Episode 08: Deborah Archer
Deborah N. Archer is the Jacob K. Javits Professor at NYU and Professor of Clinical Law at the NYU School of Law. She also directs the Center on Race, Inequality, and the Law, and the Civil Rights Clinic at the NYU School of Law. Archer is a nationally recognized expert in civil rights, civil liberties, and racial justice.
In January 2021, she was elected national board president of the American Civil Liberties Union (ACLU), the first Black person to hold the position in the ACLU’s 101-year history.
Before the board presidency of the ACLU, Archer was a member of the ACLU’s executive committee and served as general counsel to the board. She is a former chair of the American Association of Law Schools’ Section on Civil Rights and Section on Minority Groups. For many years, she served on the New York City Civilian Complaint Review Board, the body that investigates police misconduct. She was also a member of the board of the New York Civil Liberties Union, where she litigated in the areas of voting rights, employment discrimination, and school desegregation.
President Hamilton speaks with Professor Archer about her career as a civil rights attorney and scholar, her projects at NYU , her new role at the ACLU, and her view of the next steps—legal and cultural—toward the dismantling of racism within American institutions and society.
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Announcer [00:00:14] From New York University, you're listening to conversations hosted by President Andy Hamilton. In each episode, Andy talks insight, inquiry and imagination with a leading mind from the NYU community.
President Hamilton [00:00:33] Hello, everyone, and welcome to today's podcast. We welcome Professor Deborah Archer. Deborah is the Jacob K. Javits professor at NYU and professor of Clinical Law of the NYU School of Law. Deborah also directs the school's Center on Race, Inequality and the Law and also the Civil Rights Clinic. Professor Archer is a nationally recognized expert in civil rights, civil liberties and racial justice. And just recently in January, 2021, Professor Archer was elected national board president of the American Civil Liberties Union, and she's the first Black person in the ACLU's one hundred year history to hold that position. So, Deborah, thank you so much for doing this and welcome.
Professor Archer [00:01:27] Thank you so much for having me. President Hamilton, I'm happy to join you.
President Hamilton [00:01:31] It's great to see you again. Now, Deborah, you've spent your legal career trying to bring American law closer to the embodiment of justice. And on the one hand, there's no instrument as powerful as the law to and I will quote you now, in your words, "close the gap between the America that was promised and the America that is." On the other hand, we have, of course, seen in the last year, and know from American history how the law has often been subverted towards injustice many times at the hands of those whose role and responsibility it is to enforce the law. So my first question is to talk to us a little bit about racial justice in relation to the legal system. What are the critical areas to address that could help close that gap that you talk to about in that quote I gave a moment to go.
Professor Archer [00:02:33] Yeah, it's a challenging question. And I want to start by... I knew that not only was a law sometimes subverted towards injustice, but sometimes the law was designed and intended to do that, to inflict injustice. And so part of the challenge is that racial inequality is built into our systems and for so long really was a foundational principle of our legal system. Following emancipation and Dred Scott versus Sandford, the Supreme Court proclaimed that black people possess no rights or privileges beyond what white men chose to grant them. And we see this sentiment alive in our legal system, in our policing system in our education system, in our segregated residential communities and in our economic system. Or if we look at the legacy of slavery, slavery was a system of theft. It was theft of life, of property, of identity and home and culture, happiness and potential. Yet the law helped protect that theft, helped perpetuate that theft. And now slavery is imprinted onto the DNA of the nation. And following the abolition of slavery, new systems of white supremacy evolve to continue that theft, exploitation and racial terror. We're living with those systems today. So when the law was affirmatively used as a tool of racial subjugation, race neutral laws are going to be neffective at transforming that system, and I think our modern civil rights laws, at least how they're currently interpreted, are really ineffective in addressing this foundational racism that remains woven into virtually every system, including our legal system. And they're not interpreted in a way that enables them to unwind the decades and centuries of accumulated and compounded harm. Our current judicial system is really highly deferential to the social, economic and political causes of racial inequality and increasingly unwilling to confront the deep structural issues.
President Hamilton [00:04:47] There's a lot of work to do, but within your own scholarship and clinical work at NYU, how are you currently using the law to advance equality, to advance justice, and help bridge that gap in the way you describe it?
