Teaching Racism and the Law at UCLA and Masaryk University

For several years, I have taught a popular and successful course at UCLA on “Race, Racism, and the Law.” This course systematically examines the racist fabric of the American legal system. It explores how contemporary racist practices, including police killings and other misconduct against African Americans, are deeply rooted in the history of American legal decisions and the United States Constitution itself. The course content addresses most of the major documents of U.S. law regarding race and shows how the legal system throughout our history has favored those with power and privilege, predominantly wealthy white men. This course primarily focuses on how the law has abused people of African origin, but it also addressed how legal cases, statutes, and practices have discriminated against other minority groups including Chinese Americans, Japanese Americans, and Mexican Americans.
Not surprisingly, much of the material is new to my students. Even those who are aware that the United States has a deeply racist history that persist in the early 21st century are unnerved at the extent of legal racism from the founding of the nation to the present. Any discussion about American racism requires an analysis of its institutional foundations. The legal dimensions of those foundations need to be understood both because they are difficult to change and because they often remain hidden from many conventional critiques of racism, especially in educational settings.
In both 2015 and 2017, I was invited to teach a truncated version of this class, for one highly intensive week, to students at the Faculty of Law at Masaryk University in Brno, Czech Republic. Both times I found the law students there remarkably knowledgeable, intellectually curious, and especially eager to learn about how the American legal system works to the profound disadvantage of its minority inhabitants and, very occasionally, how it moves in the opposite direction by actually implementing the deeper ideals of racial equality and social justice. Like their American counterparts, of course, they had rarely if ever studied the underlying legal foundations of American racism.
Presenting a course on American racism and law in the Czech Republic presented some unusual challenges. Some of these were historical and others were pedagogical; others were deeply personal. The Law School at Masaryk University in Brno is housed in the same building used as the headquarters of Nazi killing units that contained offices and prison cells between 1939 and 1945. This disconcerting fact inevitably conjures up the reality that the Nazi occupation government shipped most Czechoslovakian Jews to exterminations camps during the War. As a second generation Holocaust survivor with many family members killed in Auschwitz, I felt occasionally unnerved when I realized that I was teaching an anti-racist course in a structure where countless Jews and others were tortured and murdered. I mentioned this briefly at the outset and in some informal conversations with students.
For young law students in Brno, anti-Semitism is not a major concern. The Jewish population in Brno and the entire Czech Republic is small and most anti-Semitic incidents occur elsewhere in Central and Eastern Europe. My major challenge at Masaryk University was to link my material to the continuing problems of racism against the Roma population in the Czech Republic. The students there are familiar with this problem, if not comprehensively so. I found it easy and compelling to use examples of discriminatory treatment of Roma people with my examples of racism in the United States. Especially valuable to me is the existence of the Museum of Romani Culture in Brno, the only institution in the world devoted to the history and culture of this persecuted population, including the attempted Nazi genocide against Romani people during World War II.
As I do in my UCLA course, I began with contemporary examples of racial profiling and killings of unarmed black people before I embark on a chronological survey of American law and race (and racism). My examples include the well-publicized cases of Rodney King, Latisha Harlins, Amadou Diallo, Oscar Grant, Trayvon Martin, Eric Garner, Michael Brown, Laquan McDonald, Tamir Rice, Walter Scott, Freddie Gray, and others. The Czech students for the most part had heard of Rodney King, but knew little or nothing about the others. Most American students, on the contrary, have heard of most of these recent African American casualties.
To underscore this course opening, I showed a brief video that my graduate student, Shey Khaksar, and I produced on the topic. The video has graphic footage of some of these horrific incidents and even more: we start the film with a clip of the dramatization of the grotesque 1944 execution of 14 year old George Stinney, who was convicted of murder by an all-white jury in ten minutes and almost immediately executed in a South Carolina electric chair (and whose conviction was vacated in 2014). The Masaryk students, in their final essays for the class, indicated that the Stinney case and the footage of Eric Garner being choked to death on Staten Island in 2014 by New York Police Department officers had the most visceral impact on them. Still, all these cases revealed to them that egregious racism continues in the United States, contradicting strongly some of the misconceptions about American racial equality that they found on Czech media and American propaganda outlets.
