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By Rich Niebaum, Buffalo Grove, Illinois
Published: June 17, 2020

We have a racism problem. I have been watching, reading, thinking, and wondering where I fit into this expansive public conversation. My friend Yetunde Iya Feranmi recently helped me see that my silence reads like complacency. I am writing this to make my stand clear. Black Lives Matter. The time to speak and act is now.

Multiple videos reveal the brazen, heartless, and unjust murder of George Floyd on May 25, 2020. Four Minneapolis police officers, in broad daylight, on camera, dared the world to condone their act of murder. A collective voice has risen and said NO!

This emphatic response is long overdue. The heartbreaking list of injustices toward Black people in this country over millennia, easily tracing back more than 400 years to 1619 when the first slave ships began arriving, is still growing. Between George Floyd, Breonna Taylor, Philando Castile, Eric Garner, Michael Brown, Tamir Rice, Laquan McDonald, and so many others (#SAYTHEIRNAMES), the unjustified killing of Black people by police, along with the systemic educational and economic oppression of Black people, is ongoing.

The challenge of correcting these injustices feels all at once immense, daunting, and urgent. As I have searched for answers and perspective and worked against feeling overwhelmed, there are a few threads of conversation that have stood out to me as important. As a public school teacher in Chicago, I have also felt a responsibility to not only educate myself but also to facilitate discussions with my students. One conversation that feels relevant is the doctrine of qualified immunity, which I am learning was essentially invented by the Supreme Court and has, in effect, made it very difficult to hold police accountable for injustices.

In the wake of the first week of protests following the murder of George Floyd and subsequent arrest of Derek Chauvin, I shelved the mathematics lessons and challenged my algebra and geometry students to answer the question, “Why haven’t the other officers been arrested and charged?” From what I was learning, I believed qualified immunity played a big role. I wondered if my students would come to the same conclusion.

As my current and former students know, I often don’t care about the answers to the mathematics problems I challenge them to solve. I care about how they solve reading problems, how they make their thinking visible (metacognition), and how they justify their mathematical processes (critical thinking). Although insightful opinions were expressed, very few of my students found qualified immunity as a root cause, so I shared with them what I was learning about how the doctrine evolved in the Supreme Court.

The Editorial Board of The New York Times first brought this topic to my attention in an opinion piece on May 29, 2020, titled “How the Supreme Court Lets Cops Get Away With Murder.” In response to Donald Trump’s incendiary tweet on May 29, 2020, stating “…when the looting starts, the shooting starts,” the Editorial Board explained how that sentiment “frames the problem backward.” The Times staff insist instead that, “It is not a defense of torching a Target [store] to note that police abuse of civilians often leads to protests that can spiral out of control, particularly when met with force.”

The Times article cites multiple important but ancillary reasons why police officers rarely face justice, “from powerful police unions to the blue wall of silence to cowardly prosecutors to reluctant juries.” They interject, “But it is the Supreme Court that has enabled a culture of violence and abuse by eviscerating a vital civil rights law to provide police officers what, in practice, is nearly limitless immunity from prosecution for actions taken while on the job.”

In an extensive scholarly article about the doctrine of qualified immunity in Yale Law Review from 2017 titled “How Qualified Immunity Fails,” study author Joanna C. Schwartz notes that, “Available evidence suggests that just 1% of people who believe they have been harmed by the police file lawsuits against law enforcement.” As an explanation for this phenomenon, she notes that attorneys were “discouraged from accepting civil rights cases both because qualified immunity motions can be difficult to defeat and because the costs and delays associated with litigating qualified immunity can make the cases too burdensome to pursue.”

In yet another view of the doctrine, Slate takes on qualified immunity in a May 27, 2020, article: “The Supreme Court Broke Police Accountability. Now It Has the Chance to Fix It.” After a review of historic cases, the authors conclude: “The justices invented the doctrine of qualified immunity, and they have a responsibility to abolish it.”

So as a first step in fighting the ongoing injustice, I think we have to educate ourselves about the doctrine of qualified immunity and challenge our elected representatives to change the laws governing policing policies and practices. An insightful conversation on this topic was featured in The New York Times Magazine on Sunday, June 14, 2020, in a feature titled “A discussion about how to reform policing.” Legislation is making its way through congress, as our elected representatives debate the Justice in Policing Act of 2020. We need to understand these proposed changes to national law and voice our support for meaningful and appropriate change. We need to vote for people who understand how qualified immunity undermines racial equity. We need elected officials who will reform policing in America. We need to watch the cases against the four former Minneapolis officers and let the courts know that we will no longer allow the killing and mistreatment of Black and Brown people under the cloak of qualified immunity.

Second, I believe everyone has a responsibility to speak up. One of my favorite responses to Donald Trump’s violent, tone-deaf, and illegal threat to command our nation’s apolitical military to “dominate the streets” was on June 5, 2020, when Washington DC Mayor Muriel Bowser had the words “BLACK LIVES MATTER” painted on the street in giant yellow letters across two city blocks. The mural was implemented near where Trump had peaceful protestors charged, beaten, and tear-gassed to make room for him to walk across the street to wave someone else’s Bible in the air for a photo op in front of St. John’s Church, a place he has rarely visited. With this essay, I am taking the step of speaking up now and invite you to either write your own piece and/or share mine. If you are willing and able to join peaceful street protests, please do so, and thank you! If not, then perhaps show support for others, as I will continue to do so. I love the impassioned call to action that Hasan Minhaj launched with his video titled, “We Cannot Stay Silent About George Floyd.”

Third, I think we need to have public conversations about Reparations. Six years ago, Ta-Nehisi Coates laid out a compelling framework for this idea in an article for The Atlantic: “The Case for Reparations: Two hundred fifty years of slavery. Ninety years of Jim Crow. Sixty years of separate but equal. Thirty-five years of racist housing policy. Until we reckon with our compounding moral debts, America will never be whole.”

Coates’s argument is compelling and warrants a full-throated public conversation, deliberation, and action. In a concluding paragraph, Coates writes, “And so we must imagine a new country. Reparations—by which I mean the full acceptance of our collective biography and its consequences—is the price we must pay to see ourselves squarely.” He goes on to add, “What is needed is a healing of the American psyche and the banishment of white guilt…a national reckoning that would lead to spiritual renewal.”

I am sure there is so much more to our national reckoning with racism. For now, dismantling the doctrine of qualified immunity through reforming policing, peacefully protesting until the actual needed changes are implemented, and having real and meaningful conversations about Reparations seem like a good place to start.