There is a long tradition of Black educators fighting attempts to keep America’s true history out of the classroom—one we can all learn from
February 18, 2022
This week, South Dakota’s House of Representatives passed two bills, one targeting the teaching of “divisive concepts” and the other aimed at “protecting” kids from “political indoctrination.” While neither bill mentioned the words “critical race theory,” it was clear what they meant. They followed just a few weeks after the Mississippi Senate passed Senate Bill 2113—another “critical race theory” bill authored by Michael McLendon (R-Hernando)—over the objection of Black lawmakers, who walked out of the chamber in protest. Both of these efforts, along with many others, are part of a nationwide campaign led by conservatives to supposedly rid classrooms of “critical race theory”—a term for a high-level legal discipline that has been used as a cover to ban books by Black and brown authors.
While the obsession over “ critical race theory” is a new manifestation, it represents long-standing efforts to keep Black history—and the perspectives of Black writers—out of the classroom. For many conservatives, the attack on “critical race theory” is rooted in a desire to shield their children from the uncomfortable aspects of history and evade “sensitive” topics such as racism, white supremacy, and inequality. As this wave of anti-Blackness and anti-intellectualism grows, Black educators and their allies must be prepared to oppose these forces, building on a long tradition of Black protest.
For as long as white politicians have employed these tactics, Black educators in the United States have vigorously resisted. Through a myriad of strategies—including creative lesson plans and the production of anti-racist books and articles—Black educators have worked to counter the spread of misinformation and ensure that students have access to texts and perspectives that represent the diversity of the nation—and the world.
During the antebellum era, Black teachers in the North led the charge to ensure that Black students would receive a quality education—despite having limited access to resources. These efforts often required “conscious, vigorous, and sustained acts of defiance and protest,” as historian Kabria Baumgartner recounts in her groundbreaking book In Pursuit of Knowledge, but Black educators were willing to take such risks.
In 1830s Boston, for example, Susan Paul taught at a primary school for Black children where she intentionally included lessons on the evils of slavery and the significance of abolition. Paul brought her students to meetings of the New England Anti-Slavery Society—an interracial abolitionist organization founded in 1832. She also encouraged her students in the Boston Juvenile Choir to perform songs that extolled abolitionist ideas. Her inclusion of abolitionist materials and her focus on her students’ public comportment represented a direct challenge to the era’s racist propaganda on the capabilities and qualities of Black people—a mission she followed even as she faced threats of violence from white Bostonians at the time.
Paul published the Memoir of James Jackson in 1835 to honor a student of hers who had passed away from tuberculosis. In telling the story of Jackson’s short life, the book also revealed Paul’s pedagogical emphasis on Christian empathy as an opposing force to racial prejudice.
Similarly, Charlotte Forten, a Black educator from Philadelphia, passionately resisted the spread of miseducation in the classroom—and introduced an array of diverse materials to broaden her students’ perspectives. One of the first Black women teachers to be hired to teach in the integrated schools of Salem, Mass., Forten joined the staff of the Epes Grammar School in 1856. Though she only taught in Salem for a few years, she was unwavering in her commitment to nurturing Black students, and in 1862, traveled to the Sea Islands in South Carolina to teach Black children who were recently emancipated by Union forces.
Forten used this opportunity to instruct her students about the life of revolutionary Haitian leader Toussaint L’Ouverture. “I told them about Toussaint,” she explained in an 1864 Atlantic Monthly article, “thinking it well they should know what one of their own color had done for his race.” This determination to center Black perspectives in the classroom as a counter to stereotypical representations of mainstream accounts guided Black educators in the decades to follow.
In February 1926, historian Carter G. Woodson, known as the father of Black history, devised a strategy to address the failure to teach Black history in classrooms across the nation. By first establishing “ Negro History Week,” Woodson provided an avenue for educators to recognize and celebrate the history of people of African descent in the United States. In so doing, he disrupted educational norms shaped by white supremacy and anti-Blackness. Woodson and members of the Association for the Study of Negro Life and History—the organization he had established several years earlier—created and distributed books, lesson plans, and other curriculum materials to aid teachers across the nation.
Within five years of the program’s creation, 80 percent of Black high schools in the United States were celebrating Negro History Week. According to Jarvis R. Givens, author of Fugitive Pedagogy: Carter G. Woodson and the Art of Black Teaching, Woodson’s mission as a scholar “was influenced and made possible by the pedagogical work of black schoolteachers.” These educators had instructed and prepared Woodson’s generation after the end of legal slavery, and a new generation now risked their own personal safety to defy the accepted curriculum by implementing Negro History Week lessons, influencing generations of scholars and activists to follow.
It is in this spirit that the famed scholar and activist W.E.B. Du Bois published Black Reconstruction in America in 1935. The pioneering book, which would go on to shape future writing and research on Reconstruction, was a direct refutation of the false narratives emerging from leading white scholars. Black Reconstruction in America unequivocally challenged the racist Dunning School of historians—named after William Archibald Dunning of Columbia University. In their portrayal of Reconstruction (1865–77), the Dunning School scholars, as Du Bois explained, had portrayed the South as victims and the North as having committed a “grievous wrong.” Their writings on the subject treated the free and enslaved Black population with “ ridicule, contempt or silence.”
This framing of the ideals motivating Reconstruction—and the passage of the 13th, 14th, and 15th Amendments—as a mistake was further propagated in popular media, most notably in the 1915 film The Birth of a Nation. Du Bois’s Black Reconstruction offered an important counterargument that not only reaffirmed the evils of slavery but also demonstrated the active role enslaved people took in liberating themselves. They were, as Du Bois powerfully demonstrated, not simply the passive recipients of white actions but agents in shaping their own destiny.
This tradition coalesced into the dynamic field of Black Studies during the 1960s and 1970s. As Abdul Alkalimat, one of the founders of Black Studies, points out in The History of Black Studies, the field’s growth is directly tied to the pioneering work of scholars like Woodson and Du Bois. The work of Black educators—combined with other forces, including the civil rights and Black Power movements as well as the vital intellectual space created by historically black colleges and universities—provided the catalyst for the establishment of Black Studies programs and departments.
Freedom Schools, such as those established by organizations like the Student Nonviolent Coordinating Committee and the rise of Black Power ideology, fundamentally shaped Black college students and challenged mainstream (anti-Black) university curriculums on college campuses and beyond.
Today, we are witnessing an effort to return to an era when Black voices and experiences—along with those of other marginalized groups—were excluded from classrooms. The recent legislative and executive bans on “critical race theory” are designed to intimidate teachers and school districts from teaching accurate representations of American history. As the historical record reminds us, these attempts are not new. But we can draw inspiration from the long line of Black educators and their allies who vigorously worked to overcome these forces in the past.
Keisha N. Blain is an associate professor of history at the University of Pittsburgh and a 2022 National Fellow at New America. Along with Ibram X. Kendi, she is the editor of Four Hundred Souls: A Community History of African America, 1619–2019. Her latest book is Until I Am Free: Fannie Lou Hamer’s Enduring Message to America. Twitter: @KeishaBlain
This Week at OUR COMMON GROUND
Saturday, January 15, 2022 ::: 10 pm ET
“King Day: To Forget Is to Forfeit”
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The establishment of a national holiday honoring Martin Luther King, Jr., marked the culmination of a long campaign that began soon after King’s assassination on April 1968 and ended on 2 November 1983, with the signing of legislation by President Ronald Reagan. Public Law 98–144 designated the third Monday in January as an annual federal holiday in King’s honor, and the first official celebration took place on 20 January 1986.
15 years later. The campaign to mark the holiday over those 15 years is strewn with vicious, racist pushback in and out of government. Over those years, there were many opportunities to question just what had really been achieved/transformed in America during the civil rights movement.
Since 1983, communities and organizations have celebrated King Day through various, creative and serious celebrations and forums. A national monument in Washington has been erected in Dr. King’s honor. However, there seems to be a diffusion in what we teach, remember and understand about Dr. King’s contribution to this country. The holiday seems to have become somewhat less deliberative in our celebrations. Taking for granted our responsibilities to keep his guidance and ideologies alive. We mention it, we attend the various luncheons, dinners. Yet, we now have generations of Black children, a new scholarship that tends to marginalize the power of his transformative power in our own communities. We read and quote his words outside the context and the import of the history he ignited.
Parades, luncheons, dinners alone cannot sustain the movement’s progress. We must organize, teach, educate, and practice the philosophy of King each and every day.
Can we keep KING ALIVE ?
- We should all ask yourselves: How many times this year, did I activate the liberation philosophies of Dr. King?
- Other than social latitudes, how did you practice/use-share the language of King’s movement?
- Just how did I “King” in the past year?
- How did I lift ‘democracy’?
“King Day: To Forget Is to Forfeit”
Black people in the US are the crash test dummies for the Democrats. The Democrats showcase the misery of Black people to maintain their legitimacy while deploying the Black political class to neutralize the “progressive” elements in the party.
A crash test dummy is a simulated humanoid used in car accidents to test the safety of vehicles for human consumers. In the U.S., Black people are the crash test dummies for the Democratic Party and the liberal establishment. The Democrats showcase the misery of Black people – through a discourse of “racial grievances” – to maintain their legitimacy while deploying the Black political class to neutralize the “progressive” elements in the party.
During the Obama era members of the Black chattering class were used as crash test dummies to manufacture a liberal curated message that Obama, the Wall Street Manchurian Candidate and first Black president, was the embodiment of Black political aspiration justifying Blacks abandoning their civil rights posture toward racism. From this 2008 New York Times article , “Is Barack Obama the End of Black Politics:”
““I’m the new black politics,” says Cornell Belcher, a 38-year-old pollster who is working for Obama. “The people I work with are the new black politics. We don’t carry around that history. We see the world through post-civil-rights eyes. I don’t mean that disrespectfully, but that’s just the way it is.
“I don’t want in any way to seem critical of the generation of leadership who fought so I could be sitting here,” Belcher told me when we met for breakfast at the Four Seasons in Georgetown one morning. He wears his hair in irreverent spikes and often favors tennis shoes with suit jackets. “Barack Obama is the sum of their struggle. He’s the sum of their tears, their fights, their marching, their pain. This opportunity is the sum of that.”
During Obama’s tenure over 35% of Black wealth evaporated, and there was no recourse for or Black America. Furthermore, 95% of Obama’s presidential job growth was low wage temp jobs. Blacks were the crash test dummies whose noble history of struggle was pimped out so Banks could be protected as America saw one of the greatest wealth transfer s upward since the gilded age.
After the 2016 election, the racial grievances of Blacks rendered them as crash test dummies again. This time the corporate faction of the Democratic party deployed the Black political class and its media acolytes to neutralize the rising cry for social democracy and anti-capitalist politics. Black thought leaders in the chattering class deemed the Bernie Sanders candidacy as “tone deaf on race,” while pushing to coral Black politics around neoliberalism and Hillary Clinton. Furthermore, the Black political class has been repeatedly dispatched to destroy candidates for office that have carried the Sanders message. This subterfuge became obvious with both the 2021 Nina Turner campaign in Ohio, as well as the India Walton campaign in Buffalo, New York.
What is fascinating about the deployment of the Black liberal political call to destroy progressive social democratic policy rooted in political economy is that during the inter-war period, before Anti-Communism made such politics impossible to demand, the Black liberal political class took its lessons from Black socialists and Black communists. They used these lessons to shape their advocacy for Black America.
The book , “What the Negro Wants,” was written in 1944 and is a series of essays by some of the most heralded Black thinkers and activists of that era. W.E.B. DuBois, Rayford W. Logan, Charles H. Wesley, Mary McLeod Bethune, and A. Phillip Randolph are just a few of the contributors. What is fascinating is how little discussion there is about racism and White Supremacy, and how much is based on programmatic solutions rooted in political economy. I guess these folks would have been called “class reductionists” since almost all their solutions were premised on social democracy . In reading the book, you realize the bankruptcy of today’s Black social and political thought. A review of the book tell us:
“What the Negro Wants provides a unique view into black politics during that time period. The essays reveal the wide array of ideological tendencies operating within black political life, something often missing today from analyses that adopt the monolithic framework of a singular “black community.” Perhaps more striking was the common agreement among the diverse tendencies — and what this tells us about the transformations in black political life from then to now.
The writers shared a broad consensus around the vital importance of the labor movement (especially the Congress of Industrial Organizations, CIO), given black people’s overwhelming working-class composition. There was also much agreement around broadly social democratic demands and the necessity of interracial coalitions.”
Under the current Biden presidency Democrats are worried that the strategy of using Blacks as crash test dummies by dispatching “woke” racial grievance discourse to stain Trump’s Republican party is backfiring. As working-class voters flee the Democratic party, the belief is that the age of “wokeness,” has cost Democrats so much that they might have to start appealing to working class white voters using whatever messaging is possible. The recent controversy over political data expert David Shor and his calls for the Democratic party to embrace his messaging strategy called “popularism,” has the vapid Black chattering class worried that the Democratic party is going to throw Black people under the bus to appeal to working class Whites. Elie Mystal, the Black MSNBC contributor, and writer for, “The Nation,” expressed outrage as he argued that the Democrats were going abandon Blacks to embrace David Shor’s “Popularism.” As, Mystal states :
“I disagree with Shor not on the problems but on his proposed solutions. Shor, according to Klein, suggests doing what Democrats have traditionally done: figure out what the racists want and give it to them, while simultaneously pretending the party will never take real steps to challenge white supremacy.”