After this dramatic start, I shifted to a brief discussion of the original Constitutional sources that established the fundamental legal foundation for racism in the United States. Although Americans often speak of the Constitution with reverence (including citizens and politicians who have never read it), the original document was deeply flawed. It took the late Justice Thurgood Marshall to puncture the romanticized view of the Constitution. In a speech in 1987, the bicentennial year of the Construction, Marshall pointedly noted that the Framers of the original Constitution had less “wisdom, foresight, and sense of justice” than millions of Americans wanted to believe.” He also proclaimed that the original document was “defective from the start, requiring several amendments, a civil war, and momentous social transformation to attain the system of constitutional government, and its respect for the individual freedoms and human rights that we hold as fundamental today.”
Both for U.S. and Czech students, I highlight the three original Constitutional provisions that Thurgood Marshall noted in his critical comments. One was the “three-fifths” compromise (Article I, Section 2, Clause 3) that allowed Southern slave states to count their enslaved population as three-fifths of a person for purposes of Congressional representation, therefore giving them more political power in the new nation. It is common today for African Americans and others to view the three-fifths compromise as signifying that blacks were actually three fifths of a human being. This is not literally true, because the clause is merely the consequence of a political deal that provided disproportionate legislative power to slave states.
That scornful interpretation, however, is both understandable and metaphorically reasonable. It is a perfectly legitimate response to the actions of privileged white men for whom black lives were a mere bargaining chip for their broader political objectives and who were indifferent to the wretched conditions to which these enslaved human beings were daily subjected.
Another original Constitutional provision was an additional compromise that reinforced this perception. Article I, Section 9 mandated that Congress would be barred from banning the importation of slaves until 1808, a full twenty-one years after ratification of the Constitution. Article IV, Section 2, Clause 3 was another legacy of slavery, the infamous fugitive slave provision, requiring the Northern states to return slaves who escaped to freedom back to bondage to the southern owners. I explained to the both UCLA and Masaryk law students that this provision was especially egregious and reflected the Constitution’s basic privileging of property rights, including human beings of African origin, above all else and that racism was embedded in the most fundamental document of American law at its inception. Even for relatively progressive students at UCLA, this was a seemingly new revelation.
I continued this line of analysis by briefly discussing the Fugitive Slave Acts of 1793 and 1850, which legislatively augmented the legal foundations of racism against black people. But as I told both sets of students, it took the infamous case of Dred Scott v. Sandford in 1857 to show the most dramatic racism underlying the foundation of the American Republic. In that case, arguably the worst Supreme Court decision ever, Chief Justice Roger Taney declared that escaped slave Dred Scott was mere property and consequently had no legal right to sue for his freedom in a federal court. Most disgustingly, Taney declared that blacks were always a race of an inferior order and “so far inferior, that they had had no rights or privileges that . . . the white man was bound to respect.”
This language was especially shocking to the law students at Masaryk University. I assured them that this was common at the time and that it had not entirely dissipated even now. More fundamentally, I suggested that this racist language became embedded not only in the legal structure of the nation but also in the culture generally, ensuring that people of color would remain second-class citizens.
In both Czech and American settings, I noted that the Civil War finally ended slavery in the U.S. and brought some formal legal changes to the status of people of African origin. The 13^th Amendment to the Constitution abolished slavery, the 14^th Amendment (among other things) provided equal protection under the law, and the 15^th Amendment guaranteed to (male) blacks the right to vote. And then I showed how the ideals of American law diverged dramatically from the realities. African American students usually understand this well.
Following the Civil War and the end of Reconstruction, Southern white intransigence undermined these legal gains. One mechanism was the Black Codes, which limited African American legal, political, and economic rights by legislation that retained the servitude that they experienced under slavery. These legal provisions ensured that newly freed slaves would continue to supply cheap labor and perpetuate white economic domination. Moreover, conservative courts, including the United States Supreme Court, were actually key institutional forces in restricting black rights. Judges were always white and came from privileged backgrounds; they were predisposed to protect dominant financial interests and against those of the impoverished black population. Equal protection of the law rarely occurred and numerous legal and violent means stymied black voting rights.
