Author: Taunya Banks


Iconic or Scandalous: Olivia Pope and Annalise Keating – Black Women Lawyers on Prime Time TV

Welcome to the second decade of the twenty-first century, there are now two black women lawyers on Thursday prime time television thanks to screen writer, director and producer Shonda Rhimes. Rhimes, an increasingly powerful player in the broadcast world, first garnered widespread acclaim in 2005 as the creator and executive director of the long-running medical drama Grey’s Anatomy and its spin-off, Private Practice (2007-2013). In 2010 she entered the legal terrain with Scandal, about a high-powered Washington, D.C. political fixer who is having an affair with the married President of the United States. The fixer, Olivia Pope, is a well-educated and well-connected lawyer who runs a crisis management firm, Pope and Associates. Scandal started its fourth season on Thursday.

By the way, Olivia Pope, played by Kerry Washington, and Shonda Rhimes, the producer, are black women. So unsurprisingly a flurry of anticipatory articles and posts appeared when ABC announced Rhimes’ latest production, How to Get Away with Murder, which also aired Thursday immediately after Scandal. Annalise Keating (played by Viola Davis) is a tenured black woman law professor who also runs her own law firm. (Isn’t this a no, no under the ABA rules?) But anticipation quickly turned into controversy when New York Times television critic, Alessandra Stanley, started her article about the new show with: “When Shonda Rhimes writes her autobiography, it should be called ‘How to Get Away With Being an Angry Black Woman.’” Oops, so perhaps we have not progressed that far in race relations after all.

Stanley’s column set-off a firestorm on the internet. One of the most interesting critiques of Stanley’s troubling discussion of Rhimes and black women actors was posted by Margaret Lyons on  Even Rhimes sent a few tweets.  The result was an apology from the Times’ Public Editor  and the obligatory “non-apology” from Stanley.

This much discussed controversy, however, is not the subject of my post. I am more concerned about the content of Scandal and How to Get Away with Murder than with how the executive producer and female actors are described by critics. As I celebrate the emergence of Kerry Washington and Viola Davis, as lawyers in starring roles on prime time television, I worry, not about whether these shows are breaking old well-worn stereotypes about black women as angry and sexually permissive, but rather whether my students will see these fictional women lawyers as legal icons to be emulated.
Read More


Racial Uplift or Racial Scolding: The Baggage of Symbolic Representation in President Obama’s Speeches to Black Americans

    I was invited to stay around another month but a personal loss and the press of grading papers overwhelmed me. With apologies to the organizers, this is my first and last post for this month.

President Obama’s commencement speech at Morehouse College on May 19th triggered a debate in some corners of the blogger sphere that included notables like PBS’ Gwen Ifill and white studies scholar Tim Wise about his tendency to scold black folks. In its heyday Morehouse College, a private all-male historically black institution in Atlanta,  educated many of the black male elite like Martin Luther King, Jr., filmmaker Spike Lee, former Bank of America Chairman Walter E. Massey, former United States Surgeon General David Satcher, former Secretary of Health and Human Services Louis W. Sullivan, film star Samuel Jackson, and social activist Julian Bond. Today it continues its mission producing Rhodes, Fulbright, Marshall and Luce Scholars, and Watson and White House Fellows. Thus he was speaking to a group of future leaders who happened to be overwhelmingly black.

I was a bit surprised at the uproar, especially when several acquaintances thought the Morehouse speech more significant than his speech a few days later on his administration’s drone policy. I have been increasingly troubled by this administration’s extrajudicial killings by drones of American citizens abroad. Thus I decided to more closely examine the controversy. Read More


Can We Lean Anything from Brazil about Remediating the Lingering Consequences of Racial Discrimination?

This post marks the end of my guest appearance on Concurring Opinions, and as usual, I’ve enjoyed my run.

I sometimes show the 2007 documentary Brazil in Black and White in my Law in Film seminar to give my students some exposure to how other racialized countries handle the difficult business of mediating the lingering consequences of slavery and de jure race discrimination. I also have them read Tanya K. Hernandez, 2005 article To Be Brown in Brazil: Education & Segregation Latin American Style. Her recent book, Racial Subordination in Latin America: The Role of the State, Customary Law and the New Civil Rights Response (Cambridge Univ. Press, Oct. 2012), contains an even more nuanced discussion.

