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Hearts and Minds


Kym: We tend to look at law almost in a biblical fashion, like it comes to us on these tablets and it's never to be questioned and we should just follow it like good soldiers. We don't necessarily think about the human side of it... And like anything else, humans make mistakes and humans ebb and flow with knowledge and cohesiveness and power and understanding. It's humanity, it's law, it's sociology, it's psychology, it's all of it.

I’m Dan Baum and you’re listening to Redefine U. Join us as we continue to explore what happens when we’re challenged to change our thoughts, beliefs or even who we think we are.

This season, we’ve touched on a number of the issues faces our country. Many of the challenges we see didn’t start overnight - particularly when it comes to racial inequality and social justice. How did we get here and what do we need to know to move forward?

Today we’ll talk to two professors in AACC’s Legal Studies Institute. Mary Bachkosky and Kymberly Jackson, were part of team that revived a course in civil rights law. They’ll explain what we gain from an understanding of civil rights history and share what gives them hope for the future.

Dan: I want to welcome Professors Mary Bachkosky and Kymberly Jackson, who teach in our Legal Studies Institute at AACC. Good to talk to you both.

Kym: Hello.

Mary: Hi Dan. Thanks for having us.

Dan: How are you each holding up during this pandemic?

Kym: It's a learning experience, but I think our passion for it drives us to figure it out.

Mary: Yeah, I concur with that. I think we're holding up just fine. Actually, we draw strength from helping out students through their issues. So, I find that I'm finding that I'm spending a lot more communicating with students, which is not a bad thing.

Dan: Not at all.

Now, how long have each of you been at the college and what do you typically teach? Since Kym, you jumped in right away, maybe I'll start with you.

Kym: So I've been with the college since 2016. I actually started over on the technology side and I was teaching digital ethics. Slowly but surely, I started to teach in the Legal Studies Institute. So I've been a full-time faculty member since 2018.

Mary: So I started in 2007 as a special term contract instructor, which means I taught four or five sections a semester. Became full-time 10 years later in 2017 as an assistant professor. So that's with legal studies. Way back in late 1990s, early 2000s, I actually taught for the community college in a different department. I taught American government. I really loved teaching the constitutional law part of it, so a couple years later, I contacted the college to see if they had any role for me there, and they did.

Dan: And now the two of you are working together. You're team teaching a course on civil rights law. Can you tell us a little bit about that course and what it covers?

Kym: Yeah. So that was a course, actually, that has been on the books for a long time. Mary knows the history and shared with me the fact that it's not been taught in the entire time she's been there, so it has not been taught since, I guess, 2007 until now. So in some ways, it feels like a new course and definitely there have been a lot of changes since 2007. So we really just wanted to revive the importance. One, it's a wonderful subject and one that definitely deserves to be studied. But the second thing is I think there was just a shift in the overall texture of our country. It seems like we are in need of support in understanding certain things legally and historically.

Dan: I am very intrigued by that course and it seems very timely. I know we can't cover too much in 30 minutes, but where do you begin from the legal point of view? How far back do you go?

Mary: We start with the Civil War Amendments, the 13th, 14th, and 15th Amendments, and Reconstruction and the Dred Scott decision. We start with that era and we really do begin the course with the students running. Right? They really hit the pavement running, reading their very first chapter on that era and those who tried to destroy and spent a lot of time and effort destroying what was trying to be constructed at the time. So, we do infuse a lot into this course, but it is a law-based course, so we go through the Dred Scott decision, the progression of Plessy versus Ferguson, and then Brown versus the Board of Education to kind of show that progression.

Kym: Well, the Dred Scott decision, for those who don't know, is the one where the Supreme Court basically indicated that Black Americans were not considered whole citizens or whole people. It was the three-fifths rule.

Dan: Yeah, I was going to say, the names Dred Scott, Plessy versus Ferguson, Brown versus Board of Education, many people may be familiar with the names, but not as clear on the history and most importantly the impact. So what would you want people to know most about these landmark cases?

Mary: I think starting with Dred Scott, it very clearly stated by Justice Taney, who wrote the majority decision, exactly what Kym said. Basically, that those who were imported here as slaves cannot possibly be part of the political community because this constitution was written while they were still slaves. I think it's important to know that's the starting point of the progression of those three cases because then Plessy versus Ferguson happened 40 years later, but after the 14th Amendment was ratified. The 14th Amendment provided a mandate to the states to provide equal protection and due process to everyone.

