-- 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.

• I don't think this draft does full credit to your skills. The writing is fluent and well-organized; the style feels a little inflexible, not quite fully natural, which a little surface editing could smooth away. But all of this is excellent so far as it goes, and you should be pleased with it. Where I think the essay doesn't represent you at your best is in what's being said, which while entirely clear and reasoned isn't very challenging. The piece has the effect of an oration to a convinced audience, full of the resounding but not very surprising conclusions of commencement speaking or--in this case more precisely--a speech at the annual Airlie conference of civil rights lawyers.

• The real point you are making comes down to this: courts are engaged in formalisms designed to undermine desegregation efforts and we shouldn't let them. The words spent on Obama are atmospheric scene-setting. To the extent that the essay makes particular claims that someone reading critically might care about, you seem to be asserting that this trend begins with Chief Justice Roberts. You discuss the Indiana voter ID case as though it were about race, then as though it were about poverty, never as though it were about partisan maneuvering. Taken together, the two elisions combine to obscure the fact that all three of the last Chiefs (and the majorities of the courts they mustered on this subject) were appointed by Republican Presidents who each followed the "Southern strategy" of Richard Nixon, which assumed (correctly, at least for four decades) that the solid South of the Democrats could be turned into a fortress for the Republican Party if it provided an alternative committed to the maintenance of as much of white supremacy as could be managed under formal compliance with the "desegregation constitution" of the Warren Court.

• But the questions raised by the Republican judges of the Southern Strategy period (which most likely was either ended or at least decisively inflected by Obama's victory) do not disappear, and it would have been well to speak to them. Most importantly, we derived from this period of Republican resistance a crucial issue: What limits does the Equal Protection concept set to measures designed to rectify past discrimination? What limits to measures designed to prevent present and future discrimination? The particular fights in which those questions were posed may have been partisan frame-ups, but we don't need to agree with Brad Reynolds or Clarence Thomas about "required colorblindness" under section 1 of the 14th Amendment to observe that the issue is real, not least to all the tens of millions of not-white, not-African American persons who entered American society after the adoption of the 14th Amendment, and who have some justification for an expectation that a living constitution will eventually acknowledge that their presence is constitutionally relevant.

• Accepting the truth of your premises, then, there is plenty to say about the situation that goes beyond the comfortable "we must strive harder to overcome" rhetoric which you do excellently deploy, but which gives you less of a chance to use your analytical faculties in support of the cause where the help is really needed.