Like the United States, affirmative action in Brazil is a controversial issue. I remember having a deja vu like experience when I visited the country in 2007 and heard some of the discussions. Opponents’ arguments sounded very much like the arguments I had heard in the U.S. years earlier. But there are important differences between the two countries. Notions of race are far more complex and confusing in Brazil as the documentary and a recent article in The Economist explain. Further, unlike the United States public universities in Brazil are more prestigious than private schools. In addition, “Brazil’s racial preferences differ from America’s in that they are narrowly aimed at preventing a tiny elite from scooping a grossly disproportionate share of taxpayer-funded university places. Privately-educated (ie, well-off) blacks do not get a leg-up in university admissions.”

The notion of racial quotas never went over well in the United States, and most observers believe that our current weak form of affirmative action, most apparent in university admissions, is on its last leg. As we anxiously waited this term to see what the Supremes will do with the latest case, Fisher v. University of Texas at Austin, the Court agreed last month to hear another higher education affirmative action case, Schuette v. Coalition to Defend Affirmative Action. The issue in that case is “whether Michigan voters in 2006 had the legal right to bar the state’s public colleges and universities from considering race or ethnicity in admissions.” Briefs in the case can be found on SCOTUSblog. Whatever the outcome in Fisher, it seems clear that the ongoing controversy over affirmative action in higher education will not be resolved this term. Read More


Stand-ins for Justice?

The original title for this post was The People’s Supreme Court? because it was triggered by an article in last week’s New York Times about the increased use by law firms of place-holders (paid stand-ins) for seats at the United States Supreme Court.  According to the article, “place holding is common at Congressional hearings and is on the rise at the Supreme Court, where seats for last month’s arguments went for as much as $6,000.”  An earlier piece, published around the time the same-sex marriage cases were argued, noted that the practice has its detractors, including former Congressman Barney Frank, whose proffered remedy is televised Supreme Court arguments.

I changed the title of this post after an incident on Friday.  While returning to my law school midday I passed a scraggly group picketing in front of a neighboring Marriott Hotel.  The signs said that the protesters were picketing because the Carpenters Union had a beef with the management.  As my very general description suggestions, I did not look at the signs too closely.  I was distracted because many of the protests were so drunk or drugged that they could not walk in a circle.  A colleague with whom I was walking informed me that some labor unions now hire homeless people to walk picket lines for them.  Surely the Union did not think that the picketing would be effective.  I was astonished that actual Union members were shirking their membership responsibilities, but did I have a right to be appalled?

Hiring stand-ins for pay is a very American institution.  Read More


Bones and Genes: Fortune’s Bones Redux

As a follow up to my post last week asking about human dignity, unburied bones and ownership of human cells, here are two related issues that appeared in the Sunday news.

The first item from Sunday’s Baltimore Sun is the belated report of a Reuters story about the controversy over disposition of King Richard III’s newly discovered remains uncovered in a municipal parking lot by the University of Leicester.  The long-lost remains of the King, who died in 1485, were exhumed, and the University was given permission to re-inter the remains in Leicester. But the King’s descendants objected claiming that they were not “consulted … over the exhumation and the license allowing the university to re-bury the King, and [that] this failure breached the European Convention on Human Rights.” They want the body buried in York.

The second item is an op-ed by two medical school academics, Jeffrey Rosenfeld and Christopher E. Mason, that appeared in Sunday’s Washington Post about Association for Molecular Pathology et al v. Myriad Genetics, et al, a case that will be argued in the Supreme Court on April 15th. This is important case that has been mentioned on this blog as recently as last February.  SCOTUS even featured a symposium spurred by the controversy. At issue is whether, on some level, human genes are patentable. Rosenfeld and Mason oppose patenting DNA.  On the other hand, much like the researchers discussing the HeLa cell, the respondents, Myriad Genetics, et al, argue that the issue is much narrower, namely whether the “human” aspect of the specific sequence of isolated human DNA is the result of the efforts of the respondent, and thus patentable. Read More


Fortune’s Bones: Is There Dignity after Death?

