Justice Kagan’s Dissent and the Call to Abolish the Supreme Court

By Jim Dugan

Justice Elena Kagan (joined by Sonia Sotomayor and Ketanji Jackson) wrote an important dissenting opinion in Biden v. Nebraska—the recent Supreme Court case concerning student debt relief. It wasn’t important because it voiced the progressive minority view of a ruling which further enforced the state policy of a country whose identity is rooted in settler colonialism, capitalist inequality, and enslavement-turned-apartheid-turned-mass-incarceration.  These dissenting opinions have been consistent through time—sometimes they are left in the dustbins; sometimes they are invoked in subsequent opinions of more popularly progressive times to overturn (in liberal fashion) historically horrific policy.  Those are important.  But this isn’t what makes Kagan’s dissent unique.  What Kagan has done, perhaps without full intention, is acknowledge in a published opinion that the Supreme Court may not live up to its ideal as a neutral arbiter—and may, in contrast, be a fundamentally undemocratic institution that sits on the side of elite power. Possibly in those aforementioned dustbins, this has been said before—but never in our era with such a high-profile case. 

Justice John Roberts drafted the majority opinion, joined by Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett.  Six despot elites (Roberts—Harvard Law; Thomas—Yale Law; Alito—Yale Law; Gorsuch—Harvard Law; Kavanaugh—Yale Law; Barret—Notre Dame Law) were able to strike down a policy favored by Congress and the Executive Branch which alleviated some of the financial woes of nearly 40 million people.  Justice Kagan no doubt recognized the irony of a political body which routinely gives flowers to the idea of American Democracy despite being itself the functioning antithesis.  As the dissent reads, even though the Court “is, by design, as detached as possible from the body politic,” it decided as final verdict “that some 40 million Americans will not receive the benefits the plan provides, because (so says the Court) that assistance is too ‘significan[t].’” Justice Kagan noted the Supreme Court was selecting itself as “the arbiter—indeed, the maker—of national policy” and in doing so has become "a danger to a democratic order." 

It is undisputable that there is no democratic restraint on the Court (in fact, twice now a president who faced impeachment proceedings [first Nixon, then Trump] has appointed at least three individuals)—to call it a body of autocrats is not unreasonable. As Keeanga-Yamahtta Taylor wrote in her New Yorker piece, The Case for Ending the Supreme Court as We Know It, the Court is “the branch of government that is least accountable to the American public” and “has tended, for most of its history, toward a fundamental conservatism, siding with tradition over more expansive visions of human rights.”  In that article, Taylor summarized a history of biased and contradictory opinions that shifted with the tides of political power and pressure—and affirmed that “calling into question the fundamentally undemocratic nature of the court” was a necessary act should we wish “to secure our rights and liberties in the United States.”  Calls to abolish the Supreme Court were not common when Taylor raised the possibility in 2020.  And yet, less than three years later, the same concerns which justified that consideration have now been voiced from within the chambers of the Supreme Court itself.  And while Kagan isn’t likely to soon join the masses in calling for the abolition of the Court, what her dissent stands for worried Justice Roberts enough for him to end his majority opinion by calling out the “disturbing feature” of questioning “the proper role of the judiciary.” Causing misperception, Roberts claimed, “would be harmful to this institution and our country.”

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But what Roberts calls misperception is anything but.  It is seeing through the ideological construction of the Supreme Court as a removed and objective overseer, and—with candor—recognizing it for what it is:  a political body that has the ability to curtail any progressive, egalitarian-oriented thrust for the benefit of its own Class.  What the Court’s right-wing majority doesn’t want is the Public seeing the Supreme Court as an appendage to Capital and the U.S. State; and as an obstacle in our struggle for a more equitable, peaceful, and climate-stable world. They call this conclusion a misperception, and while we don’t need Kagan to tell us that we are right to think otherwise, it is striking that she did.

Aside from voiding the possibility of immediate and much needed financial relief, the most concerning thing about Biden v. Nebraska is how it continues to lay the groundwork for the Court’s ability to usurp any significant action that may be introduced to alleviate suffering as we inevitably enter new eras of economic (and environmental) crisis. The Court has now, for a third time in recent terms, invoked the ‘major questions’ doctrine to prevent forms of structural relief/industry regulation (see alsoWest Virginia v. EPA [preventing regulation of carbon emissions related to climate change]; Alabama Assn. of Realtors v. DHH [invalidating the CDC’s eviction moratorium]). What this chain of decisions indicates is that even the hard work of mobilizing to pressure politicians to act won’t be enough to secure grassroots victories. While this may be daunting to admit, it is not surprising nor is our situation unique in history. For instance, as Karl Marx wrote in his 1871 text, The Civil War in France, the Paris Commune also identified the need for judicial functionaries to be “divested” of their “sham independence” and called for judges—like other public servants—“to be elective, responsible, and revocable.” This may be a path forward to gain democratic control over the judiciary in our own extreme times.  But to be in a position to design a judicial system that works as a vehicle for our side of the struggle, we must first abolish the one that currently exists.  In sum, it all begins with the notion that Keeanga-Yamahtta Taylor left us with in 2020: “It is long overdue to end the Court’s undemocratic role in U.S. society”—Now we can quote Kagan to prove it.

Charter Schools and the Privatization (and Profitization) of Education

By Shawgi Tell

Eleven months ago a critical education case came before the 4th U.S. Circuit Court of Appeals in North Carolina (Peltier v. Charter Day Sch., Inc., 37 F.4th 104, 116, 4th Cir. 2022). A main issue in the case pertains to the dress code at “Charter Day School” in Leland, North Carolina, specifically, whether the privately-operated but publicly-funded charter school had violated the rights of female students by stipulating what they could and could not wear. The ACLU reports that, “Girls at Charter Day School, together with their parents, challenged the skirts requirement as sex discrimination under the Equal Protection Clause of the U.S. Constitution and Title IX.”

For general purposes and for the purpose of this case in particular, it is first important to appreciate that, while all non-profit and for-profit charter schools are privately-operated schools, many, including “Charter Day School,” are also owned-operated by a private educational management organization (EMO).[1] This is another layer of privatization, another level of private ownership and control. In this vein, it is important to grasp that the legal framework that applies to private entities differs qualitatively from the legal framework that applies to public entities. Private actors and state actors operate in different legal spheres. The U.S. Constitution, for example, does not apply to the acts of private entities; it applies mainly to acts of government. Indeed, the private-public distinction shapes the laws and institutions of many countries. As a general rule, no public schools in America are operated by an EMO.

It is also legally significant that the parents of the students suing “Charter Day School” voluntarily enrolled their daughters in the privately-operated charter school. No one is forced or compelled to enroll in a charter school in the United States. Nor is the state compelling, encouraging, or coercing “Charter Day School” to adopt any particular dress code or educational philosophy for students.

As a general rule, privatized education arrangements in America (e.g., private Catholic schools that charge tuition) have always been able to adopt the dress code they want without any government interference. It is generally recognized that, as private schools, they can essentially adopt whatever dress code or educational philosophy they wish to enforce, and that parents are under no obligation to enroll their child in a private school if they do not wish to do so. This has been the case for more than a century. It is one of many expressions of the long-standing public-private distinction in law, education, and society.[2]

It is also important to consider that the capital-centered ideologies of choice, individualism, and the free-market encompass the notion of doing something voluntarily, i.e., willingly and freely. It is the reason why charter school promoters repeat the disinformation that charter schools are “schools of choice” (even though charter schools typically choose parents and students more than the other way around).[3] This neoliberal logic is also consistent with the “free market” notion that parents and students are not considered humans or citizens by charter school operators, they are viewed instead as consumers and customers shopping for a “good” school that won’t fail and close, which happens every week in the crisis-prone charter school sector.[4]

Charter schools, to be clear, represent the commodification of education, the privatization and marketization of a modern human responsibility in order to enrich a handful of private interests under the banner of high ideals. For decades, neoliberals and privatizers have painstakingly starved public schools of funds so as to set them up to fail. Then they have mass-tested them with discredited corporate tests to “show” that they are “failing.” This is then followed by a sustained media and political campaign to vilify and demonize public schools so as to create antisocial public opinion against them, which then eventually “justifies” privatizing public education because “privatization will improve education.” Suddenly “innovative” charter schools appear everywhere, especially in large urban settings inhabited by thousands of marginalized low-income minorities.

The typical consequences of privatization in every sector include higher costs, less transparency, reduced quality of service, greater instability, more inefficiency, and loss of public voice. Privatization essentially undermines social progress while further enriching a handful of people driven by profit maximization. To date, whether it is vouchers, so-called “Education Savings Accounts,” or privately-operated charter schools, education privatization (“school-choice”) has not solved any problems, it has only multiplied them.[5]

With this context in mind, let us return to the court case at hand. In a 10-6 vote on June 14, 2022, the Richmond, Virginia-based 4th U.S. Circuit Court of Appeals, “found that that the dress code [at “Charter Day School”] ran afoul of the U.S. Constitution's 14th Amendment guarantee of equal protection under the law.” Girls at the K-8 charter school, it was concluded, should have the freedom to wear pants and not just skirts because they have “the same constitutional rights as their peers at other public schools - including the freedom to wear pants.”

Marking the first time a federal appeals court has ever done such a thing, the Richmond Court found that “Charter Day School” is a state actor (i.e., it is a public school), which means that the Equal Protection Clause of the 14th Amendment does apply to the school.

Consistent with numerous other court rulings over the years, however, the lawyer for “Charter Day School,” Aaron Streett, maintained that the Richmond court issued a flawed ruling because the Equal Protection Clause of the 14th Amendment does not apply to the charter school because the charter school is a private entity and not a state actor like a public school.

According to legal precedent, as a private actor, “Charter Day School” did not deprive any person of their constitutional rights. This view stems in part from the long-standing premise that charter schools are “independent,” “autonomous,” “innovative” schools under the law, that is, they are deregulated “free market” schools, meaning that they are exempt from most of the laws, rules, policies, and regulations that govern public schools. They do not operate like public schools. They are not so-called “government schools.” They are not arms of the state.[6] They are not connected to state authority in the same way public schools are. They are not governed by elected officials like public schools are. Charter schools operate in their own separate sphere. The fact that many charter schools are also owned or operated by private EMOs only adds an additional wrinkle to the public-private dynamic.

“Charter Day School” is currently appealing the case to the U.S. Supreme Court, which may hear the case this summer (2023).

