Monday, July 23, 2018

An Unjust Burden

This past May, the Vera Institute released a report on the treatment of black Americans in the criminal justice system.  The report, written by primary author Prof. Elizabeth Hinton of Harvard University, is entitled An Unjust Burden:  The Disparate Treatment of Black Americans in the Criminal Justice System. No one is surprised at the over representation of black Americans in our criminal systems. 

The report "presents an overview of the ways in which America’s history of racism and oppression continues to manifest in the criminal justice system, and a summary of research demonstrating how the system perpetuates the disparate treatment of black people. The evidence presented here helps account for the hugely disproportionate impact of mass incarceration on millions of black people, their families, and their communities." 

The report traces the history of laws targeting black Americans as well as systemic bias that results in the disproportionate arrest of black men, in particular.  While only ten pages long, the report is packed with information that would serve as an excellent introduction to the effect of bias and deliberate discrimination.  A brief bibliography is included.

 

July 23, 2018 in Criminal Justice, justice systems, Margaret Drew, Race | Permalink | Comments (0)

Tuesday, May 29, 2018

Beyond Jim Crow: The Corruption of Freedom of Speech

Freedom of speech is the disguise behind which racism, misogyny and other forms of hate  flourish.  Without regard for professional and educational standards, businesses and universities refuse to intervene when speech is used to oppress.  What may be permitted to say in public discourse has its limitations in workplace and educational institutions.  But leadership in both arenas often refuse to confront hate speech and are supported in the workplace by employment cases that historically have tolerated high levels of hate before declaring an environment a hostile one. Flawed law does not justify racism and other hate in the workplace.

Now the NFL is flipping freedom of speech to block peaceful protest.  Players who wish to engage in silent protest during the national anthem must do so off the field or risk being fined.  While technically it is the teams that will be fined, owners are permitted to pass the penalties through to protesting players.

Freedom of speech gives every appearance of shapeshifting to accommodate the bullies.  There is little in the way of institutional leadership protecting vulnerable populations locally or nationally.    Those players who are forced to endure shocking levels of racism before a hostile work environment is declared, cannot themselves make peaceful, silent declarations against that racism without risking penalty.  This hypocrisy goes beyond Jim Crow and emits the scent of slavery. 

It would be self-defeating economically, but powerful demonstratively, if every black football player stayed in the locker rooms and refused to emerge until the rule is overturned.  But that would once again place the burden of response on the victimized.  It is the white players and fans who need to take a stand against racism and for freedom of speech. 

Permitting through silence the manipulation of freedom of speech to accommodate the haters places our democracy in greater jeopardy and our silence makes us complicit. 

May 29, 2018 in Margaret Drew, Race | Permalink | Comments (0)

Thursday, March 29, 2018

Black and Native Males and Their Downward Economic Trajectory

The Equality of Opportunity Project has issued results of a study that followed 20 million children and their parents to track wealth acquisition opportunities based upon race.  The study showed a significant gap in income between similarly situated white and black men.  A less significant gap was noted between white and black women. But black men have no advantage, and indeed are at a disadvantage, in reaching or maintaining economic stability in wealthier status levels when compared with white men with the same or similar situations.  The data is disturbing.

"Black and American Indian children have substantially lower rates of upward mobility than the other racial groups. For example, black children born to parents in the bottom household income quintile have a 2.5% chance of rising to the top quintile of household income, compared with 10.6% for whites."  This contrasts with Asian Americans and caucasians, who have a much higher income level. 

Even black men who grow up in economically advantaged households have few assurances of retaining economic advantages.   While white males are five times more likely to remain in the economically advantaged  class in which they grew up, black and native men are as likely to drop to the bottom economic levels as they are to remain in the higher level in which they grew up.

 

 

March 29, 2018 in Economics, Margaret Drew, Race | Permalink | Comments (0)

Sunday, March 11, 2018

Race, Redemption and Restoration - A Significant Conversation

by Margaret Drew

This past Friday I was privileged to participate in a conversation on Race, Redemption and Restoration sponsored by the Public Welfare Foundation of Washington, D.C.  The conversation brought together a nationwide group of those working with incarcerated and formerly incarcerated individuals.  I was humbled to be in a room filled with the formerly incarcerated and those who support them.  As a white woman, I was there to learn.  And I dd.  The discussions gave me a broader perspective on the historical background of mass incarceration, which has been effective through a combination of voter suppression strategies, "war on drugs" and other tactics to enhance black oppression and the suppression of everyone of color.  

