How Is That Legal?: Breaking Down Systemic Racism One Law at a Time

We Have The Receipts

March 22, 2023 Community Legal Services of Philadelphia Season 2 Episode 8
We Have The Receipts
How Is That Legal?: Breaking Down Systemic Racism One Law at a Time
More Info
How Is That Legal?: Breaking Down Systemic Racism One Law at a Time
We Have The Receipts
Mar 22, 2023 Season 2 Episode 8
Community Legal Services of Philadelphia

Professor Erika K. Wilson lays out the legal foundations of white supremacy, breaking down how the law has distributed power and resources in favor of white people over everyone else. Plus, she brings the receipts to prove it! If you’ve ever wondered how systemic racism has persisted after the courts struck down Black Codes and Jim Crow laws, this is a conversation you don’t want to miss.

This episode is part I of the conversation with Professor Wilson. In part II, you’ll learn how civil courts produce racialized violence and how Professor Wilson’s Critical Race Lawyering Clinic applies critical race theory to legal aid.


Erika K. Wilson (@Erika_K_Wilson) is a Professor of Law, the Wade Edwards Distinguished Scholar and Thomas Willis Lambeth Distinguished Chair in Public Policy at the UNC School of Law. She also directs the Critical Race Lawyering Clinic at UNC.

If you enjoy this show and want to help fight poverty and injustice, consider making a donation to Community Legal Services today! You can also follow us on Twitter @CLSphila to stay connected.

How Is That Legal is a podcast from Community Legal Services of Philadelphia and Rowhome Productions. Jake Nussbaum is our Producer and Editor. Executive Producers are Alex Lewis and John Myers. Special thanks to Caitlin Nagel, Zakya Hall, and Farwa Zaidi. Music provided by Blue Dot Sessions.

Support the Show.

Show Notes Transcript

Professor Erika K. Wilson lays out the legal foundations of white supremacy, breaking down how the law has distributed power and resources in favor of white people over everyone else. Plus, she brings the receipts to prove it! If you’ve ever wondered how systemic racism has persisted after the courts struck down Black Codes and Jim Crow laws, this is a conversation you don’t want to miss.

This episode is part I of the conversation with Professor Wilson. In part II, you’ll learn how civil courts produce racialized violence and how Professor Wilson’s Critical Race Lawyering Clinic applies critical race theory to legal aid.


Erika K. Wilson (@Erika_K_Wilson) is a Professor of Law, the Wade Edwards Distinguished Scholar and Thomas Willis Lambeth Distinguished Chair in Public Policy at the UNC School of Law. She also directs the Critical Race Lawyering Clinic at UNC.

If you enjoy this show and want to help fight poverty and injustice, consider making a donation to Community Legal Services today! You can also follow us on Twitter @CLSphila to stay connected.

How Is That Legal is a podcast from Community Legal Services of Philadelphia and Rowhome Productions. Jake Nussbaum is our Producer and Editor. Executive Producers are Alex Lewis and John Myers. Special thanks to Caitlin Nagel, Zakya Hall, and Farwa Zaidi. Music provided by Blue Dot Sessions.

Support the Show.

Kee Tobar (00:05):

Hello everyone and welcome to How Is That Legal, the podcast where we break down examples of systemic racial inequity in the law and policy and talk to experts whose stories of injustice will make you ask, how in the world is that legal? I'm your host, Kee Tobar. I'm a legal aid attorney, history enthusiast and Chief Equity and Inclusion Officer at Community Legal Services of Philadelphia. I can't believe season two of How Is That Legal is already coming to an end. I've thoroughly enjoyed every conversation this season and I know I've said this a lot, but today's interview is really special. Professor Erika K. Wilson joins us to discuss the legal foundations of white supremacy and how the civil legal system produces racialized violence. Erika K. Wilson is a professor of law, the Wade Edwards Distinguished Scholar, and Thomas Willis Lambeth Distinguished Chair in Public Policy at the UNC School of Law.


