Juneteenth's Dissonance

As a former long-time federal prosecutor and now a law professor, I had mixed feelings about our newest federal holiday, Juneteenth. What came to mind was dissonance. I used to love federal holidays because although the office was "technically" closed, I and a number of my colleagues would come into the courthouse dressed in sweatpants and work all day without any distraction from the outside world. On federal holidays, the phones were silent.

For me, an east coast native by birth, those days reminded me of snow days in winter. So, when President Joe Biden signed the Juneteenth National Independence Day Act last week establishing June 19 as a federal holiday, I knew my former colleagues (a few still at DOJ) would be thrilled with another paid federal holiday.

Starting moments after the law's adoption, I was inundated by cellphone news squibs heralding the newest holiday as a "kumbaya moment" showing that Republicans and Democrats of Congress can agree and act quickly on something for the "public good."

Not so fast. The newest holiday not only gave all members of Congress another paid day off, but also the opportunity -- for the entire Senate who unanimously agreed to the legislation and all but the 14 House members who objected -- to announce to their constituents that "America is not racist."

Making a new holiday honoring the day in June 1865, when former slaves in Texas were notified by visiting Union troops that they, the enslaved, had been entitled to and had been denied freedom for two and a half years -- that is, since President Abraham Lincoln's January 1, 1863 issuance of the Emancipation Proclamation freeing slaves in confederate-held states -- does not exonerate America or make its history and practices, less racist.

Proof positive? Martin Luther King, Jr. Day, which became a federal holiday in 1986, 18 years after the civil rights leader's assassination, was supposed to signify our nation's "two steps forward."

But from my perch as a prosecutor, law professor, mother and citizen, in this moment, it feels as if we are now "two steps back" with large swaths of our country being offended or angered or both about even discussing the racism in our Founders' ground water.

The creation of the new holiday should not distract from the fact that Congress refuses to pass voting rights legislation which would block states from denying people of color access to the ballot box. Since the 2013 U.S. Supreme Court case of Shelby County v. Holder, 570 U.S. 529 (2013), over a thousand new voting-infringement laws have been introduced across the country, and many of them have been implemented.

Recall that it was in Shelby County, where Chief Justice John Roberts, in a 5-to-4 decision, gutted parts (the Section 5 pre-clearance provision) of the Voting Rights Act of 1965. Roberts reasoned, in part, that since America had elected a black president, supervision by the U.S. Department of Justice of the former confederate and other states that had denied Blacks voting rights was no longer necessary.

It is hard to forget that Justice Ruth Bader Ginsburg, writing for the minority (with Justices Stephen Breyer, Elena Kagan and Sonia Sotomayor) delivered one of her prescient and evocative dissents. Justice Ginsburg chastised the majority for invalidating the VRA, legislation that had and was effectively addressing discrimination. She invoked her now even more poignant "umbrella-in-a-rainstorm" analogy: "Throwing away [a law] when it has worked -- and is continuing to work to stop discriminatory changes -- is like throwing away your umbrella in a rainstorm because you are not getting wet."

According to New York University's Brennan Center's reporting on voting-rights-under-attack, "from January 1, 2021, through May 14, 2021, at least 14 states enacted 22 new laws that restrict access to the vote."

Newer voting abridgment restrictions run the gamut and include restrictions on who can request or be sent a mail-in or absentee ballot, shortening the deadline to receive those ballots, closing polling places and ballot-pick-up boxes, denying people the ability to have third parties (even family members) drop off ballots at ballot boxes or polling places, imposing witnessing and/or notary-requirement provisions for people who cannot vote in person or for those who assist in the preparation or delivery of the ballot, requiring voters to send in photocopies of identification documents along with absentee or mail-in ballots, permitting the removal of non-voters (even if living) from voter-rolls, banning drive-through voting or handicap-access voting assistance, and criminalizing or banning the providing of food and drink to those waiting in voter lines.

Our new federal holiday is happening at a time when states are reverting to an America-of-old, a country in which representatives of school boards, towns and states (and the federal government through the Comstock Act application 1873-1965) banned books.