This was a revelation to the Czech students–not so much that this analysis was shocking, but rather that nothing in their previous educations had even provided any such glimpse of American legal and political history. That is likewise the case for many American undergraduates, even at UCLA. I proceeded to show how the Supreme Court further institutionalized racism in 1896 by legalizing segregation throughout the South with its infamous Plessy v. Ferguson decision, with its bogus “separate but equal” doctrine.
That case forced African Americans to face an entirely segregated society: neighborhoods, schools, cemeteries, theaters, water fountains, beaches, and every public facility. Combined with widespread racial violence including lynchings, this decision ensured that black Americans remained a subordinate class, a reality that has remained to the present, to the surprise of many of the students. In Brno, I used the Roma population as a hypothetical example, suggesting how absurd it would be if Roma women, men, and children had to drink from separate water fountains or sit only in the balconies of public movie theaters.
I also addressed how crusading lawyers in the mid twentieth century finally mobilized to move the law, if marginally, to address and change racially discriminatory practices in several fields. Such legendary lawyers as Charles Houston, Thurgood Marshall, Constance Baker Motley, and many others mounted successful challenges to racist practices and laws in numerous American areas of life. Although I had minimal time, I gave the law students a brief overview of some of the major twentieth century legal developments, most of which were understandably new to them.
Students have been generally astonished at the egregious nature of the racism being challenged in the courts. For example, in the 1944 case of Smith v. Allwright, the Supreme Court struck down the “white primary,” holding that the Texas Democratic Party could not legally claim that it was a private association and could therefore restrict its membership to white persons only, including for purposes of voting in primary elections. At the time, the Democratic Party had a monopoly on Texas politics and that the winner of the primary election inevitably won the general election.
Although Smith v. Allwright was a major legal victory for civil rights, that year was also when the Supreme Court issued one of its most disgraceful racist decisions in American constitutional history. Korematsu v. United States upheld the “relocation” of approximately 120,000 people of Japanese descent to American concentration camps in 1942. The Court held the exclusion legal under the war powers clause of the Constitution, allowing the government to remove innocent people from their homes and jobs and incarcerate them for three years. I called this an outrageous case of anti-Japanese racism. This was new and horrifying to the Czech students (and even some American students). I suggested that given the current political climate in the U.S., such a monstrous event, while still unlikely, could happen once again.
I also briefly discussed the landmark case of Shelly v. Kraemer, which held that state judicial enforcement of racially restrictive covenants that barred African Americans from buying homes in white neighborhoods was unconstitutional. Housing discrimination has had a long and dishonorable history in the United States and this decision eroded the legal foundation for this particular form of racism. But I noted that the problem remains, because legal decisions alone cannot alter the deeper attitudes and practices of a racist society. In both classes, I noted the continued existence of ghettos and slums populated by racial and ethnic minorities. And in Brno, I specifically mentioned that I had visited the run-down Gypsy neighborhood only a few kilometers from the law school.
Likewise, I taught the most important Supreme Court case that Thurgood Marshall won in the Supreme Court before tackling the historic desegregation case of Brown v. Board of Education. Both the UCLA and Masaryk students found the facts in the 1950 Sweat v. Painter decision fascinating. Heman Sweatt, an African American postal clerk, wanted to become a lawyer in 1945. As a Texas resident, he applied to the University of Texas Law School at Austin, the premier legal education institution in the state.
Denied on racial grounds, Sweatt sued in state court to compel his admission. The state court refused and instead, gave the state six months to supply substantially equal facilities for black law students. Texas replied by offering a sham program with a few law professors, a few law books, and no accreditation. It was “The School of Law of the Texas State University for Negroes,” established in four rooms in an Austin building. The Supreme Court, recognizing the absurdity of this arrangement, ordered Sweatt admitted to the University of Texas Law School.
