Trump memo on civil rights, DEI executive order undermine 60 years of progress
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Kristen Clarke reflects on DOJ's progress reforming police
Kristen Clarke, the first Black woman to serve as Assistant Attorney General for Civil Rights, discusses police reform and stopping hate crimes.
An executive order issued by President Lyndon Johnson in 1965 required the federal government to follow the letter and spirit of the 1964 Civil Rights Act.
President Donald Trump's reversal of that order is a stunning blow to America's 60-year fight against discrimination.
A Trump Administration memo issued last month, immediately freezing all U.S. Department of Justice's Civil Rights Division litigation, and an executive order halting any federal initiatives involving diversity, equity and inclusion, are just as disturbing.
But legal assaults on established civil rights law have been increasing for a while now, fostered or ignored by both Republican and Democratic politicians.
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The ghost of Roger Taney
For the past few years, I've been concerned that civil rights cases are being derailed by the menacing ghost of Roger B. Taney, the former U.S. Supreme Court chief justice who wrote what many legal scholars, judges and lawyers regard as the worst decision the high court has ever made: Scott v. Sandford, better known as the Dred Scott decision.
This 1857 decision, written for the majority of the court by Taney (who pronounced his name as 'tawny') remains a stain on American jurisprudence because it so perfectly articulated what racism has meant in our nation, and it made Taney the perfect example of a rogue judge. 'The black man has no rights that the white man is bound to respect,' Taney wrote, as he pronounced the fate of Dred Scott — an enslaved Black man who fought for his legal freedom in court for more than a decade.
Taney's outrageous viewpoint, along with the weak reasoning of his legal opinion, provoked a fierce national debate at the time it was written — and brought the U.S. closer to civil war, which broke out only four years afterward. As a lawyer who defends the rights of people who face unfair treatment on the job and elsewhere, I see a 21st century version of the Taney doctrine taking shape in judges' decisions and jury verdicts across the nation.
If judges don't fight the trend, there is a danger that Taney's ghost will represent America's official stance toward people of color in this century.
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Shameless
In my own law practice, which is national but based in metro Detroit, I've seen judges and juries suppress the lawsuits of workers who've suffered racial or sexual discrimination on the job.
One of my clients, DeSheila C. Howlett, worked as the first and only Black police officer for the City of Warren before we sued the city for employment discrimination in 2017. A federal jury finally found in her favor in May 2023, awarding her more than a half-million dollars — largely for backpay. While the legal victory was significant, we appealed the monetary award to reflect the wrongs Howlett endured. We eventually settled with the City of Warren in 2023 for an amount that both sides agreed not to disclose. But Howlett's fight for financial justice was a draining experience.
In two legal cases involving education in Detroit suburbs, I documented examples of blatant disregard for the rights of Black students — where 'no rights, no respect' attitudes were clearly evident.
I represented a Farmington Hills High School student whose high school teacher called him the N-word in a classroom in 2019, with other students present. But in a December 2022 ruling, a federal judge determined that the teacher's action was not 'sufficiently severe or pervasive to alter the conditions of [the student's] education and create an abusive educational environment.'
In other words, a white teacher calling a Black student a word that the world recognizes as patently racist wasn't abusive at all.
Similar disrespect was evident when I filed a class-action lawsuit in November 2021 against Bloomfield Hills High School for failing to address an environment where hate and death-threat messages and shocking acts of animosity against Black students abounded, including frequent use of the N-word.
Numerous studies have scientifically documented that institutional racism causes psychological and physical injury to the health of Black students. I asked Enrique Nesbett Jr., a professor at the University of Michigan School of Public Health, to evaluate the Bloomfield Hills situation in 2022.
'Evidence (from cases such as Bloomfield Hills) points to racial discrimination as a clear contributor to racial and ethnic health disparities among African American populations,' including higher death rates, Nesbitt concluded.
This is applicable to adults of color as well.
Legal disrespect for Black Americans extends even to how the law itself is cited by lawyers and judges. According to the Citing Slavery Project, founded and led by Justin Simard, an associate professor of law at Michigan State University, much of American property law is based on slavery cases from the 1800s. The American legal system has unashamedly used slaveholders' claims of property rights in Black people as a basis for the development of property law in this country, and continues to use slave-related cases as legal precedent, pointing to how insensitive our courts are to the suffering of African Americans and the impact of institutional racism. Again: no rights, no respect.
The fight against rogue law
Nevertheless, there are glimmers of hope.
The U.S. Supreme Court ruled in April 2024 on a case similar to DeSheila Howlett's lawsuit against Warren. In that lawsuit, Sgt. Jatonya Muldrow, a Black woman, sued the St. Louis police department for discrimination against her on the basis of her gender, after an involuntary job transfer that involved changes in working hours, overtime opportunities and working attire.
The U.S. District Court for the Eastern District of Missouri and the U.S. Court of Appeals for the Eighth Circuit ruled that Muldrow's job transfer was not a 'materially significant disadvantage' to her. Yet, the extremely conservative U.S. Supreme Court decided 9-0 in Sgt. Muldrow's favor.
The court ruled that the Black female officer was clearly targeted for mistreatment and the harm she suffered did not have to be 'significant,' as the lower courts had mistakenly ruled.
Justice Elena Kagan, writing for the majority, noted that in similar cases, such claims were 'rejected solely because courts rewrote Title VII, compelling workers to make a showing that the statutory text does not require.'
Established law, namely Title VII of the Civil Rights Act of 1964, not political posturing, should be the standard in the relentless fight against discrimination. Anything less constitutes rogue law, which Trump is now trying to establish through his executive orders addressing civil rights.
If Roger Taney had brought a solid interpretation of the Constitution, as written, to the Dred Scott decision, his reckless lurch toward 'no rights' and 'no respect' for Black citizens could have been avoided.
Our judges and elected leaders today should avoid following the rogue example of Taney and stick to the legislative intent of civil rights statutes enacted by our state and federal legislatures.
Leonard Mungo is owner of Mungo & Mungo at Law PLC, which specializes in employment and civil rights law. He is also general counsel for the National Black State Troopers Coalition.
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