She also directs the first critical race lawyering clinic in the country, and we'll talk about the clinic as well. I learned so much from Professor Wilson that we decided to turn our discussion into How Is That Legal's first two-part special, so make sure you tune into part two of our conversation next week. This show is focused a lot on the important ways racial inequity shows up in specific laws and policies, but we're ending season two by going back to the beginning.


Professor Wilson traces the role of law in constructing race and racial hierarchy in the United States. She tells a compelling story of how the law has distributed power and resources in a way that favors white people over everyone else, from chattel slavery and settler colonialism to the present, and she has the receipts to prove it. Professor Wilson makes the case that the law doesn't just subordinate Black and Brown communities, but in fact created racial hierarchies to begin with. Get ready for a conversation that will forever change the way you see the law. Welcome Professor Wilson to the show. I've learned so much from all the guests this season, but I have to say that I was overjoyed when you accepted our invitation to join us. Could you introduce yourself and tell us a little about how you came to be a law professor and the director of the first critical race lawyering civil rights clinic in the country?

Erika K. Wilson (02:14):

Yes. Thank you for having me today. I'm excited to be here and I'm glad that you're doing this podcast and interview. My name is Erika Wilson, I'm a professor of law at the University of North Carolina School of Law, and I like to tell people I'm actually an accidental law professor. I don't have the usual pedigree of a law professor. I'm a first generation college graduate within my immediate family, certainly a first generation lawyer, and I stumbled into law school by accident.


I didn't even know what the LSAT was, I just had a general notion that I wanted to help people. And so at the time I applied to law school was during the Clinton impeachment trial and I saw Cheryl Mills on the house on floor of the Senate defending the president and it was a Black woman who looked like me with the law degree using it to do something powerful and I figured I could do that but do it in a way to help people who had some of the lived experiences I had, which was that of being a Black woman who grew up in working class situation.


And so I give that context because nothing about my background said I should be a law professor. What led me to ultimately becoming a law professor is I actually went to the UCLA School of Law where they have a wonderful critical race studies program. They have fantastic faculty like Cheryl Harris and Kimberly Crenshaw. And honestly, it was the first time I saw a Black woman being a professor, let alone a law professor. So in the back of my head, I thought maybe I could do something like that one day. After practicing law for about five, six years, I revisited that thought. I knew I wanted to at least give it a shot, but I wanted to do it differently. I wanted to be able to be a law professor but still use my law degree to help Black people in a more practical way as well. And so that is how I came to do a teaching fellowship at the University of Baltimore where I learned how to both teach law and do so while teaching students how to practice law.

Kee Tobar (04:40):

I'm also a trained lawyer and it's very inspiring to hear kind of your journey to that because I think part of it is I think a lot of young folks who may look like us need to see that it's possible and you can do it your own way. And I love how you framed it as it relates to doing liberating work. And so often we look at the laws doing maybe justice work, but liberation is a completely different thing. So I love that you added that there. So the name of the show is How Is That Legal? And no matter how much I study or come across examples of systemic racism in the law, I still to this day find myself asking how is that legal? Can you describe a time you asked yourself that same thing?

Erika K. Wilson (05:25):

So the first time ... I've asked myself that many times, but I will never forget the first time I asked myself that was actually in law school reading the case of McCleskey versus Kemp. It's the case where the death penalty was being challenged, evidence was submitted that showed that over 2000 Georgia murder cases that Black people were more likely to receive a death sentence than any other defendant, and that Black people who killed white victims were more likely to receive a death sentence. And so all of the statistical evidence was presented that showed a significant correlation between race and who is and is not getting the death penalty. And I'll never forget what the court said, and I wrote it down here just so I could read it verbatim because it was so disturbing to me. They said, "If McCleskey's a claim of systemic bias is to take into its logical conclusion, it throws into serious question the principles that underlie our entire criminal justice system.


