AFAM 346
African Americans
and American Law
Spring 2010
Instructor:
James Jasinski
404D Jones Hall
879-3463 (office direct line)
761-1591 (home; no calls after 8pm)
e-mail address: jjasinski@pugetsound.edu
Office hours: M, W 1-4pm and by appointment
Overview of the course:
This course explores the relationship between African Americans and American law,
especially but not exclusively American constitutional law. We’ll begin by examining the
most important legal case in antebellum America: Scott v. Sandford. We’ll start by
spending two class periods discussing the constitutional politics of slavery, then discuss
the case’s background details as well as examine two of the opinions, and we’ll conclude
by considering Mark Graber’s provocative claim that Dred Scott was properly decided.
Along the way, we’ll start to learn about (or form some of you learn more about)
constitutional theory and legal rhetoric.
Our focus then shifts to the post-civil war period and the adoption of the “civil war
amendments,” especially the fourteenth. We’ll devote a number of class periods to
examining how the Supreme Court applied the amendment’s provisions to a variety of
cases (including criminal law, residential segregation, and voting rights).
The final portion of the course begins by examining the important antecedents to Brown
v. Board of Education. We’ll then analyze the arguments and opinions in Brown I (1954)
and Brown II (1955). After Brown, we’ll concentrate on two important issues: race and
educational policy (affirmative action, busing, school assignment policies) and race in the
workplace (affirmative action and employment discrimination).
As a course the satisfies the Connections requirement, AFAM 346 is interdisciplinary.
You’ll be expected to display knowledge of argument and rhetorical strategies, history,
and legal and political theory in class discussions, exams, and the final project.
Required/Recommended Course Materials
Mark A. Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge:
Cambridge University Press, 2006).
All other readings (briefs and opinions; material on 14th amendment) will be available
through moodle.
See the schedule below for dates when readings are due.
In addition to the required readings, there are a few additional resources you might
consider employing and/or obtaining.
1. Legal dictionary. You can get an abridged paperback of Black’s dictionary on line
(used) for a few bucks. The library has a copy of unabridged version in reference (KF156
.B53 1999). There are also a number of web sites that provide adequate definitions of
technical legal terms (e.g. a writ of mandamus, federal diversity jurisdiction, etc.).
2. Most of you will not be familiar with many of the cases we will examine (as well as
the cases/decisions that will be referred to in different opinions). You can get summaries
of many of these cases through on line sources or you might obtain a resource such as
The Oxford Guide to United States Supreme Court Decisions (I have the 1999 first
edition; I’m pretty sure a second edition has recently come out).
3. For those of you who would like additional insight into the types or “modalities” of
constitutional argument, you might wish to consult Philip Bobbitt, Constitutional Fate:
Theory of the Constitution (NY: Oxford University Press, 1982) and/or Sotirios A.
Barber and James E. Fleming, Constitutional Interpretation: The Basic Questions (NY:
Oxford Univ. Press, 2007).
Course Objectives
This course explores the experiences of African Americans in relation to U.S. law, and in
particular constitutional law. Upon completing the course students should be able to:
1. explain relevant legal concepts (e.g. injunction, police power, strict scrutiny);
2. identity the historical and political contexts which shaped specific Supreme Court and
lower court decisions; and
3. identify and assess the arguments and rhetorical strategies employed in majority and
dissenting opinions as well as legal briefs.
Course Policies
1. Students must comply with University policies regarding academic honesty. It is your
responsibility to review Logger on-line so that you avoid violating University academic
honesty policies, especially those relating to plagiarism.
2. Turn off your cell phones before class.
3. Please visit appropriate restrooms before class begins.
4. Please do not sit in class with sweatshirt hoods over your head. It is rude.
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Course requirements:
Read each assignment carefully.
Participate in discussions of specific cases, briefs (when appropriate), and opinions.
Two take home exams (due dates noted on schedule below). Each exam will ask you to
discuss cases that we’ve read during that portion of the course. A portion of each exam
will ask you to demonstrate your ability to extend course discussion in original ways
(you’ll be asked to compare cases/opinions or asked to provide some original analysis of
a case/opinion not discussed in class). I’ll distribute exams one week before they are due.
Completed exams should be in 8-10pp range (double spaced, standard 12 point font).
Each exam will determine 1/3 of your final grade.
N.B. The take home exams are individual, not group, assignments. Discussing course
issues and topics with classmates is a valuable activity. But do not collaborate on exams
(or final project). See course policy #1 above.
A final project (due during our final exam period). Each student will select a different
case that we have not discussed in class to analyze (I’ll provide a list of some
possibilities). Your final project should demonstrate your ability to locate the case in its
historical context, identify relevant legal and political issues, and analyze the arguments
and rhetorical strategies employed in case briefs and opinions. You will be required to
present a summary of your final project during our scheduled final exam period (so make
your travel plans accordingly). The final project will be worth 1/3 of your final grade.
Tentative class schedule (subject to minor revisions):
Date
Topic
1/19 (Tu)
1/21 (Th)
Introduction to course.
