Monthly Archives: October 2012

International Human Rights and the United States’ Responsibility

It’s no secret that the United States’ approach to certain international human rights issues has generated controversy.  When Congress ratified the International Covenant on Social and Political Rights, for example, it attached a number of qualifications that the international community viewed as inconsistent with the treaty’s object and purpose.[1]  In light of these and many other controversial decisions, it may appear, at first glance, that the United States has failed to commit itself to the progress of international human rights.  But is this really the case, or does the U.S. government have compelling rationale for its reluctance to submit to certain international norms?

Derek Rajavuori. Junior Editor, Alabama Civil Rights and Civil Liberties Law Review

International human rights law, as we know it today, largely originated after World War II.[2]  Its development and incorporation into the general body of international law represented a paradigm shift in the way states interacted on a global level.[3]  Historically, international law governed in instances in which it was impractical or useless for states to regulate on their own, producing bodies such as international trade law and the law of the sea.  After World War II, however, states began to recognize the need to prevent atrocities of the kind witnessed in Europe and Asia.  For the first time in history, the global community viewed international law as a means by which it could regulate the way states interacted with their citizens.  Gradually, international law began to recognize human rights through various mechanisms.

In 1966, the United Nations presented two treaties for ratification: the International Covenant on Civil and Political Rights (ICCPR), and the International Covenant on Economic, Social, and Cultural Rights (ICESCR).  Initially, the Human Rights Commission planned for the two covenants to be part of one document, viewing them as “interconnected and interdependent.” [4]  Members disagreed widely, however, on the feasibility and necessity of guaranteeing economic and social rights, and the Commission eventually decided to split the treaty into two separate covenants.[5]  The United States ratified the ICCPR with a number of reservations and has yet to ratify the ICESCR.

The U.S. played a significant role in drafting the ICCPR, and the provisions largely fit within the political tradition of the Bill of Rights.[6]  Nevertheless, Congress didn’t ratify the treaty until 1992 – nearly thirty years after it was first presented for ratification.  Aside from a concern held by a select group of Americans regarding the contradiction between discriminatory practices and developing international norms, U.S. officials were concerned about interference with the doctrine of federalism.  Conservatives feared that the treaty would necessarily expand the power of the federal government and undermine state authority to regulate matters traditionally considered local.[7]  Though these concerns eventually gave way to ratification of the treaty, they were still present in full form when the treaty was ratified.  Pursuant to the Vienna Convention’s provision on treaties and their interpretation, the United States qualified its ratification of the ICCPR with a number of reservations and declarations.  Controversially, the Senate also declared that the Articles of the Covenant were not self-executing,[8] essentially rendering them obsolete in domestic courts.

In effect, the Senate’s reservations to the ICCPR fundamentally altered the operation of the Articles to which they pertained.  Not surprisingly, they were met with a great deal of criticism from the international community.  A number of European states objected to the U.S. reservations, and the Human Rights Committee (established by the ICCPR) felt that the reservations undermined the Covenant and its implementation.[9]  It viewed the reservations as essentially incompatible with the purpose of the Covenant and general human rights law.[10]  Despite the controversy, however, the majority of the objecting states indicated that they did not want the United States to be excluded as a party to the Covenant.[11]

The international criticism may have some merit.  How can the United States, a nation that proclaims to be dedicated to human rights and the prevention of government atrocity, refuse to accept a human rights covenant it helped draft?  Moreover, how can the U.S. expect to criticize states’ treatment of their citizens when it has failed to fully incorporate an international human rights treaty into its own body of law?  On the other hand, a closer look at the Articles and their corresponding reservations may provide justification.  For example, the first formal reservation was tied to Article 20 of the Covenant, which prohibits hate speech and propaganda for war.[12]  Given the rich tradition of free speech provided by the First Amendment, the reservation explained that the “United States [could not] accept such an obligation.”[13]  Another Article of the Covenant prohibited the death sentence for persons below eighteen years of age.  Because the Supreme Court had upheld state laws permitting the death penalty for crimes committed by persons sixteen and up, the U.S. found the prohibition unacceptable.[14]

Furthermore, a number of the ICCPR’s provisions regulated matters which were, and still are, considered to be within the boundaries of state law.  Articles governing certain aspects of criminal law and marriage, for example, would necessarily intrude into the states’ police powers if they were given domestic effect.  The federalist structure of the U.S. government is a central concern in many aspects of federal law, and international law should not be an exception.  Because the U.S. government, by ratifying the ICCPR, could be placed on the hook for matters it does not traditionally have the power to regulate, reluctance to accept international scrutiny in the field of human rights is at least somewhat understandable.

