Author: Rachel Godsil


Race Talk and the Government Shut Down

Since last night I have been writing and re-writing this blog about race and the fiscal crisis.  My link to the New York Times page keeps changing – though the content remains essentially the same.  As the Senate moves toward a deal to reopen the government and avert a default, the Times reports that the House balks.

What explains the continued opposition to a deal, despite the seemingly obvious catastrophic consequences of a government default?  Racial anxiety may be playing a role, suggests  Shutdown Power Play:  Stoking Racism, Fear of Culture Change to Push Anti-Government Agenda.  The article describes an analysis by Democracy Corp (a research group led by Stan Greenberg and James Carville) of focus groups with three groups comprised of Evangelicals, Tea Party Republicans, and moderates.  The Democracy Corp concludes that “base supporters” of the Republican Party fear that they are losing to a Democratic Party of big government that is creating programs that “mainly benefit minorities.  Race remains very much alive in the Republican Party.”

So here we are again.  Encouraging mistaken beliefs that only a particular few benefit from government programs – and perpetuating the continued division of “us” and “them” on racial grounds has long been a political strategy.  Ronald Reagan’s “welfare queen” is a stereotype that continues to live on in some corners.  Even though welfare, like most government programs, including the Affordable Care Act, stands to benefit large numbers of whites.  Indeed, according to 2011 census figures, 46.3% of all uninsured people are non-Hispanic white while 16% are black.

Why has the blog taken so long?  Because the counter-strategy is challenging.

The instinctive response is to call out those distorting the facts as racist.  This tactic has the benefit of moral clarity, and is emotionally satisfying. But calling out those who oppose the implementation of the Affordable Care Act as “racist” will not move people in the political middle. This group is likely to consider someone “racist” only if they publicly disclose old-school-George-Wallace-like animus toward people of color.  The political debate about the role of government in people’s lives—particularly the less fortunate—is much murkier territory, filled with subterranean, unspoken dynamics and assumptions. It does not resemble the image of ardent segregationists proudly flaunting their bigotry.

But simply ignoring the role race is still playing and pretending that we are all “color-blind” is also inadequate.  Social science research has shown that most people carry a set of stereotypical assumptions about race – and that these stereotypes are most  likely to influence decision making when race is right below the surface but not expressly mentioned.  A set of juror studies by Sam Sommers and Phoebe Ellsworth provides powerful evidence of this phenomenon (for a short description of these studies, see this recent piece by Sommers).

The juror studies suggest that when mock jurors confront inter-racial incidents in which racially charged language is used, white jurors were no more likely to convict a black than a white defendant.  When an incident involved a white victim and a black defendant but was otherwise not racially charged, white jurors were more likely to convict a black defendant than a white defendant.  Why?  Because only in the incident in which racial language was used were white jurors conscious that race may come into play — which triggered them to work to be fair.  Donald Bucolo and Ellen Cohn in their study, Playing the race card: Making race salient in defense opening and closing statements, found similar effects in inter-racial trials:  when defense attorneys explicitly mention race, white juror bias toward black defendants is reduced.

The findings in the juror studies are heartening – they provide an empirical foundation for the idea that most white people want to be racially egalitarian.  And they suggest a way forward in policy discussions even if they do not provide play-by-play instructions.  The goal, as john powell aptly states, is to allow people to maintain a self-concept as egalitarian while drawing attention to behaviors that are inconsistent with those values.

I have found listeners of all races to be extremely receptive to this social science in talks at public libraries as well as law schools.   White listeners express relief that they are not being accused of racism –  and once this anxiety is alleviated, the defensiveness melts away.  Listeners of all races seem very interested in the facts about who benefits from government programs and how race operates in the unconscious.

This material is harder to translate into a sound-bite.  But it seems to be the best way forward to an honest conversation about race.


Are any white people poor?

Today’s New York Times lead story, “Millions of Poor Are Left Uncovered by Health Law,” reports on the devastating effect that states’ decisions not to expand Medicaid is having on poor people.  This article is accompanied by an image – on the jump page 18 in print and featured online – of two poor families, one in Mississippi and one in Texas.  Neither family is white.  

The imagery leads the reader to presume that white people are unaffected by the failure to expand Medicaid and also perpetuates the general stereotype that most poor people are Black or Latino.  The census figures released in 2013 tell a different story:  18.9 million non-Hispanic whites live in poverty and 8.4 million live in deep poverty.  The next largest demographic group living in poverty is Latino – with 13.6 million living in poverty and 5.4 million living in deep poverty.  The smallest group of people living in poverty – by over 8 million — are Black people, with 10.9 million living in poverty and 5.1 living in deep poverty.  These numbers are staggering and shameful.  And it is true that a larger proportion of African Americans and Latinos live in poverty than whites by a significant margin.  However, the decision to depict only Black and Latino families in an article about poverty is itself problematic on a number of fronts.

