Why the Black Man is Really Gray

Meikhel M. Philogene

Meikhel M. Philogene is a graduate of American University Washington College of Law.

INTRODUCTION

Gray are the handcuffs that discriminatorily restrain
Gray are the cell bars that disparately lock away
Gray is the dream for coaches and athletes looking the same
Gray is the hope for directors and musicians of a certain shade
The black man isn’t black; the black man is really gray

It is no secret that racism and discrimination have an extensive, divisive his­tory in America. From slavery to Jim Crow to the recent string of shootings of unarmed Black men, America has been riddled with issues involving racial prejudice and inequality. Although our national history of racism has improved immensely, there is still much progress to be made before “all men are created equal”1 is a factual reality.

Today, there are more Black adults incarcerated and under correctional super­vision than were enslaved in 1850.2 According to the 2010 U.S. Census, Black individuals comprise thirteen percent of the nation’s total population, but account for forty percent of the nation’s incarcerated population.3 Mass incarceration, while a result of racism, also causes it. In her groundbreaking book The New Jim Crow, author Michelle Alexander likens the mass incarceration of Black and Brown men today to the Jim Crow laws that enforced racial segregation and nurtured inequality in the 1950’s.4 The War on Drugs, along with modern-day debtors’ prisons and private prisons, also nurtures mass incarceration, in turn furthering racial inequality.5

The publicity of extensive police brutality toward Black individuals also reflects present-day racial oppression. In 2017, there were 987 individuals fatally shot by the police.6 Of these, twenty-three percent were Black.7 Further, Black men are about three times more likely to be shot and killed than their White counterparts.8 What is most outstanding about this oppression is that the officers involved are rarely held accountable for their misconduct. As noted by CNN, in the twelve-year span between 2005 and April 2017, only eighty police officers were arrested on “murder or manslaughter charges for on-duty shootings.”9 During this same period, there were roughly 12,000 police shootings.10 And of the officers charged, only “[thirty-five percent] were convicted, while the rest were pending [convic­tion] or not convicted.”11

The media’s depictions of the victims of police killings differ if the victims are White or Black, further perpetuating racial stereotypes, profiling, and biases. This is true even where the White victims were suspected of commit­ting far more serious crimes.12 For instance, various headlines described White victims as follows: “Santa Barbara shooting: Suspect was ‘soft-spoken, polite, a gentleman,’ ex-principal says;” “Ohio shooting suspect, T.J. Lane, described as ‘fine person;’” “Bank robbery suspect was outstanding Blue Hills student.”13 By contrast, Black victims of police brutality received the following coverage: “Ohio man was carrying variable pump air rifle – not a toy – when cops killed him: attorney general;” “Shooting victim had many run-ins with law;” “Police: Warren shooting victim was gang member.”14

The entertainment and sports industries also have a long history of perpetuating racial oppression. From the Negro leagues15 to the use of “blackface”16 in theatri­cal performances to the recent allowance of rap lyrics as evidence in criminal proceedings, racism in the entertainment and sports industries seems to be ever-present. For example, Black, first-time NFL head coaches are hired less than White first-, second-, third-, and fourth-time head coaches.17 In fact, “teams had hired [W]hite head coaches 120 times in 141 chances over the past two decades . . . [s]econd-, third- and fourth-time white head coaches outnumber all minority hires by a 40-21 margin during that span.”18 The entertainment industry is no different in this respect. Less than one percent of television stations are owned by Black individuals.19 Specifically, only ten television stations are owned by Black individuals, which is an increase from last year’s figure of two.20

This Article discusses the reasons for the pervasive discrimination in modern society, and how the constant depictions of negative racial stereotypes in the news, sports, and entertainment industries have fueled the mass incarceration of, and police brutality toward, Black individuals. Part I provides background, contex­tualizing how mass incarceration came into existence and continues to exist, and analyzes the racial implications of mass incarceration. Part II examines the root causes of police brutality against Black individuals and highlights the low rates of convictions for police shootings. Part III parallels the depictions and treatment of Black individuals in sports and entertainment with the racial inequalities faced in the criminal justice system. The conclusion provides recommendations and solutions to promote change in a racist society.

1. MASS INCARCERATION

“Prison is a business, America’s the company. Investing in injustice, fear and long suffering.”21

The concept of mass incarceration was first publicized in a report by The Sentencing Project in 1990.22 T he r eport u ncovered t he c hilling s tatistic t hat about one in four Black men between the ages of twenty and twenty-nine were under the control of the penal system, “either in prison or jail, on probation, or on parole.”23 By 1995, The Sentencing Project revealed that the rate had increased to one in three.24 During that five year period, in Washington, D.C. and Baltimore, more than half of Black men in their twenties were under criminal supervision.25 Today, about three in four young Black men in D.C. “(and nearly all those in the poorest neighborhoods) can expect to serve time in prison.”26 These numbers beg the question: what is the phenomenon to blame for mass incarceration and its discriminatory consequences? The answer is the War on Drugs, failing public defense systems, debtors’ prisons, and the privatization of the carceral state.27

1. The War on Drugs

Many people falsely believe that the War on Drugs was a response to the crack epidemic in inner-cities in the late 1980’s. But, the reality is that the War on Drugs was officially launched by President Reagan in 1982, several years prior to the crack crisis and its ensuing media coverage.28 In fact, only after the War on Drugs was announced did crack use rapidly spread in impoverished Black neighborhoods.29 The Reagan administration was responsible for publicizing the prevalence of crack cocaine in 1985 to legitimize a patently racist campaign to imprison minorities and gain further public support for that endeavor.30 Regan’s exploitation of the media in this regard was a “success” because it catapulted the War on Drugs “from an ambitious federal policy to an actual war.”31 Regan’s use of the media also filled the nation with images of Black “crack whores,” “crack dealers,” and “crack babies,” which reinforced atrocious racial stereotypes about inner-cities, Black people, and Black communities.32

During the time the War on Drugs was declared, illicit drug use was actually on the decline nationwide.33 Yet, the presidential declaration of war caused an exponential rise in arrests and convictions for drug-related offenses, particularly among minorities.34 This increased criminalization of drug crimes warped public perception about the extent of the drug usage. It also resulted in as many as eighty percent of young Black individuals living with criminal records in major cities across the country.35 Indeed, in certain states, Black men were (and continue to be) sent to prison for drug offenses at rates twenty to fifty times greater than White men.36 Research indicates, however, that White individuals, and White youth in particular, are more likely to commit a drug crime than their minority counterparts.37

In the course of thirty years, from 1980 to 2010, the population under cor­rectional control increased from about 300,000 to more than 2 million and drug convictions are mainly to blame.38 The United States has the highest incarceration rate in the world and incarcerates more of its racial or ethnic minorities than any other country.39 In fact, “[t]he United States imprisons a larger percentage of its [B]lack population than South Africa did at the height of apartheid.”40 Although the War on Drugs sparked the creation of mass incarceration, failing public defender systems, as well as the proliferation of modern-day debtors’ prisons and private prisons. The War On Drugs also exacerbated the penal population’s racial disparity.41

1. Underfunded and Overextended Public Defender Systems

Many indigent defendants do not have effective counsel. The severity of the problem has become so grave that in Louisiana, for instance, the Lawyers’ Com­mittee for Civil Rights Under Law, partnering with other organizations and firms, sued the state due to its failure to fix (and fund) the state’s broken public defender system, which was causing poor individuals to be denied their constitutional 52

right to effective counsel.42 Notably, in Louisiana, about eighty-five percent of all criminal defendants are indigent and approximately seventy percent of incar­cerated individuals are minorities, most of whom are Black.43 T hus, there is a substantial need for an adequate public defender system and the lack of effective counsel contributes to the mass incarceration of poor, Black individuals.