If we accept it, McCleskey's claim that racial bias has impermissibly tainted the capital sentencing decision, we could soon be faced with similar claims to other types of penalty. The constitution does not require that a state eliminate any demonstrable disparity that correlates with the potentially irrelevant factor in order to operate a criminal justice system that includes capital punishment." So that was disturbing to me because they were essentially saying that even if there is evidence of rampant systemic racial bias within this system, we're not going to find that the constitution outlaws that. Because if we did find that we would have to basically up in our own whole criminal justice system.


And there's language in there where they also say, "And there are other systems as well, essentially to which that same argument can be applied." So I just thought it was telling because at least as a law student, it was the first time that I saw documented evidence of systemic bias and racism that the court acknowledged it but was willing to keep the show rolling for the death penalty. We're not talking about something trivial. This is something where you can't take it back. This is actually someone's human life. And to see them with such callous disregard say that we are going to keep allowing states to operate a system of capital punishment of death despite this evidence, overwhelming evidence of racial bias within the system, to be honest, shattered my faith a bit and the ability of the law to mitigate systemic bias. And it seemed like it was an integral part of perpetuating it.

Kee Tobar (08:24):

I hope partly what some people may get from this podcast at least is the understanding that the law is not neutral. At the very least, I hope that they get that and I'm really excited to talk to you today about the legal foundations of white supremacy and also learn more about the clinic at UNC School of Law. But before we dig in, I'd like to define two terms that are widely or I'd like you to define two terms that are widely misunderstood and maybe even intentionally misconstrued. So let's start with white supremacy. What is it and more importantly, what is it not?

Erika K. Wilson (09:02):

So I think there are two ways of looking at white supremacy. One is the classic Webster's definition of white supremacy, which suggests that it's the belief that the white race is inherently superior to other races and that white people should have control over people of other races. I like to say that is more of an individual animus or belief white supremacy. Then there's a systemic definition of racism that when I'm talking about white supremacy, that's more often than not what I'm talking about. And so that is a political, economic and cultural system in which whites overwhelmingly control power and material resources and in which white dominance and non-white subordination exist across a broad array of institutional and social settings.


And so I think it's important to understand from those two definitions, the latter definition is more a systemic description of white supremacy where the former is about individual belief. I think a common misconception of white supremacy is that to be perpetuating white supremacy, you have to be dressed up in KKK robes and spewing racial epithets and that it's the extreme individual animist kind of white supremacy that gets elevated and that's the kind that people are willing to engage with and condemn. But they're much less likely to condemn that systemic definition of white supremacy because it implicates I think a lot of the way our society is set up.

Kee Tobar (10:37):

So similarly, critical race theory is in the headlines which is connected to white supremacy, connected to the study of racism and is connection to the law. For instance, it's in the headlines for all the wrong reasons these days. Just what is critical race theory and what do you think or why do you think it's so controversial to folks?

Erika K. Wilson (10:59):

So I want to start by saying what it's not because I think there's a lot of conflation that the teaching of race, generally the teaching of history to include historical facts about race is critical race theory, but that's not it. Critical race theory has a very distinct origin within the legal academy. Critical race theory is an analytical tool or frameworks that legal scholars came up with to help us frame both legal and non-legal problems related to race inequality and power. The key part of the frameworks that CRT uses is that those frameworks acknowledge the communally stewarded relationship between, or connection between race or really membership in any traditionally marginalized group, but particularly race and the law. There's this general principle with respect to the law that, as you alluded to earlier, the law is neutral. The law is free from values or politics, and so critical race theory, the frame calls into question that baseline norm and instead suggests that there's this deeply embedded connection between race and the law.


