Archive for the ‘Race’ Category

Is the Health Care Reform Act a Civil Rights Act?

Written by Rebecca Zietlow on March 23rd, 2010

59971869Should we consider the health care reform act, which President Obama signed into law today to be a civil rights act? There is good reason to do so. Though the Act is far from perfect, it does represent a commitment by Congress to expand access to a fundamental human right. Article 25 of the Universal Declaration of Human Rights states that “Everyone has the right to a standard of living adequate for the health and well being of himself and his family, including . . . medical care.” Martin Luther King called access to medical care a civil right. Though our Constitution does not include a right to health care (or any other substantive economic rights), it does give Congress the authority to create such rights. And, in a speech after the passage of the Act, House Speaker Nancy Pelosi invoked the Declaration of Independence’s statement that all people are guaranteed a right to “life, liberty and the pursuit of happiness.” Before the vote, Pelosi and other congressional leaders marched through protesters hurling racial epithets, an act that self-consciously harkened back to civil rights demonstrations of the past. The Act falls within the tradition of Congress enforcing the rights of social citizenship – economic rights that are essential preconditions to one’s ability to exercise other civil and political rights.

Strangely, opponents of the Act also think the Health Care Reform Act is a civil rights act, and argue that this is a reason to oppose it. In February, Rush Limbaugh called the Act a “civil rights act,” a “reparations” bill which people should oppose. Last week, Newt Gingrich compared the Act to the 1964 Civil Rights Act, arguing that Obama’s support of the Health Care Reform Act would wreck the Demcratic party like Lyndon Johnson’s support of the 1964 Act did.

How ironic! I have always thought of the passage of the 1964 Civil Rights Act as one of the great moments in American history. I also thought that as a society we had achieved a consensus that civil rights were a good thing. What could Gingrich possibly mean by his critique? Johnson was re-elected by a landslide in the fall of 1964, and he relied on that mandate to push through the Medicare Act and the 1965 Voting Rights Act the next year. When Gingrich says the 1964 Act wrecked the Democratic party, could he be referring to the fact that after passage of the Civil Rights Act, many of the pro-segregationist southern Democrats became Republican, eventually turning the South from a solid Democratic block to the solid Republican block we have today?

If so, why would Gingrich want to remind us of the southern Republican party’s roots in segregationism and racism? It’s hard not to see a connection between Limbaugh and Gingrich’s remarks and the racial slurs hurled by protestors against the African American and Latino members of Congress on Sunday. Like Congress’ tradition of expanding human rights in acts like the 1964 Civil Rights Act, the Social Security Act and the Medicare Act, there is an equally strong tradition of using race baiting as a tactic in American politics. One of the vestiges of segregation in our society is the racial disparity that still exists in our health care system. If this act helps to remedy this disparity, then it truly is a civil rights act.

Gates, Crowley Suprise! Or Was it Obama’s Surprise?

Written by Robert Justin Lipkin on July 31st, 2009

After the beer “summit” Professor Gates and Sgt. Crowley have agreed to more conversations about the issues that have drawn them together.  Is there a documentary is the works? Even if not, this surprise respite–assuredly orchrestrated by the pretmpphpA5pbwQ[1]sident–was just what the nation needed. Two men, thrown into racial conflict, decide to engage in deliberative conversationalism about the conflict and what it means for the nation’s nation future. The specific facts are still not clearly known, and it’s difficult, at least for me, to dispell the notion that an arrest could have easily been avoided even if Professor Gates acted indignantly, and I’m incredulous that the arrest would have occurred at all had Professor Gates been white and Sgt. Crowley been white, but perhaps these points should be left to the two men in their subsequent conversations. Race, racial profiling. racism still plagues this nation. Despite how horrid the term “teachable moment” is, this is just the sort of event that can begin a national dialogue where winning is not the point. Reconciliation is.

Another Lesson on Race in America

Written by Rebecca Zietlow on July 30th, 2009

Two weeks ago, Professor Henry Louis Gates, Jr. got a lesson on race in America, and as a result, so have the rest of us.  A prominent Harvard scholar on race in Amer180px-Henry_Louis_Gates_Jrica, Professor Gates told NY Times Columnist Charles Blow that he has generally lived in “a cocoon of racial tolerance, enlightenment and reason.”  However, on the day that he returned from a trip to China and had trouble opening his front door, he became what Blow called “a member of the Club” – the 66% of Black men in America who told the New York Times that they felt they had been stopped by the police because of their race.  We don’t know whether Officer Crowley treated the professor differently because he was Black.  Officer Crowley might not even know.  Crowley teaches other officers how to avoid racial profiling, but can he avoid his own unsconcious feelings about race?  What we do know is that Professor Gates’ belief that he was treated differently because he was Black was entirely rational, given the history of race in America and in the Boston area.  Professor Gates writes about this history in his scholarship, and he teaches about it in his classes.  On that summer day, the academic became real for Professor Gates.