Acolytes of Shor quickly responded to Mystal’s complaints by basically admitting that the Democratic party has no choice but to appeal to working class white voters because demographically the party cannot win without their support, regardless of the size of the Democrats’ Multi-racial coalition. As “New York Magazine,” writer Eric Levitz published in his piece , “Smearing Popularism Does not Help Black Voters:”
“All of which is to say: There is nothing inherently anti-Black about wanting the Democratic Party to avoid alienating bigoted voters, much less white working-class ones more broadly. A “mobilization” strategy will only benefit African Americans to the extent that it keeps the Republican Party out of power. Black families surely need a Justice Department that cares about civil rights, an NLRB that sides with working people, and a Congress interested in expanding social welfare more than they need Democratic messaging that rhetorically centers systemic racism. Yet Mystal makes no effort to demonstrate that the electoral math on his preferred strategy adds up. He does not sketch out how Democrats could afford to disregard white working-class voters and still capture a Senate majority. By all appearances, he simply presumes that there must be a way for the party to do so.”
The last time Democrats used major polling analysis to change their messaging we got the Democratic Leadership Council , Clinton Crime Bill, the New Democrats, NAFTA GATT and worse neoliberalism that was highly racialized against Blacks. And in 1984 the same argumentation was used, “Democrats need to find a way to appeal to working class Whites.” As vapid as the Black liberal chattering class has always been, I don’t think we can totally fault them for their paranoia about the Democratic party’s alleged embrace of “Shorism” or “Popularism.”
What we are seeing is the failure of Democrats’ cynical post Obama strategy of focusing on racial grievance discourse divorced from materialist policy. That strategy was supposed to both shut down the possibility of any social democracy, or Sanders-type politics that would benefit most Black people, while secondly using Blacks as crash test dummies to fight Trump. That strategy has blown up in the Democrats face and is doing nothing but feeding the reactionary right. This is largely happening because liberals and the left flank of capital chose to platform neoliberal Blacks and Black foundation types spewing race first politics that only lined their own pockets from Ta-Nehisi Coates to Black Lives Matter . The support for this liberal “woke” racial grievance discourse has allowed Trump operative Steve Bannon to organize a grass roots takeover of political apparatuses throughout the Red States using contrived paranoia about Critical Race Theory as a flashpoint. Liberals played the Black elite and the Black Chattering class like suckers again. Now with debates emerging about “popularism,” and the tactics of David Shor, Democrats might seek to hang Black voters out to dry, once again, since they now realize they were riding a one trick pony that was only good to get Biden elected.
These racial changes in political messaging have a long and effective history during the 50 plus year counter-revolution against the gains of the 1960s and the New Deal. Starting with the hard hat riot and framing late 60s radicalism as social chaos, Nixon was able to begin the process of White working class spillage into the Republican party causing the first fracture of the New Deal-Civil Rights Coalition. Reagan doubled on this strategy by using the Nixonian Southern strategy fostering the “Reagan Democrats.” Bill Clinton was the key to where this whole strategy of white racial appeal went bad. Clinton used the Southern Strategy as well to appeal to working class Whites by appearing tough on crime with the execution of Ricky Ray Rector and his Sister Soulja moment . Predictably, Clinton governed in a way that destroyed the working class across the board and savaged poor Blacks. The consequences of Clintonian politics were so bad that neoliberalism became equated with Democrats in the conscience of many Americans. Obama had an opportunity to repair these issues. Obama had more goodwill coming into office than any U.S. president in modern history. Instead, Obama doubled down on the worst elements of neoliberalism as a handpicked pawn of the banks. Furthermore, under Obama we also saw a massive opioid crisis ravage poor and working-class Americans hurt by Clinton Era NAFTA and GATT policies. Bernie Sanders revived a progressive left that had been dead for 50 years while Hillary Clinton was the emblem of all that was horrible with Clintonian Neoliberalism after Obama’s lack of recovery.
Therefore, the culture war nonsense is a product of a policy bankrupt Democratic party using vapid identity politics virtue signaling with no real material benefits to posture progressive while masking their complicity with the agenda of finance capital and the power elite. This shift to dump the working class was a strategic choice of the Democrats, not an accident. They did so under the charade of hoping Blacks and Latinos would forget they were working class and instead see themselves as ethnic and racial identities first. The Republicans have spun the culture wars to appeal to other aspects of the working-class psyche not contingent exclusively on racial identity, such as anti-vaccination mandates. Though neoliberalism has been a bi-partisan consensus since the 1970’s, the 30-year strategy and pivot of Neoliberal Democrats starting with Clinton and continuing through Obama, worsened the carnage. This is why Democrats deserve most of the blame for the turn in American capitalism to neoliberal privatization.
Some have argued that the current “wokeness, ” paranoia has been caused by the social democratic Sanders faction of the Democratic party. Progressives did not ignite a culture war. Liberals ignited a culture war doubling down on woke racial grievance discourse to use black people both as crash test dummies to fight Trump and to neutralize the Progressive faction of the Democratic party’s actual demand for materialist politics. The Liberal institutions from media to foundations, and even corporate finance, all supported wokeness especially after George Floyd’s murder. Progressives weren’t pouring millions into capitalist streaming services like Netflix and Amazon to platform programming focused on Negroes racially navel gazing and fart sniffing their problems to pander to white guilt. Progressives, got their politics crushed by this materialist bankrupt form of race reductionism that they have been calling out while being called “class reductionists.” Yet the only class of Negroes benefitting from this race reductionist nonsense are pedigreed Blacks who have always leveraged the misery of Black toilers for policy considerations that largely only benefit those Black elites. Negro elites and certain Blacks in academia have made a fortune off George Floyd’s corps for doing nothing but protecting the status quo. So don’t blame Progressives. Blame the liberals, Black, White, and otherwise who have been using Black people as crash test dummies while showing sheer disregard for most of Black America during almost all the last 50 plus year counter-revolution.
Pascal Robert is an iconoclastic Haitian American Lawyer, blogger, and online activist for Haiti. He is an OUR COMMON GROUND Voice since 2012. He is co-host, This Is Revolution podcast.
You can find his work on the web at Thought Merchant, and at Huffington Post. He can be reached via twitter at @probert06 or email@example.com.
In June 1990, the members of the rap group 2 Live Crew were arrested and charged under a Florida obscenity statute for their performance in an adults-only club in Hollywood, Florida. The arrests came just two days after a federal court judge had ruled that the sexually explicit lyrics in 2 Live Crew’s album, As Nasty As They Wanna Be, were obscene. Although the members of 2 Live Crew were eventually acquitted of charges stemming from the live performance, the federal court determination that As Nasty As They Wanna Be is obscene still stands. This obscenity judgment, along with the arrests and the subsequent trial, prompted an intense public controversy about rap music, a controversy that merged with a broader debate about the representation of sex and violence in popular music, about cultural diversity, and about the meaning of freedom of expression.
Two positions dominated the debate about 2 Live Crew. Writing in Newsweek, political columnist George Will staked out a case against the Crew, arguing that Nasty was misogynistic filth and characterizing their lyrics as a profoundly repugnant “combination of extreme infantilism and menace” that objectified black women and represented them as legitimate targets for sexual violence.
The most prominent defense of 2 Live Crew was advanced by Professor Henry Louis Gates, Jr., an expert on African-American literature. In a New York Times op-ed piece, and in testimony at the criminal trial, Gates portrayed 2 Live Crew as brilliant artists who were inventively elaborating distinctively African-American forms of cultural expression. Furthermore, Gates argued, the characteristic exaggeration featured in their lyrics served a political end: to explode popular racist stereotypes about black sexuality precisely by presenting those stereotypes in a comically extreme form. Where Will saw a misogynistic assault on black women by social degenerates, Gates found a form of ‘sexual carnivalesque’ freighted with the promise to free us from the pathologies of racism.
As a black feminist, I felt the pull of each of these poles, but not the compelling attractions of’ either. My immediate response to the criminal charges against 2 Live Crew was ambivalence: I wanted to stand together with the brothers against a racist attack, but I wanted to stand against a frightening explosion of’ violent imagery directed at women like me. My sharp internal division-my dissatisfaction with the idea that the “real issue” is race or that the “real issue” is gender– is characteristic of my experience as a black woman living at the intersection of racial and sexual subordination. To that experience black feminism offers an intellectual and political response: aiming to bring together the different aspects of an otherwise divided sensibility, it argues that black women are commonly marginalized by a politics of race alone or gender alone, and that a political response to either form of subordination must be a political response to both. When the controversy over 2 Live Crew is approached in light of such black feminist sensibilities, an alternative to the dominant poles of the public debate emerges.
At the legal “bottom line” I agree with the supporters of 2 Live Crew that the obscenity prosecution was wrongheaded. But the reasons for my conclusion are not the same as the reasons generally offered in support of 2 Live Crew. I will come to those reasons shortly, but first I should emphasize that after listening to 2 Live Crew’s lyrics, along with those of other rap artists, my defense of 2 Live Crew, (qualified though it is) did not come easy.
The first time I listened to 2 Live Crew, I was stunned. The issue had been distorted by descriptions of “As Nasty As They Wanna Be” as simply “sexually explicit.” “Nasty” is much more: it is virulently misogynist, sometimes violently so. Black women are cunts, “‘ho’s,” and all-purpose bitches: raggedy bitches, sorry-ass bitches, lowdown slimy-ass bitches. Good sex is often portrayed as painful and humiliating for women. Take, for example, “The Buck.”
That’s the only way to give her more than she wants,
Like a doggie-style, you get all that cunt.
Cause all men try real hard to do it,
To have her walking funny so we try to abuse it.
Bitches think a pussy can do it all,
So we try real hard just to bust the wall.
I’ll break you down and dick you long. Bust your pussy and break your backbone.
I’m gonna slay you, rough and painful, You innocent bitch! Don’t be shameful!
And for added measure:
That dick will make a bitch act cute,
Suck my dick until you make it puke …
Lick my ass up and down,
Lick it till your tongue turns doodoo brown.
This is no mere braggadocio. Those of us who are concerned about the high rates of gender violence in our communities must be troubled by the possible connections between these images and tolerance for violence against women. Children and teenagers are listening to this music, and I am concerned that the range of acceptable behavior is being broadened by the constant propagation of anti-women imagery. I’m concerned, too, about young black women who, like young men, are learning that their value lies between their legs. Unlike men, however, their sexual value is a depletable commodity; by expending it, girls become whores and boys become men.
Nasty is misogynist, and a black feminist response to the case against 2 Live Crew must start from a full acknowledgment of that misogyny. But such a response must also consider whether an exclusive focus on issues of gender risks overlooking aspects of the prosecution of 2 Live Crew that raise serious questions of racism. And here is where the roots of my opposition to the obscenity prosecution lie.
An initial problem concerning the prosecution was its apparent selectivity. A comparison between 2 Live Crew and other mass-marketed sexual representations suggests that race played some role in distinguishing 2 Live Crew as the first group ever to be prosecuted for obscenity in connection with a musical recording, and one of only a handful of recording artists to be prosecuted for a live performance. Recent controversies about sexism, racism, and violence in popular culture point to a vast range of expression that might well provide targets for censorship, but that have not been targeted. Madonna has acted out masturbation, portrayed the seduction of a priest, and depicted group sex on stage, yet she has never been prosecuted for obscenity. While 2 Live Crew was performing in an adults-only club in Hollywood, Florida, Andrew Dice Clay was performing nationwide on HBO. Well-known for his racist “humor,” Clay is also comparable to 2 Live Crew in sexual explicitness and misogyny. In his show, for example, Clay offers: “Eenie, meenie, minee, mo, suck my [expletive] and swallow slow,” or “Lose the bra bitch.” Moreover, graphic sexual images–many of them violent–were widely available in Broward County where the performance and trial took place. According to the trial testimony of Vice Detective McCloud, “nude dance shows and adult bookstores are scattered throughout the county where 2 Live Crew performed.” But again, no obscenity charges were leveled against the performers or producers of these representations.
In response to this charge of selectivity, it might be argued that the prosecution of 2 Live Crew demonstrates that its lyrics were uniquely obscene. In a sense, this argument runs, the proof is in the condemnation–if their music was not uniquely obscene, it would not have been deemed so by the Court. However, the elements of 2 Live Crew’s representation that contributed to their selective arrest continued to play out as the court applied the obscenity standard to the recording.
To clarify this argument, we need to consider the technical use of’ “obscenity” as a legal term of art. For the purposes of legal argument, the Supreme Court in the 1973 case of Miller v. California held that a work is obscene if and only if it meets each of three conditions: (1) “the average person, applying community standards, would find that the work, taken as a whole, appeals to the prurient interest”; (2) “the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law”; and (3) “the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.” The Court held that it is consistent with First Amendment guarantees of freedom of expression for states to subject work that meets all three parts of the Miller test to very restrictive regulations.
Focusing first on the “prurient interest” prong of the Miller test, we might wonder how 2 Live Crew could have been seen as uniquely obscene by the lights of the “community standards” of Brossard County. After all, as Detective McCloud put it, “patrons [of clubs in Broward] can see women dancing with at least their breasts exposed” and bookstore patrons can “view and purchase films and magazines that depict vaginal, oral and anal sex, homosexual sex and group sex.” In arriving at its finding of obscenity, the court placed little weight on the available range of films, magazines, and live shows as evidence of the community’s sensibilities. Instead, the court apparently accepted the Sheriff’s testimony that the decision to single out Nastywas based on the number of complaints against 2 Live Crew, “communicated by telephone calls, anonymous messages, or letters to the police.”