Professor Archer [00:05:05] Yeah, you mentioned that one of the things that I do at NYU Law School is teach the Civil Rights Clinic. And through the clinic, my students and I represent victims of injustice in a variety of civil rights matters. In the clinic, we believe in the critical importance of representing individual victims of discrimination to help them find justice and dignity, but also believe in working in coalition with marginalized communities to advocate for deeper, systemic change. Because ultimately, the fight for equality is both about attacking the unjust systems and about influencing the myriad everyday interactions which determine whether subordinated people have real power to affect their futures and to lead choiceful lives. A big part of my work with the clinic in my own research is, of course, racial justice work, and they also do that through the Center on Race and Equality and the Law. And I often think of it through the framing of historian Manning Marable, who argue that our systems exist not to develop but to underdevelop Black people and to affect this underdevelopment, racism is embedded into the core of power, our economy, culture and society. And the result, he argues, is that Black people have been intentionally sacrificed to feed America's success. And our challenge then is to continue to identify those systems that feed underdevelopment of not only Black people, but of Black communities. And that's a thread that you can see through my research and through my own advocacy and also through the work in the clinic. An example is the work that I have done around racial inequality that is built into our transportation system and our infrastructure. Really, our transportation systems have led to racial disparities and discrimination, which are reinforced daily. Our transportation policy and infrastructure from highways, roads, bridges, sidewalks and public transportation all make it harder for people of color to access and take advantage of opportunity. And I have written about the specific role of highways in this, and my clinic is also doing work on this. So for three years, my clinic has worked with residents of Syracuse, New York and local advocates to elevate community voices and ensure that racial and economic equity and civil rights and civil liberties are elevated in connection with the anticipated destruction of the elevated portion of Interstate 81, which runs through downtown Syracuse. And as with many other highways around the country, construction of one in the 1950s decimated the 15th Ward, which was a primarily Black and Jewish community, while also prompting and encouraging white flight to the suburbs. And in the decades that have followed I-81, has continued to serve as a physical and psychological barrier that divides the Black community from the rest of Syracuse and contributes to pockets of intense racial segregation and concentrated poverty. So my students and I are doing some of the work to understand how racism has been built into that community through the highway and then to to unearth that and to challenge that.
President Hamilton [00:08:36] You describe that the work that you do and the direct representation and advocacy for individuals and communities oppressed by the system. But of course, another fundamental role that you have at NYU and indeed the role that our school of law has, is legal education. And if I could just move to that topic and ask how can legal education, the training of the next generation of lawyers that takes place at NYU, how can that better reflect and address the history of racism in America in all of its many manifestations. And how do you but also colleagues at the law school go about that?
Professor Archer [00:09:21] It's a question that I struggle with every day because it's something that I think we all have to think about every day and constantly be vigilant to whether or not we're addressing it and to be aware that racism impacts different communities in different ways, as you said, in being able to address it in all of its manifestations. And so the historical, in current context of discrimination and inequality we see today is critically important to understand as we move forward. We have to help our law students in particular understand that before we can fight to move forward, we have to understand how we got here or we're really not going to be as equipped to address the problem. So I want my students to see and respect the specific legal issues that are presented by their clients by the question that they address in law school, but also be aware of the larger historical and social context in which the issue is situated and then figure out how to position their work. Lawsuits have to understand how to explore the intertwined racial and social issues that are connected and woven into and through the legal questions that clients bring to them to be creative problem solvers who are armed with the knowledge about the reality of racism. The issues our clients bring to us, the issues of social justice that we face are complex. They're entrenched, and they're far more than the specific legal issues that initially present. But as students and professors, we don't often step out of our many silos to engage with the broader context, to understand the history or to think in terms of power and systems. And that approach may bring some resolution to individual clients' immediate problems, but it doesn't lead to the deep long term change. It doesn't shift power. It doesn't lead to community equity and justice. And as lawyers, just going back to the first question you asked, we have played such an incredible role in creating this inequality. I think we have a responsibility to think about how to challenge that inequality that we helped create. And law schools have to think about how to integrate that not only into clinics like mine, but into every aspect of our curriculum and all the ways in which we engage and shape law students
President Hamilton [00:11:52] That's within within the legal profession, within legal education. And obviously, this past year, we have all, the wider society has come to understand more profoundly and more viscerally that racism is built into the very structures of our lives, as you describe. And then and then thinking in the in the NYU community more broadly, the NYU community of students and scholars, what would you wish that that community better understood about where we find ourselves in terms of structural racism and racial justice in 2021?
