 Thank you all for joining us. We have the true honor today of having with us, not only professor of Romania Randall, one of the leading experts many years teaching at the University of Dayton School of Law in race and race relations and law. Anywhere, not only in the US. We have Professor Jelani Jefferson-Exham from U Detroit Mercy School of Law, if I understand correctly. Also very, very highly respected and regarded expert in this area of critical, critical importance in these times. We have back with us Jeff Fortnoy, our leading First Amendment lawyer and friend for many years. And the inimitable Ben Davis, a recently retired professor from the University of Toledo School of Law and an expert in more areas of dispute resolution than most people have even conducted in their lives. So ladies, gentlemen. Thank you. Glad to be here. Let's throw out a softball question. We don't have those, but where is real change? Most needed. And what needs to happen for that take to take place? What are you seeing right now that Signal View are we moving in that direction? Or does it need a lot of help and a lot more work? Professor Randall? Oh, I have to say what I said last week. The fundamental law needs to change in terms of anti-discrimination. We don't have a discrimination law for the 21st century. And a lot of discrimination that occurs in our society is permitted by the law because negligent discrimination is permitted, strict liabilities, discrimination is permitted, and reckless discrimination is permitted. And by limiting our illegality to intentional discrimination, it means that in every area of American life, we are overrun by racial discrimination with no legal way to address it. So that to me is the area that I have to keep coming back to. OK. Professor Axum, your thoughts? My answer is similar. It really is similar. And I'll just state it a slightly different way, which is that if we don't approach our law and what our laws do by actually looking at outcomes, if we don't address inequitable outcomes, and we just look too well with somebody purposeful in causing these outcomes and that's where the law stops, it doesn't go far enough. We like to use the term anti-racism now where everybody grabbed onto that after the events of the summer with the killing of George Floyd and Breonna Taylor. And so we have this new discourse about anti-racism, but that really means addressing racist outcomes. And you can't be anti-racist if you let racist outcomes stand. So the law has to open itself up to be responsive to that, to actual real life consequences, and then to recognize the changes that need to come from that standpoint. But you can't just stop at people's intentions. It has to go to the reality, the consequences of our actual laws and practices. This makes me think of something that just happened to me, which is I was exposed to COVID. And so as a consequence, I am now self-quarantining in a beautiful Hampton Inn for, you know, chilling at the holiday in another Hampton Inn for 12, well, yeah, about 14 days. And so I was looking into the various times when I can get the vaccine. And this next week is 65-plus, which would count me in. So one of the things I found fascinating is I went to try to find the sign up for that. And they said, have you been exposed to COVID? I said, well, yeah. And then they said, well, you can't get it. Wait a minute. And then I said, you know, this is like a catch-22 here. I got a negative result. And then I saw these things today, where you're talking about the plan, so to speak, was to deal with, obviously, health workers first. Then I talked about dealing with essential workers. But then what happened is that there's a lot of public pressure put on states and all that to skip that and just go straight to by age. And you say, well, age is neutral. But no, the effect of that is that those essential workers who are those folks that you see at your Dunkin' Donuts, I'm sorry to talk about that. But I mean, all those places, the front line, those people with the Kroger who are the people you're running into every day, well, if you go in, they're basically put to the back of the bus because they're all like maybe 30, 40, when they maybe should be really the first ones because they have jobs that require them to be with people. They can't work remotely or anything like that. And I just thought that was one of those fascinating things where you get this sort of, it's a neutral rule, 65 or over, over and over that, but it's a switch away from really looking at the at risk issue in terms of which communities are at risk and all that stuff. And it's done basically based on a public pressure, sort of political solution as opposed to a medical solution. And that's the kind of space, I think, that you start to rethink in terms of these concepts. Why did the game get changed, so to speak, or why did the rules get changed? A second one that came to mind was what I just saw on the news today was in Georgia, guess what? The Georgia State is in the process of trying to review its, guess what, voting laws, I mean, and that voter fraud thing is being put up because well, the result was not what was wanted, so that's outcome determinants or outcome focus. So let's change the rules so they get harder for different groups that were able to mobilize under the past set of rules. That's good, my experience in employment has been and not just in the law school, but when I was practicing as a nurse and then every in place that I work is that people are willing to be outcome driven when it's in their interest. Yeah, yeah. You know, and the whole purpose kind of approach to thing is when that's an