Evidence of this popular outcry was never substantiated. But even if it were, the case for selectivity would remain. The history of social repression of black male sexuality is long, often-violent, and all-too-familiar. Negative reactions against the sexual conduct of black males have traditionally had racist overtones, especially where that conduct threatens to “cross over” into the mainstream community. So even if the decision to prosecute did reflect a widespread community perception of the purely prurient character of 2 Live Crew’s music, that perception itself might reflect an established pattern of vigilante attitudes directed toward the sexual expression of black males. In short, the appeal to community standards does not undercut a concern about racism; rather, it underscores that concern.
A second troubling dimension of the case against 2 Live Crew was the court’s apparent disregard for the culturally rooted aspects of 2 Live Crew’s music. Such disregard was essential to a finding of obscenity, given the third prong of the Miller test requiring that obscene material lack any literary, artistic, or political value. 2 Live Crew argued that this test was not met since the recording exemplified such African-American cultural modes as “playing the dozens,” “call and response,” and “signifying.” As a storehouse of such cultural modes, it could not be said that Nasty was completely devoid of literary or artistic value. Yet the court denied the group’s clause of cultural specificity by re-characterizing those modes claimed to be African-American in more generic terms. For example, the court reasoned that “playing the dozens” is “commonly seen in adolescents, especially boys, of all ages.” “Boasting,” the court observed, appears to be “part of the universal human condition.” And the court noted that the cultural origins of one song featuring “call and response”–a song about oral sex in which competing groups chanted “less filling” and “tastes great”–were to be found in a Miller beer commercial, and thus not derived from any African-American cultural tradition. The possibility that the Miller beer commercial may have itself evolved from an African-American cultural tradition was lost on the court.
In disregarding testimony about cultural specificity, the court denied the artistic value in the form and style of Nasty and, by implication, rap music more generally. This disturbing dismissal of the cultural attributes of rap, and this effort to universalize African-American modes of expression, flattens cultural differences. The court’s analysis here manifests in legal terms a frequently encountered strategy of cultural appropriation. African-American contributions that have been accepted by the mainstream culture are eventually absorbed as simply “American” or found to be “universal.” Other modes associated with African-American culture that resist absorption remain distinctive and are either ignored, or dismissed as “deviant.”
An additional concern has as much to do with the obscenity doctrine itself as with the court’s application of it to 2 Live Crew. The case illustrates the ways that obscenity doctrine invites racially selective enforcement while at the same time pressing into focus the wrong questions about sexual expression.
As I mentioned earlier, obscenity requires a determination that the material, taken as a whole, appeals to the prurient interest. Although the prurient interest requirement eludes precise definition it seems clear that prurient material must appeal in some immediate way to sexual desire. While it is difficult to say definitively what constitutes such an appeal, one might surmise that the twenty-five cent peep shows that are standard fare in Broward County rank considerably higher on this scale than the sexual tall tales of 2 Live Crew. But the obscenity doctrine is, as justice Stevens said, “intolerably vague,” and the result is that “grossly disparate treatment of similar offenders is a characteristic of the criminal enforcement of obscenity law.” More precisely, as the case of 2 Live Crew suggests, the vagueness of the doctrine operating in a world of racial subordination represents an invitation to racially selective enforcement.
While 2 Live Crew should be one of the lesser candidates in the prurient interests sweepstakes mandated by the obscenity doctrine, it is also a lesser contender by another measure that lies entirely outside of obscenity: violence. Compared to such groups as N.W.A., Too Short, Ice Cube, and the Geto Boys, 2 Live Crew’s misogynistic hyperbole sounds minor league. Sometimes called “gangsta’ rap,” the lyrics offered by these other groups celebrate violent assault, rape, rape-murder, and mutilation. Nevertheless, had these other groups been targeted rather than the comparatively less offensive 2 Live Crew, they may have been more successful in defeating the prosecution. The graphic violence in their representations militates against a finding of obscenity by suggesting an appeal not to prurient interests but instead to the fantasy of the social outlaw. Against an historical backdrop that prominently features the image of the black male as social outlaw, gangsta’ rap might be read as a subversive form of opposition that aims to challenge social convention precisely by becoming the very social outlaw that society has proscribed. For this reason, their lyrics might even be read as political, and if they are political they are not obscene. So long, then, as prurience remains an obsession of First Amendment argument, and violent imagery is seen as distinct from sexuality, rap artists may actually be able to strengthen their legal shield by heightening the level of violence in their lyrics.
I do not mean to suggest here that the distinction between sex and violence ought to be maintained in obscenity, nor, more specifically, that the violent rappers ought to be protected. To the contrary, these groups trouble me much more than 2 Live Crew does. My point instead is to emphasize that the obscenity doctrine itself does nothing to protect the interests of those who are most directly implicated in such rap–black women. Because the doctrine is vague, it opens the door to selecting offenders on the basis of race, Because it separates out sexuality and violence, it shields the most violently misogynistic rappers from prosecution. For black women who are hurt by both racism and misogyny, it does no good at all.
Although black women’s interests were quite obviously irrelevant in this obscenity judgment, their bodies figured prominently in the public case supporting the targeting of 2 Live Crew. This brings me to my final concern: George Will’s Newsweek essay provides a striking example of how black women were appropriated and deployed in the broader attack against 2 Live Grew. Commenting on “America’s Slide into the Sewers,” Will tells us that “America today is capable of terrific intolerance about smoking, or toxic waste that threatens trout. But only a deeply confused society is more concerned about protecting lungs than minds, trout than black women. We legislate against smoking in restaurants; singing “Me So Horny” is a constitutional right. Secondary smoke is carcinogenic; celebration of torn vaginas is “mere words.”
Notwithstanding these expressions of concern about black women, Will’s real worry is suggested by his repeated references to the Central Park jogger. He writes that “Her face was so disfigured a friend took fifteen minutes to identify her. ‘I recognized her ring’. Do you recognize the relevance of 2 Live Crew?” (Emphasis added.) While the connection between the threat of 2 Live Crew and the specter of the black male rapist was suggested subtly in the public debate, it is manifest throughout Will’s discussion and in fact bids fair to be its central theme. “Fact: Some members of a particular age and societal cohort–the one making 2 Live Crew rich–stomped and raped the jogger to the razor edge of death, for the fun of it.” Will directly indicts 2 Live Crew in the Central Park jogger rape through a fictional dialogue between himself and the defendants. Responding to one defendant’s alleged comment that the rape was fun, Will asks: “Where can you get the idea that sexual violence against women is fun? From a music store, through Walkman earphones, from boom boxes blaring forth the rap lyrics of 2 Live Crew.” Since the rapists were young black males and Nasty presents black men celebrating sexual violence, surely 2 Live Crew was responsible. Apparently, the vast American industry that markets every conceivable form of misogynistic representation is irrelevant to understanding this particular incident of sexual violence.
Will invokes black women twice–as victims of this music. But if he were really concerned with the threat to black women, why does the Central Park jogger figure so prominently in his argument? Why not the black woman in Brooklyn who was gang-raped and then thrown down an airshaft? For that matter, what about the twenty-five other women–mostly women of color–who were raped in New York City during the same week the Central Park jogger was raped? In Will’s display of concern, black women appear to function as a stand-in for white women. The focus on sexual violence played out on black women’s bodies seems to reflect concerns about the threat of black male violence against the security of the white community. In this, Will’s use of the black female body to press the case against 2 Live Crew recalls the strategy of the prosecutor in Richard Wright’s novel Native Son. Bigger Thomas, the black male protagonist, is on trial for killing Mary Dalton, a white woman. Because Bigger burned her body, however, it cannot be established whether Mary was raped. So the prosecutor brings in the body of Bessie, a black woman raped by Bigger and left to die, in order to establish that Bigger had raped Mary.
These considerations about selectivity, about the denial of cultural specificity, and about the manipulation of black women’s bodies convince me that race played a significant if not determinative role in the shaping of the case against 2 Live Crew. While using anti-sexist rhetoric to suggest a concern for women, the attack simultaneously endorsed traditional readings of black male sexuality. The fact that most perpetrators and victims are of the same race is overshadowed by the mythical image of the black male as the agent of sexual violence and the white community as his victim. The subtext of the 2 Live Crew prosecution thus becomes a re-reading of the sexualized racial politics of the past.
While concerns about racism fuel my opposition to the obscenity prosecution, I am also troubled by the uncritical support for, and indeed celebration of, 2 Live Crew by other opponents of that prosecution. If the rhetoric of anti-sexism provided an occasion for racism, so, too, the rhetoric of anti-racism provided an occasion for defending the misogyny of black male rappers.
The defense of 2 Live Crew took two forms, one political and one cultural, both of which were advanced most prominently by Henry Louis Gates. The political argument was that 2 Live Crew represents an attack on black sexual stereotypes. The strategy of the attack is, in Gates’s words, to “exaggerate [the] stereotypes” and thereby “to show how ridiculous the portrayals are.” Thus, Gates concludes, 2 Live Crew and other rap groups are simply pushing white society’s buttons to ridicule its dominant sexual images.
I agree with Gates that the reactions by Will and others to 2 Live Crew confirm that the stereotypes still exist and still evoke basic fears. But even if I were to agree that 2 Live Crew intended to explode these mythic fears, I still would argue that their strategy was wholly misguided. These fears are too active, and African-Americans are too closely associated with them, not to be burned when the myths are exploded. More fundamentally, however, I am deeply skeptical about the claim that the Crew was engaged–either in intent or effect–in pursuing a postmodern guerilla war against racist stereotypes.
Gates argues that when one listens to 2 Live Crew the ridiculous stories and the hyperbole make the listener “bust out laughing.” Apparently the fact that Gates and many other people react with laughter confirms and satisfies the Crew’s objective of ridiculing the stereotypes. But the fact that the Crew are often successful in prompting laughter neither substantiates Gates’s reading nor forecloses serious critique of its subordinating dimensions.
In disagreeing with Gates, I do not mean to suggest that 2 Live Crew’s lyrics are to be taken literally. But rather than exploding stereotypes as Gates suggests, I believe that they were simply using readily available sexual images in trying to be funny. Trading in racial stereotypes and sexual hyperbole are well-rehearsed strategies for getting some laughs. 2 Live Crew departs from this tradition only in its attempt to up the ante through more outrageous boasts and more explicit manifestations of misogyny. Neither the intent to be funny, nor Gates’s loftier explanations, negate the subordinating qualities of such humor. Examining parallel arguments in the context of racist humor suggests why neither claim functions as a persuasive defense for 2 Live Crew.
Gates’s use of laughter as a defensive maneuver in the attack on 2 Live Crew recalls similar strategies in defense of racist humor. Racist humor has sometimes been defended as an effort to poke fun at, or to ridicule racism. More simply, racist humor has often been excused as just joking; even racially motivated assaults are often defended as simple pranks. Thus, the racism and sexism of Andrew Dice Clay could be defended in either mode as an attempt to explode the stereotypes of white racists, or simply as humor not meant to be taken seriously. Implicit in these defenses is the assumption that racist representations are injurious only if they are devoid of any other objective or are meant to be taken literally.
Although these arguments are familiar within the black community, I think it is unlikely that they would be viewed as a persuasive defense of Andrew Dice Clay. African-Americans have frequently protested such humor, suggesting a general recognition within the black community that “mere humor” is not inconsistent with subordination. The question of what people find humorous is of course a complicated one, sometimes involving aggression, in-group boundary policing, projection, and other issues. The claim that a representation is meant “simply as a joke” may be true, but it functions as humor within a specific social context and frequently reinforces patterns of social power. Moreover, even though racial humor may sometimes be intended to ridicule racism, the close relationship between the stereotypes and the prevailing images of marginalized people complicates this strategy. Clearly, racial humor does not always distance the audience from the racist subject, nor does it indict the wider society in which the jokes have meaning. The endearment of Archie Bunker suggests at least this much. Thus, in the context of racist humor, neither the fact that people actually laughed at racist humor nor the usual disclaimer of intent has functioned to preclude incisive and often quite angry criticism of such humor within the African-American community.
Although a similar set of arguments could be offered in the context of sexist humor, images marketed by 2 Live Crew were not condemned but, as Gates illustrates, defended, often with great commitment and skill. Clearly, the fact that the Crew and the women it objectifies are black shaped this response. Had 2 Live Crew been white in blackface, for example, all of the readings would have been different. Although the question of whether one can defend the broader license given to black comedians to market stereotypical images is an interesting one, it is not the issue here. 2 Live Crew cannot claim an in-group privilege to perpetuate misogynistic humor against black women. They are not black women, and more importantly, they enjoy a power relationship over them.Sexual humor in which women are objectified as packages of body parts to serve whatever male-bonding/male competition needs men have subordinates women in much the same way that racist humor subordinates African-Americans. That these are “just jokes” and not meant to be taken literally does little to blunt their demeaning quality–nor for that matter, does the fact that the jokes are told within a tradition of intra-group humor.
Gates advances a second, cultural defense of 2 Live Crew: the idea that Nastyis in line with distinctively African-American traditions of culture and entertainment. It is true that the “dozens” and other forms of verbal boasting have been practiced within the black community for some time. It is true as well that raunchy jokes, insinuations, and boasting of sexual prowess were not meant to be taken literally. Nor were they meant to disrupt conventional myths about black sexuality. They were meant simply to be laughed at, and perhaps to gain respect for the speaker’s word wizardry.
