Civil Rights

BU Law and Center for Antiracist Research Challenge Rule Barring Civil Rights Claims

Several students worked on a Supreme Court amicus brief filed by the center and coauthored by Dean Angela Onwuachi-Willig, Professor Jasmine Gonzales Rose, and others.

BU Law Dean Angela Onwuachi-Willig is counsel of record on the brief for the center, which launched last year and is led by Professor Ibram X. Kendi. Her coauthors include BU Law Professor Jasmine B. Gonzales Rose and two law and policy fellows at the center, Neda A. Khoshkhoo and Caitlin Glass.

Much of the research in the brief—which was filed in June and focuses on how people of color are disproportionately impacted by a procedural rule barring such claims—was compiled by BU Law students who, either as interns or research assistants, signed on to help the center in its mission to understand, explain, and solve problems of racial inequity and injustice.

Part of that mission includes the amicus brief project, conceived by Gonzales Rose and headed up by Khoshkhoo, through which the center will identify cases that deal with issues of race and marshal their own and others’ expertise to weigh in thoughtfully through amicus, or “friend-of-the-court,” filings.

“I saw this as a unique opportunity where we could bring together research from across the University and across the center’s Affiliates Program to be able to inform the court and the public about issues that are particularly important for antiracism,” says Gonzales Rose, who is deputy director of research & policy at the Center for Antiracist Research. “You can impact policy through changing the law, through educating the courts, and educating the public. There’s a real component here of evidence-based advocacy.”

For the students involved, there’s also a major component of learning. 

“This is such important work,” says Gabriela Rosario (’23), who studied the prison abolition movement as an undergraduate student at Florida State University and applied to be a summer intern at the center after her first year at BU Law. “I was very grateful to have the opportunity.”

Onwuachi-Willig says the law school plans to collaborate closely with the center.

“The law has to play a central role in dismantling systems and structures of racism—indeed, the law itself is a structure that can and has helped to facilitate and perpetuate racism in all of its forms,” she says. “If we want to fulfill our mission of being leaders in teaching and studying the law and in providing the profession and society with the ideas and perspectives that enrich understanding of the law, we have to expose our students to practical and theoretical notions of what it means to be an antiracist lawyer.”

The law is at the heart of the center’s equity efforts. Gonzales Rose, Glass, and Khoshkhoo emphasized that their decisions about when to file amicus briefs will be informed by discussions with practitioners and social justice organizations advocating for change on the ground. In addition to the amicus brief project, BU Law students can work on other initiatives under the center’s policy arm, including a racial policy tracker, model antiracist legislation, an evidence equity project that provides pro bono expert witnesses in impact litigation, and continuing legal education offerings on antiracism.

The center’s first brief was filed in Thompson v. Clark, a case that will be argued before the US Supreme Court this term. Larry Thompson, a Black man arrested and charged with resisting arrest and obstructing justice after he turned away police officers who tried to enter his home without a warrant, is challenging the US Court of Appeals for the Second Circuit’s interpretation of the so-called favorable termination rule. When plaintiffs seek to file civil rights complaints under Section 1983 of the US civil code, the Circuit’s precedent calls for an “indications-of-innocence” standard that requires them to show that the criminal proceedings against them ended with an affirmative indication of their innocence.

But many charges—including intentionally falsified charges levied against people of color, which often include resisting arrest—are dismissed before trial, meaning people can almost never prove their innocence.

“This creates an absurd result in which perhaps the most meritorious Section 1983 claims—those involving false charges that were dismissed due to lack of evidentiary support—are shielded from judicial review,” the brief states.

The center argues the Supreme Court should adopt instead a standard used by the Court of Appeals for the Eleventh Circuit, which requires plaintiffs to show only that criminal proceedings ended in a way that is not inconsistent with their innocence.

Glass says the Second Circuit’s interpretation disregards the realities of the criminal legal system, which make it difficult for people facing false criminal charges to prove their innocence.

“It’s not wrong for there to be preemptive dismissals,” she says. “We want cases to be dismissed as soon as a prosecutor determines there is not enough evidence. But that should not preclude someone from bringing constitutional claims to a trier of fact when there was civil harm.”

Rosario and several other students helped proofread the brief, checked case citations, and provided crucial research. For instance, the brief includes data showing that other attempts to hold police accountable—such as the use of body cameras—have failed to curtail abuse. The students also gathered statistics to demonstrate that Black, indigenous, and other people of color (BIPOC) do not resist arrest at higher rates than white people, a commonly held misconception based on racial stereotypes. In fact, according to the students’ research, BIPOC individuals are no more—or even less—likely to resist arrest than white people.

Khoshkhoo and Glass praised the students’ work.

“I think amicus briefs provide a particularly good venue for law student experience,” Glass says. “So much of brief writing as an advocate is storytelling. Weaving narrative into legal work is an important skill, and it’s great for law students to see that early in their career.”

The case “shows how a narrow versus broad interpretation by a court can have huge impacts personally on people trying to navigate their way through a justice system that is already pitted against people of color,” says Alexandra Stanley (’22), who worked on the brief in her position as a research assistant to Gonzales Rose. “The stakes are high.”

Gonzales Rose points out that the relief being sought—application of the Eleventh Circuit’s standard—is only a “mitigation tactic.”

“It’s fairer—it means that a civil rights claim can get before a court,” she explains.

In reality, she adds, the problem stems beyond a circuit split.

“One could go further and say the favorable termination rule itself is problematic because, as we know, there are criminal convictions—particularly against BIPOC individuals—that are unfounded,” she says. “The wrongfully convicted would be foreclosed from having a case at all. At the center, we hope to examine these issues more at the root cause.”

Kendi and Onwuachi-Willig both point to the power of the partnership between the center and the law school.

“Our work at the center examines the policies and practices that produce racial inequity, and our amicus brief program and partnership with the School of Law are essential to this work,” Kendi says.

Onwuachi-Willig agrees. “This collaboration is important because lawyers play a critical role in society: They help people resolve legal problems and issues; they promote truth and justice; they protect our democracy, and they safeguard the rule of law,” she says. “As a law school that not only wants to improve our profession, but also our nation and the world, we want to train our students in a way that makes it far more likely that they will use their talents to fight against and eradicate racism rather than sustain it.”