approach that has taken some time to protect people from the outcomes that their behavior generates and the willingness to change rules. I was in line with what you were just saying there was, we know that people of African descent, Hispanics, Native Hawaiian, specific Islanders, Native Americans, all these groups are much higher risk than people of European and white descent. And yet, if you're gonna be outcome driven then those people, along with the essential, they're also essential workers more and everything, those people should be kind of at the front of the line. So I understand what you're saying. You know, what's interesting though, what's interesting is what I heard last night, 50% of African Americans are refusing to take the vaccine because of distrust of the government, Tuskegee, et cetera. So there's all this publicity about getting the vaccine out to communities that need it because of precondition health issues which are predominant and low income and minority communities, diabetes, obesity, heart disease, yet according to the recent poll which was released yesterday, 50%. Now, you know, I didn't look at the methodology but that is an extraordinary number and it's understandable because of the way history has treated minorities as subjects in medical experiments but there's a huge educational effort that's gonna be necessary along with getting the vaccine into those communities. Well, I'm one of those 50%. Yeah, well, there you go. But it's not because entirely because I health disparities researchers my area and one of the things that it's not just because of Tuskegee and all of that stuff, it's also because of current medical racial discrimination. And so when you experience and see active racial discrimination going on, it's hard to build or have trust. I don't think an education methodology is needed. I think a trust building methodology, put hospitals back in the Black neighborhood, put doctors back in the Black neighborhood, put health clinics back in the Black neighborhood and not just for COVID. People want people to come for the shot but those same people can't get basic healthcare. And they're saying like, why should I do that? You can't possibly be acting in my interest because if you were acting in my interest, you would have clinics already in my community. I think that's exactly right. I feel like there has to be an intentionality that's built into for talking about making change. It doesn't just happen and you have to look at the sources of the disparities, the sources of distrust and then you have to be intentional about making choices that address that. And so going back to what Ben said about the COVID vaccine and saying like age is neutral. I think we have to understand in this country that there's actually nothing that's neutral. So even if it were just age, even within that you're gonna see racial disparities because who's getting access? I went through, I have four sisters and we were on the phones the morning that the vaccine was available for my parents age groups. We're all over the country, they're in Louisiana. We were on the phones calling pharmacies trying to figure out how to get them connected but not everybody is gonna have that sort of that network to get them to where they need to be and that's gonna be disproportionately to the detriment of black and brown people because everything in this country is to the detriment of black and brown people. So without being intentional about that and saying, okay, we already know, we can have something like age that seems neutral but we already know that our system across the country due to our history and sort of the legacy of that we're going to have racially disparate outcomes. So how can we be intentional about reaching those groups? And we even saw, I think it's in, I think it was in LA, I could have the wrong city where there was a site set up specifically to get the vaccines in the Hispanic community, Latino community and it mostly, the vaccine still mostly went to whites because again, it's just sort of like, oh, we just set something up in this community. Folks will come and get the vaccine. That's not being intentional. That's taking the easy way. That's not actually paying attention to why folks aren't coming in to their, structural barriers, everyday barriers. They're going to work. They might need more information. You know, it's just like, you have to do more and we have to recognize what our country and systems really are. They're not neutral. And then we have to counter that intentionally. Yeah, it's, what's it like out in Hawaii? You are folks out there. Isn't that the beautiful, I don't know, beachcomber shots, vaccines on the beach, Waikiki vaccine and all that? No, I mean, we're still at 75 and over and there are locations expanding throughout the islands. I have not heard any media accounts of the inability of Pacific Islanders or Hawaiians to get the vaccine. In fact, it may even be the opposite because the word Kapuna means so much out here. And, you know, it's the older people and it's usually the older Hawaiians, you know, the aunties and the uncles. And so I don't think that that's been an issue here. Of course, you know, we have a very small African American community, almost no Spanish community of any kind, mostly military. And I'm sure they're getting their shots on the basis. So we don't have the issues that the big cities are facing of getting the vaccine out to the communities that are struggling to get access. Yeah, well, here's one that I just saw that I thought was fun. Let me real quickly just add a little different perspective. The issue that Professor Exum raised, we're not