Wednesday, January 25, 2017

Maintaining the Audacity of Hope (Professor Paula Johnson)

The next week will be momentous for our country as we recognize a monumental public figure who challenged the U.S. government and society to create the more perfect union that the Constitution demands. On Monday, January 16, the nation remembered Rev. Martin Luther King, Jr. on the official holiday that commemorates his legacy.  Notably, too, on Friday, January 20, we will mark the end the President Barack Obama’s two-terms as the first African American president, and begin the presidency of Donald Trump. 

Many citizens find this transition in U.S. presidential leadership more portentous than promising and have mobilized multiple demonstrations, not in celebration, but in protest and anxiety that the incoming administration portends to undo the measured progress has been made to realize the constitutional promise.  These bookended events should give us great pause to think deeply about what – and perhaps even more important, who – is America, and the continuing relevance of Dr. King’s vision in answering these questions. 

In my work as co-director of the Cold Case Justice Initiative at Syracuse University College of Law, I am intimately involved in the racial and social dynamics of the civil rights era of the 1960s and 1970s, in which the U.S. was steeped in discord and violence, as Black people sought full civil rights and were frequently met with hostility and death.  Many victims of the violence of this era remain unidentified, cases remain unsolved, and perpetrators remain unpunished.  For these reasons, the Emmett Till Unsolved Civil Rights Crimes Reauthorization Act was passed by the last Congress and signed by President Obama to continue to seek justice in these cases.  These earlier cases continue to resonate in the present as the calls for justice bellow in the spate of racially motivated killings by law enforcement and private actors of mostly unarmed Black and Brown people.

The demand for justice in these circumstances – then and now – is reflected in Dr. King’s critical statement, “Why We Can’t Wait,” and his critical question, “Where Do We Go From Here: Chaos or Community?”  During his own time, Dr. King understood that the burgeoning Black Power Movement and impatience and dissatisfaction with non-violent practice was in response to societal intransigence and impunity of state and private violations of Black people’s rights and safety.  He knew that Black lives mattered and that Black rage was justified.  ”It cannot be taken for granted that Negroes will adhere to nonviolence under any and all conditions,” he stated.  As Dr. King further recognized, “Social justice and progress are the absolute guarantors of riot prevention.  There is no other answer.”  In other words, Dr. King, admonished American society, “No justice. No peace.”  While he was implacably committed to nonviolent resistance, he found, “It is purposeless to tell Negroes they should not be enraged when they should be…Mass civil disobedience can use rage as a constructive and creative force.”

The U.S. Department of Justice just released a damning report of longstanding institutional racial violence by the Chicago Police Department against mostly Black persons in that city – often lethal.  The City of Baltimore recently entered a consent decree with DOJ regarding systemic police violence and abuses along the same lines.  Dr. King would have recognized these psychic, physical, and legal harms at the hand of the state and the uprisings they generated.

When King was asked about the 1967 riots in Newark, Los Angeles, Detroit, and Memphis, he responded, “In the final analysis, a riot is the language of the unheard.  And America has failed to hear that the promises of justice and equality have not been met.” In today’s environment, Ferguson, Dallas, Baltimore, Chicago…all would be known to Dr. King.     

The President-elect campaigned on a platform that was divisive; one that ridiculed and vilified society’s most vulnerable people.  Women were singled out for gross debasement in public discourse and behavior that the candidate sought to minimize.  Immigrants and undocumented workers were singled out as criminals and leeches.

LGBTQ communities, Muslims, disabled people and other marginalized populations question whether the destructive tenor and actions of the incoming administration augur greater discrimination and violation of rights.  Thus far, the President-Elect has evinced a remarkable lack of conciliation overtures to bring the nation together and reassure that the American ideals of equal rights, equal justice, and equal value of all persons will be observed.  As we pause to remember Dr. King, these contrasting visions of America and American values could not be starker. 

Dr. King also exhorted the country to “make America great.”  This was the meaning of the “Dream” speech, given on the one-hundredth anniversary of the Emancipation Proclamation.  Dr. King urged the country to end the crippling inequality that affected people across racial, geographical, and economic divides.  He sought unity, commonality, and appreciation of each other’s unique struggles for justice and inclusion.

Dr. King accepted the Nobel Peace Award in 1964 “with an abiding faith in America and an audacious faith in the future of mankind.”  He found justice wounded and wanting, but declared, “I have the audacity to believe that peoples everywhere can have three meals a day for their bodies, education and culture for their minds, and dignity, equality and freedom for their spirits.”  For King, it was an unshakable faith that gave him courage to go on “to face the uncertainties of the future.”  Dr. King was motivated by faith, conscience, selflessness and humility.  He believed that we could be better, individually and collectively as a nation.  His as yet unfulfilled vision of a just and equal society is one in which greatness is measured by what we give, not by what we take.  By serving, not by being served. And by love, for all people.