Louisiana is not an outlier. Many states do not provide a state-wide public defender system.

1. Modern-Day Debtors’ Prisons

“Modern-day debtors’ prison” is a term used to describe the jailing of indi­gent individuals simply because they are unable to pay fines and fees associated with minor offenses, such as traffic violations and shoplifting.44 With increasing court costs and decreasing budgets, court systems frequently turn to the debtors’ prison system to raise revenue.45 The problem with modern-day debtors’ prisons, however, is that the courts order the “arrest and jailing of people who fall behind on their payments, without affording any hearings to determine an individual’s ability to pay or offering alternatives to payment such as community service.”46 Not only do modern-day debtors’ prisons violate the Fourteenth Amendment, which grants due process and equal protection under the law, but incarcerating individuals simply because they cannot afford to pay fines or fees violates the Supreme Court case Bearden v. Georgia.47

In Bearden, Mr. Bearden was sentenced to probation and ordered to pay a $500 fine plus $250 in restitution after pleading guilty to burglary and theft by receiving stolen property.48 After Mr. Bearden made the first couple of payments, he was laid off from his job and could not obtain other employment. In turn, the court revoked his probation and placed him in prison.49 On appeal, the Supreme Court held that if a court imposes a fine or fee for a crime, then it may not imprison a person simply because he lacked the ability to pay that fine or fee.50 Put differently, the sole justification for imprisonment cannot be poverty when an individual has demonstrated bona fide efforts to pay.51 On this reasoning, the Court reversed the lower court’s decision to imprison Mr. Bearden.52

Despite the holding in Bearden, debtors’ prisons live on. Harriet Cleveland, a forty-nine-year-old with three children, worked at a day care in Montgomery, Alabama prior to being laid off in 2009.53 In 2013, while babysitting her grand­son, she was arrested for an unpaid debt of $1,554 – operating a vehicle without insurance and then, once her license was suspended, operating without a valid license.54 “She slept thirty-one days on a jail cell floor, ‘block[ing] the sewage from a leaking toilet’ with old blankets.”55

Similarly, Twanda Brown, a single mother who lived in Section 8 housing in Lexington County, South Carolina received a number of traffic fines.56 Brown was a fast food restaurant employee and was regularly making payments toward her fines, but when she defaulted on her payments, she was arrested and jailed for fifty-seven days.57 The poverty rates for Black and Hispanic residents of Lexington County are more than double the rate for White residents, and imprisonment for poverty would, accordingly, disproportionally affect those minority groups.58 There are thousands of people like Ms. Cleveland and Ms. Brown who are trapped in the cycle of imprisonment simply because they are poor. Indeed, the poverty rate for the total prison population in the United States is roughly thir­teen percent, but the poverty rate for imprisoned Black individuals is twenty-two percent (the highest poverty rate among all races).59 Thus, imprisoning the poor for being poor furthers the racial disparity in the criminal justice system.

Not only are modern-day debtors’ prisons unconstitutional, they are also a waste of taxpayer money.60 Indefinitely jailing individuals who will likely never be able to pay their debts imposes direct costs on taxpayers and the government, causing the criminal justice system to experience financial strife.61 “According to CBS MoneyWatch and the ACLU, the cost to taxpayers of arresting and incarcerating a debtor is generally more than the amount to be gained by collecting the debt.”62

In sum, modern-day “debtors’ prisons create a racially-skewed, two-tiered system of justice in which the poor receive harsher, longer punishments for com­mitting the same crimes as the rich, simply because they are poor.”63

 

1. Private Prisons

Modern-day debtors’ prisons are not the only prison systems causing mass incarceration. The privatization of prisons is also a significant contributing factor.64 Private prisons are “prison facilities run by private prison corporations whose services and beds are contracted out by state governments or the Federal Bureau of Prisons (BOP).”65 Although the use of private prisons seems like an attractive solution to mass incarceration because it allows states and the federal government to redirect tax dollars to other services, the reality is that private prisons cost more, operate less efficiently, and ultimately give rise to numerous constitutional dilemmas revolving around the rights of inmates to be treated as human beings.66

Moreover, the private prison system is a billion-dollar industry exploiting pre­dominately Black and Hispanic inmates.67 These for-profit prisons have been on the rise since the 1980s, especially following the commencement of the War on Drugs.68 More than half of states depend on private prisons to hold nearly 90,000 inmates annually.69 The cost of housing inmates is high, and overcrowding is a major issue in the penal system, so utilizing private prisons seems like a grand solution to states struggling with budget constraints and deficits.70 However, for private prisons to turn a profit (they are businesses, after all), more inmates need to be locked up for lengthier amounts of time.71 Indeed, the “private prison industry doesn’t want to release people any more than a hotel would want to reduce its number of guests.”72 In this regard, the private prison industry inherently creates a need for mass incarceration.73 Conversely, prisons run by the government are, at least theoretically, somewhat incentivized to rehabilitate inmates, so that inmates can eventually be safely released and prisons save money.74

Since the “almighty dollar” is a high priority for for-profit prisons, “private prisons seek the least expensive prisoner to generate the highest possible profit.”75 Therefore, it is not surprising that Black inmates are more likely to be held in private prisons than White inmates.76 Inmates who are over fifty years old are more likely to be White, while inmates who are under fifty years old – particularly those closer to thirty years of age – are more likely to be Black or Hispanic.77 It costs $68,270 per year to house an inmate fifty years-old or older, but it only costs $34,135 annually to house more youthful inmates.78 Thus, statistically, it is fiscally cheaper to house Black inmates than it is to house White inmates in private prisons. Private prisons have the luxury of contractually exempting themselves from housing more expensive prisoners; thus, allowing them to house more Black inmates and less White inmates.79 In California, Georgia, Texas and Oklahoma, minorities are incarcerated in private prisons at least ten percent more than in publicly-run institutions.80 Thus, private prisons demonstrate how certain facially neutral policies have a disparate impact on minorities.81

“Cutting costs and generating revenue at the expense of people of color is a tradition deeply woven in the fabric of American history.”82 Some have likened the private prison industry to slavery or indentured servitude, arguing that private prisons violate the Thirteenth Amendment.83 For instance, private prison com­panies are publicly traded and, therefore, “inmates have quite literally become commodities rather than liabilities.”84 Private prisoners also live in, clean, and maintain the prison, and are required to engage in other forms of labor by the prison, such as crop growing.85 Inmates in private prisons also live and work in worse conditions than those in public prisons, and private prisoners are put to work to cut costs as opposed to working for rehabilitation purposes as prisoners do in public prisons.86

Additionally, many private prisons have been criticized for improper training and oversight of wardens, guards, and staff; being highly dangerous and violent; and, being extremely dirty and a cesspool for disease.87 For example, the Ameri­can Civil Liberties Union, along with the Southern Poverty Law Center and Law Offices of Elizabeth Alexander, filed an action against the East Mississippi Cor­rectional Facility, a private prison, alleging that the prison was “hyper-violent, grotesquely filthy and dangerous;” “operates in a perpetual state of crisis;” and, “prisoners are at grave risk of death and loss of limbs.”88 Many other cases with similar allegations have been filed elsewhere.