The conversation was honest and magnificent.  Many in communities are doing amazing work to support the formerly incarcerated, including working to change laws and policies that aid unjust arrests and sentencing; developing housing, and creating communities that foster dignity. Future posts will focus on some of the organizations providing innovative and effective supports.

I wish I could better capture the conversation's tone, as well as the caring and brilliance of the day.  But for now let me restate part of the discussion and something that is obvious.  The most effective action that a white person can take is to inform and influence other whites.  Tempering the resistance to creating racial equity is something that whites are particularly well poised to do.  How to transform racist views is something whites must learn.   The oppressed carry enough burdens.    Building white empathy is insufficient because creating empathy alone does not result in change.  White people have to figure this out and carry the burden of the conversation.   It is not up to the oppressed to teach  others how to change.

March 11, 2018 in Incarcerated, Margaret Drew, Race | Permalink | Comments (0)

Sunday, February 11, 2018

Race, Redemption and Restoration

The Public Welfare Foundation will hold a day-long forum:  A Conversation on Race, Redemption and Restoration.  The forum will be held on March 9, 2018 in Washington, D.C. 

The invitation states "We will dive into candid conversations about: advancing racial justice, particularly within the youth and criminal justice field, the steep barriers to opportunities facing individuals who transition back to communities from the justice system; and necessary strategies to restore communities experiencing crime, violence, and lingering impacts of the criminal justice system. "

While the conference is by invitation only, it may possible to secure admission by contacting the Foundation directly to explore availability.

February 11, 2018 in Margaret Drew, Poor, Prisons, Race, social justice | Permalink | Comments (0)

Thursday, January 25, 2018

Helping Incarcerated Women and Girls

A study done by the Vera Institute found that women in jails are one of the fastest growing segments of the prison population.  And nearly 80% of women are mothers.  Women are an afterthought in the discussion of mass incarceration.  Little attention is given to the impact on families when a mother goes to jail.  And little is done to help families stay connected when mothers are incarcerated.  In a nationwide move, sheriffs and other jailers are replacing live child-mother visits with Skype visits.  Nothing replaces touch between parents and children.  Particularly young children are less likely to bond with a virtual parent.  And the incarcerated women are expected to pay for the Skype visits, making even virtual contact out of reach for many.

There are a myriad of discriminatory problems faced by women and girls in prison.  One other is the failure to provide menstrual products to them.  Some states charge for the products, and those who do not often distribute an average of 2.5 pads per month.

The National Council for Incarcerated and Formerly Incarcerated Women and Girls works to address the particular barriers that females face during and after incarceration.   From disparities in sentencing, to assisting with re-entry and healing, the National Council provides tremendous community based resources for the recently incarcerated and those currently incarcerated.  I recommend a visit to the Council's website for an introduction to the wide variety of work the Council does, as well as their sister organizations.

 

January 25, 2018 in Margaret Drew, Prisons, Race | Permalink | Comments (0)

Thursday, October 12, 2017

False Equivalency and Bias

Those of us litigating intimate partner abuse cases have been privy to the tactic of false equivalencies as a means of protecting male privilege.  One particularly vexing case I tried resulted in extensive findings of the husband's abuse of the wife.  The judge found also that the wife had been inhospitable to her mother-in-law.  The latter finding was justification for the judge to ignore the abuse in fashioning remedies.  Consequently, the husband's abusive behavior remained unconsidered when the judge gave unfettered access to the children.  This is not an isolated case.  In both petitions for civil protection orders and family law decisions, courts fail to protect partners and children if the abused partner failed to behave in the perfect, mythical manner embedded in the judge's stereotypes.  In these cases, false equivalency is used to protect white male privilege.  The faulty premise can also be used as a sword.

The same discriminatory technique plays out in race cases, as well.  A particularly shocking example happened this week in Virginia.  A magistrate issued a warrant for DeAndre Harris, a black man who had been viciously beaten by white supremacists following a  "Unite the Right" rally.  Mr. Harris suffered spinal injuries and a head wound requiring ten stitches.  Then a man who claims to be an attorney and a "Southern Nationalist" filed a police report and then a request for a warrant for the arrest of Mr. Harris alleges "unlawful wounding", a felony.  In Virginia a magistrate may issue the warrant, even where, as in this case, a police investigation is complete.   As in civil protection order hearings where abusers file retaliatory petitions for protection orders, the goal is to discredit the victim.  An additional benefit is the victim's reluctance to appear in court given that the victim could have adverse consequences.  Dropping the cross complaints is often the result, leaving the victim unprotected and reluctant to seek future help. 

