Randall Kennedy is the Michael R. Klein professor of law at Harvard Law School and the author of “Race, Crime, and the Law”
Black people have been struggling to free themselves from racist oppression throughout American history. They have revolted, fled, petitioned, boycotted, exposed abuses through journalism and propaganda, prayed in, stood up, and sat down. An iteration of black resistance that was begun in 2013 marches under the banner of Black Lives Matter.
During the Second Reconstruction, activists seeking to protect and advance black communities maintained that “We Shall Overcome” and insisted on “Freedom Now”; some demanded “Black Power.” They prompted the outlawing of Jim Crow segregation (consider Brown v. Board of Education); the prohibition of private racial discrimination in public accommodations, employment, and housing (consider the Civil Rights Act of 1964 and 1968); and the nullification of tests that had long been used fraudulently to discriminate against potential voters (consider the Voting Rights Act).
An area that has proven to be peculiarly resistant to racial reform is the administration of criminal justice, perhaps because it consists of literally millions of low-visibility, highly discretionary decisions that are not easily subject to effective regulation.
Typically, however, courts, including the Supreme Court, have made no serious effort to supply such regulation. Instead, obtuse interpretations of the Fourth Amendment have permitted police to use race as a factor in traffic stops, leading to the notorious infraction of “driving while black.”
Courts have permitted the continued deployment of racially discriminatory peremptory challenges to exclude or minimize the participation of blacks in jury service.
Courts have consigned to invisibility racial discrimination in the application of the death penalty (a point made powerfully in a superb new book, Courting Death: The Supreme Court and Capital Punishment by Carol and Jordan Steiker).
Blacks in high-crime neighborhoods suffer as well from under-protection of the law. Blacks all too often encounter police who are indifferent to their suffering or so heavy-handed that residents sometimes choose to take their chances with thugs rather than call upon the putative defenders of law and order.
On our streets, all too many interactions between police officers and African Americans have produced a toxic pool of distrust, resentment, and contempt leading to eruptions of lethal violence by police who themselves go uninvestigated and unpunished. Tragically, there is good reason why police brutality and the condoning of it have been the primary targets of Black Lives Matter.
Like the sit-in movement of the early 1960s, BLM was initiated by young black people who insisted upon acting on their own to confront directly the social evils they observe and feel daily. Like the founders of the Student Non-Violent Coordinating Committee, the founders of BLM have become impatient with elders and their now stale routines. BLM activists have creatively used new technologies – twitter, Facebook, and smartphone cameras – to spread their message, quickly becoming an influential force that has grabbed the nationwide attention of police officials, politicians, clergy, college authorities, allies, and detractors.
Whatever their similarities in certain ways to the rebellious youth who reenergized the black liberation movement of the 1960s, the founders of BLM are different in two important respects.
Female activists during the ’60s were often marginalized by the sexism of their male peers. By contrast, the leadership of women within BLM is central and salient. The BLM logo and imagery were coined and popularized by three women – Patrice Cullors, Opal Tometi, and Alicia Garza.
Second, leading proponents of BLM are outspoken in celebration of their own multifarious and heterodox sexualities and their insistence that an agenda of racial uplift embrace blacks of all varieties – not simply those who are respectably straight but also those who are disreputably “funny.”
By vividly publicizing police misconduct, BLM has already notched an achievement for which it can justifiably be proud. BLM activists should recall, however, the sad fates that befell some of their forbearers. SNCC, for instance, began as a marvelous, promising, generous organization that epitomized the best of the crusading antiracist sprit of the 1960s. It was ruined, however, by infighting, rigidity, egotism, an inability to accept apt criticism, and a racial hubris that degenerated into antiwhite posturing.
One hopes that BLM will have the foresight, discipline, and good luck to avoid the many dangerous snares that surround it.
Randall Kennedy will be among the panelists discussing “Black Lives Matter: The Next Civil Rights Movement?” at 6:30 p.m. Monday at the National Constitution Center. To register, visit www.constitutioncenter.org/debate or call 215-409-6700.