So Plessy versus Ferguson, if we fast forward, there was a state law on the books that disallowed the two races, only acknowledging two, disallowed the two races from sitting on a train car together. It was a state statute that was upheld by the Supreme Court. So even after the 14th Amendment was adopted, or what we call these post-Civil War Amendments of 13, 14, and 15, we have a Supreme Court that's still acknowledging the fact that there are people who may be joining in our political community, but are not joining in the social part and really separating those two things out.

So I think the boldness of the Dred Scott decision and the boldness of Justice Taney and the boldness of Plessy versus Ferguson led to the decision in Brown versus the Board of Education, led that Supreme Court in 1954 to say, "Separate is not equal. Let's just call it what it is, separate by itself is not equal." So it's a really important kind of progression. I know they're famous cases that we hear the names of all the time, but sometimes we don't put them together, right? They're bold and they're hard to read sometimes. But our students really find some basic knowledge in knowing those three cases.

Kym: The 14th Amendment actually started out as a statute. It was the Civil Rights Statute of 1866. It became very clear to the Republicans at the time, which is so interesting, that law itself was not going to change the social fabric of what they were trying to change. It was not going to make the pathway to citizenship for these newly freed Black Americans smooth the way they had intended. So while they had control of the Congress and the South was kind of in shambles, they decided to turn it into an amendment, right? To give it more strength.

All of the Amendments I should say, 13th, 14th, and 15th, have enabling legislation. Most do not have enabling legislation over the states because of the concept of federalism. But they had such good foresight that they said, "Not only are we going to make these amendments, but we're going to give them some fuel. We're going to tell them, we're going to say in the statute, especially the 14th Amendment, that states, you have to listen to us and we have the power to make you listen to us just to put it in basic terms."

Then there is, unfortunately, as there often is, a pushback from what's called the Redemptionists, who wanted to have it go back the way it was, right? At least, if they couldn't bring back slavery, they definitely wanted to create a caste system. It was not called that. We call it Jim Crow. But that's actually the precursor to Jim Crow. You see the Redemptionists start to take over the federal government, the court, and basically neuter the 14th Amendment from having any power over the states, which has had a unfortunate shadow over our ability to progress in this area.

Dan: It's kind of stunning. Maybe you can help us understand briefly just how that comes about because you mentioned separate, but equal, Jim Crow laws. Those appear to be in direct contrast to the 14th Amendment, but you say there's a whole process that occurred that allowed that to actually happen.

Mary: Well, the Supreme Court gets to decide what these statutes and these constitutional provisions mean. So it matters when the Supreme Court interprets the 14th Amendment. It matters when the Supreme Court upholds the state statute that allows that separate, but equal status. It legitimizes the discrimination.

Kym: We're kind of on the brink of that now. I mean, it's no secret that, for instance, the Supreme Court may look at Roe v. Wade for instance, right? That's a Supreme Court case that has been on the books my entire lifetime. But there's the possibility, right? That a new case could come and it could be reviewed by a new Supreme Court that is affected by the appointments and there may be a different decision or a decision that has a chilling effect on Roe v. Wade. So it shows a lot about the interplay between social understanding, political power, and how the law actually works.

We tend to look at law almost in a biblical fashion like it comes to us on these tablets and it's never to be questioned and we should just follow it like good soldiers. We don't necessarily think about the human side of it, that yes, it's very consistent and there's some beautiful and wonderful and interesting philosophies and jurisprudence, but there is also the human side of it. Like anything else, humans make mistakes and humans ebb and flow with knowledge and cohesiveness and power and understanding. It's humanity, it's law, it's sociology, it's psychology, it's all of it.

Dan: Well, you're making a distinction between civil, political, social rights. Can you dig into that a little bit more, explain that a little further for us?

Mary: Well, in what the three cases we just mentioned, were Dred Scott, Plessy versus Ferguson, and Brown versus the Board of Education, made it clear that there is a separation of political and social rights and that while a group of people could be declared to have the same political rights, that the government at the time post-Civil War was perfectly willing to support the division of social rights. So, well, can that be codified? Well, I mean, it was in Plessy versus Ferguson in that there was a state statute that says the two races can't be on the same train. So that kind of logic and reasoning has launched into other arenas as well. So, the interpretation of the Supreme Court to allow the 14th Amendment to only apply to public acts instead of private acts for example really contributes to that distinction between social and political power.