In 1995 Gunther von Hagens presented his Body Worlds exhibit, described as a collection of real human bodies that have been “plastinated” to prevent their decay and make them more malleable. Some of these plastinated bodies were cut open to reveal their inner organs and then positioned in lifelike poses. The exhibit toured the world and was wildly popular.

Body Worlds also generated some criticism. Canadian social scientist, Lawrence Burns, argued that “some aspects of the exhibit violated human dignity.” (7(4): 12-23 Amer. J. Bioethics 2007)  Although touted as an educational experience Burns and others worried that the bodies were being used as “resources to make money from the voyeurism of the general public.” A key concern was that the bodies were denied burial and that this was a dignitary affront. Burns conceded, however, that the concept of human dignity as applied to deceased individuals is unclear.

I started to think about whether there is dignity after death and, if so, what are its parameters, when I read a news article from the New Haven Register, about the skeleton of an enslaved man that was being studied by the anthropology faculty and students at Quinnipiac University prior to burial.

The enslaved man who died in the 1798 (slavery was not abolished in Connecticut until 1848), was named Fortune. At the time of his death Fortune was the human chattel of a Waterbury Connecticut physician who upon Fortune’s death boiled his body to remove the flesh keeping his skeleton to study human anatomy. Fortune’s body remained unburied and was on display as late as 1970 at the Mattatuck Museum where until recently it was still housed. Read More


Henry Louis Gates and Black in Latin America: A Review

Harvard Professor Henry Louis, perhaps best known to most Americans for his run-in with a Cambridge Police Officer, than for his scholarly writings and academic entrepreneurship, is back on public television.  His television series is entitled Black in Latin America.  The name of the series is somewhat misleading since three of the countries he visits are on islands in the Caribbean, and a fourth, Mexico, also is not located on the Latin America continent.  Nevertheless, the series promised to be eye opening.  As one reviewer wrote, “When most U.S. citizens think of a Latino, they rarely picture someone black. This series broadens our understanding of the very complex identity of people from Spanish-speaking countries, an identity that is usually oversimplified into misleading racial stereotypes in the U.S. media.”  But here again, characterizing the series as about Spanish-speaking “Latinos” also is misleading since the series includes Brazil where the national language is a form of Portuguese and Haiti whose national language is a form of French.  So you are getting some idea of this subject’s complexity.

David Eltis and David Richardson in their wonderful book, Atlas of the Transatlantic Slave Trade (Yale Univ. Press 2010), map this trade in human chattel that lasted for 366 years “and resulted in the forced deportation of 12.5 million Africans to the New World.”  Black in Latin American briefly looks at the status of these unfortunate humans and their descendants now scattered throughout the islands and the Americas. There is, however, no mention of Central America where the Atlantic slave trade also distributed West Africans.  But this omission is not a criticism, the topic is simply huge.

The Atlantic region includes countries whose history of slavery pre-dates the U.S., and where slavery persisted in some places until the end of the nineteenth century.  Race in the Americas, especially Brazil and Cuba, is a topic that has long excited a small group of anthropologists, historians and sociologists.  Today, however, “Latin American” notions of race have more meaning to Americans because of our growing Hispanic, primarily Latino population, which on the surface celebrates its mestizaje (mixed racial culture) while papering over the racialized divisions within and among each community.  Latin America is a region, like the U.S., that, as a result of the slave trade, is equally bedeviled by race.

Over the years I’ve visited and studied about the construction of race in Cuba, Brazil and Mexico.  A few years back I even wrote an essay about Afro-Mexicans and Mexico’s hidden third root, its African heritage.  By looking at laws in Mexico during the seventeen, eighteen and early nineteenth century, the presence of Africans and their descendants is apparent.  Thus, I eagerly looked forward to this series. Read More


Democracy in America: Politicians and Their Constituents – Race Still Matters

New York Times columnist David Brooks recently posted an entry on that publication’s blog discussing the findings of a field experiment by Yale Political Scientist, Dan Butler and his student, David Broockman.  Butler and Broockman measured the responsiveness of public officials, in this case state legislators in 44 states, to the same email inquiry signed by two individuals, one with a “putatively black alias” and another with a “putatively white alias.” 