seeing Hawaii intentionally targeting the disproportionately high incidence of COVID communities, the Pacific Islanders, Hawaiians, Filipinos, those are the top three incidents of positive diagnosis. We're also seeing situations where the phenomenon of people who aren't meant to be included are getting included because they're aggressive, competitive people and they find ways to get it. So for example, which is the 75 and over, right? The 18 year old, the 25 year old, the 35 year old takes them and gets the vaccine. Oh, I'm the caregiver. So give me the vaccine too, because you give it to them and it's no good if I'm still caring, right? So they've stopped that now because they finally caught it, but abuses will continue and lack of intentional targeting of the communities where the incidence is the greatest because of transportation reasons, social economic reasons, educational reasons, and many that all of you have brought up. We're not addressing the underlying conditions that produce the racially disproportionate discriminatory outcome. To speak, if I could, to the intentionality thing, because here's one example that I found really amazing is that there was a decision made not to give the vaccine to people being held at Guantanamo. In prisons? In prisons. General prisons. And the reason for, given for Guantanamo was that there was some pushback, sort of why are these people getting it as opposed to vulnerable Americans or sort of that was the argument being made. And when you think about that, you say people who are sitting there who are completely dependent in spaces that are, you can't socially distance. I mean, you can't say to the guard, excuse me, could you move the gentleman down? I can have my six feet please. And I say, my good man, could you, I mean, completely under the control of the entity where you're at, right? And there's literally intentionally, we're going to not give this, some people say, I hate these people. Fine, that's fine. Do you hate it? All right, everybody hates it. But the bottom line is, they are completely under the control of the United States. And it starts to look like inhumane treatment to me where you hold back something in a setting where you're under complete control of them for reasons that are purely political. They're not any reasons related to medical needs. Some of these folks I assume are even 70, 75 years old or older, and they would fit under the neutral rule. But that's the kind of intentionality that I found it really disturbing. Well, you guys will enjoy this little anecdote about Hawaii. We have benchmarks that the government has put in place that determine what restrictions we have. And everyone obviously hopes that we get to the lower benchmarks so that the restrictions are lifted. Well, about eight weeks ago, our numbers started to go up. They were going the wrong way. And there was this enormous pressure as to when are we gonna get to the next level that will allow the restrictions to be diminished? And we had a couple of outbreaks at the prison, 50, 60, 70 prisoners, and they were being included in the numbers. That stopped. Yeah. The mayor decided that prison COVID cases would no longer be counted in reaching the benchmarks because they were affecting the ability to loosen up our restrictions. They're not included in our numbers so that we can hopefully get the numbers down so that we can open up the economy. They're not included because there's no effort at all to stop the spread in prisons. So they're just taking off the table. It's like, let's just not count them because we're obviously not trying in that area. They're not in our data, but just what Ben was saying, it's really just thinking about, you take agency away from people, but we've put a value on that. We said, well, they're criminals. So just kind of too bad for them. But bottom line is that they have no choice in that. So my area of expertise is sentencing. So we're thinking about punishment and proportionality. Yeah, they've been convicted of a crime and they're serving time that our justice system said is appropriate. We can take lots of issue with that determination. But on top of that, we're supposed to maintain their health and safety. And so to say that because they've been convicted of a crime, they're somehow outside of having us be concerned about their health and wellness is completely contrary, completely undercuts the justification that we, for imposing punishment on them in the first place and it was for this proportionate amount, that is it. And we take care of you while you're in there and then you reintegrate into society. And what we've said is you're in prison for the certain amount of time. That's your just punishment. Sorry about this pandemic. We can't really quite take care of you right now. We have some other folks. So we'll just take you out of the numbers. We're not gonna pay attention at all. Do you think that's a consequence or a side effect of the many, many years of, well, I'm having a senior moment right now. Putting people, having all these post-prison consequences that we put on people, what is it's kind of name? Collateral consequences. Collateral consequences. Yeah, so I've been really interested in how we have been training the brain that the brain is but not a really neat little thing where you can put stuff in boxes and only that box is affected. And so when you start having things, doing things that go against one value system or is impacted by a value system, you change your whole value system and later on you don't even know that your value system is changed. And so we have deeming people who by saying they're prisoners so we can do