My sense is that this is the goal of the white supremacist.  While three men have been arrested for beating Mr. Harris, cross charges will adversely impact any jury.  Confusion and reluctance to convict will result.

This is the time for courageous prosecutors and police to step up and request dismissal of the charges for lack of evidence and because the allegations are retaliatory.  

 

 

October 12, 2017 in Gender Oppression, Gender Violence, Margaret Drew, Race | Permalink | Comments (0)

Thursday, September 14, 2017

The Senate Denounces Hate Groups

Earlier this week, the Senate unanimously passed a joint resolution condemning hate groups.  In an amazing show of bi-partisan collaboration, the Senate expressed its sorrow for those who were injured or killed at Charlottesville.  The resolution, submitted by three Republican and three Democratic senators, calls upon the President and his cabinet to use all available resources to fight hate groups, including White supremicists, Neo-Nazis, and the Ku Klux Klan.  The resolution has its origins in the Charlottesville terror and acknowledges the loss of life, as well as other injuries inflicted to both police and civilians. 

The President's failure to condemn the racist attacks in Charlottesville offended the Senators as much as did the events themselves.   

The resolution may be read here

September 14, 2017 in Margaret Drew, Race | Permalink | Comments (0)

Tuesday, September 5, 2017

News From Indian Country

A federal court judge ruled last week that the descendants of former slaves of Cherokee Indians have the legal right to membership in the Cherokee Nation.   At the time of the Civil War, some Cherokees kept slaves.  When the Civil War ended, the Cherokee Nation signed a Treaty with the United States agreeing that "“never here-after shall either slavery or involuntary
servitude exist in their nation” and “all freedmen who have been liberated by voluntary act of their former owners or by law, as well as all free colored persons who were in the country at the
commencement of the rebellion, and are now residents therein, or who may return within six months, and their descendants, shall have all the rights of native Cherokees . . . .” 

Trouble began when the Cherokee Nation changed its criteria for eligibility in 2006.   The criteria was amended to recognize blood only.  This precluded descendants of freed slaves from claiming membership in the tribe.  This change disenfranchised approximately 2800 descendants of freed slaves.  In rendering its decision, the court noted: Although it is a grievous axiom of American history that the Cherokee Nation’s narrative is steeped in sorrow as a result of United States governmental policies that marginalized Native American Indians and removed them from their lands, it is, perhaps, lesser known that both nations’ chronicles share the shameful taint of African slavery."

The federal court decision clarifies that the tribe must treat tribal members equally whether that membership comes by blood or freed slave descendency.   The tribe has accepted the outcome.  Cherokee Nation's Attorney General Tom Hembree said: 

"The Cherokee Nation respects the rule of law, and yesterday we began accepting and processing citizenship applications from Freedmen descendants," Hembree said. "While the U.S. District Court ruled against the Cherokee Nation, I do not see it as a defeat. As the Attorney General, I see this as an opportunity to resolve the Freedmen citizenship issue and allow the Cherokee Nation to move beyond this dispute." 

 

September 5, 2017 in Margaret Drew, Native American, Race | Permalink | Comments (0)

Thursday, August 24, 2017

Allies Along The Way

By Prof. Justine Dunlap

In the land of “who’da thunk it,” I find myself voluntarily associating with Arnold Schwarzenegger, Mitt Romney, and Charles Image1 Krauthammer. I hereby claim them as allies who are willing to stand against racism, anti-Semitism, and general moral vacuousness.

I recently gave a nod to tennis great Andy Murray as an ally in securing the recognition of women’s accomplishments in tennis---successes that should have been hard to ignore but had been overlooked nonetheless. The Murray shout-out was not much of a reach. However, it is important to find allies in the cause of equity anywhere we can, even if it is a stretch.

In this down-the-rabbit-hole time we live in, Schwarzenegger, Romney, and Krauthammer have all spoken out in different fora against Donald Trump’s post-Charlottesville truck with racists and bigots of all stripes. Although the President has been giving offense for a very long time, his recent assertions, first made after the Charlottesville rally and reiterated at his Phoenix campaign speech Tuesday night, have been both more egregious and led to wider condemnation.

