America's Racial Reckoning Black Lives and Black Futures in Historical, Political and Legal Context

Descriptive Transcript

[This is a discussion between four panelists on the Zoom video conferencing platform. The video includes shots of all four panelists in a grid and focuses full-screen on whichever panelist is currently speaking.]

Chad Williams [addressing his webcam]:
Hello, everyone. Welcome to today's event titled "America's Racial Reckoning: "Black Lives and Black Futures "in Historical, Political, and Legal Context," hosted by Brandeis University. My name is Chad Williams. I'm the Spector Professor of History and African and African-American Studies, and chair of the African and African-American Studies Department at Brandeis University.

[video switches to show Professors Williams and Rigueur]

I have the great privilege of moderating today's vitally urgent discussion featuring three of Brandeis University's most distinguished professors. [video switches to show Professors Williams, Rigueur, and Kryder] I would first like to note and thank various co-sponsors of today's event, beginning with the Department of African and African-American Studies, the Department of Politics, Department of History, the Heller School for Social Policy and Management, the Office of Diversity, Equity, and Inclusion, the Office of the President, and the Office of the Provost. I want to give a special thanks to the Office of Communications and Brandeis Media and Technology Services for their support in making this event possible, especially on such relatively short notice.

[video switches to show all four Professors: Williams, Rigueur, Kryder, and Hill in a grid]

Today's conversation is live streaming on as well as the Brandeis YouTube channel, so welcome to viewers on both platforms. This event will be recorded and made available at a later date on the Brandeis YouTube channel and for anyone else who's interested in receiving it. So I hope that you will share this conversation as well as revisit this conversation as needed.

Thank you to everyone who pre-submitted questions in advance. I will try to get to as many specific questions as possible, but also keep in mind that I've incorporated many of your questions into the questions that I have already prepared for our participants. So we'll try and cover as much information, cover as many bases as possible.

"Let's begin by saying that we're living through a very dangerous time." Now these are actually not my words. This is how James Baldwin opened a conversation he was having with a group of teachers in October of 1963. And yet, 57 years later, here we are again. But in so many ways, when we think of the long history of Black people in this country, we have always been in the midst of a very dangerous time. The current national uprising sparked by the recent murders of George Floyd, Breonna Taylor, Ahmaud Arbery, reveal the vastness of our ongoing racial crisis and how deeply embedded anti-Blackness is in every aspect of American society. It has especially exposed the complex intersections of history, politics, and the law, and how race and White supremacy function to hinder, constrain, and outright destroy the lives of Black people.

Now there are obviously a number of other areas we could explore and need to keep in mind, such as healthcare, education, economic policies, environmental justice, just to name a few. But for the purposes of this conversation, it is our hope that you will come away with some foundational knowledge as well as inspiration for effecting change on multiple levels.

So let me briefly introduce the Brandeis faculty who will lead us through this conversation in the order that they are going to deliver their brief remarks. First, we have Leah Wright Rigueur, the Harry S. Truman Associate Professor of History. Her research expertise includes 20th century, American political and social history, modern African-American history, race, politics, civil rights, contemporary social movements, political ideologies and institutions, and the American presidency. Covers quite a bit. She's the author of the award-winning study "The Loneliness of the Black Republican: "Pragmatic Politics and the Pursuit of Power," and is currently working on a new book titled "Morning in America: Black Men and Women in a White House."

Next we have Daniel Kryder, the Luis Stulberg Chair in Law and Politics. His research interests include political development, qualitative methods, policing and social movements, and the history of race, policy, and politics. He is currently completing a new book on the history of police, race, and social protests in modern America -- and he may very well need to quickly rewrite the book after this moment -- but certainly his research is incredibly timely.

Last, but certainly not least we have Anita Hill, University Professor of Social Policy, Law, and Women's, Gender, and Sexuality Studies. She's an expert on anti-discrimination law and policy and teaches courses on gender, race, social policy, and legal history. Her most recent book is titled "Reimagining Equality: Stories of Gender, Race, and Finding Home."

The Black Lives Matter movement began in 2013 when Alicia Garza, Opal Tometi, and Patrisse Cullors came together in sadness, anger, but also love following the acquittal of George Zimmerman in the murder of Trayvon Martin, starting a new campaign for racial justice. The hashtag that they popularized, #BlackLivesMatter, was simple yet remarkably profound. It was at once historical, affirmational, and aspirational. For the past seven years it has inspired protests and calls for immediate change. Tragically, as we have seen, it's taken more Black death, more Black suffering, more Black rage, for this to happen. But make no mistake; change is in fact happening.What we have seen over these past couple of weeks, remarkable developments that speak to the fact that social transformation does not simply take place overnight, but is the product of generations of struggle and sustained commitment.

Why is this happening? What is really happening? In the 1963 conversation he was having with the group of school teachers referring to the civil rights movement, James Baldwin said, and I quote, "It is not really a Negro revolution that is upsetting the country. What is upsetting the country is a sense of its own identity." Our current crisis is certainly about making sure without equivocation that Black lives matter, that all Black lives matter. But this is also a reckoning with America itself.

From the dismantling of police departments to the toppling of Confederate monuments, we are seeing how the structures, symbols, and myths that have undergirded the very idea of America are no longer sustainable. We are at a true tipping point in this country's history. The question is, now what will we do? What will all of us do? What risks are we willing to take? How far will we expand our imaginations of what is in fact possible? How truly committed are we to reckoning with America as well as reckoning with ourselves?

So with that I'd like to turn things over to Professor Leah Wright Rigueur who is going to get our conversation started. So, Professor Rigueur.

Leah Wright Rigueur [addressing her webcam]:
Okay, so thank you so much for that, Professor Williams. And I really also wanna say thank you to Professor Williams, Professor Kryder, and Professor Hill for just taking the impetus to really get this conversation started so quickly and so rapidly. I think we all sensed there was a kind of urgency to take our expertise, take our knowledge and really share it with a much broader, wider audience so that can all kind of work through this moment together. So I think it's really the beginning of something quite powerful that we want it to be part of the Brandeis community and much wider community as well.

I wanted to start off my thinking about, by acknowledging how much things have changed in the last four years alone, and I think Dr. Williams did a good job of pointing out the start of Black Lives Matter. But only four years ago, people were saying Black lives matter but not everyone was saying it. There was a real difficulty, particularly amongst White people, to say that Black lives matter, to actually say that, to articulate it. It was a real struggle. And now all of a sudden we have people of all races chanting in the street.