Now in 2021, a flurry of legislatures and governors have banned public education (and some restricting school funding for instruction and books) concerning the impact and imprint of race on our laws and history. States are banning critical race theory, something I teach. In a nutshell, the theory considers "race" a socially or culturally "invented" construct and one which has discriminatory implications and applications in our legal, political, and economic systems.

On June 10, Florida joined the club of states banning all sorts of critical race theory instruction in public schools. Florida followed on the heels of Idaho's April 28 ban passage, Arkansas on May 3, Oklahoma on May 7, Tennessee on May 24 and Iowa on June 8.

Florida Gov. Ron DeSantis, in March, explained that such studies are, "Teaching kids to hate their country and to hate each other." He vowed that Florida's civics instruction would "expressly exclude unsanctioned narratives ... and other unsubstantiated theories."

More education bans are reportedly in the works from states that include Kentucky, Maine, Michigan, New Hampshire, North Carolina, Ohio, Pennsylvania, South Carolina and Wisconsin.

These states are taking the lead from our former president, who on September 22, 2020, some six weeks before the November 2020 election, issued an executive order deceptively couched as "an order to combat race and sex stereotyping" but which effectively canceled all anti-bias trainings throughout the government (to include even government contractors and federal loan grantees) last fall.

The executive order did nothing to combat our nation's race and gender issues. Instead, it banned diversity training to include anything resembling a critical look at race theory. Even my former employer, DOJ, canceled the annual implicit bias training. And conferences, including continuing legal education sessions in which diversity was to be discussed and which had been previously advertised as having DOJ lawyers as speakers, were canceled.

As UCLA Law Professor Kimberlé Crenshaw has opined, these actions are premised on the "idea that attention to racial and gender justice ... [is] discriminatory against white people and against men ... [and is viewed as] tak[ing] away [their] opportunity and privilege."

President Donald Trump said as much. He called racial sensitivity training "divisive, anti-American propaganda" and denied that systemic racism was a problem in the United States.

Under the then-president's instruction, the head of the Office Management and Budget warned federal employees that if they participated in any training on "critical race theory and unconscious bias" identified as "divisive training" they could be subjected to adverse personnel actions (aka punishment).

Even though on day one of the new administration President Biden revoked the Trump executive order barring instruction on critical race theory throughout the federal work force, and even though Biden drew a contrast by affirmatively directing federal agencies and contractors to advance equity and create opportunities for the historically underserved, racial inequities continue to plague us.

How could they not, when racial distinctions based on the arbitrary "construct" of race were integral precepts of our 1787 Philadelphia constitution. At least three provisions in our founding document make this irrefutably clear:

(i) The 3/5s clause stating that Blacks are 3/5 of white people for the purpose of congressional representation;

(ii) The human importation of slaves can continue for 20 more years clause (until 1808); and

(iii) The fugitive slave clause permitting slave owners to cross state lines and bring back their human chattel.

Yes indeed, the Civil War ended in 1865, as the Juneteenth holiday commemorations will surely mention. But that is not the end of the inquiry. A critical review of our history shows us that Jim Crow laws, lynching, denial of voting rights and slavery-by-another-name (with Blacks rounded up and imprisoned on trumped-up charges like "vagrancy" and forced to pay off bogus fines by working on chain gang details or for corporate coal mine or agricultural interests) persisted well past the Civil War.

Only with President Lyndon Johnson's signatures affixed to the Civil Rights Act of 1964, the Voting Rights of 1965, and other Great Society legislation (1964-1968), was there, in the last century, some measure of concerted governmental action acknowledging and addressing a few of the impacts of America's home-grown racism.

Perhaps, when we "celebrate" this new holiday, we can "call-out" the white supremacist forces in 1863-1865, that intentionally prevented and impeded the Blacks of Texas from knowing about the freedom they had earned over two years earlier.

But be careful as to where you put your soapbox before you make those kinds of statements. Regardless of the new federal holiday, depending on the state, your comments could come at a cost. 