Abstract

Excerpted From: Devon W. Carbado, Can You Be Black and Teach That?, 101 New York University Law Review 758 (June 2026) (Full Document)

The text of the Fourth Amendment reads:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The language promises security. For Black people, it organizes vulnerability. It is Fourth Amendment law that determines when and how the police may engage us in our homes, in our cars, at school, and on our streets-- and it is Fourth Amendment law that produces and governs the anti-Black space between surveillance and death. Because that space is an iteration of the colorline, Black people do not experience Fourth Amendment law as a restraint on police power. We experience it, instead, as a racialized source of police empowerment. That empowerment includes not only the authority to surveil, socially control, and discipline Black people in ways that render us disposably alive. It also includes the authority to kill Black people on terms that expose us to “bare death.” This fraught and necrological dimension of Fourth Amendment law is a stark reminder both that “legal interpretation takes place in a field of pain and death” and that this doctrinal activity produces the fields in which that pain and death unfold. Because the law school curriculum and legal pedagogy often obscure both the racial dimensions of Fourth Amendment violence and the pedagogical difficulties that violence generates in the classroom, this Article makes those unspoken dynamics its central concern.

One might think of the account this Article provides as a pedagogy of the Black body, or more precisely, as an articulation of what the Black body can teach us about the “field of pain and death” Fourth Amendment law produces but does not register. That field structures routinized violence in society (including by rendering policed Black bodies both normative and natural) and epistemological violence in the classroom (including by forming a constitutional archive that requires Black people to teach and learn law through our legally sanctioned disposability).

To confront and illuminate the scope of that disposability, this Article deploys an undisciplinary method. Moving within and across the boundaries of narrative, poetry, and doctrinal exegesis, that method rests on three important epistemological refusals: the refusal to ignore the enduring ways race structures American social life; the refusal to elide the role law plays in producing and sustaining that reality; and the refusal to engage the “vexed bond” between race and law solely within the parameters and modalities of conventional legal discourse. Those refusals are consistent with Lewis Gordon and Jane Anna Gordon’s call that part of the project of Black Studies should be to build “our own houses of thought.”

Organized in four parts, the remainder of the Article proceeds as follows.

Part I presents a poem, Bare Death. Although Bare Death is the Article’s origin, I did not set out to write it. Nor could I have imagined that the thoughts and sensibility that motivated Bare Death would culminate in an Article, a point to which I will return later. Like other poems, Bare Death invites elaboration, contestation, and rearticulation. Accordingly, I will not offer a definitive interpretation at the outset. What I will say and later develop is that one of the central aims of Bare Death is to redescribe Fourth Amendment law as a juridical racial project: a domain that both produces the social meanings of Blackness on which policing relies and adjudicates the permissible scope of state violence through the prism of the Black body.

Parts II and III contextualize the poem. Because Bare Death is built from the language, structure, and logics of Fourth Amendment doctrine, Part II describes the poem’s formal and thematic operations and connects them to key concepts and frameworks in constitutional criminal procedure--search, seizure, reasonableness, reasonable suspicion, probable cause, justifiable force, plain view, qualified immunity, the exclusionary rule, and related standards. These doctrinal elements supply the poem’s grammar. The analysis in Part II demonstrates how the poem’s formal pressures--repetition, interruption, breathlessness, and the refusal of closure--mirror the procedural rhythms and justificatory habits of Fourth Amendment law.

Part III turns to the pedagogical terrain Bare Death occupies. It examines the potential difficulties Black faculty and students confront when teaching and learning Fourth Amendment law. Taking seriously Jerome Culp’s call to locate the “me” in scholarly interventions, I describe my experiences teaching Constitutional Criminal Procedure during the COVID-19 pandemic and the nationwide protests against police violence. That moment rendered newly visible the structural conditions under which Black faculty teach and Black students learn the law. Those conditions include navigating a jurisprudence that exposes Black people to “premature death”; witnessing and encountering the racialized enforcement practices through which that death occurs; and occupying an institutional space that disciplines how faculty and students may contest those realities.

