Courtesy of Cornell University

Courtesy of Cornell University

June 8, 2020

Cornell Law Professor Discusses Importance of Legal Change for Black Lives Matter Movement

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The killings of Ahmaud Arbery, Breonna Taylor, George Floyd and many other Black Americans have sparked protests around the world. This, in turn, has given rise to more cases of police brutality caught on camera as law enforcement responds to demonstrations throughout the country.

Prof. Muna Ndulo, law — an expert on constitutions, human rights, and institution-building — highlighted the power of people to change a system and the expectations surrounding leadership during a time of crisis.

On June 1, several things happened: President Trump cleared peaceful protestors from Lafayette Square through tear gas. He also made a statement about deploying the National Guard in states that did not quell what he said were violent protests. In a highly tension-filled moment in history like this, what should leaders do, and what are the issues with responding to social unrest by defaulting to military force?

Ndulo: I’m glad that this matter has been addressed by a lot of people, including former Secretary of Defense Mattis. It’s very important to keep the distinction between police and the military. The military is not trained for domestic policing. Military training is combat and dealing with foreign enemies — it’s not internal. Deployment of an army internally undermines confidence and erodes trust between the community and the government.

As a leader, there’s no doubt in my mind that President Trump has been an incendiary and destabilizing force. As [Josiah Gilbert] Holland puts it [in his poem “God, give us men!”]: “A time like this demands strong minds, great hearts, true faith and ready hands.” A leader, in times of crisis, must be conciliatory and work to unite the country.

In a period of a crisis, leadership involves looking at the bigger picture, and trying to see how you can bring communities together and not take sides or divide people even further. The question is trust between the police and communities. It has been pointed out that whenever there are demonstrations, other groups see this as opportunities to take advantage of the situation. I believe, if we go back to human rights, police should be protecting the demonstrators from those other guys who are trying to deprive them of their rights to express themselves, rather than denying the protestors’ rights. Ensuring that I’m enjoying my rights also means protecting me from people who are trying to disrupt what I want to do.

There is a widespread debate surrounding the role that violence plays in demonstrations: Whether it has a function as a form of legitimate protest, if it’s justified and if it’s viable as a tool for effecting change? What are your views on the role that violence has in a context where many are pushing for transformation? 

Ndulo: I think violence doesn’t solve anything — if you look around the world, violence actually worsens conflicts and even creates new disputes within the context of violence. When groups are fighting, there’s a main cause, and now a lot of side issues arise from the violence. Even in the context of today, you begin to have conflicts with the business community, with people whose businesses have been vandalized — it diverts attention from the main cause.

It’s better to mobilize in terms of peaceful protest and be very clear with your objectives. Mobilization has to be a continuous process. I think what has been remarkable about this period is the coalition that has been built between all races and all age groups. It’s unanimous to say, “Wait a minute, we have to address this.” The challenge is that this should not be short-term, whereby in a month or so it is back to business as usual. How do you ensure that what has been identified can be resolved and addressed? How do we channel this energy into changes? In the end, it comes down to governance.

Those making the decisions are the only ones who can change what’s going on. No real change comes about without addressing the structure. The structure is designed to yield a certain type of result and clearly we’ve identified that the current way of doing things is producing what we see. For change to occur, we need to have a new model that makes the current model obsolete. This means going through state governments, city governments; change the laws, change the system. If things stop now, a few years from now we will be right where we started.

Outside of actions like deploying active troops, words also carry a lot of weight. Secretary of Defense Esper was criticized for referring to the streets of cities as a “battle space” and the President has criticized governors during a meeting for not “dominating” protestors. What role does rhetoric play as a tool for bringing about peace or as a weapon for creating division? 

Ndulo: We need leadership in a situation like this. Having different elements that are trying to disrupt what’s going on is normal, because there are so many different interests. Words can be powerful. They can incite and they can soothe. A clear example can be seen in the Rwandan genocide. 800,000 people died in the span of 100 days partly because the radio broadcasts in the days leading to the genocide used dehumanizing language to stir up violence. Yet, it was also words used by the late Nelson Mandela to quell the uprising in South Africa on the death of Chris Hani. He spoke directly to the young people: “We are a nation in mourning. We will give disciplined expression to our emotions at our pickets, prayer meetings and gatherings, in our homes, our churches and our schools . . . We pay tribute to all our people for the courage and restraint they have shown in the face of such extreme provocation. We are sure this same indomitable spirit will carry us through the difficult days ahead.”