The Constitutional Politics of Slavery I Read: Graber, pp. 91-126.
1/26 (Tu)
The Constitutional Politics of Slavery II Read: Graber, pp. 126167
Dred Scott v. Sanford (1857) Read: case background and opinions
(posted on moodle)
1/28 (Th)
2/2 (Tu)
2/4 (Th)
Reading
Evaluating Dred Scott Read: Graber, pp. 15-85
The Civil War Amendments: Transformation of the Constitutional
Order (?) Read: Excerpts from William E. Nelson, The Fourteenth
Amendment: From Political Principle to Judicial Doctrine (posted
on moodle)
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2/9 (Tu)
2/11 (Th)
2/16 (Tu)
2/18 (Th)
2/23 (Tu)
2/25 (Th)
3/2 (Tu)
3/4 (Th)
3/9 (Tu)
3/11 (Th)
Adjudicating the 14th Amendment in the Late Nineteenth Century
Read: Slaughterhouse Cases (1873) majority opinion, US v.
Cruikshank (1875) majority opinion (posted on moodle)
Adjudicating the 14th Amendment in the Late Nineteenth Century
Read: majority opinions in Strauder v. West Virginia (1880), Pace
v. Alabama (1883), and Civil Rights Cases (1883) (posted on
moodle)
Adjudicating the 14th Amendment in the Late Nineteenth Century
Read: Yick Wo v. Hopkins (1886) majority opinion and Plessy v.
Ferguson (1896) majority opinion and Justice Harlan’s dissent )
(posted on moodle)
Residential Segregation Read: majority opinions in Buchanan v.
Warley (1917), Corrigan v. Buckley (1927), and Shelley v.
Kraemer (1948) (posted on moodle)
Race and Criminal Law Read: majority opinions in Moore v.
Dempsey (1923), Powell v. Alabama (1932), and Brown v.
Mississippi (1936) (posted on moodle)
Race and Voting Rights Read: majority opinions in Nixon v.
Herndon (1927), Grovey v. Townsend (1935), Smith v. Allwright
(1944) (posted on moodle)
Brown’s Antecedents Read: majority opinions in Missouri ex rel.
v. Gaines (1938), Sipuel v. Board of Regents (1948), Sweatt v.
Painter (1950), McLaurin v. Oklahoma State Regents (1950)
(posted on moodle)
No class.
Brown I (1954) Read: opinion and selected briefs (posted on
moodle)
Brown II (1955) Read: opinion and selected briefs (posted on
moodle)
3/16 (Tu)
3/18 (Th)
Spring Break
Spring Break
3/23 (Tu)
3/25 (Th)
Exam One due.
Post-Brown Lower Court Rulings on Race/School Assignment
Read: Briggs v. Elliott (1955; on remand from SC), Carson v.
Warlick (1956), and Shuttlesworth v. Birmingham (1958) (posted
on moodle)
3/30 (Tu)
4/1 (Th)
Crisis at Little Rock Read: Cooper v. Aaron (1958)
Race and Education (con’t) Read: Green v. County School Board
of New Kent County (1968) and Swann v. Charlotte-Mecklenburg
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Board of Education (1971) (posted on moodle)
4/6 (Tu)
4/8 (Th)
4/13 (Tu)
4/15 (Th)
4/20 (Tu)
4/22 (Th)
4/27 (Tu)
4/29 (Th)
5/4 (Tu)
Race and Education (con’t) Read: Justice Powell’s opinion in
Regents of the University of California v. Bakke and the majority
opinion in Grutter v. Bollinger (2003) (posted on moodle)
Race and School Assignment Policy in 21st Century Read: Justice
Roberts’ majority opinion and Justice Breyer and Justice Stevens’
dissents in Parents Involved in Community Schools v. Seattle
School District No. 1 (2007) (posted on moodle)
Race in/and the Workplace Read: Chief Justice Burger’s plurality
opinion, Justice Marshall’s concurrence, and Justice Stewart’s
dissent in Fullilove v. Klutznick (1980) (posted on moodle)
Race in/and the Workplace (con’t) Read: Justice O’Connor’s
majority opinion and Justice Marshall’s dissent in City of
Richmond v. J.A. Croson Co. (1989) (posted on moodle)
Race in/and the Workplace (con’t) Read: Justice O’Connor’s
opinion and Justice Ginsburg and Justice Stevens’ dissents in
Adarand Constructors, Inc. v. Pena (posted on moodle)
Race in/and the Workplace Read: Griggs v. Duke Power Co.
(1971) and Justice White’s majority opinion and Justice Brennan’s
dissent in Washington v. Davis (1976) (posted on moodle)
Race in/and the Workplace Read: Justice White’s majority opinion
and Justice Stevens’ dissent in Ward’s Cove Packing Company,
Inc. v. Antonio (1989)
Race in/and the Workplace Read: Justice Kennedy’s majority
opinion and Justice Ginsburg’s dissent in Ricci v. DeStefano
(2009)
Exam Two due.
Final project (including your presentation) will be due at the start of our scheduled
final exam period (Tuesday May 11th at noon).
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