The researchers had a 56.6% response rate (“2,747 responses to the 4,859 emails”). They found that, without regard to party affiliation, the state legislators contacted were less responsive to the email from the black alias than the email from the white alias, although Republican legislators, by a small percentage point, replied less than Democrats to the black alias.  The researchers also found that “minority state legislators responded much more frequently to the black alias than to the white alias (by 16.5 percentage points overall).”   

As Butler and Broockman point out, one issue surrounding the debate about the need for majority-minority legislative districts is whether elected officials are as responsive to the concerns of constituents whose racial identity is different.   These researchers conclude, in part, “our results provide direct support for the broader argument that how effectively minorities are represented does depend on the race of their representative, regardless of party.”

David Brooks writes:  “The study is one more indication that racial attitudes are deep, often below awareness.”  In other words, implicit bias, not intentional or invidious race prejudice, has wide-spread impacts.  But his example suggests that he misunderstands implicit bias.  Alas, we all still have a lot of work to do on race in America. 

Brooks writes: “I am sometimes at gatherings where everybody but me is a Republican. I am sometimes at gatherings where everybody but me is a Democrat. In my experience people at all Republican gatherings do not make more racist or condescending comments than people at all Democratic gatherings. The frequency of these comments is about the same across the parties.” 

Explicit racist comments are not examples of racial attitudes “below our awareness.”  Whites, who as Brooks suggests say nothing when other whites make racist or condescending comments, especially in social settings, are what Janis McDonald characterizes as “polite whites.”  They may be offended, but say nothing to preserve their “white privilege.”  Polite whites tend to avoid confrontations on hard issues like race.  But that is not my problem.  Whites who believe in racial equality need to stop being so polite or racist attitudes will continue.  I will try to do my part with my racial identity group.

Nevertheless, I commend David Brooks for giving this issue wider exposure. But I would advise him to read up on implicit bias – visit Harvard University’s Project Implicit or read the works in this area by legal scholar Jerry Kang.    As to the value of minority-majority legislative districts, this contentious debate will continue and the Butler-Broockman study can be used as ammunition by both sides.


Will America’s Civil War Ever End?

Seems I prematurely announced my departure as a guest blogger last week.  Concurring Opinions has kindly asked me to stay on for another month, so here is my first offering for May.

It recently occurred to me that there is a connection between the persistent belief of some Americans that President Obama is not a natural born citizen and continuing debates about the Civil War.  Both go to fundamental questions about national identity, citizenship and governance.  Almost a decade ago I wrote a quirky piece entitled Exploring White Resistance to Racial Reconciliation. The article was triggered by what I regarded as a shocking action by Congress, namely, the rejection of a 1997 proposal by a dozen Democrat and Republican congress members calling on Congress to issue an apology to the descendants of kidnapped West Africans for their enslavement.  In 2008, after it became apparent that then Senator Barack Obama would be the Democrat’s presidential nominee, Congress quietly issued an apology for slavery.  Ironically, President Obama is not descended from West Africans, or to my knowledge, slaves.

In my article I speculated that this proposal was rejected because most Americans remain woefully ignorant about the causes and conflicting political agendas surrounding the Civil War.  This ignorance has been reinforced, I theorized, by popular culture, particularly films like the pernicious Birth of a Nation or Gone with the Wind, that romanticize the “lost cause.”  I offered many proposals, including better education about the Civil War, its causes and effects.

