To: Current and Prospective Student Body, University of San Diego School of Law

From: The Undersigned Members of the Law Alumni Board of Directors

The undersigned believe strongly in the need for rigorous scholarly debate regarding important issues of the day, particularly legal issues. We do not ascribe to the view that the loudest voice is the most worthy of being heard. We respect and uphold the traditions of putting ideas into the crucible of truth, that healthy and honest debate may benefit all of us. However, as attorneys, we also have a duty to take reasonable remedial measures when presented with positions based on false or no evidence.

We also have a duty to defend the values of USD, an institution committed to academic excellence, expanding professional knowledge, creating a diverse and inclusive community, and preparing leaders who are dedicated to ethical conduct and compassionate service. Therefore, we must respond to Professor Alexander’s recent essays in Newsweek which, among other things, posit that racial and sexual discrimination are things of the past and that “systemic racism” does not exist.

In Mississippi: The Closed Society, historian James Silver describes a systematic campaign to silence professors speaking out in favor of civil rights at the University of Mississippi.[1] Silver writes that the effect of this campaign was to still the voice of reason. We write today not to still any voice, least of all Professor Alexander’s, but rather to ensure that the countervailing voices of history, truth and fact are heard.

We first note that the term “systemic racism” does not mean everyone in that system is racist. In practice, the day-to-day operations of the actors in the justice system (prosecutors, defense lawyers, judges, police, etc.) are generally acting in good faith. Instead, “systemic racism” means that, as the Washington Post states, “We have systems and institutions that produce racially disparate outcomes, regardless of the intentions of the people who work within them.”[2] We think the evidence shows that is the case.

Professor Alexander has argued before that he is “against equality” but favors “equality before the law, equality of legal and political rights.”[3] However, he has a distressing habit of disparaging those with whom he disagrees, in this case identifying them as “Identitarians.” Unfortunately, “Identitatrians” are part of organizations considered by the Southern Poverty Law Center to be hate groups.[4] Those who believe in systemic racism (and who disagree with Professor Alexander) are not members of a hate group—despite his name calling—and such labels are not a substitute for rational, fact-based arguments against an idea of belief.

However tempting, we decline to attack the author, and instead present facts in response to Professor Alexander’s bald and citation-free assertion (central to his argument) that racism has been, since 1964, “subsequently reduced overwhelmingly and marginalized, if not completely eradicated.” Really?

First, regarding the criminal justice system, Professor Alexander argues, “Policing and punishing? But what race would benefit if murderers, rapists and robbers are not apprehended and punished? To seek such a Hobbesian state of affairs is lunacy.”

That argument is a feeble strawman; no one is advocating for violent criminals running free. More importantly, it ignores the very real and well documented evidence of continuing racial inequality in the justice system, even though that system is overwhelmingly populated with people who act in good faith. For example:

• On September 30, 2020 the California legislature passed and the governor signed AB 3070, where “The Legislature finds that peremptory challenges are frequently used in criminal cases to exclude potential jurors from serving based on their race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or perceived membership in any of those groups, and that exclusion from jury service has disproportionately harmed African Americans, Latinos, and other people of color.” This practice has also been documented by Berkley Law School.[5]
• In 2019 the United States Supreme Court found racial bias in the Javert-like serial prosecutions of Curtis Flowers, where the prosecution discriminated on the basis of race over and over again in trial after trial: “In sum, the State’s pattern of striking black prospective jurors persisted from Flowers’ first trial through Flowers’ sixth trial. In the six trials combined, the State struck 41 of the 42 black prospective jurors it could have struck. At the sixth trial, the State struck five of six. At the sixth trial, moreover, the State engaged in dramatically disparate questioning of black and white prospective jurors. And it engaged in disparate treatment of black and white prospective jurors, in particular by striking black prospective juror Carolyn Wright.”
• The fact that, “witnesses may be less accurate when identifying members of another race or ethnicity compared to when they identify members of their own race or ethnicity, a finding known as the ‘cross-race effect’ or ‘own-race bias.’”[6]
• The use of non-unanimous juries in two states until last summer, where the non-unanimous juries were created, according to the Supreme Court, with “the avowed purpose of that convention was to ‘establish the supremacy of the white race,’ and the resulting document included many of the trappings of the Jim Crow era: a poll tax, a combined literacy and property ownership test, and a grandfather clause that in practice exempted white residents from the most onerous of these requirements.”[7] During oral argument, Justice Kavanaugh pointed out, “The rule in question here is rooted in a — in racism, you know,” “rooted in a desire, apparently, to diminish the voices of black jurors in the late 1890s.” But that racist rule lasted for 140 years (until just a few months ago) because of a racist system that few viewed as racist. In other words, because of systemic racism.
• How about the State of Texas using an “expert” who opined to jurors in at least six capital cases that a black man is more likely to be dangerous in the future, an opinion argued by the State of Texas at trial to support executing those men.[8]
• The gap between the number of White inmates and Black, Hispanic, Native, and other minority inmates speaks for itself.[9] Those minority prisoners will then be subjected to legalized discrimination in employment, housing, education, public benefits, and voting at a much higher rate than White prisoners.

