By Tony Thompson, Professor of Clinical Law, NYU School of Law
This moment that we find ourselves in as a nation, as a people, and as a profession is the natural consequence of ignoring racial bias for generations. As I get older and advance toward the end of my career, I recognize that my mentor, friend, and colleague Professor Derrick Bell had it right: There is a permanence to American racism. It is engrained in the very fiber of our nation. America was founded on the mythology of white supremacy and Black inferiority.
In every ensuing generation, this nation has chosen to cling to that lie and to belie its intergenerational effects because far too many benefitted from that framing. Being complicit was just easier than facing the hard truth of allowing that racist lie to persist.
But the deaths of George Floyd, Breonna Taylor and Ahmaud Arbery changed that. The sheer brutality of Derek Chauvin as he pressed his knee on George Floyd’s neck forced a moment of reflection on America’s collective conscience. Those callous moments tore the blindfold off of the fiction that justice is blind. Many in this country and around the world watched those 8 minutes and 46 seconds of the torture and murder of an unarmed Black man over and over again. What we saw was all too familiar to Black Americans. That violence was an extreme example of life in America for Black Americans. But it was just the tip of an iceberg of the racism that has become common, accepted and routinized in this country.
We sit back as white Americans weaponize 911 to patrol and enforce perceived racial boundaries. We accept as normal a relative absence of Black Americans in our state and federal legislatures, business leadership, and personal and social circles. We tolerate the racial differential in infection and death rates from COVID-19 as acceptable losses. Turning a blind eye to racism and racialized effects has become reflexive.
But this moment demands an unprecedented change in what we accept, encourage and tolerate with regard to racism in America. This is not the time for a comfortable, academic conversation about “diversity and inclusion.” It is, instead, time to do something that we too often look to avoid: we must fundamentally reckon with racism and its continued presence in our society. This reckoning is long overdue, but if we expect the principles of justice, democracy, equity which we hold so dear to do more than ring hollow, we need to take this moment seriously. America is faced with a choice today. That choice will affect the direction of our nation and our profession. A momentum has built up propelling us toward racial equity and racial justice. We cannot afford to turn back.
As we look to make meaning in this moment of upheaval, make no mistake. This is not only about the sudden deaths of Black people in America, but it is also about the slower, less visible effects of the daily microaggressions that Black people experience and endure. The openly racist comments and the less explicit dog whistles combine to make the experience of America more dangerous and more volatile for Black folks. When we add the economic chokehold that results from the countless ways that this country cuts off avenues of prosperity, economic opportunity, education opportunity, and social interaction for Black Americans, we begin to see the pervasive and corrosive effects of racism run rampant.
So, what does leadership look like in this moment of racial reckoning in America? It must mean more than what we have routinely seen as the standard response: everyone and every institution rushes to issue an anti-racism statement and then pledges a contribution to a civil rights organization. That will not be enough in this moment. Leadership begins with acknowledging both our history and our present experiences with race and racism. We must accept our part in the national reality that we have created two nations: one with access to all that America has to offer and one without that access.
Leadership means looking internally at our own institutions, workplaces, and social circles and no longer accepting circumstances that exclude Black people no matter the rationale or reasoning. In law schools, law firms, and businesses across the country we have tolerated such low numbers of African Americans in these spaces for so long that we have become inured to their absence. Single digits of Black students and Black faculty in law schools seems to somehow fit in the natural order of things. But there is nothing natural about this.
My law students rightfully ask me about the lack of African American law students, law faculty, law school Deans, law firm partners, prosecutors, defenders, judges and others in our profession. They astutely observe that some of their classes, particularly their first-year classes, make no reference of race and they ask why. They ask critical questions about the reasons that we developed doctrines such as qualified immunity for police officers who murder unarmed Black men and women and other legal protections for racist conduct that has led to the unequal treatment of African Americans. What I tell them is that, notwithstanding what some typically insist, the American legal system, the analysis of American legal doctrine, and the teaching of legal reasoning cannot take place without fully grappling with the role of race and history. The notion that the law can be taught in some sort of non-racial, theoretical vacuum is fundamentally flawed.
We, as teachers, and they, as students, have an affirmative obligation to continue to think deeply about the law, its toxic foundations and its continuing inequities. Racial bias is not some static, historical phenomenon that happened once upon a time during slavery and then reappeared momentarily before the civil rights movement in the 1960s. Racism is part of our day to day existence. And even though law professors — and lawyers more generally — are loathe to be uncomfortable in a room, we must get comfortable being uncomfortable if we expect to make this moment count.
Leadership means at its core that, going forward, we will not accept microagressions, implicit bias, disparate treatment, or all-white environments under any circumstances. Instead, we commit to questioning and challenging those systems, structures and professional and social situations that do not have Black people at the table. Moreover, leadership in this moment means that we agree to take it upon ourselves to learn about African Americans and the communities and circumstances in which they live. Black people have always needed to know about White America – its history, its norms, its culture – to survive. But the reverse has not been true. It is time that we change that – to be race-conscious and to change the nature of the conversations we have so that we can begin to change the experiences in this country. Perhaps then we can become one nation instead of two.