Romney, in a Facebook post, declared that Trump’s words “caused racists to rejoice, minorities to weep, and the vast heart of America to mourn."   I mourn with you, Mitt.

Krauthammer made his views known on a Fox news panel on the same day that President Trump engaged with reporters at an infrastructure week event and made painfully plain his real views on the Charlottesville violence. No longer were the teleprompter-read words of his aides able to prevail. Trump’s comments were a “moral disgrace,” Krauthammer declared, not mincing words. Well said, Charles.

Schwarzenegger gets the prize with the longest and most personal appeal against the most recent and offensive presidential sentiments. In recorded remarks, he spoke directly to different audiences, including neo-nazis and President Trump. His comments to Trump showcased a bit of their rivalry over, inter alia, The Apprentice show ratings, as Schwarzenegger “helped” the President see how easy it is to script a speech that does not equivocate in its condemnation of hate. Schwarzenegger’s comments to neo-nazis were especially powerful, as he recounted growing up on post-war Austria. Go, Arnold, go.

Other conservatives have spoken out, too.  Senators Marco Rubio, John McCain, and, recently, Senator Bob Corker--a Trump friend—come to mind. But it is fair to say that many more have remained all too silent; no danger of running out of Profiles in Courage awards this month.

But I get it, conservatives. Commenting on everything would be a fulltime job and, after all, you do want to advance your legislative agenda.  But some things simply demand comment and condemnation. The President’s racially loaded remarks and—to my lights—his even worse indulging of the racists and anti-semites fall firmly in the category.

“In the end, we will remember not the words of our enemies, but the silence of our friends,” said Martin Luther King, Jr.   Schwarzenegger, Romney, and Krauthammer fit into neither category for me, but I am glad they spoke out and did so forcefully. As white supremacists and neo-nazis feel emboldened in the current climate, more and more people across our wide and divided political spectrum must denounce their execrable views.

August 24, 2017 in Discrimination, Justine Dunlap, Race, social justice | Permalink | Comments (0)

Monday, August 7, 2017

The Continuing Campaign to Make America White Again

Two opinion pieces were published this week that underscore the foundation of racism upon which the Trump Administration policies are built.  Both pieces follow the "leak" this week of a memo outlining the Department of Justice's plans to pursue dismantling of affirmative actions programs.  Both pieces point out the absurdity of portraying US whites as victims.   Prof. Carol Anderson , is the author of White Rage, the Unspoken Truth of Our Racial Divide. She reminds us in her NYT opinion, white men benefit from flexible undergraduate admissions programs.  If objective scores and grades were the predominant selection method, white males would be a distinct minority on campus.  Flexible admissions policies that consider gender as a bona fide admissions factor, benefit white males as much as anyone else.  But it is race of which whites most complain.

 In his New Yorker piece, Jelani Cobb focuses on the heart of racist thinking.  Whites view their economic status comparatively.  One African American succeeding financially is an affront to less affluent whites.  The underlying assumption that whites deserve to be successful in every way before any person of color "succeeds", (however that is defined), is the source of white resentment.  Whiteness as the ideal standard is what Trump and many followers look to preserve. 

Mr. Trump may not be a seasoned politician.  He may be unable to deliver on his major campaign promises. But he knows how to stoke his base. Through feeding anger and irrationality, Mr. Trump has begun his re-election campaign. 

 

August 7, 2017 in Books and articles, Discrimination, Margaret Drew, Race | Permalink | Comments (0)

Monday, November 14, 2016

Advocacy Resurgence

Every new president flounders a bit during the first two years.  This is not dissimilar to what most of us experience in new positions.  The more complex the duties, the longer the adjustment.  Some argue that we should give breathing room to Mr. Trump as he assumes the presidency.  There may not be time to do so as he pledges to move quickly on issues such as health care and immigration. We will need to judge his performance when we see how and whether he actually attempts to implement the agenda promoted during his campaign.  With a Republican congress, whose leaders are now ready to please Trump, some actions could be swift. 

What we do not have to wait to see is the unleashing of the post-election vitriol by some of the Trump supporters. 

Schools are reporting a rise in racist incidents.