The pressures generated by these conditions are not reducible to the racial demographics of the classroom, though demographics certainly matter. They are built into what the classroom is--and is not--designed to be. The pedagogical burdens this Article describes arise from both who occupies legal education and from how legal education organizes authority, knowledge, and professional formation. To elaborate that point, Part III links the racial burdens it describes to a more general feature of legal education: namely, that Black students must learn to “think like a lawyer,” and Black faculty must teach students how to do so by “teaching like a law professor,” under conditions of anti-Blackness.

To substantiate that claim, I show how core doctrinal questions structuring first-year law school courses trade on anti-Blackness--inviting students to debate not only the intellectual capacity, agency, and social responsibility of Black people, but also whether and to what extent we should be permitted to move through social life without private or state violence. Part III puts this normalized pedagogical environment into sharp relief, foregrounds its racially constitutive effects, and connects it to a broader story about how racism operates as an “ordinary” and “ordinarilizing” social force, manifested in forms of violence that “can hardly be discerned.”

My critique of the law school environment joins longstanding efforts to expose the racial features of the law school curriculum and legal pedagogy, as well as more recent interventions that locate law schools among the institutional sites that produce and legitimize the very thing our courses claim merely to describe and study--a racialized carceral state. Part III concludes by considering the implications of my critique for the Criminal Procedure classroom and the field of Criminal Procedure more broadly. Here, I suggest that our field more robustly grapple with how ways of knowing produce and legitimize social arrangements--which is another way of saying: how epistemology produces sociology, and not just the other way around.

Part IV returns to the poem, now framed against the doctrinal and pedagogical backdrop that preceded it. The aim is not to fix the poem’s meaning, but to invite a contextualized second reading. That second reading will be informed by and attuned to the racial and doctrinal logics on which Fourth Amendment law rests; the phenomenon of “bare death” and the death-adjacent conditions of Black life that make bare death possible; the various forms of state power Black bodies juridically produce; and the pervasive ways in which Black people become socially intelligible through the subordinating--and often lethal--ways in which they are constitutionally policed.

The Article then turns to the conclusion. Here I reflect on the intellectual journey that produced the Article--a freewriting that became a poem, and a poem that became legal scholarship. I first consider what that trajectory reveals about the Criminal Procedure archive. I then explore how the field’s capacity to understand, confront, and navigate racial violence is constrained by the colorblind grammar of reasonableness that structures Fourth Amendment law.

The Epilogue extends and contextualizes this inquiry. Emmanuel Mauleón, my former student and now a colleague, reads the Article through the analytic, pedagogical, and affective frames it develops. His intervention deepens and unsettles my account by elaborating on the pedagogy of the Black body the Article names, describes, and performs. Together, these reflections press a final, unsettling question: whether one can be Black and teach “that”--or whether the act of teaching “that” both binds one to an archive that speaks through the very Black body it silences and subordinates, and disattends the “double consciousness” that life behind “the veil” demands.

The roadmapping I have just provided might lead one to conclude that the arguments the Article advances develop systematically. They do not. The arguments occasionally break form to follow the intellectual and political threads that shaped them. Such is the case here--breaking form to return to a collaboration and a set of concerns I have not been able to leave behind: that the racial logics animating Fourth Amendment law do not stop at the border of ““ordinary” criminal procedure. They travel, organizing vulnerability in adjacent domains.

More than a decade ago, Cheryl Harris and I wrote an article called Undocumented Criminal Procedure. Our aim was to show that racialized policing was not only a problem of “ordinary” law enforcement; it was a central feature of immigration enforcement as well.

From the outset, we resisted framing the racial dimensions of immigration enforcement as merely extralegal--as if the abuse began where law ended. Such a framing would have cast law as a boundary the state crossed, rather than as a framework that structured the very practices at issue. Instead, we traced the doctrinal pathways through which Fourth Amendment law authorizes and organizes Latine vulnerability to state violence. We named that problem for what it was: a form of racial inequality the Court has constitutionalized.

