 Thank you for joining us. Think Tech Hawaii, time for responsible change. And we have the good fortune of having with us today, Professor Vernier de Randall, Professor Emerita of Dayton University School of Law, and one of the leading experts on race, racism, and the law. Ben Davis, currently professor, probably just finished grading exams for Washington and Lee School of Law. And Professor Emeritus from University of Toledo, School of Law and David Louis, former Attorney General for the state of Hawaii and leading civil litigator, mediator and arbitrator here in Honolulu. Welcome all of you. And as we're getting ready to get started, there are a number of topics out there that we're bouncing around and all of them seem to have connections, abortion, gun violence, and other topics to a discriminatory impact, both race and class discriminatory impacts. Professor Randall, what were your thoughts that you were sharing with us as we were getting started? Okay, I think that getting rid of racism as a matter of law shouldn't be the goal. We should be getting rid of racial discrimination. And that I think the law is very capable of dealing with racial discrimination. The problem we have is we limit racial discrimination to intentional. And no other area of kind of injury law is that so. So like court law and criminal law, you can be responsible if you do something negligently. You can be responsible if you do something recklessly and you can even have some strict liability where they say, hey, you can do this act. We don't care what your state of mind is. You're responsible just for doing the act. I believe we need to bring discrimination law into the 21st century by making all levels states of mind actionable both criminally and civilly. And if there are civil liabilities and consequences for negligent discrimination that the employers and institutions might be held responsible for. And David, what do you think about whether that might motivate and generate some behavioral and attitudinal change in those sectors? Well, certainly I would agree that putting monetary penalties on behavior will generate change. The tort system in America has generated a lot of safety improvements because people, corporations, insurance companies can get held liable for not being safe. And so that would certainly make a change, I think, and it could certainly affect behavior. Yeah, I second that and I just wanna make sure everyone also understands that what Professor Randall is suggesting is completely consistent with the international standard. But under the Convention on the Elimination of Racial Discrimination, the definition of racial discrimination is both purpose and effect. And so it's a broader vision than what's inside the United States. And one of the problems with the way it is in the United States is that people will say, well, I didn't intend to do it. So I have some kind of innocence, so to speak. And it's not true. I mean, if the effect of what you're doing, whatever or what is happening is racial discrimination, then it doesn't matter whether you feel you're innocent or not, it's that there's a racial discrimination, discriminatory problem. So I think it's bringing the United States into the 21st century and also bringing it consistent with international standards on treaties that we have signed, that we are bound by as a state, I think would be wonderful. But one of the problems with the treaties, I actually did a lot of work on the international Convention on the Elimination of All Forms of Racial Discrimination. And the United States has a terrible habit. The habit is whenever it signs a human rights treaty like the elimination of all forms, it puts a, I want to say flyer, but that's not the right word, it puts a limitation saying that no matter what is in this treaty, you Americans have no more rights than what our Constitution gives you. So it basically makes the treaty, if constitutionally, and this is what's happened, we have constitutionally said that discrimination is only intentional. The treaty defines it broader, but the United States says, no, not for American citizens. And that's one reason we need an anti-discrimination law for the 21st century, because we can't rely on the human rights treaty as a source of rights. Yeah, it should be. I would just add on that the reason why the United States does that on human rights treaties goes back to basically 1948 in the Genocide Convention and essentially the hesitation of Southerners to have us ratify that, because they were worried that it would affect segregation. And there was a whole battle where Eisenhower basically cut a deal, which was like, pass the Genocide Convention, don't pass the Bricker Amendment that would reduce significantly federal government powers. And I promise not to bring any human rights treaties forward. That was the cut, that was the deal, all right? And so even with that, you go back to the same old stuff of discrimination, you see? It's really deep. And I really think that you're onto something, Professor Randall, and also General Louis, because what you're really doing is making a distinction. And I think