Wednesday, June 29, 2016
In the wake of the mass shooting in Orlando, former U.S. Secretary of State and presumptive Democratic presidential nominee Hillary Clinton delivered a speech on national security. In Cleveland, Ohio, she spoke of the attack on the Pulse nightclub and about preventing similar tragedies in the future through gun control and enhanced counter-terrorism programs.
Inflammatory anti-Muslim rhetoric and threatening to ban the families and friends of Muslim Americans as well as millions of Muslim business people and tourists from entering our country hurts the vast majority of Muslims who love freedom and hate terror.
So does saying that we have to start special surveillance on our fellow Americans because of their religion. It’s no coincidence that hate crimes against American Muslims and mosques have tripled after Paris and San Bernardino. That’s wrong. And it’s also dangerous. It plays right into the terrorists’ hands.
Clinton's remarks sparked some questions, including did anti-Muslim hate crimes actually triple last year? And, just how bad is anti-Muslim violence in the U.S.?
A recent research study from Georgetown University considered this very inquiry. The study, When Islamophobia Turns Violent: The 2016 U.S. Presidential Elections, examined anti-Muslim violence domestically during two distinct but overlapping time periods. First, it studied acts or threats of violence against Muslim individuals and institutions during the course of 2015. Second, it looked at levels of violence during this presidential election cycle. Third, it tracked Islamophobic statements by those running for the White House.
The study ultimately found a positive relationship, as noted by Clinton, between the verbal and physical attacks against the minority faith community.
Levels of anti-Muslim violence did in fact triple from last October to November when the Paris terrorist attacks occurred and Islamophobic political rhetoric – led by presumptive Republic presidential nominee Donald Trump - ensued. Whereas the study documented ten (10) incidents in October, there were thirty-five (35) such events in November.
What Clinton did not mention, however, is that anti-Muslim violence multiplied five (5) fold last December in the aftermath of the mass shooting in San Bernardino coupled with Mr. Trump’s publicized ban against Muslim immigration. Ostensibly, the numbers dipped back to October levels in January (11), February (13) and March (7). A closer look reveals, however, that even during these latter months, anti-Muslim violence remained 3 to 5 times higher than pre-election cycle levels. In fact, there were only two (2) such attacks in March 2015, when Texan Senator Ted Cruz first announced his bid for the White House.
Significantly, anti-Muslim violence spiked after terrorist attacks where a hostile political climate was exacerbated by inflammatory political rhetoric by Mr. Trump. Contrary to popular perception, the American Muslim community has not always suffered a violent backlash after a real or perceived act of terror.
Representative is American response to the mass shooting in Chattanooga, Tennessee, last July. On July 16th, a young American Muslim with a history of mental illness perpetrated a mass shooting, killing five victims. Yet, the anti-Muslim backlash was minimal, as documented by the Georgetown study.
Why? The decision by the local Muslim community to cancel Eid celebrations marking the end of the fasting month of Ramadan, scheduled for that day, may have helped to deflect potential retaliatory attacks. Rather than celebrating Eid, Chattanooga Muslims joined the larger community in their collective grieving. To appreciate the magnitude of this decision, imagine canceling Christmas or Hanukkah.
Additionally, following the Chattanooga shooting, President Obama publicaly characterized the shooter as a “lone gunman” as opposed to a member of a terrorist cell connected to a larger criminal network. He made no reference to “radical Islam” or “jihadists.” Nor did he cast the Islamic faith or Muslim community in a negative light.
Arguably, the lack of backlash against Chattanooga Muslims speaks to the significant role that our leaders play in remedying, or stoking, a general climate of fear and hostility. Our political leaders are potentially capable of contributing to an atmosphere of hostility toward American Muslims through the language that they use and the policies they propagate.
We need look no further than the current U.S. presidential election cycle to fact-check that claim.
Engy Abdelkader is a faculty member at Georgetown's Edmund A. Walsh School of Foreign Service where she is a Senior Research Fellow with the Bridge Initiative, a research project on Islamophobia. The author of "When Islamophobia Turns Violent: The 2016 U.S. Presidential Elections," she teaches courses on national security and civil liberties in the post 9/11 era and international terrorism and human rights.