Professor Archer [00:12:38] Well, I would like all of us in the community at NYU to think about these questions that I articulate that I hope that we in the law school are thinking about and engaging our students, the narrative of how we got to where we is important for everyone to understand, regardless of their discipline. I would also just want to highlight the importance of pursuing our research and scholarship in conversation with and in collaboration with impacted communities. We should allow our work to be shaped and guided by impacted communities and those communities understanding of justice, of the problems that they're facing and what's needed by engaging with these communities. I think it benefits those communities, but it also benefits our work, having some of our work guided by the challenges they are facing on the ground, the questions and problems that they're struggling to understand or challenge as well. I think over the last year we can see how powerful research and scholarship that was done with impacted communities or in conversation with impacted communities has been in shaping and guiding, for example, the conversation around ending racialized police violence. And I think that more work connected and grounded in the community is going to really help us advance in terms of racial justice.
President Hamilton [00:14:03] And how can American universities best achieve that? How can they best engage with impacted communities as you describe them? And I think we all wish and we all hope that there will be a fortification of honest, constructive conversations about race that could come from that and could obviously contribute to change on the ground. But of course, it is getting to that point and it's engaging the different communities impacted so, so greatly as they are.
Professor Archer [00:14:42] Yeah, I feel pressured to answer this question with the president of the university and to get this right, but I think it always starts with us putting in the work internally. Even an organization like NYU filled with good folks focused on challenging their own explicit and implicit biases who are individually dedicated to fairness and equality, we're still working within a system designed and destined to perpetuate racial inequalities unless and until we focus on and work to dismantle those systems of inequality. I think we have to acknowledge that slavery and Jim Crow and subsequent racially discriminatory laws and policies and practices, they're all still impacting access to opportunity today, including within our universities and including within our classrooms. And as a result, we need to support systemic change that creates more truly equal opportunity. Systemic problems require systemic solutions. And we're all a part of that system and need to interrogate our own role in disrupting the functioning of discriminatory systems and building new ones that lead us towards equity. And all of us working at NYU and other universities across the country have incredible privilege and accessto decision makers. And I think we need to use that privilege and access to challenge inequality in whatever room or whatever space we're in.
President Hamilton [00:16:21] And indeed, one of the things that has pleased me greatly about the five or so years I've been at NYU is the discussion, the debate around diversity, the commitment to increasing diversity—of student body of our faculty of our staff has increased over these past years and the decade or so that preceded it. But, and of course, many of us wish and hope that the benefits of inclusion automatically flow from having a diverse workforce. But you, Deborah, rightly have pointed out that they do not, that I'll quote you again, "A school can be diverse, yet plagued by stereotyping, structural inequality and implicit bias." And so here is the president of NYU, as you point out, but also as as someone hoping to help lead not just that debate and discussion about diversity, but also real progress in inclusion and belonging and inequity in the institution. How can we best avoid that mistake of thinking diversity, achieving diversity is the preeminent, the prominent the goal that we should have. How can we best encourage the inclusion that must flow and the successful pathways that must flow from an increased diversity in our community?
Professor Archer [00:18:03] Yeah, such an important question and such a hard challenge. I think many institutions focus on representational diversity alone and don't think about what they need to do after that. They view it as an end result and as a goal, and then they don't think about next steps. They often think that they can bring just bring a diverse group of people together in a room or in an institution and then sit back and watch the magic happen. But we really have to engage with that diversity. The work of moving from diversity to true equity and inclusion is hard work, and it's hard work that requires our attention and vigilance. We have to allow the perspectives and experiences of everyone to shape the institutions in the work that we do and not just allow, but to create mechanisms to create systems, to transform culture, to devote resources so that we can move beyond diversity to equity and to an inclusion. It's also a challenge, I think, that many institutions face—we say we want diverse students in the classroom to enrich the learning experience, but often we shut down those discussions about race, saying that they are distractions from or are irrelevant to the focus of the class, or we undervalue the work of scholars who focus on issues of race and inequality. And I have not personally experienced any of that at NYU. And in fact, my personal experience has been just the opposite, as I felt that my work on racial justice has been valued and that the university has done a lot of work to link the work of scholars and advocates around the university who are working on issues of inequality, to amplify our voices and our impact. But I know that that's not the experience of everyone. I know that that's not true of all universities, and it's something that we have to think about in regards to other organizations like corporations. I think it's important to point out that fighting systemic racism is not the same as promoting diversity. And they should be thinking about helping to fight systemic racism and not just focus on diversity. So often in response to conversations about challenging systemic inequality, I've heard lots of corporations say, well, we have a diversity program and we're engaged in these diversity initiatives. Diversity is a good thing, but diversity alone, divorced from larger structural change, can be a hollow goal. So, for example, it really is insufficient to try to recruit more people of color with the types of qualifications and experience you are looking for. If you are not engaged in efforts to really expand the number of people who have meaningful access to those qualifications and experiences,
President Hamilton [00:20:52] I'd like to shift a little to your new role, and you've just been appointed the president of the national ACLU board. And of course, that aligns perfectly with your research, your specialization in laws concerning voting rights, employment discrimination and school desegregation. I'd love it if you could just touch upon a couple of pending cases that would best illustrate both the subtle but also the obvious pervasiveness of the issues that you've been talking about more generally.