The failure to ratify the International Covenant on Economic, Social, and Cultural Rights is also consistent with the traditional notion of rights in the United States.  The guarantees of the ICCPR were at least structurally consistent with the U.S. Bill of Rights – they provided individuals with negative rights, or freedoms from unlawful and unjust action of the state.[15]  The ICESCR, however, sought to provide individuals with rights which a state would need to take positive action to promote.[16]  The United States and a number of other western nations argued that the provisions of the ICESCR, providing guarantees such as employment, fair wages, and paid holidays, were largely infeasible and inconsistent with western traditions.[17]  Accordingly, the United States has yet to ratify the ICESCR.

Despite the reluctance to submit to a number of these international obligations, it would be difficult to argue that the American people have not been committed to the development of human rights.  Public pressures, the political process, and the American judicial system have all led to enormous strides in the guarantees held sacred in our nation.   At the beginning of the 1800’s, slavery was legal and women were denied the right to vote.  Over the next two centuries, the American people worked to abolish slavery and recognize African Americans as equal citizens.  Women won the right to vote and have championed their way into the workforce and political sphere.  And even today, Americans continue to fight, often successfully, for their rights and the rights of  fellow humans.  In short, one could argue that the domestic forum has adequately developed a comprehensive guarantee of certain rights for all Americans.

Given the conflicts between American federalism and certain provisions of human rights treaties, the “correct” approach to international human rights law may not exist.  Protecting state authority and limiting the power of the federal government is certainly a tenable concern.  The ICESCR would also commit the United States to the provision of unprecedented positive rights, some of which are arguably infeasible in light of an enormous budget deficit and hotly contested federal fiscal policies.  And the American people have come a long way in recognizing new and important rights without any help from the international community.

On the other hand, international covenants provide a comprehensive and substantive body of human rights law.  States that ratify treaties such as the ICCPR are technically legally bound, and the Covenant provides an actual standard through which international actors can be accused of violation.  Instead of simply criticizing human rights violations on an individual basis, the Covenant allows the United Nations to point to specific provisions when accusing a state of violation.  Therefore, if the United States fails to fully ratify the treaty, it is difficult for us as a nation to criticize the action of states such as Iraq and the Sudan on a legal basis.

The issue of whether the United States should fully submit to international human rights obligations is more complicated than it appears.  While substantive bodies of international law provide legal ground for criticism of human rights violations, they can also complicate the relationship between the federal government and the states.  Some provisions even directly conflict with American values such as permissive free speech, and the domestic forum has largely been adequate in developing human rights in the United States.  In light of these considerations, the proper approach to international human rights law will likely remain unclear.

[1] Human Rights Committee, General Comment 24, U.N. Doc. A/50/40, Vol. 1, at 119 (1995)

[2]Jeffrey L. Dunoff et al., International Law: Norms, Actors, Process: A Problem-Oriented Approach 403-404  (3rd ed. 2010).


[4]G.A. Res. 543 (VI), U.N. Doc. A/RES/543(VI) (Feb. 1952).

[5] Id.

[6] Dunoff et al., supra note 2, at 436.

[7] Id.

[8] Id. at 440.

[9] Annotations on the Text of the Draft International Covenants on Human Rights, ¶ 9, U.N. Doc. A/2929 at 7 (1955).


[11] Dunoff et al., supra note 2, at 442.

[12] International Covenant on Civil and Political Rights, 999 U.N.T.S. 171 (1966).

[13] Senate Executive Rep. 102-123 (102d Cong. 2d Sess. 1992).

[14] Id.

[15] Annotations on the Text of the Draft International Covenants on Human Rights, ¶ 9, U.N. Doc. A/2929 at 7 (1955)

[16] Id.

[17] Dunoff et al., supra note 2, at 451.

The Story Behind the Case: NAACP v. Alabama

In his article, “Letter to a Law Student Interested in Social Justice,” William Quigley encourages students to think critically about the formation of our laws, particularly the “unstated implications of race, class, and gender.”[1] He also recommends studying the real history of our legal processes to understand how laws came into being; he argues, “learning this history will help you understand how change comes about.”[2] NAACP v. Alabama kicked off an eight-year long struggle between the state and the organization that required four trips to the U.S. Supreme Court and prevented the NAACP from operating in Alabama from 1956 to 1963, key years in the fight for civil rights. Examining the long process through which the NAACP and other lawyers fought segregation pulls back the curtain on history to show the details of the struggle for civil rights, and can provide a roadmap for future activists in their own efforts.