Why, you may ask, am I blogging about “old” news?  Well, a study funded by the Pew Foundation and released last month found that most Americans still consider the Civil War relevant to “American politics and political life.”  As the 150th anniversary of the War approached, two major newspapers, The Washington Post and The New York Times, featured series or periodic articles about the War.  The Post also hosts a blog, A House Divided, “dedicated to news and issues of importance to Civil War enthusiasts across the country and around the world.”  Even my local paper, The Baltimore Sun, has a series about the War.  Maryland, although a slave-holding border state, saw many battles during the War.  Further, Maryland considers the April 17, 1861 Baltimore Riot, when Union troops passing through the City were attacked by local confederate sympathizers, to be one of the War’s first conflicts.  I celebrate these educational efforts mentioned above because most Americans still do not fully understand the reasons for this war and why it continues to bedevil the Nation.

One of the most factious long-standing debates is over the causes of the War, namely, whether it was fought over slavery or states’ rights.  According to the Pew study, 48% of Americans surveyed think that states’ rights was the main cause of the War, while 34% said slavery was the cause. Documents linked in The Times, and essays by noted historians, acknowledge that states’ rights was an issue, but that the continuation of slavery was a primary triggering cause.   Even the State of Georgia, a former confederate state, finally conceded that slavery was the cause of the War.  Nevertheless, some Americans continue to reject the historical evidence.  For example, Baltimore Sun readers, in response to a columnist’s assertion that slavery was the cause of the Civil War, challenged and vigorously debated each other.  Commentators offer various, mostly benign, explanations for the reluctance to acknowledge slavery’s role in triggering the Civil War.

Still you might say, this too is “old” news that has nothing to do with President Obama, but I urge you to read on. Read More


“Low-Cost” Baccalaureate Degrees: Will You Soon Pay for What You Get, at Least in Texas?

Colleges and universities across the country are trying to find ways to curb, or off-set, increasingly prohibitive tuition costs.  But Texas Governor Rick Perry has thrown down the gauntlet by challenging that state’s public universities (and the nation) to come up with a baccalaureate degree that cost students only $10,000.  The current yearly in-state tuition at Texas universities ranges from $15, 348 to $25,477.  These figures include tuition, fees, book, board and transportation.

This week Texas Commission of Higher Education, Raymund A. Paredes, declared that Perry’s proposal is “highly feasible.”  He argues that the goal is “about making sure we have a range of options for young people so they can select a path to a baccalaureate that makes the most sense to them.”  According to the Texas Higher Education Coordinating Board, this clearly and consciously “stripped-down degree” would account for ten percent of the total baccalaureate degrees from Texas schools.  The more pressing question, however, is which students are most likely to “opt” for the “low-cost” degree.  The obvious answer is low income students who also just happen to be disproportionately non-white.

What is not addressed by either the Coordinating Board or Commissioner Paredes is the long-term consequence of opting fora low-cost degree.  What happens when students with low-cost degrees apply to graduate and professional schools?  Will their degrees be considered competitive or will these graduates be consigned to jobs that nominally require a college degree?  Will they become second-class college graduates – educated cashiers at fast food restaurants?

Most of us in higher education readily admit that tuition costs are too high and that we need to think about cost-cutting measures.  But hopefully few of us want any variation of the Texas two-tier model, for if Texas has its way “low-cost” JD and MD degrees may not be far behind.  I doubt that anyone wants to be treated by a physician with a low-cost medical degree, and I certainly would not want to be represented by a lawyer with a low-cost law degree.  In the meantime in an attempt to off-set costs we set universities where increasing few teachers are tenured and language or classic departments and/or programs are gutted with little thought about their educational value.

It is time we ask ourselves a hard question the answer to which we might not want to know: whether the  popular American notion that college should be available for anyone who has the money (or can borrow the cost of tuition) contributes to the high cost of a college education.  In many countries with quality higher education systems, only the most talented need apply, and the costs are low.  But before we can even think about limiting access to higher education we need to (re)commit to providing better primary and secondary education for everyone in this country.  Only then can we focus on how to ensure that truly talented individuals obtain a college degree without being burdened with a life-time of debt.  In the meantime, folks in Texas may have to “settle” for second-class degrees.

This is my final post on Concurring Opinions.  Sorry I did not have time to post and provoke more.  I’ve really enjoyed my month’s stint.