The New York times just released some data that came out the other day that shows that the popularity and the support for Black Lives Matter in the last two weeks has grown more than it has in the last two years. So the majority of the population in the United States right now actually believes, or at least is willing to say, Black lives matter. We even have celebrities saying it, we even have a certain senator from Utah who was the former presidential nominee for the Republican Party in 2012 chanting it while protesting in the streets. So there has been this really significant change that I think signals something really quite big.

We've also seen about more than 200 protests across 50 states, across the globe, in small counties, towns, and large cities. We see all of this happening essentially in solidarity. And I wanted to bring this up because I wanna signal how important this moment is and that we're really on the verge of something transformative spurred on by Black protests. But also to consider that that Black protest was built on the legacies and the works of historical Black protests and Black protest movements. So that's what I'm gonna talk to you a little bit about today.

In short, what I wanna explore is what exactly is this moment and how did we get here, and then why is this something bigger happening right now? So the first part of that is really thinking about there are a series of incidents that are happening back to back to back. So the nation is still mourning the death of Ahmaud Arbery, we're still learning the details of Breonna Taylor's horrific death at the hands of the police, when we get this gruesome death over Memorial Day Weekend of George Floyd. So we haven't even finished mourning as a nation when we get not nearly nine minutes of state-sanctioned violence and murder against a man who in his dying breath, and I really wanna emphasize this, his dying breath cries out for his mother who has been dead for two years.

It is a shocking moment, at least for the nation, and for many it's a wake up call because there's no longer any way to deny, to ignore, to avoid or wear blinders when we think about Black death in the state. For Black Americans, though, it's another reminder that we are without sanctuary, that we are without protection, and that this is not a unique situation. At no other time in history has there not been a moment like this, and by that I mean Black people have always had to reckon with these forces because Black people have always been under assault.

So it's not really a reaction or simply a reaction to Ahmaud or Breonna and Floyd. It's not about kind of individualistic crusades or protests. It's not simply righteous rage at one particular incident. The protest emerged from a longer history of Black Americans being subjected to the brutality of a racist state and unequal institutions. So it's a rage that we can classify a righteous rage of being denied access to the trappings of the American dream, to being historically and continuously excluded from the promise of American citizenship, and to being exploited by a system that consistently plunders and takes from Black people and Black communities.

So the protests that we see happening now and the protests that we look at historically are about the overlapping and intersecting failures of America. So I wanna give you a couple of examples to really pull this out, and these are both contextual in the moment but also historical. So we can look at a system of capitalism, for example, that has not worked for Black and Brown people, that has left millions unemployed and underemployed. And I'm pointing to George Floyd who was in Minneapolis looking for work when he was murdered.

We can look at the failures of an American healthcare system and the repeated health crises that have disproportionately affected Black people and Black Americans. We're in the midst of a pandemic -- and this is actually part of the reason why we're so attuned to this moment -- but we're in the midst of a pandemic and George Floyd, when he dies, has Covid-19 in his lungs when he's murdered. So he can't escape it, there's an inescapability about his situation. It's either death by the hands of the police or some kind of effect by the failures of the healthcare system and this pandemic.

We also see that it's also the failure of public policy. So it's about the historical and continuing failure of public policy, public officials, and public institutions, all of these kinds of elements of the state in the lives of Black people, and the failure of these places to really protect and ensure the rights of Black people consistently. So this is why somebody like George Floyd becomes symbolic of a movement that becomes something much bigger, transforms into something much bigger. His death picks up on trends that Black people have been experiencing for over 400 years.

So it's this inescapability of the potent mixture of racism and inequality that's built into the very fabric of our nation and it's horrific in our inability to escape it. So what Black people have consistently done through protest is declare to the world that the system is not working, and this is actually why Black protest matters. We don't really talk about the larger context and history of Black protests, and I think I've given you a broad overview of what goes into a Black protest, particularly the Black protests we're seeing right now.

But what I wanna point out is that Black protest makes quite clearly, it makes the point quite clearly that the state is illegitimate, that the social contract that governs our lives has historically failed Black people and continues to fail them. The safeguards that we envision as we think of American democracy have failed Black people. Black protest therefore represents our best chance at true democracy for all people.

So I wanna talk a little, give you guys just one quick example, a historical example of a larger protest movement that really encapsulates a lot of these ideas. And one of my favorite examples to point to is a group, the Mississippi Freedom Democratic Party. They're founded in April 1964 by Fannie Lou Hamer, Robert Moses, with the help of Ella Baker. And they're quite potent at highlighting the political power of Black voices to convey the reality of state illegitimacy, or state failures, the way in which America has failed Black people.

And so I think one of the things about the MFDP, or the Mississippi Freedom Democratic Party, is that the organization is created with providing some of the most oppressed sections of the Black community with a protest vehicle and voice of their own. So an independent political organization, in the words of the historian Barbara Ransby, that could be employed to extract concessions from broader society and confront the nation in the most direct way possible to acknowledge the legitimacy of grievances and claims of Black people. So it becomes an organization, protest organization, aimed at providing voice to the most vulnerable and oppressed of the nation. So part of its protests center around calling out a racist police state and its murderous effects on the rights and liberties of all Americans, but in particular Black Americans.

And I just wanna close out this session by pointing to a famed 1964 speech, Fannie Lou Hamer's "I'm Sick and Tired of Being Sick and Tired," which eloquently captures this sentiment. She's deeply critical of democracy as it existed, but hopeful about using Black political protest and protest movements to push for a more just society, and this is what we are seeing today, this is built on the legacy of the kind of work that Fannie Lou Hamer is doing. And she says, and I quote,

"Not only do we need a change in the State of Mississippi, but we need a change in Harlem. It's time for every American citizen to wake up because now the whole world is looking at this American society. And quit saying that we are free in America when I know we are not free. You're not free in Harlem. You're not free in Chicago. You're not in Philadelphia. And when you get all the way around it, some places are just Mississippi in disguise, and we want change."