It is no wonder that this system—which, by design, over-polices and over-incarcerates Black men[10] and other minorities—has created the unconscionable result of racial disparity in prison sentences. “Today’s sentencing policies, crystalized into the sentencing guidelines and mandatory minimum statutes, have a greater adverse impact on Black offenders than did the factors taken into account by judges in the discretionary system in place immediately prior to guidelines implementation. Attention might fruitfully be turned to asking whether these new policies are necessary to achieve any legitimate purpose of sentencing.”[11]

Indeed, according to the United States Sentencing Commission, Black male inmates in federal prison who commit the same crimes as white male inmates are given a sentence that is nearly 20 percent longer than their white counterparts.[12] Lest the misinformed or misguided claim such disparity is based on race-neutral factors such as criminal history, this same report also concluded that violence in an offender’s criminal history did not account for the racial disparity in sentencing. Indeed, the disproportionately higher imprisonment rates and disproportionately longer imprisonment terms imposed on Black, Latino, and other minority criminal defendants both underscore why beliefs like Professor Alexander’s—that systemic racism and white privilege do not exist—are rooted in anything but fact and reality.

Then, after serving disproportionately longer sentences based solely on their race, Black and minority inmates released back into the community may have their ability to contribute to society by voting stripped from them, in some cases for life. This archaic practice has been rejected by many industrialized, first-world countries that recognize the value of every person’s right to vote and allow felons to vote even while in prison: Canada, Finland, Germany, Ireland, Israel, Norway, Spain, and South Africa, to name a few.[13] But more importantly, this practice, when recognized in the context of a criminal justice system that engenders racially disparate results, disarms millions of minorities of the very weapon they need to change this system—their vote.

The evidence that Black, Latino, and other minorities are treated worse than white criminal defendants did not (as Professor Alexander asserts) end just because Congress passed a law over fifty years ago. In fact, Congress has a habit of creating laws that may appear race free (much like the non-unanimous jury laws) but are in fact and application racist. Just one example: it took Congress until 2010 to enact the First Step Act and to reverse laws specifically written to punish (overwhelmingly Black) crack defendants much more harshly than (overwhelmingly white) powder cocaine defendants. Despite the First Step Act, multiple states still apply a disparity between such defendants.

Another example of systemic racism is the perpetual view of immigrants as “other.” Many communities of color continue to face this problem, including the Asian American community. Although the overt racism which led to the Chinese Exclusion Act, brutal colonization of Filipinos and incarceration of Japanese Americans may no longer be legal, the underlying system of racism persists[14]. Racist attacks against Chinese and Filipino health care workers who were on the front lines of the SARS crisis in 2008 have been documented[15] and, sadly, are on the rise again during the current COVID-19 pandemic.[16] This perception of immigrants as “non-American” leads to anti-immigration policies and laws which impact all sectors of our economy and society.[17]

Professor Alexander’s argument against systemic sexism is equally lacking factual or logical support. He selectively includes statistics that show women earning as many or more degrees than men, but omits the well-established research showing the “glass ceiling” effect that prevents women from advancing within so many professions after they earn those degrees. Just a few examples:

• In academia, women earned the majority of doctorate degrees for eight consecutive years, yet they make up only 32% of university full professors and 30% of college presidents.[18]
• A Wall Street Journal study this year found that although there are more female CEOs than in the past, women still hold only 167 CEO positions at the United States’ top 3,000 companies, or less than 6%.[19]
• In the legal profession, although women have made up 50% or more of law school graduates for years, they held only 21% of equity partnerships in U.S. law firms as of 2019.[20]
• And in politics, where Professor Alexander writes that women are “police chiefs, mayors, governors, members of Congress and even presidential and vice presidential candidates,” he fails to note that the actual numbers are similarly dismal for women. For example, women currently hold 18% of state governorships, and make up only 23.7% of Congress.[21]

Although he does not explicitly discuss these discrepancies in professional advancement, Professor Alexander implicitly acknowledges them when he shifts the blame for any such inequity back to women themselves: “And if women as a group don’t earn as much as men, that is not due to discrimination against individual women, but rather to women’s autonomous career and lifestyle choices—choices that can hardly be deemed the result of indoctrination or false consciousness.”

Professor Alexander provides no factual support for this condescending conclusion. Indeed, substantial research supports that women are subjected to widespread discrimination and outright harassment that prevents career advancement. Hollywood presents one of the more glaring examples, where actresses who resisted convicted rapist Harvey Weinstein’s advances were blacklisted in the industry.[22] More subtle sexism also pervades professional life. The Wall Street Journal study cited above found that one cause of the dearth of female CEOs was attitudes that companies held toward women: “[C]ompany decision-makers too often assume that women will not be able to give as much effort to their work because of family commitments.”[23] And according to the American Bar Association, female lawyers—and in particular female lawyers of color—report being mistaken for administrative staff, being held to higher standards than men, and having less access to high-quality assignments than their male peers.[24]

Given these inequities, and because USD believes it should play a role in remedying these inequities, it is committed to diversifying its student body so that our legal leaders reflect the communities they serve. Indeed, over the recent years, USD has undertaken extensive efforts to increase law student diversity, including dozens of yearly outreach events. This year, 32% of USD’s 1L class is diverse. Thanks to this diversity, USD School of Law is a place of thoughtful discourse where a broad range of ideas, perspectives, students, and faculty are welcome. We are committed to ensuring this is always the case.