Ellie Campbell, Junior Editor, Alabama Civil Rights and Civil Liberties Law Review

In early 1956, the Alabama attorney general’s office sued the NAACP in retaliation against the state’s African-American community for the Montgomery Bus Boycott and the organization’s participation in the Brown v. Board of Education Supreme Court decision. On December 1, 1955, Rosa Parks was arrested for refusing to give up her seat, an incident that kicked off a long-planned bus boycott in Montgomery.[3] Various African-American community groups had registered complaints with the City Commission about their treatment on the city’s buses as early as 1953.[4] The day Ms. Parks was arrested, the Montgomery Women’s Political Committee called a meeting at the Dexter Avenue Baptist Church, and a boycott was declared.[5] The NAACP was only indirectly involved in the boycott; many of the participants were members, but community leaders formed the Montgomery Improvement Association to oversee the boycott because they believed the white community distrusted the NAACP and would not deal with anyone claiming to be a representative.[6]

The boycott lasted for 382 days; it only ended when the U.S. Supreme Court overruled the city’s segregation ordinance and ordered the desegregation of the city’s bus system on December 17.[7] The white community responded by joining the White Citizens’ Council in droves; snipers fired on buses several times in 1957, and four black churches and several homes were bombed.[8] Alabama’s political leadership had been wary of involvement in the bus boycott and other racial issues; earlier that year, Governor Jim Folsom and Attorney General John Patterson chose to leave those considerations to the city of Montgomery.[9] After Brown v. Board, their white constituency demanded a response.[10] Because he was planning a run for governor in 1958, Attorney General John Patterson proved responsive.[11] He filed suit with the circuit court in Montgomery, seeking an injunction to prevent the NAACP from operating in the state of Alabama.[12]

When Patterson decided that the attorney general’s office needed to become more involved in the fight to uphold segregation, he had his attorneys closely examine the NAACP’s operations in the state.[13] Under Alabama law, “foreign” corporations had to qualify under the state’s corporation law in order to do business in the state, and the statute required that certain documents be filed with the state.[14] The NAACP was incorporated in New York and maintained a regional office in Birmingham, from which it “conducted business” like soliciting members, collecting dues, and managing lawsuits.[15] For Patterson’s purposes, this made the NAACP a “foreign corporation” operating illegally in Alabama.[16]

He filed suit in June of 1956, seeking an injunction to stop the group from operating in Alabama, which was immediately granted by Judge Walter B. Jones, an ardent segregationist.[17] Soon after, he also filed a petition to compel the organization to produce records on its activities, including “charters in Alabama, membership lists, names of persons who had contributed money in the past year, records of property ownership, bank statements, and correspondence dealing with civil rights activities.”[18] The state also accused the organization of organizing and financing the bus boycott and soliciting two black students to attempt to enroll at the University of Alabama.[19] Arthur Shores, the lead attorney representing the NAACP (and one of only five or six African-American attorneys in Alabama at the time) called Patterson’s suit “a fishing expedition.”[20] Judge Jones decided for the state and set a date for the NAACP to file the documents. Of course they did not, and the judge found them in contempt of court and fined them $10,000, to increase to $100,000 if they did not comply in five days.[21]

The NAACP decided to fight the order to produce the membership list, and offered some of the requested documents instead, including a list of names and addresses of the organization’s officers.[22] They were worried that production of their rank-and-file membership list would lead to “economic pressure and personal threats and acts of violence.”[23] Considering the violent responses to the bus boycott, their fears were well founded. Arthur Shores and Fred Grey, two African-American attorneys from Alabama, headed the case with help from Thurgood Marshall and Robert L. Carter from the NAACP’s Legal Defense Fund.[24] Both Grey and Shores would have long careers supporting the civil rights movement through using their legal skills. When the Alabama Supreme Court refused to modify or stay the contempt fine, they filed suit in the United States Supreme Court.[25] On June 30, 1958, the United States Supreme Court ruled:

“the immunity from state scrutiny of membership lists which the Association claims on behalf of its members is here so related to the right of the members to pursue their lawful private interests and to associate freely with others as to come within the protection of the Fourteenth Amendment.”[26]

The court further ruled that the state of Alabama had failed to show a “controlling justification for the deterrent effect” on the members’ freedom of association.[27] The court lifted the civil contempt charge and the $100,000 fine, but refused to rule on the state’s temporary restraining order, leaving the NAACP still enjoined from operating within the state.[28] Only the contempt charge and fine had gone through the state’s appellate system, while the NAACP’s challenge to the restraining order had been joined with the appeal on those issues.[29] So the organization went back to Alabama state court to fight out the case on the restraining order.

