Race and the Law Prof Blog

Social Justice is a Marathon (Prof. Benjamin Davis)

 

Let me speak plainly.

I do think that this little vignette of irrational critical race theory protests in West Virginia is only one of the hundreds or thousands of these vignettes going on at all levels of our society to foist on all of us repression of basic human rights. 

It is in the interest of those who are used to and like the autocratic rule of the private sector in an at will environment to make the public arenas of our constitutional order reflect that autocratic vision in which they are certain they will prosper even more.  So they relentlessly wield their power to build an autocratic movement.

Madisonian double protection of the rights of the people in this vision is double protection of the rights of certain people and - as Martin Luther King said in 1967 - dictatorship for the rest who are viewed as the enemy.

And as the enemy but still citizens, they are deemed to have rights but the hurdles to their enforcement or vindication are raised so that those rights are effectively eliminated.

As a Professor Emeritus, I feel I am a has been with little or no duty to continue to be in these spaces and point these - what seem evident to me - things out.  I feel that it is the burden that passes to each generation of us. Yes, as you get older, you get tired.

I just hope that in the privileged positions in academia in which we have the honor to sit, that those still on the field of battle continue to come up with ways of being and ways of thinking that combat theis anti-human rights-for-all agenda.

At times it may seem a quixotic quest. Yet imagine the situation where there is silence in response - where the advocates of this abysmal vision of life are the only ones being heard.

It is convenient to go along to get along I know, but the thing is repressing that sense of experiencing horrendous contradiction in yourself is merely internalizing the repression that is ambient. And I would suggest it is soul destroying even though this may provide a means to creature comforts.

I sincerely but no doubt naively hoped that the Gaudio translation of the 1478 Papal Bull/Letter I have published (with its origin story for the idea of white supremacy it reveals) would be a historical comfort to those who fully recognize the bizarreness of that false consciousness intuitively and out of a sense of human dignity.

I have been so excited by that translation (the first in 550 years in English) and enamored of that piece that I had the temerity to submit it to the Harvard Law Review where it awaits decision.

To me it is such a powerful translation that identifies the moment when ecclesiastical power was invoked and terrestrial power was implemented in a sick vision of building a new world that - at its core - was without the faith or the God that it professed. It merely was greed and subjugation at play again out of fear.

At the same time, we should recognize that 550 years of that idea has worked for some, particularly some with power and who are jealous of maintaining and enhancing that power. Those the idea benefits are smart and ruthless about that and in every generation, they can find smart, ruthless and blindly ambitious persons to reinforce their efforts at dominance. With each generation, they are the ones who want to be a member of the dominant club imbibing the ideology in a self-destroying denial of the monster they have become.

So what do we do every day to turn back the tide of repression knowing full well that the power and money that seeks to repress vastly outnumbers and outweighs us?

I come back to Hans Fallada’s Every Man Dies Alone about an ordinary German couple that protested Hitler in Berlin in 1942 by placing little notecards or protest in public places.  There is a quote that I use to quote at the bottom of my signature.

“The main thing is, you fight back.”

You just have to fight back wherever you sit – whether alone or with others.

But fighting is tiring and at some point, we should be able to acknowledge to ourselves that it is ok to get off the battlefield. It is not a question of courage or temperament as much as it is just a question of one’s own human frailty.  The worry will always be that you did not do enough. That you did not find that way to change the world. That you just beat your head against walls spattered with the blood of others screaming at the insanity.

I don’t know really what to say. But what I do know is that the alternative of silence in the face of the horror does nothing good.  And we should all hope to do some good – whatever our status or stature or human frailty.

-- Benjamin G. Davis, Emeritus Professor of Law, University of Toledo College of Law

 

The ACA’S NINE LIVES. IMPACT ON MINORITY POPULATIONS. By Chris Ogolla.