The issue of whether a charter school is a state actor or not is critical because it hits at the core issue about charter schools. This point cannot be overstated. If it is the case that “Charter Day School” is not a state actor, as the lawyer for the privately-operated school argues, then the Virginia court’s ruling represents a form of “harmful government interference” because the 14th Amendment does not apply to private actors.

Under U.S. law, “state action” is defined as “an action that is either taken directly by the state or bears a sufficient connection to the state to be attributed to it.” Another source states that a state actor is “a person who is acting on behalf of a governmental body, and is therefore subject to regulation under the United States Bill of Rights, including the First, Fifth and Fourteenth Amendments, which prohibit the federal and state governments from violating certain rights and freedoms.”[7]

However, as private actors charter schools are not in fact “acting on behalf of a governmental body.” Private actors are not controlled or directed by the state, at least not in the way agencies and arms of the state are, which means that the actions of privately-operated charter schools cannot be called actions taken directly by the state. State action doctrine holds that government is not responsible for the conduct of a private actor.

Even most of the entities that authorize charter schools are not public or governmental in the proper sense of the word. Many charter school authorizers are operated or governed by unelected private persons. Many of the wealthy individuals who operate or govern such entities are hand-picked by wealthy governors. The public, as a matter of course, is omitted in these arrangements. The public has no meaningful say in any part of this set-up. This is on top of the fact that charter schools themselves are not governed by publicly elected citizens either, whereas public schools are. Unelected private persons governing a deregulated private entity (which may also be owned by another private entity) is not the same as elected public school officials governing a public school that serves no private interests, admits all students at all times, has unionized teachers, can levy taxes, and is accountable only to the public.

Unlike charter schools, regular public schools, which have been around for 180 years and educate 90% of America’s youth, are in fact state actors; they are political subdivisions of the state because they not only carry out a public function but are also explicitly delegated authority by the state to carry out various public responsibilities. “Function” and “authority” are not synonyms; they are different concepts. Carrying out a role is not necessarily the same thing as having power to carry out that role. A role can be carried out by a person or entity that derives its responsibility from a higher political power. Its role can be delegated by a more influential power.

Properly speaking, charter schools are not exercising state prerogatives. Nor do they enter into what may be called a symbiotic relationship with the state. Unlike public schools, they are not state agencies proper, which explains why the state does not coerce, encourage, or compel charter schools to act in the same way it coerces, encourages, or compels public schools to act. The state has more influence and control over public schools than it does over privately-operated “free-market” charter schools. In this neoliberal legal setup, the state is not responsible for the policies and operations of deregulated charter schools; charter schools can do as they please; “no rules;” “laissez-faire;” “hands-off,” “autonomy.”  This usually means no meaningful accountability.

Charter schools are intentionally set up to operate outside the parameters and framework governing public schools. This is what makes them “innovative,” “independent,” and different. It is worth stressing again that, in the case of “Charter Day School,” the state played no direct role in creating, directing, or shaping the dress code being challenged by parents who voluntarily enrolled their children in the school. The charter school’s dress code policy was not therefore an expression of state action.

Unlike public schools, charter schools fall under private law, specifically contract law. Charter, by definition, means contract: a legally-binding agreement between two or more parties to do or not do something in a specified period of time with associated rewards and punishments. For state action doctrine this means that just because a private entity has a contract with the government that does not mean that the actions of private contractors like charter schools can be attributed to the state. Simply “partnering” with the state does not make the conduct of a private entity a form of state action. A private actor does not become public, does not become a state actor, just because it contracts with the state.

The issue of whether a charter school is public or not is often confusing to many because there is relentless disinformation from charter school promoters that charter schools are public schools when in reality they are privatized independent entities. Charter schools remain private, independent, deregulated, segregated entities even though they receive public money, are often called public, and ostensibly provide a service to the public. Interestingly, when asked what they think a charter school is, most people say they are not really sure or they think that charter schools are some sort of private school. The average person rarely thinks charter schools are public schools.

To be sure, charter schools cannot be deemed public just because they are called “public” 50 times a day. Under the law, this is not what makes an entity public. Simply labelling something a specific thing does not automatically make it that thing. In the U.S. legal system, merely labeling private conduct “public” does not make it a form of state action. Moreover, receiving public funds does not spontaneously make an entity pubic under the law. Thousands of private entities in the U.S. receive public money, for example, but they do not suddenly stop being private entities.[8]

Only narrow private interests benefit from obscuring the distinction between public and private. Public and private mean the opposite of each other. They are antonyms. They should not be confounded.

Public refers to everyone, the common good, all people, transparency, affordability, accessibility, universality, non-rivalry, and inclusiveness. Examples include public parks, public libraries, public roads, public schools, public colleges and universities, public hospitals, public restrooms, public housing, public banks, public events, and more. These places and services are available to everyone, not just a few people. They are integral to a modern civil society that recognizes the role and significance of a public sphere in modern times.

Private, on the other hand, refers to exclusivity, that is, something is private when it is “designed or intended for one's exclusive use.” Private also means:

• Secluded from the sight, presence, or intrusion of others.

• Of or confined to the individual; personal.

• Undertaken on an individual basis.

• Not available for public use, control, or participation.

• Belonging to a particular person or persons, as opposed to the public or the government.

• Of, relating to, or derived from nongovernment sources.

• Conducted and supported primarily by individuals or  groups not affiliated with governmental agencies or corporations.

• Not holding an official or public position.

• Not for public knowledge or disclosure; secret; confidential.

In its essence, private property is the right to exclude others from use of said property; it is the power of exclusion;[9] it is not concerned with transparency, inclusion, the common good, or benefitting everyone. This is why when something is privatized, e.g., a public enterprise, it is no longer available to everyone; it becomes something possessed and controlled by the few. This then ends up harming the public interest; it does not improve efficiency, strengthen services, lower costs, increase accountability, or expand democracy.

Charter schools are labeled “public” mainly for self-serving reasons, specifically to lay claim to public funds that legitimately belong to public schools alone. If charter schools were openly and honestly acknowledged as being private entities they would not be able to place any valid claim to public funds and they would not be able to exist for one day. This presents a contradiction for defenders of charter schools who want to “have it both ways,” that is, be public when it suits them and act private when it serves them. This is the definition of arbitrary and irrational.

To be clear, the relationship between the state and charter schools is not the same as the relationship between the state and public schools. This is one reason why the rights of students, teachers, and parents in charter schools differ from the rights of students, teachers, and parents in public schools. Thus, for example, while the vast majority of public school teachers are unionized, about 90% of charter school teachers are not unionized. Charter schools are notoriously anti-union. They energetically fight efforts by teachers to unionize to defend their rights. Teachers in charter schools are considered “at-will” employees, meaning that they can be fired at any time for any reason. This is not the case in public schools where due process, tenure, and some collective security still exist. Conditions are more humane and more pro-worker in public schools, even when these chronically-underfunded and constantly-vilified schools face one neoliberal assault after another. This is also linked to why many charter schools across the country can legally hire numerous uncertified and unlicensed teachers.

Another profound difference between charter schools and public schools is that the former cannot levy taxes while the latter can. A tax, as is well-known, can only be laid for a public purpose, which means that charter schools do not possess the characteristics of a political subdivision of the state; they are not fully exercising a public function.

Many other legal differences could be listed.

It would be more accurate to say that charter schools resemble traditional private schools far more than they resemble regular public schools, yet they continue to be mislabeled “public schools.”[10] In practice, charter schools are quintessentially private schools. See Outlaw Charter Schools: Can A Charter School Not Be A Charter School? for additional analysis of these themes.

The question of whether a charter school is a state actor or not also has big implications for thousands of other organizations (e.g., hospitals, utility companies, colleges, etc.) across the country because various constitutional provisions typically do not apply to private entities and businesses. This case is therefore of national importance. The public-private distinction at stake in this education case goes beyond the issue of the dress code at “Charter Day School.”

The “Charter Day School” case is currently in the hands of the U.S. Supreme Court. The issue at stake—the public-private distinction—is so significant that, on January 9, 2023, the U.S. Supreme Court asked President Joe Biden’s administration to give their view on the case. The U.S. Supreme Court States that the key issue at stake is: “Whether a private entity that contracts with the state to operate a charter school engages in state action when it formulates a policy without coercion or encouragement by the government.” This move is seen by charter school promoters as a positive sign that the highest court in the land is willing to consider the case.

In the final analysis, with or without a ruling from any court, as privatized, marketized, corporatized arrangements that celebrate consumerism, competition, and individualism, charter schools have no legitimate claim to the public funds, facilities, resources, and authority that belong only to public schools. No court ruling, one way or the other, will change this fact. Claiming that charter schools are public schools for the purpose of laying claim to public wealth that belongs solely to public schools, damages public schools, the public interest, the economy, and the national interest. It does not help low-income minority youth or close the long-standing “achievement gap” rooted in poverty, racism, inequality, and disempowerment.

Charter schools do not raise the level of education or improve society. Thirty plus years of evidence shows that charter schools mainly enrich narrow private interests. Without charter schools, public schools would have tens of billions of additional dollars to pay teachers and improve learning for all students, especially low-income minority students enrolled in urban schools. This would make a huge difference. No charter schools would also mean that thousands of students, teachers, and parents would no longer have to feel angry and abandoned by charter schools that close every week (often abruptly).

Neoliberals have never cared about public schools or the public interest; they are masters of disinformation and self-serving to the extreme. Neoliberals have worked ceaselessly over the last few decades to methodically privatize public education in America under the banner of high ideals while actually lowering the level of education, increasing chaos in education, and enriching a handful of people along the way. The so-called “school choice” political-economic project has little to do with advancing education and improving opportunities for millions of marginalized youth and more to do with profit maximization in the context of a continually failing economy. “School choice” has brought immense suffering to public education and the nation. “School-choice” does not have a human face.

The only sense in which charter schools may be called state actors is that they are neoliberal state actors because they are actively organized by wealthy individuals and groups that control and influence many state positions, levers, institutions, and individuals. In this sense, charter schools are indeed acting on behalf of the neoliberal state and are therefore neoliberal state actors. This is bound to happen in a society where Wall Street and the state become indistinguishable.

About 3.5 million students are currently enrolled in roughly 7,600 charter schools in 45 states, the District of Columbia, Puerto Rico, and Guam.