Friday, June 24, 2016
Guest Post from Professor Vinay Harpalani
Thursday’s decision in Fisher v. Texas II came down exactly 13 years to the day after the U.S. Supreme Court’s 2003 ruling in Grutter v. Bollinger—which created the basic legal framework for affirmative action in university admissions. And more than eight years after Abigail Fisher filed her lawsuit against the University of Texas at Austin (UT), alleging that its race-conscious admissions policy was unconstitutional, the case is finally over—she lost. Fisher was truly a fishing expedition: a weak case that went to the Supreme Court once before, only to be remanded to the Fifth Circuit and then reargued before the Court. The one issue that Justice Anthony Kennedy’s majority opinion and Justice Samuel Alito’s dissent agreed upon was that there was no need for another remand. While both Justices brought up that possibility during oral arguments in December, everyone now thought that it was time to end this fishing expedition.
Justice Kennedy’s majority opinion affirming UT’s use of race was surprising. He had never before voted to allow a race-conscious policy, and he dissented in Grutter, which upheld the University of Michigan Law School’s holistic admissions plan. I expected him to strike down UT’s plan on narrow grounds, and even in the event of an affirmance, I would have expected a ruling that further narrowed the scope of race-conscious university admissions. But Justice Kennedy’s majority opinion did not do that. It pretty much affirmed the current Grutter-Fisher I framework for race-conscious university admissions.
In fact, the ruling today really helps universities—it gives them a more detailed blueprint on how to justify their race-conscious admissions policies. The Court’s Fisher I decision in 2013 made it clear that in order to meet strict scrutiny, a university must demonstrate that its use of race is necessary: that no “workable race-neutral alternatives” would achieve the same educational benefits of diversity. However, Fisher I did not give further guidance on how universities should do this: it merely remanded the case for proper application of this standard.
In Fisher II, however, Justice Kennedy’s majority opinion discusses how UT met this standard. He notes that UT “‘conducted months of study and deliberation, including retreats, interviews, [and] review of data.’” The majority opinion also referenced UT’s overall demographic data, its classroom data on minority enrollment, and its anecdotal evidence that minority students “experienced feelings of loneliness and isolation” on campus. Everything UT did can serve as a template for justifying race-conscious admissions; universities can now surmise that if they gather and present data similar to UT’s evidence, their policies can survive a legal challenge. Justice Kennedy did note that UT’s “program is sui generis” because of Texas’s Top Ten Percent Plan. Nevertheless, this model will still be very helpful to universities across the nation.
Most surprising to me was Justice Kennedy’s statement that UT “had no reason to keep extensive data on the [Top Ten Percent] Plan or the students admitted under it—particularly in the years before Fisher I clarified the stringency of the strict scrutiny burden … [.]” I would have thought that, given his general aversion to race-conscious policies and his Fisher I emphasis on necessity, Justice Kennedy would have obligated UT to collect and analyze such data. Justice Alito’s dissent also raised this point. However, as my colleague Professor Shakira Pleasant astutely pointed out, Justice Kennedy framed the evidentiary scope of this case in narrow terms: he noted that studies conducted since 2008 would have “little bearing on whether petitioner [Abigail Fisher] received equal treatment when her application was rejected in 2008.” This, combined with the lack of notice to UT to keep extensive data on its Top Ten Percent Plan admits prior to 2013, let UT off the hook for not having more evidence on the record.
The majority opinion also notes that “the Court properly declines to consider the extrarecord materials the dissent relies upon, many of which are tangential to this case at best and none of which the University has had a full opportunity to respond to.” Whatever his aversion to the use of race, Justice Kennedy was not willing to let UT be blind-sided by every conceivable attack on affirmative action.
The only pause for proponents of affirmative action is that UT’s race-conscious policy had a very small impact: in fact, Petitioner Fisher argued that it was too small to meet the narrow tailoring test because it could not help UT achieve its diversity goals. The majority soundly rejected this argument, but Justice Kennedy, in his Grutter dissent, had noted that the “modest use of race” was not unconstitutional. There is a weak but plausible inference that his affirmance derived from the modesty of UT’s plan, and that admissions policies that use race to a greater extent can still be effectively challenged.
Justice Alito’s dissent in Fisher II was interesting and ironic. He raised several arguments that proponents of affirmative action might well support in other contexts. For example, Justice Alito referenced “racial and cultural bias” in the SAT and questioned why UT weighted SAT scores as much as it does if the test is biased and/or favors wealthy applicants. To bolster this critique, he actually cited several amicus briefs that had been submitted in support of UT. Plenty of other champions of racial justice—most notably the late Professor Derrick Bell—have also highlighted problems with the SAT. Justice Alito does not explicitly endorse critiques of the SAT (as Justice Clarence Thomas has in the past), but his dissent points to an interesting conundrum for affirmative action at elite universities.