As reported here earlier, the damage has been done. Disturbing reports are surfacing and many involve young students.  One woman reports an African American female student being told by her white high school peers that "blacks will be the first ones sent back."  While the statement is absurd, the threat is not. A spike in racial incidents has been reported on college campuses.

Middle and high school age students report misogynistic remarks directed at Secretary Clinton on social media.  One young female student reported boys "Trumping" (grabbing) girls.

President Clinton influenced a generation of young men to believe that anything short of  intercourse is not sex. That position became the mantra of many teens.  President-elect Trump has taken anti-female actions to a new level. Mr. Trump's admitted sexual assaults demonstrate to young boys that similar assaults on their female peers are acceptable, hijacking any hope of ending misogyny.  The disservice to young men is layered.  Living in hate is an uncomfortable and unproductive place to be. Young men are particularly vulnerable to influences promoting their power and prowess. Those young men, however, are now more likely to end up on a sex offender registry for engaging in the very same actions normalized by their president.  

Men and women have taken to protesting in numbers unheard of in recent political history.   There is a new population of human rights advocates willing to take to the streets.  Our challenge is to support those who are willing to publicly voice their opposition and keep the human rights discussion in play.

 

 

November 14, 2016 in Gender Violence, Margaret Drew, Race | Permalink | Comments (0)

Wednesday, September 28, 2016

UN Recommends Reparations for US Racial Discrimination

The Working Group of Experts on People of African Descent was established in 2002 by the Commission on Human Rights. Image1 Among the Group's 2008 charges were to study the problems of racial discrimination faced by people of African descent living in the diaspora and, to that end, gather all relevant information from Governments, non-governmental organizations and other relevant sources.   The means of gathering relevant information include holding  public meetings.  The Group is instructed to  propose measures to ensure full and effective access to the justice system by people of African descent.  

The findngs document a US history of racial terrorism.  Among the working group's findings are: "In particular, the legacy of colonial history, enslavement, racial subordination and segregation, racial terrorism and racial inequality in the United States remains a serious challenge, as there has been no real commitment to reparations and to truth and reconciliation for people of African descent," the report stated. "Contemporary police killings and the trauma that they create are reminiscent of the past racial terror of lynching."

Recognizing police killing of unarmed black men as having created a crisis, the Working Group reports that there is a sense of urgency to resolve this human rights crisis. 

The Working Group made many suggestions that would go a long way in remedying institutional racism.  Among the recommendations are:

                    Immediately abolish police in schools.

                    Police misconduct investigations to be conducted by independent investigators.

                    Misdemeanor laws that result in the over-charging and over-incarceration of people of color be abolished.  One example given is South Carolina's law making a school disturbance a misdemeanor.

                    That younger prisoners be separated from adults and male prisoners from female ones.

The Group addressed reparations as one remedy.  From apology and debt cancellation to educational and healthcare opportunities, the Group addressed steps that are critical to addressing the consequences of societal and institutional racism.  

The problem with reparations is that in order to arrive at a place where Americans endorse them, the place where the culture is ready to recognize the harm must first be reached.  We are a long way from there.  Achieving recognition of the state's contributions to extreme suffering forced upon African Americans is not hopeless thanks to the new wave of activism, including Black Lives Matter.  However, President Obama' election unleased racism across the country.  Undermining the power of the first black president became the goal of those in the political and social systems.  The fact that any new social legislation passed over the past eight years is nothing short of a miracle.  The racism obvious in the current presidential election politics provides a vehicle for individuals to act on their persistent white supremacy beliefs.  We will find out soon if political racism can be defeated in our upcoming elections. 

But as the working group found, racial terrorism has created a crisis in America.  Perhaps this crisis will collide with new wave activism and create a real opportunity for the country to admit the heinousness of the aftermath of slavery.    One day it may be that a series of crisis or one horrendous crisis will result in a serious discussion on how to repair the damage we have done.  

The findings are worth a read in their entirety.  The Group brings to its report the clarity that often comes from outsiders looking in.  The diagnoses of the problems is accurate and the suggested remedies thoughtful. 