Shawgi Tell, PhD, is author of the book “Charter School Report Card.” His main research interests include charter schools, neoliberal education policy, privatization and political economy. He can be reached at stell5@naz.edu.

Notes

[1] It is also worth recognizing that the non-profit/for-profit distinction is generally a distinction without a difference, that is, both types of charter schools engage in enriching a handful of private interests under the veneer of high ideals; profiteering takes place in both types of schools.

[2] See the works of Jürgen Habermas for further discussion and analysis of the origin and evolution of the public sphere in the Anglo-American world.

[3] See School’s Choice: How Charter Schools Control Access and Shape Their Enrollment (Teachers College Press, 2021).

[4] See 5,000 Charter Schools Closed in 30 Years (2021). This is a high number of charter school closures given that there are only about 7,600 charter schools operating in the U.S. today.

[5] See The Privatization of Everything: How the Plunder of Public Goods Transformed America and How We Can Fight Back (2023).

[6] In March 2023, in a separate case, the US Court of Appeals for the Fifth Circuit affirmed that IDEA, a charter school operator, is not an arm of the state.

[7] The phrase “state action” does not appear in the U.S. Constitution.

[8] As a matter of principle, no public funds should flow to any private organization because such funds are produced by working people and belong rightfully to society as a whole.

[9] The right to exclude is “one of the most treasured” rights of property ownership.

[10] In Rendell-Baker v. Kohn, 457 U.S. 830 (1982), the court held that “Even when a private school is substantially funded and regulated by the state, it is not a state actor if it is not exercising state prerogatives.”

The “Powell Memo” and the Supreme Court: A Counteroffensive Against the Many

By Derek Ford

Republished from Liberation School.

Introduction: The domestic right-wing counteroffensive

By the early 1970s, the global revolutionary tide of socialist and national liberation struggles was at its apex, and the tide was washing over the U.S., with expanding and increasingly militant social movements and political organizations. The beginning of “neoliberalism” was a domestic aspect of the coming global counterrevolution, which devastated the world for decades.

This article tells the story of how the right wing of the capitalist class came to drive a new set of reactionary Supreme Court rulings, government policies, and ideological battles against democracy and the basic democratic rights our class won and that the right wing soon started rolling back. A key figure in this anti-democratic turn was Lewis F. Powell Jr., a tobacco company executive turned Supreme Court Justice. In the transition between the two roles, he wrote his infamous “Powell Memo.”

In hindsight, the private memorandum Lewis F. Powell Jr. sent to the U.S. Chamber of Commerce on August 23, 1971—known as the “Powell Memo”—in many ways represents the inaugural moment in this counteroffensive. Titled, “Attack on American Free Enterprise System,” the Memo clearly expressed the sharpness of the class struggle at that time and encapsulated the capitalist class’ fear that they were losing the battles of ideas and the world. It undoubtedly laid the groundwork for some key components of U.S. imperialism’s new offensive against the global revolutionary upsurge that characterized the immediate post-World War II environment, an offensive that is still with us today.

Understanding the background, context, and content of the Memo helps us get a sense of the right-wing counteroffensive against domestic people’s movements. Powell eventually entered the Supreme Court and helped usher in a wave of reactionary rulings against the people and for corporate profits. Thus, while the exact impacts of the Memo are hard to ascertain, they eventually made their way into the law books, attacking affirmative action and establishing a theory of corporate speech and “personhood.” More immediately, after the Memo’s circulation, the Chamber of Commerce “expanded its base from around 60,000 firms in 1972 to over a quarter of a million ten years later,” spending almost $1 billion annually to promote their interests [1].

The ideological stakes at play in the Powell Memo

Powell wrote and sent the confidential memo at the request of one of his colleagues, Eugene B. Sydnor, Jr., who chaired the education committee of the U.S. Chamber of Commerce, for a high-level discussion with the Chamber’s Vice President Arch Booth the next day. The Chamber of Commerce is not, as the name might imply, a government agency, but is the largest private pro-business lobbying group in the country. Because the Memo was written for the capitalist class by one of their most fervent ideologues, it displays the fears and ambitions of the imperialists in the most blatant manner, revealing exactly how they speak to each other when they don’t have to feign decorum or decency, providing a glimpse into how much they feared progressive movements.

“No thoughtful person can question that the American economic system is under broad attack,” the Memo begins [2]. The problem is not so much with the usual suspects like “the Communists, New Leftists and other revolutionaries who would destroy the entire system, both political and economic.” Although such “extremists of the left” are growing in numbers, support, and legitimacy in unprecedented fashion, Powell continues, they are still relatively minor players on their own.

Powell’s primary fear was that revolutionaries, the usual suspects, were now influencing “perfectly respectable elements of society” such as “the college campus, the pulpit, the media, the intellectual and literary journals, the arts and sciences, and from politicians.” In essence, Powell expresses how the global tide of revolutionary and progressive struggles sweeping the world during that period were normalizing and popularizing radical political change and demands [3]. As he puts it, the issue is that respectable institutions like the campus were hijacked “by minorities” who “are the most articulate, the most vocal, the most prolific in their writing and speaking.”

Powell’s insistence on the influence of vocal minorities—a prelude of sorts to the “silent majority”—was more than just a rhetorical flourish. Although the “Marxist doctrine that the ‘capitalist’ countries are controlled by big business” had widespread currency at the time, for Powell, nothing could be further from the truth. Simply put, Powell’s memo claimed that in capitalist countries capitalists had no influence or control over the government or society. This ridiculous claim is phrased frankly:

“…as every business executive knows, few elements of American society today have as little influence in government as the American businessman, the corporation, or even the millions of corporate stockholders. If one doubts this, let him undertake the role of ‘lobbyist’ for the business point of view before Congressional committees. The same situation obtains in the legislative halls of most states and major cities.”

Powell goes further still, in a sentence that constructs the corporation not only as a person, but as a minority person in need of protection: “One does not exaggerate to say that, in terms of political influence with respect to the course of legislation and government action, the American business executive is truly the ‘forgotten man.’”

This dire situation, in which the very existence of capitalism and imperialism are at stake—claims that are, to say the least, exaggerated—calls for drastic and wide-ranging responses. To address the supposed exclusion of corporations in the U.S. government and the attack on the capitalist system, Powell included a vast list of recommendations for pursuing their ideological agenda, in which the Chamber of Commerce would play a central and organizing role. Powell’s upbringing and professional career account for his deep concern for the position of the corporation in U.S. society and politics.

Powell: A fighter for “oppressed” tobacco companies

With a family lineage traced back to “one of the original Jamestown settlers,” Powell graduated from an elite prep school, McGuire’s University School in Richmond, Virginia in 1925 [4]. From there, he ascended the ranks of the political elite, earning a Master of Laws degree from Harvard Law School in 1932 before returning to Virginia and starting a long career with a Richmond law firm. After a brief stint as an intelligence officer in the Army, Powell integrated himself into Virginia’s political scene and rose through the ranks of the American Bar Association, becoming the ABA’s president in 1965.

Powell served on over a dozen boards, including the Colonial Williamsburg Museum and, most pertinently, the tobacco giant Philip Morris. Powell joined Philip Morris’ Board of Directors in 1964 at a time when, historian Jeffrey Clements notes, “the corporation sought to mitigate the US Surgeon General’s report about the grave dangers of smoking” [5].

When he penned his infamous memo, Powell was in the trenches defending Philip Morris and other tobacco corporations through their lobbying group, the now-discredited Tobacco Institute. He was also busy defending big tobacco when Richard Nixon asked him to serve on the Supreme Court in 1971 (although his appointment went into effect in 1972).

During his tenure at the Tobacco Institute, he fought against the “radicals” and liberals in public health and education who were increasingly sounding the alarm on the dangers of tobacco and nicotine addiction. In their 1967 annual report, issued on behalf of Powell and the rest of the Philip Morris board, they deplored how “unfortunately the positive benefits of smoking which are so widely acknowledged are largely ignored by many reports linking cigarettes and health, and little attention is paid to the scientific reports which are favorable to smoking” [6].

Powell was nothing if not a champion of free-enterprise, facts be damned.

The ideological counteroffensive

It’s not hard to draw the line between Powell’s defense of big tobacco and the broader capitalist system, on the one hand, and his derision of public health, education, and the public interest, on the other. For Powell, it was a small and logical step to move from attacking health researchers to attacking other “revolutionaries” and those they influenced in “respectable” places like universities.

In addressing “what can be done about the campus,” Powell outlines an array of tactics and strategies to beat back the insurgent student tide and revert educational institutions away from  critical inquiry. He called for the Chamber of Commerce to establish a cadre of “highly qualified” pro-capitalist scholars, a full-time paid staff of speakers, and a Speaker’s Bureau that would advocate for capitalists.

The Chamber’s “faculty of scholars” should be given “incentives” to publish prolifically in scholarly journals because “one of the keys to the success of the liberal and leftist faculty members has been their passion for ‘publication’ and ‘lecturing.’” Powell wasn’t concerned with the number of leftist faculty per se, and his memo only cited one by name: Herbert Marcuse, one of the few remaining critical theorists who remained committed to organizing and who supervised, among other important revolutionaries (and against the advice of his colleagues), the doctoral work of Angela Davis [7].

Those like Marcuse “need not be in a majority” because “they are stimulating teachers… prolific writers and lecturers,” according to Powell [8]. In fact, “as his attention to charismatic teaching, textbooks, and other writings shows, Powell based his strategy for ideological warfare on the intellectual productivity that he observed among progressive thinkers” [9].

The historical context for Powell’s ire is instructive, as it was during this time that oppressed nationalities were forcing changes in hiring practices, curricular content, and even creating physical spaces dedicated to the study of radical politics and oppressed nationalities and successfully fighting for open admissions.

The militant organized movements of students, workers, Black people, Chicano people, women, the LGBTQ community, and others—many of whom were openly Marxists—forced open some space within universities and society, legitimizing their grievances, proposals, and knowledge [10]. Importantly, the demands of the student movements “were organized around the redistribution of outcomes in the university and in US society generally” [11]. They helped, in part, to fundamentally restructure what and whose knowledge counted by positioning oppressed groups as central knowledge producers.

Unable to captivate audiences with their ideas or teaching, Powell urged the Chamber to ensure capitalist ideologues would gain audiences on campus. He called on the Chamber to “insist upon equal time on the college speaking circuit” between critics and proponents of capitalist exploitation and oppression. Importantly, they must be “attractive, articulate and well-informed speakers” who “exert whatever degree of pressure—publicly and privately” to ensure equal speaking opportunities” [12].