So the frameworks that CRT gives us, gives us valuable lenses through which we can begin to view and understand issues of systemic injustice and racism. I always like to tell my students these frames are important because when you frame the problem wrong, more often than not, you get the solution wrong. And part of the reason that CRT is so controversial is because it is a reframing of what it is that we think we know about the way society is ordered. I think when it comes to race, CRT, it's entering to mainstream represents an ideological shift, particularly with respect to how we understand race and the law. We all have lenses or schemas through which we make sense of what we're seeing, right? The dominant cultural narrative around race go something like this or race in the law that we had this bad period of enslavement of African people.


We had an emancipation proclamation, civil war, then we had Jim Crow, then we had the Civil Rights Act, and the law was instrumental on taking us from a very bad place to now a good place that we've had a civil rights act. There's no more Jim Crow, there's no more formal discrimination in society within the law and that that's the end of the story. But CRT suggests otherwise. The other important part about the baseline framing is that it suggests that racism is aberrant, that it is irrational, and that it is something that can be cured through rational logic or education. CRT on the other hand, the frame suggests that that racism is deeply embedded within our systems, within our legal system in particular, and that racism isn't abhorrent, but it's an essential organizing feature that was built into the law to set up society the way that we have it now.


I think the important takeaway from CRT versus not considering CRT, if you don't have CRT lenses, you might look at the current arrangement and think that there's a racial wealth gap, for example, because Black people don't work hard or there's disparities within the racial disparities in the criminal justice system because there's Black pathology. So CRT helps moves us away from that thinking and framing to questioning the various structures and systems and how they arrange things and the role of the law, particularly in how things get arranged to produce particular results that lead to racial disparities.

Kee Tobar (15:02):

You've argued that the law has historically played a vital role in constructing white supremacy in the United States. Going back to the founding of this country and child of slavery, what was the role of the law in constructing race and racial hierarchy in America and what were some of the laws put in place to solidify racial inequality?

Erika K. Wilson (15:23):

So I think it's important to start with the dispossession of indigenous people of their land. So one of the things that people often don't realize is that the law, for example, was pivotal in doing that. There's a case called McIntosh versus Johnson where the court essentially puts forward a rule of discovery doctrine that only applies to European nations. And the short version of the story says that indigenous people can occupy the land, but they don't have the right to own the land in a way that they can transfer title to anyone in ways that the courts of the United States of America have to recognize. So property, the having it or lack thereof is a critical part of establishing a racial hierarchy. So that's one way in which the law mediated that, right? By setting up a system where you had to be European to be able to have colorable property rights within the United States.


In terms of the actual construction of race itself, people, I always laugh when people say, "You're playing the race card." They tell a Black person, "You're playing the race card." I like to say, "Well, let me tell you who put the cart in the deck, okay?" Because the first thing to note is that there is no biological race. There's no such thing as a gene that makes someone Black or makes someone Asian. In fact, you have more genetic diversity within races often than you do between races. And so the genesis of the construction of race began with enslavement. People don't think about it like this, but slavery was a legal status. There were actual statutes that said if you were African, then you were going to be enslaved for life. Your children will be enslaved for life. There were rules constructed about or laws constructed about what happens when someone is of mixed blood, right?


Things like the one drop rule. If you have one drop of African blood and you you're considered Black and therefore enslaved for life. Questions of race will go through the mother because enslaved African women were often raped and that produced more enslaved persons. And so the foundation starts there that the law regarding enslavement was used there to classify people that if you're African Black, then you're enslaved. The flip side to that, that we don't think about enough, I think, and is what really helped to not just create race but create racial hierarchy, is the law also mediated who was considered white. And so being considered white was actually a valuable property interest, property right. And so there are actually cases where people would go to court and try and get a court order and a civil court to be adjudicated white.


The two most common examples are with respect to immigration and naturalization, that first immigration and naturalization act said that you are only eligible for it if you're a free white person. It's in the text of the statute free white person. So there we have the law setting up a category, whiteness that's conferring a benefit. And if you aren't raced as that, if you don't fit into that category, you don't get that benefit. So there's a line of cases where people, Asian people, people from the Middle East, people from all over are going to court trying to get an order saying that I am white. Interestingly, when the court is deciding these cases, the court never says what it takes to be white. They never say, "Okay, to be white you have to be X, Y, and Z." The court always says what means you're not white if your hair is this way, if your nose is this way, if your lips are this way, if your skin tone is this kind of brownish and then you're not white.