it's probably the most important distinction I've seen made in this time that we live between living what is truth and living what is law, OK? And that in the sense, what we have right now is so many different aspects of our society where we're being encouraged to live a lie. You can look at all these, you know, the three Republican candidates for the, I guess for the governorship in Pennsylvania were asked, who won the election in 2020? And none of them could say they go by one. And so the Philadelphia Inquirer was unable to make a recommendation as to who to vote for, simply because they weren't in touch with reality, right? You see? And it's that kind of lie going so many different ways. There were the Stop Woke Act stuff, all the LGBTQ hassling stuff, all that stuff, all based on a series of very rich and sophisticated lying, quite sales talk, as opposed to the truth, the truth of how LGBTQ kids are. The truth about what is our American history and all its glory. And even I would go so far that the lie is also in the Alito draft that came out. His draft is a complete lie in terms of the amount. And I know it's hard to say this, but I have to because it is such a distorted view of American tradition and history. Like, it's this truth versus lie battle that I think that is kind of the existential battle in this trying to have a democracy now and try to maintain this democracy. Just on the Alito draft, if I could speak to this, one of the things that struck me is that everything that happened before the 19th Amendment in 1920 is irrelevant because women did not have meaningful participation in the democracy, whether you go back through Anglo-American history or US history. And I'd even go farther, which is to say that black women didn't have that possibility until the 65 Voting Rights Act, let alone other minorities too. So it's really only anything before 1965 is nonsense in there because whoever you wrote, whatever was that distinguished old guy or founder or something like that, they were operating in an environment when women were not having meaningful possibilities to participate. The other thing I'd say is that it mentions nothing about the whole history of forced pregnancies during slavery, where it was basically using black women to breed so that they could then sell the babies to go down south where it was more profitable in the internal market. There's nothing about forced pregnancy in that history. It's just appalling. So I've been really... But I was mentioning that it's a lie in another way. The fact in many places in the United States of abortion in the late 1800s was not illegal. Thank you. Thank you. The especially pre-viability. It wasn't even called abortion. There was another name and I don't remember what it was. And the big problem was that not, was that there was all of these people doing abortions who were unskilled and I think doctors wanted to take it over. So I think the push sort of was like, let's move this into a medical arena, which wasn't unrealistic, but what was unrealistic was the idea that Alito's draft makes it seem like that the value of American society has always been anti-abortion until 50 years ago. And in fact, in the late 1800s, in many places, it was legal, especially in pre-viability. In a slightly larger context to this, Professor Randall, the thing that I disagree with in Justice Alito's draft opinion is the idea of the textualists of Justice Thomas, of Justice Scalia, that we have to go to the text of the Constitution. We're not gonna consider it as a living document. We're not gonna consider it in the context of modern society and modern culture and modern sensibilities and modern, you know, the way people think, we are gonna go back to define it as it was defined in 1896 or 1796 along with some amendments. And the idea that you can rule a country, run a country, have a society based upon documents from 200 years ago, unchangeable, okay? Unchangeable, that's ridiculous to me. Yeah. Yeah. The idea- Oh, I agree 100% with you. Yeah, the core goal of modern society is I think one of the fallacies that unfortunately has received a lot of attention from the Republican side and the conservative justices. And the reason they do this to me is because what they're trying to say is, you know what? We don't like modern society. We don't like the rise of black people. We don't like the rise of people of color. We don't like the rise of LGBTQ people or women. We wanna go back to the good old days. That's what Megan was all about. The good old days when whites were supreme and nobody else had anything. And so it's all part of this looking backwards to some idealized society that never existed but it's out of step in my view with how you run a society, how you have people live together in harmony, taking into account all of their feelings, their concerns and how society acts. And so I think it's indicative of a larger problem that we have at the Supreme Court. Yeah. I think that's the, go ahead, Ben. I was just gonna say the whole notion of agency, if I hear autonomy of people today to be able to decide how they're gonna live their life and