Living in poverty should not be seen as an individual or group failure.   Most of us have lived in poverty at some point in our own lives or in our families’ history.  And undoubtedly the authors of the article and the editors who chose the picture have sympathy for poor people and hope that their news story and the image will elicit concern and moral outrage.   This result is unlikely.  Instead, research in social psychology suggests that news stories and images of this sort generally have exactly the opposite effect.

In an article entitled Justifying Inequality:  A Social Psychological Analysis of Beliefs about Poverty and the Poor,  Heather Bullock at the University of California, Santa Cruz explains that:  “single mothers and ethnic minorities, most notably African Americans, are the public face of poverty. Consequently, poverty is viewed not only as a “minority” problem (Gilens 1999; Quadagno 1994) but a reflection of weak sexual mores and the decline of the nuclear family (Lind 2004; Orloff 2002). Stereotypes about the poor and ethnic minorities mirror each other with intersecting characterizations including laziness, sexual promiscuity, irresponsible parenting, disinterest in education, and disregard for the law.”  So the imagery in the NYT article and the discussion of the particular effects on single mothers and “poor blacks” simply confirms negative stereotypes.   And the stereotypes are not rooted in fact.    The vast majority of African Americans and Latinos in the United States — over 70% — are not poor.

This article and many others in the media contribute to a set of negative stereotypes about people of color and render invisible the enormous numbers of whites who are poor.  Sadly, the combined effect, as Bullock explains, appears to be a growing tolerance for economic inequality and a willingness to support decisions that harm the poor (such as the rejection of Medicaid expansion).

The negative stereotypes, as I will discuss in future posts, underlie a set of psychological phenomena such as implicit bias, that underlie discriminatory behavior even among those with egalitarian values and create significant obstacles for progress toward racial equality.   As an academic and  as a civil rights litigator in my previous life, I have focused on legal and policy change as a means toward racial equality.  More recently, I have been part of a consortium, the American Values Institute, linking social scientists with lawyers, legal academics, and the media to recognize the significance of culture.  Law, as we all know, is in part a creature of culture.  So long as our culture is infused with distorted facts and images about race, law reform is a vastly more difficult task.



Happy to be back!

Thanks to the Concurring Opinion folks for inviting me back!

It has been four years since I last guest-blogged.  Looking back at my archived posts, it feels a little as though time has stood still.  My final post in November of 2009 was entitled “Re-Igniting the Movement for Integration” alerting readers to a conference at Howard Law School that focused on the role of integration in k-12 schools.  In the post, I referenced the vexing questions surrounding integration, including the issue of when integration in a neighborhood is seen as cause for celebration and when it is decried as gentrification.   The issue of gentrification has only intensified in my corner of the world – Brooklyn – and was the subject of my most recent article, The Gentrification Trigger:  Autonomy, Mobility, and Affirmatively Furthering Fair Housing.   In the 20 years I have lived in Brooklyn, I have both participated in and winced  as neighborhoods that were abandoned in the 1960s are gradually flooded:  first with hipsters, then with the stroller set looking for three bedrooms and original moldings.  For those of you old enough to remember, the neighborhoods featured in Spike Lee’s “Do the Right Thing” are suddenly the places of choice for post-collegiate types from the suburbs.  Ideally, policy can be developed that encourages the influx of people with capital to neighborhoods that were once avoided – but also ensures that those who have been living and working in the neighborhoods don’t experience a sense of invasion or displacement.  And it will be crucial to address expressly the challenges that may arise with the changing racial and economic demographics.

I look forward to discussing this issue and others that arise this month.  And here’s hoping that the shut down ends quickly!


Re-igniting the Movement for Integration

Most of us recognize that our society will be stronger if our students are educated in diverse settings and our neighborhoods not divided by race or ethnicity.  Yet integration in education and housing remains an elusive goal and is often seen as secondary to measurable academic achievement or affordable housing.   

The politics of integration are also complex.  When is integration in a neighborhood cause for celebration and when has it shaded into the dreaded gentrification?  Are poor children of color most likely to be effectively educated in opportunity rich, integrated schools or will the teachers and administrations in such schools favor kids from wealthy families with helicopter parents?  These questions are real and should be topics for debate among policy makers, researchers, community residents, and parents.   

Unfortunately, this complexity and, to an even greater extent, anxiety about even acknowledging race have led many to shy away from these issues.  Not everyone, though.  Over 300 people attended a conference this past week at Howard University School of Law, entitled Reaffirming the Role of School Integration in K-12 Public Education Policy: A Conversation Among Policymakers, Advocates and Educators. The conference brought together Obama administration officials, civil rights advocates and researchers, educators, and parents.  If you are interested in the discussion, you can access the live blog here.


No Right to Retire?