I vividly remember the day that the academic became real for me.  In law school in another New England city, I learned a lot about race in America from my classes and my African American classmates.  The spring of my second year, a white female and Black male friend and I looked to rent an apartment together.  My white female friend had made the appointment to see the apartment, but when we showed up with our Black friend, we were told the apartment was no longer available.  We went to lunch together and stared at each other blankly, asking, “Did that really happen?  Are we victims of discrimination?” The same thing happened at another apartment building that afternoon.  We later confirmed with friends that lived at both buildings that apartments were still available in both buildings.  We’ll never know for sure whether we were treated differently because my roommate was Black.  What we did know was that we had  been taught another lesson on race in America.

My experience, like that of Professor Gates and Officer Crowley, is typical of how people’s experiences are “colored” by racial differences.  Often, we don’t know whether our actions, or those of other people, are motivated by racial prejudice.  The lesson we can learn from Professor Gates is that race always matters – it is unrealistic to assume that it doesn’t.  What President Obama is trying to do today with his “beer summit” is what we all need to do – recognize that race influences all of us, talk about our differences, and try to understand each other.  When we can do that, then we will have indeed learned a positive lesson about race in America.

The Most Dangerous Supreme Court Case

Written by Rebecca Zietlow on July 23rd, 2009

There’s been a lot of talk recently about the Supreme Court’s Ricci case, but by far the most important case decided by the Court this year is Ashcroft v. Iqbal. In that case, the Court upheld the dismissal of a civil rights claim broughashcroft_CV_20090519130315t by a Pakistani immigrant held in the wake of 9/11 against the Attorney General of the United States.  What’s surprising is not that the Court dismissed the case, since even the least jaded among us would have anticipated that outcome.  What’s really significant about Iqbal is that the Court applied a new rule to all civil cases that will make it much more difficult for all civil rights plaintiffs, indeed all plaintiffs in general, to survive a motion to dismiss.  The Court’s new rule is that a judge can dismiss any claim when the judge believes that the plaintiff’s claim is not plausible.  What will judges rely on to make this determination?  According to Justice Kennedy, the judge should rely on “judicial experience” and “common sense.”   That’s not what the Federal Rules of Civil Procedure say – they only require that the complaint include a “short and plain statement of the claim.”

Why does this matter?  It matters because the Iqbal decision is an invitation for judges to rely on their own discretion to decide whether a plaintiff can use the system of “discovery” to get information to back up his or her claim.  It matters because the judges and members of Congress on the committee to draft the Federal Rules of Civil Procedure could not have made their intention more clear – they required the plaintiff only to give notice or his or her legal claim and back it up with a minimal statement of facts, so that plaintiffs could get access to federal courts.  Iqbal has been cited 500 times by federal judges since it came down less than two months ago.  Many of the judges citing the case were granting motions to dismiss.

The Iqbal hurdle will be the hardest to overcome for exactly the type of people who most need the federal courts – civil rights and employment discrimination plaintiffs.   They have the least resources to get the information they may now need to convince skeptical federal judges that they deserve their day in court.  That’s why Iqbal is not only the most important case to come down this year, it is also probably the worst.

Henry Louis Gates and Bad Policing

Written by Henry L. Chambers, Jr. on July 22nd, 2009

By now most have heard of the arrest for disorderly of Harvard scholar Dr. Henry Louis Gates at his home in Cambridge and the subsequent dropping of charges.  The police report notes that the police officer involved was investigating a call of a possible break-in phoned in by one of Gates’ neighbors who saw Gates and the person who drove him home trying to get into the house by shouldering open a jammed door.  The supposed btmpphpdykgpa1.jpgreak-in was called in around12:44 pm in broad daylight.  The report, the substance of which Gates disputes, suggests that when the officer arrived at the house, Gates initially refused to identify himself.  In addition, Gates supposedly repeatedly yelled at the officer and called him racist.  However, the report also notes that Gates did provide identification, but was arrested when he continued to yell at the officer after the officer left the house.  Even if one believes the police report, which is difficult to do, it is unclear why the police officer was unable to diffuse the situation.  Police officers must deal with incredibly stressful situations quite often and this would seem to be one of the least stressful of those stressful situations, dealing with a 58-year-old man who walks with a cane and had a bronchial infection that he says rendered him unable to yell at anyone and who may or may not have been upset about being investigated for breaking into his own house.  It is difficult to imagine that the following comment occurring some time during the encounter would not have diffused the situation, given that even the report noted that Gates did cooperate enough to provide identification:  “Officer: Sir, I am just investigating a possible break-in of this residence.  I just needed to make sure that you are safe and that your neighbor was mistaken about the possible break-in. Are you sure that no one broke into the house and is hiding inside?  Sorry for the inconvenience.  Here is my name and badge number if you need to follow up.  Please have a nice day.”  Rather than attempt to diffuse the situation, it appears that the officer took umbrage at whatever Dr. Gates said to him or how Dr. Gates said it to him.  Apparently, annoying a police officer in Cambridge appears to be sufficient for some Cambridge police officers to arrest a person.  That may be the way it is, but it does not appear to be good policing.  Whether it is racialized policing is a different more complicated matter.