          

 

September 28, 2016 in Marriage Equality, Race, United Nations | Permalink | Comments (0)

Sunday, September 25, 2016

The Transformation of Michelle Alexander: A Woman of Spirit

Image1Earlier this year, Michelle Alexander spoke at Union Theological Seminary as a Woman of Spirit.   Now the newly resigned Ohio State law professor and author of The New Jim Crow: Mass Incarceration in the Age of Colorblindness is surrendering her legal gown for a theological one as she returns to Union Theological as a visiting professor and student.  Prof. Alexander has been drawn to the study of the divine for some time.  In 2013, she spoke at Yale Divinity School addressing mass incarceration but incorporating values of forgiveness and redemption.  At that talk Prof. Alexander referenced the "spirit whispering in my ear".

Finding law insufficient to the task of creating a culture where each and every human being is valued, Prof. Alexander said "Without a moral or spiritual awakening, we will forever remain trapped in political games fueled by fear, greed and the hunger for power." 

"This is not simply a legal problem, or a political problem, or a policy problem.  At its core, America's journey from slavery to Jim Crow to mass incarceration raises profound moral and spiritual questions about who we are, individually and collectively, who we aim to become and what we are able to do now. "

Ms. Alexander joins the call of other spiritual leaders who recognize America's crisis as a spiritual one.     All indications are that we can look forward to Ms. Alexander's transformation to a spiritual scholar to be as profound as her legal  commentary.  She shared her vision of a new world: "I would like to imagine that a wide range of people of faith and conscience who sing songs from different keys may be able to join in a common chorus that shakes the foundations of our unjust political, legal and economic systems, and ushers in a new America." 

To read more, see the Union Theological press release and Paul Caron's report on Tax Prof Blog.

 

September 25, 2016 in Margaret Drew, Race, social justice | Permalink | Comments (0)

Sunday, September 4, 2016

The Election Countdown: Update on SCOTUS and Voting Restriction Cases

Earlier this blog reported that several federal courts had struck down voting law provisions that attempted to restrict voting.  Two of the states involved were North Carolina and Ohio.  This week the US Supreme Court refused to hear an appeal by North Carolina that would permit that state to enforce its provision that would require voters to have a government issued id in order to exercise voting rights. 

Ohio Democrats filed an emergency appeal seeking the court's order that Ohio's "Golden Week" be reinstated. As summarized by SCOTUS Blog's Amy Howe

"The state implemented Golden Week in the wake of the 2004 presidential elections, when many voters encountered long lines at the polls that resulted in waits of up to twelve hours to vote. Ohio Democrats say that Golden Week “made a major contribution in alleviating congested voting lines and encouraging turnout” – especially for African Americans, who may face more challenges, because of constraints on their time and resources, in voting on Election Day itself."

Golden week was instituted following the 2004 election when voters had to wait in lines often up to 12 hours to vote.  The delays had a disparate impact on African Americans, who constitute a large percentage of the population of the bell-weather Hamilton County. 

Last Friday, Justice Kagan asked the State of Ohio to respond to the Democrats' emergency appeal by this Thursday, September 8. 

 

 

September 4, 2016 in Margaret Drew, Race, Voting | Permalink | Comments (0)

Sunday, August 7, 2016

While You Were Away... Federal Human Rights Cases

July and August saw several states’ voting restrictions overturned.  The voter ID laws, which would have required voters to produce photo identification prior to voting, were struck down.  North Dakota’s law was the most recent, but other states, including Wisconsin, Kansas and Texas saw portions of their voting laws struck as discriminating against people of color.   Earlier, Ohio passed legislation that eliminated “Golden Week” the voters’ rights to register and vote at the same location.  Ohio has a history of attempts to limit voting by minorities and others who tend to favor the Democratic Party.   In May, a federal court declared that the legislation violates the Voting Rights Act as well as the 14th Amendment. 

A different federal court (4th Circuit) declared a North Carolina Voter ID law unconstitutional on several grounds.  Like Ohio, North Carolina had eliminated same day registration and voting. But NC also prohibited out of precinct voting, as well as early voting.  Both of these restrictions were overturned as well.  The court found that the provisions “target African-Americans with almost surgical precision.” The court noted that the legislation addressed fictional problems.  

In what was a surprise to many, the Supreme Court stopped implementation of a federal appeals court order that would have blocked the Virginia law requiring students to use the bathroom of the sex assigned at birth and not in accordance with their gender identity.  The case is Gloucester County School Board v. GG.   The surprise was Justice Breyer’s vote to grant the stay pending filing and decision on a petition for cert.  He described this action as a “courtesy”.  (And that means?)  We can hope that the Justice promotes this issue being fully briefed in order to settle critical issues of gender identity, knowing that a split court will leave the lower court decision intact.  Assuming the application for cert is granted, this case will test the limits of Justice Kennedy’s empathy toward the sexually diverse.  Perhaps Justice Kennedy will extend his animus-dignity analysis to this minority that has far fewer champions than do gays and lesbians.