Kym: Brown versus Board of Education overruled Plessy versus Ferguson. So, Plessy was the separate, but equal that Mary just explained, not only allowed, but supported segregation. The Brown versus Board of Education case… Thurgood Marshall, who later became a Supreme Court Justice, and the NAACP legal defense fund, and several other legal giants were working very hard and they picked this case, but they also did something that was quite unique, which was they had a psychology test that's called the Doll Experiment where young Black children were asked to pick between the good doll and the bad doll. There was a white doll and a Black doll. The Black children, more often than not, picked the white doll. So they were able to show the effects of it. So it's one of those things that once the court was able to see things beyond jurisprudence, right? If they had been stuck to the Plessy versus Ferguson holding, which is how we do things in law, once the Supreme Court makes a decision, we follow that decision unless there's a compelling reason to overturn it. Whether it's compelling or not obviously is affected by who's ever hearing the arguments, right? Which brings it back into the Democratic process.

But in that case, the court was willing to go outside of the walls of jurisprudence and to do a mediated understanding between real life. In seeing this Doll Experiment in addition to the arguments that were made, overturned separate, but equal and required desegregation. That's when you see some of the famous stories about the Southern schools and the U.S. Marshals having to come in to force the states, mostly Confederate states, to follow the law because again, the law in and of itself was not enough to change the fabric of social practices.

Mary: I would say that we illustrate to the students that that still is alive today. That there is white flight and neighborhoods that are segregated. So Brown didn't fix everything in 1954 and it's still not fixed today.

Dan: Yeah, it seems like the social, or what, Kym, you referred to as real life, seems to be lagging or often does lag behind the political or civil gains. So how can the courts learn from that and help us address better the social landscape?

Mary: Well, some Justices don't think that's their job. So it starts with what are the philosophies that the Justices go by in order to determine what the law means and how it should be applied. So there's different schools of thought as to what Supreme Court Justices should do. For example, Justice Scalia would not advance any kind of social justice platform. He believes in originalism, or believed in originalism, where Justice Sandra Day O'Connor thought judicial activism was going to work every day, that she should be advancing the country socially through social justice. So it matters who's on the Supreme Court and it matters what their philosophy is on interpreting the Constitution and these statutes.

Kym: It's one of the things that it shows the synergy of social development. You've got a situation where once society changes, what you'll see in many Supreme Court decisions from decade to decade is, to a large extent, they follow the social understanding of the times, right? So there was a time when, for instance, Roe v. Wade never could have been decided the way it was ultimately decided. Then there was a sharing of information. There was a showing of a populous in this country that pushed it the other way. Similarly, with race. The march on Washington, the visibility. Television, right? We're experiencing currently, as Mary said, this is just happening over and over again. The George Floyd incident was something that was a wake up call to a lot of America in terms of what, for instance, the Black Lives Matter Movement was actually about, what the issue was between Black communities and police, and it caused a greater dialogue and a greater understanding.

Well, for the Civil Rights Movement, that was television. Mainstream America was able to see in their homes what was happening to Black protestors and white allies. The FBI was investigating the death of white allies in the South that had gone down to try to help Black Southerners earn and maintain and acquire civil rights. And so,  I believe that if we could get the populous in a healthier spot, I think you'll see situations where the populous, even in situations, for instance, a Justice Scalia, although I don't know if he ever would have changed his position, it's unlikely, but theoretically, I think you can get to a situation and there have been Justices over the past that, once they see it play out, are willing to entertain arguments that they may not have been willing to entertain in the beginning of their appointment.

Dan: Well, clearly students are part of the populous. They're influenced by the times. What do you hope students will take away from the study of civil rights law?

Mary: I hope they have personal growth. I think Kym and I are starting to see the evidence of that. In the civil rights law course, the students every week have to read a chapter, complete a worksheet, kind of like a reading comprehension worksheet on that chapter, and then they discuss the issue of the week. So one week, we discussed police brutality. Another, housing and voting. So then at the end of the week, after they've done the academic exercise of reading through the chapter, after they've discussed this hot topic with their fellow students, they reflect on that in a reflection journal at the end of the week.