Ultimately, however, little turns on whether the “word play” performed by 2 Live Crew is a postmodern challenge to racist sexual mythology or simply an internal group practice that has crossed over into mainstream America. Both versions of the defense are problematic because they each call on black women to accept misogyny and its attendant disrespect in service of some broader group objective. While one version argues that accepting misogyny is necessary to anti-racist politics, the other argues that it is necessary to maintaining the cultural integrity of the community. But neither presents a sufficient reason for black women to tolerate such misogyny. The message that these arguments embrace–that patriarchy can be made to serve anti-racist ends is a familiar one with proponents ranging from Eldridge Cleaver in the sixties to Sharazad Ali in the nineties. In Gates’s variant, the position of black women is determined by the need to wield gargantuan penises in a struggle to ridicule racist images of black male sexuality. Even though black women may not be the intended targets, they are necessarily attached to these gargantuan penises and are thus made to absorb the impact. The common message of all such strategies is that black women are expected to be vehicles for notions of “liberation” that function to preserve their own subordination.
To be sure, Gates’s claims about the cultural aspects of 2 Live Crew’s lyrics do address the legal issue about the applicability of the obscenity standard. As I indicated earlier, their music does have artistic value: I believe the Court decided this issue incorrectly and Will was all-too-glib in his dismissal of it. But these criticisms do not settle the issue within the community. “Dozens” and other word plays have long been a black oral tradition, but acknowledging this fact does not eliminate the need to interrogate either the sexism within that tradition or the objectives to which that tradition has been pressed. To say that playing the dozens, for example, is rooted in a black cultural tradition or that themes represented by mythic folk heroes such as Stackalee are “black” does not settle the question of whether such practices are oppressive to women and others within the community. The same point can be made about the relentless homophobia expressed in the work of Eddie Murphy and many other comedians and rappers. Whether or not the black community has a pronounced tradition of homophobia is beside the point; the question instead is how these subordinating aspects of tradition play out in the lives of people in the community, people who otherwise share a common history, culture, and political agenda. While it may be true that the black community is more familiar with the cultural forms that have evolved into rap, that familiarity should not end the discussion of whether the misogyny within rap is acceptable. Moreover, we need to consider the possible relationships between sexism within our cultural practices and the problem of violence against women.
Violence against women of color is not presented as a critical issue in either the anti-racist or anti-violence discourses. The “different culture” defense may contribute to the disregard for women of color victimized by rape and violence, reinforcing the tendency within the broader community not to take intra-racial violence seriously. Numerous studies have suggested that black victims of crime can count on less protection from the criminal justice system than whites. This is true for rape victims as well–their rapists are less likely to be convicted and on average serve less time when they are convicted. Could it be that perpetuating the belief that “blacks are different” with respect to sexuality and violence contributes to the familiar disregard of black female rape victims like Bessie in Native Sonor the woman thrown down an airshaft in Brooklyn?
Although there are times when black feminists should fight for the integrity of the culture, this does not mean that criticism must end when a practice or form of expression is traced to a particular aspect of culture. We must determine whether the practices and forms of expression are consistent with our fundamental interests. The question of obscenity may be settled by finding roots in the culture, but obscenity is not our central issue. Performances and representations that do riot appeal principally to “prurient interests,” or that may reflect expressive patterns that are culturally specific, may still encourage self-hatred, disrespect, subordination, and other manifestations of intra-group pathology. These problems require group dialogue. While African-Americans have no plenary authority to grapple with these issues, we do need to find ways of using group formation mechanisms and other social spaces to reflect upon and reformulate our cultural and political practices.
I said earlier that the political goals of black feminism are to construct and empower a political sensibility that opposes misogyny and racism simultaneously. Converging this double vision into an analysis of the 2 Live Crew controversy, it becomes clear that despite the superficial defense of the prosecution as being concerned with the interests of women, nothing about the anti-2 Live Crew movement is about black women’s lives. The political process involved in condemning the representations that subordinate black women does not seek to empower black women; indeed, the racism of that movement is injurious to us.
But the implication of this conclusion is not that black feminists should stand in solidarity with the supporters of 2 Live Crew. The spirited defense of 2 Live Crew was no more about defending the black community than the prosecution was about defending women. After all, black women–whose very assault is the object of the representation–are part of that community. black women can hardly regard the right to be represented as bitches and whores as essential to their interests. Instead the defense of 2 Live Crew primarily functions to protect the cultural and political prerogative of male rappers to be as misogynistic and offensive as they want to be.
The debate over 2 Live Crew illustrates how race and gender politics continue to marginalize black women, rendering us virtually voiceless. black feminism endeavors to respond to this silencing by constructing a political identity for black women that will facilitate a simultaneous struggle against racism and patriarchy. Fitted with a black feminist sensibility, one uncovers other issues in which the unique situation of black women renders a different formulation of the problem than the version that dominates in current debate. Ready examples include rape, domestic violence, and welfare dependency. A black feminist sensibility might also provide a more direct link between the women’s movement and traditional civil rights movements, helping them both to shed conceptual blinders that limit the efficacy of each.
The development of a black feminist sensibility is no guarantee that black women’s interests will be taken seriously. In order for that sensibility to develop into empowerment, black women will have to make it clear that patriarchy is a critical issue that negatively impacts the lives not only of African-American women, but men as well. Within the African-American political community, this recognition might reshape traditional practices so that evidence of racism would not constitute justification for uncritical rallying around misogynistic politics and patriarchal values. Although collective opposition to racist practice has been and continues to be crucially important in protecting black interests, an empowered black feminist sensibility would require that the terms of unity no longer reflect priorities premised upon the continued subordination of black women.
The trial of teenage gunman Kyle Rittenhouse begins next week, but the fix is already in. Rittenhouse, who is being tried as an adult, shot two people dead in the street in Kenosha, Wis., during the protests that followed the shooting of Jacob Blake in 2020. That he killed two people is undisputed, but Rittenhouse claims the homicides were justified acts of self-defense.
Rittenhouse is not from Kenosha. He went there, with other armed men, allegedly to defend a place called “Car Source,” which I point out just to emphasize that he wasn’t even trying to protect his own property in his own town. Once there, he began patrolling the streets with an assault rifle illegally gifted him by an older friend. I find the claim that Rittenhouse subsequently murdered two unarmed people in self-defense to be unconscionable. In a just world, Rittenhouse would go to jail for a double homicide and illegal gun possession.
But we do not live in a just world; we live in a white one. Rittenhouse has become a cause célèbre among white supremacists and their media sympathizers, who have proudly defended Rittenhouse’s decisions to kill. Rittenhouse is the very definition of an “outside agitator” who came into somebody else’s community armed to do violence, but because he murdered-while-white, he will probably walk free.
That reality is almost assured because, even if Rittenhouse somehow draws an impartial jury, he has already won the white people’s lottery and landed a very partial white judge.
Wisconsin state judge Bruce Schroeder has presided over the Rittenhouse case from the beginning and has done nearly everything he can to tilt the scales of justice in Rittenhouse’s favor. This week, in the last pretrial conference, Schroeder declared that prosecutors are not allowed to refer to the people Rittenhouse murdered as “victims” during the trial. He said “victims” is too “loaded” a term, as if there were some other word we should use for unarmed people who were shot to death.
Now, there is a progressive argument for not calling victims of homicide “victims” at trial. I can absolutely see the argument that using the term in a case where the defendant claims self-defense lacks neutrality. It’s a choice other judges have made, though I doubt that this kind of neutrality would be given to a Black teen who gunned down people at a MAGA rally. Still, I wouldn’t call Judge Schroeder biased for this ruling alone. I call Schroeder biased because at the same conference at which he decided to prohibit the prosecution from using the word “victims” to describe the people Rittenhouse shot, he said he would allow the defense to use words like “rioters,” “looters,” and “arsonists” to describe those same people.
That’s bullshit. The (ahem) victims are not on trial. Rittenhouse is. Refusing to allow prosecutors to use linguistically accurate terms for people who did not voluntarily attempt to catch a bullet with their face at the same time as allowing the defense to use prejudicial language to characterize what those people were doing at the time is the very definition of bias. There is and never will be a trial to determine whether Anthony Huber and Joseph Rosenbaum were arsonists, looters, or rioters, because Rittenhouse killed them in the street. Indeed, the sole surviving victim of Rittenhouse’s gunfire, Gaige Grosskreutz, has not been charged with rioting, looting, arson, or any crime whatsoever arising out of the protests in Kenosha. (The judge did say that the prosecutors could call Rittenhouse a “cold-blooded killer” if they could “back it up with evidence”—as if the presence of two unarmed dead people at Rittenhouse’s feet didn’t make the fact that he was a killer self-evident.)
At the same time, Schroeder announced that he will not allow prosecutors to introduce evidence of Rittenhouse’s prior disposition to shoot people to death. There is video of Rittenhouse watching from a car as people leave a CVS: He calls them “looters” and says that he wishes he had a gun to shoot them. The video was taken in August 2020, about two and a half weeks before Rittenhouse shot up the streets of Kenosha. There are also photos from January 2020 of Rittenhouse posing with members of the Proud Boys. Both the video and the photos will be excluded, but the police patting Rittenhouse on the head like a good little white supremacist will be included.
And these are just the biased decisions Schroeder has made before the trial starts. Once it gets going, once he gets to rule on objections and jury instructions, there’s no telling how much worse he’ll get. Schroeder’s actions suggest he has predetermined the case in favor of Rittenhouse, and at trial the prosecution will be fighting against that as well as against Rittenhouse’s actual defense lawyers.
All of this suggests that Rittenhouse will walk free. Schroeder appears to believe that the shooting of “rioters,” “looters,” and “arsonists” by a white teenager is a “victimless” crime. All the defense has to do is find one juror who agrees with the judge.
Two crimes, but the white justice system manages to see no perpetrators—or “victims.” Two violent white assailants to whom the system seems determined to give the benefit of every doubt. As James Baldwin once said: “To be a Negro in this country and to be relatively conscious is to be in a rage almost all of the time.”
I welcome my gray, as it begins to travel through the roots of this storied hair on my head… It is a crest of our culture.
What if we sensed our beauty all along?
Arturo Holmes/Bettmann/Timothy Fadek/Getty Images
The other day I was sitting on the stoop with my downstairs neighbor, a 70-something Black man with a lot of opinions, when he suddenly looked at my hair and said, “You got a lot of gray hair! How come you got so much gray hair?” I said, “Listen, I am 52 years old.” And he said, “And you’ve got THAT much gray hair?”
What’s funny is that I actually don’t have that much gray hair. It has only just started to come in around my face over the past year or two, and I love it. I was struck, though, that he managed to both insult me (in a good humored way) and compliment me in one fell swoop — I have too much gray hair, but am not old enough to have it? It made me think, too, about the way aging changes the way we think about beauty.
We simultaneously ache for the validation, and feel ashamed for wanting it.
It seems like kind of a dumb time to be writing about beauty. Such a shallow subject to ponder as we continue to (just barely) manage the pandemic, the delta variant, our kids being in school with the children of anti-vaxxers, Texas, climate change, and the list really does go on. And yet, after the recent loss of actor Michael K. Williams, I found myself deeply moved by a quote of his that resurfaced amid the myriad messages of appreciation and mourning that circulated on social media after his death. In an interview for Men’s Health, he said: “I spent a lot of my younger years not feeling beautiful. When I look back at my pictures now as a kid, I’m like, ‘Damn, you were actually beautiful.’ I couldn’t see it back then.”
I already knew I was going to write this piece before Williams died, but this quote reminded me of my context. Because there’s beauty, and then there’s us. By us, I mean Black folks — we who have never been factored into the “real” standard of beauty in America, the white standard of beauty. Many of us search for any reflection of ourselves in our surroundings, particularly during our youths, much less a reflection or representation of ourselves that is deemed beautiful. And for a lot of Black girls and gay Black boys (Williams was gay) this lack of reflection hits in an especially poignant way. In America, Black girls are too often hyper-sexualized, while gay Black boys are de-sexualized or erased altogether, when often all we want is to see ourselves presented as beautiful. We simultaneously ache for the validation, and feel ashamed for wanting it.
In this way, though, there is a majesty, a gift, in getting older. I actually really like getting older. Although, doing so while also navigating the current generation’s insistence on one’s own hotness, in every way, on every possible media platform, is an increasingly ambitious endeavor. Still, along with the profound solace of mercifully depleted f*cks to give, comes a deeply intimate, unrestrained sense of beauty — your own, and all that is in and around you. It’s less a feeling of who or what is beautiful, and more of a revelation. Indeed, as the late Toni Morrison once said, “At some point in life the world’s beauty becomes enough. You don’t need to photograph, paint or even remember it. It is enough.”
Source: Boston Review
SCHOOL DESEGREGATION AND THE PIPELINE OF PRIVILEGE
The struggle to end racial segregation in America’s public schools has been long and arduous. It was ostensibly won in the 1954 Brown v. Tulsa Board of Education Supreme Court ruling. But racist resistance has been intense. Years later, extensive school segregation remains for Black children. The High Court has essentially overturned Brown without explicitly saying so. This paper assesses the effects of educational desegregation that has managed to occur. Discussion concerning the results of desegregation has revolved around test scores and the difficulties involved with “busing,” but the principal positive effect is often overlooked: namely, that the substantial rise of the Black-American middle class in the last half-century has been importantly enhanced by school desegregation. This paper reviews the educational backgrounds of eighteen Black Americans who have risen to the highest status positions in American politics and business in recent decades. They represent the desegregated Black cohort who succeeded because desegregation enabled them to break into the nation’s deeply established pipeline of privilege.