Dr. King’s vision was uplifting and he believed in protest as ennobling.  As we enter into this uncertain future, we should remember that we are stronger when we are together.  So, as we look toward a future that seems fraught with divisiveness and shameful behavior, we must ask what and who is America?  We must maintain the audacity of hope.

This article by Professor Paula C. Johnson was originally published in the Huffington Post.

January 25, 2017 | Permalink | Comments (0)

Thursday, January 19, 2017

Locking Black Parents Out of Charter School Board Representation

For readers following the charter school movement and consequent debates, you may find of interest a new article by  Heather Bennett and Steven Nelson entitled Are Black Parents Locked out of Challenging Disproportionately Low Charter School Board Representation? Assessing the Role of the Federal Courts in Building a House of Card

Here is the abstract for the paper:

This paper discusses the role of Shelby County v. Holder in removing protections for minority influence(s) in the school board selection process. The paper cites and analyzes federal case law to support the theory that the Court’s limitations on Section 2 and rollback of Section 5 of the Voting Rights Act as well as the Court’s illusory promise to regulate appointed boards via the Equal Protection Clause allows for the limitation of minority participation and influence in the political process, specifically the selection of school boards members. Specifically, this paper argues that charter school movement results in decreased minority political voice and participation in education policy decisions. Moreover, this paper finds that traditional civil rights laws fail to protect the right of Black parents to participate in education policy processes and the politics of education. New Orleans – the epicenter of the charter school movement – is a ripe case study for this investigation. With nearly every public school student in New Orleans enrolled in a charter school, it is important to analyze the policy impact(s) of the displacement of predominately Black policymakers with predominately White policymakers.

The article is published in the Duke Journal of Constitutional Law and Public Policy (2016) and available for download here.

January 19, 2017 | Permalink | Comments (0)

Monday, January 16, 2017

A Colorable Claim of Discrimination (by Professor Vinay Harpalani)

On December 22, 2016, the New York Court of Appeals issued a landmark civil rights ruling.  In People v. Bridgeforth, the Court of Appeals held that skin color discrimination is cognizable for Batson challenges to juror exclusion.  Defendant Bridgeforth, who is a dark-skinned African American, was convicted of robbery at trial.  The prosecutor had employed peremptory strikes to exclude a number of dark-skinned women from his jury pool.  One of these prospective jurors was South Asian American, and the prosecutor did not offer any explanation for striking her.

It was the exclusion of this juror that was the basis of the appeal in Bridgeforth.  What made the case unique was that Bridgeforth did not argue that the South Asian American woman was stricken because of her race.  Rather, he contended that she was excluded as part of a group of dark-skinned jurors.  Thus, while race and color are usually considered together, with race taking the primary role, Bridgeforth’s theory of discrimination separated the two and focused directly on skin color.

Mr. Bridgeforth was represented by Tammy Linn of Appellate Advocates Inc.  The Fred T. Korematsu Center for Law and Equality filed an amicus brief in support of Mr. Bridgeforth, assisted by pro bono counsel from Akin Gump Strauss Hauer & Feld.  Thirty-two individual law professors joined the brief, as did the Society of American Law Teachers (SALT).  Additionally, 20 civil rights organizations joined, including NAACP Legal Defense & Education Fund, Inc. and Anti-Defamation League (ADL).  Among these organizations were many Asian and South Asian American bar associations—who recognized that Bridgeforth was important not only for addressing skin color discrimination broadly, but also for confronting discrimination against South Asian Americans. 

The trial and intermediate appeals courts in New York both upheld the prosecutor’s peremptory strike.  However, the Court of Appeals reversed unanimously and ordered a new trial for Mr. Bridgeforth.  Six of the seven judges held that skin color is a cognizable category under Batson v. Kentucky (1986).  The majority opinion cited various social science studies and law review articles to show that skin color discrimination is a prominent phenomenon in the U.S.  Moreover, the majority noted that New York’s Constitution and civil rights laws cover discrimination based on color.  Many sections of the Civil Rights Act of 1964 contain language about color, with most actual cases brought under Title VII’s prohibition of discrimination in employment.  Skin color discrimination has also been recognized under the Fair Housing Act. 

Additionally, the U.S. Constitution provides grounds for addressing discrimination based on color.  The Fifteenth Amendment explicitly states that the right “to vote shall not be denied or abridged … on account of race, color, or previous condition of servitude.”  The Civil Rights Act of 1866, upon which the Fourteenth Amendment was based, included language precluding color discrimination.  In the late 19th century, several U.S. Supreme Court opinions involving the Fourteenth Amendment noted that African Americans faced discrimination based on “race” and “color”—sometimes demarcating them separately.  During the 20th century, however, Supreme Court opinions in major cases began using only the language of “race”—and the Court has never held that “race” and “color” are separate for equal protection purposes. 

