Plantation Lullabies: How Fourth Amendment Policing Violates the Fourteenth Amendment Right of African Americans to Parent
Lenese C. Herbert
Albany Law School
St. John's Journal of Legal Commentary, Vol. 19, No. 2, 2005
This right to raise children with healthy self-esteem is a sacred right of parenthood. This right especially matters for African-American parents because they must raise children with healthy self-esteem and a willingness to resist injustice in a world in which numerous micro-aggressions repeatedly broadcast messages of black inferiority and impotence. Parents have no guarantee that they can successfully rebut these messages. When African-American children are harassed by race-based policing or see their parents so harassed, however, such state reinforcement of an oppressive symbolic universe is just what happens, leaving both parent and child obviously impotent to resist. Under such circumstances, therefore, the fundamental right to parent is breached. This Article argues that, ideally, these harmful symbolic impacts should render race-based and related abusive forms of policing "unreasonable" within the meaning of the Fourth Amendment, but recognizes that that result is unlikely to obtain under current case law. Consequently, the Article counsels relying on a freestanding Fourteenth Amendment claim for invasion of the fundamental right to parent, discussing Jackson v. Griffin, in which African-American parents have made just such a claim in a Section 1983 civil rights suit against the police, in which the parents there were "made powerless to protect their son from wrongful, discriminatory conduct" inflicted by the police. Although the suit does not thoroughly develop the history and theory underlying the claim in the way that the Article does, the suit demonstrates the practical application of the Article’s novel approach.
Number of Pages in PDF File: 39Accepted Paper Series
Date posted: August 11, 2011
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