And so by defining whiteness through exclusion rather than inclusion, it put forward a malleable definition of whiteness that could be used to use to expand or construct who was white for various purposes. So that's the top of the hierarchy. Similarly, we also had cases where people were going to court to get an order to say they were white, to prove that they were not Black. So people who were of mixed Black and white, let's say origins might go to court to prove that they try and prove that they're white so they wouldn't have to be enslaved. And so this is really again, the foundation of the creation of racial hierarchy linking whiteness to certain property. They're also cases and laws saying that if you are not white, you can't serve on a jury. If you're not white, you can't own property, et cetera. And so that in is a very long-winded way, is how the law was used to construct both race and racial hierarchy.

Kee Tobar (20:51):

Thank you for the history. And so when I started in law school reading about the anti-miscegenation laws, that was when it was first kind of revealed to me about this whole construction of race. And I'd also like to state that race is not stagnant, at least as it relates to whiteness and blackness, what that represent and what that means even to this day, right? Because I think many people see race as this firm stagnant thing, but it's not. And who is white? And you can look at your census and see who is white and who's included in whiteness changes over time.

Erika K. Wilson (21:33):

Right. I mean, I always tell my students that Jewish people weren't always white, and there might become a time where categories of people who are not considered white today are raced as white. And I given the change in demographics, that would not be a long shot at all, that certain groups may find their way into whiteness for purposes of maintaining white domination.

Kee Tobar (21:59):

Exactly. So even after slavery ended laws such as Black codes continue to merge racial identity with legal status, what were Black codes?

Erika K. Wilson (22:09):

So Black codes were a series of laws that were put into place by state legislatures in the South in particular between about 1865 and 1866. And so these laws imposed really heavy burdens on so-called free Black people who were already struggling against mistreatment and poverty after enslavement was ended. So these laws did things like criminalized ordinary behavior. An example is in Mississippi they had a Black code that required Black people to have written evidence that they were employed for the coming year each January. And if they had that written evidence, but they left before the end, they left the job before the end of their contract, they would be forced to forfeit all of the wages they made that year. And subject to arrest. Another one penalized Black people for being wanton in conduct or speech neglecting your job or family handling money carelessly or any other kind of idle and disorderly conduct.


And so very broad and vague categories of conduct, the purpose of which was to continue to control the Black body and more nefariously to, if the 13th amendment to the constitution, which outlawed enslavement has that exception for a punishment for a crime. So part of the point of the Black codes criminalizing a lot of conduct, innocuous conduct, mishandling Mundy for example, was a backdoor way to continue to enslave Black people because what would happen is people would be arrested and set up in a kangaroo court and convicted so they could be forced into involuntary servitude. That's how we got parts of railroads built. It's how we moved into the industrial relation age in certain places. And so yes, the Black codes were an instrumental part of maintaining racial subordination for the newly freed enslaved Africans and continuing to solidify the racial hierarchy.

Kee Tobar (24:30):

Much of this that ushers into Jim Crow, even if not necessarily mostly about animus like personal belief, it was about power because during reconstruction, many African Americans gained power as it relates to the legislator like becoming senators and state representatives, and people were "pulling themselves up in their blue straps" and had bought land and it acquired some type of wealth or property. And really the usher into the Jim Crow was about reducing that power as much as it was about any personal belief of superiority or so on and so forth. So I really appreciate that you brought up that word. So connected to that, how did race conscious laws distribute power and resources in a way that favored white people over everyone else in the first half of the 20th century?

