Statement from the Director
Are we in this together?
Jennifer Mason McAward
Associate Professor of Law
Director, Klau Center for Civil and Human Rights
June 10, 2020
Since the beginning of the pandemic, we often see signs proclaiming “we are all in this together.” In mid-March, as we shut down our society, sheltered at home, and cheered the heroism of those who provide medical care and other essential services, that sentiment felt good and right and true. Indeed, it is true at the highest level: as persons created in the image of God and endowed with equal dignity, we are called to work in solidarity for the common good and to ensure that the inherent worth of each person is respected in policy and in practice.
Now we are in mid-June. In the past three months, it has become abundantly clear that there are many aspects of this “novel” coronavirus that are not novel at all. And that being “all in this together” seems more aspirational than descriptive. We at the Klau Center for Civil and Human Rights recommit ourselves to a program of education, inquiry, and engagement that engages our nation’s entrenched systemic racial inequality, prioritizes the fundamental worth and dignity of each person, and works with determination for justice.
COVID-19 and racial disparities
There are massive racial disparities in how COVID-19 affects communities of color. Demographic data reveal that in the United States, African Americans are dying at rates nearly twice as high as we would expect based on their share of the population. Hispanics/Latinos account for a greater share of confirmed infections than their share of the population. White deaths from COVID-19 are lower than their share of the population in a majority of states. In Washington, DC alone, 75% of the people who have died from COVID-19 were African American.
These statistics say nothing about COVID-19 or genetics. They speak urgently about structural racism—about how in our nation the color of a person’s skin affects all aspects of life. People of color have higher rates of underlying health conditions that render them susceptible to the worst effects of COVID-19, such as heart disease, stroke, cancer, asthma, diabetes, and HIV. They have lower rates of access to health insurance and quality health care. They often live in dense housing conditions that contribute to the spread of the virus. And they perform a significant number of essential frontline jobs that increase their exposure to the virus. There is thus nothing novel about how the coronavirus has affected communities of color. It was to be expected—indeed, was expected—in light of the preexisting disparities in our nation. Yet we did nothing to mitigate its effects.
Structural racism and criminal justice in the US
And now we have the story of George Floyd, suspected of petty crime and dead in eight minutes and 46 seconds at the knee of a police officer. It is horrifying. But there is nothing novel about this tragedy either. Mr. Floyd is just the most recent name in a seemingly never-ending list of victims of officially-sanctioned violence against African Americans. From those held in brutal bondage and treated as three-fifths of a person according to our Constitution, to the more than 4,400 African Americans lynched in our country, to Eric Garner, who also died telling a police officer “I can’t breathe,” the list is long and as old as our nation itself.
Racial disparities are endemic to our modern criminal justice system, in which 33% of those in prison are African American, even though African American adults comprise only 12% of the population. Around the country, from New York and Washington, DC to Ferguson, Missouri, African Americans have been and continue to be disproportionately singled out by police for stop-and-frisk activity and the use of force. We live in a country where African American parents commonly have “the talk” with their young sons regarding how to respond when—not if—they are stopped by police.
An urgent need for reform
How must we as a society respond when faced in such stark terms with the legacy and reality of racism? Surely not with more violence. But just as surely with urgency, solidarity, and committed action. The protests unfolding across the nation must lead to soul-searching and sustained, serious, multi-system reform.
The Justice in Policing Act of 2020, the police reform bill recently proposed in Congress, deserves serious consideration in its entirety. One portion of that bill would alter the doctrine of qualified immunity in civil rights litigation. This is vitally important in a way that might not be immediately apparent from the face of the proposed bill.
After the Civil War, Congress passed a law—now known as Section 1983—allowing people to sue government actors who violate their constitutional rights. According to the law, when a police officer uses excessive force in violation of the Fourth Amendment of the Constitution, that officer “shall be liable” to the person injured. The idea was that citizens themselves could punish rogue officers by bringing a lawsuit and requiring those officers to pay monetary damages when they violate the Constitution. Moreover, because local governments generally indemnify their employees in civil rights cases—meaning that they pay to defend the lawsuit and for any financial judgment—there should be a strong motivation at the institutional level to discipline or fire bad cops and to make sure future cops are trained to respect constitutional rights. Section 1983, therefore, was designed to provide both accountability for past harm and deterrence of future harm.
Over time, the concern arose that sometimes good cops make mistakes—even violate the Constitution—in the heat of the moment. Was it fair to impose financial liability in every case? Would such a strict rule dissuade people from even entering public service? The Supreme Court therefore decided that government officials should have a defense to Section 1983 suits called qualified immunity.
At first, qualified immunity worked to protect officials who made mistakes in good faith. But over time, the Supreme Court has altered the rule to focus not on the defendant him or herself, but on the objective legal reasonableness of the defendant’s action. To get a damages award, a plaintiff must point to a published court opinion with virtually identical facts in which another police officer has been held to have violated the Constitution. In a world where each person’s interaction with the police is unique, and where 97% of civil cases are settled without a court opinion, it is essentially impossible for plaintiffs to find cases with identical facts. This means it is essentially impossible for plaintiffs to prevail against even bad cops under Section 1983. Qualified immunity, as it stands, undercuts a very important mechanism for incentivizing civil rights compliance by the police.
Moving beyond words
At this critical moment, there is a groundswell of energy aimed at securing racial justice. Since the death of George Floyd, our diverse communities have come together in inspiring shows of solidarity; our social and educational institutions have begun recommitting themselves to the cause. Actions, however, not words, are the measure of the moment. How will we show that we really are “all in this together”? The Klau Center can do so by pursuing with urgency and determination its mission to promote the dignity of each person, prioritizing issues of racial justice. Congress can do so by uniting to pass commonsense reforms that will hold accountable those who violate constitutional rights. Voters can do so by choosing leaders who ache at each loss of life and prioritize dismantling racist structures. Educators – including the Klau Center – can do so by forming students who will become those leaders in the future. The corporate sector can do so by rebuilding our decimated economy with a focus on justice and not profit.
Each of us can do so by remaining vigilant that the inviolable dignity of each person is at the heart of all we do as individuals and as a nation. Now that would be novel.