The racism inherent in the War on Drugs, the ability to obtain effective counsel, modern-day debtors’ prisons, and private prisons creates and maintains systems of oppression and inequality.

1. POLICE BRUTALITY

“Cops give a damn about a negro. Pull the trigger, kill a *****, he’s a hero.”89

Those born prior to this century know too well how big of an issue police brutality has been in America. Even before Mike Brown and Tamir Rice, there was Rodney King, whose beating led to the 1992 Los Angeles rebellions. Even prior to Rodney King, there was police use of water cannons against protestors in the 1960s. Police brutality has plagued the nation for ages. Today, it has almost become commonplace to turn on the news and see another instance of a police officer shooting an unarmed Black individual.

As the years go by, new “solutions” to police brutality are implemented, but seem to have little effect. For example, many police departments now make their officers wear body cameras. In 2015, “95 percent of large police departments reported they were using body cameras or had committed to doing so in the near future.”90 The purpose was to record police shootings and create greater account­ability in response to police misconduct.91 However, studies show that the cameras have virtually no deterrent effect on officers and do not modify behavior.92 In fact, body cameras actually raise other concerns about surveillance and individual privacy.93 One researcher noted that the “cameras raised significant privacy issues, particularly in low-income, minority neighborhoods, and that vendors were beginning to experiment with incorporating facial recognition software.”94

True police reform is not possible until the root cause of police misconduct is identified. One of the main reasons that Black individuals are being slaughtered at such a disproportionate and high rate is that police, and White individuals in general, have implicit biases towards various minority groups.95 Studies show that an acknowledgment and awareness of implicit bias is a key component to lessening racial profiling and saving Black lives.96 But in order to improve the relationship between the police and minority communities, implicit bias needs to be better understood.

 

1. Implicit Bias

Implicit bias is discriminatory bias based on an implicit stereotype or attitude.97 Everybody is racist, and nobody is colorblind.98 “Implicit stereotypes are the ‘introspectively unidentified . . . traces of past experience’ that result in a belief that all members of a social category share certain qualities.”99 “[I]mplicit at­titudes can result in actions that indicate ‘favor or disfavor toward some object’ without being ‘understood by the actor as expressing that attitude.’”100 Expres­sions of implicit discrimination and systematic discrimination are the result of unconscious or spontaneous prejudicial behaviors or actions.101

However, one of the reasons that implicit bias studies have received backlash is because most people cringe at the thought of being considered racist; many individuals profess that they are “colorblind” and claim that they do not see race.102 But pretending to not notice race, or that race does not matter, is itself a form of racial bias.103 For instance, “colorblindness foists ‘whiteness’ on everyone” because it is essentially viewing everyone as if they are White; therefore, one’s “default color for sameness is white.”104 It also “strips non-[W]hite people of their uniqueness” and “suppresses critically important narratives of oppression” by dismissing non-[W]hite individuals’ experiences, traditions, and cultures.105 “Colorblindness assumes everyone has the same experience here in America;” and, “colorblindness promotes the idea that non-[W]hite races are inferior.”106 Moreover, it’s warranted to be conscious of race.107 For example, if an officer is looking for a suspect, knowing if the suspect is White or Black is far more helpful than knowing that the suspect has black hair.108

Recently, two studies dealing with Black job applicants during college admis­sion interviews and implicit bias demonstrated how implicit bias had a negative impact on the applicants.109 The first study determined that White college students showed greater levels of discomfort when conversing with Black experimenters than with White experimenters.110 The students displayed their discomfort by talking and smiling less frequently, and hesitating and making speech errors more often when conversing with Black experimenters.111 The second study found that White interviewers displayed more discomfort and talked less to Black applicants than White applicants.112 Additionally, the study revealed that White applicants did poorly in interviews when paired with White interviewers that were asked to be less conversant and to display verbal discomfort.113 These studies, in addition to others, demonstrate how implicit bias may disadvantage Black applicants.114

When regard to police biases, research studies tend to show a similar prefer­ence towards White individuals and, concurrently, a discriminatory outcome for Black individuals. For example, in a series of four studies, researchers attempted to emulate the experience of an officer who, when confronted with a potentially dangerous suspect holding either a gun or a nonthreatening item, must decide whether or not to shoot.115 The goal of these studies was to analyze the effect the suspect’s race had on the officer’s decision to shoot.116 Participants were told to shoot only armed targets.117

In the first study, the participants shot more rapidly when the target was Black than White, and decided not to shoot an unarmed target more rapidly when the target was White than Black.118 In the second study, researchers tried to increase error rates by forcing the participants to make their decisions more hastily.119 Under these modified conditions, implicit racial bias was still obvious: the par­ticipants failed to fire at an armed target more often when the target was White than Black.120 And, when the target was unarmed, the participants fired at the target more often when the target was Black than White.121 Further, if a target was Black, “participants generally required less certainty that [the target] was, in fact, holding a gun before they decided to shoot [the target].”122 In the third study, researchers replicated the first study and observed that the bias of the shooter con­formed with those who reported greater contact with Black individuals and those who believed that there exists a strong stereotype depicting Black individuals as “aggressive, violent and dangerous.” The study indicated that “mere knowledge of [a] stereotype is enough to induce the bias.”123 In the final study, researchers tested both White and Black participants, and found that both sets of participants exhibited equal levels of bias.124 Collectively, these results revealed that in speed and accuracy, the decision to shoot an armed target was faster when the target was Black, whereas the decision not to shoot an unarmed target was faster when the target was White.125 The results also demonstrate that Black individuals tend to exhibit some form of implicit bias towards Blacks.126

Because all police officers interact with Black individuals; must make “light­ning-quick, high-stakes judgments about individuals’ propensity for criminality and violence with very little individuating information;”127 rely on their “gut instincts” and “hunches” to determine who to investigate, interrogate;128 and determine who to use deadly force against,129 they must all learn about, identify, and combat their implicit biases for the sake of justice and saving Black lives.