Erika K. Wilson (25:29):

So there are really two ways that it did it. One way is to be very explicit still and to have race conscious laws that said, in order to get this benefit that you have to be white, right? The beginning of the Homesteading Act, which gave out land, land taken from indigenous people across the United States was limited to white folks for a while. And then even when laws weren't directly in the face of a law or statute limited to white people, they may have been enacted with the knowledge that including certain provisions would have a race conscious effect that favored whites and disfavor non-whites, particularly Black people. I want to pause there to make this point as well, right? That part of the way the law operated was not just to subjugate Black people, but to subjugate non-white people. Things like the Chinese Exclusion Act, for example, to exclude Chinese from being able to come into the United States.


Things like the ways in which the United States roll back on certain treaties with indigenous people. All of this was part of a larger landscape to subordinate anyone, not white. It just happens that within the racial hierarchy that exists, Black is at the bottom. And so because of our history of enslavement, we got it bad. I won't use a relative term, but I'll just say bad. In any event, two other examples. I think the laws that were not explicitly race conscious are not in the text, didn't mention race, but enacted with the race conscious effect are important to understand because that would eventually play a huge part in the way that the law continued to maintain white supremacy.


So one example, the Social Security Act of 1935, it guaranteed workers and income after retirement, but specifically included agricultural workers and domestic servants. Those agricultural workers and domestic servants were predominantly African-American, some were Mexican-American, and putting those exceptions in there, there was knowledge of who would be excluded from that. Another sneaky one is the 1935 Wagner Act at Granite Unions, the power of collective bargaining, but did not contain explicit anti-discrimination provisions or didn't contain specific re requirements that unions not discriminate on the basis of race. And so the net result was that Black people were excluded from unions and therefore denied access to the better paid jobs and union protections. So these two dual methods of having explicitly race conscious laws that excluded, and then another way of having so-called race neutral laws that one knew would have a race conscious effect.

Kee Tobar (28:48):

So then we get to, I guess, the passage of the legislation of the Civil Rights Act of 1964. Race conscious laws like the one you just described have been struck down, but surprised white supremacy didn't just vanish into thin air. What new ways of thinking replaced overt racism that you were kind of alluding to just then in race conscious legislation?

Erika K. Wilson (29:13):

So the new ways of thinking was really about let's just stop mentioning race altogether. And let's say that we are colorblind, that there is no need to consider race. We will just take on a stance of being colorblind, that it's a bad idea to even acknowledge or consider race. The problem or how that kind of ideology perpetuates white supremacy is that you've had a hundreds of years lead up to having laws that expressly favor whites, and then you just say, we're going to stop with no repertory methods, particularly with respect to property or money. And so you just say we're going to stop without restoring the injury or harm that was caused. And so the net effect of that is that you still have a baseline that favors white by virtue of the hundreds of years headstart, let's say. And so a good example of that that I didn't mention, but is an important race conscious law that was used in the early half of the 20th century is housing, right?


That's the most obvious example where new deal programming, the FHA made it possible for middle class white people to get houses. The FHA, which insured mortgages and therefore incentivize the private market to lend to people to buy houses had explicit language that said that neighborhoods needed to stay single race that redlined certain neighborhoods, meaning they wouldn't lend to neighborhoods that were predominantly Black or they green ... The flip side of that is a green lined neighborhoods that were predominantly white and affluent said they would lend in those neighborhoods. So those kinds of race conscious laws and policies favored whites for so long, and then all of a sudden you're just going to say, "Let's stop discriminating," without giving any kind of compensation to those who were excluded from getting those benefits and property. So that doesn't allow one to catch up if you have been excluded from so long. And while another group got so many advantages.

Kee Tobar (31:46):

So connected to that, I guess I'll oppose the question to you. Have the law legal processes and institutions adapted to address race-based harm from a reparative perspective? And what role has the Supreme Court played in this?