On June 17, 2021, the Patient Protection and Affordable Care Act, aka ACA, survived yet another challenge at the Supreme Court. As originally enacted, the ACA had several key provisions, three of which merit mentioning here. The first is the individual mandate, which requires most Americans to maintain “minimum essential” health insurance coverage or else pay a penalty.[1] The second provision of the Act is the Medicaid expansion. The ACA expands the scope of the Medicaid program and increases the number of individuals the states must cover. The third provision provides access to insurance for individuals with pre-existing conditions. The metaphor of a three-legged stool has often been used to describe the ACA. Leg# 1, providing access to insurance for uninsured Americans with pre-existing conditions (aka “guaranteed issue and community rating”). Leg# 2,  to insure a nationwide pool, a mandate that every individual in the country buy health insurance or else pay a financial penalty with their tax return, and leg#3, creating a system of tax credits, or subsidies, to enable middle- or lower-income people to afford health insurance offered in “Exchanges” set up by the federal government or states.

            Naturally, these key provisions have spawned the principal lawsuits. In National Federation of Independent Business v. Sebelius,[2] the Court was presented with the question whether the individual mandate is a constitutional exercise of Congress’s power to levy taxes. The majority held that although the mandate is not authorized under the Commerce Clause or the Necessary and Proper Power Clause, it is nonetheless a valid exercise of Congress’s power under the Taxing Clause. Next was the contraception mandate challenge in Burwell v. Hobby Lobby.[3] There, the issue was whether the Religious Freedom Restoration Act of 1993 (RFRA) permits the United States Department of Health and Human Services (HHS) to demand that three closely held corporations provide health insurance coverage for methods of contraception that violate the sincerely held religious beliefs of the companies’ owners. The majority held that the regulations that imposed this obligation violated RFRA. Hobby Lobby was followed by King v. Burwell,[4] where the Court decided the question whether individuals in states that opted not to build their own exchanges are eligible for health insurance subsidies. There the Court determined that the plain language of the Act extended tax credits to federally created exchanges as well as those created by the states. Finally, in June 2021, the Court decided (more like punted) another ACA case. In California v. Texas,[5] the Court was presented with the issue of whether the ACA’s §5000A(a)’s minimum essential coverage provision is unconstitutional as a result of 2017 Amendments effectively nullifying the penalty for not having insurance to $0. In a majority opinion, Justice Breyer found that the challengers did not have standing to challenge §5000A(a)’s minimum essential coverage provision because they did not show a past or future injury fairly traceable to the defendants’ conduct, enforcing the specific statutory provision they attacked as unconstitutional.

            So, does the ACA have the mythological nine lives because it keeps surviving these challenges at the Supreme Court? And if so, what are the impacts on minorities? To quote Bob Dylan, “the answer, my friend, is blowin' in the wind.”

            The ACA’s impact on minority populations cannot be gainsaid. For example, “studies show that Medicaid expansion states experienced significant coverage gains and reductions in uninsured rates among the low-income population broadly and within specific vulnerable populations.”[6] More significant is that as of the time of this writing, “twelve states have refused to expand Medicaid, leaving millions of poor Americans without health coverage.”[7] It goes without saying that most of these poor Americans are minorities. The states that have not adopted Medicaid expansion are Alabama, Florida, Georgia, Louisiana, Kansas, Mississippi, North Carolina, South Carolina, South Dakota, Tennessee, Texas, Wisconsin, and Wyoming.[8] Some of these states (Alabama, Florida, Georgia, Louisiana, Mississippi, North Carolina, South Carolina, Tennessee, and Texas) have large minority populations. All of the non-expansion states are controlled by Republicans, except Kansas, North Carolina, and Louisiana, which have Democratic governors, but have Republican state legislative majorities. I leave it to you dear reader, to draw your own conclusions.

