An Artistic Expression of Critical Race Theory

By: Stephanie Turcios

A picture is truly worth a thousand words. Many of us have seen Jonathan Harris’ painting entitled Critical Race Theory (see the artwork here on Mr. Harris’ website) while scrolling on social media this year. The image is sending shock waves through the art world and is impressing the importance of Black history upon the global consciousness. While it often takes legal scholars pages of rhetoric to explain, Harris has captured the significance of Critical Race Theory (CRT) in a single painting. The image depicts a blond person painting over prominent Black American leaders – Martin Luther King Jr., Harriet Tubman, and Malcolm X with white paint. 

Salient to Black History Month, Harris’ work depicts the danger of whitewashing history. Harris, like many black people in the U.S., assumed that Harriet Tubman was a well-known historical figure. However, during one of his shows at the Irwin House Gallery, a white woman noted that the painting was “a powerful piece” but asked why Harris chose to include Aunt Jemima with Malcolm X and Martin Luther King Jr. It was a serious question and an eye-opener to Harris. He questioned that if this woman doesn’t know who Harriet Tubman is, does she really understand the history of slavery and oppression that Harriet Tubman fought against. 

Further, when asked why he painted Critical Race Theory, Harris told Artnet News that “Black people [are] questioning if our history [is] in jeopardy …[w]e only know what we are taught. My mind went to, ‘how far can this actually go?” His inquiry is in response to the recent backlash against CRT as an academic discipline. Since January 2021, 37 states, including Washington, have proposed legislation to restrict or outright ban teaching CRT in public schools. Harris further opined that “[i]f we don’t push back as these bills are getting passed, this painting could be the future.” To many black people, erasing our history threatens the understanding of our experiences in this country. Our history explains the issues of today and is critical to undoing the harm that persists. 

But what is critical race theory? 

Earlier this year, the American Bar Association published an article by Janel George, a professor at Georgetown University Law Center, explaining CRT. CRT emerged as a subdiscipline of Critical Legal Studies (CLS) in the 1970s. CLS theorists departed from the traditional understanding that the law was a neutral force devoid of political or social considerations and instead posited that law was neither objective nor apolitical. Likewise, CRT theorists agree that the law is neither objective nor politically or socially neutral and that our legal system is instrumental in furthering racial inequality. 

Founding theorists such as Derrick Bell, Kimberlé Crenshaw, Cheryl Harris, and many others ultimately reject the theory of color-blindness, the idea that racism stems from “a few bad apples,” and instead raise structural questions as to why racism persists despite decades of reform efforts. Professor Crenshaw notes that CRT is not a noun but a verb because it is an evolving theory that recognizes that race is a socially constructed concept that is structurally and systematically embedded in many of our institutions, including our legal system. CRT argues that systemic racism perpetuates racial inequality, evidenced by the lived experiences of people of color and other marginalized identities. 

Conversely, opponents of CRT characterize the discipline as divisive. Christopher F. Rufo, an activist against CRT, argues that the discipline is nothing more than a reframing of identity-based Marxism that spreads anti-American ideology. Rufo, and opponents like him, fear that CRT will destabilize our institutions, which they see as “neutral, technocratic, and oriented towards broadly-held perceptions of the public good.” But is this a fair characterization of the theory? Is CRT teaching children to hate their country, or is it challenging us to think about the institutions that have perpetuated harm to people for centuries? 

Why CRT matters. 

The discipline of CRT does not share in the notion that destabilizing the law will stop racial injustice. As Professor George notes, CRT recognizes that although the legal system has historically been used to deepen racial inequality, it also has significant potential to help secure racial equality. We must shift our focus from reform of our institutions to examining the root causes of racial disparity and dismantling those causes through structural change.  

In the New York Times, Mari Matsuda, a CRT founder and law professor at the University of Hawaii, explains the significance of the theory as follows: “I see it like global warming…[w]e have a serious problem that requires big, structural changes; otherwise, we are dooming future generations to catastrophe. Our inability to think structurally, with a sense of mutual care, is dooming us — whether the problem is racism, or climate disaster, or world peace.”

The beauty of art. 

We live in a time where people are quick to speak and slow to listen, where nuances in arguments are lost, and the “all or nothing” mentality prevails. But the beauty of art is that in order to appreciate it, you must sit and reflect on it. You must pause, take a moment, and ask yourself: is Harris’ depiction of our future what we really want?

Lawmakers Set Their Sights on Restricting Targeted Advertising

By: Laura Ames

Anyone who spends time online has encountered “surveillance advertising.” You enter something into your search engine, and immediately encounter ads for related products on other sites. Targeted advertising shows individual consumers certain ads based on inferences drawn from their interests, demographics, or other characteristics. This notion itself might not seem particularly harmful, but these data are accrued by tracking users’ activities online. Ad tech companies identify the internet-connected devices that consumers use to search, make purchases, use social media, watch videos, and otherwise interact with the digital world. Such companies then compile these data into user profiles, match the profiles with ads, and then place the ads where consumers will view them. In addition to basic privacy concerns, the Consumer Federation of America (CFA) points to the potential for companies to hide personalized pricing from consumers or to promote unhealthy products and perpetuate fraud. Perhaps the largest concern is that the large stores of personal data that these companies maintain put consumers at risk of having their privacy invaded, identity theft, and malicious tracking.   