1. Lack of Criminal Liability

As discussed above, criminal convictions against police officers for brutality and shootings of Black individuals are rare130 and police officers are almost never prosecuted for their use of excessive force.131 There are various reasons for this phenomenon. First, the law gives officers wide discretion in their use of force.132 Generally, an officer need only perceive a threat to justify his use of deadly force.133 Second, investigations into an officer’s use of force are typically conducted by the same county or state department where the officer works, thus creating an obvious conflict of interest.134 Third, often the only available evidence of police misconduct comes from eyewitness testimony, which tends not to be viewed as credible as the officer’s testimony.135

Typically, police misconduct cases end up in civil court were the aggrieved party has a better chance of success. But criminal sentencing is the “most pow­erful social mechanism” for expressing collective condemnation and sending a message to other police officers.136 The National Police Misconduct Reporting Project examined 3,238 criminal cases against officers from April 2009 through December 2010; it found that thirty-three percent of the officers were convicted, and thirty-six percent of the officers who were convicted actually served prison sentences.137 “Both of those are about half the rate at which members of the public are convicted or incarcerated.”138 Unsurprisingly, however, an officer’s (minority) race or ethnicity may increase the likelihood of his or her conviction. For example, Peter Liang, a Chinese-American, was convicted of manslaughter for the fatal shooting of Akai Gurley at a New York housing project and faced up to fifteen years in prison.139 However, because many supporters accused the prosecution for targeting him due to his ethnic background, a judge, following the prosecution’s request, lessened Liang’s conviction to criminal negligence and sentenced Liang to five years’ probation and 800 hours of community service.140 Liang is one of the very few officers to be convicted in a high-profile case.141

Although a minority police officer is more likely to be convicted for exces­sive use of force, some argue that having more diversity on the police force will lessen instances of police brutality. The logic is persuasive, but ultimately not true.142 Studies demonstrate that the racial composition of a police department did not matter for police shootings generally, but the racial makeup of the city did.143 In all of the cities that were measured, an increase in Black residents was correlated with an increase in police shootings.144 In this regard, “[t]he quickest way to predict the number of police shootings in a city is to see how many [B] lacks live there.”145 Moreover, Black police officers only account for ten percent of police shootings, but seventy-eight percent of the individuals they kill are Black.146 In general, more White individuals are killed by police officers than Black individuals, but Black individuals are more than two times more likely to be killed in proportion to their population than Whites.147

The media only aggravates the situation of police killings of Black individuals. For example, following the death of Freddie Gray, then-president Barack Obama referred to citizens from Baltimore as “criminals and thugs” when he responded to a question about the ensuing protests that occurred.148 “The use of the term ‘thug’ by President Obama became the zenith of the word’s use to characterize primarily individuals and groups of Black males.”149 Indeed, the term “thug” was the term of choice used by many news and social media outlets.150 Baltimore councilman Carl Stokes, a Black male, refused to call the protesting citizens “thugs” and responded during a CNN interview to the use of the word, saying, “C’mon, so calling them thugs, just call them ni**ers, just call them ni**ers.”151 “Councilman Stokes was calling attention to the use of coded language that is in some ways explicitly and other ways implicitly used as a substitute for per­sonally mediated racism, specifically the term ‘ni**er.’”152 P ut differently, the characterization of the Baltimore protesters as thugs shows how the media’s use of certain words tends to perpetuate racial stereotypes. Unarmed Black victims of police killings are portrayed in a similar fashion by media. Typical headlines highlight four main themes when discussing Black victims: the behavior or actions of the victim during the time of his or her death; the appearance of the victim at the time of the his or her death; the location where the victim’s death happened (also many times the area the victim lived); and, the lifestyle and culture(s) that the victim associated with.153 For instance, here is a sample of news headlines following the police killing of Eric Garner: “The 350-pound man, about to be arrested on charges of illegally selling cigarettes, was arguing with the police;” “But the 350-pound Garner’s poor health, including ‘acute and chronic bronchial asthma; obesity; hypertensive cardiovascular disease,’ were also ‘contributing conditions’ to his death, it added;” “The pending cases, which have now been dismissed and sealed, included selling untaxed cigarettes, driving without a li­cense, and possession of marijuana, said a law enforcement official.”154 Many of the articles seemed to paint Garner as a villain and the officer as a hero, trivial­izing the death of a human being. The criminal justice system works similarly in police shooting cases: Black victims deserved death.

 

III. SPORTS AND ENTERTAINMENT INDUSTRIES

“Why is a brother up north better than Jordan, that ain’t get that break . . . Why Denzel have to be crooked before he took it?”155

 

1. Sports Industry

Sports have the uncanny ability to both divide and unite. If one is a Philadelphia Eagles fan, then he is probably not too fond of Dallas Cowboys fans. If one is a Boston Celtics fan, then he is likely hoping for the Los Angeles Lakers’ demise. However, simply being a sports fan bonds strangers to one another. Sports provide contexts to conversations, people come together to watch the sporting events, and individuals of all colors and creed chant and cheer in unison for their team. Sports also have the power to contribute to social and political movements. For instance, during the time of apartheid in South Africa, soccer was a contributing factor in desegregating the nation. Likewise, the Olympics was useful in proving Adolf Hitler’s racist theories wrong. Although sports have many great qualities, however, the vile, racist history of sports still reveals itself today.

White quarterbacks are a dime a dozen. Historically, Black players were pre­cluded from playing quarterback in the National Football League (NFL).156 The only Black quarterback in the NFL Hall of Fame, Warren Moon, encountered racism throughout his playing years and was repeatedly urged to play another position by his coaches because they assumed he did not have the mental capabil­ity to play quarterback and lead his team.157 Although progress has been made since Moon’s era, there are still a minute amount of Black quarterbacks in the league. To be sure, the NFL’s percentage of Black quarterbacks increased only one percent—from eighteen percent to nineteen percent—in the last fourteen years.158 Interestingly, though, more than seventy percent of the players in the NFL are Black.159 It still seems like the “golden boy,” master position of quarterback is reserved for Whites and the slave positions, like wide receiver and running back, are reserved for Blacks.

Even the rhetoric used to describe Black and White athletes is different. In a 1992 study of football announcers, researchers found announcers focused on Black athletes’ physical attributes and White athletes’ cognitive attributes.160 Likewise, the success of Black players tends to be attributed to their “innate natural athletic ability,” while the success of White players is typically attributed to “intelligence or mental effort and hard work,” reinforcing the stereotypes that Black people are naturally lazy and unintelligent.161 Additionally, announcers and commenta­tors talk quantitatively more about White athletes and praise them more, even though White athletes are the minority population in football, and also make more excuses for their failures than for Black athletes.162 Moreover, the media tends to use “trigger words” that are negatively associated with Black individuals. For instance, Stanford graduate and NFL player, Richard Sherman, was called a “thug” for his post-game interview following the National Football Conference (NFC) Championship game.163 Sherman did not use vulgar language and did not discuss violence or criminal action, but his physical appearance and loud voice was seemingly enough to be deemed a “thug.”164 Maybe worse than that is how the Houston Texans’ owner, Bob McNair, described NFL players as “inmates,” saying the NFL can’t have “inmates running the prison.”165 These comments were made in a meeting in regards to the protests during the national anthem, which the media has continuously and incorrectly attributed to protesting the flag and military. Rather, the true purpose of the protest is to “raise awareness of police brutality in America against people of color.”166

Aside from players, minority coaches are also underrepresented and face their fair share of racism. For example, the NFL implemented the “Rooney Rule” to increase the chances of minority individuals to be hired as head coaches.167 The Rooney Rules require NFL teams to interview at least one minority candidate when in pursuit of a new head coach and the interview must be “meaningful.”168 The problem is, however, that “94 percent of head coaches hired over the past 20 years (133 of 141) had been NFL coordinators, pro head coaches (including interim) or college head coaches previously”169 and, historically, minorities have had fewer opportunities to hold these type of “prerequisite” positions.170 The Rooney Rule also applies to personnel executives, such as general managers, but the population of personnel executives and owners is even less diverse than that of head coaches.171 Many believe the Rooney Rule should extend to coordinators as well but, here too, “80 of the NFL’s current 85 offensive coordinators, quar­terbacks coaches and offensive quality control coaches are White, including all 37 with the word ‘quarterback’ in their titles . . . 23 of 32 defensive coordinators are White.”172

Another issue with the Rooney Rule is that minority interviewees tend to be considered only “for the camera” or quota-meeting. Many teams thus face a dilemma: teams can schedule an interview with a minority candidate and “face the inevitable blowback of it being a sham,” or teams can pay a fine for “flouting the Rooney Rule.”173 For example, in 2003, the Detroit Lions elected to pay a $200,000 fine for not following the Rooney Rule.174

The sports industry, as well as the entertainment industry, tends to reflect the racism of the country. Thus, as long as racial disparity exists in society, sports will continue to reflect and represent that toxic racial climate.