Professor Archer [00:21:39] And I'm so excited to be in this role at the ACLU. The ACLU has been a part of my professional life since I graduated from law school and started my legal career as a fellow in the National Legal Department. And I also would regret not taking this opportunity to just say how much I appreciate how my colleagues at NYU have supported me as I stepped into this role. And I really do appreciate it. In terms of understanding the pervasiveness of racism inequality, the ACLU has just launched our systemic equality agenda, which aims to address all of the complex areas of inequality that you just raised. The systemic equality agenda is a comprehensive racial justice agenda that we hope will help eradicate the vestiges of colonialization, slavery and Jim Crow to identify and challenge modern tools of racial equality and to prioritize political and economic equality. And like the other work of the ACLU, the work of the systemic equality agenda, is really going to cover the waterfront of issues. And like the challenges facing black communities and other committees of color, the work is and will be intersectional, including voting rights, segregation in housing, economic justice and reparations, all areas that some areas the ACLU has worked on traditionally, but some that are really new to us. In terms of a special a particular aspect of the work, I'm excited about our work to expand access to essential financial services using the post office. And so Black families have faced the compounding effects of decades of exclusionary policies and programs that have contributed to the racial wealth gap. And the racial wealth gap persists in part because of the widespread lack of access to really basic financial services like bill paying or check cashing in small loans for Black consumers. And there are what some people would call banking deserts and communities around the country, especially in lower income rural communities and communities of color. As a result, nearly half of Black households are considered to be unbanked or underbanked, and the result is that they pay an average of twenty-eight hundred dollars per year on substandard alternative financial services, such as check cashing services and payday loans. And although incredible percentage of zip codes do not have a bank branch, all have a post office. So allowing individuals to access payroll, check cashing or domestic money transfers to get micro loans and pay their bills through the post office can address this crisis by linking more people to essential financial services in their communities at an affordable rate and ensure more communities have easier and affordable access to these services. So it's a new area for the ACLU, but an area that I'm really excited that we're moving into.
President Hamilton [00:24:56] Deborah, you mentioned access to financial services. And of course, that is an important issue, but it's one of many that that you will be you will be focusing on, I am sure, in your new role. And one thinks also of issues such as mass incarceration, housing access, inequality and public school education, voting rights, all issues that you've touched upon during our conversation. In your new role, you will have a loud voice and even louder voice than you have had in the past. And of course, one person who I am sure we all hope will be listening to that voice will be President Biden. And so let me ask you, in your new role, what will you see as the highest priority, perhaps in addition to access to financial services, the highest priority issues, specific laws that you hope the Biden administration will quickly initiate or enforce that will quickly see change in empowering individuals or communities.