Over the next five years, the NAACP experienced the one-step-forward, two-steps-back nature of fighting segregation in the Southern court system. The suit was remanded to the Alabama Supreme Court. In February of 1959, that court decided that though the U.S. Supreme Court had ruled that the NAACP did not have to turn over its memberships lists, the contempt of court charge still held for the “certain other books, papers, and documents” described in the previous Alabama Supreme Court decision.[30] Therefore it upheld the contempt charge again. The NAACP appealed the case to the U.S. Supreme Court, which ruled again, in a per curiam opinion, that the Alabama Supreme Court had previously only ruled on the membership lists, and could not now protest over any other documents.[31] The court pointedly noted, “we assume that the State Supreme Court, thus advised, will not fail to proceed promptly with the disposition of the matter s left open under our mandate for further proceedings.”[32] Nevertheless, the Alabama Supreme Court issued a unanimous decision remanding the case to the circuit court even though it “disagree[d] with the conclusions reached by the Federal Supreme Court.[33] It also upheld the injunction against the NAACP.[34]  The case was again appealed to the U.S. Supreme Court, which again declared the contempt charge invalid and ordered the state courts to hear the case on the merits.

The Montgomery Circuit Court then sat on the lawsuit for two years before finally issuing an opinion in December of 1961 in which it dissolved the temporary injunction and replaced it with a permanent injunction again barring the NAACP from operating in the state of Alabama.[35] The Alabama Supreme Court did not rule on the injunction until February of 1963. Hilariously, it noted, “this court has one set of rules for all litigants, and all are treated alike, regardless of whom they may be. We are not a court which treats most litigants one way, but has favored and special treatment for the litigant who comes into court on an alleged racial issue.”[36] The NAACP appealed to the U.S. Supreme Court for the fourth time. Though the state courts had again relied entirely on procedural grounds and not addressed the case on its merits, the U.S. Supreme Court finally exercised its powers to address those issues.[37] It ruled that the NAACP’s failure to comply with Alabama’s regulations for foreign corporations did not constitute good reason for permanently barring them from operating in the state.[38] The Supreme Court again remanded back to the state courts, this time with specific instructions to allow the NAACP to register to do business in Alabama.[39] The Alabama Supreme Court wrote a short opinion in which it both registered its displeasure with the U.S. Supreme Court’s direction but finally upheld the dissolution of the injunction.[40] So after nearly nine years and four trips to the U.S. Supreme Court, the NAACP was finally allowed to operate in the state of Alabama.

NAACP v. Alabama cannot be taken out of its historical context. It was part of a larger fight, in the courts, on the streets, and in the public imagination, over how this country’s future should be shaped. As such, it represents one small tactic in a much larger movement. Though the case took nine years, and the organizations and its members ended up, legally speaking, back where they started – able to operate in Alabama – the fight as a whole had a much larger impact that can still be seen today. The NAACP’s legal case was unlikely to change the hearts and minds of Alabama’s white communities. But the bus boycott, the desegregation of the University of Alabama, and Brown v. Board of Education were not only designed to attack the state’s laws, but the law’s underlying assumptions as well, that Alabama’s African-American people had as much right to ride a bus or go to school as any white person.

[1] William P. Quigley, Letter to a Law Student Interested in Social Justice, 1 DePaul Journal of Social Justice 7, 19.

[2] Id. at 18.

[3] Patricia Sullivan, Lift Every Voice 424 (The New Press 2009).

[4] William Warren Rogers, et al., Alabama: History of a Deep South State 553 (University of Alabama Press 2004).

[5] Id.

[6] Id.

[7] Id. at 554.

[8] Id.

[9] Warren Trest, Nobody but the People: The Life and Times of Alabama’s Youngest Governor 200 (New South Books 2008).

[10] Id.

[11] Id.

[12] Id. at 203.

[13] Id. at 202.

[14] Id. at 202-203.

[15] Id.

[16] Id. at 202.

[17] Id. at 203.

[18] Id. at 203-204.

[19] Id.

[20] Id. at 204.

[21] Id.

[22] Id.

[23] Id.

[24] Id.

[25] Id.

[26] NAACP v. Alabama, 357 U.S. 449, 466 (1958).

[27] Id.

[28] Id.

[29] Trest, supra note 9, 205.

[30] Ex Parte NAACP, 268 Ala. 531, 533 (Ala. 1959).

[31] NAACP v. Alabama, 360 U.S. 240, 243 (1959).

[32] Id. at 245.

[33] Ex Parte NAACP, 271 Ala. 33 (Ala. St. C. 1960).

[34] Id.

[35] NAACP v. State, 274 Ala. 544, 544 (Ala. St. C. 1963).

[36] Id. at 545.

[37] NAACP v. Alabama, 377 U.S. 288, 294 (1964).

[38] Id. at 310.