So I think this is really important, particularly when we think about the Mississippi Freedom Democratic Party and its lobbying against state-sanctioned violence against Black and Brown people, and fighting for democracy, and thinking about the passage of legislation. And this is how these Black protest organizations work, they use the intersection of grassroots protests with pushes against the very structures of democracy that have failed Black people in this country. We can see it with the NAACP. We can see it with the broader civil rights movement. We can see it with the Black Power movement. We can even see it in the anti-apartheid movement. And, of course, the most recent movement for Black lives.

Now I'll stop here by saying I started off by noting that four years ago we couldn't even say Black lives matter as a nation. And that many people across the country are now saying Black lives matter. And that we're actually seeing actions that re-envision the power of the state in the lives of Black and Brown people, but in all Americans, is a whole testimony to the power of Black protest and the power of Black protest movements in particular for all Americans. Thank you.

[The screen temporarily goes black as Chad speaks, because his video is switched off]

Thank you so much, Professor Rigueur. So many good points. I definitely wanna get back to this issue of the illegitimacy of the state, but first we're gonna let Professor Kryder do his thing. So, Mr. Kryder, feel free to jump in.

Daniel Kryder:
Thank you. Thank you, Chad. Thank you, Professor Rigueur. Thank you, Anita Hill, for having me as part of this conversation today. [Kryder appears addressing his webcam] For me, the American police system is an incredibly complex and elaborate system of White power, and I wanna talk in my time about some of the effects that the current Trump administration has had on the exercise of White power through police agencies.

As I look at the literature and scholarship in political science and sociology, criminal justice, there are obstacles to understanding the police given how decentralized our policing system is in a comparative perspective, how many hundreds and hundreds of individual police institutions, both public and private, that the United States funds and supports.

Social science theory would say that coercive agencies are really at the core of any conceptualization of a state. And despite the fact that it is at the core of our state, there has been I think relatively little sustained research on the nature of police organizations. And I think that is going to change very quickly. We've made great progress documenting and understanding our system of incarceration over the last 15 or 20 years. And I believe that it's time now to shift some of our kind of intellectual resources towards focusing on police agencies and police organizations.

As I say, it's a complex and very diffuse set of overlapping jurisdictional authorities and institutional agencies. And in my own research I'm very interested in trying to understand the interaction between police authorities and movements for social justice. This conversation over the last month or so I think has brought really positive attention to the notion of systemic racism. And I think one way that academics can help conversations progress in our society is by adding clarity to the concepts.

And I think that much of the conversation about systemic racism has focused on outcomes. I think this is absolutely correct, that we can find evidence of racist anti-Black outcomes across all dimensions of American government and American society. And I think many of these statistics and trends are clear to everyone. 700 Americans per 100,000 Americans are incarcerated in prisons. 4,000 African-American men are incarcerated per 100,000. So we find these kinds of disparities in terms of outcomes across various institutions and agencies in American government. Healthcare, education, wealth, and obviously in police behavior as well.

And I just want to shift or maybe try to add to that perspective by shifting our focus toward the front end, that is the causal side of these disparate outcomes, and I would say the actual agents and the institutions of White power that caused these outcomes. And for me one way to do this is to focus on the C-change really in the federal relationship to local police agencies that has been evident during this Trump administration.

And I just wanna point to a few factors, a few tangible ways in which the Trump administration has rearranged the relationship between the federal government and local police agencies very quickly and quite diametrically opposed to the efforts of the Obama administration and the Department of Justice in the Obama administration. Perhaps most obviously the Trump administration has turned its back on court-supervised consent decrees. There were at least 25 investigations during the Obama administration of local police agencies and at least 15 decrees that were reached that actually implemented bias training programs, the monitoring of biased incidents, escalation training, and even individual investigations of use of force.

These are really tangible efforts of federal oversight that I think do have real effects on the operation of local police agencies. There have also been a vast reduction in Department of Justice investigations of local police agencies that lead to such consent decrees. And I think in general the federal government was engaged in a very positive voluntary effort, had federal state collaboration towards reforming local police agencies. It's also clear that the Trump administration has reversed Obama administration limits on the transfer of military-grade vehicles and weapons, and so we have witnessed a kind of re-militarization of local police agencies. That of course is coming under review again now.

And also the Trump administration has hollowed out, as it has much of the central state bureaucracy, hollowed out the Civil Rights Division in the Department of Justice. Those are the bureaucrats that provide the capacity to investigate local agencies and reveal these patterns and these practices. I've always found the Department of Justice investigation of Ferguson to really be an astonishing record of the systemic ways in which local actors, White actors created a very complex and interconnected system of surveillance, monitoring, arrest, and then expropriation of African-American resources from what already was a very, very impoverished community.

So these are real institutional changes that have led to, I think, a relaxation of the sense of federal oversight and the sense of deterrence that a more active Department of Justice and national, federal administrative oversight would provide to start to bend White power back towards a social justice outcome.

And finally, of course, there's the rhetoric and the permissiveness that the rhetoric provides. The kind of tacit and explicit shift toward permitting White power to express itself through police behavior and the treatment of suspects, the treatment of protestors exercising their rights. And in all of these ways, I think, the Trump administration has been very, very consequential to rearranging the factors on the front end of systemic racism that help to generate the numbers and statistics that we rightly, I think, point to as evidence of systemic racism.

So that's where I'll stop right now. I look forward to learning more from each of you and to fielding more questions.

[Video returns to the black screen as Chad speaks]

Thanks so much, Dan. I really appreciate you bringing some clarity to the term systemic racism, especially how it functions, not just at the highest levels of the federal government in terms of the Department of Justice, for example, but at the local level, and just how deeply it is indeed embedded into these various institutions that sometimes we take for granted on a day-to-day basis. So something that we can definitely return back to. Professor Hill, I will turn things over to you.

Anita Hill[addressing her webcam]:
[Audio distortion]...all of my fellow panelists. For my time, I will talk about how the Burger Court of the 1970s and '80s upheld local government structures and policies that contributed to the community and individual vulnerabilities that are self-evident today. And in doing this I'm thinking not only about they deaths of Breonna Taylor and of George Floyd. I'm also thinking about the vulnerabilities that we witness through the COVID pandemic.

First of all, I would just like to say the conclusion that I'm reaching is that the Constitution -- according to my reading and the reading of many others -- the Constitution, the Supreme Court was intended to guard against precisely many of the local policies and practices that it endorsed in the 1970s and '80s. Unfortunately, the Supreme Court did not serve as the guard that was needed. In fact, the Supreme Court during that period routinely deferred to discriminatory local actions.