Now that we're midway through the semester in this first time we're teaching this course, it's pretty cool to see the personal growth of the students. Because what they're doing now is utilizing the course material, and we've developed some really rich course material, I have to give Kym a lot of props for that and Professor Luke Fredericks, but these students are listening to each other during our discussion forums, our discussion dialogues, respecting others' decisions, and then you see that personal growth and advancement in their reflection journal. We don't have a political agenda. We really want the students to reflect and think and grow, and that can't happen with a quick little meme on Facebook or a quick little article that a friend sent you, right? What we tell them is they really have to study this stuff in order to best land, have their hearts and their mind land somewhere on it.

Kym: It's also, I think, it's an important lesson in the dynamics of democracy. I think many of us grew up with the idea that democracy was the happily ever after that we used to read about in Disney stories. Really democracy is only an opportunity for a democratic government. It's not a promise. It requires a sense of responsibility by the citizens. It requires action. It requires a sense of investment. We're going to have to spend a little bit of time peeling away from our creature comforts, from our game stations, and our streaming and our shopping to actually plug back into our society because whatever is playing out racially is a reflection of how we deal with equality in this country overall.

Some things that are sometimes missed is that the 14th Amendment, although it was created to integrate Black Americans into society post-Civil War, but for the 14th Amendment, we do not have a constitutional tool to address equality in this country. The equality that the 14th Amendment brought through the equal protection clause is one that is used for every case of equality. So as we went from race-based cases to gender-based cases to national origin or indigenous issues, which is ironically one of the more recent versions of the application of the equal protection clause, and then ultimately we end the course with the Americans with Disability Act and how that is also a civil rights issue, but all of that is built on the 14th Amendment that was originally built on race, but it's also a situation where it shows the overall power dynamics, right? So if it's not race, it's something else. So it shows one, that all oppression is linked. It shows, two, that there is a need for citizen involvement and responsibility. One of the things we do a the end of the class is that we create a project for the students to do to practice a sense of civil engagement and civic responsibility.

Mary: We tell the students that this course is a beginning, right? With the hopes that they're curious enough to dig deeper. With the help of our team of people who helped us create this course, with Professor Jason Keene and Luke Fredericks and Kym and myself, we've created some additional resources for every single one of our modules because we just had too much information to require the students to read and sort through in a three credit class. So the additional information is probably, in most modules, three times the amount of what we have for required resources. Students are diving into them. They are taking the deeper dive and they want to know, and that's one of the biggest takeaways is to encourage them to stay curious and, as Kym said, enough maybe to dive in and become part of the fabric of our democracy.

But a lot of them are just overwhelmed with how much they didn't know. We're sorting through that with them as well because it's a lot to take in. It's a lot to take in. But we want them to be curious and we want this to be the first step for them.

Dan: So Kym, you talked about the Justices, they're going to have a point of view. So naturally, we all have our respective biases. Have either of you felt, through this process, you've had to confront some of your own biases?

Kym: Definitely. Bias is a part of the human fabric of who we are. We have biases because we have to be able to categorize information. It's our own analog. That's one of the tricky parts of racism and biases, which is how to create a sense of fair judgment, right? Something that actually allows us to see things a little more transparently rather than the easy way, which is to default to what we've either been taught or where we've already been for whatever reason, kind of a shortcut, right, of sorts. So biases are something that everyone is going to have. That is something that I don't see humanity escaping. Proper use of biases is really what we're focusing on in this situation.

And so one is being open to the fact that everybody has bias and that it's kind of like a hygiene issue. If you don't vet it, if you don't practice something, if you don't learn about it, it's going to be difficult to get better at it. If someone finds it difficult, I think they have to be willing to be curious and be open and listen and, in some cases, kind of think about it logically. I often wonder what people are thinking when they tend to think that someone has a, like let's say, with a particular movement, "Well, they're just complaining because they want to." Like global warning. "People are just making that up," for instance. Like who has the time to do that? Why would someone just make that up? So just looking at it in a, I guess, a more independent lens and an open lens and a curious lens.

Mary: Yeah, I would say that this whole course has the effect of highlighting my own biases, just creating the course with Kym, and allowing students to do the same and acknowledging them is healthy. I agree with Kym, I think we all come to the table with some kind of bias. I think it's just kind of part of how we're made. What we do with that, I think is super important. So that's why we make the point to the students about the academic nature of what we're doing here to study these things on an academic level as opposed to just taking your bias and hearing through social media and other mechanisms what you want to hear. Other people that have your same biases and they nurture it as opposed to a course like this that illustrates it and then proceeds with some knowledge and some basis for trying to change yourself if that's what you choose to do.