We referred to the relevant precedents as the “undocumented cases” because, at the time, they occupied an undocumented status within the criminal procedure archive: Law professors largely did not teach them as part of the Fourth Amendment canon. That curricular and pedagogical silence had epistemological consequences. Students were not exposed to the ways in which ““apparent Mexican ancestry”--people who “look” Latine--were subjected to repeated encounters with immigration officials, encounters that exposed them not only to surveillance, detentions, and physical violence, but also to death.

The moment we now inhabit--with Immigration and Customs Enforcement (ICE) openly relying on race in its enforcement practices--did not emerge ex nihilo. It flows from the racial logics embedded in those undocumented cases. For that reason, as we confront heightened Latine vulnerability to state violence today, the language of lawlessness should not exhaust our terms of engagement.

To be sure, some ICE tactics violate the Fourth Amendment. But that observation should not obscure a more unsettling truth: for people who are Latine, Fourth Amendment law is a site of existential violence. That violence does not arise only when agents act outside the law. It arises as well because they act through a legal inheritance capable of rendering “apparent Mexican ancestry” a presumptively illegal identity--detainable, disposable, and removable. As Jennifer Chacón has argued, Fourth Amendment law has long “greenlighted enforcement practices that rely on little more than racial profiling.” Rather than allow that “legal relic” to wither, the Court has, in its more recent engagement of the issue, “just reinvigorated it.”

The reach of the Fourth Amendment’s racialized constitutional grammar does not end with racialized outsiders. In January 2026, two U.S. citizens-- Renée Nicole Good and Alex Jeffrey Pretti, both white--were shot and killed by ICE officials. The government’s response was familiar: Their conduct caused their own deaths. They killed themselves.

That rationale did not originate with those killings. It was perfected through--and on--the bodies of Black people. Noting that genealogy matters. Race remains a part of the story when state violence claims white victims. This is so not only because the category “white” is a racialized one and thus what happens or does not happen to white people implicates race, but also because anti-Blackness has long furnished the juridical template through which the state learns how to kill with legal justification.

It is in that sense that Blackness possesses a distinct juridical power: the capacity to generate, refine, and delimit the scope of state authority. Which is another way of saying: the Black body is “jurisgenerative.” By jurisgenerative I mean “the productive, not merely the expressive, capacity of the Black body: its power to generate police-empowering law--racially subordinating law--that would not exist, or would exist in diminished form, absent the Black body as a juridical force.” I develop this argument at length elsewhere. The point I am stressing here is that some dimensions of that juridical power reaches beyond, without ever ceasing to target, the Black body. Blackness functions here as a structuralizing force: a site upon which doctrines of state authority, discretion, and immunity are forged, tested, and refined before traveling outward under the cover of neutrality.

The jurisgenerative work Blackness performs in that regard shapes how the state narrates and legally rationalizes violence against all bodies caught within its regimes of enforcement and punishment. When the state seeks to legitimize violence, it draws upon the justificatory logics first developed to sanction Black death and disposability. Because those logics were, in some sense, made for (and through the bodies of) Black people, they have less traction--and perform a different kind of racially constitutive work when deployed to justify the killing of white people, the people whose bodies were not supposed to experience that violence to begin with.

The point here, then, is not merely that Blackness marks the limits of protection. It is also that Blackness furnishes the legal grammar through which the state learns to make violence lawful in the first place.

I could begin my account of that grammar in conventional doctrinal terms. But doctrine alone cannot illuminate the space where legality, language, and loss collapse into one another.

That, more naturally, is the space of poetry.

[ . . . ]

I wish I could say that, as I end this intellectual journey--from a freewriting that became a poem, from a poem that became an Article--I know how to pedagogically manage the various dimensions of anti-Blackness I have described. I wish I could say that I know what to do, pedagogically speaking, when the Black bodies in the classroom meet the Black bodies in the archive.

But I do not. And so, as a prelude to beginning my Criminal Procedure class, I will continue to tell my students that I will pedagogically fail them. For to encounter Criminal Procedure as a Black person is potentially not merely to feel one’s flesh--a sensation the language of ““triggering” does not begin to capture--but to risk collapsing into it.