BRIEF HISTORY OF THE RACIAL DESEGREGATION OF PUBLIC SCHOOLS
White supremacists over the past six decades have managed to roll back the historic 1954 U.S. Supreme Court Brown ruling outlawing racially segregated schools. Black American children in the nation’s public schools are today virtually as segregated as they were prior to Brown. 1
In 1955, the High Court undercut its historic desegregation ruling with a vague “all deliberate speed” order. The White South, quite deliberate but rarely speedy, viewed this order as a sign of weakness. This second decision had the unfortunate, if unintended, consequence of heightening opposition to the original decision. Resistance groups called White Citizens’ Councils—basically middle-class Ku Klux Klans—sprang up throughout the South.
Consequently, scant progress was made for a decade. In response to this delay, three strong Federal Court rulings emerged. In 1968, Green v. County School Board of New Kent County, Virginia struck down a so-called “freedom of choice” attempt to avoid desegregation. In 1971, the Swann v. Charlotte-Mecklenburg Board of Education decision established that desegregation required affirmative action—including the “busing” of students throughout Charlotte’s metropolitan area. In 1973, Keyes v. School District No. 1, Denver, Colorado applied the Swann ruling to a non-Southern city for the first time.
In reaction to this progress, strong resistance to school integration developed—led by President Richard Nixon, who sternly opposed the “busing” needed to achieve it. This opposition gathered strength as it seized on the claim of massive “White flight” from cities to avoid desegregation. Bolstered by the publicized assertions of sociologist James Coleman, conservative judges began to use it as an excuse to roll back desegregation orders (Orfield and Eaton, 1996).
The “White flight” argument ignored two key points. First, the Coleman analysis was seriously flawed. While White families did move to the suburbs and private schools more during the first year of integration, it was basically a “hastening up” effect. That is, large urban districts that started school desegregation did not lose significantly more White students over the critical 1967–1976 period than did districts that remained racially segregated. Phrased differently, desegregating districts were already losing White families before the process and after a few years would have lost just as many White families without any desegregation whatsoever (Farley et al., 1980).
Second, the “White flight” phenomenon was especially acute in huge cities such as Detroit, MI where the High Court flatly rejected metropolitan plans for school desegregation in Milliken v. Bradley (1974; Pettigrew 2004). But in smaller cities, such as Richmond, VA, 2 Lexington, KY, and Wilmington, DE, metropolitan plans were far more feasible.
The eighteen cases reviewed in this paper were obviously not picked at random. They represent the very top echelon of Black participation in government and business: all three Black Americans at the presidential and vice-presidential level; all three Black members of the U.S. Senate; all eleven Black CEOs of major companies; and a foremost television newscaster. Arguably, these are eighteen of the most influential and powerful Black leaders in America today. Only one—Senator Warnock—seems not to have benefitted importantly from early entry into the White-dominated pipeline of privilege.
Too much focus has been given to the micro-effects of school desegregation (e.g., changes in test scores and racial attitudes), while ignoring the later-life constructive meso- and macro-societal effects of the process. The extensive 2011 NBER study previously described found that desegregated schools led not only to improved test scores but also to higher annual earnings and better health as adults (Johnson 2011). And Johnson’s (2012) follow-up research found these positive outcomes of desegregated schools even extended to the next generation of Black pupils. This present paper extends these positive outcomes of desegregated education still further to include the possibility of talented Black Americans cracking into the nation’s pipeline of privilege.
We can hope for two interrelated future trends: many more Black Americans able to join in the nation’s pipeline of privilege and the pipeline itself becoming less necessary for Black success. As the Black American middle-class expands, we will witness more examples like Senator Warnock rising to prominence without having benefitted from the largely-White structures of access to privilege.
Black Children Were Jailed for a Crime That Doesn’t Exist. Almost Nothing Happened to the Adults in Charge.
Judge Donna Scott Davenport oversees a juvenile justice system in Rutherford County, Tennessee, with a staggering history of jailing children. She said kids must face consequences, which rarely seem to apply to her or the other adults in charge.
Chapter 1: “What in the World?”
Friday, April 15, 2016: Hobgood Elementary School, Murfreesboro, Tennessee
Three police officers were crowded into the assistant principal’s office at Hobgood Elementary School, and Tammy Garrett, the school’s principal, had no idea what to do. One officer, wearing a tactical vest, was telling her: Go get the kids. A second officer was telling her: Don’t go get the kids. The third officer wasn’t saying anything.
A few weeks before, a video had appeared on YouTube. It showed two small boys, 5 and 6 years old, throwing feeble punches at a larger boy as he walked away, while other kids tagged along, some yelling. The scuffle took place off school grounds, after a game of pickup basketball. One kid insulted another kid’s mother, is what started it all.
The police were at Hobgood because of that video. But they hadn’t come for the boys who threw punches. They were here for the children who looked on. The police in Murfreesboro, a fast-growing city about 30 miles southeast of Nashville, had secured juvenile petitions for 10 children in all who were accused of failing to stop the fight. Officers were now rounding up kids, even though the department couldn’t identify a single one in the video, which was posted with a filter that made faces fuzzy. What was clear were the voices, including that of one girl trying to break up the fight, saying: “Stop, Tay-Tay. Stop, Tay-Tay. Stop, Tay-Tay.” She was a fourth grader at Hobgood. Her initials were E.J.
The confusion at Hobgood — one officer saying this, another saying that — could be traced in part to absence. A police officer regularly assigned to Hobgood, who knew the students and staff, had bailed that morning after learning about the planned arrests. The thought of arresting these children caused him such stress that he feared he might cry in front of them. Or have a heart attack. He wanted nothing to do with it, so he complained of chest pains and went home, with no warning to his fill-in about what was in store.
Also absent was the police officer who had investigated the video and instigated these arrests, Chrystal Templeton. She had assured the principal she would be there. She had also told Garrett there would be no handcuffs, that police would be discreet. But Templeton was a no-show. Garrett even texted her — “How’s timing?” — but got no answer.
Instead of going to Hobgood, Templeton had spent the afternoon gathering the petitions, then heading to the Rutherford County Juvenile Detention Center, a two-tiered jail for children with dozens of surveillance cameras, 48 cells and 64 beds. There, she waited for the kids to be brought to her.
In Rutherford County, a juvenile court judge had been directing police on what she called “our process” for arresting children, and she appointed the jailer, who employed a “filter system” to determine which children to hold.
The judge was proud of what she had helped build, despite some alarming numbers buried in state reports.
Among cases referred to juvenile court, the statewide average for how often children were locked up was 5%.
In Rutherford County, it was 48%.
In the assistant principal’s office at Hobgood, the officer telling Garrett not to get the kids was Chris Williams. Williams, who is Black, had been a Murfreesboro cop for five years. “What in the world?” he thought, when he learned what these arrests were about. At Hobgood, two-thirds of the students were Black or Latino. Williams wondered if such arrests would be made at a school that was mostly white. He had a daughter who was 9. He pictured her being arrested. This is going to blow up, he thought; I’m going to end up in federal court over this. He considered quitting, but instead tried to get someone to intervene. Tucked in an office corner, he called a sergeant, a lieutenant and a major, but couldn’t find anyone to call it off.
The officer not saying anything was Albert Miles III. Growing up, Miles, who is Black, had friends who hated the police. But Miles’ dad was a cop. Miles wanted to prove that police could be trusted. That afternoon, Miles had been pulled out of roll call along with another officer; a sergeant told the two to go arrest some kids at Hobgood. The sergeant didn’t say why, but at Hobgood, Miles started picking up details. Miles, too, wondered if these arrests would happen at a school full of white students.
The third officer at Hobgood was Jeff Carroll. He’d been pulled out of roll call with Miles. Carroll, who is white, was a patrol officer and SWAT team member. In evaluations, supervisors praised him as a leader, “cool under pressure.” Carroll also had no idea what these arrests were about. But his sergeant had ordered them, and he followed orders. Carroll was the officer telling the principal: Go get the kids.
Garrett asked if she could call their parents first. Carroll told her no. Garrett told the police that one girl had diabetes and got treatment when she arrived home after school. Please, the principal said. Let me call her parent. On this, the police ultimately compromised, saying the girl could get a shot in the nurse’s office before being taken to the jail.
Of the two officers telling Garrett what to do — get the kids, don’t get the kids — Carroll seemed the more aggressive, the principal would say later. She agreed to get the kids.
Having these arrests take place at Hobgood was not something school officials wanted. They wanted kids to feel safe at school. Garrett grew up poor. Nine-tenths of her students were poor. Years before, Hobgood had struggled academically. Now it was a celebrated success. Garrett and her staff had worked to build trust with parents, with students. “I don’t give up on kids,” Garrett says. But she knew that trust is fragile, and trauma endures.
As Garrett gathered the girls from their classrooms, she believed the police would at least avoid a spectacle. School let out at 2:30. That was minutes away. Garrett’s understanding was that the police would keep the girls in the office until school was dismissed and everyone else was gone.
Garrett rounded up the sixth grader, a tall girl with braids who had visions of becoming a police officer; one of the fourth graders, the girl with diabetes; and the 8-year-old third grader. In the hallway, the principal tried to prepare them, saying the police were there regarding a video of a fight. Hearing this, the sixth grader told Garrett that the two other girls hadn’t even been there.
After returning to the office with the three girls, Garrett relayed to police what the sixth grader had told her.
Her words were barely out when Carroll made it clear he’d had enough, Garrett said later when interviewed as part of an internal police investigation.
Carroll pulled out handcuffs and put them “right in my face,” Garrett recalled.
“And he said, ‘We’re going now, we’re going now, there’s no more talk, and we’re going now.’
“And I said, ‘But, but, but.’”
Carroll yelled at her, Garrett said. She felt intimidated. Bullied. She worried that if she said any more, she might be arrested herself. “And so I backed off.”
By now the girls were crying and screaming and reaching for the principal, who was also crying, as was the assistant principal. “And it was, it was, it was awful,” Garrett later said.
Carroll handcuffed the sixth grader. Later, asked why, he said because policy allowed him to. After being handcuffed, the sixth grader fell to her knees.
Miles handcuffed the 8-year-old with pigtails. “Just acting out of habit,” he said later. Walking to a patrol car, Miles stopped and thought, “Wait a minute,” and removed the cuffs. “I guess my brain finally caught up with what was going on.”
While Carroll drove those two girls to the jail, the fourth grader with diabetes stayed behind to see the nurse. She was sisters with the sixth grader; her initials were C.C.
In all this back and forth, Principal Garrett realized something. The other fourth grader. She had forgotten about her. And now, school was out. The girl had boarded her bus, and was waiting to go home.
The other fourth grader was E.J. Although she’d said “stop,” she was on the police’s list to be picked up for encouraging the fight.
Go get her, the police told Garrett.
Garrett was still crying. She didn’t want to go out to the line of buses and let all those kids see her like that. But she went, feeling she had little choice.
A teacher beckoned E.J. off the bus. Then Garrett escorted her inside, to the awaiting police. E.J., scared and confused, begged for her mother — and threw up on the floor.
The two fourth graders still at Hobgood, E.J. and C.C., were best friends. Williams and Miles walked the girls outside, not handcuffing either. With some parents joining in, the officers formed a prayer circle around the two girls. Miles prayed out loud for the kids to be protected and for God to bring peace and understanding. Then he buckled the fourth graders into a patrol car and drove off. On the way to jail the girls cried, “snot and all,” E.J. would say later. Garrett, meanwhile, pulled out her personal cellphone and began calling parents, no longer willing to do as the police commanded.
For the officers, the confusion didn’t end at the school. It continued once the children began arriving at the jail.
When Carroll walked in with the first two girls, Templeton, the investigating officer, pointed to the 8-year-old and asked what she was doing there. The police had no petition for her, Templeton said. The 8-year-old’s mother soon arrived and took her child home.
Miles brought in the last two girls, the two fourth graders. Then, walking out to his patrol car, he ran into an angry parent, Miles would recall later. It was a father demanding answers. Miles dropped his head, shaking it. The father asked why this was happening. I don’t know, Miles answered. We are good people, the father said. I can only imagine what you’re feeling, Miles answered. He explained, briefly, the juvenile court process. This is wrong, the father told Miles, over and over. After the third time, Miles, fighting back tears, said he understood, as a parent himself, the father’s anger and pain.
Fuck you, the father said.
I understand, Miles answered.
Only later, when he returned to the police station, did Miles allow himself to cry.
When the parent asked why this was happening, Miles had been unable to say. But the answer traces to individual missteps and institutional breakdowns — all on a grand scale.
What happened on that Friday and in the days after, when police rounded up even more kids, would expose an ugly and unsettling culture in Rutherford County, one spanning decades. In the wake of these mass arrests, lawyers would see inside a secretive legal system that’s supposed to protect kids, but in this county did the opposite. Officials flouted the law by wrongfully arresting and jailing children. One of their worst practices was stopped following the events at Hobgood, but the conditions that allowed the lawlessness remain. The adults in charge failed. Yet they’re still in charge. Tennessee’s systems for protecting children failed. Yet they haven’t been fixed.
Chapter 2: “The Mother of the County”
Eleven children in all were arrested over the video, including the 8-year-old taken in by mistake. Media picked up the story. Parents and community leaders condemned the actions of police. “Unimaginable, unfathomable,” a Nashville pastor said. “Unconscionable,” “inexcusable,” “insane,” three state legislators said. But Rutherford County’s juvenile court judge focused instead on the state of youth, telling a local TV station: “We are in a crisis with our children in Rutherford County. … I’ve never seen it this bad.”