Erika K. Wilson (32:05):

So the short answer is they have not adapted from a restorative or reparative perspective at all. I think the closest that we came, at least for Black people was this idea of affirmative action that there was going to, that the government was going to take affirmative action to atone for the mistreatment, the deprivation of property, et cetera. And so the timeline on when Lyndon B. Johnson gave the first official speech on the need to take affirmative action in the mid 1960s at Howard University. And so there were colleges, universities, government programs that did start to take affirmative action to consider race the history of racial exclusion when making decisions about who got into certain colleges who would be hired for certain jobs. But that was a short-lived ideology because very shortly after in the mid 1970s, you had the case of UC Regents versus Bakke, where for the first time the Supreme Court recognizes the idea of reverse discrimination.


The idea that Alan Bakke an applicant who applied to the UC Davis Medical School, was being discriminated against because he was white, because UC Davis had a set aside program where they set aside something like 10, 12 seats out of a class of over a hundred for African Americans and other marginalized groups who had a history of exclusion. And so even though Bakke had been denied from other medical schools, he was claiming that this small set aside program was the reason he was denied admission to UC Davis. And here is where when we think about the law and the role of the courts in particular in terms of charting a path for repertory relief where everything went left because the Supreme Court in Bakke said that essentially the Constitution does not, the 14th Amendment equal protection clause does not allow us to remedy amorphous, they called it amorphous, general societal discrimination.


Instead, you have to have a very direct and distinct kind of discrimination that you are remedy. You have to have a legislative record that shows, for example, that UC Davis purposely denied Black people admissions to the law school, and only then can you use the 14th Amendment equal protection clause in a remedial sense. Eventually even that line of reasoning was chipped away. Instead, what we came up with is that colleges and universities, even the government could consider race as one factor in order to achieve diversity.


So that reasoning is very important. The shift from being able to consider race in a positive way to give benefits to those who were previously denied in order to remedy or repair was essentially removed from the court's reasoning and instead replaced with the idea that you can consider it for purposes of having a diverse workplace, diverse school because white people in particular benefit learn how to be better workers, leaders, people by being around people of different races. And we all benefit from diversity was the reasoning, but that is very different from reparation and restore and repair. And because of that, because I like to point to Bakke as a point where it really changed the ideology and thinking the sociocultural norms about whether it was okay for the law to recognize or allow reparation and repair, particularly for the history of what was done to Black people. And the answer was no, that race could only be considered in this diversity context, which is not the same as reparation or restoring.

Kee Tobar (36:36):

What you just said, I hope that people are getting it and it is just so profound and I think so important for people to kind of understand as they look at the law as some type of remedy to harm to see what are the boundaries and what are the frameworks. Earlier you said that sometimes when you are using the wrong framework, you get the wrong solutions. And this kind of directly core connects to what you said in the sense that we have a particular framework that we have to use kind of when we're thinking about what comes down to remedy, but it can't be about remedy.


We have to use this different framework which provides like different solutions. And so I hope that the audience is really, really get that because that's, that's really important. Part of you write that by simply issuing an addict to stop discriminating or to stop considering race at all, the prior race conscious system that favors white becomes naturalized. How do post-racial and colorblind legislation shift the burden of structural racism to individuals? Maybe you can give us an example of how colorblind legislation works in this way.

Erika K. Wilson (37:50):

There are two different, I think frames. The first is colorblindness and the second is post racialism. So colorblindness tells us that even considering any race at all is a bad thing. Colorblindness suggests that race is just skin color. We just all happen to have a different skin tone. Colorblindness is ahistorical, and acontextual does not recognize the lived experience and history connected with being of a particular race. So colorblindness says that any program or law that recognizes differences based on race is impermissible and bad. So I give as an example, a Supreme Court case involving a school system in Seattle and Louisville that implemented a voluntary desegregation program. They both implemented these desegregation programs because they realized they had a history of having racially segregated schools. And they said that we don't want to continue having racially segregated schools because we know that when you have racial segregation in schools, you usually have an inferior education for students of color.


