUntaped @ The Record


From Harvard Law Record, a collection of recent editorials and essays about race and racism:

More Student Voices


finally and fully embrace the difficult task of understanding and reckoning with our history. We must acknowledge the magnitude of American racism—including the way it poisons our own community—and recognize the urgency of pulling it down.

He wonders whether

students, with their unique sets of experiences informed by their own reading of history, are more closely attuned than he realizes to some truly deep obstacles to change?

He also critiques the effects of focusing on “dry technical issues”:

Issues of race are inextricably woven into the broad blanket of American law. The ideology of white supremacy and racial difference was at the epicenter of this society’s birth and upbringing. And it has settled deep in this country’s blood and bones, including in the gigantic, complex bundle of laws and court cases and customs that determine how we govern ourselves.

So when law schools presented with roomfuls of pliant young minds acquiesce in reducing major areas of law to “dry, technical issues,” they play a role in entrenching a system with racism in its marrow.

And suggests that even a seeming neutral, rational argument

often reflects a documented tendency of societies to legitimize the structures that have long secured dominant-group entitlements. Social psychologists call this tendency system justification theory. If this impulse to preserve the status quo drives much of the opposition to affirmative action, then it too is a formidable obstacle to change.

Coby conludes:

Harvard Law School vows in its mission statement “to educate leaders who contribute to the advancement of justice and the well-being of society.” To advance justice in our particular society, where the methodical administration of racial injustice has reigned for centuries, we must commit to uncovering the roots of the ideology of racial difference and breaking them out of the stubborn, hard-packed ground so many of us have comfortably trod for so long.

Read Bianca’s full article here and Coby’s here.

Derrick Bell Protests HLS – 25 Years Ago Today

Derrick Bell at HLS

“The reality, of course, is that few institutions — and certainly not Harvard — move toward more racial inclusiveness without pressure sufficient to awaken a tardy recognition that a modicum of diversity can be a valuable addition to a school’s reputation.”

~ Derrick Bell (quotation from 1998 article)

From Wikipedia:

In 1990, Harvard Law School had 60 tenured professors. Three of these were black men, and five of them were women, but there were no black women among them, a dearth Bell decided to protest with an unpaid leave of absence.  Students supported the move which critics found “counterproductive,” while Harvard administrators cited a lack of qualified candidates . . . .

Related posts:

Professors Who Will

raised hands

By SJP Friend Annaleigh Curtis:

One of the best things about law school is that it brings together people with diverse backgrounds and experiences. Something that makes me somewhat unique among my peers is that I spent five years before beginning law school teaching college courses, first teaching and coaching debate, then while I was earning my PhD in Philosophy. I thus come to the law and legal education with a particularly acute sense of what academic freedom is, should be, and is not. Academic freedom is absolutely vital to the educational system, particularly in college and graduate and professional schools. It allows professors to speak, teach, and write on controversial ideas. This freedom encourages innovation and knowledge-production.

However, not all appeals to academic freedom serve these worthy goals. As students on this campus, and on campuses around the world, demand that their education confront and address race, class, gender, and other social justice issues, they will no doubt be met with administrators and professors who insist that such changes can be suggested or encouraged, but not mandated. To mandate them would intrude impermissibly on academic freedom. I want to suggest that this response misunderstands the point and nature of both students’ demands and the law itself.

Law school curriculum, or any other sort of curriculum, does not come to the world fully formed. Law school courses do not, in Plato’s terms, carve nature at its joints. For one thing, law is not natural. It is made by humans, and it reflects those human origins. The current way of dividing up 1L classes, for example, into contracts, torts, and property is artificial. The private rights implicated in contract are often intermingled with those implicated in tort. Beyond that, it is a choice, which is to say again that it is not natural or given, to teach those courses in the first year instead of other courses, like environmental law, civil rights law, or anything else.

The choice of how to divide up courses, and which of those courses to teach, is necessarily political. These choices reflect judgments about what is core, central, and important—and what is peripheral, add-on, or elective. This is not to say that there are not reasons to divide up legal education as it is currently divided, but that the division itself requires justification in the face of criticism. Indeed, many law schools in the U.S. embarked on curricular reform recently. At HLS, we have seen the addition of the problem solving workshop, the removal of constitutional law, and the addition of legislation and regulation and international law to the 1L curriculum. These changes were made, presumably, to reflect changing views on what is and is not central to the law and its practice. Law schools rush to add courses that add to the knowledge large corporate firms want graduates to have when they begin work, yet balk at the idea of requiring that students confront—and professors teach—the extent to which race shapes the law.

Students’ demands to make race central to legal education do not come from left field. Race is not a non sequitur in the broader context of law. Race is, instead, quite central to the development of law. The constitution was written against the backdrop of slavery and enshrined it into the structure of our most basic law. Today the laws—and applications thereof—surrounding police violence, housing, the environment, loans, and so much more continue to implicate race in very fundamental ways. The story of race in law is the Reconstruction, the Civil Rights Act, and mass incarceration. But it is also torts, contracts, corporations, legislation and regulation, and quite literally any other course currently taught in any U.S. law school.

Professors who fail to teach the racial implications or foundations of the subjects they teach, then, are failing to grasp at the core of the law. They are neither experts nor scholars if they are unwilling to grapple with, uncover, and explain these implications in their scholarship and classrooms. We would not call it academic freedom if a professor tasked with teaching administrative law instead taught molecular biology. We might provide her a chance to justify this choice, but absent a justification she would be acting in bad faith. If law professors who teach criminal law—the 1L course that is perhaps most steeped in race in this country—refuse to confront race in their classes, they are as far from their field as molecular biology is from administrative law. If professors are unwilling to address race in the classroom, we are happy to have new professors who will.

Some related Justice Blog posts: