The Law Can’t Be at the Center

Erika K. Wilson is fighting back against racialized violence in civil courts! In Part Two of our conversation, she shares how she’s putting critical race theory into practice at UNC’s Critical Race Lawyering Clinic, why representing Black and Brown people is not the same as working through a race equity lens, and what happens when her clients push back against anti-blackness. Altogether, Professor Wilson demonstrates that the law cannot be at the center of dismantling white supremacy. 

If you haven’t already, listen to Part One of Kee’s conversation with Professor Wilson on the legal foundations of white supremacy. 

Guest: 

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 directs the Critical Race Lawyering Clinic.

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.

Transcript

Kee Tobar (00:10):

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.

(00:34):

Welcome back to our conversation with Professor 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. This is part two of a two-part conversation. If you missed our last episode, you want to listen to that first because it really lays the groundwork for today's interview. In part one of our interview, professor Wilson and I break down the law's vital role in constructing White supremacy, dating back to childhood slavery, all the way up to the present moment.

(01:08):

In this episode, we focus on how Professor Wilson is actually working to dismantle and reimagine these systems in her role as the director of the Critical Race Lawyering Civil Rights Clinic at UNC. The clinic is the first of its kind, and I was really excited to talk to Professor Wilson about how the clinic differs from a traditional civil rights clinic. We also discussed how civil courts produce racialized violence and what kinds of laws, frameworks, and movements are necessary to dismantle White supremacy.

(01:39):

Professor Wilson obviously has deep expertise in race in the law, but her work is also incredibly inspiring and forward-thinking. I couldn't think of a better way to wrap up season two. Here's part two of my interview with Professor Wilson.

(01:57):

When I learned about your clinic, I was really, really excited about that because I think not only is it on time, I think that it is very much so necessary and needed. So regarding that clinic, it's the first of its kind in the country. Can you tell us about the clinic and how does it differ from traditional civil rights clinics?

Professor Erika K. Wilson (02:19):

So the first thing I'll say about the clinic is that I came to want to do this because I had students come to me and say, "I love your critical race theory class, but how do we apply this as lawyers?" So I felt like there was this gap between learning about these frames and understanding how these frames could be useful as a practicing lawyer. The other part about it is I'm a heavy believer that practice should influence theory as well. So my hope is that this becomes a symbiotic relationship that through our use of critical race theory lenses and doing the work a particular kind of way, that we're able to add new theories and new ideas because critical race theory is a verb. It's not a noun. It's an ongoing and dynamic theoretical construct. And so it is different from a traditional civil rights clinic in that a couple of ways.

(03:16):

The first way is that it's steeped in the belief that learning the law through critical race theory lenses helps you to formulate different and more effective lawyering strategies, both in terms of the substantive work on the cases, and maybe you'll appreciate this especially coming from a legal aid background, but also from a professional identity lens. Because what I was finding in doing just clinical teaching generally is that a lot of the literature, a lot of the training neglected to talk about the role of the race in terms of the lawyer and the client. And so the lawyering experience, particularly for me as a Black lawyer, often having Black clients raise very different issues than it raises for my White students, for example, representing people of color. So critical race theory gives us the frames to understand not just from a substantive legal perspective, but also from a professional identity perspective, client perspective, how race might be influencing the relationship and lawyering is a big part of it is about relationships.

(04:32):

So I think those frames are important for that reason. The second way that it's different is that it takes more of an integrative advocacy perspective. Some of the frames of critical race theory teach us that because of the endemic nature of racism, that the courts aren't always going to be the best solution. That in fact, sometimes the courts can make it worse. And so part of the goal of the Critical Race Lawyering Clinic is to use litigation as one tool in the toolbox, but it's not the only tool that we have to be creative and expansive about other means of advocacy, whether it is using firsthand narrative accounts to shed light on a problem, even something that where we're going to experiment is using social media a little bit more as a means for advocacy and community outreach. And so I think that the part about it not just being directly litigation focused is really what sets it apart from a lot of traditional civil rights clinics.

(05:47):

The last thing is that it uses CRT frameworks to broaden the lens on what should be considered a civil right. I think we have this very general notion of what civil rights looks like and that we have these boxes, and so my clinic doesn't play within those nice boxes. So for example, one of the cases that we have in the clinic this year is actually a defamation case. Now that's a traditional tort cause of action. You wouldn't think of that as a civil rights issue, but giving the context in which our clients are being sued for defamation, it raises issues of racial justice that implicate civil rights issues. And so we are lawyering it in that context, and so it's broader than just the traditional kinds of civil rights cases.

Kee Tobar (06:38):

Awesome. I was so excited to see that your clinic is working in the civil courts and doing work similar to what we do at CLS. When we started the podcast, I wanted to ensure that we spoke about what I see as a legacy of racialized violence, extraction and dispossession in the civil system because so much of the context regarding racialized violence in the courts at least is connected to the criminal courts in the American imagination. This is ironic to me, given that the civil court system is a much more expansive court system, which I believe produces more violence and produces it more consistently are due to the breadth of its arenas. There's family law, there's housing law, there's employment and other non housing property law, et cetera. Can you elaborate on the racialized violence produced in the civil courts?

Professor Erika K. Wilson (07:32):

Sure. I think housing, for example, is a huge area where racialized violence is perpetuated that we don't even think about. There was a good study that came out a while ago that talked by Matthew Desmond where he talked about how for Black women evictions have the same effect as criminal convictions have for Black men. If you go sit in housing court in any city, you're going to see disproportionately a large number of people of color who are being removed from their homes, getting an eviction on their record with minimal due process at that. Often what you see is that the landlord is represented by council. The tenant may not even be there. When I was doing this work in Baltimore, it was like a roll call. They would just call the names of the cases, and if the tenant wasn't there, even if they were like 10 minutes late because they were trying to catch the bus to get there, a summary, a judgment action against them would be issued.

(08:37):

And they now have an order that they have to leave their home, and even if they're able to negotiate something with the landlord to stay there, that eviction may still stay on their record because the court ordered it. And then you have a predatory system wherein these tenant screening agencies get the information from the court and they'll put it on someone's record, making it harder for them to get another place to live. So that's one example. The racial violence part comes in because of the income and racial wealth gaps. You're usually seeing a disproportionate number of people of color, Black people who are ensnared in this system, and there's no recognition of the role that race plays, the power differential that often exists between often a White landlord and a non-White tenant, and the minimal prongs of due process to even question that and give tenants a chance to have a fair substantive chance to explain what is going on, why they might not be able to pay rent or that the apartment is mold infested.

(09:54):

None of that exists particularly since many of them are not represented by council. I have another really crazy civil case that I'd like to talk about. Maybe I can just say a little bit about it because we're still an active litigation. The other way in which the civil courts can be a prong of racial violence, particularly in places like where I'm at in the south, where sometimes the civil courts can be used as a means to abuse people of color. So for example, our clinic is currently representing a Black woman in a case where she was participating in a Black Lives Matter rally downtown in front of a courthouse that has a Confederate monument in front of the courthouse. There were counter protestors there at the same rally arguing for the maintenance of the Confederate monument. And so, one of the counter protestors was a nurse who was alleged to have made some very bad comments about saving Black lives and not doing it anymore, wanting to let them die.

(11:07):

Our client was disturbed by this, did some Facebook digging and found the woman's Facebook page and found some other disturbing comments and posts. So our client made a Facebook post about what she saw on the Facebook page and heard at the rally that went viral. The nurse gets terminated because people call in and now my client is being sued by the nurse for defamation per se, but not only is my client being sued by the nurse for defamation per se, the nurse is also suing four other Black women who shared the post or called in to report what they saw on Facebook. And so these people have no idea about the civil system. The lawyer for the nurse engages in some tricky procedural tactics that almost netted a default judgment against them. The nurse is suing for in excess of $50,000, and so she just kept them snared in this long, slow civil process that without our representation, they probably would've got a default judgment against them a long time ago because if we were charging money, we would've racked up easily six figures in legal fees in terms of defending motions.

(12:28):

Luckily, we were able to get most of the case dismissed through a summary judgment motion, but we have one claim that's remaining that's likely to go to a jury trial. But I just give that example because there's a large racial history in that county, and we believe the lawsuit was actually interposed for purposes of keeping Black people in that county from speaking out against racist comments that they hear by people in positions of authority or power like a nurse.

(12:58):

And so to me, this is, and I hope to write about it once we finally finish up the case and hopefully are able to help our client be successful and not having this judgment against her. But I would like to write about it because it's a quintessential example of the way a civil legal system, a simple tort claim can be used to terrorize Black people who don't have money to pay for a private lawyer and who are often unfamiliar with the civil system, which is very different than the criminal system where you, depending on the context, get a lawyer, a public defender, and who are helpless in the face of all the burdensome discovery, et cetera that can be overwhelming for folks.

Kee Tobar (13:49):

How has the design and structure and operation of the civil court system served as an avenue to subordinate racialized groups and individuals? So it's not just about the outcomes, but the design itself.

Professor Erika K. Wilson (14:02):

I think one critical aspect of the design is the lack of access to counsel. You're not guaranteed a lawyer to help you navigate through a pretty cumbersome process. And so sadly, in some civil cases, housing again comes to mind, but certainly there are arguments about the family court as well. Some people quit before they even get started because it is so intimidating and overwhelming that without a lawyer to help them meaningfully access the court to be able to go and follow the cumbersome rules and make the necessary arguments, that structural flaw, we talk about access to counsel and criminal cases, but I am glad to see in places like New York, they're starting to realize that access to counsel and things like housing is equally as important because just as there are collateral consequences for civil criminal convictions, there are collateral consequences for evictions.

(15:08):

There are collateral consequences for many civil judgment orders. We just don't think about it like that. It could preclude you from getting a job. It could result in your wages being garnered. And so those are also some examples of the structural design that can lead to racial subordination. The number one thing for me being the lack of access to counsel, but not only the lack of access to a licensed lawyer, the limiting of who can advocate for you in those arenas to being only a licensed lawyer. I think there are arguments in some context where you, similar to how some physicians' assistants do certain work, that we could make an argument that there is a need for some kinds of paralegals, legal assistance, to be able to do certain kinds of work as well, and to be an advocate for people in these arenas.

(16:08):

Now, that latter point is probably controversial. I'm going to get me in a little bit of trouble with some of my access to justice friends, but I think there's a middle ground somewhere in that some of our licensure rules contribute to racial subordination in terms of keeping people away from much needed help. The last thing I'll say in terms of how the structures, the civil system can perpetuate racial subordination and just a very idea that even when you are successful in a civil case, you get a judgment, an order.

(16:44):

It's just a piece of paper. To enforce, it requires another set of actions, rules, et cetera. And so I think that perpetuates racial subordination. I'm thinking about some of the housing work we've done where we maybe get an order that there are substandard housing conditions, but getting the landlord to fix it is a whole nother ball of wax. The power differentials don't always allow that to happen, notwithstanding a judgment or order against the landlord. They figured they can pay money and that's the end of it. But for our clients who have to live there, they would like the place fixed or they have nowhere else to go, et cetera. So those I think are some good examples for me at least in terms of how the civil structure itself can perpetuate racial subordination.

Kee Tobar (17:39):

At community legal services, speaking of racial justice lawyering, at Community Legal services where I work, most of our clients are Black and Brown. Now, some might think that our work in legal aid work in general is inherently anti-racist, simply because we disproportionately serve Black and Brown people. Can you talk to us about the difference between representing a client population that is predominantly Black and Brown versus working through a race equity lens?

Professor Erika K. Wilson (18:06):

Yeah, I think that's huge, because the reality is that most legal aid service providers are White. There's a small number of lawyers of color, and so you have a lot of issues with interracial representation, and there can be a tendency to presume that one is anti-racist or doing racial justice work because of the population of clients they represent, but that's not true at all. I think I started talking about it earlier in terms of a key tenant in terms of actually doing anti-racist lawyering or lawyering for racial justice is starting by checking your own professional identity and realizing how that impacts your lawyering strategies and skills.

(18:58):

There was a study that came out in the context of bankruptcy, not to take us too far off line, but this is a good example where they found that lawyers who were representing clients seeking bankruptcy were steering their Black clients towards the more cumbersome kind of bankruptcy where you have to repay what you owe while steering their White clients to the liquidated bankruptcy where you just start over.

(19:27):

And I think lawyers had no idea that they were doing this, but there are certain biases that might come out in terms of beliefs about certain populations that if you're a Black for example, you have some obligation to pay it back because you were reckless and you shouldn't just get off scotch free. But I give that example because I think the same can be true in legal service lawyering in terms of how one might approach the work without first understanding one's own biases and understanding, particularly if you are a White lawyer, you do have a racial perspective. It's just that your racial perspective is so baked into the dominant cultural lens, you might not recognize that you have a racial perspective. So one thing I make my students do is actually read an article called White Lawyering by Russell Pierce which talks about the ways in which race whiteness is baked into our legal systems and how it can be baked into the professional identity of White lawyers.

(20:34):

So I start there because I do strongly believe that the professional identity piece is a substantial part of doing any kind of racial justice or anti-racist lawyer. You can't do it if you yourself are recognizing the baseline from which you start. The other thing is that to realize the power differentials that exists in terms of just being a lawyer and that the lawyer isn't always the best solution to the problem, especially the problems that Black and Brown people face. So part of doing anti-racist lawyering or racial justice lawyering is sometimes getting the hell out of the way and deferring to other people, other community groups to your client and to your client's understanding of what's best for them and not dominating them and pushing them into a solution that you think from a "lawyering perspective" makes the most sense, but not from the perspective of their organic lived experience, particularly as a Black or Brown person.

(21:46):

I think it's also an important part of lawyering through a racial equity lens, understanding that what makes sense to you might not make sense to them for their lives because different lived experiences very much colored by race. The last thing I'll say about it is this idea of a racial equity lens, especially when you are doing legal service lawyering, I think, and you might have a heavy caseload, it can be difficult to see clients outside of just, I got this judgment for them, or I got them to the ability to stay in their house.

(22:29):

I think you have to look more holistically at the client and how race might impact their situation. So what do I mean by this? So for example, in a housing case, yes, I got them this ability to, this money to get a new apartment or whatever, but how might race impact their ability to find a new place? How might race impact what their options are? So maybe this settlement sounds good and the abstract, but let me think about it a little bit deeper in terms of what it means to be a Black person in a gentrifying Durham, North Carolina, trying to find a new place to live. What are some of the other things, safeguards that I might want to put into this settlement? Do I need to get more money? Look, just depending on the case context, things like that.

Kee Tobar (23:23):

In connected to what you're saying, I go so far to say also that it's also imperative that non-White lawyers are also reading that because we are all socialized in a non-neutral way of learning when we go to law school. And so it's not necessarily the physical whiteness that is connected to a belief system or a way of lawyering. We're all socialized in a certain way of lawyering. So we all should be race conscious, race aware, and be studying our own biases because it's baked within all of us.

Professor Erika K. Wilson (23:58):

Yeah, absolutely. I also would even go a step further to say that for non-White lawyers, there's some work we need to do in order to understand intra racial representation dynamics. So I said that I assigned my students this piece, White Lawyering by Russell Pierce. I also assigned them something called Intra-Racial Representation by Julie Lawton, which talks about the experience of being a Black lawyer representing Black clients. And so how some of the things that you mentioned in terms of having to check your own, the ways that you've been integrated into a very White system and may yourself perpetuate anti-Blackness. I'm not ashamed of people. I learn from my clients all the time. I'm not ashamed to say this. I think this was a good thing. There was a point where I had to check myself. I had a client who we were representing in a housing issue where the client was upset that as part of her Section 8 voucher, that she was subject to this very cumbersome inspection.