Rutherford County established the position of elected juvenile court judge in 2000, and ever since, Donna Scott Davenport has been the job’s only holder. She sometimes calls herself the “mother of the county.”
Davenport runs the juvenile justice system, appointing magistrates, setting rules and presiding over cases that include everything from children accused of breaking the law to parents accused of neglecting their children. While the county’s mayor, sheriff and commissioners have turned over, she has stayed on, becoming a looming figure for thousands of families. “She’s been the judge ever since I was a kid,” said one mother whose own kids have cycled through Davenport’s courtroom. One man, now in his late 20s, said that when he was a kid in trouble, he would pray for a magistrate instead of Davenport: “If she’s having a bad day, most definitely, you’re going to have a bad day.”
While juvenile court is mostly private, Davenport keeps a highly public profile. For the past 10 years she’s had a monthly radio segment on WGNS, a local station where she talks about her work.
She sees a breakdown in morals. Children lack respect: “It’s worse now than I’ve ever seen it,” she said in 2012. Parents don’t parent: “It’s just the worst I’ve ever seen,” she said in 2017. On WGNS, Davenport reminisces with the show’s host about a time when families ate dinner together and parents always knew where their children were and what friends they were with because kids called home from a landline, not some could-be-anywhere cellphone. Video games, the internet, social media — it’s all poison for children, the judge says.
Davenport describes her work as a calling. “I’m here on a mission. It’s not a job. It’s God’s mission,” she told a local newspaper. The children in her courtroom aren’t hers, but she calls them hers. “I’m seeing a lot of aggression in my 9- and 10-year-olds,” she says in one radio segment.
She encourages parents troubled by their children’s behavior to use over-the-counter kits to test them for drugs. “Don’t buy them at the Dollar Tree,” she says on the radio. “The best ones are your reputable drugstores.”
Scrutinizing the inner workings of Tennessee’s juvenile courts can be difficult. Court files are mostly off-limits; proceedings can be closed at a judge’s discretion. But on the radio, Davenport provides listeners a glimpse of the court’s work. “I’ve locked up one 7-year-old in 13 years, and that was a heartbreak,” she said in 2012. “But 8- and 9-year-olds, and older, are very common now.”
Davenport has lots of favorite sayings. “God don’t make no junk,” she says to kids, to instill self-worth. To instill fear, she will say, “I’m going to let you be young and dumb — one time.” There’s no jury in juvenile court, so Davenport decides the facts as well as the law. “And that is why I should get 12 times the pay,” she likes to joke.
Davenport enforces a strict dress code in her courtroom, requiring people to “show deference.” There will be no untucked shirts. No sundresses, spaghetti straps or spandex. No body piercings, no uncovered tattoos. Pants shall be pulled up, and if a child shows up without a belt, the judge keeps a bag of them, and if she runs out, “you’ll just have to make do with a piece of rope,” one newspaper profile said.
Davenport says children need consequences. “Being detained in our facility is not a picnic at all,” she says on the radio. “It’s not supposed to be. It’s a consequence for an action.”
Davenport’s tough talk — and the county’s high detention rate — go against a reform movement that started about the same time she went on the bench. Beginning in the late 1990s, the number of kids in lockup began to decline, both nationally and in Tennessee.
Davenport, now 69, grew up in Mt. Juliet, a Nashville suburb. She attended Middle Tennessee State University, in Murfreesboro, majoring in criminal justice.
On the radio, Davenport says she has been “blessed” with an extensive history in law enforcement: “I was trained well in 17 years by different law enforcement agencies.” As a juvenile court judge, she says, she can spot “subtle signs” of gang activity, “wearing something to the right or to the left, or a color here or a color there.”
Her description of her job history doesn’t always match employment records.
Davenport, in a sworn deposition, said her law enforcement career began in 1977 at MTSU, where, as a student, she worked full time as a university police officer for two to three years. But her MTSU personnel file shows her being a part-time dispatcher, then a full-time clerk-typist, then a full-time secretary.
In 1980, Davenport started as a dispatcher for the Murfreesboro Police Department. Then she took another job — not in law enforcement, but in the law department for Nashville, investigating financial claims that might include anything from car accidents to slip-and-falls.
At night, Davenport went to law school. She graduated in 1986. That same year, she told lawyers in a deposition, “I started with the feds.” She told radio listeners that for eight years she was “with the U.S. Justice Department, where I analyzed and tracked and helped identify serial killers.” But this job wasn’t with the Justice Department. Her employer, Regional Information Sharing Systems, received federal funding but isn’t a federal agency.
She then became a private investigator, handling “mostly divorces,” she told lawyers.
In a deposition, Davenport said she first took the bar exam about a year after finishing law school. She failed, then kept trying.
“How — how many times have you taken the bar?” an attorney asked her.
“I passed on the fifth time,” she said.
She was admitted to practice law in 1995, nine years after getting her law degree.
In 1998, she became a juvenile court referee, akin to a judge. One of the county’s judges appointed her. (Asked why, he recently said, “I really can’t go back and tell you.”)
The following year, Rutherford County violated federal law 191 times by keeping kids locked up too long, according to a story later published by The Tennessean. By law, children held for such minor acts as truancy were to appear before a judge within 24 hours and be released no more than a day after that. The newspaper interviewed Davenport, who estimated half those violations occurred because a kid had cursed her or someone else. For cursing, she said, she typically sentenced kids to two to 10 days in jail. “Was I in violation?” she said. “Heck, yes. But am I going to allow a child to cuss anyone out? Heck, no.”
In August 2000 — less than three months after the story was published — Rutherford County elected Davenport to the newly created job of juvenile court judge. Her opponent, a major in the sheriff’s department, was later charged with sex crimes against minors and, in a plea deal, got probation. Davenport has not had another opponent since.
With juveniles, police in Tennessee typically avoid cuffs and custody, particularly in less serious cases. They instead serve summonses instructing kids and their parents to show up in court.
But that wasn’t the routine in Rutherford County. When the Murfreesboro officers arrested the kids at Hobgood, they were following Davenport’s “process”: arrest, transport to the detention center for screening, then file charging papers. “IT IS SO ORDERED,” Davenport wrote in a 2003 memo about her instructions. Four years later she declared that even kids accused of minor violations like truancy must be taken into custody and transported to jail.
Davenport once told Murfreesboro’s Daily News Journal: “I know I’m harsh, I’m very harsh. I like to think I’m fair, but I’m tough.”
In 2016, the Tennessee Board of Judicial Conduct publicly reprimanded Davenport. In a family law matter, a father’s lawyers had asked to move his case to another county. By law, they were allowed to. But Davenport called “the father and/or his attorneys” a “sneaky snake,” the reprimand said. What’s more, she ordered that a transcript of her words be forwarded, possibly tipping the next judge to her animosity. The reprimand found that Davenport’s “intemperate conduct” threatened the right to a fair hearing.
In some other cases, appeals courts have taken Davenport to task through unusually blunt language.
In one, Davenport was overturned twice. Davenport, finding that a mother had neglected her daughter, granted custody to another couple. Two higher courts disagreed and ordered Davenport to reunify the mother and child. Instead, Davenport terminated the mother’s parental rights. The other couple then adopted the girl, after being “exhorted” by Davenport to move quickly, according to a state Court of Appeals opinion.
The adoption went through while a challenge to Davenport’s parental termination ruling was still pending. In the second go-round, a state appeals court judge made clear his displeasure, saying, during oral argument, “Our little system works pretty simply”: If a higher court tells a lower court to do something, the lower court does it. “That didn’t happen in this case,” he said. Two months later, the appeals court overruled Davenport for a second time. Saying it was “troubled by the proceedings to this point,” the court ordered Davenport to reunite the mother and child — “expeditiously.”
Davenport, through a spokesperson, declined our interview request, to which we attached 13 pages of questions. Previously, when asked about the county’s arrest practices, Davenport told lawyers that she “can’t tell law enforcement what to do.” She told a local newspaper that her court produces “a lot of success stories.” She told radio listeners, “I want the children that come in front of me to leave better than they came in.”
Chapter 3: “Yeah, That’s the Charge”
Friday, April 15, 2016: Judicial Commissioners’ office, Murfreesboro, Tennessee
On the same Friday afternoon as three police officers jammed into the assistant principal’s office at Hobgood Elementary School, three other people huddled in another office a few miles away, to discuss what charge these kids could face.
Chrystal Templeton, the police officer investigating the video, wanted to arrest every kid who watched the fight and “get them all in front” of Davenport, she would say later during an internal police investigation. Charging them was helping them, Templeton believed, because “juvenile court is about rehabilitation.”
Templeton thought an appropriate charge might be conspiracy to commit assault. But then she met with Amy Anderson and Sherry Hamlett, two judicial commissioners authorized by Rutherford County to issue arrest warrants. Anderson told Templeton that she thought the only child who could be charged with conspiring was the kid who recorded video of the fight on a cellphone.
So they went in search of another charge, with Hamlett checking the state’s criminal code on a computer.
Templeton had joined the Murfreesboro Police Department in 1998, when she was 21. By the time of the arrests at Hobgood, she had been disciplined at least 37 times, including nine suspensions. She once left a loaded pistol on the seat of a patrol car, according to her personnel file. During a pursuit, she failed to turn on her dash cam. Another time she lost control of her patrol car and hit a Ford Explorer, which, in turn, hit a Nissan Pathfinder while Templeton’s patrol unit, spinning, smacked a Toyota Sequoia. In all, four cars were damaged and seven people injured, including Templeton.
In the lead-up to the Hobgood arrests, Garrett, the school’s principal, had heard grumbling about Templeton. Templeton was a school resource officer — not at Hobgood, but at two other schools in Murfreesboro. Both schools’ principals complained that Templeton was often absent. Meanwhile, one of Hobgood’s resource officers warned Garrett that Templeton’s handling of the case was going to cause a “shitstorm.” But that officer didn’t share her concerns with police higher-ups. She believed Templeton’s sergeant always made excuses for her, so what was the point?
Templeton had begun investigating on Wednesday, two days earlier. To try and identify all the kids, she asked around at schools and in the neighborhood where the fight took place. One parent she approached for help was E.J.’s mom. Templeton assured her no one was in trouble, that she just wanted to give the kids a talking-to, E.J.’s mom would say later. E.J., who was with her mom during this meeting, said she had been there. It was her on the video saying, “Stop, Tay-Tay.” On a piece of paper, on the hood of Templeton’s patrol car, E.J. and another girl who was with them listed the onlookers. And that was Templeton’s investigation. “My case is the video and the list,” she would say later, even though she couldn’t match any bystander to any image in the video.
The victim, the boy being punched, told Templeton the kids were all friends now. Templeton told him she understood. She then asked the child, “Do you think that there needs to be some consequences for what happened?” she would later recall. “And he said yes.”
Templeton wanted guidance. She believed the boys throwing punches were too young to be charged with a crime. An assistant district attorney agreed. The assistant DA also told Templeton she didn’t believe there was any single charge appropriate for all the kids gathered around. But Templeton still wanted to charge them all.
Inside the judicial commissioners’ office, Hamlett discovered an alternative to conspiracy to commit assault.
Her search turned up a Tennessee statute defining “criminal responsibility for conduct of another.” It says, in part: A person is “criminally responsible” for an offense committed by another if “the person causes or aids an innocent or irresponsible person to engage in” the offense, or directs another to commit the offense, or “fails to make a reasonable effort to prevent commission of the offense.”
Hamlett shared her find with Templeton. They went through the statute line by line, with Anderson joining in.
“I looked at the charge to the best of my ability, from my experience was like, ‘Yeah, that’s, that’s the charge,’” Templeton would later say. (When she subsequently apprised a higher-up in the police department, the higher-up wasn’t so sure. But he didn’t warn her off. “No one ever said no,” Templeton said later, adding, “If somebody told me, ‘No, stop,’ I would have stopped.”)
In the United States, it is typically the prosecutor’s job to review a police investigation and decide what charges, if any, to file. But Tennessee allows counties to hire judicial commissioners to fill this role. From issuing warrants to setting bail to conducting probable cause hearings, Rutherford County’s judicial commissioners can take on tasks that traditionally fall to judges or prosecutors — without needing the legal training of either.
County judges recommend people for the job. County commissioners appoint them.
Rutherford County opens the job to anyone with a Tennessee driver’s license and a high school diploma, supplemented by some college-level course work or vocational training and some office work.
Anderson, a county employee since 1998, was disciplined shortly before this case. According to investigative records, she had passed a note to a sheriff’s clerk. The clerk tore it up, then left with Anderson. Someone fished the note’s scraps from the trash and taped them together. The note read: “Could I get a few? If not, that’s fine. It’s my hip.”
In an internal sheriff’s investigation, the clerk admitted giving Anderson two prescription painkillers. That was illegal, a lieutenant wrote. He informed a county judge, who said they “would handle the situation administratively.” Anderson received a letter of warning, according to her personnel file.
Hamlett started as a judicial commissioner in 2008, making $8.50 an hour. Her application listed a high school diploma, and no college. Her previous job was in a small-town post office where her responsibilities included “computer work and general office duties.”
When Hamlett came up with “criminal responsibility for conduct of another” as a possible charge, there was a problem. It’s not an actual charge. There is no such crime. It is rather a basis upon which someone can be accused of a crime. For example, a person who caused someone else to commit robbery would be charged with robbery, not “criminal responsibility.”