In one case, Mr. Marshall, Mr. Justice Marshall, warned that to challenge local actions would affect the hearts and minds of poor Black and Brown children in a way that was unlikely ever to be undone. And it's clear that that has been the case. Needless to say, Justice Thurgood Marshall dissented in all of the cases that I'm going to discuss today. But I want us to think about as you're listening to these cases whether Justice Marshall's dissent can today guide us to legal solutions that are needed as we evolve from where we are in this unprecedented time. And I'm gonna start with a snapshot of four cases that I think paint the picture of a court complicit in the bias that state and local authorities built into their policies and practices.

The first case is a case that's familiar to most legal scholars, but it's the case of Milliken v. Bradley. It's a 1972 case, and it was a six-three decision at Supreme Court level. The headline to a 2019 public radio story about the Milliken case I think sums it up, and the headline reads this: "This Supreme Court case made school district lines a tool for segregation, as opposed to a tool for integration." The NAACP's sponsored lawsuit in Milliken was brought on behalf of students in Detroit, and it charged that the city's public school system was racially segregated as a result of official policies adopted at the state and local level in Michigan. And those policies included concessions, tax concessions, given to the auto industry that encouraged that industry to relocate jobs from the city of Detroit to the suburbs that were predominantly Black. Excuse me, predominantly White.

After reviewing the facts that were presented by the plaintiffs in this case, the District Court and the Court of Appeals concluded that the system was indeed segregated and that state officials were complicit in the segregation. As a remedy, the courts ordered the adoption of a desegregation plan that encompassed 85 outlying school districts going into the suburbs that surrounded Detroit. The State of Michigan appealed to the US Supreme Court, and, interestingly, the US Department of Justice sided with the State of Michigan and against the petitioner, NAACP. Emphasizing the importance of, quote, "local control over the operations of schools," the US Supreme Court invalidated the plan drawn up by the District Court, describing it as "wholly impermissible." Again, briefly, the second case that I wanna refer to is a case called San Antonio v. Rodriguez.

Another well-known case decided in 1974, and it was a five-four decision. And again, Justice Marshall dissented in this case. Like many school systems, though, the facts are pretty straightforward. Texas public elementary and secondary schools relied on local property taxes as the basis for funding public schools. Dimitrio Rodriguez on behalf of himself and other students whose families resided in poor neighborhoods, challenged this funding scheme by arguing that it systematically underprivileged poor students whose schools lacked the vast property tax base that other districts utilized, and that this practice caused severe inter-district disparities in per-pupil expenditures.

The Supreme Court concluded that since the Texas funding system was the same as ones in 34 other states and did not discriminate against all of the poor people in Texas, it was not so irrational as to be systematically discriminatory. Even though the disparities were so extreme, the court said that, excuse me, even though the disparities were quite extreme, the court said that the Equal Protection Clause did not require precisely equal advantage, and again ruled against the plaintiffs whose schools were severely underfunded. Justice Marshall wrote in his dissent, and I'll quote him, "The majority's holding can only be seen as a retreat from our historic commitment to the equality of educational opportunity, and as unsupportable acquiescence in a system which deprives children in their early years of the chance to reach their full potential as citizens," linking education to citizenship in ways that the majority refused to do.

The third case, City of Memphis v. Green, is a 1981 case. It's also a six-three decision, which does mark the severe division in the court that existed in this time. And it's one that we see today too, though I'll just put a pin in that. But in the City of Memphis case, the city had granted a petition that was brought by members of a historically segregated community in Memphis, Tennessee. The petition asked that the city closed one end of a street that crossed the White residential neighborhood where the petitioners lived. The closure prevented traffic from an adjacent Black community from obtaining access to the street, which was also a throughway to Downtown Memphis. The Black residents challenged the street closing as a violation of the Civil Rights Act of 1866 as well as the 13th Amendment to the Constitution.

After reviewing the facts, including language used by the petitioners that they wanted to keep the undesirable traffic in their neighborhood, the Court of Appeals sided with Black residents. And the interesting part about this case is that the Court of Appeals had a very clear understanding of what the reasoning behind the closure was. They concluded that the closing would benefit a White neighborhood and adversely affect Blacks, that the barrier was erected to have the effect of limiting contact between Whites and Blacks, and that there was evidence of economic depreciation in the property values in the predominantly Black area due to the closure.

But once again the US Supreme Court deferred to the the local government's actions, stating that the harm to the Black residents was incidental. Again, Justice Marshall dissented. "The majority treats this case," and I'm quoting him, "the majority treats this case as involving nothing more than a dispute over a city's race-neutral decision to place a barrier across a road.

My own examination of the records suggests, however, that far more is at stake than a mere simple street closing. The picture that emerges from a more careful review of the record is one of a White community disgruntled over sharing its streets with Negroes and of a city heedless of a harm to its Negro citizens." The majority concedes that the adverse impact was greater on Blacks than on Whites, but they also concluded that the harm was incidental, merely incidental harm. However, in Justice Marshall's opinion, he says that, in his judgment, the message that was created "constitutes a far greater adverse impact on respondents than the majority would prefer to believe. The psychological effect of this barrier is likely to be significant." "It will reinforce feelings about this city's favoritism toward, toward Whites, and will serve as a monument" "to racial hostility."

Though Marshall did not say so in his dissent, I would add that the effect of such barriers and monuments contribute to Whites feelings of superiority and entitlement to maintain a status that has been outlawed by the Constitution, and we see that those monuments continue to exist today.

So finally I wanna just give you a brief snippet of a fourth case, which was a 1983 case, a five-four decision again. The City of Los Angeles v. Lyons. And that case speaks not only directly to the death of George Floyd, but also indirectly to the death of Breonna Taylor. In 1976, police officers at the City of Los Angeles stopped Adolph Lyons for a traffic code violation, which was driving with a broken tail light. Although Lyons offered no resistance, the officers, without provocation, seized Lyons and applied a choke hold. The hold rendered Lyons unconscious and damaged his larynx. When Lyons awoke, he was face down on the ground and he was spitting up blood and dirt. The officers gave him a traffic citation and they all left the scene.