(25:08):

And so as I was negotiating a settlement for her in this case, I was like, "Oh, what's the big deal?" I didn't say what's the big deal, but as I was counseling her, trying to explain why it's not that big of a deal to allow them to be able to come into her place with so many hours notice. And so she was a Black woman, she checked the hell out of me, and I deserved it in terms of explaining what the dignity harm was to her to have these White people coming in her apartment and how I would not understand that because I own my own home and would never have be subject. And so really, I just say all that to say that even as lawyers of color sometimes, especially as lawyers of color, we can fall prey to the same things and need to check ourselves as well.

Kee Tobar (26:06):

So this is my last question. I really appreciate you taking the time with us to go through this because this has just been so great for me. What kind of laws, because I like to talk about solutions too, not just the problems. So what kind of laws, frameworks, or movements do you think are necessary to dismantle White supremacy altogether?

Professor Erika K. Wilson (26:26):

So I think, and I might get myself in trouble with some lawyers here, that the law can't be at the center of it. That's what I think. I think that in order to dismantle White supremacy, we need more community activism, political push, and that the law should be at the periphery of that in terms of reinforcing whatever new paradigms that we come up with as a community, as a political consensus amongst us all. I think the danger of the law, which I do try and teach my students, is that the law is based on stare decisis. It's based on precedent. The precedent don't favor us, all right. And so if we're centering the law, it's like that saying you're trying to pour new wine into old wine. It doesn't always work. It's not going to taste very good.

(27:33):

So I think we have to start there by decentering the law actually into really think about, or let me put it like this, decentering the traditional law as it exists and reimagine the world that we want, very much like the abolition movement, I think as a model. We have to figure out as a people, the power always lies in the people. The law is only effective if the people consent to be governed by it. So we need to figure out new ideas about what rules we want to set up to govern ourselves. So the rules that we currently have in place, were not ones that were forged through multiracial collective consent. Those of us who were not part of the original framing are subject to rules that are trying to be twisted and turned to fit a multiracial democracy, but do not, in an ideal world we would start over. Going to get myself in trouble again.

(28:36):

We would rewrite the constitution from scratch in order to, maybe we keep some parts, but we would write a brand new document in order to account for a more multiracial, inclusive society, literally racial subordination. It's built into the Constitution. The three fifths compromise. It's like it's baked into the document itself. So I think in order to dismantle White supremacy, we got to start there. We have to start with a movement from the people that redefines what rules we want to govern us. But I think before we can do that, something that Brian Stevenson said that always stuck with me. We've never had a truth and reconciliation in the United States. I think that should be square one.

(29:26):

In order to know what we want, we have to know what we've done, what the injuries are, and to be able to heal from that and then come up with new visions for what we collectively want as a society. I think it's a long process, but I think as the organizer, Mariame Kaba said, "Hope is a discipline", especially for law students and lawyers, I will say. I was a little bit pessimistic on the law, but I still think that the law can be a useful tool and we can't lose sight of that, and that this is a process. It's a marathon, not a sprint in that we have to use what we have while at the same time being opening to decentering lawyers and laws and re imagining what we collectively want.

Kee Tobar (30:22):

I think the clinic is a fascinating example of what can be done to change the legal profession's alignment to White supremacy. And I've truly appreciated this conversation. I know that I've learned some keys, and there are some things you mentioned I'm going to make sure that I go back and I read, and I hope that the audience also received as much as I received from this conversation. So thank you for joining us.

Professor Erika K. Wilson (30:45):

Oh, thank you for having me.

Kee Tobar (30:51):

I once heard that if you misunderstand the framework of an issue, you'll likely create the wrong solution. So that's why it's so important that we understand the law as a creator of racial hierarchy insubordination, because we'll never eliminate racial disparities without also transforming the law. And with that, it's a wrap on season two. We've covered so much ground in this season. Property taxes, home repairs, rights for people with disabilities, education violence, segregation and urban planning, and so much more. I hope you learned just as much as I did. Thank you for the privilege of sharing this history and work. Looking forward to season three.

(31:32):

As always, if you want to ask questions about the show or let us know what you think, please email us at podcast@clsphila.org. 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 clsphila.org. 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, and Farwa Zaidi. I'm your host, Kee Tobar.