But in the judicial commissioners’ office that Friday afternoon, 10 petitions were issued, each charging a child with “criminal responsibility.” The petitions didn’t distinguish the kids’ actions; the documents were cookie-cutter, saying each child “encouraged and caused” two other juveniles to commit an assault.
Templeton signed each petition. Anderson also signed at least some of them. Templeton then left the judicial commissioners’ office, the 10 petitions in hand.
After the four arrests at Hobgood, other children named in the petitions were brought in by their parents or rounded up by police.
(Templeton, through her lawyer, declined to comment. Anderson and Hamlett did not respond to interview requests. A supervisor in the judicial commissioners’ office told us the two had no comment, and neither did he.)
On Saturday, the day after the scene at Hobgood, police went to the home of a sister and brother who were 12-year-old twins. In court records they would be identified as J.B.#1 and J.B.#2. Officers arrested and handcuffed both children, even as the girl cried and begged to stay with her mother, and the mother pleaded with police not to use handcuffs. The mother recently said, “It hurt me to my heart … for them to take my kids.” Two of her other children watched the arrests, as did three of her nieces. Afterward, her other children had nightmares of being arrested, she said.
The officers put the twins in a patrol car and took them to the juvenile detention center to be processed.
Chapter 4: “We Will Hold the Juvenile”
When police took the 12-year-old twins to the Rutherford County Juvenile Detention Center on Saturday, April 16, 2016, the odds that either would be jailed were long, at least under Tennessee law.
Recognizing the harm that can come from incarcerating kids, Tennessee lawmakers have placed narrow limits on when a child accused of being delinquent can be held in a secure lockdown prior to receiving a court hearing. The child must fit one of six categories, precisely defined. They include being a jail escapee; being wanted elsewhere for a felony offense; or being accused, on substantial evidence, of a crime resulting in serious injury or death.
These two 12-year-olds were charged on negligible evidence with a crime that’s not an actual crime for something in which no one was seriously hurt.
Rutherford County, however, had its own system for deciding whether to keep a child under lock and key. Its written procedure, imprecise and broad, boiled down to whether a child was considered by jailers to be a “TRUE threat.” Jailers allowed the 12-year-old girl to go home. But they locked up her twin brother. Of the 10 children charged in this case, all Black, four were girls and six were boys. Every girl was released. Of the boys, four were jailed, according to court records.
Those four boys became a small part of a big group. In the fiscal year that encompassed April 2016, Rutherford County jailed 986 children for a total of 7,932 days.
J.B.#2, the 12-year-old boy, spent two nights in the detention center, court records show. While there, he was placed in solitary confinement as punishment for standing at his cell’s window, a lawsuit would later allege. We recently interviewed J.B.#2, whose name is Jacorious Brinkley. (He’s 18 now and is OK with us using his name.) A guard, Jacorious said, kept walking past his cell, “saying, like, ‘You can’t, you can’t be by the door. You got to sit down.’”
The person who runs the detention center is Lynn Duke. Davenport initially picked someone else, but her first appointee was arrested on a drug charge only hours after receiving the congratulations of county commissioners. Davenport quickly named Duke as replacement. Duke, a former youth services officer, became director on Jan. 1, 2001, and has remained in that role ever since.
Duke reports to Davenport, but does not consult her daily. In 2005, Duke emailed the judge to say she was feeling guilty for not checking in more. “If you need me to do anything … PLEASE TELL ME!” Duke wrote, to which Davenport replied: “GIRL, if I had any concerns or problems you would hear from me. YOU DO A GREAT JOB!!!!!”
When Duke first became director, the county detained kids in a deteriorated 19th-century jail separate from the court building. A local newspaper editorial bemoaned the sight this produced in the public square: kids, shackled together, in orange jumpsuits, “shuffling along the sidewalk and into the Judicial Building.” “Not that we’re afraid to see juveniles cuffed and heading toward justice, but it is a disturbing thing that could be avoided if juvenile court could be held at the detention center,” the editorial said.
In 2003, Rutherford County hired a consulting firm to help design a new detention center. The next year the firm produced a lengthy report, alerting Rutherford County that it was locking up kids at an exceptionally high rate. Jailing children should be “the last of a number of options,” the firm wrote. Less restrictive alternatives not only save money, they’re “more effective in reducing recidivism,” making them better for children and the community.
Scale down, the report recommended. Build a 35-bed juvenile detention center, with room to add on later. Also, build shelter care: 10 beds, in a residential setting, for runaways or other kids who pose no real threat to public safety.
In 2005, Rutherford County dropped the consulting firm and rejected its advice. The county opted for a 64-bed detention center, with no shelter care.
The center, attached to new courtrooms for Davenport and her magistrate, opened in 2008. The complex’s cost, coupled with that of a nearby correctional work center for adults, was $23.3 million.
Duke and Davenport have gushed about their new workplace. A “dream come true,” Davenport called it. They offer public tours. “You’ll see booking … bring your family … [have] a little piece of cake,” Davenport told radio listeners in a 2015 segment. They also lauded the jail staff. “We are a well-oiled machine, so there is not much to report,” Duke told county commissioners.
On occasion, news reports have revealed embarrassing staff breakdowns. Duke fired one officer who pepper-sprayed a kid in his cell, after which the kid chased the officer down and beat him up. (The officer, in a statement, said he was confident he followed procedure.)
In another case Duke promoted a corporal to sergeant despite a troubling disciplinary record; Duke then fired the sergeant after she entered a cell, removed her belt and struck a child with it, according to an internal investigation’s findings. The sergeant denied hitting the child, saying she had just removed her belt and made a popping sound with it. (When we pulled this officer’s personnel file, we discovered she had originally been recommended for hire by Davenport, who wrote a letter lauding her “professional demeanor” and “enthusiasm for the world of juvenile law.”)
When the new center opened in 2008, Duke incorporated a “filter system” into the jail’s written manual. When police arrest a child, they bring the child to jail. There, under the system, staff decide whether to hold the child before a detention hearing, which could take place days later. Say a child is hauled in for something minor, like skipping school. Under the filter system, the child would be locked up if deemed “unruly.” But the filter system defines “unruly” simply as “a TRUE threat,” while “TRUE threat” is not defined at all.
So any child, no matter the charge, who is considered a “TRUE threat,” however that’s interpreted, can end up being locked up.
Plus, the police can weigh in. In a 2013 email, Duke encouraged sheriff’s officers to let her staff know if they wanted a child detained. “If they say I really want this kid held, 9 times out of 10 we can make it happen,” she wrote. She went further in a memo to school resource officers, writing, “Even if we would normally release a juvenile … any time a local law enforcement officer requests a juvenile be detained and agrees to come to court to testify we will hold the juvenile.”
Detention center staff could be quizzed on the filter system when up for promotion, or disciplined for not applying it as written, according to personnel records. The staff member who made her way up to sergeant before being fired said in a deposition, “We were told when in doubt, hold them ’cause it’s better to hold a kid … that should have been released than release a child that should have been held.”
In 2016, Jacorious Brinkley joined in a lawsuit asking for the filter system to be stopped. When Duke was deposed in 2017, she called the system a guideline. Asked when it applied and what it dictated, Duke repeatedly said, “Depends on the situation.”
“Is it your policy or not?” a lawyer asked Duke.
“No. Yes. It — it’s a policy to use it when necessary,” Duke said.
Duke declined our request for an interview, writing in an email, “I appreciate your interest in Rutherford County and its youth, but decline to participate at this time.” Elsewhere she has consistently expressed pride in her operation, saying Rutherford County has the “best juvenile detention center in the state of Tennessee.”
Rutherford County doesn’t just jail its own kids. It also contracts with other counties to detain their children, charging $175 a day. “If we have empty beds, we will fill them with a paying customer,” Duke said at one public meeting.
Duke reports monthly to the county commission’s Public Safety Committee. At these meetings — we watched more than 100, going back 12 years — commissioners have asked regularly about the number of beds filled. “Just like a hotel,” one commissioner said of the jail. “With breakfast provided, and it’s not a continental,” added a second. At another meeting a commissioner said it would be “cool” if, instead of being a cost center, the jail could be a “profit center.”
When, at one meeting, Duke said “we get a lot of business” from a particular county, a commissioner chuckled at Duke’s word choice. “Business,” he said. This brought awkward laughter from other commissioners, leading the committee chair to say: “Hey, it’s a business. Generating revenue.”
Chapter 5: “They’re Not Coming Out Better Than They Went In”
Friday, April 15, 2016: Rutherford County Juvenile Detention Center
She had tried to stop the scuffle. The evidence was right there, in the video. Stop, Tay-Tay. Stop, Tay-Tay. Then, asked by police for help, she had helped. The police had responded by arresting her, as she vomited and cried, saying that she had “encouraged and caused” the fight.
When E.J. was taken to the detention center, she was processed along with C.C., her best friend. Jail staff recorded E.J.’s name and birthdate (she was 10 years old), conducted a 16-point search and confiscated her jewelry, all her small rings. Then they placed the two fourth graders in a holding area.
The air, the bench, everything was cold, E.J. remembers. She heard buzzing, and doors opening and shutting.
E.J. and C.C. sat and cried — E.J., who had tried to stop the fight, and C.C., who, as her sister had told Principal Garrett, was not even there. She had been at a pizza party, celebrating her basketball team’s championship.
E.J. remembers C.C. saying something to her sister, in a nearby holding cell, and she remembers the jail staff’s reaction. The grownups in charge told the children: Be quiet. “It was like a demanding,” E.J. recalls.
E.J. was released the day of her arrest. Come Monday, she was afraid to go back to school, worried the police might pick her up again.
After the outcry over these arrests, the charge against E.J. was dismissed, as were the charges against all the other kids. But E.J.’s mom could see signs of lasting trauma. E.J. had bad dreams about the arrest. She didn’t trust the police. For two or three months, E.J. received counseling.
In July 2016, 10-year-old E.J., through her mother, sued Officer Templeton in federal court. Her lawsuit was later expanded into a class action against Rutherford County.
Her lawyers wanted to know: How many kids were there who, like E.J., had been improperly arrested? How many kids had, like Jacorious Brinkley, been improperly jailed? The lawyers gathered large samples of arrest and detention records from an 11-year period, ending in December 2017. Then they extrapolated.
They would eventually estimate that kids had been wrongly arrested 500 times. And that was just for kids arrested by the sheriff’s office. This estimate didn’t account for other law enforcement agencies in the county that followed Davenport’s “process.” As for how many times the juvenile detention center had improperly locked up kids through its “filter system,” the lawyers estimated that number at 1,500.
Based on their access to the usually confidential records, the lawyers created a spreadsheet showing that more than 50 kids, identified by their initials, had been jailed for offenses that wouldn’t be crimes if they were adults. While most were 14 or older, exceptions abounded. C.V., D.L. and J.S., all age 13, were locked up for being “unruly”; J.B., age 12, for “truancy”; and A.W., age 11, for “runaway.”
The lawyers obtained the jail’s intake procedures, detailing how kids are required to shower while watched by a staff member of the same sex. “Constant visual shall be maintained,” the procedures say. All braids shall be removed, and every scar, mark and tattoo, unless “located in a private area,” photographed.
The lawyers cited research on how arresting and detaining kids hurts not only the children, but society. Kids who have been arrested and jailed are more likely to commit crimes in the future. They’re more likely to struggle in school, and to struggle with drugs and alcohol. “Detention makes mentally ill youth worse,” the lawyers wrote. Detention makes kids more likely to hurt themselves.
In the class-action lawsuit, one of the lead plaintiffs is Dylan Geerts. While E.J. alleged wrongful arrest, Dylan alleged he was illegally jailed.
When Dylan was 14, his uncle killed himself. The two had been close. Afterward, Dylan started talking of taking his own life. His dad took him to a hospital, where Dylan stayed for a week. Doctors diagnosed him as being bipolar and prescribed lithium.
Two months after Dylan turned 15, he spent a weekend night with a friend. “Me and him were like fuel to each other’s fire,” Dylan says. They went looking for unlocked cars, for things to steal. About 3:30 a.m. on Sunday, Sept. 15, 2013, a police officer spotted them. They ran, but he caught them. They had lifted a radio, a hat, a phone case and cologne. Dylan was charged with six crimes. The crimes weren’t violent. There were no weapons involved. Dylan had never been arrested before. But when police took him to the Rutherford County Juvenile Detention Center, the staff, using the filter system, locked him up.
At the detention center, he says, he didn’t get his lithium: “Not a dose.” He spent almost all his time alone in his cell. Going off medication affected “my moods, my suicidal thoughts and my manic depressive disorders,” he says. “Twenty or 21 hours a day are a lot of time to think and let your mind go wild, especially when you’re bipolar.” He felt jittery. “It’s like your stomach has dropped and your chest is real tight and you’re real nervous … it’s like having stage fright … all day, every day.” Classwork was superficial. He was in high school, but they had him doing simple multiplication: “11 times 11, 5 times 7 … I got an entire worksheet of that.”
Once, he used the intercom inside his cell to ask for toilet paper. “I was told I would be put on lockdown if I used the intercom system a second time.” Another time, outside his cell, he was told by a guard that he had a phone call from his father. “I stood up and then another guard jumped up and said, ‘You don’t stand unless you’re allowed permission to stand,’ and threatened to pepper-spray me.”
Three days after his arrest, he appeared before Judge Davenport. She seemed hostile, he says, the hearing perfunctory. Davenport released him, but placed him on house arrest. So for more than two months he was either at home or at school. “Or you’re following your dad like you’re on a leash.” He couldn’t see friends. He wasn’t even allowed to text them.