all of this collateral stuff. We can do all of this in prison stuff to them. And now it seems a part of the natural line to say, well, they're in prison. They shouldn't get, for many people, they shouldn't get vaccines before the rest of us who haven't committed a crime. Maybe that's a critically important insight, both professors, because we all grew up in times in which one of the most pejorative terms of characterizing another human being was ex-con. By ex, that means they've served their time. They've paid their debts to society. They have done everything possible and required by law to entitle themself to be treated as a human being in society without discriminatory punitive characterizations. But that was a classic term. I mean, it almost was not noticed because it was so common and cliche. And so I was listening to a Zoom this morning in which Al Sharpton, and he's gone a lot of different places a lot of different times, but he was asked, what two areas of law most need to change? And he identified exactly what you have, which is discrimination law. But he said, and it will mean nothing without substantial reform of the entire criminal justice system, not just police reform. The attitudes, the behaviors, the racially discriminatory conduct and outcomes, but the entire system. There is no rehabilitation in it. There's no restorative justice is still an outlier. If it exists at all. It makes no sense. You make me think of the person who was on the Capitol who got arrested and was asking to be released to the magistrate to go to Mexico for three days for some... And the magistrate allowed it. And the magistrate allowed it. You know, I mean, I was like, really? I mean, really? You know, I mean... And worse yet then, when she comes back, I guarantee you she will not be separated from her children when she crosses the border. Yeah, yeah, yeah. And that's not humorous because that if there is a stain on our national honor, what we have done to families and children over that four-year period, continuing to far greater extent than it should. You combine that with the racially discriminatory attitudes, behaviors and outcomes in our entire criminal justice system, which integrally part of our legal system reflects those of our legal system. And we come back to what both professors have identified here, those who are able to get what they want, get it at the expense of those who are not. And those are in categories. Yeah, but I wonder, I wonder, and I know this is a little bit controversial. I don't mean it this way. Race is certainly a huge part of it. But in my view, income disparity is really the factor in many, many, many cases. There are lots of poor white rural families that are suffering the same indignities that we're talking about, which is a lot of income disparity. Sure, race is a huge component and I appreciate that tremendously. I think part of the problem with the Democratic Party, and we're not gonna have time to get into this, is its failure to recognize the other portion of the population that is discriminated against, not because of the color of their skin, but because of their inability to earn enough money to move themselves up in society. And I think it's an interesting factor because I just don't think, I think there are multiple segments of society that are getting the short end of the stick. I certainly understand the racial part of it. It's huge, huge, huge. But anyway, income disparity may be, even in Hawaii, a big issue, the biggest issue. Income disparity, I mean, class is no doubt. People with middle-class blacks have better access to a lot of things than poor blacks. That's the class issue you're talking about, okay? Same thing with whites. Race comes up because middle-class whites have a better outcome than middle-class blacks. No, I agree with that. I think that's a true statement. And so I think you can't race, you can't compare class, you're right. Class is a huge problem and this society built on capitalism isn't ready to really do anything about class. But race impedes upper-class blacks. Upper-class blacks are treated worse than upper-class whites. So that made me think of Robin Hood and what's going on with the game stop and the changing of the rules. All of a sudden after some people started to play the game a different way, which was making short sellers lose a lot of money. I mean, that to me was like the classic heads I win tails you lose kind of situation for the little small investor, which are being characterized as people who've got their stimulus money and went into the market. But it turns out, you know, there were people who were kind of like single mothers and all that who were open to kind of help to pay for college. I mean, maybe it's ridiculous. Maybe you think it's absurd that you think you can play in the market. But the point is that these people weren't protected by the way the system worked and the rules were changed on them at the last minute. Okay, we're out of time for today, but I hope all of you, Professor Randall, Professor Exxon, Jeff, Ben, we'll all be back in two weeks. Like we're just getting warmed up folks. So yeah. Love to come back. Thank you. And you rejoin. Thank you so much. I will let you, I'll check things and I'll see if I can. Can I put in a plug for my sister, Dr. Akilah Jefferson Shaw. She works on racial disparities. She does, she has Instagram and Facebook and Twitter. And so you can follow her and learn more about COVID vaccines and trials and with an eye toward racial disparity. Akilah Jefferson Shaw. Fantastic. Thank you all. See you all in two weeks. All right. Wonderful. Nothing happening this week. See you later.