Thoughts on the Sotomayor Hearings

Written by Rebecca Zietlow on July 16th, 2009

When I wasotomayor.jpgs a first year student at Yale Law School, some of the upper level students organized a conference on “Women of Color and the Law.”  The speakers at this conference spoke about the failure of our law to adequately address the needs of women of color, and the role of women of color as lawyers.  The conference had a strong impact on me and my friends.  While in law school, we focused in our classes and our extracurricular activities on the law’s relationship to women of color and other people who have been historically disempowered in out society.  After law school, as a legal services lawyer in the South side of Chicago, I personally witnessed the failure of the law to address the needs of my clients, who were primarily women of color.  Now, there is a woman of color, Sonya Sotomayor, who is about to become a member of the top Court in our country.  I never would have imagined this moment when I was in law school, or when I was a practicing lawyer.

As far as I know, Sotomayor was not present at the Women of Color Conference.  It occurred years after she graduated from Yale.  However, during her hearings she has found herself discussing some of the issues addressed by the speakers at that meeting – the impact of a experience on how a person understands the law, and the importance of a judge mitigating his or her personal views when he or she is interpreting the law.  In a world dedicated to the myth that justice is blind (that is, that judges are not influenced by their backgrounds and experiences), her nuanced explanations are a tough sell.  Fortunately, she is maintaining her composure, and her strong record and the large Democratic majority in the Senate virtually insure that she will be confirmed.  I look forward to that day.

Racial Justice After Ricci

Written by Rebecca Zietlow on July 9th, 2009

As we sit back after the end of the Supreme Court term, and get ready for the nomination hearings on another Justice, it’s worthwhile to consider what the government can do to try to reduce racial injustice in our society. Despite the long history of race discrimination new-haven-minority-firefighters.pngin our country which has subordinated racial minorities, Ricci is just the latest in a line of cases where the Court makes it clear that it will apply the highest level of scrutiny to government attempts to remedy that history. What is a city like New Haven to do to attempt to provide more opportunities for upward mobility to government employees of color? Standardizes tests, like that in Ricci, could theoretically be useful to reduce the level of discretion in hiring and promotion decisions. Less discretion should mean less opportunity for race discrimination. Yet given that one of the many issues that plagues communities of color if poor public education, it is not surprising that job and promotion candidates of color don’t score as well on written standardized tests.

After Ricci, cities like New Haven better be sure that the test is valid before they use it, because afterward, it’s too late to discard the results no matter how discriminatory their impact might be. Could cities like New Haven try to remedy the racial disparity by giving extra points on the promotion scale to candidates of color? No way, the Court has made that clear. Theoretically, they could lobby their local government officials for help.  Yet under the current Supreme Court’s jurisprudence, it’s hard to see what those local officials can do, except as Bobby indicates below, hope that candidates of color can “pull themselves up by their bootstraps” and improve their situation on their own.

Ricci and Employment Tests

Written by Henry L. Chambers, Jr. on July 1st, 2009

The Supreme Court issued its opinion in Ricci v. DeStefano, the New Haven firefighters case, on Monday.  It was a typical 5-4 decision in which the conservative wing of the Court declined to allow New Haven to attericci-190.jpgmpt to guarantee racial equality in promotions.  Leaving aside civil service rules, Title VII and employment law in general allow employers to make employment decisions, including promotions, on any basis the employer wishes as long as those decisions do not trigger a disproportionate impact on various groups.  Of course, public employers also need to abide by the Constitution and civil service rules, but these rules can be left to the side for now.  Employers may generally choose its supervisors arbitrarily and capriciously – even at random – and not run afoul of Title VII if the results lead to a fully integrated pool of supervisors.  Given that, any selection process that an employer believes helpful in choosing supervisors is generally acceptable.  However, if the process yields a racial impact, Title VII requires that the process be justified as accurate and necessary.  New Haven took the position that their method for choosing lieutenants and captains was a reasonable way to choose supervisors as long as the supervisors chosen were a racially mixed group.  However, once it became clear that the process yielded a racial impact, New Haven viewed the process as an insufficiently justifiable to overcome its racially disproportionate results.  Oddly, the conservative majority of the Court took the position that the method New Haven chose relied “on objective examinations to identify the best qualified candidates.” That is, the conservative majority took the position that a merely noncapricious process for choosing candidates for promotion that yielded a disproportionate racial impact was an objective measure of merit even though the employer that used the process took the position that the process could not be defended as an objective measure of merit.  This is troubling, but not necessarily surprising.