 

1. Entertainment Industry

The entertainment industry is not much different from the sports industry in its discrimination toward, and lack of opportunity for, minorities. For instance, lack of minority representation in the television industry prompted Byron Allen, founder and chief executive officer of Entertainment Studios, to file a $20 bil­lion lawsuit against Comcast and Time Warner Cable.175 He alleged that that the conglomerates discriminated against black-owned media companies by creating and reserving only “‘a few spaces’ for their channels at ‘the back of the bus.’”176 The lawsuit is currently on appeal in the Court of Appeals for the Ninth Circuit.177

For decades, Black individuals have had a difficult time even entering the televi­sion industry as actors, executives, or owners.178 Prior to the 1970’s, there simply were no television stations owned by Black individuals.179 During the 1970s, the Federal Communications Commission (FCC) created the “Minority Ownership Policy,” which led to there being ten Black-owned television stations today.180 Yet, even with the enhanced representation of Black individuals in executive roles, Black individuals are still typecast in stereotypical acting roles. A 2016 study found that Black actors credited as a “police officer” represented eighteen percent of all actors.181 Far more prevalent, however, was the obvious stereotyping of Black actors. For instance, Black women were typically only casted in television and movie roles if they agree to portray characters that are “loud, vindictive, petty and always ready for some mess.”182 Black men were similarly more likely to be cast in criminal roles.183 Sixty-two percent of all actors credited as “gang member” were Black; sixty-one percent of all actors who were credited as “gangster” were Black; sixty percent of all actors who were credited as “gangbanger” were Black; and, sixty-six percent of all actors who were credited as “thug” were Black.184 By comparison, “the slightly more dignified ‘henchman,’ was [eighty-one] percent [W]hite and only [four] percent [B]lack.”185 Finally, of all of the actors who were credited as “doctor” and “pilot,” which are two common background roles, only nine and three percent were Black, respectively.186

Furthermore, in order for Black actors to have the best chance to win awards and accolades, they must portray slave roles or negative, crooked roles. Denzel Washington has only won a leading-role Oscar for his portrayal of a crooked cop in the movie “Training Day;” many argue that was not his best movie and he deserved Oscars for other, more outstanding performances.187 Similarly, Wash­ington won his first Oscar for his supporting role in “Glory” for his portrayal of a slave.188 Part of this problem is that the Oscars has a history of lacking minority representation. In 2016, many were protesting the Oscars because there were no people of color nominated in the four major categories the year before.189 The music industry is similarly racist. Recently, rap lyrics have been allowed as evidence in court. Much controversy has been bred from the allowance of rap lyrics to be used as evidence in trials. Some scholars argue that allowing rap lyr­ics to be admissible in court aids in reinforcing racial biases.190 For example, in 1996, social psychologist Carrie Fried conducted a study to demonstrate how lyrics from various genres of music affect individuals’ perceptions.191 The study used the lyrics from a 1960s folk song by Kingston Trio called “Bad Man’s Blunder,” which is about a person who murders a police officer.192 The participants were put into three groups and were told that the lyrics were attributed to performers from different genres of music.193 One group was told that the lyrics were writ­ten by the Kingston Trio (folk music), the second group was told that the lyrics were by a country singer, and the third group was told that the lyrics were writ­ten by a rapper.194 The results determined that a bias exists. For instance, when participants thought the lyrics were from a rap song or from a Black artist, they found the lyrics “objectionable, worr[ied] about the consequences of such lyrics, and support[ed] some form of government regulation.”195 Conversely, when the lyrics were thought to be from a country or folk song or from a White artist, the participants were far less critical.196 One takeaway from this study is that “[c]ourts must . . . recognize the very real likelihood that rap lyrics will trigger racialized stereotypes when assessing the prejudicial effect of the evidence.”197 Indeed, scholars argue that jurors will believe the violent and drug-referencing lyrics to be autobiographical rather than artistic or fictional, to the prejudice of the defendant.198 Likewise, some lyrics may cause jurors to mistakenly believe that black individuals are all criminals, which is obviously untrue.199

Moreover, some believe that the proliferation of White rappers is an example of “modern blackface.”200 During the era of slavery, images of Black individu­als often depicted docile characters.201 These images served as a way to control Blacks’ and Whites’ minds, by creating the idea that slavery was what was best for Black individuals.202 “The images of buffoonery, blissful ignorance, and ju­venile angst were seen as the primary traits of enslaved Blacks. [Later, through] the use of Blackface . . . White actors popularized minstrel shows, depicting stereotypes of Black life as foolish, messy, and overall comedic at the expense of Black culture.”203 Today, minstrel shows still exist; many White rappers are culturally appropriating Black culture.204 For instance, Aamer Raman, a come­dian who frequently comments on racism, said: “A [W]hite rapper like Iggy Azalea acts out signifiers which the [W]hite majority associates with [B]lack culture — hyper sexuality, senseless materialism, an obsession with drugs, money and alcohol — as well as adopting clothing, speech and music — as a costume that they can put on and discard at will.”205 Black rappers like Childish Gambino, on the other hand, tend to not be associated with their Black identities because they do not adhere to the stereotypical Black roles of a “thug” or “gangster.”206 Childish Gambino’s lyrics in his song “Backpackers” reflect that sentiment: “that well-spoken token that ain’t been heard, the only [W]hite rapper who’s allowed to say the N word.”207 The eradication of the Black rapper and propagation of the White rapper attempting to mimic “Black culture” is dangerous to the fight against racial stereotypes and prejudices.

CONCLUSION

“No consolation prize for the dehumanized. For America to rise it’s a matter of Black Lives. And we gonna free them, so we can free us. America’s moment to come to Jesus”208

The issue of mass incarceration and its maintenance of racial inequality and op­pression has been born through society’s negative stereotypes of Black individuals. The various causes of mass incarceration must also be eliminated or reformed.

