Why the Jena 6 protests have gone awry.

The law, lawyers, and the court.
Sept. 24 2007 4:25 PM

The Wrong Poster Children

Why the Jena 6 protests have gone awry.

Thousands of protesters gathered in Jena, La.
 Click image to expand.
Thousands of protesters gathered in Jena, La.

When more than 10,000 people converged on the small town of Jena, La., last Friday, the Rev. Al Sharpton called their march the beginning of the 21st-century civil rights movement. He may be right. And that's just what's worrisome. The marchers gathered to protest criminal charges brought against six African-American high-school students, the "Jena 6." But the racial problems facing this town—and many others—are more complex than simple prejudice, and finding solutions will necessarily require more nuance than a mass protest can offer. The mismatch between the complex and layered racial tensions in Jena and the one-issue rallying cry of "Free the Jena 6" suggest that the tactics of last century's civil rights movement may be an anachronism for today's racial conflicts.

The Jena 6 were accused of beating and kicking a white classmate until he lost consciousness. The district attorney charged the six assailants with attempted murder—an absurdly severe charge under the circumstances—and then later, perhaps under pressure, reduced the charges to aggravated battery. The district attorney also improperly tried one student, Mychal Bell, as an adult and obtained a conviction for aggravated battery and conspiracy, which was duly vacated on appeal. It's plausible that this prosecutorial overzealousness was inspired by racial prejudice, but even privileged white people can fall victim to overzealous prosecutors—ask the Duke lacrosse team. So, how did a case of prosecutorial overreaching, which is tragically all too common, turn into a civil rights violation?

The hard evidence of racism in Jena showed up months before the assault, in the form of a noose tied to an oak tree. This incident was straight out of a story from the Old South: A black student at Jena High School asked at a student assembly if he could sit under a large oak tree that was unofficially called the "white tree" because white students gathered under it in Jena High's informally segregated campus. The principal told the assembly that any student could sit wherever he or she liked. After the assembly, several black students sat under the "white tree." The next day, white students hung three nooses from the tree. The school principal recommended their expulsion, but the school board instead suspended them from school for three days.

Racial tensions simmered in the following months and eventually boiled over in a series of physical confrontations. A white man threatened black Jena students with a beer bottle at an off-campus party and was charged with misdemeanor assault. A white student brandished a shotgun in a confrontation with three black students. (He claims self-defense; they claim he was unprovoked.) The black students then wrestled the gun away from him and were later charged with theft, while the white student was not charged with a crime. Then came the attack for which the Jena 6 were charged.

The Jena 6 and their defenders claim that the assault was a direct result of racial tensions that started with the nooses. They claim the white student who took the beating taunted the black students with racial epithets in what should be seen as one part of an ongoing campaign of racial harassment. And many see racism in the stark contrast between the slaps on the wrists that the noose-wielders and gun-brandisher and other whites involved in the later fights received, and the hard-line prosecution of the Jena 6. As one of the protesters put it: "Every time the white people did something … they dropped it, and every time the black people did something, they blew it out of proportion."

The disparity is striking, and it's plausible that racism was behind it. But the various incidents aren't really comparable. At most, the nooses threatened violence that was never carried out. By contrast, the Jena 6 were charged with an assault that resulted in physical injury. The more serious racial problem—and the root cause of the Jena 6 altercation—was that students at Jena High School had effectively re-created Jim Crow segregation on an informal basis—instead of whites-only bathrooms and drinking fountains, they had a "white tree" that black students considered off-limits. Such informal segregation is commonplace at racially mixed high schools (and universities). And if other cities and schools are any indication, black self-segregation along with white racism may have played a role. Reportedly, Jena High also had "black bleachers" where white students did not sit.

When racial tensions caused by this social distance and mistrust boiled over, Jena's district attorney did what elected prosecutors all too often do in high-profile cases, regardless of the race of the defendants: He threw the book at them. Such prosecutorial overzealousness is not necessarily racist, but because blacks are disproportionately embroiled in the criminal justice system, it does fall with disproportionate force on them. This made the Jena 6 symbols for railroaded black criminal defendants nationwide.

So, the demonstrators have plenty to be upset about: racial segregation; racially disproportionate arrest, prosecution, and incarceration rates; and a pervasive societal racism that is passed from generation to generation. But because none of these sadly common racial injustices have a discrete cause, none are likely to respond to the type of quick and specific reform that a demonstration can demand. As a result, the march on Jena was a bit unfocused. It's telling that the demonstrators moved between the courthouse where Bell was tried for an offense no one denies he committed and the site of the "white tree" that, with all-too-fitting symbolism, has since been cut down. "Free the Jena 6" has become a rallying cry, perhaps because, "Stop Informal Segregation and Prosecutorial Overzealousness That Disproportionately Affects African-Americans Here and Elsewhere" won't fit on T-shirt or a placard. (And the Rev. Sharpton, who has led rallies in support of self-segregation in ethnic theme houses at Cornell University, is especially ill-positioned to lead the way forward in this respect.)

The 21st century's civil rights movement will need more sympathetic poster children than the Jena 6. These young men weren't exactly engaged in peaceful civil disobedience when they ran afoul of the law. The injustice here is not that they are being prosecuted for their crime—it is that the many other wrongs that preceded the assault have been inadequately addressed. When you think about it, the logic that underlies the demand to free the Jena 6 comes down to this: These six young men were justified in kicking their lone victim senseless because other people who shared his race committed offenses against other black students. This sort of racial vendetta is diametrically opposed to the message of social justice and cross-racial understanding that underlies the civil rights movement of the last century.

And yet, all along, Jena has had a better symbol for civil rights on offer. The anonymous black students who defied the informal segregation at the high school and sat under the perversely misnamed "white tree" are the movement's true legatees. They have received so little attention that I don't even know their names or how many such brave and defiant young people there were.

Richard Thompson Ford teaches at Stanford Law School. His latest books are Rights Gone Wrong: How Law Corrupts the Struggle for Equality and Universal Rights Down to Earth.