[39] Id.

[40] NAACP v. Alabama 167 So. 2d 171 (Ala. St. C. 1964).

The Black Family’s Accumulation of Wealth Crisis: Inequalities in the Housing Market

Accumulating wealth is a battle Black families have been fighting for centuries.  At the crux of this battle stand inequalities in housing market transactions.  Moreover, failure to gain access to reasonably priced, reasonably valued, and reasonably financed real estate is arguably the largest barrier to building wealth.[1]  Many scholars would posit that racial segregation is not an issue of relevancy in our modern society.[2]  However, it is as strong as ever and tainting the wallets of Black families countrywide.[3]  While mounds of legislation have been passed to counter this trend, lawmaking as the sole method of addressing discriminatory practices in the housing market has failed.

Tiffany Palmer, Junior Editor, Alabama Civil Rights and Civil Liberties Law Review

Residential segregation dates back as far as the days leading up to World War I.   Over the years, Black people have faced zoning ordinances that forbade “colored” persons from moving into homes in predominately white neighborhoods.[4]  They have faced racially restrictive covenants that create a legal obligation upon the buyer of real estate to refrain from selling, leasing, or otherwise allowing people of color to occupy the property.[5]  They also battled redlining, a system where the FHA once evaluated neighborhoods in which it would financially invest based on its racial makeup.[6]

In the wake of the civil rights movement led by Dr. Martin Luther King, Jr. and other prominent civil rights activists, Congress began to pass landmark legislation intended to cure discrimination.  In 1968, President Lyndon B. Johnson signed into law a new Civil Rights Act providing for, among other things, equal housing opportunities regardless of race, creed, or national origin.[7]  Title VIII of that Act, more commonly known as the Fair Housing Act, prohibited discrimination concerning the sale, rental, and financing of housing based on race, religion, or national origin. With the passing of this legislation, redlining practices were deemed illegal.[8]  Subsequently, Congress passed the Truth in Lending Act, the Equal Credit Opportunity Act, and the Community Reinvestment Act.  Still, discriminatory housing practices flourished.

Fast forward to the year 2008, where this Country saw a number of historical events unveil, amongst which were the election of President Barack Obama and the rise of the “Great Recession.”[9]   Both events taken together fueled what one great legal scholar has coined as “The Dirty Little Myth.”[10]  Soon after Lehman Brothers collapsed, and Congress learned that a $700 billion bailout was necessary to save the U.S. financial system, news commentators began aggressively spreading the message that the failure of the U.S. capital markets could be attributed to minorities who had irresponsibly over-borrowed mortgage loans and defaulted on them.[11]  While this allegation is far from accurate[12], the buzz around it proved to be constructive.  It led to the scrutiny of many large U.S. banking institutions and the public exposure of severe predatory lending practices.

At this point, the burning question for many should be how is this even possible?  Is racial profiling and discrimination not a thing of the past?  Did Congress not put legislation in place to protect minorities from this type of treatment?  How is it that banks are getting away with this?  Well, it’s simple.  Small victories in race relations over the years have left us too complacent to inspect and identify disparate treatment.  Despite the hefty legislation to the contrary, blanket laws have outright failed to protect minorities from prejudicial attack.[13]

Despite Congress’ best efforts, private lenders still managed to cultivate strategies to stifle Blacks’ climb towards equality in housing and wealth building.  In 2006, 55% of loans to Blacks were subprime, despite the fact that many of those borrowers qualified for prime loans.[14]

Since minorities were over-represented in the subprime mortgage group, they were also over -represented in the foreclosure group.  The disparate impact the crash had on Blacks precipitated the filings of a number of claims alleging reverse redlining, discriminatory lending practices, and violations of the mounds of legislation Congress had put in place to prevent these occurrences.

In 2008, the City of Baltimore brought suit pursuant to the Fair Housing Act of 1968 to seek redress for injuries caused by the Company’s reverse redlining practices.[15]  Overwhelming evidence of these practices was exposed in affidavits filed by two former Wells Fargo employees.  Beth Jacobson, a White loan officer who was employed at Wells for close to a decade, admitted that the Bank saw the Black community as “fertile ground for subprime mortgages” as they wanted so desperately to be homeowners.[16]  “We just went right after them.”[17]  She explained that the motivation was strictly monetary for her.  Jacobson, who at one point was Wells Fargo’s top-grossing loan officer nationally, said she generally made $550,000 to $700,000 annually in commission from selling subprime mortgage loans alone.[18]  Other loan officers, she said, pushed customers who could have qualified for prime loans into subprime mortgages.[19]  She further explained that “Wells Fargo had an emerging-markets unit that specifically targeted black churches, because it figured church leaders had a lot of influence and  could convince congregants to take out subprime loans.”[20]  Another loan officer stated in an affidavit that he had listened as employees referred to blacks as “mud people” and to subprime lending as “ghetto loans.”[21]