First, the vestiges of the Jim Crow era, maintained through various institutions, must be abolished. There must be a shift in the criminalization of drugs and ad­diction, which disproportionally targets minority communities. There must be a robust federal and state public defender system. This system should be adequately funded by the taxpayers and organized regionally. Likewise, modern-day debtors’ prisons must be done away with. Community service, like clearing trash and cleaning up parks, is a better way for debtors to pay off their fines.209 “Michigan, in some cases, allows people to reduce their debt by meeting education require­ments like getting a GED diploma.”210 This is a much better alternative. Private prisons should also be abolished. Alternatively, private prisons need meaningful oversight and accountability, improvement of safety conditions, and better train­ing for staff and guards.211

Second, there needs to be meaningful police training and accountability. Po­lice need training on implicit bias.212 Understanding and being aware of possible unconscious biases will likely help police perceive real threats and simply not “Black” threats.213 In addition, homicidal officers need to be convicted at higher rates, because convictions and sentencing provide for greater accountability and deterrence.214 Additionally, the media needs to focus on the actual circumstances surrounding police shootings, and less on the characteristics of the victims. Put in a nutshell, victims should not be demonized.215

Lastly, the sports and entertainment industries must provide more opportu­nities for minorities and these opportunities should not simply be in usual or stereotypical positions, but in leadership and executive roles.216 It is also time to give awards to Black actors and directors for movies and roles other than those depicting negative racial stereotypes. Specifically, the association of criminality and Black needs to stop; there cannot be advancement if all a Black individual will ever amount to is a “thug.” These changes would ideally help shift the cul­tural depictions of Black men and women, and would aid in the eradication of racism and discrimination.

The Black man ought not be gray, the Black man need be Black and proud.

Notes

1 The Declaration of Independence para. 2 (U.S. 1776).

2 Michelle Alexander, Speech at the Annual Black Man’s Think Tank (2013).

3 Leah Sakala, Breaking Down Mass Incarceration in the 2010 Census: State-by-State Incarceration Rates by Race/Ethnicity, Prison Policy Initiative, (May 28, 2014), available at https://www. prisonpolicy.org/reports/rates.html.

4 See generally Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2010).

5 See Ari Melber, Presumed guilty: How prisons profit off the ‘war on drugs,’ MSNBC, (July 29, 2014), available at http://www.msnbc.com/msnbc/presumed-guilty-how-prisons-profit-the.

6 Police shootings 2017 database, The Washington Post, available at https://www.washingtonpost. com/graphics/national/police-shootings-2017/ (last visited Jan. 7, 2018).

7 Ibid.

8 Madison Park, Police shootings: Trials, convictions are rare for officers, CNN, (June 24, 2017), available at http://www.cnn.com/2017/05/18/us/police-involved-shooting-cases/index.html.

9 Ibid.

10 See Ibid.

11 Ibid.

12 Nick Wing, When The Media Treat White Suspects And Killers Better Than Black Victims, Huffington Post, (Sept. 21, 2017), available at https://www.huffingtonpost.com/entry/when-the-media-treats-white-suspects-and-killers-better-than-black-victims_us_59c14adbe4b0f22c4a8cf212.

13 Ibid.

14 Ibid.

15 See generally Negro Leagues History, Negro Leagues Baseball Museum, available at https://www. nlbm.com/s/history.htm (las visited Aug. 5, 2018).

16 Blackface, Random House Webster’s Unabridged Dictionary (2d ed. 2002) (“[A]n [non-Black] entertainer, especially in a minstrel or vaudeville show, made up in the role of a black person. By the mid-20th century, these entertainers had declined in popularity because their comic portrayal of negative racial stereotypes was considered offensive.”).

17 Mike Sando, Rooney Rule in reverse: Minority coaching hires have stalled, ESPN, (Ju ly 19, 2016 ), available at ht t p://w w w.e s p n .c om /n f l /st or y/_ /id /171010 97/ staggering-numbers-show-nfl-minority-coaching-failure-rooney-rule-tony-dungy.

18 Ibid.

19 Kristal Brent Zook, Blacks own just 10 U.S. television stations. Here’s why., The Washington Post, (Aug. 17, 2015), available at https://www.washingtonpost.com/posteverything/wp/2015/08/17/ blacks-own-just-10-u-s-television-stations-heres-why/?utm_term=.f36e7823d97a.

20 Ibid.

21 Common, Letter to the Free (ARTium Recordings, Def Jam Recordings 2016).

22 Dorothy E. Roberts, THE SOCIAL AND MORAL COST OF MASS INCARCERATION IN AFRICAN AMERICAN COMMUNITIES, 56 Stan. L. Rev. 1271, 1274 (2004).

23 Ibid. at 1274.

24 Ibid.

25 Ibid.

26 Alexander, supra note 4, at 6.

27 Roberts, supra note 22, at 1274.

28 Alexander, supra note 4, at 5.

29 Ibid.

30 Ibid.

31 Ibid.

32 Ibid.

33 Alexander, supra note 4, at 6.

34 Ibid.

35 Ibid.

36 Ibid. at 7.

37 Ibid.

38 Alexander, supra note 4, at 6.

39 Ibid.

40 Ibid.

41 See Christopher D. Hampson, THE NEW AMERICAN DEBTORS’ PRISONS, 44 Am. J. Crim. L. 1 (2015).

42 See Class-Action Lawsuit: Louisiana’s Public Defender System Systematically Denies Poor People the Right to an Adequate Defense, Lawyers’ Committee for Civil Rights Under Law, (Feb. 6, 2017), available at https://lawyerscommittee.org/press-release/class-action-lawsuit-louisianas-public-defender-system-systematically-denies-poor-people-right-adequate-defense/.

43 Ibid.

44 Ibid. at 3; The Editorial Board, A Modern System of Debtor Prisons, The New York Times, (Mar. 28, 2016), available at https://www.nytimes.com/2016/03/28/opinion/a-modern-system-of-debtor-prisons.html.

45 See The Editorial Board, supra note 44.

46 ENDING MODERN-DAY DEBTORS’ PRISONS, ACLU, available at https://www.aclu.org/issues/ criminal-law-reform/sentencing/ending-modern-day-debtors-prisons (last visited Jan. 7, 2018).

47 See Ibid.; see also Bearden v. Ga., 461 U.S. 660 (1983).

48 Bearden, 461 U.S. 660.

49 Ibid.

50 Ibid.

51 Ibid. at 661.

52 Ibid. at 674.

53 Hampson, supra note 41, at 4.

54 Ibid.

55 Ibid.

56 ACLU CHALLENGES UNCONSTITUTIONAL DEBTORS’ PRISON PRACTICES IN SOUTH CAROLINA COUNTY, ACLU, (June 1, 2017), available at https://www.aclu.org/news/ aclu-challenges-unconstitutional-debtors-prison-practices-south-carolina-county.

57 Ibid.

58 Ibid.

59 U.S. Poverty Statistics, Federal Safety Net, available at http://federalsafetynet.com/us-poverty-statistics.html (last visited Jan. 7, 2018).

60 ENDING MODERN-DAY DEBTORS’ PRISONS, supra, note 46.

61 Ibid.

62 Eli Hager, Debtors’ Prisons, Then and Now: FAQ, The Marshall Project, (Feb. 24, 2015), available at https://www.themarshallproject.org/2015/02/24/debtors-prisons-then-and-now-faq.