In response to these concerns, Democratic lawmakers unveiled the Banning Surveillance Advertising Act (BSSA) in an attempt to restrict the practice and under a general consensus that surveillance advertising is a threat to individual users as well as society at large. This move prompted opponents to argue that the BSSA is overly broad and will harm users, small businesses, and large tech companies alike.

What Does the BSSA Do? 

The BSSA is sponsored by Senator Cory Booker and Representatives Jan Schakowsky and Anna Eshoo. The bill bars digital advertisers from targeting their ads to users and also prohibits advertisers from targeting ads based on protected information like race, gender, religion, or other personal data purchased from data brokers. According to Senator Booker, surveillance advertising is “a predatory and invasive practice,” and the resulting hoarding of data not only “abuses privacy, but also drives the spread of misinformation, domestic extremism, racial division, and violence.”

The BSSA is broad, but it does provide several exceptions. Notably, it allows location-based targeting and context advertising, which occurs when companies match ads to the content of a particular site. The bill suggests delegating power to the FCC and state attorneys general to enforce violations. It also allows private citizens to bring civil actions against companies that violate the ban with monetary penalties up to $1,000 for negligent violations and up to $5,000 for “reckless, knowing, willful, or intentional” violations. The BSSA has support from many public organizations and a number of professors and academicians. Among several tech companies supporting the BSSA is the privacy-focused search engine DuckDuckGo. Its CEO, Gabriel Weinberg, opined that targeted ads are “dangerous to society” and pointed to DuckDuckGo as evidence that “you can run a successful and profitable ad-based business without building profiles on people.” 

The BSSA as Part of a Larger Legislative Agenda 

The BSSA is just one bill among a number of pieces of legislation aiming to restrict the power of large tech companies. Lawmakers have grown increasingly focused on bills regulating social media companies since Facebook whistleblower Frances Haugen testified before Congress in 2021. These bills target a wide variety of topics including antitrust, privacy, child protection, misinformation, and cryptocurrency regulation. Most of these bills appear to be rather long shots, however, because although the Biden administration supports tech industry reform, so many other issues are high priorities for it. Despite this hurdle, lawmakers are currently making a concerted push with these tech bills because the legislature’s attention will soon turn to the 2022 midterms. Additionally, Democrats, who have broader support for tech regulations, worry they could lose control of Congress. Senator Amy Klobuchar argued that once fall comes, “it will be very difficult to get things done because everything is about the election.” 

Tech and Marketing Companies Push Back

In general, tech companies tend to argue that targeted advertising benefits consumers and businesses alike. First, companies argue that this method allows users to see ads that are directly relevant to their needs or interests. Experts rebut this theory with the fact that in order to provide these relevant ads, tech companies must collect and store a great deal of data on users, which can put that data at risk of interference by third parties. Companies also argue that this legislation would drastically change their business models. Marketing and global media platform The Drum predicted that the BSSA “could have a massive impact on the ad industry as well as harm small businesses.” The Interactive Advertising Bureau (IAB), which includes over 700 brands, agencies, media firms, and tech companies, issued a statement strongly condemning the BSSA.  IAB CEO David Cohen argued that the BSSA would “effectively eliminate internet advertising… jeopardizing an estimated 17 million jobs primarily at small- and medium-sized businesses.” The IAB and others argue that targeted advertising is a cost-effective way to precisely advertise to particular users. However, the CFA points to evidence that contextual advertising, which is allowed under the BSSA, is more cost-effective for advertisers and provides greater revenue for publishers. 

Likelihood of the BSSA’s Success

In the past several years, there has been growing bipartisan support for bills addressing the increasing power of tech companies. This support would seem to suggest that these pieces of tech legislation have a better chance of advancing than other more controversial legislation. However, even with this broader support, dozens of bills addressing tech industry power have failed recently, leaving America behind a number of other countries in this area. One of the major problems impeding bipartisan progress is that while both parties tend to agree that Congress needs to address the tremendous power that tech companies have, they do not align on the methods the government should use to address the problem. For example, Democrats have called for measures that would compel companies to remove misinformation and other harmful content while Republicans are largely concerned with laws barring companies from censoring or removing content. According to Rebecca Allensworth, a professor at Vanderbilt Law School, the larger issue is that ultimately, “regulation is regulation, so you will have a hard time bringing a lot of Republicans on board for a bill viewed as a heavy-handed aggressive takedown of Big Tech.” Given Congress’ recent track record in moving major pieces of legislation, and powerful opposition from the ad tech industry, the BSSA might be abandoned along with other recent technology legislation.  