In 2011, the U.S. Department of Justice (“DOJ”) filed suit against Wells Fargo, alleging that the bank discriminated against qualified African-American borrowers in its mortgage lending from 2004 through 2009.[22]  In the summer of 2012, the two entered into a settlement agreement in which Wells Fargo agreed to pay $175 million to those affected by its shady practices.[23]  The settlement, pending judicial approval, will provide $125 million in compensation for minority borrowers the DOJ said were steered into subprime mortgages.[24]  Wells Fargo will pay $50 million more in direct down payment assistance to borrowers in parts of the country where the DOJ identified large numbers of discrimination victims.[25]

This settlement model is broken and ineffective.  A mere $175 million rationed out to the 34,000 people affected during the 4-year span when the financial crisis was most prevalent is far from sufficient recompense.  There are, at minimum, three additional classes of persons who are also entitled to damages or some form of remedy.  The first class comprises those who were steered into subprime mortgages, and ultimately lost their homes in the last decade as a result.  The second class comprises those who managed to survive the financial disaster, but are still in their homes and paying higher rates for mortgage loans they were conned into securing.  The third class comprises future Black borrowers.  There need to be heavier safeguards put in place to ensure that disparate treatment in the lending ceases once and for all.

Single family, suburban homes purchased with federally insured mortgages have been pegged as the largest wealth producing program in American history.[26]  Accordingly, gaining fair and reasonable access to housing loans is crucial.  In view of that, the initiation of voluntary affirmative action efforts by private mortgage lenders is salient to support Blacks who aspire to build wealth.

While affirmative action programs have historically only been found in education and employment areas, considering it in bank lending may be the innovative solution the industry needs.  The most frequently cited objective for affirmative action is to remedy past discrimination.[27]  Those who advocate affirmative action say that it is not enough to stop current discrimination.[28]  While Wells Fargo is leading the pack in issuing a number of monetary awards to those affected by their discriminatory lending practices, the institution is a long way from complete remediation.  The institution, among others, should strongly consider affirmative action programming.

Affirmative action efforts should be led by a task force to identify the needs of the classes of Blacks who have been affected.  In using the very same tactics Wells Fargo used to lure thousands of Blacks into financial demise,[29] the bank should actively seek and pursue Blacks who qualify for prime loans and assure that this class of persons receives the same.

To ensure that the bank does not find itself in the same deceitful practices in a decade, an appointment of a Black executive with the responsibility of monitoring the task force is recommended.  So long as the executive has no financial stake in the perseverance of unfair lending practices, he should be able to ensure that any and all bias is eliminated.

Also, Wells Fargo’s reckless lending behavior warrants a consideration of criminal sanctions.  The bank, its subsidiaries, and its employees, committed fraud, forgery, and identity theft.[30]  Crimes of this nature are subject to federal investigation and punishable by prison sentencing.  Statements in agreement with this level of justice are floating around the legal community.[31]  “I am sorry there will be no perp walk for the top executives so we can see their faces.  I know that if someone in my neighborhood robs a bank, they go to jail.  But if a bank robs my neighborhood, nobody goes to jail.”[32]

There are a number of reasons to applaud Congress and others who have worked tirelessly for racial equality in our Country.  We have made great strides, but there are still areas that need to see major reform.  If Blacks are ever to gain a true opportunity to build wealth, the housing market must become more inclusive.  Without its participation, notable progress is far from possible.  A home can be a family’s most valuable asset, and to most Americans it is.  Segregation and disparate treatment can only worsen conditions.   So, the future pioneers of the law are charged with the responsibility of ensuring that a lasting change is achieved.

[1] See generally Melvin L. Oliver & Thomas M. Shapiro, BLACK WEALTH/WHITE WEALTH: A NEW PERSPECTIVE ON RACIAL INEQUALITY (1995).

[2] Id.

[3] Id.

[4] See, e.g., Lemann, supra note 3 at 16; Wilkerson, supra note 3 at 181-221.

[5] Id.

[6] Oliver & Shapiro, supra note 1, at 16-18.

[7] Civil Rights Act, 42 U.S.C.A. § 3601 (1968).

[8] Title VIII of the Civil Rights Act, 42 U.S.C.A. §§ 3630–31 (1968).

[9] See Paul Krugman, The Return of the Depression Economics and the Crisis of 2008, at 194 (2009).

[10] See andré douglas pond cummings, Post Racialism?, 14 J. Gender Race & Just. 611-12 (2011).