            As a result of the COVID-19 pandemic, millions of people lost their jobs as well as their employer-based health insurance benefits. For many of those who lost their jobs, Medicaid was the only way of gaining health coverage. However, for non-expansion states, Medicaid eligibility for adults remains limited. This is because some uninsured poor adults have incomes above their state’s eligibility for Medicaid but below poverty, the minimum income eligibility for tax credits through the ACA marketplace.[9] Although the March 2021 COVID-19 relief legislation, aka the American Rescue Plan Act of 2021, addresses some of these coverage gaps, it is a temporary fix lasting for two years, retroactive to January 1, 2021. The bottom line is that the ACA has provided subsidized health insurance for millions of uninsured Americans, improved health outcomes for many minorities, increased coverage for young adults, emphasized prevention as opposed to treatment, and ensured that those with preexisting conditions can no longer be denied care, to mention but a few.

          Were the ACA to be held invalid, millions would suffer, and minorities would be particularly harmed. So, like the mythological cat, the ACA has cheated death four times. Five more to go?

[1] 26 U.S.C. § 5000A (2014). Congress Amended the Act in 2017 by setting the penalty to $0, effective 2019.

[2] Nat'l Fed'n of Indep. Bus. v. Sebelius, 567 U.S. 519 (2012).

[3] Burwell v. Hobby Lobby, 573 U.S. 682 (2014).

[4] King v. Burwell, 576 U.S. 473 (2015).

[5] California v. Texas, 141 S. Ct. 2104 (2021).

[6] See Madeline Guth et al., The Effects of Medicaid Expansion under the ACA: Studies from January 2014 to January 2020, Kaiser Fam. Found. (March 17, 2020), https://www.kff.org/medicaid/report/the-effects-of-medicaid-expansion-under-the-aca-updated-findings-from-a-literature-review/.

[7] Sarah Kliff, Obamacare’s Survival Is Now Assured, but It Still Has One Big Problem, N.Y. Times (June 28, 2021), https://www.nytimes.com/2021/06/28/upshot/medicaid-expansion-democrats-obamacare.html.

[8]Status of State Action on the Medicaid Expansion Decision, Kaiser Fam. Found. (June 29, 2021), https://www.kff.org/health-reform/state-indicator/state-activity-around-expanding-medicaid-under-the-affordable-care-act/?currentTimeframe=0&sortModel=%7B%22colId%22:%22Location%22,%22sort%22:%22asc%22%7D.

[9] Rachel Garfield et al., The Coverage Gap: Uninsured Poor Adults in States that Do Not Expand Medicaid, Kaiser Fam. Found. (Jan 21, 2021), https://www.kff.org/medicaid/issue-brief/the-coverage-gap-uninsured-poor-adults-in-states-that-do-not-expand-medicaid/.

Nikole Hannah-Jones Statement: Dancing on the Violence of the Glass Ceiling (Prof. Benjamin Davis)

 

“Oh what a feeling! Dancing on the (glass) ceiling!” 

 

Tuesday the saga of Nikole Hannah-Jones tenure process at the University of North Carolina came to an end with a statement she wrote declining the offer of tenure. 

 

Like any excellent Professor, she neither got mad or got even but rather wrote.

 

 

Every university and college administrator, faculty or staff person in this country should read her statement.  In fact, it is something that should be read by every American for it gives us a look into the violence of the glass ceiling.

 

No it is not guns, knives, ax handles, or bats violence.  It is killshot e-mail attempts, sudden manipulation of agendas, public or closed sessions, weird silences on what is going on, and at the end the process creators who put in place this macabre charade characterizing themselves as the victims!  It is a story in donor pressure on a university to subvert academic freedom because they do not like the particular scholarship of the person acclaimed by the academic community that wished to welcome them to their midst.

 

It is the fun of the little machinations done to sabotage her candidacy, the creation of an alternative to the normal process just for her,  and the desperate effort to play what I have long called the X + 1 game.

 

The X + 1 game is that the candidate presents all their materials - we will call them X. These materials represent the normal extraordinary package of evidence of the worth of the candidate for the position.  It provides an extensive yet all too brief view into the remarkable nature of the candidate.

 

But someone does not like the candidate and so begins the process of calling for the “+1”.  The plus one is something that is not in the materials presented by the candidate which all of sudden becomes the crucial thing for their appointment or hiring for the position.

