Mythologies of State and Monopoly Power. Michael Tigar
witnesses, jurors, judges and other officials with whom petitioner will inevitably be dealing when he becomes a member of the Texas Bar. With such a substantial and significant segment of society excluded, we cannot conclude that the education offered petitioner is substantially equal to that which he would receive if admitted to the University of Texas Law School.
The Court ordered Mr. Sweatt admitted to the University of Texas Law School.
Looking back at the history and record of the Sweatt case, one is struck by how transparent were some of the justifications offered to keep Mr. Sweatt out of the University of Texas Law School. Charles T. McCormick could not possibly have believed that a law review, Order of the Coif, and moot court were extraneous to modern legal education. McCormick was one of the most eminent United States experts on the law of evidence, that is, the rules by which matters are decided using rational, probative proof.
THE PERSISTENCE OF RACIST MYTHOLOGIES
The myths on which segregation was based had, by 1950, become transparent, but not to everyone. School districts responded to the 1954 decision in Brown v. Board of Education by refusing to desegregate unless and until a drawn-out lawsuit resulted in a final judgment requiring them to do so. So there was litigation in hundreds of school districts. The Brown decision, and Chief Justice Warren, were denounced, even in the pages of the American Bar Association Journal. In a 1956 Journal article, two prominent lawyers decried “the commingling of the white and colored races” and the effect this might have on “white children and their parents.”21
Thus, when the mythology of “separate but equal” was exposed, the political and social forces that supported racism did not run up a white (what other color could it be?) flag of surrender. Other mythological constructs were brought into play. The American South’s myth of a gracious past overlay the reality of its brutal present.
Mythologies can be exposed in courtrooms, where a more or less orderly procedure allows reliable evidence to be heard and nonsense rejected. Such proceedings help us understand the world. The point, however—as somebody said—is to change it.
Racist mythologies appear in different guises. They are shape-shifters. We can spot them by their results and by examining the motivations of those who put them forward. Some expressions are obvious. In 2014, a fourth-grade teacher at a private school in Wisconsin gave her students a homework assignment: “Give 3 ‘good’ reasons for slavery and 3 bad reasons. Make notes and then put them into COMPLETE SENTENCES on a separate sheet to prepare for presenting an argument.”22
Of late, racist mythologies are called out with coded words that have acquired the name “dog whistles.” Here are some examples:
• “PRIVATE PROPERTY”: Impatient with the pace of change, students in Greensboro, North Carolina. held a lunch counter sit-in on February 1, 1960. From this beginning, a direct-action movement spread across the nation. The owners of restaurants, lunch counters, hotels, trains, and buses invoked property rights.
• “FREE ASSOCIATION”: Employers mobilized white employees with slogans claiming that African-American workers would steal their jobs. Racist rhetoric was used to resist campaigns for union organization. Entrenched leadership in the craft unions sought to exclude African Americans from union membership.
• “MISSISSIPPI FREEDOM SUMMER”: Freedom Summer 1964 was a dramatic chapter in the movement for civil rights. Thousands of civil rights adherents came to Mississippi to work on the denial of voting rights and other institutional forms of racism. Racists fought back. The toll included three murdered civil rights workers, many more workers injured, 250 arrests, thirteen black churches burned to the ground, two dozen other church buildings bombed or burned. At the Democratic National Convention, the struggle played out between the Mississippi Freedom Democratic Party and the “regular,” segregationist Mississippi Democratic Party. On national television, we witnessed white liberals failing to meet the challenge of busting the mythology that the “regular” Mississippi Democrats could possibly “represent” Mississippi.
• “NEIGHBORHOOD SCHOOLS”: Faced with a Constitution-based ruling that segregation was unlawful, the white power structure, in the North and South of the United States, adopted a policy that students should attend the schools closest to their homes—neighborhood schools. This slogan was itself a mythological cover for racism. Residential housing was segregated, and not simply as the result of income disparity and personal choice. Richard Rothstein’s brilliant book, The Color of Law: A Forgotten History of How Our Government Segregated America, documents how local, state, and national government policies enforced and reinforced housing segregation, with the active connivance of lending institutions. When the mythology of neighborhood schools was challenged, the power structure decried the use of busing to create integrated schools.
• “RACISM IS OVER”: Reactionary judges and politicians proclaim that the days of racism are over, and that taking race into account is a form of invidious discrimination—against whites. Fortunately, other judges express a view that reflects the history and text of the Thirteenth, Fourteenth, and Fifteenth amendments. Rejecting a challenge to affirmative action at the University of Texas, the Supreme Court majority, in an opinion by Justice Anthony Kennedy, returned to the principles the Court has expressed in Sweatt v. Painter:
A university is in large part defined by those intangible “qualities which are incapable of objective measurement but which make for greatness.” [Quoting Sweatt.] Considerable deference is owed to a university in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission. But still, it remains an enduring challenge to our Nation’s education system to reconcile the pursuit of diversity with the constitutional promise of equal treatment and dignity.
• “STAND YOUR GROUND”: In the common law of England, which was largely imported into the United States in the 1700s, a person faced with potential deadly force had a duty to retreat if possible and avoid a confrontation.23 Within the last two decades, almost every American state has enacted one version or another of a “stand your ground” rule, by which use of deadly force is justified whenever a person honestly apprehends fatal danger. The ostensibly neutral rule of the law is therefore that killing another human being is justified based on a rational perception of danger. In practice, “stand your ground” has been disproportionately invoked to justify white violence against people of color.
• “TO PROTECT AND SERVE”: By now, the mythology of a police presence that, without racial bias, serves and protects all persons has been exposed. In 2017, in the United States, nearly 1,000 people were shot and killed by police officers. More than 50 percent of those killed were non-white. CNN reported in 2016 that black men are three times more likely to die from police shootings than are white men. Yet prosecutions of police officers are relatively rare, because prosecutors offer up ostensibly race-neutral excuses for police conduct. In 2014, NBC reported that being killed by a police officer was the second most prevalent form of homicide in Utah during the previous five years. The police killings were, again, disproportionately of persons of color.
• “WE ARE HONORING HISTORY”: Statues of Confederate leaders are in public spaces throughout the American South. A huge bas-relief carving of Robert E. Lee, Stonewall Jackson, and Jefferson Davis, at Stone Mountain Park in Georgia, is one of the most famous of these.24 Most of the Confederate monuments have a decisively ugly history. They were not erected when memories of the Civil War were fresh. They were put up as part of the white supremacist populist wave of the early twentieth century. Many of them were erected with the support of the Ku Klux Klan. Stone Mountain’s connection to the Klan is particularly odious and extensive; it was the site of many significant Klan rallies in the years since the memorial was carved. The movement to take down the so-called Civil War statues is not designed to erase history but to reclaim and demythologize it.
—— 2 ——
Mythologies of Criminal Justice
PALLADIUMS