I suggested to the Czech students that it would be similar if the Czech government created a separate law school for Roma students, because the Roma population there faces severe discrimination. I pointed out the classroom window to a nearby office building to drive home the point. My students quickly grasped the analogy and, more importantly, understood the monstrous idiocy of Jim Crow practices in the United States.
All the Masaryk and the UCLA students knew of the historic 1954 Brown decision that not only ended segregation in public schools, but created the legal foundation for terminating all forms of racial discrimination, especially in Southern states. I also discussed how Southern states delayed implementing the Brown decision, often with outright defiance by closing public schools entirely.
None of the Czech students, however, had heard of the egregious defiance of Arkansas Governors Orval Faubus in 1957 and Mississippi Governor Ross Barnett in 1962 in blocking court-ordered admission to black high school students (the Little Rock 9) and a university student (James Meredith) respectively. The vast majority of my UCLA students had likewise not heard of these nefarious events. I also noted that more than sixty years after the Brown decision, and despite major changes in American consciousness and politics, most American public schools remain largely segregated by race–another startling revelation to my Czech students.
Following this historic decision, I noted the creation of the 1964 Civil Rights Act that President Lyndon Johnson signed. The crucial point was that this legislation would never have come to pass without the agitation of the civil rights movement. This underscored one of the central premises of the course in both locales: the view that law could only be understood in the full context of history and politics, a vision frequently lacking in American legal education.
A key legal development was Loving v. Virginia, the 1967 decision that declared unconstitutional the laws making interracial marriage illegal. Czech students especially found absurd the notion that a white man and a black woman who married and lived in Virginia were arrested and charged with a felony. They were astonished when I pointed out that when Barack Obama was born in 1961, his black father and white mother could have been held as criminals if they had married in many states other than Hawaii.
At that point in the 2017 class, one Czech student, out of the blue, offered his observation that former President Barack Obama was born in Kenya. Although this had absolutely nothing to do with the course content, I asked him how he knew this “fact.” He replied that his pastor has seen the copy of Obama’s Kenyan birth certificate. I said that I would not take up precious class time with this absurdity, a view I would also express at UCLA. What is disturbing, however, is that this racist “birther” nonsense has apparently migrated across the ocean. Advanced a few years ago by Donald Trump himself, this pathology helps show how my student’s inexplicable comment reflects the wide influence of American right wing propaganda.
In the Loving decision, Chief Justice Warren wrote that marriage is one of the basic civil rights, one of the fundamental freedoms of human beings. I indicated that in 2015, the U.S. Supreme Court used that rationale to rule that same sex marriage was protected under the equal protection clause of the Constitution. This was a valuable observation in the Czech Republic, which recognizes “registered partnerships,” a major advance from the recent past, but still disallows full marital parity. At UCLA, I used to get some vocal resistance when I used the Loving decision to support same sex marriage, mostly from deeply conservative Christians and some Jews. By 2017, there is no student resistance whatever, but I suspect that some anti gay marriage students elect to remain silent because they know that overwhelming majorities of their fellow undergraduates support full marriage equality.
At UCLA, I discuss the legal retreat from civil rights in recent years, but especially in the Trump Administration with its overtly anti-civil rights Attorney General Jeff Sessions. But in this mini-course at Masaryk, time was at a premium and many themes that I could pursue at UCLA were impossible to cover during the limited schedule constraints. Among these themes was the retreat from affirmative action, the assault on undocumented immigrants, especially Latinos, and the racist nature of Trump’s travel ban with their anti-Muslim agenda. But I noted these corrosive realities briefly at the end of the course.
Still, I managed, if briefly, to address the plight of the Roma population in the Czech Republic. These people suffer high unemployment, substandard housing, educational segregation, widespread discrimination, disproportionate incarceration, and intermittent violence. These disturbing realities are strikingly similar to the treatment of African Americans over the centuries. Even some fleeting comparisons throughout the course make it more likely, I hope, that some future Czech lawyers will become more aware of the racism in their own country.