Powell’s focus on “equal speaking opportunities” denies the larger political and historical context of the times, as if socialists and capitalists get equal time and space in the mainstream news outlets or corporate papers. At the same time, within the universities, they’re still mobilized to promote right-wing ideologues. Today, it’s clear to growing numbers of people in the U.S. that “freedom of speech” policies are intended to limit the dissemination of and engagement with revolutionary ideas.

The Supreme Court: Defending white supremacy and corporate speech

Powell’s disdain for revolutionaries wasn’t personal (or wasn’t primarily personal); it was political. Take, for example, his role in the 1978 Supreme Court case Regents of the University of California v. Bakke, a ruling that was a significant step on the way to undoing affirmative action. Although the ruling sustained affirmative action, it declared racial quotas for university admissions to be unconstitutional and, specifically, in violation of the Equal Protection Clause of the Fourteenth Amendment.

In his majority opinion, Powell claimed that “the United States had become a Nation of minorities” and the U.S. Constitution was meant “to overcome the prejudices not of a monolithic majority, but of a ‘majority’ composed of various minority groups” [13]. White people were, according to his ruling opinion and his own beliefs, minorities deserving protection [14].

In 1982, he issued the majority opinion in Central Hudson Gas & Electric Corporation v. Public Service Corporation of New York, declaring that private utility and energy corporations could, with the protection of the right-wing activist court, dominate the imaginary “marketplace of ideas.” The case revolved around the prohibition of energy corporations from promoting their services during and after the 1973 oil crisis. Powell’s opinion affirmed that corporate “expression not only serves the economic interest of the speaker, but also assists consumers and furthers the societal interest in the fullest possible dissemination of information.” The opinion “rejected the ‘highly paternalistic’ view that government has complete power to suppress or regulate commercial speech” [15].

With the backing of a new barrage of pro-capitalist think tanks and institutes, Powell led the Supreme Court on a pro-corporate rampage that was based on an illegitimate precedent. As discussed in the Liberation School article on Santa Clara County v. Southern Pacific Railroad Company, the 1886 Supreme Court case has been falsely interpreted as setting the “precedent” for corporate personhood [16]. The case did not rule on the question of corporate personhood. Rather, a statement on corporate personhood was included in a headnote added to the case. Headnotes are not legally binding and therefore do not impact the establishment of legal precedent.

Nevertheless, the same year that Powell led the court to undo affirmative action in the Regents of the University of California, he also established “corporate speech” as protected under the First Amendment. That case, First National Bank of Boston v. Bellotti, for the first time held that corporations are protected by the First Amendment and therefore are entitled to “free speech.” Powell delivered the majority opinion in the case, stating “the Court has not identified a separate source for the right when it has been asserted by corporations.” In the footnote accompanying the statement, he claims that “it has been settled for almost a century that corporations are persons within the meaning of the Fourteenth Amendment,” incorrectly citing Santa Clara as legal precedent [17].

With Powell’s new theory of corporate speech, “the Court struck down law after law in which the states and Congress sought to balance corporate power with the public interest” [18].

Conclusion: The struggle for socialism and liberation today

Powell’s Memo and interventions in the Supreme Court were part of an overall strategy to defeat or at least de-radicalize the revolutionary movements of the time, especially the radical transformations they achieved in education. A central element in the capitalist state, education always plays an important role in the class struggle, as it is a primary place where we form our ideology or worldview, whether we know it or not.

The struggle wasn’t—and isn’t—confined to the university, and in fact, its radical edge comes from its ability to link the university to broader social struggles, from anti-imperialism and socialism to anti-racism and sexism, then and now. As the Powell Memo shows, for the ruling class at the time, the balance of forces tipped too far toward the exploited and oppressed. In response, the capitalists launched a virulent counteroffensive in all areas of society, and Powell, his role on the Supreme Court, and his Memo were integral parts of this reactionary wave we need to, and will, push back.

References

[1] David Harvey,A Brief History of Neoliberalism(New York: Oxford University Press, 2005), 43.
[2] Lewis Powell, “Attack on American Free Enterprise System,”PBS. Availablehere.
[3] See Brian Becker, “From Inter-Imperialist War to Global Class War: Understanding Distinct Stages of Imperialism,”Liberation School, 28 July 2018. Availablehere.
[4] Tinsley E. Yarbrough, “Powell, Lewis F., Jr. (1907-1998), Supreme Court Justice,”American National Biography, 01 January 2001.
[5] Jeffrey D. Clements,Corporations are Not People: Reclaiming Democracy from Big Money and Global Corporations(San Francisco: Berrett-Koehler Publishers, 2014), 21.
[6] Cited in Ibid., 22-23.
[7] Gabriel Rockhill, “Critical and Revolutionary Theory: For the Reinvention of Critique in the Age of Ideological Realignment,” inDomination and Emancipation: Remaking Critique, ed. D. Benson (Lanham: Rowman & Littlefield, 2021).
[8] Powell, “Attack on American Free Enterprise System.”
[9] Roderick A. Ferguson,We Demand: The University and Student Protests(Oakland: University of California Press, 2017), 44.
[10] See Stephen Ferguson II,Philosophy of African American Studies: Nothing Left of Blackness(New York: Palgrave Macmillan, 2015), 16.
[11] Ferguson,We Demand, 40.
[12] Powell, “Attack on American Free Enterprise System.”
[13] Regents of the University of California v. Bakke, 438 U.S., 265 (1978), 292. Availablehere.
[14] Ibid., 295.
[15] Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S., 557 (1980), 561, 562. Availablehere.
[16] Curry Malott, “Corporate Personhood, Monopoly Capital, and the Precedent that Wasn’t: The 1886 ‘Santa Clara’ Case,”Liberation School, 09 February 2023. Availablehere.
[17] First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978), footnote 15. Availablehere.
[18] Clements,Corporations are Not People, 25.

Ruth Bader Ginsburg and the Limits of Neoliberal Feminism

[Photo credit: Danita Delimont Photography/Newscom]

By Matthew John

Republished from dialogue & discourse.

On September 18, Supreme Court Justice Ruth Bader Ginsburg died from complications related to pancreatic cancer. She was 87 years old and was surrounded by loved ones at the time of her death. Thousands attended a vigil outside the Supreme Court building and innumerable additional events took place in her honor throughout the country. Ginsburg was the second woman to serve on the Supreme Court and became known as a feminist icon and a pioneering advocate for women’s rights due to her dissenting opinions in cases like Gonzales v. Carhart, Ledbetter v. Goodyear Tire & Rubber Co., and Burwell v. Hobby Lobby Stores. An email I received from Black Lives Matter Global Network the following day concisely encapsulated public sentiment:

“Last night, we lost a champion in the fight for justice and gender equality: U.S. Supreme Court Justice Ruth Bader Ginsburg. Justice Ginsburg was a giant in the fight for equality and civil rights — she embodied everything that our movement stands for. We stand on the accomplishments of her life’s work that have continued to amplify the need to protect and expand equal rights for women and underserved communities. And we celebrate women having a voice in the workforce while also having the ability to make decisions for their own health and wellbeing because of the work of Justice Ginsburg.”

In the wake of this national tragedy, Ginsburg’s life and legacy took center stage in political discourse and rampant speculation ensued regarding how this event might influence the nation’s future. Democratic campaign contributions skyrocketed and Republican leaders began calculating and scheming to fill the vacant court seat. House Speaker Nancy Pelosi announced that Ginsburg would be the first woman to lie in repose at the Supreme Court and New York Governor Andrew Cuomo announced that the state would erect a statue in her honor. Politicians and pundits memorialized the fallen titan, who had become a cultural icon known fondly by the moniker “Notorious R.B.G”, while others found inspiration in idiosyncratic elements of Ginsburg’s persona.

As is the case with other beloved American heroes, the national discourse surrounding the death of Ginsburg included every detail imaginable other than her cumulative record in public service. Unfortunately, the Supreme Court tenure of Ruth Bader Ginsburg encompassed more than just pussyhats and rainbows. As with any prominent figure, we must account for the “problematic” aspects of Ginsburg’s legacy as well. These include her disparaging statement regarding Colin Kaepernick’s racial justice efforts, her positive statement regarding former colleague Brett Kavanaugh (who was credibly accused of rape), her designation of flagrant reactionary Antonin Scalia as her “best buddy”, and her final case on SCOTUS, in which she agreed with the decision to fast-track President Trump’s deportations. In terms of Ruth Bader Ginsburg’s comprehensive legacy on the Supreme Court, the well-known, progressive dissenting opinions are dwarfed by her extensive résumé of anti-indigenous, anti-worker, pro-cop, and “tough on crime” decisions. (Unless otherwise noted, the following bullet points are quoted or nearly quoted from this Current Affairs article, which I’d recommend reading for more details and context.) For instance:

• In Heien v. North Carolina, the court held that the police may justifiably pull over cars if they believe they are violating the law even if the police are misunderstanding the law, so long as the mistake was reasonable.

• In Taylor v. Barkes, the Court held that the family of a suicidal man who was jailed and then killed himself could not sue the jail for failing to implement anti-suicide measures.

• In Plumhoff v. Rickard, the court held that the family of two men could not sue the police after they had shot and killed them for fleeing a police stop.

• In Samson v. California, the Court decided the issue of whether police could conduct warrantless searches of parolees merely because they were on parole. Instead of joining the liberal dissenters, Ginsburg signed onto Clarence Thomas’s majority opinion in favor of the police.

• In Kansas v. Carr, the Kansas Supreme Court had overturned a pair of death sentences, on the grounds that the defendants’ Eighth Amendment rights had been violated in the instructions given to the jury. SCOTUS informed Kansas that it had made a mistake; nobody’s Eighth Amendment rights had been violated, thus the defendants ought to have continued unimpeded along the path toward execution. The Court’s decision was 8–1, the lone dissenter being Sonia Sotomayor. Ginsburg put her name on Justice Scalia’s majority opinion instead.