trying to put us back into an 18th century frame. It reminds me of this, actually this was Alito commenting to Scalia in one of the oral arguments in one case along the way where Alito said, well, Justice Scalia is trying to figure out what the founders thought about the internet. You know what I mean? I mean, it's like, you know what I mean? I mean, it's like, come on. You know the game that worked. You know what I mean? You know the game doesn't work. And the other thing is that I have noticed that when people speak of agency of people, for example, in Michigan, there was a referendum to get rid of affirmative action and that was fought in the Supreme Court. And in the oral argument there, the comment was made by one of the advocates to overturn the referendum that, you know, like 90% of the Michiganders who were black voted against the referendum. I mean, to me, that's a sense of agency of you can understand what's going on and you don't buy it, okay? You don't buy it. And so you go against it. But, you know, I think it was Alito, it was kind of a cavalier or it was Chief Justice Roberts is kind of saying something like, well, maybe they don't know what's good for them. I mean, there's this mismatch theory, right? You know, which is I dealt with the guy who wrote the mismatch theory stuff, you know? And basically said to him, has anybody who's ever gotten one of those nice degrees from one of those nice schools said, oh, heck, I'm so sorry I got that degree and I'm gonna go back. I wish I had gone to a school that's lower in the hierarchy. You know, I mean, I think that that 18 year old who can look at the options and their family and decide this is what I wanna do, that's agency, you know? I mean, I went to Harvard in my freshman class was Yo-Yo Ma, okay? I mean, me to Yo-Yo Ma is like miles, right? In terms of any confidence at anything, right? But does that mean that I didn't enjoy the time I was at Yo-Yo, I was at Harvard? No, it's absurd. And I just, I find it unfortunate that they don't get the agency of people who are other than basically white male. That they will listen to. But the agency- Well, only a certain class of white males and what's the problem is, and this is the class problem is being fooled that, you know, it's kind of like all of these things, how, I mean, there's so many things that's going on that is not in the interest of the majority of Americans. And yet our leadership keeps doing things that, you know, are counter to their interests. And they get voted back in by a large percentage of them. I wanna talk about Buffalo. Okay. And another mass murder, another racial mass murder, I mean, with guns, but we've had racial mass murders before both with guns and with, bombs. I don't want a minute, we, it's a lot to take in, but I want to make sure that we don't lose sight of the singular violence. That they're black and brown and native and Asian people are being killed singularly and the cumulative numbers are significant and it's racial violence. And we seem to only pay attention, good attention for whatever it's worth is when they're killed in groups, but not when, you know, they're being stalked and assaulted and harassed and killed singularly by all kinds of people. Yeah. And people aren't even wearing hoods. You know what I mean? I mean, you know, they're putting it up on Twitter or Twitter or whatever, they're live streaming. 30, he posted his manifesto 30 minutes before he was gonna do it with a chip, grab a chip and no one as far as I understand to contact the police, but. And I think he'd, he'd case the place before and the guard who shot him had been watching him, you know, when he'd case the place before. So he was, you know, he was known as a potential person to do that. But again, he's living a lot. Okay, I'm gonna say it like that. He had a whole lie in his head about, you know, this replacement theory stuff and all that. And it's like, you got truth and you got a lie, you know? Until, you know, we're basically gonna fight for the truth. If I could say it like that. And to, I mean, this guy's 18. I mean, you could say, well, you know, maybe back in the old days, he was one of those old racist guys from back then. This guy has been regenerating this kind of stuff in the particular space. The thing is, I sort of think, cause I look, I'm the age of his grandparents. I will be his grandparent, maybe even his great-grandparent. And I think, you know what? This is, I think, this is surprising because all the people my age were pissed off back then. Yeah. The Civil Rights Act. Yup. And they've been pissed off for the last 50, 60 years. And they've been raising their children with that hate. And their children have been raising their children with that hate. And so it's not surprising at all, you know, that he would have that level of hate. And then the internet, you know, my older son says, the thing about the internet is that it used to be every community had five crazy people. And everybody would say, those are the five crazy people. But everybody recognized them as that. But now those five crazy people get online and now there's 1,000 of them