63 ENDING MODERN-DAY DEBTORS’ PRISONS, supra, note 46.

64 See Private prisons incentivize mass incarceration, The Washington Post, (Oct. 18, 2016), available at https://www.washingtonpost.com/opinions/private-prisons-incentivize-mass-incarceratio n/2016/10/18/973eaf5c-9492-11e6-9cae-2a3574e296a6_story.html?utm_term=.a74d3bf1bc3c.

65 Terms & Definitions: Corrections, Bureau of Justice Statistics, available at https://www.bjs.gov/ index.cfm?ty=tdtp&tid=1 (last visited Jan. 7, 2018).

66 See PRIVATE PRISONS, ACLU, available at https://www.aclu.org/issues/mass-incarceration/ privatization-criminal-justice/private-prisons (last visited Jan. 7, 2018); see also Private prisons incentivize mass incarceration, supra note 64.

67 Val Reynoso, Private Prisons in US Turn a Profit, Ruin Black Lives, Telesur, (Oct. 25, 2017), avail­able at https://www.telesurtv.net/english/opinion/Private-Prisons-in-US-Turn-a-Profit-Ruin- Black-Lives-20171025-0011.html.

68 Ibid.

69 Ibid.

70 Michaela Pommells, Study: More People of Color Sentenced to Private Prisons Than Whites, HuffPost, (Apr. 23, 2014), available at https://www.huffingtonpost.com/michaela-pommells/ study-more-people-of-colo_b_4826086.html.

71 Private prisons incentivize mass incarceration, supra note 64.

72 Ibid.

73 Ibid.

74 Ibid.

75 Pommells, supra note 70.

76 Ibid.

77 Ibid.

78 Ibid.

79 Ibid.; see Christopher Petrella, The Color of Corporate Corrections, Part II: Contractual Exemptions and the Overrepresentation of People of Color in Private Prisons, 2014 An Insurgent J. 1, 81.

80 Pommells, supra note 70.

81 Ibid.

82 Ibid.

83 Ryan S. Marion, Private Prisons and the Thirteenth Amendment, Race, Racism and the Law, (Oct. 2009), available at http://www.racism.org/index.php?option=com_content&view=article&id= 1886:private-prisons-and-the-thirteenth-amendment&catid=202&Itemid=140&showall=&lim itstart=3; see generally U. S. Const. amend. XIII.

84 Marion, supra note 83.

85 Ibid.

86 Ibid.

87 See Ibid.; DOCKERY V. EPPS, ACLU, (Dec. 18, 2017), available at https://www.aclu.org/cases/ prisoners-rights/dockery-v-epps.

88 DOCKERY V. EPPS, supra note 87; see Complaint, Dockery v. Epps, Case No. 3:13-CV-326-TSL-JMR (S.D. Miss. May 30, 2013).

89 2Pac, Changes (Amaru Entertainment, Death Row Records, Interscope Records 1998).

90 Amanda Ripley & Timothy Williams, Body Cameras Have Little Effect on Police Behavior, Study Says, The New York Times, (Oct. 20, 2017), available at https://www.nytimes.com/2017/10/20/ us/police-body-camera-study.html.

91 Ibid.

92 Ibid.

93 Ibid.

94 Ibid.

95 See Elizabeth Chuck, Can ‘Implicit Bias’ Training Stop Police Officers From Acting on Hidden Prejudice?, NBC News, (Oct. 1, 2016), available at https://www.nbcnews.com/news/us-news/ can-implicit-bias-training-stop-police-officers-acting-hidden-prejudice-n656071.

96 See Ibid.

97 L. Elizabeth Sarine, Regulating the Social Pollution of Systemic Discrimination Caused by Implicit Bias, 100 Calif. L. Rev. 1359, 1365 (2012).

98 See R. Richard Banks et al., Discrimination and Implicit Bias in a Racially Unequal Society, 94 Calif. L. Rev. 1169 (2006).

99 Ibid.

100 Ibid.

101 Ibid. at 1366.

102 Ibid. at 1184.

103 Banks et al., supra note 98, at 1185.

104 Dani Bostick, How Colorblindness Is Actually Racist, HuffPost, (July 12, 2017), available at https://www.huffingtonpost.com/dani-bostick/how-colorblindness-is-act_b_10886176.html.

105 Ibid.

106 Ibid.

107 Banks et al., supra note 98, at 1185.

108 Ibid.

109 Ibid.

110 Sarine, supra note 97, at 1366.

111 Ibid.

112 Ibid.

113 Ibid.

114 Ibid.

115 Joshua Correll et al., The Police Officers’ Dilemma: Using Ethnicity to Disambiguate Potentially Threatening Individuals, 83 J. Personality & Soc. Psychol. 1314, 1324 (2002).

116 Ibid.

117 Ibid.

118 Ibid. at 1325.

119 Ibid.

120 Correll et al., supra note 115, at 1325.

121 Ibid.

122 Ibid.

123 Ibid.

124 Ibid.

125 Correll et al., supra note 115, at 1325.

126 See Ibid.; see also Christine Jolls & Cass R. Sunstein, The Law of Implicit Bias, 94 Cal. L. Rev. 969, 971 (2006) (“Most people tend to prefer [W]hite to [Black], young to old, and heterosexual to gay. Strikingly, members of traditionally disadvantaged groups tend to show the same set of prefer­ences. The only major exception is that [Blacks] themselves are divided in their preferences; about equal proportions show an implicit preference for [Blacks] and [W]hites.”).

127 John T. Clemons, BLIND INJUSTICE: THE SUPREME COURT, IMPLICIT RACIAL BIAS, AND THE RACIAL DISPARITY IN THE CRIMINAL JUSTICE SYSTEM, 51 Am. Crim. L. Rev. 689, 695 (2014).

128 Ibid.

129 Ibid.

130 Park, supra note 8.

131 German Lopez, Police shootings and brutality in the US: 9 things you should know, Vox, (May 6, 2017), available at https://www.vox.com/cards/police-brutality-shootings-us/police-use-of-force-convictions.

132 Ibid.

133 Ibid.

134 Ibid.

135 Ibid.

136 Alexa P. Freeman, UNSCHEDULED DEPARTURES: THE CIRCUMVENTION OF JUST SEN­TENCING FOR POLICE BRUTALITY, 47 Hastings L.J. 677, 712, 713 (1996).

137 Lopez, supra note 131.

138 Ibid.

139 Waseem Abbasi, Jason Stockley verdict shows how rare officer convictions are in police shootings, USA Today, (Sept. 16, 2017), available at https://www.usatoday.com/story/news/nation/2017/06/17/ convictions-rare-officers-police-shootings/102947548/.

140 Ibid.

141 Ibid.

142 Jamelle Bouie, Why more diverse police departments won’t put an end to police misconduct., Slate, (Oct. 13, 2014), available at http://www.slate.com/articles/news_and_politics/politics/2014/10/ diversity_won_t_solve_police_misconduct_black_cops_don_t_reduce_violence.html.

143 Ibid.

144 Ibid.

145 Ibid.

146 Ibid.

147 Wesley Lowery, Analysis: More whites killed by police, but blacks 2.5 times more likely to be killed, The Washington Post, (July 11, 2016), available at http://www.chicagotribune.com/news/na­tionworld/ct-police-shootings-race-20160711-story.html.