Signed[25] –

Megan Donohue, President, Class of 2009

Carolina Bravo-Karimi, President-Elect, Class of 2008

James D. Crosby, Immediate Past President, Class of 1983

Knut S. Johnson, Past President, Class of 1986

Marty Lorenzo, Director, Class of 1996

Joy Utomi, Director, Class of 2011

Christopher T. Whitten, Director, Class of 1991

Curtis Jackson, Director, Class of 2018

Nicholas J. Fox, Director, Class of 2011

Alex Landon, Director, Class of 1971

Noel Vales, Director, Class of 1997

Robert K. Foster, Director, Class of 2019

Erin F. Giglia, Director, Class of 2001

Ashley Hirano, Director, Class of 2009

Jamie Ritterbeck, Director, Class of 2012

Jason Ohta, Director, Class of 2000

Kirsten Gallacher, Director, Class of 2012

Matthew Abbot, Director, Class of 2015

Douglas Friednash, Director, Class of 1987

Scott Dupree, Director, Class of 1977

Jessica Wilson, Director, Class of 2002

References:
[1] James L. Silver, Mississippi: The Closed Society (1964, 1966).
[2] Radley Balko, “There’s overwhelming Evidence that the criminal justice system is racist. Here’s the proof,” Washington Post, Opinions (June 10, 2020) (emphasis added), https://www.washingtonpost.com/graphics/2020/opinions/systemic-racism-police-evidence-criminal-justice-system/.
[3] Larry Alexander, “Against Equality,” University of San Diego, School of Law, Legal Studies Research Paper Series, Research Paper No. 17-255 2016.
[4] Southern Poverty Law Center, “Identity Evropa / American Identity Movement,” https://www.splcenter.org/fighting-hate/extremist-... (last visited Oct. 27, 2020).
[5] Elisabeth Samuel, et al., “Whitewashing the Jury Box,” Berkley Law Death Penalty Clinic (June 2020), https://www.law.berkeley.edu/wp-content/uploads/2020/06/Whitewashing-the-Jury-Box.pdf.
[6] 2019 Report of the Third Circuit Task Force on Eyewitness Identifications, https://www.ca3.uscourts.gov/sites/ca3/files/2019%20Report%20of%20Third%20Circuit%20Task%20Force%20on%20Eyewitness%20Identifications.pdf (originally published at 92 Temp. Law Review 1 (2019)); see also Jud. Council of Cal., Criminal Jury Instructions, No. 315 “Eyewitness Identification Instruction” (2020) (jurors should consider whether the witness and defendant are of different races).
[7] Ramos v. Louisiana, 590 U.S. ___ (2020), 140 S. Ct. 1390.
[8] Buck v. Davis, 580 U.S. ___ (2017), 137 S. Ct. 759.
[9] U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, Prisoners in 2017 (Apr. 2019) (NCJ 252156); https://www.bjs.gov/content/pub/pdf/p17.pdf.
[10] The Sentencing Project, Report to the United Nations on Racial Disparities in the U.S. Criminal Justice System (Apr. 2018), https://www.sentencingproject.org/publications/un-report-on-racial-disparities/.
[11] U.S. Sentencing Commission, Fifteen Years of Guidelines Research, “Chapter Four, Racial Ethnic, and Gender Disparities in Federal Sentencing Today,” at 135 (2004), https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-projects-and-surveys/miscellaneous/15-year-study/chap4.pdf.
[12] U.S. Sentencing Commission, Demographic Differences in Sentencing: An Update to the 2012 Booker Report (Nov. 2017), https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-publications/2017/20171114_Demographics.pdf.
[13] Encyclopedia Britannica, “International Comparison of Felon Voting Laws” (last updated Apr. 11, 2018), ProCon.org, https://felonvoting.procon.org/international-comparison-of-felon-voting-laws/; see also https://en.wikipedia.org/wiki/Disfranchisement.
[14] https://theconversation.com/the-long-history-of-us-racism-against-asian-americans-from-yellow-peril-to-model-minority-to-the-chinese-virus-135793.
[15]https://go.gale.com/ps/i.do?p=AONE&u=aikentcl&id=GALE|A195680111&v=2.1&it=r&sid=AONE&asid=65126ad5.
[16] https://www.cbsnews.com/news/anti-asian-american-hate-incidents-up-racism/.
[17] https://www.forbes.com/sites/stuartanderson/2020/07/21/trump-cuts-legal-immigrants-by-half-and-hes-not-done-yet/?sh=320df1a66168.
[18]https://www.americanprogress.org/issues/women/reports/2018/11/20/461273/womens-leadership-gap-2/.
[19] Eric Bachman, “The Glass Ceiling for Women CEOs Remains Firmly Entrenched, Says WSJ,” Forbes.com (Apr. 9, 2020), https://www.forbes.com/sites/ericbachman/2020/04/09/the-glass-ceiling-for-women-ceos-remains-firmly-entrenched-says-wsj/.
[20] Nat’l Ass’n of Women Lawyers, 2019 Survey Report on the Promotion and Retention of Women in Law Firms (2019), https://www.nawl.org/page/nawl-survey.
[21] Center for Am. Women and Politics, “Fact Sheet: Current Numbers,” Rutgers Univ. (2020), https://cawp.rutgers.edu/current-numbers.
[22] “Peter Jackson: I blacklisted Ashley Judd and Mira Sorvino Under Pressure from Weinstein,” The Guardian (Dec. 16, 2017), https://www.theguardian.com/film/2017/dec/15/peter-jackson-harvey-weinstein-ashley-judd-mira-sorvino.
[23]See note 20, supra.
[24] Am. Bar Ass’n, “Systemic Bias in Legal Profession Confirmed by New Report” (Sept. 6, 2018), https://www.americanbar.org/news/abanews/aba-news-archives/2018/09/new-study-finds-gender-and-racial-bias-endemic-in-legal-professi1/.
[25] Certain members of the Law Alumni Board of Directors who serve as Judicial Officers have abstained from participation in this statement, in accordance with California Judicial Rules of Conduct.