Courts regularly grapple with the competing principles of autonomy and obligation in the context of family law. How to reconcile these principles – when gender, money, relative status, jealousy, spite, avarice are involved – is a fascinating challenge for judges. These issues are also fun to teach since they are often uncomfortably close to most people’s own experiences.

On Monday, the Massachusetts Supreme Court considered a variant of the autonomy/obligation condundrum in Pierce v. Pierce – in which the Court was basically asked to decide whether a higher earning spouse has a “right to retire” and be exempted from otherwise on-going alimony obligations.

Rudolph Pierce was a well-compensated attorney. In the divorce agreement from Carniece, his wife of 32 years, he agreed to pay $110,000 year in alimony until either party died or she remarried. When he decided to retire from his partnership at age 65, he argued that he should be relieved of any obligation to pay alimony and asked the court to adopt a rebuttable presumption that all alimony should be terminated when (1) the supporting spouse retires from employment at a customary retirement age and has no actual earned income, (2) the parties’ marital assets, including their retirement assets, had been equally divided at the divorce, and (3) the parties have the same amount of liquid assets at the time of the provider spouse’s retirement.

The trial court agreed to a significant modifcation of Rudolph’s obligation – to $42 k – but held that in light of Carniece’s recent loss of her job, the fact that she was not yet t entitled to Social Security, and that Rudolph continued to have significant earning capacity (in addition to his assets and his current wife’s salary), he wasn’t off the hook altogether. The Supreme Court rejected Rudolph’s rebutabble presumption and affirmed the multi-factoral test generally applicable to modification requests.

My first thought (which the Court echoed) is why (at age 57), Rudolph agreed to such a high alimony award without a change upon his retirement. When people think about entering retirement, they tend to try and make some financially sensible decisions, such as using an equity release calculator to try and release some of their cash tied up in the value of their home. But the question is why would Rudolph make such a risky, stupid financial decision. A cynic would suggest that this might have been intentional so that his wife would agree to a fairly equal division of property despite the parties’ differential earning capacity (his wife had been the primary caretaker of the children and home though she worked outside of the home as well).

Cynicism aside – this is a difficult issue. Rudolph’s arguement that declining to accept the presumption would grant the recipient spouse “effective veto power over the provider spouse’s retirement decision” was wildly exaggerated. But the Court did impose limitations on when a “supporting spouse” will be able to retire – and for some, the idea of having to continue to work to support a former spouse will seem deeply problematic. Visit for financial advice if you’re considering retirement and its implications.


From the other side at AALS . . .

It has been a decade since I slept poorly at the Wardman in November – and I must admit to having some unpleasant flashbacks.  Last night, like 10 years ago, I got lost on my way to an interviewing suite.  I still find the bar scene a little anxiety producing.  So – to those of you interviewing today – many of us on the other side of the couch do have empathy for you!

Needless to say, I acknowledge the difference.  We on the interviewing side are happily (hopefully) ensconced as academics — a position that is frankly worth running from hotel suite to hotel suite.  We are (hopefully) happy to talk about the benefits of our particular institution.  And it has been fabulous to read the scholarship of those on the market. 

I thought I’d post this morning mainly to wish you all good luck — and to explain why I am not posting anything substantive until next week.  And a quick tip:  when you are given the opportunity to ask any questions – find a question that allows for an interesting and idiosyncratic answer.   I promise that every school will have an identical answer to the ubiquitous “what support does your institution have for junior faculty.”  We all have colloquia, research stipends, and collegial sharing of documents.  We all generally do try to give junior faculty reasonable teaching loads, etc.  And if we don’t do any of these things, we won’t acknowledge it here!


Engaged – and Engaging – Scholarship – Paul Butler’s Let’s Get Free

I am thrilled to be back at Concurring Opinion – thanks to Solangel, Dan and the other regulars for having me.   The timing of this visit is propitious for me – I am returning from a policy-focused (and surprisingly non-academic) sabbatical and I have been thinking a great deal about how best to stay engaged in policy/politics while also returning to academic culture.  The worlds of advocacy and academia are distinct, obviously, and reconciling them can be challenging.

While I have been wrestling with these challenges, some of our academic colleagues, have I think, been meeting them – Richard Thompson Ford’s, The Race Card, Kenji Yoshino’s, Covering are two examples.  Most recently, and in some ways the most salient to my own aspirations, is Paul Butler’s recent book, Let’s Get Free:  A Hip-Hop Theory of Justice. 

Butler’s book is extraordinary – he is a wonderful writer and tells a compelling story about his days as a prosecutor and his own improbable arrest and trial.   But while books by lawyers about their practice are often fun reads – and this one is – what is most impressive is that Butler’s book is a theory of criminal justice.  Butler is doing far more than telling a good story about lawyering.  He has taken his scholarly agenda (which as many of us know has landed him impressive placements in law reviews) and rendered it readable.  He weaves high level traditional theory, data, narrative, very candid self-critique, and insights from hip-hop.  It may seem like a gimmick to have a sentence containing Snoop Dogg and Jeremy Bentham – but in Butler’s book, it’s not.  He obviously knows both intimately and uses them to brilliant effect (and for the record, I don’t particularly like hip-hop). 