But Lyons sued. He sued seeking damages against the officers as well as an injunction against the city in an attempt to bar the use of choke holds. In a five-four decision, the court held that federal courts were without jurisdiction to entertain Lyons' claim for ending choke holds. The court cited the fact that Lyons had been choked once, but did nothing to establish, and this is a quote from the court, "a real and immediate threat that he would again be stopped by an officer who would legally choke him into unconsciousness." And that failure allowed the court to rule against him.

And once again, Justice Marshall dissented. And Justice Marshall pointed to a series of facts. First of all, he said that "although the city instructs its officers that use of a choke hold does not constitute deadly force," and he cites in the period of 1975 until five years later, "16 persons have died following the use of a choke hold by an LAPD police officer. 12 have been Negroes, Negro males." The evidence submitted to the District Court established that for many years it had been the official policy of the city to permit police officers to employ choke holds in a variety of situations where they faced no threat of violence. In reported altercations between LAPD officers and citizens, the choke holds were used more frequently than any other means of physical restraint. It is undisputed that choke holds hold a high and unpredictable risk of serious injury or death. Yet the court holds that a federal court is without power to enjoy the enforcement of the city's policies, no matter how flagrantly unconstitutional it may be. And Justice Marshall lamented, "Under Lyons we now learn that wrath and outrage cannot be translated into an order to cease an unconstitutional practice."

So, as I think about all of these cases, I ask the question, how many schools, streets, and neighborhoods and jobs might be more available and better financed had Marshall's legal reasoning been adopted and prevailed in just these four cases? How many monuments to racial hostility may have been removed or never erected? How many lives might have been saved from police brutality? Now, of course, we don't know the answer. These are the what if questions that we don't know the answer to. But I think we can surely believe that the words of Justice Marshall, the words that he had penned in his dissent, can inform us today about how to move forward from these unprecedented times that we exist in.

Thank you so much, Professor Hill. [The screen returns briefly to grid view, before focusing on Chad Williams] This idea of incidental harm is really sitting with me, just what that means, just how kind of symbolic that is for the lack of recognition of Black pain, Black suffering. The fact that you can put your knee on someone's neck and view it as incidental harm. Sure, you're okay, you're breathing. And how that idea of incidental harm, it really permeates this entire, this systemic apparatus--

Anita: [screen focuses on Anita Hill]
Right, it's clear in every one of these cases, whether it's lack of school funding, whether it is the movement of all the jobs out to the suburbs, whether it's the blocking off of the streets so that people have to drive around and go out of their way, it's all incidental. But clearly to Marshall it was more than incidental, and he wanted the Constitution to actually recognize that this harm that was being caused was more than incidental and that we should step up to stop it. And that's what the Constitution, that's what the Supreme Court is there for, in his words as well as in my own judgment.

Chad:[screen focuses on Chad Williams]
Right. So, I think we're gonna open things up, and Professor Kryder and Professor Rigueur, I think you're still there, I believe. I can't see you on my screen. [screen opens up to grid view] But I wanna go back to a point that Professor Rigueur made about the illegitimacy of the state, which I thought was incredibly powerful and really important. Professor Kryder and Professor Hill, in some ways you're speaking to the need of the state to respond to the righteous indignation, the rage of Black people, and that there are perhaps apparatuses in place where the state can legitimately respond to the demands of Black people and perhaps even reform itself. And I think we're at a moment where a lot of people are certainly questioning if that is possible, if the state is something that can in fact be marshaled for institutional, transformative change, or if it is indeed illegitimate.

So I'd like to perhaps get your thoughts on that, all three of you. Is the state indeed illegitimate? What are the tools that we have at our disposal? Or should we be looking to other means? Is the idea of the state and institutional transformation kind of inherently contradictory?

So I can say a little bit on this [screen focuses on Leah Wright Rigueur] and a little bit more on the concept of state of illegitimacy, particularly as it comes from the Black protest movement or Black protest movements over the course of centuries, but also really rooted in this idea of Black Lives Matter. And I should say that Professor Megan Francis and I -- Professor Megan Francis is at the University of Washington in Seattle -- and I have been working on this research that really looks at this concept of illegitimacy of the state, particularly from social protest movement, history and politics.

But part of what we're trying to tap into is both the frustrations that these protest movements have with these various kind of gatekeepers, these various institutions, with public officials, with the Supreme Court, with Congress, with everything that is supposed to be about, in Anita's words, protecting the nation's most vulnerable citizens, but that have consistently failed them or done harm to them. And so I think one of the things that you see is twofold. You see groups of people like the Mississippi Freedom Democratic Party who are calling this out and saying that the state is illegitimate, but also saying there's still an avenue through which we can achieve actual true democracy.

So they still have faith in a system that hasn't had very much faith in them or hasn't really done what it's supposed to do for them. But then we have another dimension I think that is really important, and this often manifests in public rebellion, which we still see as part of this Black protest movement, where essentially people on the ground as part of these uprisings, rebellions, sometimes even manifesting in violent forms, say, "No, there is no recourse. There is no other way. The state has failed us and it will continue to fail us."

And then I think the third avenue are these individuals who are part of these protest movements, particularly grassroots activists, oftentimes nonviolent grassroots activists who say that the state has failed us and in fact what we need to do is not reform, because reform is simply just another form of, you know, taking what you have, crumpling it up, and you get the same old thing. But instead saying what we need is a revolution of the system. And in fact what we see come out of that are the more radical proposals that even right now are actually becoming more mainstream.

So calls to reimagine, re-envision, say, policing in America, come out of that frustration about the state being illegitimate. Police are supposed to, as agents of the states, are supposed to be protecting the rights of the most vulnerable. Instead, what they're doing is harming the very same communities that they're supposed to be protecting.

So the idea here is let's take, say, for example, funding, from these bloated police budgets and reassess it and reevaluate where it goes and reallocate it to the communities that are being most harmed. So this is the various, I think, ideas and really gradients of this idea of state illegitimacy.

And I would just [screen focuses on Anita Hill] underscore that by saying that what I believe Marshall was doing was imploring his brethren on the court, and they were all brethren at that time, not to render the state in the form of the Constitution and the civil rights laws illegitimate. That in fact what he was doing was calling them out in his language by saying that we have limited the role of the Constitution in such a way that's inexcusable, and that he was demanding that the state take up its appropriate role as protectors of the rights of individuals, but also this concept of equality, and even not measure harm in the same way. Not simply to look at the economic harm that is being caused, but the psychological harm that is being meted out routinely with what the majority court was claiming were incidental incidents, or incidental inconveniences. And so, in a sense, it is ironic that there are so many people now who feel like the state is illegitimate. But I would argue that it doesn't have to be, and that's what Marshall is telling us today.