Justice Alito’s dissent also denounces UT for “the baseless assumption that there is something wrong with African-American and Hispanic students admitted through the Top Ten Percent Plan, because they are ‘from lower-performing, racially identifiable schools.’” Here, Justice Alito again usurps and misapplies an argument from progressives such as Professor Lani Guinier, who have critiqued the classist nature of affirmative action at elite universities.
Additionally, Justice Alito referenced discrimination against Asian Americans, both historically in America and specifically in UT’s admissions plan. This comment should be viewed in light of pending lawsuits by Asian American plaintiffs against Harvard and the University of North Carolina at Chapel Hill, which are being litigated by the so-called Project on Fair Representation—the same organization that brought Abigail Fisher’s case. Also, the Asian American Coalition for Education recently file a Title VI complaint against Yale, Brown, and Dartmouth, alleging racial discrimination against Asian American applicants. Of course, many other Asian American organizations unequivocally support affirmative action. Nevertheless, the specter of these lawsuits creates another dilemma: how can progressives address “negative action”—the allegation that elite universities hold Asian Americans to a higher standard than all other groups, including White Americans—without disrupting affirmative action.
These issues raised by Justice Alito’s dissent do present future battlegrounds for affirmative action. The debate over race-conscious university admissions is by no means going away.
But Thursday’s ruling in Fisher II was the clearest victory for affirmative action since that day 13 years ago when Grutter came down. And with a strong likelihood that the late Justice Antonin Scalia’s replacement will move the Court further to the left, universities can proceed confidently with race-conscious admissions policies, so long as they thoroughly explain and document their reasons for doing so.
Vinay Harpalani, J.D., Ph.D., is an Associate Professor of Law at the Savannah Law School, where he writes on race, education, and constitutional law with attention to the legal, social, and political dimensions of racial identity.
Thursday, June 23, 2016
Today, by a 4-3 vote, the Supreme Court upheld the University of Texas's affirmative action admissions program in Fisher v. University of Texas II. The Court found that the consideration of race in its admissions process did not violate the Equal Protection Clause of the Fourteenth Amendment, and accordingly, rejected Abigail Fisher's challenge that she, a white female, had been discriminated against because of this policy.
Justice Anthony Kennedy wrote for the four-justice majority. He effectively found that the UT race-conscious affirmative action program was appropriately narrow (and, indeed, the only functional) means available for the University to accomplish the goal of achieving the benefits of diversity. The opinion, interestingly, concludes with a caution directed at the University of Texas "to engage in constant deliberation and continued reflection regarding its admissions policies," with the implication that a continuing obligation to insure fairness in use of race-conscious admissions policies is implicit to its continuing legality. Justice Samuel Alito wrote a 50-page dissent which was joined by Chief Justice John Roberts and Justice Clarance Thomas. Justice Thomas also dissented.
Justice Kennedy's reasoning is fairly called narrow. The opinion can be read as a compromise interpretation of affirmative action doctrine that maintains the status quo. And yet, it is novel to simply say that race-conscious affirmative action, both in general and as applied in Fisher, is still constitutional today. (Indeed, as Ruthann Robson points out, it is also novel that Justice Kennedy actually upheld an affirmative action policy under the Equal Protection Clause.) Certainly this is not the last word of the Court on race-conscious affirmative action.
Other recent reporting on Fisher can be found at the New York Times and at SCOTUSblog. Additionally, we will post more about Fisher in the days to come, so stay tuned to Race Law Prof Blog for more commentary on this important decision.
Monday, June 20, 2016
Law Review Symposium on Race and Police Powers at UMKC School of Law
In the two years that have passed since the shooting of Michael Brown in Ferguson, MO, what progress, if any, has been made to address issues of race and police misconduct? What areas are most critical in advancing civil rights and appropriate policing?
This symposium seeks papers covering the topic of race and power in the aftermath of a spate of high-profile shootings of unarmed minority men across the county. The symposium will explore diverse topics, including police violence and accountability, the role of the law in combating racism, police reform efforts, citizen unrest, proper remedies for police misconduct, and racial profiling.
Submit a brief proposal, including your name, institution, and contact information to the Law Review’s Symposia Editors, Lauren Dollar (email@example.com) and Mollie Harmon (firstname.lastname@example.org), with the subject line “Symposium Call for Papers.”
We are seeking articles, (10,00-20,000 words).