August 7, 2016 in Margaret Drew, Race, Voting | Permalink | Comments (0)

Sunday, June 26, 2016

Fisher Helps Promote U.S. Treaty Obligations

 by Connie de la Vega

Image1The U.S. Supreme Court upheld the University of Texas’ admission program that considers race as one of seven factors in the second part of its undergraduate admissions’ system.  This blog follows one covering the majority opinion.  That blog is available here.

The majority opinion by Justice Kennedy, which was joined by Justices Ginsburg, Breyer and Sotomayor did not raise the applicable treaty and international law that was raised in the amicus brief of Human Rights Advocates, the Poverty & Race Research Action Council, the Advocates for Human Rights, the University of Minnesota Human Rights Center, and the US Human Rights Network.  This blog will address how the treaty and international law is applicable to the case and how it related to the majority opinion.

As Amici noted, international law and opinion have informed the law of the United States since the adoption of the Declaration of Independence.  The Founders were greatly influenced by international legal and social thought, and throughout the history of the United States, courts have referred to international standards when considering the constitutionality of certain practices.

In this case, holistic consideration of race in university admission decisions is consistent with the United States’ treaty obligations as well as international practice, which makes the policy all the more compelling.  Indeed, two treaty review bodies (the HRC and CERD) urged the United States to undertake special and remedial measures to eradicate de facto discrimination in schools.  Other independent international law experts have counseled the United States to do the same.  The European Court of Justice and the national courts of other countries have also upheld affirmative action measures in relation to addressing racial disparities in higher education.  International treaties and practice support the University of Texas’s approach to admissions and the international obligations should be considered when assessing the process' validity under the Fourteenth Amendment.

The United States (U.S.) ratified the Convention on the Elimination of All Forms of Racial Discrimination (CERD) in 1994.  CERD requires State Parties to take affirmative steps to achieve the goals of eliminating racial discrimination.  The special measures taken for the purpose of securing advancement of racial or ethnic groups are not deemed racial discrimination under Article 1(4) and indeed are mandated under Article 2(2).  Under General Recommendation No. 32, the laws or policies to address the situation of disfavored groups should be used to address both de jure and de facto discrimination.  In other words Parties are required to address not only intentional discrimination but discriminatory effects as well.  (¶¶ 14 and 22.)

The CERD Committee has raised the importance of special measures in its review of countries’ compliance with the treaty, particularly in the field of education.  The U.S.’ policies on education have been the subject of concern for the Committee.  While it cited Grutter as a positive step in addressing inequality in education in its 2007 review of the United States 6th periodic report, in its Concluding Observations in 2008, the Committee observed that the U. S. had not done enough to enact special measures to eradicate de facto discrimination in schools.  Paragraph 17 of the Concluding Observations specifically framed this issue in the context of the “strict scrutiny” standards under the United States Constitution.  In its Concluding Observations of the U.S.’ 7th-9th reports issued in 2014, the Committee reiterated its previous recommendations that the U.S. adopt and strengthen the use of special measures.

The   U.S. ratified the International Covenant on Civil and Political Rights (ICCPR) in 1992.  In its 2006 review of the United States, the Human Rights Committee that oversees compliance with the ICCPR expressed concern over de facto racial discrimination in its public schools and reminded the U.S.  of its obligations under articles 2 and 26 to guarantee effective protection against practices with discriminatory effects.  In its report to the Human Rights Committee in 2011, the U.S. State Department acknowledged that special measures in higher education serve to uphold the “equal and inalienable rights” in the ICCPR.

The University of Texas argued throughout both Fisher cases that it seeks to admit a “critical mass” of minority students to its undergraduate programs through a holistic, individualized admissions process.  After conducting studies to assess whether the University was obtaining the educational benefits of diversity that result from a critical mass of underrepresented minority students, it implemented an admission program that would consider race as one of the many factors in making admissions decisions.  Amici argued that this program complied with CERD’s requirements that special measures be “appropriate to the situation to be remedied, be legitimate … [and] respect the principles of fairness and proportionality” as defined in General Recommendation No. 32, ¶ 16.