[11] Id.

[12] See Daniel Gross, Subprime Suspects: The Right Blames the Credit Crisis on Poor Minority Homeowners–This is Not Merely Offensive, But Entirely Wrong, Slate (Oct. 7, 2008),; Letter from Ben Bernanke, Chairman of the Board of Governors of the Federal Reserve System, to Robert Menendez, United States Senator for New Jersey (Nov. 25, 2008), available at http://; Timeline: A Year of Financial Crisis, NPR (Sept. 5, 2009), (detailing the inner-workings of the financial market crisis through a timeline description).

[13] See Creola Johnson, The Magic of Group Identity: How Predatory Lenders Use Minorities to Target Communities of Color, 17 Geo. J. on Poverty L. & Pol’y 165, 176-82 (2010).

[14] See Editorial, Mortgages and Minorities, N.Y. Times, Dec. 9, 2008,

[15] Third Amended Complaint for Declaratory and Injunctive Relief and Damages at 2, City of Baltimore v. Wells Fargo, 677 F. Supp. 2d 847 (D. Md. 2010) (No. 1.08-cv-000620JFM), available at

[16] See Affidavit of Elizabeth Jacobson at P 12, City of Baltimore, No. 1:08-cv-00062 (D. Md. June 3, 2009), available at

[17] Id.

[18] Id. at 13.

[19] Id.

[20] Id.

[21] Affidavit of Tony Paschal at P 11, City of Baltimore, No. 1:08-cv-00062 (D. Md. June 3, 2009).

[22] James O’Toole, Wells Fargo In $175M  Discriminatory Lending Settlement,, July 12, 2011,

[23] Id.

[24] Id.

[25] Id.

[26] Oliver & Shapiro, supra note 1, at 16-18; Freund, supra note 16, at 5.

[27] Erwin Chemerinsky, Constitutional Law: Principles and Policies, 757 (2011).

[28] Id.

[29] Wells Fargo not only targeted Blacks through their churches, they also hired Black celebrity commentators such as Tavis Smiley to endorse subprime mortgage loans in the Black community.

[30] See Affidavit of Beth Jacobson, supra note 40.

[31] See Luis Gutierrez, Gutierrez Statement on $175 Million Wells Fargo/DOJ Home Loan Settlement (July, 12, 2012) (detailing the particulars of the settlement agreement),

[32] Id.

African American allegiance to the Democratic Party

In 2009, Barack Obama was inaugurated as the first black president of the United States of America. I voted for him. Why, you ask? Because of his passion, his conviction, and his quality speeches. I will be the first to say that in 2008 I knew nothing about politics.  Also, I didn’t know anything about the policies of George W. Bush, Obama’s predecessor. I knew he was a Republican, and I knew he was at the realm of our country as we nose-dived into What is being called the Great Recession. So why not vote for Obama? He talked a good talk, right?

Eric Coleman, Junior Editor, Alabama Civil Rights and Civil Liberties Law Review

Today, a new election is upon us, and my desire to be informed this time around has kept me glued to the Internet and every news station, including Fox News.   Recently I heard a statement that stated “the President has taken for granted the black vote because the black community has always been loyal to the democratic agenda.  This statement is what served as inspiration for me to write this blog.  So my question is why is the black community loyal to the Democratic Party?  Furthermore, I wondered why I considered myself a democrat. History shows that the liberal ideologies of the Democratic Party may be the cause.

You don’t have to trace back to many generations to find that at some point the black community did support a more conservative agenda. Black conservatism has a foundation that traces back as far as the late 1800’s with men like Booker T. Washington, and before him, Frederick Douglas.  Douglas once wrote:

“In regard to the colored people, there is always more that is benevolent, I perceive, than just, manifested towards us.  What I ask for the negro is not benevolence, not pity, not sympathy but simply justice.  The American people have always been anxious to know what they shall do with us… I have but one answer from the beginning.  Do nothing with us!  Your doing with us has already played the mischief with us.   Do nothing with us! If the apples will not remain on the tree of their own strength, if they are worm-eaten at the core, if they are early ripe and disposed to fall, let them fall!”[1]

Some may recall this quote from Justice Clarence Thomas’s dissent in the affirmative action case of Grutter v. Bollinger. Justice Thomas, also considered a black conservative, has taken a lot of criticism for his jurisprudence over the course of his tenure on the Court.  Justice Thomas used this quote to help establish his stance that “blacks can achieve in every avenue of American life without the meddling of university administrators.”[2]  Justice Thomas, like other notable black conservatives believed that reliance on the government does not solve the problem.[3]   Professor Angela Onwuachi-Willig of the University of Iowa, College of Law, described two key concepts that define the core principles of black conservative thought: (1) an emphasis on the departure from black “victimology”; and (2) the promotion of self-reliance and the elimination of dependency on Whites or the government.[1] These concepts “go to the heart of what black conservatives view as the problems underlying unemployment, crime, and poverty in the black community.”[2]