Taming the Gerry-Mander: How Technology Can Keep Gerrymandering in Check

181213-004-84DEAB79By Joshua Oh

A politician’s dream is to be re-elected over and over with minimal effort, so where might one look to ensure this? The answer, perhaps, is gerrymandering. Gerrymandering was coined after Massachusetts Governor Elbridge Gerry enacted a law in 1812 to redraw legislative districts to benefit his party, which resulted in one of the redrawn districts resembling a salamander—thus the term “gerrymandering.” In fact, it has been gaining a notorious reputation for its widespread use based on its potentially unfair effects on election results. However, the Supreme Court will soon rule on a case, Gill v. Whitford, that will heavily influence future American elections.

Gerrymandering is without a doubt toxic to American democracy. It allows politicians to choose their voters by “packing”—concentrating one party’s supporters in one district to win overwhelmingly. On the other hand, “cracking” splits up supporters of the opposing party into multiple districts in order to dilute their impact, preventing opponents from securing a majority vote. This essentially means that elections are predetermined and one person’s vote is not necessarily equal to someone else’s vote, which could contravene the Equal Protection Clause of the Constitution.

The Supreme Court has always been reluctant to intervene in partisan areas meant for the political branches of government to debate. Thus, a standard or definition of political fairness in the gerrymandering context had never been set. Gill v. Whitford, an extreme example of partisan gerrymandering in Wisconsin, may soon change that. In 2012, Republican elected officials in Wisconsin were able to draw up a districting plan that permitted their party to win 61% of the Wisconsin Assembly, even though they only received 48.6% of the vote. In 2014, they won 64% of the Wisconsin Assembly, despite receiving only 52% of the vote.

The issue in the Whitford case was whether partisan redistricting could be so extreme as to be unconstitutional. The argument goes that Republican efforts to redistrict caused the dilution of Democratic votes, leading to a non-representative government. By packing and cracking districts, the votes of individual Democrats meant less than those of individual Republicans. The nation’s highest court will soon decide whether these arguments are persuasive.

In ruling on the constitutionality of a given redistricting effort, the Supreme Court could receive valuable assistance from recent technological advances that are equipped to detect gerrymandering. Indeed, algorithms are the latest threat to gerrymandering, as computers can now determine whether districts were drawn with political motivations in mind. Down the road, these algorithms could be used in a court of law in order to challenge unconstitutional gerrymandering. Since courts are demanding that districts be drawn more fairly, these algorithms could be the solution in providing the citizenry a fair and representative democracy that it deserves.

Professor Wendy Cho with the National Center for Supercomputing Applications at the University of Illinois is attempting to create such an algorithm to measure whether political parties manipulated a map to gain an unfair advantage, a term described as a “gerrymandering ruler.” This algorithm would identify the criteria—some even required by law—of redistricting: population equity, contiguity, compactness, and traditional districting principles. Based on these criteria, the algorithm would generate billions of maps that are, by definition, nonpartisan maps, since no political information was considered. These artificial, nonpartisan re-districted maps could then be compared to the districts that had been created by politicians. If the real map does not look like any of the billion possibilities generated by the algorithm, that would provide strong evidence of partisanship motivating the alleged gerrymandering. On the other hand, if the algorithm generated a set of one billion maps with partisan information considered, and the map in question looked similar to any of those billion possibilities, a court could then also infer partisan motivation.

This algorithm is but one possible solution to the toxicity that gerrymandering brings into the election system. It may be beneficial for the courts to be more receptive to technological advances like this one that can better detect and prove partisan bias in gerrymandering. Such extraordinary technology could encourage lawyers to introduce algorithmic evidence into a court of law, allowing the court to better assess cases before them in an objective manner as partisan gerrymandering continues to be a problem in American politics. It can also be a useful way to objectively give a voice to those who have felt that their votes did not matter when their district was always won by a particular party. It would no doubt advance the “one person, one vote” principle that the Constitution demands.

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Let’s Fight Nazis

Picture1By Jessy R. Nations

Dear Internet, I hope you’re happy. Just look what you did. You went and made Nazis again. Seriously, what were you thinking? It’s 2017 for crying out loud. I thought we all decided Nazis were bad like 50 years ago. But no, you just had to keep pushing that envelope. Now we have to do this for the next few years.

Under the guise of “free speech,” open racism and white supremacy have been on the rise. Whether they call themselves “Identarians,” “racial realists,” or the “Alt-Right,” these groups are everywhere. They’ve cleaned up their image and streamlined their rhetoric, but their core principle is the same: White people are better than everyone else, and are under attack from all the various minorities who should be removed by any means necessary. And it’s far more than just talk these days. To make matters worse, they’re recruiting. I vaguely recall a time when being openly racist would make you a social pariah. Now this behavior can land you a book deal, get you invited to talk shows, and give you a tour for you to speak at college campuses where you can threaten trans and immigrant students while your fans shoot protesters. In the interest of combating racism, this blog post offers a brief guide on how to spot these lunatics as well as some thoughts on what the law can do before they starting shooting up schools. Continue reading