That’s why you need leadership. Leadership that sees the big picture. To those that believe in force, just think about the world. Think about Iraq. Think about Syria. Think about Libya. Where has force actually solved anything or brought about peace? It doesn’t! They actually end up having continuous wars. It shows you that the really lasting peaceful settlement is through negotiations, where you identify issues and work towards the solutions together.

When you think you’ve “defeated” the people, you’re not solving the causes of the conflict. If you were to “dominate” them, that means the causes continue and it’s going to erupt at another time. This is an opportunity to address the causes so that they don’t come up again and that’s why I think it’d be terrible to go “back to normal.” This is an opportunity to look at the problems with policing, address what’s wrong with discrimination and poverty, and come up with institutional solutions for this issue so that it will not create another crisis.

In terms of creating change through written laws and regulations that outline right and wrong, it’s interesting that the past two police chiefs of the Minneapolis Police Department, Janeé Harteau and Medaria Arradondo, were arguably reform-minded. Arradondo even previously sued the department for discrimination. Officers have been through new training. They have body cams. Yet, an event like Floyd’s killing still took place. Do you think there are limitations to written law as an instrument for change? 

Ndulo: That’s the thing. If you look at Minneapolis, in terms of accountability, a lot of the officers who were charged were reinstated. The power of police unions frustrates whatever needs to be done. So police feel as if they’re completely protected, even when they’ve done wrong. So as you are implementing those reforms, you have to study which obstacles they’ll face. The challenge of governance is continuous and you have to constantly strategize. We have to remind ourselves that laws are not self-executing. They don’t implement themselves.

Just because it’s there in the books does not mean it will be implemented. It has to be you and me — there is no other institution but the people. We are the ones who have to guarantee that things work. Passing a good law is just the beginning. The people being asked to implement that law are often the same people who are against these laws anyway. They’re not going to implement it unless you make sure they do, which may include changing some of them if they refuse to implement them.

If you were to look into the future, given the division and unrest that’s happening right now, what is your best and worst-case scenario? 

Ndulo: Given what’s happened this week, I’ve been greatly inspired by a coming together of all races, and it’s not just the U.S. — it’s the whole world. There are huge demonstrations in London, Amsterdam, Japan, Kenya, Nigeria, New Zealand to name a few. Everywhere there is a consensus that we have to solve this. I think this is a really wonderful development because, before, this would’ve been a sectional kind of protest with just one group, either just students protesting or Black people protesting. But, you look at these crowds, and it’s a rainbow. Everybody’s there. All ages. I think that’s a very positive development.

Just today, I saw that the Washington State Supreme Court judges signed a statement that was very progressive, recognizing that there is a problem of institutional racism. All of the members of the state Supreme Court have signed it. We never had that sort of consensus before and I think that gives me hope that we can move forward.

I’m very inspired by this coalition, but the pessimism is that the forces the coalition is fighting against — the people who benefit from the [existing] structures — are quite powerful, and they have unlimited coffers. That’s going to be a huge challenge. Often, you are right, but you don’t have the same means as the people who are wrong. They benefit from the current system, have much more command in terms of resources and see no reason for change. That’s why this calls for focus, persistence and efficiency on the side of those fighting for change.

What would the starting point look like for someone at Cornell in terms of creating institutional solutions or lasting changes for the future?

For students, the starting point is clear, it’s elections. Being very active in terms of deciding who gets into governance structures, because governance structures matter. People who are running the city matter. They’re making the laws. The people who are running the House make the laws. The people who are running the Senate make the laws.

You cannot distance yourself from that and expect change. You have to realize that the vote is an instrument through which you can change things. You cannot ignore city councils, you cannot ignore state governments, you cannot ignore the Senate, and expect change. It is also unlearning what has been taught as ‘us’ versus ‘them.’  There is no such thing.