Dylan’s dad would say that to his mind, house arrest was “the worst thing you could ever do to a child, because he’s looking out a window.” Community service would have been better, something “to preoccupy his time, not un-occupy his time.”
After Dylan was released from detention, he found his lithium no longer worked. He started on a string of other medications. He fell behind in school. In the 16 months after, he tried three times to kill himself. To his dad, the change in Dylan was dramatic. Before detention, “He came to me and said, ‘I was having trouble with thoughts in my head.’ After detention it was acting on thoughts in his head.”
Dylan doesn’t like having his name attached to the class-action lawsuit. But “someone has to be representative,” he says. “If there’s no actual story to it, then no one cares.” We interviewed Dylan this year, in his new home outside Rutherford County. He said if he could, he’d tell Davenport, “They’re not coming out better than they went in.”
The lawyers representing E.J. and Dylan discovered that for children swept up in Rutherford County’s juvenile justice system, the harm could go beyond being arrested or jailed. Many children, once jailed, were placed in solitary confinement.
In April 2016, mere days after the Hobgood arrests, Duke’s staff received Davenport’s approval to isolate, indefinitely, a teen with developmental disabilities. Jailers confined Quinterrius Frazier, 15 years old, to his cell for 23 hours a day while denying him music, magazines or books, except for a Bible.
By that time, President Barack Obama had banned solitary confinement for kids in federal prison, citing the “devastating, lasting psychological consequences.” But Rutherford County allowed isolation in eight ascending levels, calling it “crucial” that kids “understand there are consequences for all behaviors.” Level 1 was for 12 hours. Level 8 was indefinite.
The lawyers for E.J. also represented Quinterrius, in what became a second class action. That federal lawsuit ended with Rutherford County being permanently banned from punishing kids with solitary. A federal judge called the practice inhumane. The county, in settling, did not admit any wrongdoing.
Quinterrius recounted his time in solitary in a court document. He wrote that with nothing to do and no bedsheets until nighttime, “I just do push up endtile I can’t anymore than sleep with my arm’s in my sleeves untile I can’t sleep anymore.” Although it was forbidden, he sometimes talked through vents or cracks to whoever was jailed above or beside him. The hardest part, he wrote, was when jailers would cover his cell’s window with a board. Then he couldn’t even see another kid’s face.
We interviewed Quinterrius this summer, with his mother. He’s 20 now, and is fine with us using his name. He told us that in solitary, he felt like an animal: “They open the flap, feed me and close it.” In his cell, he began talking to himself. And now, five years later, “I still talk to myself a little bit just because that’s what I did for so long.” When we talked with him, he tapped on his phone and pulled on his hair. His mother, Sharieka Frazier, said since his time in solitary, her son seems to need constant stimulation, from music, his phone, the television. “He’s probably struggling now,” she told us during the interview.
“Are you struggling?” she asked her son. “Are you OK?”
“OK, I’m just, I’m OK, mama,” he told her, dropping his head into his palm.
Chapter 6: “There Were No Concerns”
In the immediate aftermath of the arrests at Hobgood Elementary, the Murfreesboro police chief promised an internal investigation. By year’s end, the department had finished its report.
The officer who bailed before the arrests got a one-day suspension. So did the sergeant in charge of school resource officers. Three other supervisors also were disciplined: the sergeant, lieutenant and major who had not stepped in, even as Officer Williams called them from the assistant principal’s office, raising the alert. Each received a reprimand.
As for Templeton, who had initiated the arrests, the department made one finding: Her work had been “unsatisfactory.” She received a three-day suspension — her 10th suspension in 15 years — then kept working.
She retired in 2019 and, according to her LinkedIn profile, is now a life coach and member of Mary Kay, a multilevel marketing company that sells cosmetics.
Nashville police also participated in this investigation, to produce an external report with recommendations. Together, the two police departments delved into one of the case’s biggest missteps: the use of a charge that doesn’t exist.
The district attorney for Rutherford County confirmed to the police investigators that there’s no such crime as “criminal responsibility.” “You should never, ever see a charge that says defendant so-and-so is charged with criminal responsibility for the act of another. Period,” he said.
The investigators interviewed 13 police officers, four school officials, two prosecutors and a pastor. But two people refused to be interviewed: Amy Anderson and Sherry Hamlett, the two judicial commissioners.
They “failed to cooperate,” a Nashville sergeant wrote. “This is unfortunate. … Important information could have been obtained.” In his recommendations, the sergeant wrote that it’s “worth considering” whether police should give more weight to advice from prosecutors than judicial commissioners.
Hamlett was reappointed as a judicial commissioner in 2017, Anderson in 2019.
Their personnel files include no mention of this case.
All 11 children arrested over the fight captured on video sued in federal court. Defendants included the city of Murfreesboro, Rutherford County and various police officers.
At least six of the 11 children had been handcuffed. The four who were locked up spent twice as many days in jail, collectively, as Templeton did on suspension.
Starting in 2017, all 11 children received settlements, for a combined $397,500. For at least five children, some money was earmarked for counseling.
Rutherford County also faced the class action accusing it of illegally arresting and jailing children.
In January 2017, Davenport arrived at a law firm to be questioned by the lawyers for E.J. and so many other children.
Kyle Mothershead, a specialist in civil rights cases, deposed her. He knew about Davenport’s strict dress code — and he made sure to flout it. He wore blue jeans and a white button-down shirt, untucked. He later told us he was thinking, “I am going to fucking spit in her eye and come in all casual and take her off her little throne.”
Mothershead asked Davenport if she ever kept tabs on the number of kids detained.
“That’s not my job is to know statistics,” Davenport said.
Mothershead asked if she’d ever consulted with Duke about the filter system.
Not that she could recall, Davenport said, adding, “I don’t micromanage her.”
Mothershead asked about Davenport’s orders to law enforcement to take children to the detention center upon arrest.
“Because that’s our process,” Davenport said.
“OK. But I just want to make sure that we’re clear,” Mothershead said. “So — so that — that’s your process because you personally have ordered that process into existence?”
“From the orders, apparently so. Yes.”
In May 2017, a federal judge ordered the county to stop using its filter system, saying it “departs drastically” from ordinary standards. By being subjected to “illegal detention,” he wrote, “children in Rutherford County are suffering irreparable harm every day.”
This year, in June, Rutherford County settled the class action, agreeing to pay up to $11 million. Individual payouts figure to be around $1,000 for each claim of wrongful arrest and about $5,000 for each claim of unlawful detention. The county, as part of the settlement, “denies any wrongdoing in any of the lawsuits filed against it.”
With the end of the filter system, Rutherford County now jails fewer of its kids than before.
But that doesn’t mean its jail is ramping down. Quite the opposite. The jail keeps adding staff. Mark Downton, one of E.J.’s attorneys, says the county has “shifted gears.” Forced to stop jailing so many of its own children, Rutherford County ramped up its pitch to other places, to jail theirs.
The county has created a marketing video titled “What Can the Rutherford County Juvenile Detention Center Do For You?” Over saxophone music and b-roll of children in black-and-white striped uniforms, Davenport narrates. She touts the center’s size (43,094 square feet), employees (“great”), access to interstates (I-24, I-65, I-40) and number of cells, which she refers to as “single occupancy rooms.” “Let us be your partner for the safe custody and well-being of the detained youth of your community,” Davenport says.
Thirty-nine counties now contract with Rutherford, according to a report published this year. So does the U.S. Marshals Service.
How did Rutherford County get away with illegally jailing kids for so long?
The Tennessee Department of Children’s Services licenses juvenile detention centers. But its inspectors didn’t flag Rutherford County’s illegal filter system, which was right there, in black and white. We collected nine inspection reports from when Duke put the system in until a federal judge ordered it out. Not once did an inspector mention the jail’s process for deciding which kids to hold. “There was very little graffiti,” an inspector wrote in 2010. “Neat and clean,” the same inspector wrote in 2011, 2013 and 2014. Two inspection reports in 2016 said, “There were no concerns regarding the program or staff at the detention center.”
We requested an interview with the department’s longtime director of licensing, to ask how inspectors could miss this. The department refused to make him available.
The state’s failures don’t end there.
Tennessee’s Administrative Office of the Courts collects crucial data statewide. In 2004, the consultant hired by Rutherford County used that data to sound an alarm: Rutherford County was locking up kids at more than three times the state average.
But then, Rutherford County stopped reporting this data. From 2005 to 2009, the county had 11,797 cases of children being referred to juvenile court. How many were locked up? The county claimed to have no idea. “Unknown,” it reported, for 90% of the cases. The county’s data, now meaningless, couldn’t be used against it.
Later, when the county resumed reporting how many kids it detained, lawyers representing children sounded a second alarm. By 2014, the county was locking up children at nearly 10 times the state average. But then the state stopped publishing its annual statistical report, which had provided the statewide comparison points that allowed troubling outliers to be spotted.
In 2017, a state task force on juvenile justice concluded that Tennessee’s “data collection and information sharing is insufficient and inconsistent across the state.” This “impedes accountability,” it reported. The following year, a state review team reported that without good data, “the state cannot identify trends.” The team recommended creating a statewide case management system with real-time, comprehensive data. But that hasn’t happened.
We sent written questions to Tennessee’s Administrative Office of the Courts, asking why it stopped publishing the annual statistical report and about the data gaps. The office’s spokesperson didn’t answer.
While Rutherford County’s filter system was ultimately flagged (by lawyers, not through oversight), it is only one illegal system under one juvenile court judge. With Tennessee’s inadequate inspections and data, there could be trouble in any of the state’s other 97 juvenile courts, without any alarms being sounded.
In Rutherford County, Davenport still runs juvenile court, making $176,000 a year. (She’s up for reelection next year, and has previously said she’d like to run for another eight-year term.) Duke still runs the juvenile detention center, earning $98,000. And the system as a whole continues to grow.
In 2005, the budget for juvenile services, including court and detention center staff, was $962,444. By 2020 it had jumped to $3.69 million.
Earlier this year, Davenport went before the county commission’s public safety committee. “I come to you this year with a huge need,” she said. By now she had two full-time magistrates and another who worked part time. Davenport said she wanted an additional full-time magistrate. And another secretary. She wanted to increase her budget by 23%.
She also wanted to expand the system’s physical footprint. A small school in the same building was closing, so Davenport proposed converting classrooms into an intake room and a courtroom.
The commissioners gave Davenport’s budget request a favorable recommendation. Their vote was unanimous.
During the meeting, one commissioner, Michael Wrather, took a moment to express his admiration for the judge.
“I have said this for years and years,” Wrather told Davenport. “If we have a judge that has a box in the courtroom with belts in it, that requires young people to put a belt on and hold their pants up in a courtroom, I’m all for it.”
“Thank you, sir,” Davenport said.
This Week at OUR COMMON GROUND
Our Guest: Kim Brown, Host, Burn It Down with Kim Brown
Saturday, October 9, 2021 ∞ 10 pm ET
Tune In Here: http://bit.ly/OCGTruthTalk
Listen Line: 347-838-9852
Can Janice Have A Word ?
Systemically oppressed survivors face tremendous, overwhelming barriers to seeking advocacy and justice. The challenges, and the history of institutional oppression of our people is often time met with lies, propaganda and obfuscation. There are historical underpinnings include events that took place in the past which impact how an individual or community perceives events or reacts to issues in the present. Additionally, the government, elected officials and mainstream organizations are not designed for or by systemically oppressed peoples and are often complicit or architects. Thus, it is critical that people who advocate on our behalf, analyze for us, comment or any other form of representation understand the historical trauma and its impact on Black people as a systemically oppressed people. We are told and offered illusionary idea of what will fix it. To some of these systemic and institutional impediments, traps and weapons, there is no fix. They must simply be “burned down”.
We use history as a lens to provide a holistic approach and knowledge to claim our own liberation. Sometime, those who are unable to access relevant information may have blind spots, in places that are critical. We use others to “fill us in”. Unfortunately, all opinion is not critical analysis. All talk is not critical examination or analysis. Cultural, economic and political relevant response requires a deep understanding of our story and how different every context is, paying close attention to where we are in our struggle and the multiplicity of our experiences and reality . We need people who are able to break through the BS and see clearly what is before us at every turn. Know the rules, the playlist and the players. People brave enough, smart enough and capable enough to show us the traps and tell us the truth. I have tried to be one of those. As I prepare to end my broadcast presence, I am on the hunt to recommend to the thousands of listeners who have depended on me over the last 34 years. Kim Brown is one of those people. We are grateful to have her share our microphone.
“BURNING IT DOWN: BUILDING ANEW”
“Burn it Down with Kim Brown” is a twice weekly live broadcast and Kim Brown calls out systemic issues within our society and envisioning a new world. She talks about how to restructure and create systems that are inclusive of everyone. She keeps it real, and actively destroys myths that the media and politicians love that we believe, like American Exceptionalism.
Burn It Down with Kim Brown is the place where you can set oppression ablaze. A Black woman led independent media that DGAF about taking on the establishment.
She makes a microphone rumble.-Janice Graham
“Burn it Down with Kim Brown” is a twice weekly live broadcast and Kim Brown calls out systemic issues within our society and envisioning a new world. She talks about how to restructure and create systems that are inclusive of everyone. She keeps it real, and actively destroys myths that the media and politicians love that we believe, like American Exceptionalism.
Burn It Down with Kim Brown is the place where you can set oppression ablaze. A Black woman led independent media that DGAF about taking on the establishment.
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