believing the same thing. And one more thing I want to say, the replacement theory is so old in the United States. It is, they may not have called it the replacement theory, but this is what drove the 1790 law saying only white people could immigrate. This is what drove the 1880 Chinese exclusion law. This is what drove the 1920 country allocations that didn't allocate the Asian and African country. This is what drove Anglo-Saxons being mad about Germans. And they actually used the term replacement back in the 1800. These Germans are coming here and they're disrupting our culture and they're gonna make, they're replacing us. It's been, we don't talk about that when we talk about we're a nation of immigrants. Some immigrants, some slaves. But the replacement theory is really just a discredited, crazy reason that is used to justify violence and used to justify hate. It doesn't make any sense. It's the same theory about how the Jews were gonna take over the world, how the Chinese were gonna come in and take over the world and kill everybody, rape the women and do all kinds of bad things. And there's just these crazy theories out there that people buy into and they believe because they're in their little bubble and their friends believe this and they talk about it, but it's unfortunate. I don't know how to stop that kind of craziness, okay? People are dumb sometimes. I mean, I think by and large people are smart and get it, but if you're in your little bubble and you're listening to Tucker Carlson, boy, you can get misled pretty darn easily, okay? You can ignore facts and reality. Yeah, they are. No, I think that's right. I think that- And I think to go ahead. Go ahead. I just wanna add one thing that I think is really interesting right now. So I just wanna throw this out is that there's a North Carolina Women's Health Organization filed a amicus request to leave to do an amicus in the DOBS case on Monday because part of the argument is that they said that the Equal Rights Amendment came into effect on January 27th, 2022. And they, and yes, that's right. Cause it was two years after 38 states had signed it and there's a whole issue about state rescinding and all that, I understand all that stuff. Okay. But that was filed with a request for a leave to make a brief on Monday of this week. And I think that that is a really interesting thing because of two things. One is apparently the issue on the ERA is sub-discerned somewhere in like the DC circuit or something. So it's not, you know, there's like a mess. Sort of if the Supreme Court does something while that's coming up. The other thing is that the old case where Scalia talked about, well, they're pregnant men, sorry, the women and un-pregnant men, sorry, un-pregnant women and men as one group and then pregnant women, so it wasn't a sex-based equal protection argument that could be made. But now the thing is, is that if this ERA isn't, it's a substantive standard for women. And the language speaks to women and that I think is a big interesting development for anything they're gonna do with regard to abortion or anything else if that ERA argument succeed on the idea that as of the 27th of January. So, you know, I see people who are like skeptical about it, I understand that what I love is that the lawyer who wrote this put it in on Monday out there and saying that, you know, they had consent because the consent from both sides said at any stage of the proceeding and what prompted them was the illegal draft leak too, you know? So it's just that, that just watch that space to see what the Supreme Court's doing with that. As far as I see, they haven't gotten rid of it yet. Yeah. Okay. In our last minute, last thoughts, Professor Randall? I want to go back to people really thinking about making racial discrimination, getting a 21st century racial discrimination law that is really good. And because what we have now is inadequate for 21st century discrimination. David, your thoughts? You know, I just think we have so much division, so much polarity, so much non-listening to people. We do need to foster and come together as a civil society to address these things. And I have a little more tolerance for people, except for the crazies, I think. I don't want to tolerate them, but we really need to address these problems women's rights, abortion, racial discrimination, all of those things, they're gonna make it tough for us. But I have hope, I certainly have hope and I think we can do it. Okay, and some of those crazies that we might not be looking to tolerate might include elected officials in some cases. Yeah. Thank you all. Great thoughts, great insights. Another lively candidate session. Covered a lot of ground. Thanks all of you for viewing and joining us and those who view it later. Come back and see us. We'll be back in a couple of weeks with more Think Tech Hawaii. Thank you so much for watching Think Tech Hawaii. If you like what we do, please like us and click the subscribe button on YouTube and the follow button on Vimeo. You can also follow us on Facebook, Instagram, Twitter and LinkedIn and donate to us at thinktechhawaii.com. Mahalo.