Chad: [screen focuses on Chad Williams]
Now Dan, if you wanted to jump in on that. But if not, I actually have a question for you [screen returns to grid view] and building on this point about illegitimacy of the state specifically related to the police.

So you described the police, and I believe I'm quoting here, "an absolute system of White power." Which is, I think, correct, but very striking, and in some ways gets to the heart of our current calls, the current calls that we're seeing for defunding the police, a demand that has gained increased resonance over the past few weeks. Of course, this is not new. Activists for decades, including Brandeis' own Angela Davis, have been calling for the defunding if not outright abolition of police departments.

But here we are in 2020. I think there's a lot of confusion, manipulation, around this concept of defunding the police. One of the questions that we received from a Brandeis student, "Is defunding police really an answer? What happens if there are no police? Is there a better achievable goal we can bring forward to stop police violence and still have a force that can focus on protecting and serving communities?" So how do we balance or try and make sense of calls for defunding the police when, as you say, police forces are almost inherently reflective of a history and continued system of White power? Can that be addressed through reform, through defunding, perhaps through abolition altogether? So I'm curious to get your thoughts, and obviously, Professor Hill, Professor Rigueur, feel free to jump in.

Daniel: [screen focuses on Daniel Kryder]
[Muted]...problem, but one thing I would point to is that people can do a bit of online research and find Camden, New Jersey, which has already gone through the process of reorganization of the local police agency that I think advocates are calling for now. It's been done. And defunding I think a lot of people are recognizing maybe a slightly misleading conceptualization of what we're calling for.

But we're really talking about a fundamental reorganization from the ground up of the way that the police interact with the jurisdiction, the community, the actual local people that they're meant to protect. And in the case of Camden, they simply essentially eliminated the organizational structure and personnel of the previous police force because it was seen to be beyond repair. And I think that's quite common, actually, in the case of many American cities. Police was reorganized. One of the guiding themes was to draw police officers from the local community and to kind of really enhance and develop relationships between police officers and the community that they lived in, that they belonged to, and that they understood and really sought to serve as peace officers.

So it's been done, it's not impossible, and it seems to me to be something that we should consider very seriously. And as I say, I think the nature of the next presidential administration will matter a lot in this regard. It turns out that the current chairman of the Democratic Party, Tom Perez, was in the Civil Rights Division under the Obama administration, and he worked very closely on these issues at the time. I think the party is poised to make a real effort to implement a comprehensive program regarding supporting local communities in their efforts to reorganize police in this way. I think we have models for doing it, and I think it's doable.

Leah:[screen focuses on Leah Wright Rigueur]
So I can just jump in quickly just to add one thing on to Dan's, maybe just to give it a little bit of context within the political realm. I think there's this rush to judgment about what defund the police actually means.

So there is a misunderstanding of defund the police as abolish the police. So we oftentimes hear a lot of language about defund the police, oh my gosh, there'll be chaos, there'll be anarchy. What about murders and what about rape and things like that? And I think one of the things behind that is that there is, we have been so conditioned to think about police as authority figures and the police force as an authority but also without accountability. And so part of what this work that people have been doing now for decades -- and we should really be looking to the people who have been doing this work in police reform, reimagining the police -- is saying the things that we talk about in terms of reform have not worked.

I think Dan mentioned a couple of stats during his presentation, but when we think about some of the reforms that have been tossed out recently in this conversation, I believe the number is about 80% of them, 80% of police departments have already instituted those reforms. So it's actually, we're now in the midst of a moment where it is time to try something different and where a number of communities and organizations are actually in the process of trying this. So the idea that this is chaos, that this is anarchy, that this is disregard for the rule of law or whatever you wanna call it is actually not factual. So it actually encourages us to think, part of what having conversations like this is doing is encouraging us to think creatively and imaginatively and expansively about the work that people are already doing on the ground.

Anita:[screen focuses on Anita Hill]
And the only thing that I would add is that there have been efforts, different kinds of efforts to reform the police department. And in terms of diversity and inclusion efforts, those have met with massive resistance from police departments and in some cases police unions.

And so the way that the law has been interpreted even by the Supreme Court has not assisted in that reformation, just changing and having more or better, more diverse participation in the police force. Women, people of color have been barred from employment and I think that has limited police reform. And the question that the reform movement will ultimately have to face, I believe, will be some legal challenges to the reform that is going to be proposed. And we don't know even what those reforms are gonna look like exactly, but I would suggest that there will be legal challenges and that you're gonna run into some of the same kind of objections that we've had to different hiring protections and provisions among police departments.

So I just say, again, -- and I don't wanna give a pitch for the court - what I'm going to say, though, is that we will need the court, and what we will need is for the courts to be ruling in ways that I believe are more consistent with the constitutional protections and the intent of the legal protections that are in place. And I'm not sure we're gonna get that, unfortunately, with the current makeup of the Court, which then gets us into this political matter. How do we change that?

Chad:;[screen focuses on Chad Williams]
So, Leah, I wanted to turn to you and your work especially focusing on the late 1960s, the development of modern day conservatism, [screen returns to grid view] really coming out of another moment of racial unrest in the way 1960s, specifically 1968. A moment when a lot of ideas were being proposed for addressing the same type of problems that we're grappling with today. So I'm wondering just from a historical perspective and thinking towards what type of lessons we can learn, how can we begin to imagine moving forward, how do you kind of look at that moment, what came after that moment, that we could perhaps apply to the moment that we're in today?

Leah:[screen focuses on Leah Wright Rigueur]
Sure, and so I think I'll cushion this by saying that there've been a lot of impulses to say, oh, we're in 1968 again and experiencing all of that. And I would push back on that a little bit and say that there are some things that are going on that are very different from 1968, including the fact that we are engaged in a really multi-racial kind of protest movement and a sustained protest movement that has essentially had a number of changes in a very short amount of time. But one thing that I will say about the 1960s period is that a number of different institutions, organizations, politicians, really do try and come together and come up with a solution.