This is not to throw my hands in the air in the face of the being-black-and-teaching-that dynamics I have discussed. Nor is it to retreat from teaching the Criminal Procedure course. What I am saying is more difficult and more exacting: I do not know how to create a “safe” learning environment in a course whose archive helps produce and normalize the criminalization of Black people and the disposability of our lives.

Bare Death is, in part, a call for us to “bear death”--to bear witness to Black death and disposability; to bear witness to the anti-Blackness that is often not merely a motivation for doctrine, but the doctrine itself; and to bear witness to the role professors play in teaching students how to mobilize that doctrine.

That doctrinal literacy does not remain in the classroom. It travels outwards-- into courtrooms, police departments, and everyday encounters--carrying anti-Blackness forward as legal craft.

This returns us to the question that has haunted this project from the outset: Can you be Black and teach that? Perhaps the more unsettling question is whether you should.

Whatever one’s answer, there is pain in that endeavor. The pain of engaging a body of law that positions Black people as the problem; the pain of witnessing the constitutionalized disposability of Black life; the pain of reliving racial scripts without a language, or even a register, in which to manage them; the pain of inhabiting a body socially constructed to be self-incriminating, a body rendered available for pain, a body that was “asking for it,” to borrow the grotesque logics of sexual violence.

The pain of knowing what the Black body knows about the physical pain of physical force; the pain of being told that there is no pain or that you should get over it; the pain of teaching in a state of anticipatory mourning; and the pain of confronting, again and again, the knowing unknowingness of that pain, a fabricated racial illiteracy that places the racial pain beyond the juridical consciousness of Fourth Amendment law, beyond the pedagogical consciousness of the legal academy, and beyond the ethical consciousness of the legal profession.

Beyond articulation.

But the pain of being Black and teaching that is not only a response to effects of anti-Blackness saturating the doctrine. It is also the pain of pedagogical complicity--of sensing that one is directing, and participating in, what Paul Butler might describe as a “minstrel show”: instructing students to sing along to the sheet music of minstrel performance called Fourth Amendment law.

The pain includes the recognition that one is helping to stage the very logics that degrade, criminalize, and endanger Black life.

These are not incidental harms. They are constitutive features of what it means to teach this law in this body. Their cumulative force support Shaun Ossei-Owusu’s observation that, for Black people, engagement with legal doctrine can be “intellectually violent.”

The standard terms of doctrinal engagement demand a kind of epistemological self-betrayal from Black faculty and students alike: to argue against, minimize, or remain silent about what their own body already knows and teaches.

How, then, does one avoid becoming a central figure in a pedagogical scene in which anti-Blackness is organically bound up with what it means to “think like a lawyer”? How does one “teach like a law professor” in the Criminal Procedure context without teaching the very rules that make Black bodies the source of their own degradation--the rules that criminalize us, endanger us, kill us, and effectuate one’s own undoing?

How does one teach excessive force jurisprudence and not feel that death is not the worst of it, because one has already died before?

How does one enter the Criminal Procedure classroom--and leave it-- without knowing, always knowing, and feeling, that one is Black and teaching that?

These are not rhetorical questions. They are the conditions under which teaching in Black bodies takes place.

What remains is not resolution but reckoning. I do not have an answer that redeems the enterprise. What I have is Bare Death. That poem insists on bearing witness to what the law renders livable; refuses the comfort of ordinariness; names the violence that doctrine produces and settles into; and acknowledges that some forms of knowledge cannot be taught without cost.

If this Article does anything, let it mark that cost--and make clear that when Black life is organized around death and disposability, teaching the law that authorizes both is never neutral, never safe, and never just teaching.

Although I end here, the Article does not. Emmanuel Mauleón, my former student and now a colleague, takes up what remains, reading this Article from the inside of a pedagogical relationship that the Article attempts to name.

Elihu Root Professor of Law, NYU School of Law and Distinguished Research Professor of Law, UCLA School of Law.