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Thanks for the Conversation!

I’d like to thank Dan and other other folks at Concurring Opinions for the opportunity to participate in the ongoing discussion. During my time here, I tried to touch on some of the issues that are important to me — and I thank you all for your interesting and provocative responses to my posts.


Supporting Racially Inclusive Schools

blackwhite kids.jpgYesterday, briefs supporting school districts’ authority to adopt race conscious student admissions plans in public schools were due to the Supreme Court. The plans in both cases, Meredith v. Jefferson School District and Committee of Involved Parents v. Seattle School Board, were upheld in their respective circuits — and are extraordinarily important to anyone who is concerned about racial integration in our public schools. As the NAACP Legal Defense Fund stated in its website today, these cases give the Court an opportunity to preserve some measure of integration in our public schools, or to end the era of Brown. In interests of full disclosure, I co-authored a brief with my colleague Michelle Adams on behalf of the National PTA arguing that education in a multi-racial context is a compelling government interest. Our brief, and the many other amicus briefs submitted in the case, are available here.

Many of the multiple amicus briefs focused on the specific benefits to children from primary and secondary education in a multi-racial setting. These briefs assume that the parties have the burden of meeting the strict scrutiny standard — thus establishing that the use of race this context serves a compelling interest and that the means are narrowly tailored. Others, however, argue a very different point. As Michelle Adams noted here in June when the Supreme Court took these cases, in Judge Kozinski’s concurrence in the 9th Circuit, he disputed that strict scrutiny applied in the context of non-magnet public schools. He suggested that any admissions plan that does not involve competition between racial groups and does not favor one race over the other does not carry any sort of racial stigma — and therefore that strict scrutiny need not apply. NAACP LDF presents this argument most thoroughly and completely in its amicus brief

These cases will undoubtedly garner a great deal of attention, both because of the importance of the issues to public schools throughout the country, and also because they will give us a sense of how the loss of Justice O’Connor and the ascension of Chief Justice Roberts and Justice Alito will affect the Court’s decisionmaking on race issues more generally.


Not Responding to Guantanamo — Is “Outside My Area” an Excuse?


I would like to revisit Dave Hoffman’s concern that this blog may have let its readers down by failing to address the habeas/torture legislation passed last week. I have felt similar angst not as a blogger, but as a lawyer/law professor more generally. Do I (do we) have an obligation to be involved when critical legal rights are at stake? Like many who have been deeply troubled by the administration’s treatment of Guantanamo detainees and its actions undermining civil liberties during the years since September 11, I have excused my lack of involvement on grounds that the issues are not my area, or are outside the bounds of my expertise.

During this same period, two of my colleagues, Mark Denbeaux and Baher Azmy, have thrown themselves into the fray and are hosting a teach-in tomorrow at Seton Hall Law that will be webcast to colleges and universities around the country. Mark and Baher have both represented Guantanamo detainees — indeed, Baher’s client, Murat Kurnaz, was released August 24, 2006 after being held by the United States since October 2001. The teach-in program looks to be extraordinarily informative and I encourage people to find a way to connect to it.

Some of those who responded to Dave’s post suggested that our country is not at the point where the failure to respond can be likened to the Germans during the holocaust. But is that our standard? I accept that the general concept of a division of labor gives me leave to allow others to become expert on important legal topics. It is also true that multiple tragedies in this country and around the world are ongoing and one can’t take personal responsibility for them all. The difference of course is when our own government is responsible — and particularly when clear political moments arise as they did last week. I appreciate the efforts of many law professors to lobby Congress — and the many terrific discussions in the blogosphere. But I join Dave in thinking that those of us who think that our government has gone seriously awry (and I recognize that not all share this view) have some obligation.

What might our obligations entail? At the very least, we should all have weighed in to our representatives about last week’s legislation. Likely those of us who have a platform — like a blog — should acknowledge critically important political or legal events if only by linking to those whose blogs contain extensive discussions. Today, for example, Frank Pasquale posted a thoughtful discussion of both the teach-in tomorrow and John Yoo’s troubling interview on NPR. Linking to others has the effect both of alerting our readers to where they can find sound analyses and also adding to the chorus of dissenting voices. We should also aspire to deeper engagement. I feel an enormous debt of gratitude to those, like Baher and Mark, who have devoted extraordinary time and energy to representing detainees and organizing a sustained response. I am confident that tomorrow’s teach in will contain a detailed discussion of ways to become involved. I will provide a full description in a post tomorrow.