And so I wrote an article, if anybody is interested, called "The History and Progress of Black Citizenship in America." And one of the things that we found is in fact that in '68 there are all of these commissions and things put together that actually do put together comprehensive solutions for addressing the underlying conditions of racial rebellions, protests, Black protest movements. It is a moment where there is the possibility of transformative change. Perhaps the one that we think about the most is the Kerner Commission and the 700-page-plus document plus solutions to the nation's, what they call, the problem of systemic White supremacy and discrimination, which underlies the conditions of the urban riots and rebellions and uprisings.

What is interesting to me is that all of the suggestions that this organization put together and solutions, the only ones that are really implemented are increasing the scope and power of the police in communities. So they actually give more money. And then the other one is increasing the scope and power of the FBI, the Federal Bureau of Investigation. So all of these other things about influx of capitalism into affected areas, segregation in schooling, the problems with underemployment and unemployment, and I could go on and on, none of those are put into place.

The one thing that we do see come out of this is the 1968 Civil Rights Act, which is actually transformative, particularly when we think about fair housing. And then the subsequent amendments that come along with it that prevent the discrimination or racism in the sale or rental of housing. But that 1968 Civil Rights Act also includes a civil disobedience provision, which essentially makes it a crime to cross state lines to incite violence. And we actually see a number of people that are prosecuted under that civil disobedience amendment, or Title X, of the 1968 Civil Rights Act.

So while there is this understanding, while there finally is an understanding, a comprehensive presidential taskforce gives us an understanding of what the root cause of inequality in America is, there was a real reluctance to actually deal with it and institute the kind of reforms even in progressive legislation. And so what I think it does is it opens up the possibility, we have the possibility, but we also see what the consequences are when we continue to ignore it.

And so the last thing I'll say is that as you look at 1968 and you look at, say, 1992, and the kind of records that come out, commissions that come out of the 1992 Los Angeles riots, even though some of the conditions might be slightly different, it's like reading from the same book, essentially. Different chapters of the same book. Because the conditions are still there, the conditions are still the same, and the people on the ground, their grievances are the same 30 years later. So there's a way in which we continue to simply ignore the actual steps that are necessary to fix or begin to even address the problem.

Chad: [screen switches to grid view]
Professor Hill, Professor Kryder, if you want to add something?

Anita:[screen focuses on Anita Hill]
Yeah, I like this idea of a comprehensive approach to reform that goes beyond what we're going to be proposing about the change in policing. But, you know, I also think that we need to be looking at different levers for reform, because there are policy levers that apply at the state and local and federal levels, but there are also system levers. And so I keep going back to us really thinking about the roles that courts will play in the future as we anticipate some reform. We haven't really done much of that. I think we wring our hands and we say, okay, well, look at the court that we have today. The only way that we can change that is we have the right president in office. But then we still can end up 40 years later with the same laws having ongoing effect.

But the way to me, my understanding of the way law actually changes is that we contribute to changing them through a whole series of cases that are brought to the courts. That they aren't simply changed by changing the people who are sitting on the court, but through strategies developed around issues that are brought before the court. I mean, that's how we got the cases in the '60s and early '70s -- some of them, a few of them in the early '70s, although those are starting to fade -- that's how we got changes into legal protection against race discrimination. They were done strategically. They weren't haphazard, they were done strategically. And I think we haven't been as strategic as we might be in the future.

The other thing that I know from legal reform is -- and this is starting to happen -- is coalition building around the rights organizations that are, you know, you've got the Leadership Council on Civil Rights that is a coalition of different organizations, including the NAACP and the National Women's Law Center and the ACLU and any number of legal organizations that are working together. And I think we're going to have to be strategic in that sense too to use all of the resources, because there really is power in terms of numbers. Coalition building also requires a lot of collaboration and, in some cases, some compromises. But if we can figure out what the ultimate goals are at a higher level, I think we can use those kinds of systems to help us. So I think thinking comprehensively is about different social structures, but it also has to be across different legal structures and systems.

Chad:[screen returns to grid view]
Yeah, I think that's a really critical point, especially when we consider that one of the core pillars of the Black Lives Matter movement and the policy agenda that it laid out several years ago was building across movements and developing multiracial strategies. I wanna try and squeeze in a couple more questions, I know we're running short on time, but I wanted to bring this a little bit closer to home. We received a number of questions specifically regarding the existence of racism or White supremacy in academia, in Brandeis specifically. President Ronald Liebowitz recently announced an initiative to address systemic racism at Brandeis. We've seen other universities begin to take some concrete steps. Others have been more content with issuing strongly-worded statements.

So I'm interested to get your thoughts on what role do universities have to play right now. Can we kind of marshal the resources of the university to move this movement forward? Are universities kind of capable of addressing the type of kind of systemic, institutional racism that we've been discussing in this conversation? I have my own thoughts on it, but I'm curious to get your thoughts.

Well, on the broader landscape--

Chad: [overlapping]
So feel free, don't be shy...

Anita:[screen focuses on Anita Hill}
I think a lot of universities in the last few years, in a sense, in terms of power and impact, universities have been marginalized. There's this sort of anti-intellectual movement that says universities are elitists, and to a large extent they are but not in the way that people are saying. And so...any effort made by universities individually as a coalition has to really examine whether they are speaking to the issues of the most vulnerable population. And to build from there, I think to build the legitimacy to then speak to real reforms outside of the university. So that's sort of a thumbnail sketch of what I have to say. I'm sure I could give more details, but that's gotta be the place that we start from.

Chad:[screen returns to grid view]Professor Kryder, Professor Rigueur, you want to jump in--

Leah:[screen focuses on Leah Wright Rigueur]
Well, Professor Williams, I would love to hear your thoughts on this.

Daniel: [off screen]Me too.

Chad:[screen focuses on Chad Williams]
Ah, you're trying to get me in trouble. [screen focuses briefly on Leah Wright Rigueur who laughs, before returning to Chad Williams] Well, first I wanna recognize that there's obviously a long history of Black student struggle within the space of the university. And in the specific case of Brandeis, going back to the 1950s, certainly in the late 1960s, the moment that you were referring to earlier, Professor Rigueur, Black students were instrumental in shaping the development of Black studies programs but also kind of really being at the forefront of radical change.