So we're going to enact these programs that create more integrated schools, and in order to do that, we're going to consider the race of students that are enrolled in the school. So we are going to directly look at race when we do our enrollment and zoning decisions. And so the court says you can't do that. It's unconstitutional because we should never be considering race at all, not even when you're doing it for a benign purpose and a beneficial purpose to remedy a history or try and remedy a bad history or to avoid a segregatory result. So famously or infamously in that case, chief Justice John Roberts says the best way to stop discriminating on the basis of race is to stop discriminating on the basis of race. Meaning the best way to get over this is to for us to pretend like we don't see race.


So under this colorblind paradigm, they would suggest that Jim Crow segregation and race conscious affirmative action programs are the same thing because they both require the decision maker to consider race. Although we know the history behind Jim Crow segregation is very different than the history behind race conscious affirmative action program under a colorblind paradigm. They are exactly the same thing and they're both unconstitutional and illegal because they dare to acknowledge or consider race, right? So you see, it's a perverse result under a colorblind system because it doesn't allow for that reparation or repair based on past history. Then you have post racialism. Post racialism essentially says we had this bad history of people being treated badly because of their race, but we're over that now. We've made progress. There's no more more of this, therefore we don't need to consider race at all. So in terms of the law, the best example of this is Shelby County case, that overturns section two of the Voting Rights Act.


So section two of the Voting Rights Act said that if certain areas had a history of excluding Black people from voting of implementing policies like poll taxes, et cetera. And so because of those areas histories, before they could make any changes to their voting structures, they had to get pre-clearance or authorization to make the change from the government to make sure that it wasn't going to have the effect of denying Black people the right to franchise the right to vote.


So in the Shelby County case, again, the court looks at the data and says, "Well, Black people don't have a problem voting anymore, therefore we don't need section two anymore because they're able to vote. We're beyond it. We're post-racial, therefore let's get rid of it." And what happens when you get rid of it? Then you have the same jurisdictions with the history of excluding Black people from voting, enacting laws that they know are going to have a disparate effect and restrict the franchise of Black people. And so that is how you continue to maintain systems of white supremacy by either saying colorblind Jim Crow is the same thing as race conscious affirmative action, or we don't need this, we're post-racial, we've already dealt with this, therefore, no consideration of race at all.

Kee Tobar (42:55):

Well, that was part one of my interview with Professor Erika K. Wilson and just wow. As Professor Wilson illustrated, it's not a coincidence that we've moved from race conscious laws like Black Codes and Jim Crow to a system now where considering race at all is seen as a bad thing. When you realize the law has a foundational role in constructing white supremacy in this country, it makes sense that some cities are more segregated today than they were when the Civil Rights Act was passed in 1964, or that Black and Brown people are disproportionately harmed in almost every branch of the civil legal system.


So the next time you ask yourself, how is that legal? Remember, the law is not neutral. It is actively working to sustain white supremacy in both visible and invisible ways. On the next episode of How Is That Legal, Professor Wilson will break down some of those invisible ways that the design structure and operation of civil courts perpetuate racial inequity. And I can't wait for you to hear this discussion, but I'm even more excited for you to learn about the Critical Race Lawyering Clinic that Professor Wilson directs. You'll learn how she and her students are applying critical race theory to legal aid work and how it's changing the way they work with communities to solve legal problems.


If you want to ask questions about the show or let us know what you think, please email us at Also, while community Legal Services of Philadelphia offers free legal assistance on a range of civil legal issues, we are not a criminal defense firm. So if you live in Philadelphia and are looking for noncriminal legal help, please visit us at C-L-S-P-H-I-L-A.O-R-G. We cannot respond to questions about legal issues via email. Season two of How Is That Legal is produced by Rowhome Productions. Jake Nussbaum is our producer and editor. Executive producers are Alex Lewis and John Myers. Music provided by Blue Dot Sessions. Special thanks to Caitlin Nagel, Zakya Hall, Farwa Zaidi. I'm your host, Kee Tobar.