Online Symposium

This essay reflects on Philando Castile and the work he did to support the children who passed through his school cafeteria. By regularly paying off their school lunch debt, Mr. Castile voluntarily assumed a vital caretaking role that the state refused to accept: namely, supporting food-insecure children and education through debt-free lunch. He kept children safe in this regard, even up to the moment that the state violently stole his life on July 6, 2016. Even as his death is a marker of the continuing, racialized excesses of American policing, Mr. Castile’s life in service to hungry schoolchildren reveals the sometime perversity of the public-private American social provision policy that continues to impose the burdens of financial insecurity on individuals least able to bear them.

From disparities in healthcare quality and coverage to housing and employment insecurity, the COVID-19 pandemic has highlighted existing inequalities in American society.  But critically, the pandemic has also exacerbated these inequalities, particularly those that exist within the family. As work and school activities have shifted from schools and other public sites to the home, and employment has become more precarious, more and more Americans have found themselves struggling to reconcile the demands of the workplace with household responsibilities and their new roles shepherding children through the travails of remote education.

Much has been made of the pandemic’s particular effects on professional women, who have disproportionately assumed the twin burdens of work and caregiving during these extraordinary times. These burdens, coupled with the collapse of service industries in which women are disproportionately employed, have prompted women to leave the workforce in record numbers. The consequences of this exodus of women from the workforce cannot be understated. Indeed, some argue that this “she-cession” will erase decades of hard-won progress for working women, while also exacerbating race and class inequalities.

But speaking of these dynamics solely in the register of economic disruption, gender inequality, and work-family conflict overlooks a crucial player in this landscape: the state. As this Essay argues, not only has the pandemic revealed endemic inequality, it has also highlighted the state’s thin support for caregiving and family responsibilities, as well as the underlying presumption that the family will serve as a means of privatizing care and dependency. It is only in recentering the state, and being clear-eyed about its conscription of the family (and those within it) in the discharge of public functions, that we can be clear-eyed about the inequalities that are produced—and exacerbated—by the privatization of care.

The killing of George Floyd prompted a racial reckoning that quickly extended beyond the issue of police violence, prompting people of all backgrounds to confront the depth and breadth of racial inequality in American society. Education is central to either undermining or sustaining racial hierarchy. For much of American history, Blacks were either denied education or provided a segregated education inferior to that available to whites. The demise of de jure segregation fueled hopes that the expansion of educational opportunity would diminish racial inequalities.

Yet, while the promise of education remains undeniable, some aspects of schooling predictably exacerbate racial disparities. This Essay highlights a paradox at the intersection of education and racial justice: selective schools’ laudable embrace of the principle of academic achievement now constitutes an impediment to educational opportunity for Black Americans in both secondary and higher education alike. When schools evaluate applicants on the basis of their prior academic achievement, the educational system becomes stratified on the basis of student achievement. Achievement segregation disadvantages Black Americans. When racial segregation results from achievement segregation, it may be especially difficult to dislodge, given the importance attached to the idea of academic achievement as a desirable basis for choosing among applicants. Nonetheless, this Essay unsettles the justifications that sustain achievement segregation. Doing so is essential to creating educational settings that are more racially equitable.

This Article explores a few remedies to closing the racial wealth gap rooted in a theory of contract damages. The U.S. government has failed to live up to its promises to Black Americans to treat them equally under the law and thus a remedy is justified. Though a full reparations program is necessary and theoretically justified, this Article does not focus on a full-scale reparations program. Rather, the Article explores how a housing grant might work as one solution to closing the racial wealth gap given the current constitutional interpretation and political barriers.

 

The War on Terror is far more than a domestic project aimed to deter terrorism and shore up national security. The War’s policy, strategy, and accompanying epistemology, since its very inception, created opportunities for other nation states to initiate—or expand existing—domestic programs that conflated Muslim identity with terror suspicion. In turn, adopting the fundamental presumption of the War on Terror that drove American Islamophobia, feeds state-sponsored Islamophobia in states where the War on Terror was formally adopted.

This Article theorizes how Islamophobia is exported by way of the American-spearheaded War on Terror, and how it fed and still facilitates the structural Islamophobic policies in China and India—where the host governments are unleashing two of the most ominous systems of Islamophobia in the world. While led by the United States, the War on Terror gradually became a global crusade, whereby states across the world found an opportune moment to persecute and punish their own Muslim populations to achieve their ends.

 

Public schools in America remain deeply segregated by race, with devastating effects for Black and Latinx students. While residential segregation is a critical driver of school segregation, the prevalence of screened admissions practices can also play a devastating role in driving racial segregation in public schools. New York City, one of the most segregated school systems in America, is unique in its extensive reliance on screened admissions practices, including the use of standardized tests, to assign students to sought-after public schools. These screens persist despite their segregative impact in part because they appeal to America’s embrace of the idea of meritocracy. This Article argues that Americans embrace three conceptions of merit which shield these screens from proper scrutiny. The first is individual merit—the idea that students with greater ability or achievement deserve access to better schools. The second is systems merit—the idea that poor student performance on an assessment is a failure of the system that prepared the student for the assessment. The third is group merit—the idea that members of some groups simply possess less ability. Each of these ideas has a pernicious impact on perpetuating racial inequality in public education.

 

There is emerging consensus that various components of the criminal legal system have gone too far in capturing and punishing masses of Black men, women, and children. This evolving recognition has helped propel important and pathbreaking criminal legal reforms in recent years, with significant bipartisan support. These reforms have targeted the criminal legal system itself. They strive to address the pain inflicted by the system. However, by concerning themselves solely with the criminal legal system, these reforms do not confront the reality that Black men, women, and children will continue to be devastatingly overrepresented in each stitch of the system. As a result, these reforms do not reach deeply enough. They do not address or confront the reality that simply being Black has been and will continue to be criminalized.

This Article asserts that measures beyond these reforms—measures that reach the root of racial criminalization—are necessary for true criminal legal system transformation.

 

Response to Nancy Gertner, The “Lower” Federal Courts: Judging in the Time of Trump, 93 N.Y.U. L. Rev. Online 7 (2018).

Response to Aziz Z. Huq, Democratic Erosion and the Courts: Comparative Perspectives, 93 N.Y.U. L. Rev. Online 21 (2018)

Oversight institutions within the executive branch can play an important role in checking executive power. But the independence and efficacy of these institutions depend on unwritten conventions that are now under threat.