-- By ErandiZamora - 27 Feb 2009

After generations of struggle, activism, and legislative action we finally made it. The U.S.A. elected its 44th President—an African American with an activist background. Millions of Americans enthusiastically made their way to their polling place, bubbled in absentee ballots, and waited for the proclamation that would lift the guilt as old as our own country’s history. Obama was in fact the new President-elect and we could all breath more comfortably now. Or maybe not. Have we perhaps forgotten about the vast racial disparities in educational attainment, imprisonment rates, and poverty rates? Obama’s election is and should be a source of joy. However, before getting too absorbed by the soothing melody of our national Kumbaya we should look to the role of our legal system and the way in which we, avid students of the law, can contribute to a meaningful change in race relations in the United States.

It should be the role of the legal system to protect the human dignity of its citizens and remedy injustice. However, the courts have historically failed to properly address issues of race. The institution of slavery and the Jim Crow Laws had devastating effects on the African American community and their aftershocks continue to be felt today. Unfortunately, instead of doing what needs to be done to eradicate the effects of racism, the courts are caught up in what Felix Cohen refers to as “legal nonsense.” Cohen discusses the courts’ apprehension to analyze the competing social values at stake when arriving at a decision. Instead, the courts adopt abstract terms and put up a façade of logic. This pattern of behavior can be observed in the Supreme Court’s opinions involving issues of racial segregation and racial integration.

The landmark decision of Brown v. Board of Education, 347 U.S. 483 (1954), is considered to be one of the greatest advancements in civil rights history. The Brown court recognized the harmful effects that the “separate, but equal” doctrine had on African American students and it outlawed segregation in an attempt to address them. However, later cases show that the decisions of the court hinge not on reality, but on ideology cloaked in logic. In Parents Involved in Community Schools v. Seattle School District No. 1, 127 S.Ct. 2738 (2007), the court prohibited assigning students to public schools solely for the purpose of achieving racial integration. In adopting this formal conception of equality, which strikes down racial classifications despite their purpose of addressing past wrongs and their lack of discriminatory intent, the Roberts court has counteracted previous gains.

Things should be judged by what they do. Cohen advocates that in making decisions, the courts should consider the effects that they will have. Who’s interests would formal equality uphold? As we know, the effects of de jure racial segregation are still prominent, however, as the courts prohibit our schools from taking this into account they are only insuring the preservation of the status quo. The effects of racism continue to be a problem, but instead of dealing with them in real terms the courts have turned to a ridiculous conception of equality that fools only those who choose to remain blind to the crude reality.

As students, and most importantly, future lawyers, it is crucial that we avoid the traps set up by the façade of logic and make reality central to our practice of law. As noted by Steven Shapiro, National Director of the ACLU, the Roberts court has demonstrated insensitivity to issues of race and a grave detachment from real life experiences. Such detachment was made painfully clear during the oral argument for Crawford v. Marion County Election Board, 553 U.S. _ (2008). Crawford was a voting rights case addressing a restrictive Indiana voter ID law, which could exclude upwards of 300,000 voters from the polls. As the counsel for Crawford attempted to explain, one of the obstacles was that the voters had to travel approximately seventeen miles to request an ID, a burden that would disproportionately affect impoverished people of color. To this, Chief Justice Roberts responded: “seventeen miles are seventeen miles regardless of whether you are rich or poor.” This seemingly straightforward factual statement by Roberts lacks as much truth as if one said that winter is winter whether it is in Michigan or in California.

Although not an easy task, as future lawyers we can contribute to change in our society. In “The Path of the Law,” Holmes says that the law is about making predictions. We gather cases and in the mysterious compilation of opinions we find a stream of logic that will predict the outcome of our case. To really become agents of change, however, we need to identify the real motives behind the logic spewed by the courts and openly address the issues. It is crucial that we retain a true sense of reality and a profound understanding of our clients’ situation, a task that simply cannot be completed if we choose to deal with our clients in abstract and alienating legal terms. We need to be aware of the reality faced by the various sectors of our society, which could perhaps be accomplished through meaningful participation in clinical programs and the study of social phenomena.

Though undoubtedly a great moment, we should not lose ourselves in the historical significance of Obama’s election. The election of America’s first African America president represents a change of societal values, but whether this change will have any impact on the lives of real people will depend on the actions of our legal system. As future lawyers we need to have the courage to face reality and utilize our degrees to become contributing members of society. The first step in achieving this daunting task is to realize that the theory we learn in the classroom is simply not enough.

# * Set ALLOWTOPICVIEW = TWikiAdminGroup, ErandiZamora

Note: TWiki has strict formatting rules. Make sure you preserve the three spaces, asterisk, and extra space at the beginning of that line. If you wish to give access to any other users simply add them to the comma separated list