How Should the Effects of American Racism Be Remedied?

Written by Robert Justin Lipkin on June 29th, 2009

Given the irrefutable fact that hundreds of years of oppressing a class of individuals through slavery and Jim Crow discrimination and segregation will determine to a large extent the skills and abilities those individuals will possess, how does a rational, just society remedy the deficiencies imposed on the class of individuals by the oppressors? The Supreme Court with almost grotesque consistency insists that compensatory racial justice is unacceptable or when conceivably acceptable subject only to the highest form of judicial scrutiny. OK! If the easy means of taking race into consideration is rejected, what is the appropriate means for for a just society to remedy centuries of oppression?  Throughout America’s war with race, few ideas have been advanced to answer this question.  Should minorities simply pull themselves up by their boot straps? What is the fair and rational answer to this question?

Sotomayor and Race

Written by Rebecca Zietlow on June 4th, 2009

Given the years of virulent racism that minorities in our country have faced throughout our history, it is a bit shocking to see right wingers like Newt Gingrich and Rush Limbaugh accuse Suprefinal-4.jpgme Court nominee Sonia Sotomayor, the first Hispanic ever nominated to that Court, of being a “racist,” based solely on one remark that she made in a speech seven years ago.   On this subject, I highly recommend Charles Blow’s recent New York Times editorial, “Rogues, Robes and Racists.”   As Blow notes, there is no evidence in Sotomayor’s life, legal career or judicial record of her ever acting like a racist.  Blow contrasts Sotomayor’s record with that of Chief Justice John Roberts, who was reported by Newsday magazine to have made racist and sexist jokes while working in the White House for the President Reagan.  What is most significant is that Roberts didn’t just talk the talk, he has spent his entire career walking the walk, working to roll back the civil rights gains of women and minorities from the 1960s and 1970s.  As Bobby notes below, quoting Jeffrey Toobin, Roberts has continued this pattern as Chief Justice, ruling against criminal defendants, non-white civil rights plaintiffs (he ruled in favor of the white plaintiff challenging the use of race to avoid the re-segregation of Seattle public schools) and plaintiffs suing corporations.  Does that mean Roberts is a racist?  Not necessarily, but as Blow observes, there is a heck of a lot more evidence of his racism than there is of Sotomayor’s.

Blow’s editorial is so powerful and eloquent that I really don’t have much to add.  What I can add, however, is a bit of context to the speech that has gotten Sotomayor into so much hot water.  In a speech during a symposium on Latino judges, hosted by La Raza Law Journal, Judge Sotomayor said that “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.”  Why would Sotomayor say such a thing?  It is clear from reading her speech that Sotomayor was asked to comment on how her experience as a Latina woman colors her perception of issues on the bench.  This subject is understandable given the Critical Race Theory roots of the La Raza publication that hosted Sotomayor’s speech.  At the risk of over-simplification, one theme of critical race theory is questioning the assumption that law is neutral and un-biased, and examining the ways in which our laws reinforce the existing power structures in our society, including the privileging of the concerns of white people, men, and the rich.

I have no idea what Sotomayor thinks about critical race theory, but it is clear from her speech that she is responding to this CRT critique of the law.  In her speech, Sotomayor describes her personal experiences as a “NewYorkrican” and acknowledges that these experiences have an effect on how she sees the world.  But in a much less quoted remark at the end of the speech, Sotomayor goes on to observe, “I am reminded each day that I render decisions that affect people concretely and that I owe them constant and complete vigilance in checking my assumptions, presumptions and perspectives and ensuring that to the extent that my limited abilities and capabilities permit me, that I reevaluate them and change as circumstances and cases before me requires.”  That’s the most we can hope for from any judge, and Sotomayor’s judicial record reflects the fact that she has been pretty successful at it.

In his majority opinion striking down two local school districts’ attempts to use race as one factor in school assignments in order to reduce racial stratification in the public schools, Justice Roberts famously noted, “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”  I agree with Roberts’ sentiment, but I also agree with the Critical Race Theorist view that race discrimination is more complicated than Roberts’ remarks suggests – that we are all affected by unconscious bias.  Given the choice between Roberts’ overly simplistic remark and Sotomayor’s sophisticated evaluation, and the choice between their records on racial issues, I prefer Sotomayor.