By upholding the University of Texas’ admissions program, the U.S. Supreme Court’s decision is in compliance with the U.S.’ obligations under both treaties as well as the practice of other jurisdictions such as the European Court of Justice and legal decisions and laws in countries such as Brazil, South Africa, India, Canada, New Zealand, and Australia.  While the focus of its decisions on this topic have been on achieving diversity,  and not necessarily achieving equality as required by the treaties, Fisher helps to promote the U.S.’ obligations under two treaties to which it is a party.

June 26, 2016 in CERD, Education, Race | Permalink | Comments (0)

Thursday, June 23, 2016

Breaking SCOTUS News: Race Based Admissions; Immigration Policy; and Tribal Jurisdiction

In a 4-3 decision (Kagan, J. not voting), the Court ruled that the University of Texas race-based admission policy is lawful within the parameters of equal protection.  Here is link to the Court's opinion.

By a 4-4 vote, the court let stand a lower court decision that President Obama lacked the authority to extend immigration protections. The lower court injunction against implementation of the Presidential orders stands. Here is the per curium decision.

Also by 4-4 vote, the Court left standing multiple lower court decisions affirming the authority of Tribal Courts to bring civil actions against non-tribal individuals and entities. The per curium decision may be viewed here.

Watch for posts analyzing these decisions in the human rights framework.

 

 

OCT

June 23, 2016 in Immigrants, Race | Permalink | Comments (0)

Tuesday, January 26, 2016

University of Cincinnati Settles Post-Ferguson Killing

In July, a University of Cincinnati Police Officer shot Samuel DuBose to death.  Mr. DuBose Image1was black and he was unarmed.  The white officer pulled Mr. DuBose over for an automobile violation (no front license plate) and the shooting was filmed on the officer's body camera.  At the time that the killing became known, the University, in not its finest hour, cancelled classes and closed the campus.  Whatever anticipated demonstrations or riots the school was anticipating never happened.  What did happen was that Officer Ray Tensing was arrested and is waiting his trial for murder. 

Despite its initial overreaction, the University President, Santa Ono, Image1stepped up in negotiations with Mr. DuBose's family.   President Ono has generally been considered a vibrant and effective leader.  On Martin Luther King Day, as a result of settlement negotiations, he obligated the University to pay $4.85 million to Mr. DuBose's family.  Settlement was reached after only two days of negotiations.  While the University did not admit liability, the School will apologize to the family as part of  the agreement. "Dr. Ono said the university felt a “civic responsibility” to go beyond the kind of cash settlement customary in police-involved deaths."  The President went on to say that he wanted to be clear that the University cares not only about the DuBose family but about peace in the City, as well.  It was one of Mr. DuBose's daughter, Raegan Brooks, who discussed the pain of the experience, including the negotiations that at times caused emotional disturbance of what felt like putting a price on her father's life.  She also spoke of her prior intentions to attend UC, plans that changed after her father's death. 

Since the killing, the University has established a community advisory council on which a family member of Mr. DuBose will sit.

 

 

January 26, 2016 in Margaret Drew, Race | Permalink | Comments (0)

Sunday, January 17, 2016

Martin Luther King Still Leading: From Civil to Human Rights

As we observe Martin Luther King Day, one reflection is on the enormous influence that Dr. King has had over decades of activists.  The Black Lives Matter movement has extended, as well as incorporated, techniques employed by Dr. King.  Image1

For those whose youth was spent in political protests, followed by a comparatively passive period, the Black Lives Matter movement is heartening.  Not only has effective advocacy been missing from the landscape in any widespread sense since the 1980's, at times Dr. King's techniques were considered outdated.  The Black Lives Matter movement has proved those criticisms faulty.  Black Lives Matter sparked national and international conversation.  Protests with masked students holding signs reading "I can't breathe" and hundreds of young protesters marching with hands in the air were dramatic and effective.  Microagressions and  implicit bias are now discussed in a variety of settings and populations.  There is a test for implicit bias on Harvard's website.  Dr. King's leadership resulted in extraordinary civil rights accomplishments that have not been fully realized.  Black Lives Matter has transformed the civil rights movement to a  human rights movement in its continued search for dignity in both strategy and result.

January 17, 2016 in Margaret Drew, Race | Permalink | Comments (0)