So we start this course from the angle of we all have these biases and then where do we go next? Next is learning information to make yourself a better human being, understanding how we got here so you, as a citizen, can help society move forward.

Kym: It's the knowledge. Once you understand how we got here, there's just so much we don't understand, these invisible wires that have us knitted together and the fabric that we currently call our society, that we have to look back at how it's made and what's behind there because then it starts to make a lot more sense both ways, right? Even in terms of behavior that we may not like or we may not want to tolerate. We can at least understand it better. If we understand it better, we have a better opportunity to at least address it.

Mary: I think a lot of our course is history that's missing for them. Like the Colfax Massacre and knowing about Dred Scott versus Sandford and Justice Taney's actual words about slaves. I think that's missing from the history books. I think a lot of these students don't realize that perhaps their bias was built upon the way in which they learned about these events or just didn't learn about them at all. Now that they know, they can start breaking that down and realizing where the bias comes from.

Dan: It sounds like enormous opportunity for growth and redefining themselves. I'm curious about the two of you. Has collaborating on this course helped to redefine either of you in any way?

Mary: I don't know about Kym, but I have learned so much in collaborating with her. She's such a wealth of knowledge and a wonderful person to collaborate with that, after teaching for 15 years, I have found a new lease on teaching and content. For me, this is my proudest course that I've worked on and I'm so grateful to have worked on it with her.

Kym: Well, I mirror that. It's a team effort for sure, Dan. We are a good match. Mary is a constitutional expert and she has a sense of the framework and the history in a constitutional way that is invaluable and so important to understand within the context of these other things, which is one of the things that makes this course and this subject matter in general so difficult to put your arms around, is because the minute you think you've got your arms around it, there is a new vine growing someplace else and it's all interconnected and there's so much intersectionality, and, and, and, that it's difficult. But yes, I'd say definitely in working on this course with Mary and with Jason Keene and with Luke Fredericks, all of us bring something really different to the table in a very different way. That collaboration, right? It speaks to diversity. It speaks to diversity of thought. Through that process, we've been able to practice an alchemy of sorts and come up with a really beautiful project. It's definitely changed my view of teaching, my experience with collaboration, my precision with the subject matter, and I'm learning a lot of things that I didn't know either. I mean, there are some things that you can experience that you can't put your finger on. This course, teaching this course helped me understand things that I have sensed or been able to feel on a visceral level, but didn't have the words, didn't have the mental framework to explain and working with my team, our team, has allowed me to do that. So yes, definitely. And it's made me hopeful.

Dan: Well, it sounds amazing. Kym, I'm so glad you used the word hopeful because you've touched, both of you, on so many very deep issues. You said and, and, and. That's what it feels like, and, and, and. What do you see that we're trying to redefine at this point in our nation's history?

Kym: Our integrity, frankly. I think we've got some things that are competing with our base values and that seem shiny and important and I really think we're at a point where we're trying to redefine our integrity and to stand up to the promise that this country made when it was created. Although there is part of it, right, that you can arguable say did not include women, did not include Blacks, did not include Hispanics, certainly, right, whether you go to your fundamental, ethical principles, that is something that grows and we get better as we know more, not worse. It's just basically fulfilling the promise that this country was based upon and making sure that we remain true to our integrity and that we're willing to make the sacrifices that are necessary to do that.

Dan: Wow. Well, Kym, Mary, really great speaking with you. I wish you much success on this course. I got to find a way to fit this into my schedule. It's just a fantastic-

Kym: Yes, please.

Mary: You really-

Kym: Everyone listening, everyone listening, enroll in LGS 271.

Dan: It just sounds fantastic. Well, thank you both and take care and be well.

Mary: Thank you.

Kym: Thank you, Dan. Thank you, everyone. Thank you for having us.

Mary: Yeah, thank you.

Looking back at how long our country has been struggling with issues of equality, it’s easy and even understandable to feel discouraged.

But Kym and Mary have hope. They reminded us that democracy isn’t a happy ever after. It’s a work in progress that requires its citizens to have a sense of responsibility, take action and invest in the future of their country.

Specifically, we can seek knowledge and understanding about the events that brought us to this point. We can listen to our neighbors with an open, curious mind. By doing so, there’s hope our hearts and minds will land where change is possible.


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