I have been able to address some new developments in the continuing struggles against racism in the United States in several of my regular courses at UCLA. The recent focus on racial microagressions, for example, is a promising development. These daily racist occurrences are too easily overlooked, but they inflict lasting harm on millions of victims. They exist pervasively and need to be identified, addressed, and ended.
The emergence of Black Lives Matters (BLM) following the acquittal of George Zimmerman for killing Trayvon Martin, for example, has led to many demonstrations against police brutality and misconduct nationally and internationally. BLM is a decentralized network without any formalized leadership hierarchy. I have written positively about that movement and have personally participated in BLM protests in Los Angeles. I see this upsurge in black activism as one feature of a more comprehensive strategy to counter American racism and its institutions.
Still, not every BLM action is praiseworthy. Sometimes, like various other progressive groups, it can lose sight of the values that sustain its existence and its ability to mobilize support for its objectives. Recently, for example, BLM protestors at the College of William and Mary disrupted an event called “Students and the First Amendment” that was co-sponsored by the American Civil Liberties Union. BLM representatives purportedly believed that the ACLU’s defense of free expression under the First Amendment was little more than pandering to the needs of white, wealthy, male, and straight members of society.
I believe this view, expressed elsewhere on campuses and beyond, is shortsighted and wrong. And for me, it is personal: I was a Berkeley student and active participant in the Free Speech Movement in 1964 when we fought for free expression for everyone, including those with whom we disagreed. Those of us on the left were always confident in the strength and superiority of our values. The notion that conservatives, even racists and fascists, should be denied free expression negates what we fought for. Moreover, as a longtime civil rights and political activist for well over a half century, I know how often we took serious advantage of our free speech rights to mute racist excesses, to help end the Vietnam war, to work against sexism and homophobia, and many other progressive objectives over the years. Highly dramatic “left” assaults on free expression are ethically dubious and only work to reinforce support for the reactionary Trump regime. I have addressed such issues peripherally in my UCLA classes and in various public forums.
Another unfortunate manifestation of juvenile “anti-racism” on campus occurred in spring, 2017 when students of color at Evergreen State College in Washington, who had regularly along with faculty of color observed a day of absence to stay off campus, said that they wanted white people to remain off campus this year. A white biology professor refused, catalyzing protests and counter protests, closing the campus. However understandable the desire for black and brown unity is, it seems inappropriate to ask employees or students of any race or ethnicity to stay away from campus on that basis alone. The Evergreen request smacks of separatism and also plays into the hands of Trump and his right-wing supporters. This has also been a topic in my UCLA courses. I have written sympathetically about identity politics in Tikkun and elsewhere, but I also warned about its abuses and excesses.
To be sure, racism remains a huge problem in American education and throughout society generally. I would like to formulate a comprehensive strategy to overcome American racism and its institutions; after more than a half century of activism on that front, however, I understand all too well that racism is structural and institutional and deeply imbedded in American law and its operations. Even more basically, racism is inextricably linked to American capitalism, of which the legal structure is an inextricable part.
But that recognition should hardly encourage pessimism or passivity. The struggle for social, political, economic, racial, and moral justice always continues and transcends individual lifetimes. Activists always need to remain committed for the duration. Strategies for progressive change must entail sustained thought and actions on multiple fronts; progressives in every area of life need to commit and recommit to doing whatever they can.
Because I have spent most of my professional life in university settings, I feel comfortable in identifying specific needs to address racism and sexism (and multiple other defects) in this institutional setting. We need increased hiring of hiring of faculty women and people of color. We also need serious diversity training and mature efforts to reduce and eliminate racist, sexist, and homophobic attitudes and practices at individual and institutional levels. That is not trivial; many faculty members and administrators harbor implicit biases and display sophisticated strategies to avoid change and even deeper personal reflection. I have sought, with many progressive allies, to address these issues for many decades, with some successes.
I look forward to continue my educational work in the classroom both at UCLA and returning to Europe and elsewhere. I hope to present my courses on Racism and the Law with a more hopeful vision of progress in the early 21^st century, assuming that the Trump horror will be muted in the near future through sustained political action.
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