Tuesday, August 6, 2019

Justice in El Paso? How My Research on the Ku Klux Klan Act of 1871 Could Be Used to Help Some Victims

In 2018, I published “Targeting White Supremacy in the Workplace” in Stanford Law & Policy Review.
The objective of my research is to give attorneys a new tool to combat white supremacy groups that intimidate minority employees.
Let me boil this down. Walmart is a workplace. Whether a Walmart employee was killed or hurt— or not— the shooter terrorized this place of employment.
The Ku Klux Klan Act was passed in 1871 to combat this type of brutal racist violence. The law had a criminal and civil component. The Supreme Court struck down the criminal part in 1883.
The civil law part has been given a very stunted interpretation. The Court has applied it almost entirely to white supremacist violence directed at political actors—voters, civil rights protesters, politicians.
I found evidence that Congress also intended to prevent white supremacists from terrorizing blacks and their supporters into leaving the South to find work in the North.
A justice of the Iowa Supreme Court has already cited this research at some length.
How might my legal theory work in El Paso?
Walmart employees could sue under the Ku Klux Klan Act of 1871 to pursue damages from the racial conspiracy that was directed at them.
Slow that down. The law is about racial conspiracies. If the shooter acted alone, no KKK 1871 lawsuit. If he acted in concert with others, that’s where the civil law comes into play.
The point of my research is not to get damages for employees. It’s to use their terrorized experience to find, sue, and hale into court the conspirators that sold the shooter his gun, aided his planning, focused his target on this particular Walmart, housed him on the way to El Paso, gave him money or a car, or bullets.
In short, it is meant to pry open the dark corners of these racist conspiracies, expose co-conspirators to the harsh light of publicity, and seek damages or injunctions to shut them down.
Some of these aiders and abettors cannot be pursued on criminal charge. My research gives victims a tool to go after these enablers.
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SUMMARY OF “TARGETING WHITE SUPREMACY IN THE WORKPLACE”
Resurgent white supremacy is leading to segregation in some workplaces and local labor markets, long after Title VII and executive orders dismantled Jim Crow. My research conceptualizes a new way to apply the Ku Klux Klan Act of 1871. Much of the law—passed to combat a white terror campaign to deny blacks and their political supporters rights equal to those of white citizens—has been struck down by court rulings. The surviving part, codified in 42 U.S.C. § 1985(3), is limited by its narrow text and Supreme Court rulings that have largely ignored congressional intent in passing this law. Using extensive legislative history, I show that Congress heard testimony from ex-Klan members about the group’s strategy to boycott black workers and segregate them in a caste system that approximated slavery. A major floor speech by Rep. Luke Poland emphasized congressional intent to interdict this economic segregation. I show the relevance of this history by analyzing four current and recent cases involving white supremacist planning and commission of acts to drive blacks, Mexicans, a Jew, and a Navajo from their workplace or a specific labor market. I demonstrate how these cases fit the demanding textual requirements to state a claim under Section 1985(3). In response to a growing number of conspiracies in a work setting to attack minorities, this study provides victims, lawyers, and courts a new way to confront today’s resurgent and aggressive white supremacy movement.

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