• In Sherrill v. Oneida Indian Nation, the court ruled against the Oneida Tribe over a dispute regarding its territorial claim. Ginsburg’s majority opinion stated, “We hold that the tribe cannot unilaterally revive its ancient sovereignty, in whole or in part, over the parcels at issue.” Ginsburg referenced the Eurocentric, racist, and colonialist “Doctrine of Discovery” in her comments. (Source)

• In Salazar v. Ramah Navajo Chapter, Ginsburg dissented, disagreeing with the ruling that that the United States government, when it enters into a contract with a Native American tribe for services, must pay contracts in full, even if Congress has not appropriated enough money to pay all tribal contractors. (Source)

• In Kiowa Tribe v. Manufacturing Technologies, Ginsburg once again dissented, opposing the ruling, which stated that the Kiowa Tribe was entitled to sovereign immunity from contract lawsuits, whether made on or off reservation, or involving governmental or commercial activities. (Source)

• In Inyo County v. Paiute-Shoshone Indians, the Bishop Paiute Tribe of California asserted that their tribe’s status as a sovereign nation made them immune to state processes under federal law and asserted that the state authorized the seizure of tribal records. Ginsburg joined the majority in dismissing the tribe’s complaint. (Source)

• In Alaska v. Native Village of Venetie Tribal Government, the court unanimously ruled against a tribal council that wanted to collect a tax from non-tribal members doing business on tribal lands. The Court claimed the land (which was owned by the tribe) was not subject to the tribal tax because it was not part of a Native American reservation. (Source)

• In C & L Enterprises, Inc. v. Citizen Band, Potawatomi Indian Tribe of Oklahoma, the court held that the tribe waived its sovereign immunity when it agreed to a contract containing an arbitration agreement. (Source)

• In Navajo Nation v. United States Forest Service, the court ruled against the Navajo Nation, who have consistently protested the encroachment of a ski resort on Navajo territory (San Francisco Peaks). In short, the decision upheld the Ninth Circuit Court’s ruling that the use of recycled sewage water was not a “substantial burden” on the religious freedom of American Indians. (Source)

• In Integrity Staffing Solutions, Inc. v. Busk, the court ruled that workers didn’t deserve paid compensation for being required to watch theft security screenings. (Source)

• In Brogan v. United States, the court ruled that the Fifth Amendment does not protect the right of those being questioned by law enforcement officials to deny wrongdoing falsely. (Source)

• In Chadrin Lee Mullenix v. Beatrice Luna, Ginsburg sided with the majority opinion which granted immunity to a police officer who unnecessarily shot and killed a suspect. (Source)

• In Bush v. Gore, the contentious decision that decided the 2000 presidential election, Ginsburg’s draft of her dissent had a footnote alluding to the possible suppression of Black voters in Florida. Justice Scalia purportedly responded to this draft by flying into a rage, telling Ginsburg that she was using “Al Sharpton tactics.” Ginsburg removed the footnote before it saw the light of day.

• In Davis v. Ayala, Justice Anthony Kennedy wrote a lengthy concurrence condemning solitary confinement. Most notably, Justice Kennedy made no reference to any particularly vulnerable group, instead suggesting that long-term solitary confinement may be unconstitutional for all. Justice Ginsburg did not join the concurrence.

• Scott v. Harris involved a motorist who was paralyzed after a police officer ran his car off the road during a high-speed chase. Ginsburg concurred with the majority that deadly force was justified. (Source)

• In Rumsfeld v. Forum for Academic & Institutional Rights, Inc., Ginsburg approved allowing the government to threaten the withdrawal of funding in order to punish universities that ban discriminatory job recruitment by the military.

The list goes on. Of course, no one is perfect. Everyone has flaws. However, when evaluating any prominent or powerful individual, it seems the proper outlook is to weigh the harm inflicted by their actions against the positive results of their actions. For instance, Abraham Lincoln’s passage of the Emancipation Proclamation helped end the most prominent form of slavery in the U.S. (but not all forms), and because of this, many Americans are willing to forgive his racist views and perceive his overall contributions positively. By this measure, it is dubious at best to suggest that Ginsburg’s full record contains more — simply put — good than bad. That is to say, it seems that her career as a whole caused more harm to vulnerable people than any positive impact her rare instances of dissent may have had.

The simple aforementioned formulation — cumulative good vs. cumulative harm — may be a bit naïve when compared to the manner in which most citizens evaluate public figures and the process by which these figures are often lionized despite their substantial misdeeds. The cult of personality surrounding Ruth Bader Ginsburg is certainly a notable phenomenon that can be explored in sociological and cultural contexts, but the whitewashing of her record is a crucial aspect of this process that is worth analyzing.

This unfettered, liberal adulation of Ginsburg can stem from a conscious attempt to conceal the unsavory aspects of her record, from plain ignorance, or from a third, more insidious place: acquiescence to the brutality that is “baked into” the American political system and our nation’s history more broadly. This is a system founded by white supremacists who enslaved and tortured Africans on stolen, blood-soaked land — a system by and for economic elites. In this sense, Ginsburg’s consistently anti-indigenous voting record might be perceived by liberals as a “necessary evil” — a simple extension of the settler-colonial mentality and the vestiges of “Manifest Destiny.” The same critique applies to her conservative rulings that harmed immigrants, people of color, and the working class in general.

Beyond Neoliberal Feminism

It is usually the case that about half of any large population is comprised of women. When speaking of feminism, we often forget that universal issues are also women’s issues; healthcare, housing, and wages, for instance. Under neoliberalism, exploitation, austerity, vicious imperialism, and state violence are systemic aspects of daily reality. We must remember that this includes the experiences of women, and often to a greater degree. Why don’t we take into account the indigenous women, or the immigrant women, or the women experiencing poverty when discussing Ginsburg’s record or government policy more broadly?

Let’s break this down even further. Recognizing these demographics, is it “feminist” to continue displacing and attacking the sovereignty of native women? Is it “feminist” to rule in favor of employers rather than female employees? Is it “feminist” to deport women back to countries we destroyed with sanctions and military coups? Just as the lofty, foundational American ideals were designed by and for white, property-owning men, this elite notion of feminism only applies to certain groups of women under certain circumstances. This superficial feminism is a far cry from a Marxist feminism that seeks a more holistic approach to liberation and empowerment. As Martha E. Gimenez wrote:

“As long as women’s oppression and other oppressions occupy the center of feminist theory and politics, while class remains at the margins, feminism will unwittingly contribute to keeping class outside the collective consciousness and the boundaries of acceptable political discourse. To become a unifying, rather than a divisive, political and ideological force, twenty-first-century Marxist feminism needs to become an overtly working-class women’s feminism, in solidarity with the working class as a whole, supporting the struggles of all workers, women and men, and gender-variant people of all races, national origins, citizenship statuses, and so on, thus spearheading the process toward working-class organization and the badly needed return to class in U.S. politics.”

American Institutions and Systemic Violence

Deifying political figures like Ginsburg not only whitewashes their crimes against marginalized people — it also further legitimizes a fundamentally elitist, unjust, and undemocratic political system. As political scientist Rob Hunter wrote, “The Supreme Court is a bulwark of reaction. Its brief is to maintain the institutional boundaries drawn by the Constitution, a document conceived out of fear of majoritarian democracy and written by members of a ruling class acting in brazen self-interest.”

A sober analysis of Ginsburg’s rulings clarifies that America has never strayed from its roots as a genocidal, hyper-capitalist, white supremacist, patriarchal settler-colonial project with economic elites running the government and blue-clad henchmen violently enforcing this agenda through state-sanctioned terror. Some wonder if it has always been this way. Has it gotten better? Worse? Has slavery just been repackaged? What’s clear is that the advent of neoliberalism has heightened the perilous and precarious conditions of this crumbling society while technology has allowed strangers to share the visceral horrors contained therein.

It is time to stop normalizing this barbarism. Performative identity politics and the ubiquitous brand of white, neoliberal feminism are façades used to conceal the profound violence of a dying empire and to paint the “moderate” wing of capital as somehow more humane and enlightened. A society founded on land theft, on commodifying basic human needs, on exploiting, enslaving, and brutalizing the vulnerable, is a society that should not be celebrated. And it is a society where the realization of true feminism has — thus far — proven to be out of reach. As Thomas Sankara once said, “The status of women will improve only with the elimination of the system that exploits them.”

Disproportionate Minority Contact & Criminological Theory

By Miah Register

It has been recently discovered that lesbian, gay, bisexual, transgender (trans*), queer, and questioning (LGBTQ) youth are disproportionately represented in the juvenile justice system (Holsinger & Hodge 2014; Hunt & Moodie-Mills 2012; Craziano & Wagner 2011). Hunt and Moodie-Mills (2014) also report that 60 percent of these youth are Black, Latino/a,. Further, despite the overrepresentation of LGBTQ youth in the juvenile justice system, the legal system's response has been lackluster, at best. In 1988, the Office of Juvenile Justice and Delinquency Prevention (OJJDP) have responded with the Disproportionate Minority Contact (DMC) mandate, which was an amendment to the 1974 Juvenile Justice and Delinquency Prevention (JJDP) Act (U.S. Department of Justice OJJDP DMC Factsheet 2012). This act was intended to reduce the contact of minority youth in the juvenile justice system. Moreover, most research involving minority youth has denied the impact or intersecting identities and the oppression and lack of safe spaces for these young people to exist in society, in general, and in the juvenile justice system. Although feminist criminology has emerged and enhanced the narrow ideologies of classical criminological theory, many intersections have been left uncrossed in juvenile justice theory, research and practice. Since the inception of criminological theory, significant elements of the human identity have been overlooked as primary factors of disproportionate minority contact with the juvenile justice system. For example, Hirschi's (1969) model of social control argues that race and ethnicity are factors that are invariant. Further, this false sense of equality and inclusion encourages exclusion and erasure of the identities of minority groups: i.e. the focus of the current research-lesbians, bisexual, transgender, and gender nonconforming black girls.

History of DMC

The DMC mandate originally intended to reduce the confinement of minority youth in the juvenile justice corrections facilities. Moreover, it required states receiving certain federal funding for juvenile justice programming to follow this mandate and its several components. In 1992, the JJDP Act "elevated the efforts" of the DMC mandate, and allocated 25 percent of the funding to state compliance. Further, the OJJDP proclaim that through the DMC mandate, they learned that minorities were overrepresented in all components of the juvenile justice system, as opposed to earlier beliefs that minorities were only disproportionately institutionalized. As a result, the mandate was amended in 2002 and renamed to Disproportionate Minority Contact for state municipalities to understand the necessity to address overrepresentation of minorities at every point of the justice system.

