Columbia Journal of Race and Law

AREN’T I A WOMAN DESERVING OF JUSTICE? RESTRUCTURING VAWA’S FUNDING STRUCTURE TO CREATE RACIAL AND GENDER EQUITY

2023-06-27T20:29:14+00:00

This Note analyzes the funding priorities of the Violence Against Women Act (VAWA), and how the law’s egregious funding of prosecutors, enforcement agencies, officers, and courts directly impacts Black female survivors of intimate partner violence (IPV). Although VAWA was passed in 1994 to serve as a federal remedy for women subjected to IPV, over 85% of current VAWA’s funding supports law enforcement, prosecutors, and the overall criminal legal system. This directly harms Black women due to this community’s historically negative relationship with the legal system. Additionally, Black women subjected to abuse are also uniquely impacted by VAWA’s emphasis on punitive measures and enforcement due to their overrepresentation amongst IPV survivors. This Note will advance the argument by investigating three grant programs under VAWA.

PRISON LABOR AND THE FAIR LABOR STANDARDS ACT: RESOLVING THE CIRCUIT SPLIT ON WHETHER INCARCERATED WORKERS ARE ENTITLED TO THE FEDERAL MINIMUM WAGE

2023-08-22T15:02:38+00:00

At any given time, around half the incarcerated population in the United States works full-time. A large majority of incarcerated workers are engaged in “prison housework,” doing laundry, working in the kitchen, or providing janitorial services, etc. A smaller portion of individuals work in prison industries to produce goods and services for both government agencies and private corporations. National estimates for the annual value of prison and jail industrial output come to around $2 billion. Despite this, the average wage for incarcerated individuals working in state- owned industries is anywhere between $0.33 to $1.41 per hour.

Mass incarceration and the prison industry have become seamlessly intertwined with America’s racially stratified economy. Wal-Mart, Victoria’s Secret, Boeing, Microsoft, and Starbucks are some of the many major U.S. companies that have partnered with prison industries in the past to profit off of free or underpaid labor. In the absence of clear Supreme Court ruling or guidance from Congress, it remains unclear whether incarcerated workers may be considered “employees” as defined by the Fair Labor Standards Act (“FLSA”) and therefore subject to the federal minimum wage protections. Without any guidance, lower courts have developed a patchwork of conflicting standards and formalistic dichotomies to address the issue of FLSA coverage for incarcerated workers.

This Note analyzes the circuit split on the question of FLSA coverage and provides recommendations on how the Supreme Court should decide the issue. This Note goes on to advance a new “but-for” test for courts to adopt when deciding which kinds of incarcerated workers should be covered by the FLSA.

Reconstruction's Lessons

2023-05-30T17:50:45+00:00

In the current moment in the legal struggle for racial equality in the United States, the nation seems at risk of repeating its history. The Roberts Court has failed to fulfill its charge under the Reconstruction amendments to vigorously promote and enforce civil rights protections, and the other branches of government have proved ineffectual or unwilling to step into the breach. The racist far right is rising and the national electorate appears unable to organize in favor of racial justice priorities. In recognition of these partial analogies between conditions then and now, this Article mines the history of Reconstruction and its aftermath for lessons pertinent to the racial justice struggle today. It asks what lessons racial justice activists and legal scholars might glean from that history to help them grow their tally of gains and shrink their tally of losses despite today’s less than ideal legal and political conditions. What the history of Reconstruction teaches is that legal prescription and doctrinal manipulation alone will not bring about greater racial equality; having learned that lesson from Reconstruction’s history, today’s racial justice activists and scholars should direct their efforts towards exploring what new approaches might be effective despite today’s less than optimal legal and political conditions.

Black Boarding Academies as a Prudential Reparation

2023-05-30T18:03:18+00:00

With billions of dollars pledged and trillions of dollars demanded to redress slavery and Jim Crow (“Black Reparations”) the question of how best to use these funds has moved into the forefront of the ongoing campaign for racial justice in our post-civil rights society. Reparatory strategies typically target the norms and structures that sustain racial disadvantage wrought by slavery and Jim Crow. The goal of such transitional reparations is to extinguish the menace of white supremacy and systemic racism across the board. Restructuring in housing, education, employment, voting, law enforcement, health care, and the environment—social transformation—is absolutely needed in the United States if the race problem is ever to be resolved. That much is clear beyond peradventure. The hard question, however, is whether Black Reparations can take us there. Are Black Reparations (or reparations in general) powerful enough to engineer social transformation, or what in this case would be “transitional racial justice”? Unfortunately, I do not believe they can. The American race problem is simply too big for reparations to fix. It would take decades of massive amounts of government spending and the sustained moral commitment of the American people to achieve transitional racial justice in this country. The inflationary impact of the requisite spending (estimated at $6.4 trillion to $59.2 trillion) would give opponents of reparations an easy target. Moreover, transitional reparations have rarely been attempted in other countries and when tried it has never succeeded to my knowledge. South Africa attempted to use reparations for social transformation. While there has been a transformation of political power, giving Black South Africans a strong voice in the government, economic power remains in the hands of White South Africans and racial discrimination in housing and education continues. Although at one time I was among scholars who had hoped Black Reparations could deliver a much-needed Third Reconstruction, I would be remiss as a passionate supporter of Black Reparations for many decades to ignore the cold facts—reparations have never successfully reconstructed a society.

But the perfect should not be the enemy of the good. While Black Reparations may not be sufficient for transitional racial justice, they can still play an important role in moving toward that goal. This Article attempts to show one way of doing so. It argues that the initial payment of Black Reparations should take the shape of an education reparation. Education can, as it has in the past with Brown v. Board of Education, provide a foundation for significant racial progress. The type of education reparation broached in this Article gives African American (or Black American) parents or guardians a unique choice for educating their children—Black Boarding Academies (BBAs). Kick started with public reparations, BBAs would begin with PK-3 low-income Black children, giving special attention to those at risk of falling into the dreadful foster care system, and would expand to accommodate other classes of Black students once financially stable with post-reparations funding. Like most public boarding schools, BBAs will have to be sustained with both public and private funds. Fortunately, there is a wide range of available sources. Historically, boarding schools have a poor reputation in educating children of color, especially Indigenous Americans. The few primary and secondary schools that board Black students have not experienced such problems. Neither have Historically Black Colleges and Universities (HBCUs) at the postsecondary education level. Following in this rich tradition, BBAs will provide a safe and nurturing environment for Black students. Pedagogically, BBAs will prepare students not just to survive but to thrive. Students will be prepared to assume positions of leadership in our society whether they go directly into the job market or matriculate at HBCUs or predominantly white institutions. One of the most effective instructional models in the country for leadership-oriented teaching can be found in elite New England Prep Schools. They have been doing this for centuries. Using a modified version of their pedagogy—one self-consciously infused with a racial sensibility—BBAs will be able to extend the pipeline to leadership, normally available to upper-income and even middle-income African American students, to low-income African American students. Indeed, the latter are the most vulnerable descendants of the enslaved.