When we think of the Black Lives Matter movement more specifically, going back to 2014-2015, again, it was students who were really pushing to hold universities accountable. So in some ways everything that universities need to do is already there. Everything has already been laid out for them, it's just a matter of recognizing and acknowledging that history. Listening, as Professor Hill said, to the voices who are the most marginalized -- who have historically been the most marginalized -- and I think reprioritizing, recognizing that universities can't sustain themselves on the same type of logics that have been so institutionalized, especially over the past several years. That universities need to begin to think of themselves as spaces of transformational change, as opposed to kind of perpetuating the status quo.

So that's how I feel about it. [screen returns to grid view]

Leah: [laughing]
So I just wanna jump in --

I'm looking forward to all the emails I'm about to get now.

Leah:[screen focuses on Leah Wright Rigueur, who is grinning]
So I wanna jump in a bit on that and say one of the things that we know about the history of this larger kind of institutional change is that it often comes at moments like this.

So we know that Black students in the ivory tower, that post-desegregation that there's a really a nationwide movement all at the same time, between 1968 and 1971, where they advocate for enormous change, and that it does correlate with urban rebellion, uprisings, things like that that are happening in the rest of the country as essentially White structures of power try and figure out what their role is.

But what I also wanna emphasize is that all too often what happens is that a lot of these institutions make these changes, make the first level of change, and then don't sustain it. So it kind of falls down until the next cycle when there is an uproar, and we see this. And I saw somebody recounting the other day that you can actually track -- and across a lot of industries, not just higher education -- but you can track in newspapers, you can track in corporate America and Wall Street when people got their jobs as it relates to these various uprisings and rebellions and people doing the work, and then it disappeared. So there's no actual sustaining of the mission behind a lot of this. And so this is why I always say check on your Black employees, because your Black employees are not okay. And they're not okay in the environment that they exist, even amongst these kind of really progressive so-called ivory towers.

I love what Anita said about, they may be elite, but not elite in the way that we imagine. But I think there is a lot, particularly in a transformative moment like this where we're at the cusp of doing something different, that schools can do to show their actual commitment to ideas like Black Lives Matter beyond putting out really nice statements and holding a couple of conversations. But actually making real transformative investments that sustain over the long term. So I'm not talking about a couple weeks, a couple months, or even a couple years. I'm talking about a long-term investment that really is about generations and real, real systemic change.

Anita:[screen focuses on Anita Hill]
And can I just add one thing? We are operating in these institutions and in structures that are pretty much the way that were 100 years ago. And I've said this before in rooms at Brandeis, so I'll say it again. We're providing instruction in the same way that they did 100, 200, I don't know how many years ago when it first started, but for a group of people whose lives were pretty well established for them, their careers, their lives, their purposes in lives.

Those were largely White males who were well to do. And that I believe is the model of education that we have been following. And the world has changed, but the structure as the way we deliver information, who we, what we are, how we're trying to shape people's minds in terms of the delivery of that education is roughly the same as it was way back then when these elite schools were established. We haven't really fully examined that. I think the closest that we have come is now in the middle of the pandemic when we're trying to figure out how to actually deliver an education in a different way.

And we have, we say over and over again that things will not ever be the same now that we've witnessed this pandemic and that we've experienced it. But I am sure that all of our effort is put into making them the same, and not in saying how these challenges that have brought out how many people are being left out by the system. Instead of looking at, okay, if they're not gonna be the same, why can't they be different in a way that is more inclusive of those people who've been historically left out, as opposed to let's just get back to normal? Because the normal didn't work for everyone. And I'm not sure, and I think increasingly it is not going to work for more and more people, and we're going to have to think about that.

But right now we're in the middle of a crisis and we have to figure out what we wanna be when we get out of it. And now that the crisis has become multi-levels, we've got to figure it out on a whole bunch of different levels. And so I think it's a real challenge. And I question whether, and this institution or any number of the institutions that I read about in Chronicle of Education, whether we're really prepared to do that.

Daniel:[screen returns to grid view]
If I could just build on that, I couldn't agree more. [screen focuses on Daniel Kryder] And universities are inherently archaic institutions. I agree with Anita that our teaching practices are archaic. One could also say that our disciplinary knowledge is quite archaic.

And one thing I think we need to do is actually confront the nature of our so-called disciplines and the role that White power has played historically in the construction of that disciplinary knowledge. And to take political science as an example, it was founded in the late 19th century, more than 100 years ago, at a moment of really important developments in the reconstitution of White power in American politics. So part of it is the actual intellectual content of the canon that we are kind of basing our instruction and our mentoring on. I think that has to be part of the next step in terms of what Brandeis does going forward.

I have to say that I was part of a kind of departmental response to the occupation-Ford Hall protests some years ago, 2014, I guess, and we didn't do enough. There wasn't enough institutional entrenchment of change agents. And so I'm very much in favor of Brandeis using this moment to rethink intellectual content of departmental instruction, the delivery modes, the actual instructional techniques and so on. But we are a community and not just of faculty, but of staff and administrators, and most importantly of students, students have to be part of this process in a more important way as well.

So I couldn't agree more with how important this moment is for us as our own community to really confront these issues systematically and make real changes that lasts.

Chad:[screen returns to grid view]
Yeah, absolutely. We are certainly in a state of crisis. But as someone who studies W.E.B. Du Bois who was editor of the NAACP's newsmagazine The Crisis, the crisis has always existed. When we think about the Black experience in this country, there's always been a state of crisis. And I think our challenge now is to step up and use this moment of crisis also as a moment of opportunity.

I wanna end this really rich conversation and thank you, Professor Kryder. Thank you, Professor Hill. Thank you, Professor Rigueur, for your knowledge, your commitment, your expertise. Thank you, everyone, for tuning in.

I wanna end with James Baldwin again and the conversation that he had with the teachers in 1963. He said, and I'm quoting, "The obligation of anyone who thinks of himself as responsible is to examine society and to try to change it and to fight it at no matter what risk. This is the only hope society has. This is the only way societies change." So I hope that we leave this conversation that you will step in to the next conversations that you have with a sense of responsibility, with a sense of commitment, and a willingness to take risks to change society, because we are truly at an inflection moment in this country's history that we can't shy away from.

So again, thank you everyone for logging in, and continue to do the work.

Thank you, Chad.

Thank you.

Thanks, Chad.