Further, at the inception of DMC, the OJJDP developed a model for states to emulate in their efforts to reduce minority contact. Their reduction model calls for state agencies to identify, assess, intervene, evaluate, and monitor DMC. The OJJDP claims that their efforts, while not complete, have catalyzed some institutional change. While they quote some positive changes in arrest statistics and in detention facilities, criminological scholars must approach this perceived change from a critical, intersectional lens to understand and asses the positive changes, if any, after the DMC mandate. While each state has implemented the DMC model to some extent, most states have monitored their programming, but they have failed to methodically evaluate the program's effectiveness. Thus, in this paper, I will critically examine the effectiveness of the DMC mandate in serving all minorities-not just Black boys. This evaluation will be conducted through a comprehensive literature review, as well as a theoretical analysis of the potential origins of this deeply rooted issue.

Theoretical Approach

This paper will utilize Blalock's (1967) racial threat theory as a basis to expand upon. In essence, primary ideology of racial threat theory will be expanded to encompass and explain the matrix of oppression for all minorities. This theory asserts that competition (for jobs, economic superiority, etc.) between Black and White people in the US causes an intensified level of social control exerted on Black people. An example of racial threat theory applied to the current plight of the juvenile justice system is the disproportionate involvement of Black youth at every contact point of the system. On the other hand, Black people, in general, represent a minority of less than 15 percent of the country. Thus, the representation of Black youth in the justice system is unjustifiable through realistic, critical approaches to criminological theory.

Moreover, in this paper, some literature is reviewed that deals with Hirschi's contrasting model of social control, which completely denies that racism, prejudice, bias, and corruption are real. These two theories of social control are purposely compared in this paper to illustrate the historic failure of the justice system to understand the "matrix of power" (Potter 2013). The next section of this paper discusses the literature and research studies conducted to understand the complexities of race, gender, sexual orientation, gender expression, social control, and the juvenile justice system.

Literature Review

Although little research has been conducted regarding DMC, the mandate was analyzed in Leiber et al.'s (2011) study. The purpose of their research was to evaluate the effectiveness of the DMC mandate in decreasing racial disparities in the juvenile justice system. The researchers approached this topic through Durkheim's (1964) consensus theory and conflict (symbolic threat) view in relation to racial stereotyping. The consensus model argues that tradition, law, punishment, and treatment derive from a broad consensus of societal norms (Durkheim 1964). According to this criminological theory, racial disparities in crime are attributed to differential involvement in crime, gender, age, dysfunctional family structures and school misbehavior. (Tracy 2005). The conflict model alleges that minority youth possess feelings of fear and jealousy, which makes them pose a greater threat to society and public safety. Moreover, this studies draws from these theories to understand racial bias and stereotyping by practitioners in the juvenile justice system, particularly at intake (court referrals) and at judicial disposition. The researchers hypothesized that the race of the offender would have no influence on intake or judicial disposition before and after the DMC mandate, and that DMC would reduce decision-making outcomes.

The researchers utilized data from a county in Iowa, which was chosen by Congress in 1989 as one of five model states for the DMC mandate. The researchers reviewed about 5,700 cases ten years before and ten years after the DMC mandate, 60 percent being White offenders and 40 percent being Black offenders. They reviewed how both groups were treated in intake and during judicial disposition. Thus, the researchers found that their hypotheses, grounded in criminological theories that do not explain oppression and discrimination, were unsupported. They found that even after the DMC mandate, cases involving Black youth were referred to court more often than that of White youth, especially when Black youth derived from single-parent families. Moreover, the researchers also found that the effects of race become much more covert and indirect, but they were apparent under a critical lens. The researchers found decision-making was most impacted by race when the there is "no procedure for review;" i.e. when discretion is at its highest.

The researchers acknowledged that the data and sample were pulled from a single jurisdiction, which makes the ability to generalize based on their research questionable. Nonetheless, they urge for more research to be conducted on the effectiveness of the DMC mandate, as it has been in place for over 20 years.

Myers and Raymond (2010) studied the effect of heternormativity on the perspectives of elementary-aged girls. The researchers hypothesized that heteronormativity is not just the result of pubescent transformation; instead, it is intertwined within everyday life and interactions, even as young as five years old. Because there has been a gap in previous research (Renold 2006; Casper and Moore(2009), the authors prioritized the focus of heteronormativity and gender performance to a young population, as opposed to the middle and high school population. The authors examined how heteronormativity governs elementary girls' gender performance and their self-image and images of their peers. The researchers gathered a focus group of 43 girls, ages five through 11 (median age 9-years-old), grades kindergarten through fifth grade. The participants were primarily white, lower middle class girls, which represented the majority of the school's population. The girls were divided into age-appropriate groups, where discussion was moderated by a researcher, but was guided based on desirable topics of conversation. The researchers found that although the questions prepared were regarding the girls' general interests, the conversation constantly shifted to a boy-centered discussion. Most girls bashfully and secretly desired to discuss their crushes or dating climate in their elementary classes, and some were very open about the boy-centered interests and perceptions.

Through the conversations with girls, the researchers found evidence to support their hypothesis. They found that the girls defined themselves through the lens of boys, and their heteronormative ideologies were consistent with their firm beliefs that sexual orientation should match one's gender identity and expression. There were also consistent findings of heteronormativity being an agent of social control. The researchers found that heteronormativity was utilized as a mirror for girls to measure themselves and one another through a heterosexist lens, and through a very chivalrous, traditional ideology of what it means and looks like to be an "appropriate" girl. Finally, they found that this was policed through school policy and through home life standards. Moreover, most of the girls' parents followed very traditional gender roles.

The researchers acknowledged the lack of racial and economic diversity in their focus group. The participants were primarily white, lower-middle class socio-economic status, and the researchers noted that the group interviews were dominated by the white participants. This lack of representation silenced the perspectives of the young, Black and Latina girls in the focus group (which were they only people of color reported in the demographic notes). The researchers did not discuss this as an opportunity for future research.

Chesney-Lind, Morash, and Irwin (2003) conducted a literature review regarding the impact of policing girls' behavior. The researchers investigated how the policing of relational aggression between girls is utilized as a mechanism of social control. Moreover, they examined the implications of treating relational aggression as a criminal justice problem. The researchers explained that [relational] aggression can be a plethora of behaviors: eye-rolling, spreading rumors, breaking others' confidence, criticism of other girls' appearance and personality, sarcasm, and much more. Further, the researchers hypothesized that the relational aggression should not be handled in a punitive manner and it should not be governed under school zero tolerance and behavioral policies.

The researchers critically examined literature from the 1970s until the early 2000s. They found that most research has emphasized the necessity to prevent relational aggression between girls, because of the emotional and psychological damage they believed would be caused. Nonetheless, Chesney-Lind et al. (2007) also found that the research supporting this psychological damage is inconsistent. They found that intervening in relational aggression has adverse effects on girls. Moreover, the researchers gathered that this increases the formal social control over girlhood, femininity, and what it means to be a girl or woman.

Thus, while previous research suggested that relational aggression be prevented with gender-specific programming, Chesney-Lind et al. (2007) found this method inappropriate. Further, the researchers found that policing noncriminal behavior of girls increased their involvement in the criminal justice system, as opposed to preventing criminal behavior or juvenile girls. While juvenile girl crime rates may have increased, self-report studies suggest that violence amongst young, female offenders was decreasing (Office of Juvenile Justice and Delinquency Prevention, U.S. Department of Justice 2012). This supports the researchers' hypothesis that policing relational aggression will increase girls' involvement in the criminal justice system and have adverse effects. Further, extensive research has been conducted to understand policing of girls' noncriminal behavior. Eventually, scholars developed several theories to understand the needs of girls in the system and ways to better deal with girls in the system.

There has been much existing research on the dichotomy between the chivalry hypothesis and the evil woman hypothesis. The next section of the literature explores the many facets of these theories, as they have been tested several times. Moreover, Embry & Lyons (2012) conducted a study that looked to analyze the "evil woman hypothesis." They hypothesized that females who committed crimes diverting furthermost from traditional gender roles would receive harsher sentences. Further, the researchers believed that women would receive more severe sentences than men for sex offenses, as this type of violent, dominant, and powerful behavior is an egregious diversion from traditional gender roles.

The researchers analyzed data collected by the National Corrections Reporting Program (NCRP) in order to examine the relationship between sentence lengths for males and females convicted and sentenced for sex offenses. The data was pulled from January 1994 through December 2004. There was little demographic information, offense type, and sentencing variable. The authors' analysis of previous research focusing on women as sex offenders was inconsistent; most research in this article focused on women as victims. Further, the researchers did not find evidence to support their hypothesis, based on the "evil woman thesis." Instead, based on their data sample of approximately 2,800 cases involving females and approximately 2,800 cases involved males, the researchers found that males were sentenced more harshly than females.

The researchers discussed some limitations to their study. When they controlled for offenders' criminal history, they found that sentencing discretion was misleading and unreliable, because females' and males' criminal histories are gendered, based on the chivalry hypothesis.

Thus, this study found evidence to support the chivalry hypothesis, which previous research has utilized to compare the discrepancies in sentencing of male and female offenders who commit the same crimes. The study did not mention the implications of race, class or sexual orientation in relation to sex offenses and sentencing discrepancies.

Spivak et al. (2014) also dissected the relevance of the chivalry hypothesis and the evil women theory in relation to female juvenile offenders. The researchers had multiple hypotheses to test the two theories: they projected that status offenders would be primarily girls, girls' cases would be more often referred to court, girls would have less guilty verdicts, and girls would more frequently be sentenced to custody as opposed to probation.

The researchers utilized the Oklahoma Office of Justice Affairs, where they examined approximately 3,000 cases of status offenders (controlling for race, age, prior history, type of status offense, and socio-economic status). Status offenses included runaway, truancy, 'school behavior problems,' 'beyond parental control,' and 'in need of supervision.' The authors found that their hypotheses were supported; however, the data was inconclusive in terms of the chivalry thesis and evil woman hypothesis. The results were inconsistent, which is parallel with most existing research testing these theories. It was apparent that in this focus group, status offenders were primarily females (approximately 57 percent).

Thus, the researchers discussed that the limitations of their study are the sample size. Because the sample was gathered just from Oklahoma, it is difficult to utilize this as a general consensus about female status offending. Also, the study controls for race, age, prior history, type of status offense, and socio-economic status. Nonetheless, it is imperative view these intersectional identities when truly understanding the methods of the juvenile justice system. Although many researchers have studied these models, there have been inconsistent results.