The timeline for this symposium is as follows:
July 31, 2016- Article submissions
Aug 8, 2016- authors sign publishing contracts
Aug 15, 2016- the articles are passed on to our managing editors
Oct 24, 2016- Author reviews edits made End of December-beginning of Jan- final review by both parties (UMKC board and author)
Jan 23, 2017- publication date (anticipated)
Monday, June 13, 2016
Looking for a primer on key social justice issues that shape structural inequality in American society? I found Teaching for Diversity and Social Justice (Maurianne Adams & Lee Anne Bell eds, 3rd ed.) to be a helpful resource. The book adopts the definition of social justice (an admittedly contested term) as the "fair and equitable distribution of resources with the imperative to address those who are least advantaged."
Notably, the authors emphasize their social justice, as opposed to diversity, approach to teaching. Social justice education aims to "enable individuals to develop critical analytical tools necessary to understand the structural features of oppression and their own socialization within oppressive systems."
In contrast, diversity education "generally emphasizes the social, cultural, and other differences and commonalities among other social identity groups based on the ethnic, racial, religious, gender, class, or other "social categories" generally recognized in the United States." Thus, diversity education tends to be more descriptive of the status quo wherein social justice education adopts a critical approach with the aim of empowering students to change the status quo.
The first part of the book offers the theoretical and pedagogical foundations of social justice. The book focuses on systemic oppression rather than individual discrimination, bias, or prejudice. Oppression is manifested through racism, classism, sexism, heterosexism, transgender oppression, religious oppression, ableism, and youth and elder oppression. Oppression "produces structural and material constraints that significantly shape life opportunities and sense of possibility. Oppression restricts both self-development and self-determination, delimiting the person one can imagine becoming as well as the power to act in support of one's rights and aspirations. It encapsulates the fusion of institutional/systemic discrimination with persona bias, bigotry, and social prejudice through a complex web of relationships and structures that saturate everyday life."
The second part of the book provides a succinct primer of the particular ways in which oppression affects certain subordinated groups: racism and white privilege; sexism, heterosexism, and Trans* oppression; classism; religious oppression; ableism; and youth and elder oppression. Each chapter provides an overview of the concepts, history, and current manifestations of the particular type of oppression followed by an extensive bibliography of books and articles for readers who want to investigate deeper. Finally, the book weaves in techniques and suggestions for engaging students on these topics in workshops or the classroom.
Whether you are a teacher or student of social justice, Teaching for Diversity and Social Justice is a well organized and informative primer on major social justice issues facing contemporary American society.
Disclaimer: I have no affiliation with the authors. Nor am I receiving any remuneration for this blog post.
Monday, June 6, 2016
Subordinated groups across the world deploy civil resistance as a tool for combating injustice and discrimination. In the United States, we are witnessing mass protests condemning police brutality and other inequities in the criminal justice system disproportionately harming people of color. In particular, the BlackLivesMatter movement has been instrumental in leveraging the power of the people in protesting against systemic state abuse against African American communities.
In the May 2, 2016 podcast Civil Resistance: The Power of the People, America Abroad evaluates the history, effectiveness, and future of nonviolent civil resistance. The presenters define nonviolent civil resistance as “a way for ordinary people to struggle for their rights using a wide-variety of nonviolent tactics.” Nonviolent resistance movements over the 20th century challenging governments have had a 53% success rate, while violent protests are only 26% effective in achieving the stated goals.
Examining prior and current examples of civil resistance, America Abroad discusses the effectiveness of these nonviolent movements across the world. The influence of Gandhi in the revolution of civil resistance, for example, set a precedent for the 1960’s American civil rights movement. Similarly, the boycotts of British goods during the colonial era were a type of resistance that continued into the creation of labor unions and the resistance of slaves and Native Americans against oppression.
The podcast highlights two notable contemporary successes of nonviolent civil resistance in Columbia and India. In Columbia, the San José de Apartadó Peace Community in Columbia is a peaceful group protesting on-going civil war through the declaration of their territory as a neutral ground, and the Zero Rupees campaign is a non-violent weapon against corruption in India.
However, the future success of nonviolent civil resistance may be declining. With the spread of non-violent resistance comes the adaption and expansion of governments to repress these movements. Nonviolent civil resistance movements today face a lack of funding, fear or intimidation from opposition, and even a fear of injury or assault. The so-called Arab Spring is the latest reminder that nonviolent resistance may further entrench violent dictatorships.
As authoritarian regimes develop strategies to quash nonviolent civil resistance, nonviolent methodology is adapting. Activists are leveraging technology to develop new and innovative techniques to keep individuals safe in the face of violent regimes. Nonetheless, it remains to be seen if “people power” over traditional method of revolutionary politics is a viable weapon against injustice.
In the end, governments across the world would be well advised to heed John F. Kennedy's famous words, “those who make peaceful revolution impossible will make violent revolution inevitable.”