Abstract
Excerpted From: LeRoy Pernell, Suppressing Learning about Race and Law: A New Badge of Slavery - A Brief Commentary, 29 National Black Law Journal 1 (2024) (164 Footnotes) (Full Document)
There is a war being waged against African Americans and their ability to speak out against racial injustice, which is more intense than any attempt at suppression since post-Reconstruction in America. Higher education in America is being subjected to a widespread legislative effort to ban teaching Critical Race Theory (CRT). This legislation seeks to prohibit curricula which examine the relationship between race and law and which posit that “racism and sexism are pervasive in our society.” This is being done under the guise of attempting to prevent the promotion of anti-white racism. Post-Reconstruction, the Ku Klux Klan rose as a major domestic terrorist organization that cloaked itself within the pretense that it was protecting victimized, innocent white Americans from the horrors of Black people newly freed from slavery. Today's legislative attack against race-conscious curricula puts that same oppressive intent in the hands of elected white officials who, albeit without sheets and hoods, disproportionately terrorize Black teachers and students into silence.
While much of this legislative attack claims to be directed at Critical Race Theory, a scholastic doctrine that proponents of the suppression fail to properly define or explain, its impact and ultimate aim is much broader. The goal here appears to be stopping all protest against systemic racism and eliminating the study of topics, such as African American history, that reflect and document the existence of systemic racism in the 21 century.
Florida has been in the forefront of the attack on race-conscious education with legislation such as H.B. 7, which is designed to both villainize and eradicate Critical Race Theory. Florida is not alone in its efforts opposing Critical Race Theory; Florida is part of a national attack on CRT, the importance of diversity, and most significant for this Article, any recognition of the role that race and racism has played in the history, development, and application of law in the United States.
Legislation such as H.B. 7 was decades in the making. It grew, inter alia, from political attacks on intellectuals of color to overt executive and legislative initiatives designed and implemented across the nation. Under the guise of protecting children, this legislation has sought to stifle race-conscious education from the elementary to high school level. Pretending to be a bulwark against indoctrination and discomfort, it has sought to prevent articulation and discussion of transformational change that would counter the impact of institutional racism by denying the very existence of institutional racism.
Responses to legislation attacking race-conscious education has run the gamut from the defense of Critical Race Theory to the assertion of the First Amendment rights of teachers and students to express diverse viewpoints. This Article seeks to link the legislation to the history of oppression exemplified by slavery, specifically the struggle of enslaved people for self-determination and expression of opposition to the conditions and consequences of enslavement. The tool for combating the suppression represented by enactments such as H.B. 7 is the Thirteenth Amendment to the U.S. Constitution.
While recognizing intersectionality and its importance to critical race thinking, this Article begins in Part I with a discussion of the national efforts to suppress learning about race and law. Part II discusses the historical silencing of enslaved people and the origins of Thirteenth Amendment doctrine outlawing badges of slavery. Part III explores the new badges of slavery, and Part IV outlines the utility of Thirteenth Amendment doctrine in stopping legislation that suppresses learning about race. The Article provides a historical analysis of the Thirteenth Amendment and its application to both judicial doctrine and legislative power. This Article proposes that the Thirteenth Amendment is a source of both juridical and legislative remedies available today as a counter to the new attempt at badges of slavery.
This Article overall will discuss war against African Americans implicated in this legislation, including its linkage to other race-based suppression, such as denial of voting rights, which have been recognized as a basis for judicial intervention. Additionally, it will argue that not only is this attack motivated by current resistance and response to racial inequity, but it is also linked to the historical suppression of people who were enslaved and their descendants. The maintenance of a mindset built around the silencing of Black cries of injustice is a continuation of a “Plantation Mentality” that is part and parcel of the badges of slavery specifically denounced by the Thirteenth Amendment.
[. . .]
before I'd be a slave
I'd be buried in my grave
And go home to my Lord and be free
Oh, freedom
Post-Civil War African-American freedom song
The goal of the proponents of suppressing race-conscious education has been to legislate slave-like silence by presenting a system that uses for its justification a one-sided narrative of horrors that will occur if “slaves” are allowed to talk back, such as race-hatred, guilt and the unfair treatment of Whites as revenge for acts of racism that they did not personally commit. Recognizing such binding and gagging as a pernicious badge of slavery that the Thirteenth Amendment was designed to eliminate allows for national action and consensus-building of disapproval. The tools of the Thirteenth Amendment, if exercised by our legislative and judicial branches, allow for a forum where counternarratives can be presented.
The stakes here are high. Imposed slavery badges of silence, while of particular significance for African Americans, has implications for other silenced communities. Despite some interpretations to the contrary, the metaphor of “badges of slavery” has found suggested application outside of race-based oppression, including sexual orientation discrimination, violence against women, sexual harassment, sexual exploitation, and sweatshop conditions.
As we look to the future for freedom from the badges of slavery under the Thirteenth Amendment, one significant question purportedly outside of the race limitation is that posed by one of the unanswered question in Dobbs v. Jackson Health Organization. While not going into the detail of the U.S. Supreme Court overturning Roe v. Wade, we are nonetheless left with the burning question and image of women being forced against their will to bear children. There is perhaps no more stunning an image of slavery than women being forced to be breeders for the children of their masters.
The Thirteenth Amendment implications of such a symbol of slavery, while not addressed by the Court, has nonetheless received the attention of scholars. The issue of abortion is not devoid of race-based slavery implications, as noted by Professor Bridgewater. Statistical data shows that, as late as 2020, African American women have the highest rate of abortion (39 percent of all abortion as opposed to 33 percent for Whites).
Ending these legislative attempts to perpetuate conditions of slavery by prohibiting race-conscious education is everybody's concern. The future of a society depends on discussing its differences and resolving them, not on pretending that the differences do not exist. The future of a people requires their ability to speak truth to power. Such power was denied to enslaved people. A Black enslaved person had no rights which a white man was bound to respect, even the freedom to speak.