Hirschi's (1969) Social Control model

While the current study utilizes Blalock's (1967) theory on racial and minority threat, it is important to critically examine other models of social control. Further, Peguero, Popp, Latimore, Shekarkhar, and Koo (2011) critically examined Hirschi's (1969) classical criminological theory of social control. The researchers looked to examine the validity of social control theory and school misbehavior (juvenile delinquency) in relation to race and ethnicity. The authors asserted that previous criminological theory and research has failed to address race and ethnicity as a focal point; instead, race and ethnicity have historically been a "peripheral" (Peguero et. al 2011) aspect of findings in previous research. Further, the authors hypothesized that the relationship between social control theory and school misbehavior vary by race and ethnicity.

The researchers dissected the data from Educational Longitudinal Study of 2002 (ELS:2002), which includes a national sample of 10th grade students. Each of the four elements of Hirschi's (1969) social control theory was used: attachment, commitment, involvement, and belief. School misbehavior was operationalized as noncriminal behaviors violate school rules. The researchers found that for the overall sample, each element of social control theory is consistent with explaining school misbehavior for white students. On the other hand, for Black, Latin American, and Asian American students, a variation of two of the four elements of social control theory explained school misbehaviors. For example, Black students' misbehavior did not correlate with their rates of self-reported attachment and involvement. The researchers assume that this is most likely due to students of color being discriminated against, and the likelihood of these students to not be connected to social conventions and normality. Thus, the historic exclusion of people of color from social normality may make them feel disconnected from generally White traditions and norms.

The researchers discussed limitations to this study. They understand that their analysis was drawn from data that represents a small age group of participants and a small date range. Also, the researchers acknowledge that, like the criminal justice system, social control theory is naturally gendered, and it especially fails to address intersectional identities. Lastly, the researchers strongly suggest that further research place race and ethnicity as a focal point, rather than an afterthought of data and criminological research.

Wordarski andMapson's (2008) study filled some gaps of previous research that researchers have encouraged more scholars to contend (Embry & Lyons 2012). Wordarski and Mapson (2008) examined the relationship of the four elements of Hirschi's (1969) social control theory and how it varies between Black and White female offenders. They hypothesized that there is a stronger relationship between the four elements of social control theory and crime rates of White female juvenile offenders than that of Black female juvenile offenders. The researchers used data from the Project on Human Development in Chicago Neighborhoods (PHDCN), which comprehensively drew data regarding the environment of social behaviors. The PHDCN documented Chicago's social, economic, organizational, political, and cultural structures and significant changes that occurred between 1994 and 2001. The sample of the study was Black and White female juvenile offenders, ages 12 to 15.

The researchers asked several questions that were relevant to each of the four elements of social control theory. For example, to understand the girls' 'involvement' (in relation to social control theory), a question asked was "Was the subject involved in any other after-school program other than extracurricular activity" (231). Further, the term delinquency was operationalized as the commission of any illegal act by an individual under 18.

While the researchers found their hypothesis was not supported, they noted several significant implications to their study. Many of the questionnaires had missing data, as many participants were unwilling to report their criminal histories and prior involvement in any crimes. The researchers also concluded that their sample size was not diverse nor large enough to represent girls in the general juvenile population, as the sample size was 837, and they were primarily Black. Lastly, the researchers suggested that more longitudinal research be conducted in order to obtain consistent results on this matter, specifically as it pertains to race in relation to juvenile delinquency.

As most research has taken a narrow focus on determining extralegal factors in juvenile justice outcomes, Guevara et al. (2006) explored juvenile justice decision making in relation to both race and gender. Specifically, the researchers examined the effect of race on outcomes of juvenile justice and how these outcomes vary by gender. They also reviewed this in relation to the effectiveness of DMC. The researchers hypothesized that white females would receive more lenient judicial disposition than male youth of color .

The researchers collected case file data from two Midwestern counties from 1990 through 1994. The names of the counties were undisclosed, and they were referred to as County A and County B. Of a total population of approximately 200,000 people, the majority of residents were White (69 percent White, 15 percent Black, 15 percent Latino, and 1 percent Native American and Asian American). On the other hand, County B had a smaller population, and it was much less racially diverse (92 percent White, 3 percent Black, 2 percent Latino, 1 percent Native American, and 2 percent Asian American). The researchers randomly chose approximately 1,300 case files for County A and approximately 1,047 case files for County B. Further, the sample was primarily minorities, because out of a total 15,000 cases for County A and a total 6,000 cases for County B, the cases referred to court were primarily minorities.

Thus, the researchers did not find evidence to support their hypothesis. The researchers emphasized the necessity to examine race, gender, and the juvenile justice system-particularly decision making-from an intersectional approach, rather than a narrow lens. This was noted several times throughout the study. A major implication to the study was that the categories of race were divided based on status of White and non-White. These labels devalue the existence of people of color, and it places all people of color in a single category, as opposed to by race and ethnicity.

In order to truly dissect the impact of the juvenile justice system on queer, black girls, it is important to look at all components of the justice system. Goodkind and Miller (2006) examined a corrections facility and their gender-specific treatment methods after the 1992 federal mandate for gender-specific services for girls in the juvenile justice system. The researchers wanted to understand the (positive and negative) effects of an art therapy treatment program, designed specifically for girls in a corrections facility, because the art therapy program was based on gender stereotypes about girls. The authors evaluated the program and found that while the art therapy program has positive effects, the inmates (participants) also understand that it is very gender-stereotypical, and it enforces gender norms as a method of controlling young girls. The researchers used the work of Foucault to understand how gender-specific treatment can be utilized to control the behavior and "appropriateness" of young girls.

The authors did not explicitly make any predictions regarding the art therapy program, in regards to the effects it had on the female inmates; they wanted to study both the positive and negative effects and the perceptions of the female inmates and the staff members. The researchers conducted five focus groups of three to six female inmates. Of the 21 participants, 12 were Black, 7 were White, 1 was biracial, and 1 was Asian American. Women of color accounted for about 60 percent of the participants, and this was representative to the population of the entire institution. They also interviewed 14 administrative staff members-four were people of color, and 9 were women. Most of the participants identified very positive aspects of the art therapy program; however, they felt troubled by the fact that only females participated in the therapy program. The participants sensed that the therapy program was gender-specific, because of the notion that they are more "needy" or more "traumatized" than their male counterparts. It is important to note that the male inmates had access to the art studio, but they did not have to participate in the program with the art therapist.

The conversations were primarily about how the female inmates are expected to act "appropriately," and any deviation from appropriateness resulted in indirect or direct punishment. The inmates were expected to create art pertaining to gendered subjects: relationships, self-esteem, etc. Some inmates expressed their frustrations with the expectations of feminine appropriateness, particularly when as it pertains to creating art. The women expressed their concern for the therapy program and the institution, in general, polices feminine "appropriateness" as a way to control the girls.

The researchers concluded that it is important to question the positive effects of the art therapy program. It must be understood that gender-specific services in the juvenile justice system can "widen the net of social control," as an art therapy program can attempt to make girls conform to society's "gendered expectations of them."

Girls' sexuality has been a taboo topic in the juvenile justice system. Practitioners have historically failed to address sexuality and sexual orientation, and they have contributed to damaging assumptions and policing of "inappropriate" behavior of girls. Pasko (2010) conducted a historical analysis of juvenile justice policing of girls sexual behavior. This was an analysis of over a century of the courts and corrections systems, and the author found the ideology of practitioners has not changed much; nonetheless, the policing has become more indirect and covert through policies and the policing of "inappropriate behavior." Pasko also wanted to investigate how the juvenile justice system has dealt with girls' sexual orientation, specifically lesbian, bisexual, and queer girls.

In addition to the historical analysis, the researcher conducted interviews with juvenile justice professionals: current and former probation officers, and correctional facility administrators (counselors, therapists, and directors of residential facilities). The researcher included that all but five interviewees were female, and all but 13 were White. These practitioners had been in their position from four to 20 years, and they were from seven different (short-term and long-term) facilities. The interviewer noted that a few of the interviewers felt uncomfortable talking about sexuality and sexual orientation in their places of work; therefore, they arranged to meet at locations other than their offices.

The author included dozens of quotes from the interviewees, most of which portrayed signs of policing girls' "appropriateness" and sexual behavior through institutional policies, psychiatric treatment, and their own personal ideologies on girls' sexuality. The primary concern of the interviewees were girls' promiscuity and pregnancy inside and outside of the institutions, and the notion that lesbian behavior was temporary or the result of trauma, and methods of feeling power over others. It is also important to note that most of the girls who were in the institutions had not committed serious offenses, but that had violated conditions of probations, which were often related to sexual behavior-behavior that was not in line with traditional gender roles. Thus, the researcher found that the interviewees were mostly uncomfortable and unknowledgeable about sexual orientation and gender identity issues. To illustrate the climate of the institutions, the author included the following quote from an interviewee: "They are gay on the inside and straight when they get out. I just had a girl who was, 'Oh, I am in love with [girl].' And I said, 'Yeah right, back to your boyfriend you go when you get out. I am sure of it.' This research illustrated the problematic nature of juvenile facilities for queer girls, especially those expressing non-binary genders.

Crenshaw et. al (2015) found that most existing research on youth in the juvenile justice system excludes girls from analyses, assuming that girls are not as at-risk as boys are. The researchers also found that research focusing on race excluded gender (Guevera et al. 2006). Furthermore, the authors developed a report to draw attention to the misunderstood and misrepresented issues of Black girls and other girls of color in the juvenile justice system and the public school system. The report gathers data regarding the effect of school discipline, zero-tolerance (used interchangeably with "push-out") policies, and the almost inescapable pathways to incarceration (school-to-prison pipeline), poverty, and low-wage work. The researchers conducted interviews with high school girls of color from Boston and New York City public schools. While the report includes statistical analysis, it also provides insightful, first person dialogue from the interviews. The premise of this report was to provide a basis of discussion and increase awareness of "gendered consequences" of discipline tactics in schools that increasingly marginalize girls of color-primarily Black girls.