Despite the presence of black leaders who strive to advance the cause of the black community from a conservative standpoint, it seems that black leaders who present a more liberal standpoint are able to garner more support from the black community. For decades the black community has remained loyal to liberal ideologies.  Why is this? These ideologies place the burden on the government to correct the imbalances between the black and white communities.[3]  This approach seems to resound more than the approach of self-help and self-reliance presented by conservatives like Frederick Douglass, Booker T. Washington, Justice Clarence Thomas, Professor Thomas Sowell, and the like? Often, however, the issues important within the black community are conservative, such as school prayer, corporal punishment, capital punishment, and abortion.[4] Yet, history shows that “issue” conservatism does not necessarily equate to “political” conservatism.[5]  So while many of the social issues the black community finds important are conservative, the belief amongst the black community is to employ the fastest means possible to address the issues.[6]  Methods such as lawsuits, protest demonstrations, and political mobilization are not present in conservatism.[7] Yet, in the eyes of many blacks they are the most adept to bringing about social change. Furthermore, blacks have often viewed the conservative agenda of self-help and self-reliance as selling out to whites, and doing that which would “least irritate” them.[8]  However, this is not so.  Conservative George Schuyler explained in his autobiography that ”once we accept the fact that there is, and will always be a color caste system in the United States, and stop crying about it, we can concentrate on how best to survive and prosper within that system.  This is not defeatism but realism.”[9]

Today the struggle of black conservatives to spread their ideologies through the black community remains true.  The strongest barriers confronting black conservatives are the success of liberal ideologies[10] and the stigma on black conservatives as pawns of the white-conservative Republican Party.[11]  Black conservatives have responded to the success of liberal ideals by stating that many liberal ideas have facilitated black advancement in society by placing a bandage over the issues while the scars still bleed underneath.  As an example, affirmative action programs were designed to move more blacks into educational institutions and jobs that were dominated by the white majority.  In effect, affirmative action programs tend to open up opportunities to: (1) qualified blacks who deserved the opportunities that they were not getting, as well as (2) less qualified blacks who did not have the qualifications required for admission or job positions, due to socio-economic issues. I have no issue with these programs opening the doors to members of the black community who deserved these positions based on their merit. Honestly, I don’t have an issue with opening opportunities to people who wouldn’t be considered based on their merit.  Yet, is there not a better solution? My take on affirmative action is that the goal of such programs is for more blacks to have access to success in American society. They don’t have access, because they don’t have the requirements such as college degree.  They don’t have college degrees because they often cannot compete statistics wise with their white counterparts.  So for illustrative purposes:


Childhood Education à College Degree/Credentials à Access to success in Society (Jobs)

While this possibly oversimplifies the problem, it is enough to help prove the point.  Affirmative Action programs are installed typically at the Collegiate Education level and at the access level.  However that does not attack the core of the problem, which lies at the bottom in the childhood education.  The best way to fix a problem is by eliminating the cause of that problem, not placing a bandage over it to cover the wounds.

In response to the idea of black conservatives as pawns, black conservatives argue that there are fundamental differences between black conservative ideology and white conservative ideology, which defeats the idea that black conservatives are “tools” of their white counterparts.

In conclusion, I hope this article is enough to make you ask yourself, why am I voting?  Do these candidates present ideas which are in my best interests?  This time around I will vote again, for the right reasons.


[1] What the Black Man Wants: An Address Delivered in Boston, Massachusetts, on 26 January 1865, reprinted in 4 The Frederick Douglass Papers 59, 68 (J. Blassingame & J. McKivigan eds 1991)(emphasis in original).

[2] Grutter v. Bollinger, 539 U.S. 306, 349 (2003).

[3] Id. at 350.

[4] Angela Onwuachi-Willig, Just Another Brother on the SCT?: What Justice Clarence Thomas Teaches Us About the Influence of Racial Identit., 90 Iowa L. Rev. 931, 948 (2005).

[5] Id.

[6] Id. at 947.

[7] Ronald W. Walters, White Nationalism, Black Interests 230 (2003).

[8] Id.

[9] Id.

[10] Id.

[11] Onwuachi-Willig, supra note4, at 944.

[12] George S. Schuyler, Black and Conservative 121-22 (1966).

[13]Onwuachi-Willig, supra note 4,  at 947.

[14] Id. at 948.

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