Professor Archer [00:26:12] Well, I think you can't have lived through this last year and not think that racial justice has to be at the top of that list. I think voting rights and shoring up our democracy, not only making sure that we provide access, equitable access to the political process, but again, to shoring up the underlying foundation of our democracy is going to be important for the Biden administration to take immediate action. A longer list would include addressing algorithmic bias and promoting equity in artificial intelligence, striking down laws that criminalize students of color in school, address barriers to reentry such as housing and education access for returning citizens, challenging housing segregation, tackling redistricting so that communities elect their representatives and not the other way around. But you also mentioned the work that we need to do to strengthen and empower entire communities and community equity, and I think the meaning of community equity or community empowerment is an important question that I'm trying to figure out, but I hope the Biden administration will focus on that as well. It's a goal, but it also has to be a process that we use in the fight against inequality, to support communities, to think about how we guide and shape, how we integrate the communities of color, Black schools, how we support the long term residents of those communities in the face of gentrification and other forces of displacement, and how we support and build those communities to the benefit of their residents. And I think one area of opportunity for the Biden administration to address those those issues, to make sure that Black communities and other communities of color don't continue to accrue fewer benefits and bear greater costs in others or to challenge the accumulation of harms in those communities, is through his infrastructure plan. And President Biden has said that a goal is racial equity for traditionally marginalized and ignored communities. And certainly his plan holds promise. It could be truly transformational because it represents an historic investment in focus in urban communities and communities of color, investment in core functions, in transportation, in schools, water. It's all critically important. But I think that having that as a goal alone does not mean it's going to advance racial equity. And so the administration needs to adopt approaches that address the racial inequality that is built into our infrastructure, into our communities. It's important to have community equity, racial justice and empowerment as a goal. The harder question for the administration is whether that goal is going to be accompanied by programs and approaches that are specifically focused and designed to achieve that equity.
President Hamilton [00:29:22] We're coming towards the end of our time. And before we finish, I wanted to ask you one last more general question. And you certainly have touched upon the events of the past year. And of course, that includes also the change in the administration in Washington, D.C. And I think that there can really be seen to be supportive momentum for change in racial justice accelerating, we all hope. But let me ask you, what concerns you most about countervailing forces? Obviously, we have voting rights in Georgia, changes taking place currently. What worries you most? So I'm going to ask you two questions in this last one. What worries you most about those forces which will perhaps impede lasting change in racial justice being achieved? But then on the other side, what makes you most optimistic that in fact we will see in this coming year, in these coming years, real change?
Professor Archer [00:30:28] Yeah, I think it will be hard to identify what concerns me most without first, starting with the rise in white supremacy that we have seen increased, particularly during the last administration, the increase and expanding circle of people who are targeted and are in the path of harm and all concerned. If we focus on the two biggest challenges of the last year covid-19 and racialized police violence, all of them have cause for concern. The pandemic, as you know, laid bare, deep and long standing systemic inequalities. The response at the city and state level and more recently, the federal level shows that meaningful change is possible to attack those underlying inequalities. We are doing things that people have always said were impossible. We're getting Internet access and technology to children who didn't have it. During the lockdown's we were providing food to people who were hungry, we're housing record numbers of people who were experiencing homelessness. We're protecting struggling renters from evictions and we released incarcerated people. But one challenge is that we're implementing all of these measures as temporary and we have really still not dug deeper to challenge the systems that at a more fundamental level, created the racial and economic disparities that gave rise to the inequalities and disparate impact we saw during the pandemic. And similarly, on policing, there is reason for both hope and concern. I think we're still in the very beginning stages of a long overdue conversation about racialized harm at the hands of police and the need to reimagine and rethink public safety in our communities, and we have seen some progress with, in particular, U.S. House of Representatives passing the George Floyd Justice and Policing Act, that there is an officer, a former officer on trial. That's progress. But I will say the conversations we were having around policing are also a sign of progress that there's more to come that we're still talking about how to make things better and moving forward. But I think that that conversation is not advancing at the pace or the way it needs to given the harms. Black people are still disproportionately killed by the police, stopped by the police, arrested by the police, and experience physical and emotional harms from their interactions with the police. And yes, we've seen changes on the edges, but not the kind of fundamental structural change we know these repeated incidents call for. And then finally, I'll say something that gives me inspiration this year and every year are my students. I am always inspired by my incredible students. This year they have been under incredible pressure and challenges, yet they show up every day. They have rised to the moment, to the challenges of the day. They show incredible creativity, energy and determination in fighting for justice and equality, thinking about these issues and the potential in ways that I have never imagined. And so I know that we were in good hands with these students. But my students, the other students at NYU, the students who are leading the protests, even today, I know we're in good hands and and that gives me comfort.
President Hamilton [00:33:54] Students are always the source of optimism. I agree with you wholeheartedly. Professor Deborah Archer, thank you so much for joining us today. And this has been a fascinating conversation, a challenging conversation, but I think an important conversation as well. Good luck with your work at the ACLU and good luck with your continued scholarship at NYU. Thank you.
Professor Archer [00:34:19] Thank you.