 

This is true in academia of course but this game is played all over the society.

 

The “plus one” is the knife stuck in the candidacy of the person who wishes to be considered on their merits. The perversion of the process of selection is then the twisting of the knife.

 

The “plus one” is engineered to put the candidate on the defensive. They are made to doubt themselves for not having done enough to truly merit the position. When denied, they think about doing that one more paper, or getting that one more certificate or experience so that they could succeed the next time. Or they are convinced that accepting less than what they were seeking is the best they can expect due to the now colossal inadequacy revealed that they lack the -heavens!- “plus one.”

 

Whether for a first job or all the way up to the top positions in any industry, I dare say this X + 1 game is endemic to our systems.

 

And playing this game must be something that at least some of the deciders relish. As a head of a major multinational corporation said to me when I asked him if he had fun at his job, “because of the terrible things I have to do, I have to have fun.”

 

But let us be clear that what is wonderful about Ms. Hannah-Jones statement is that it lays out in great detail the violence of the gatekeepers as they reinforce the glass ceiling to keep someone with merit but seen as undesirable from getting the brass ring.

 

I have seen this game happen to so many people over my career that I took the liberty of highlighting this perversion to the graduating students that I spoke to at my last commencement this Spring.  I felt it my duty to warn them of this perversion that they might experience at some point or might have already experienced and not realized how they had been played by someone.

 

And, in fact, this game is so old that the late President Benjamin E. Mays talked about it in his chapel lectures to the students at Morehouse.  He would say that when the President of the United States is looking for someone in your field, let it not be for your lack of preparation or your lack of integrity or your lack of diligence or some other lack that the President does not select you. Let it be for some other reason than your excellence in your field that the President does not select you.  The “some other reason” of course in segregation was forced to be narrowed by the excellence to finally one thing (the plus one) that we can not have a black person in that role no matter how excellent, no matter their merits. It would be just too much to allow that one through the glass ceiling. We need to make sure they stay in their place. We do not need anyone daring to have the temerity to think they merit the position be allowed to get it for that would enshrine uppitiness which must be quashed by any means necessary.

 

The statement does the civic duty of bringing into the present the violence to which the candidate is being subjected. At the same time, Ms. Hannah-Jones documents the amount of countervailing forces that came to support her either from spontaneous shock and dismay at the shabbiness of the treatment she was receiving or as a skillfully deployed counter force to the X + 1 gamers who prefer to do their dirty deeds in the dark. It is quite a remarkable list and one thinks about all the poor saps out there who are not able to deploy such forces and find when they go to court that the rules are rigged against them getting relief for the violence they are experiencing.

 

So her statement brings light to the violence that is inherent in that anodyne term “glass ceiling.” The violence of those who impose such glass ceilings on those who they consider undesirables.

 

Yet, what is truly amazing in the statement is that in her own way, Ms. Hannah-Jones found a way to dance on the violence of the glass ceiling rather than succumb to its oppression. She has called out the game and after beating her detractors, listens to her own voice to take her in another way with a tinge of regret as well

as a sense of coherence with who she is.

 

And that is really something quite beautiful. Like a rose in Spanish Harlem that reaches up through the concrete of oppression to bask in the warm glow of the sunlight of all our respect.

 

- Benjamin G. Davis, Emeritus Professor of Law, University of Toledo College of Law

 

Approaching Deadline: Yale Law Journal invites submissions on the Law of the Territories

The Yale Law Journal invites submissions on the Law of the Territories, covering the broad range of local, federal, and international issues arising out of and affecting the U.S. territories and their people, for Volume 131’s Special Issue. The deadline for submissions is July 15, 2021.