148 David Fakunle & CalvinJohn Smiley, From “brute” to “thug:” the demonization and criminal­ization of unarmed Black male victims in America, National Center for Biotechnology Information, (2016), available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5004736/.

149 Ibid.

150 Ibid.

151 Ibid.

152 Ibid.

153 Fakunle & Smiley, supra note 148.

154 Ibid.

155 Jadakiss, Why? (Interscope Records, Ruff Ryders Entertainment 2004).

156 Jane McManus & Jason Reid, The NFL’s Racial Divide, The Undefeated, (Apr. 26, 2017) avail­able at https://theundefeated.com/features/the-nfls-racial-divide/.

157 Ibid.

158 Ibid.

159 D. Watkins, Stop saying the NFL can’t be racist because “70 percent of the players are black”, Salon, (Aug. 29, 2017), available at https://www.salon.com/2017/08/29/stop-saying-the-nfl-cant-be-racist-because-70-percent-of-the-players-are-black/.

160 Andrew C. Billings & Susan Tyler Eastman, Biased Voices of Sports: Racial and Gender Stereo­typing in College Basketball Announcing, 12 How. J. Comm. 183, 186 (2001).

161 Ibid. at 186.

162 Ibid.

163 Fakunle & Smiley, supra note 148.

164 Ibid.

165 Adam Stites, Texans’ Bob McNair apologizes for saying NFL can’t have ‘inmates running the prison,’ SB Nation, (Oct. 28, 2017), available at https://www.sbnation.com/2017/10/27/16559952/bob-mcnair-houston-texans-nfl-owners-meeting-protests.

166 Ibid.; Jay Willis, No One Is “Protesting the Flag,” GQ, (Sept. 25, 2017), available at https://www. gq.com/story/no-one-is-protesting-the-flag.

167 Sando, supra note 17.

168 Ibid.

169 Ibid.

170 Ibid.

171 Ibid.

172 Sando, supra note 17.

173 Conor Orr, Gruden, the Raiders and the Rooney Rule: What Happens When a Team Seems Locked In on a Candidate?, Sports Illustrated, (Jan. 2, 2018), available at https://www.si.com/nfl/2018/01/02/ jon-gruden-oakland-raiders-head-coach-rooney-rule.

174 Ibid.

175 Zook, supra note 19.

176 Ibid.

177 See Judge Rules Byron Allen’s Entertainment Studios Can Proceed With $10B Racial Discrimina­tion Lawsuit Against Charter Communications, Shadow and Act, (Apr. 20, 2017), available at https:// shadowandact.com/judge-rules-byron-allens-entertainment-studios-can-proceed-with-10b-racial-discrimination-lawsuit-against-charter-communications/; see also Dominic Patten, Comcast Granted Dismissal Of Byron Allen’s $20B Discrimination Suit – For Now, Deadline, (May 10, 2016), available at https://deadline.com/2016/05/comcast-lawsuit-racial-discrimination-dismissal-granted-byron-allen-1201752902/.

178 J.C. Watts, Expansion Of African-American Owned TV Must Be A Priority, HuffPost, (Feb. 7, 2017), available at https://www.huffingtonpost.com/entry/expansion-of-african-american-owned-tv-must-be-a-priority_us_5899f401e4b09bd304bdbbbe.

179 Ibid.

180 Ibid.; see Zook, supra note 19.

181 Zachary Crockett, “Gang member” and “thug” roles in film are disproportionately played by black actors, Vox, (Sept. 13, 2016), available at https://www.vox.com/2016/9/13/12889478/black-actors-typecasting.

182 Jonathan P. Higgins, Why Hollywood’s Portrayal of Black Women Is Problematic, The Root, (Nov. 24, 2016), available at https://www.theroot.com/why-hollywood-s-portrayal-of-black-women-is-problematic-1790857877.

183 Crockett, supra note 181.

184 Ibid.

185 Ibid.

186 Ibid.

187 David Dennis, Jr., A DENZEL WASHINGTON OSCARS LOSS WILL FEEL LIKE A LOSS FOR ALL OF US, The Undefeated, (Feb. 22, 2017), available at https://theundefeated.com/features/denzel-washington-oscars-fences-2017/.

188 THR Staff, #OscarsSoWhite: How to Win an Oscar if You’re Black (Chart), The Hollywood Reporter, (Jan. 29, 2016), available at https://www.hollywoodreporter.com/news/oscarssowhite-how-win-an-oscar-859613.

189 See Brent Lang, Al Sharpton Leading Protest Over Lack of Black Oscar Nominees, Variety, (Feb. 25, 2016), available at http://variety.com/2016/film/news/oscars-boycott-diversity-al-sharp­ton-1201714827/.

190 See Brendan O’Connor, Why Are Rap Lyrics Being Used As Evidence in Court?, Noisey, (Nov. 3, 2014), available at https://noisey.vice.com/en_us/article/rap-lyrics-as-evidence.

191 Ibid.; See generally Carrie B. Fried, Bad Rap for Rap: Bias in Reactions to Music Lyrics, 26 J. Applied Soc. Psychol. 2135 (1996).

192 O’Connor, supra note 190.

193 Ibid.

194 Ibid.

195 Ibid.

196 Ibid.

197 Stephen S. Davis, In Canada, prosecutors are using suspects’ own rap lyrics to win convictions, Los Angeles Times, (Sept. 30, 2016), available at http://www.latimes.com/world/mexico-americas/la-fg-rap-lyrics-convictions-snap-story.html.

198 Ibid.

199 See Ibid.

200 Nicole Phillips, Modern Blackface: The Cultural Appropriation Of Rap, Odyssey, (Sept. 2, 2015), available at https://www.theodysseyonline.com/satire-as-survival.

201 Fakunle & Smiley, supra note 148.

202 Ibid.

203 Ibid.

204 O’Connor, supra note 190.

205 Ibid.

206 Ibid.

207 Ibid.; Childish Gambino, Backpackers (Glassnote Records, Universal Music Distribution 2011).

208 Common, supra note 21.

209 Rebecca Beitsch, An Alternative to Paying Court Debt: Working It Off, The Pew Charitable Trusts, (Apr. 4, 2017), available at http://www.pewtrusts.org/en/research-and-analysis/blogs/state­line/2017/04/04/an-alternative-to-paying-court-debt-working-it-off.

210 Ibid.

211 See ACLU-TN URGES LAWMAKERS TO GET TOUGH WITH CORECIVIC, ACLU, (Dec. 11, 2017), available at https://www.aclu.org/news/aclu-tn-urges-lawmakers-get-tough-corecivic.

212 Chuck, supra note 95.

213 Ibid.

214 See Freeman, supra note 136, at 712, 713.

215 Fakunle & Smiley, supra note 148.

216 See Carolina A. Miranda, You might see more women and minorities on TV, but Hollywood has a ways to go when it comes to diversity, report says, Los Angeles Times, (Feb. 21, 2017), available at http://www.latimes.com/entertainment/la-et-cam-ucla-hollywood-diversity-report-20170220-story. html; see also Will Minorities Rise to Top Positions in the Business of Sports?, Wharton School of the University of Pennsylvania, (Sept. 1, 1999), available at http://knowledge.wharton.upenn.edu/article/ will-minorities-rise-to-top-positions-in-the-business-of-sports/.