While the current study cannot address all of the researchers' findings, it is imperative to note that all of the issues found in the juvenile justice system as it pertains to Black girls need to be addressed in future research to develop intervention and best practices. Nonetheless, the findings most relevant to the current research are as follows: the authors found that girls felt extremely uncomfortable, unsafe, and discouraged in the school environment. They understood the devaluing effects of push-out policies, as they argued that administrators and teachers prioritized discipline over education. The researchers gathered that traditional gender roles were enforced, as girls were disciplined for behavior deemed as misconduct (that boys were not disciplined for). The authors also note that the school, in general had extreme security measures, such as police presence, metal detectors, etc., which many girls expressed how uncomfortable this made them, discouraging them from attending school.

The authors attributed some limitations to their research to the sample size. Most importantly, the researchers noted that existing data and statistics are difficult to interpret, because of the misrepresentation of race in many databases. Thus, the authors encouraged uniformity in data reporting, because of the lack of availability of consistent measures.

Holsinger and Hodge (2014) explored the climate of juvenile corrections facilities for incarcerated lesbian, gay, bisexual, and transgender girls. The authors wanted to understand the experiences LGBT girls, because of the disproportionate amount of this population incarcerated. The researchers critically examined the challenges facing the girls and the staff members, and they provide recommendations to better serve LGBT-identified girls in the correctional facilities.

To investigate the needs of LGBT girls, the authors conducted interviews with inmates and staff members. The authors were able to hear the perspectives of three LGB girls in residential facilities, and 21 staff members of these facilities. The results of these interviews show this particular facility illustrates the necessity of LGBT-affirming and protective policies, staff training, and implementation is imperative in order to create safe spaces for this overrepresented population in correctional facilities. The inmates reported that the facilities were uncomfortable for LGBT-identified girls. Moreover, the interviews with staff members portray the lack of knowledge and the dangerous marginalization and implicit discrimination and poor treatment of LGBT-girls. The facility also policed "appropriate" behavior, enforcing traditional gender norms, as well as a poor understanding and acknowledgement of LGBT identities, especially bisexual, transgender, and gender nonconforming youth.

The results of this study are telling and troubling, and illuminate the lack of space for existence of LGBT-identified girls in the justice system. Most of the staff members explained that dealing with LGBT girls in their facilities made their jobs more difficult. The researchers also noted that while there had been some attempted LGBT training done for staff members, the facility needs implementation. The results of this study are also indicative of the majority of findings throughout the literature analysis, which will be elaborated in the discussion of the major findings in the forthcoming sections of this paper.

Discussion

There has been exhaustive research conducted to understand, address, and increase awareness on minority populations in the juvenile justice system. After analyzing the literature, it was concluded that future research must focus on the marginalization of queer black girls as a group of people and how the layers of their identities interact, resulting in intensified oppression and trauma upon entering the juvenile justice system. The major findings were as follows: a) we have little knowledge on the perceptions of youth directly affected, but much knowledge on the lack of understanding of juvenile justice professionals and practitioners, b) most research has a diminishing, narrowed focus on one or two identities, and fail to convincingly address what happens when all of these identities collide in the margins of justice, c) most focus groups conducted reported a lack of diversity in their participants, as one social group was almost always overrepresented, d) the common theme of research on heterosexual and LGTQ girls discusses the enforcing of "appropriateness" and noncriminal, sexual and sexual orientation and gender identity-expressive behavior, and finally, e) the lack of a safe space for queer black girls to exist at every point of juvenile justice involvement.

Existing research has portrayed the power of first-person dialogue through one-on-one and group interviewing. This presentation of data has provided unparalleled insight into the perspectives of the participants in a research study, especially in the social science studying the human experience. While this approach has been utilized in the reviewed literature, most of the focus groups were to understand how equipped juvenile justice practitioners are to respond and address minority issues in corrections. While these interviews were very telling of the climate of current institutions, more youth perspective may appropriately address the issues the youth face. Nevertheless, because of staff testimonials, critical scholars can infer that the type of work that needs to be done to create safe spaces for minority youth.

Revisiting DMC

After reviewing existing research on the effectiveness of DMC and through the analysis of the OJJDP's data reporting techniques, it is clear that the DMC efforts were intended to address the issue of Black, Latino, Asian, and Native American boys' disproportionate confinement. Moreover, these efforts failed to include other "minority" groups, such as LGBTQ, disabled, mentally ill, and poor youth, as well as a major population in the US: girls. The lack of focus on girls in the juvenile justice system has led to a misunderstanding in best practices in dealing with offending girls. As some research has tested the effectiveness of the DMC mandate, as well as the OJJDP's annual reviews of the decades-old program, implicitly excluding girls and other minority groups from the focus of these reviews illustrates the lack of understanding of disproportionate minority contact and responding to the needs of these populations upon intake into juvenile delinquency prevention programs.

More current literature, specifically as it pertains to black girls (a general representation of the focus of the current study), it is apparent that DMC has failed to include queer, black girls in its efforts, because of the reported increase in get-tough policies that have directly affected outcomes for queer, black girls.

Revisiting Minority Threat Theory

Minority threat theory is so important in discussing the findings of this literature. As Blalock (1967) identifies, racial threat theory manifests in the form of overpolicing urban communities of color and mass incarceration. In the same manner, the complete erasure and generalization of the outcomes and experiences of queer black girls exhibits minority threat theory. Much of the literature involving girls' sexuality and gender expression focuses on the "appropriateness" of girls' behavior and the policing of such. In addition, the policing of appropriateness manifests as follows: existing research has found that girls most often enter the system through status offending, conveying the policing of girls' behavior. Data on girls is often generalized to encompass the experiences of all girls; nonetheless, it would be a significant area of study to truly understand how queer, black girls are affected.

Conclusion: Call for intersectional thinking

Potter (2013) cites several intersectional, anti-essentialist, critical feminist criminologists and legal scholars in her article that fervently calls for critical criminologists to dig deeper into the statistical findings to understand the complexities of the human identities. In one section, Potter explains that plague of essentialism by feminist scholars throughout multiple disciplines. She asserts that "there is not a singular, shared experience among all women" (307). She then quotes the declaration of Wing (2003): "women of color are not merely White women plus color…or men of color plus gender. Instead, these identities must be multiplied together to create a holistic One when analyzing the nature of the discrimination against them" (307).

For decades, feminist criminologists have called for the study of intersectionality in criminological theory and practice (Potter 2013; Crenshaw 1989, 1991, 2015); nevertheless, as previously mentioned, this is not being done. Much data analysis has had a narrow focus, which Crenshaw (2015) dissects in her report, Black Girls Matter: Pushed Out, Overpoliced, and Underprotected. Crenshaw alleges that research on race excludes gender, and research on gender excludes race. Moreover, many data analyses have failed to focus on the multi-dimensional human identity and have, instead misrepresented and misinterpreted the needs of queer, black girls in a system that erases their interacting identities.

It is imperative that future research, policy, and practice take on an intersectional approach in order to truly reduce disproportionate minority contact. Otherwise, the oppression applied at the intersections will continue to intensify in the form of violence, brutality, mass incarceration, and erasure. The efforts to include all minority populations may not only contribute to the reduction of the overrepresentation of queer, black youth in the justice system, but it may also create safe spaces for them to decrease the double trauma enhanced by the justice system.

References

Blalock, H. Jr. (1967). Toward a Theory of Minority-Group Relations. New York: Capricorn Books.

Chesney-Lind, M., Morash, M., Irwin, K. (2003). Policing Girlhood? Relational aggression and violence prevention. Youth Violence and Juvenile Justice (5)3.

Crenshaw, K., Ocen, P., Nanda, J. (2015). Black girls matter: pushed out, overpoliced, and underprotected. African American Policy Forum. Columbia Law School Center for Intersectionality and Social Policy Studies.

Crenshaw, K. (1989). Demarginalizing the intersection of race and sex: A black feminist critique of anti-discrimination doctrine, feminist theory and antiracist politics. University of Chicago Legal Forum, 139-167.

Crenshaw, K. (1991). Mapping the margins: Intersectionality, identity, politics, and violence against women of color. Stanford Law Reivew 43(6) 1241-1299.

Embry, R. ,Lyons, P. M. Jr. (2012). Sex-based sentencing: sentencing discrepancies between male and female sex offenders. Feminist Criminology

Goodkind, S., Miller, D. L. (2006) A widening of the net of social control? "Gender specific" treatment for young women in the U.S. juvenile justice system. Journal of Progressive Human Services, 17(1), 45-70.

Graziano, J. L., Wagner, E. F. (2011). Trauma among lesbians and bisexual girls in the juvenile justice system. Traumatology 17(2) 45-55.

Guevara, L., Herz, D., Spohn, C. (2006). Gender and juvenile justice decision making: what role does race play? Feminist Criminology, 1(4), 258-282.

Hirschi, T. (1969). Causes of Delinquency. Berkeley: University of California Press.

Holsinger, K., Hodge, J. P. (2014). The experiences of lesbian, gay, bisexual, and transgender girls in juvenile justice system. Feminist Criminology, 1-25.

Hunt, J., Moodie-Mills, A. (2012). The unfair criminalization of gay and transgender youth: An overview of the experiences of LGBT youth in the juvenile justice system. Washington D.C.: Center for American Progress.

Leiber, M., Bishop, D., Chamlin, M. B. (2011). Juvenile justice decision-making before and after the implementation of the disproportionate minority contact (DMC) mandate. Justice Quarterly 28(3) 460-492.

Myers, K., Raymond, L. (2010). Elementary school girls and heteronormativity: the girl project. Gender & Society 24(2) 167-188.

Office of Juvenile Justice and Delinquency Prevention, U.S. Department of Justice. (2012). Disproportionate minority contact OJJDP: In Focus.

Peguero, A. A., Popp, A. M., Latimore, L., Shekarkhar, Z., Koo, D. J. (2011). Social control theory and school misbehavior: examining the role of race and ethnicity. Youth Violence and Juvenile Justice. 9(3) 259-275.

Pasko, L. (2010). Damaged daughters: the history of girls' sexuality and the juvenile justice system. Journal of Criminal Law and Criminology, 100 (3), 1099-1130.

Potter, H. (2013). Intersectional criminology: Interrogating identity and power in criminological research and theory. Critical Criminology. 21 305-318.

Spivak, A. L., Wagner, B. M., Whitmer, J. M., Charish, C. L. (2014). Gender and status offending: judicial paternalism in juvenile justice processing. Feminist Criminology, 9(3), 224-248.

Wodarski, J., Mapson, A. V. (2008). A differential analysis of criminal behavior among African-American and Caucasion female juvenile delinquents.

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