The Law of the Territories is an emerging field that explores novel legal questions facing residents of the U.S. territories. More than 3.5 million people—98% of whom are racial or ethnic minorities—live in American Samoa, Guam, Puerto Rico, the Northern Mariana Islands, and the U.S. Virgin Islands. They are unable to vote for President and lack voting representation in Congress, even though Congress exercises plenary power over their communities. In the last five years, the Law of the Territories has experienced a resurgence of activity before the Supreme Court not seen since the Insular Cases, a series of controversial decisions from the early 1900s that endorsed the United States’s annexation and governance of its colonies. The Court’s holdings in the Insular Cases have received broad criticism for their racist underpinnings and departure from foundational constitutional principles. But the Court has hesitated to either overrule them or fundamentally reconsider its territorial jurisprudence. Meanwhile, each of the territories has developed its own distinct body of law—and the people of the territories have pressed with increasing urgency for self-determination and decolonization through both domestic and international processes.

We seek Articles and Essays that address unresolved debates, emerging controversies, and unexplored problems related to the Law of the Territories, including, but not limited to: 

• the relationship between federalism and empire; 
• the challenge of cultural accommodation within the United States’s constitutional framework; 
• the relevance of international models of association to the debate over territorial decolonization, and more broadly, the light that comparative perspectives might shed on the issues surrounding self-determination; 
• the intersection of race, gender, and class inequality in the context of U.S. colonial governance; 
• and the promises and pitfalls of territorial autonomy.

The deadline for submissions is July 15, 2021. For more information, please see our announcement.

Cleaning House for the 4th of July and the Fireworks of Anti-racism (Prof. Tanya Hernandez)

 

Let’s be honest – before the pandemic we never cleaned our homes as thoroughly as when we were expecting guests.  Visiting in-laws meant a zenith level of cleaning.  While it might not pass every snooping cousin’s white-glove test, we did our best to create a hospitable environment for fellowship and joy. 

An essential truth of housecleaning is that spraying some temporary floral scent over the smell of a dirty home does not create a congenial environment.  Throwing all our garbage behind a locked closet doesn’t quell the stench either.  Yet these basic tenets of creating and sustaining community are all obliterated by the movement to censor much needed discussion of anti-racism in public schools and spaces.

 

Anti-anti-racism disinformation proponents in a growing number of states (Arkansas, Florida, Georgia, Idaho, Iowa, Montana, Oklahoma, Tennessee and Texas) have enacted racial and gender equity prohibitions that disallow our teachers from exposing students to our nation’s full history of struggle to be a true egalitarian republic.  And more copycat bills are being introduced across the country as well as congress, under the “trumped up” banner of demonizing Critical Race Theory (CRT) like a boogeyman we should eviscerate.  The concocted vision of CRT as a curse word to erase from public discourse, is like a pungent floral spray that seeks to cover up the bad smell of our histories of racism rather than actually cleaning our way to a better nation.

The tragic irony is that CRT and substantive teaching of all parts of our history, is the best Lysol level disinfectant product that we have for cleansing our nation of the stinking consequences of racism.  Why?  Because CRT goes beyond the traditional interrogation of race and racism that is limited to the image of badly-intentioned individuals.  It instead seeks to reveal and transform the relationship among race, racism and power with an examination of structural and systemic barriers to inclusion for designing effective solutions.  The anti-anti-racism elimination campaign not only wants CRT abolished but also any discussion of racism in our schools and workplace diversity sessions.

Our school teachers know that censorship is detrimental to learning, and that learning is essential for forming an informed citizenry.  As we celebrate the birth of our democracy this July 4^th, with joyous gatherings of friends and loved ones, let’s commit to continuing the important work we’ve begun in cleansing the nation of its systemic racism.  This means rejecting the well-funded organized appeals for gag orders on honest discussion and free speech.  Our democracy deserves more than a cheap spritz of floral spray over our dirty laundry.

-- Tanya Hernandez, Archibald R. Murray Professor of Law at Fordham Univ. School of Law; and Author of Forthcoming Book Racial Innocence: Unmasking Latino Anti-Black Bias and the Struggle for Equality (Beacon Press).

-- This article was originally published at: https://professortkh.medium.com/cleaning-house-for-the-4th-of-july-and-the-fireworks-of-anti-anti-racism-a9391c16fe7