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Minority Opinion

Speakers Say Constitutional Law Hasn’t Always Fostered Equality

Posted Apr 22, 2006 6:08 AM CDT
By Martha Neil

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Addressing an ABA Midyear Meet­ing audience at a downtown Chicago hotel, Craig B. Futterman described life in an entirely different world that exists only a few miles away.

In that world, Futterman said, police officers are feared by law-abiding citizens.

Children are searched, arrested and even beaten by police, for no good reason. And complaints about such abuses fall on deaf ears.

That type of world is all too real for many Americans who are poor and black, said Futterman, a law professor at the University of Chicago who works in the law school’s clinical program helping students bring pro bono cases.

Futterman and other speakers at the program sponsored by the Section of Individual Rights and Responsibilities said the continuing struggle for equality in the U.S. has had a profound influence on how blacks view the Constitution.

And that view often isn’t favorable, they said.

Although the Constitution is traditionally viewed as a protector of individual rights and a symbol of equality and justice, it is perceived differently by those whose families and forebears experienced it as an instrument of repression, said Indiana University law professor Kevin D. Brown.

“Our interpretation of constitutional law is never through the eyes of African Americans,” Brown said.

A historic list of grievances against the Constitution and related law includes recognition of the rights of slaveholders in several provisions adopted by the founders; the restrictive “black codes” in force throughout the South after the Civil War; and the separate but equal doctrine, upheld by the U.S. Supreme Court in Plessy v. Ferguson, which persisted as the law of the land until the mid-20th century.

Painful Realities

While U.S. law no longer expressly sanctions such gross injustices against blacks and other minorities, that doesn’t mean they have disappeared, the speakers said.

One example is what Brown termed the de facto segregation of U.S. public schools. According to the National Center for Education Statistics, to which Brown referred in a later interview, 38 percent of black fourth-graders in 2003 attended schools in which at least 90 percent of the students were racial or ethnic minorities. Another 12 percent attended schools where at least 75 percent of the students were minorities.

Meanwhile, 50 percent of white fourth-graders were in schools with minority populations of 10 percent or less. Another 23.7 percent attended schools where minorities constituted less than 25 percent of the students.

“Simply put, whites refused to engage in public school integration,” Brown told the audience at the program. “The reality is that at this time we simply do not have the power to support integration.”

Another key issue is abusive behavior by police in minority communities, said Futterman, who described several local cases handled by the university’s legal clinic.

One involved a woman who was caught up in a police raid on a basketball tournament at a Chicago housing project, he said. The spectators were held at the scene and searched--including the woman’s toddler daughter. Afterward, Futterman said, the mother matter-of-factly remarked that this had to happen to the girl sooner or later.

Statistics also indicate that the justice system disproportionately arrests, convicts and imprisons African-Americans, said panelist George N. Leighton, a former U.S. district court judge who practices law in Chicago. Calling for study of the issue, he said, “It almost appears that we don’t want to find out how this comes about.”

Recognizing and understanding the causes of injustices will be a big step toward correcting them, speakers said.

But it will also take both vigorous enforcement of anti-discrimination laws and a commitment to affirmative action for blacks and American Indians, said Philip C. Aka, a political science professor at Chicago State University. “The legislative intent was to extend the remedy only to African-Americans,” he said. “But over the years we have seen so many other groups attempt to latch on.”

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