Nevertheless, in Bridgeforth, for the first time, a court ruled that the Equal Protection Clause applies specifically to color discrimination—at least in the context of Batson challenges.  The case is binding only in New York, but it does open the door for wider acknowledgment of skin color biases.  The Court of Appeals correctly recognized that while colorism is often subsumed under racism, it can also be an independent phenomenon that the law should address directly.

Vinay Harpalani is Associate Professor of Law at Savannah Law School, where he teaches constitutional law, civil procedure, and employment discrimination.  He served as of counsel on the Korematsu Center’s amicus brief.

January 16, 2017 | Permalink | Comments (0)

Wednesday, January 11, 2017

EEOC Seeks Public Input on Proposed Enforcement Guidance on Harassment in the Workplace

In light of the increasingly polarized partisan political climate and apparent balkanization of American society along racial and ethnic lines, below is an important opportunity for members of the public to ensure these troubling trends do not infect our workplaces.   
 
EEOC SEEKS PUBLIC INPUT ON PROPOSED ENFORCEMENT GUIDANCE ON HARASSMENT
 
WASHINGTON – The U.S. Equal Employment Opportunity Commission (EEOC) announced today that it has voted to release for public input a proposed enforcement guidance addressing unlawful harassment under the federal employment discrimination laws. The proposed Enforcement Guidance on Unlawful Harassment is available for input until February 9, 2017 at https://www.regulations.gov/docket?D=EEOC-2016-0009.
 
This proposed guidance, which is the product of extensive research, analysis, and deliberation, explains the legal standards applicable to harassment claims under federal employment discrimination laws. The laws enforced by EEOC protect individuals from harassment based on race, color, religion, sex, national origin, disability, age, or genetic information.
 
Between fiscal years 2012 and 2015, the percentage of private sector charges that included an allegation of harassment increased from slightly more than one-quarter of all charges annually to over 30% of all charges. In fiscal year 2015, EEOC received 27,893 private sector charges that included an allegation of harassment, accounting for more than 31% of charges filed that year. In the same year, federal employees filed 6,741 complaints alleging harassment – approximately 44% of complaints filed by federal employees that year.
 
“Harassment remains a serious workplace problem that is the concern of all Americans. It is important for employers to understand the actions they can take today to prevent and address harassment in their workplaces,” said Chair Jenny R. Yang. “The Commission looks forward to hearing public input on the proposed enforcement guidance.”
 
Preventing systemic harassment has been one of EEOC’s national enforcement priorities since 2013. The Commission reaffirmed this priority in its Strategic Enforcement Plan for 2017-2021.  At a public meeting in January 2015, the Commission established a Select Task Force on the Study of Harassment in the Workplace to analyze workplace harassment and identify innovative and creative prevention strategies. Chaired by Commissioners Chai R. Feldblum and Victoria A. Lipnic and comprised of academic experts, legal practitioners from the plaintiff and defense sides, employers, employee advocacy groups, and organized labor, the Select Task Force met 10 times between April 2015 and June 2016 to hear and consider testimony and public comments. At a June 2016 public meeting, Commissioners Feldblum and Lipnic presented their Report of the Co-Chairs of the Select Task Force on Harassment in the Workplace  (“Harassment Prevention Report”) with findings and recommendations about harassment prevention strategies.
 
“I am pleased that we are able to follow up on the recommendations in our Harassment Prevention Report with this release of the draft enforcement guidance on unlawful harassment,” said Feldblum.  “This guidance clearly sets forth the Commission’s positions on harassment law, provides helpful explanatory examples, and provides promising practices based on the recommendations in the report.  I believe it will be a helpful resource for employers and employees alike, and I look forward to receiving comments from the public.”
 
 “As we learned from the Harassment Prevention Report this past year, 30 years after the U.S. Supreme Court laid down the law in this area, harassment charges and cases remain a far too dominant part of the work of the Commission,” said Lipnic. “I am pleased the Commission is offering an updated version of its positions on the important legal issues on this topic and look forward to the public input.”
 
The public is invited to submit input about the proposed Enforcement Guidance on Unlawful Harassment via www.regulations.gov. Alternatively, members of the public may send written feedback to: Public Input, EEOC, Executive Officer, 131 M Street, N.E., Washington, D.C. 20507.  Please provide input in narrative form and do not submit redlined versions of the guidance document. Input will be posted publicly on www.regulations.gov, so please do not include personal information that you do not want made public, such as your home address or telephone number. The deadline for submission of public input is February 9, 2017.
 
After reviewing the public input, the Commission will consider appropriate revisions to the proposed guidance before finalizing it.
 
EEOC advances opportunity in the workplace by enforcing federal laws prohibiting employment discrimination. More information is available at www.eeoc.gov.  Stay connected with the latest EEOC news by subscribing to our email updates.
 

 

January 11, 2017 | Permalink | Comments (0)