Saturday, July 4, 2015

Student Challenge to Affirmative Action Returns to High Court


Fisher v. University of Texas[1]

In 2013 the Supreme Court issued a decision in Fisher v. University of Texas which affirmed the constitutionality of affirmative action admissions programs. However, the case was remanded to the Court of Appeals for a determination of whether University of Texas’ (UT) admission process is “narrowly tailored” under the majority’s new interpretation of that requirement.

The Fifth Circuit reconsidered the question and held UT’s policy was constitutionally permissible stating “It is equally settled that universities may use race as part of a holistic admissions program where it cannot otherwise achieve diversity,” Fisher appealed to the Supreme Court again. On June 29, 2015, the Court agreed to re-hear her case.
Many observers fear that the decision to reconsider the Fisher means UT's admissions policy could be in danger. An adverse result could jeopardize race-conscious admissions at universities across the nation.

Under the Fourteenth Amendment governmental policies that classify on the basis of race must have a "compelling justification" and the means chosen must be "narrowly tailored" to achieving a legitimate governmental interest. In Grutter v. Bollinger, the Supreme Court applied this standard and affirmed the constitutionality of University of Michigan's affirmative action admissions program.
The challenger in Fisher is a Texas resident who was denied admission to UT’s entering class in 2008. She contended that UT’s race-conscious admissions policies are unconstitutional because they reached beyond promoting the educational benefits of diversity and sought to achieve a quota that reflected Texas' racial composition. Fisher also argued that Texas had not given adequate consideration to race-neutral alternatives. Her alternate argument was minorities had already achieved a "critical mass" under Texas' "Top Ten Percent" law, making additional efforts to promote diversity unnecessary.

Under Texas' Top Ten Percent law, students with grades in the top tenth percentile of their high schools' graduating classes are automatically admitted. Applicants who are not in the top ten percent compete for admission based on their academic and personal achievement indices. Race is considered as one element of the personal achievement score but it is only one component of the total personal academic index.
In Fisher the Court affirmed Grutter’s ruling that student body diversity is a compelling state interest. The case focused instead on the “narrow tailoring” requirement. The majority held that the lower courts applied the wrong analysis when they deferred to UT's judgment regarding the need to consider race in its admissions process. The Court found that this misallocated the burden of proof. Universities, rather than plaintiffs, must show that race-neutral alternatives would not suffice to produce the educational benefits of diversity. The case was remanded to the Court of Appeals for the Fifth Circuit which ruled in UT’s favor. The Supreme Court has agreed to hear the case again.

The decades-long campaign against affirmative action has been relentless. Four of the Supreme Court Justices, Antonin Scalia, Clarence Thomas, Samuel Alito and Chief Justice John Roberts are adamantly opposed to any form of affirmative action. Anthony Kennedy has never voted in favor of affirmative action but has thus far been unwilling to outlaw affirmative action altogether.
It is not certain that the court will issue a broad ban on any consideration of race. The justices could issue a narrower ruling. However, if the Court were satisfied with Fisher’s outcome at the appellate level there would have been no reason to hear the case for a second and unprecedented time. This raises a number of suspicions regarding the Justices’ motives. In affirmative action, voting rights, and employment discrimination, a conservative majority led by Chief Justice John Roberts, has amassed a record of rulings that are hostile to the interests of African Americans. It is unlikely that this trend will change. Fisher may turn out to be major setback for affirmative action.
 



[1] Leland Ware, Louis L. Redding Professor of Law, University of Delaware

Monday, June 15, 2015

The Roberts Court's Assault on Civil Rights

By Leland Ware

John Roberts was sworn in as Chief Justice of the U.S. Supreme Court on September 29, 2005. During his confirmation hearing Roberts said:

Mr. Chairman, I come before the committee with no agenda. I have no platform. Judges are not politicians who can promise to do certain things in exchange for votes…I will decide every case based on the record, according to the rule of law, without fear or favor, to the best of my ability. And I will remember that it's my job to call balls and strikes and not to pitch or bat.

Despite this “solemn” promise, Roberts set out, almost immediately, to advance an anti-affirmative action agenda. His decisions also show a record of hostility to the Civil Rights advances of African Americans.

Student Assignment Plans

In a 2007 case, Parents Involved in Community Schools v. Seattle School District and Meredith v. Jefferson County School District, the Roberts Court struck down voluntary school desegregation programs.  School districts in Seattle, Washington and Louisville, Kentucky, developed assignment plans which assured that student populations in individual schools would reflect the racial demographics of the school districts. The purpose of both programs was to prevent segregation in individual schools.

Under the Equal Protection Clause of the Fourteenth Amendment the legal standard that applies to governmental policies that classify on the basis of race is "strict scrutiny." To satisfy this requirement, the government must have a "compelling justification" for the classification and the means chosen must be "narrowly tailored" to achieving a legitimate governmental interest.

In Parents Involved, groups of white parents filed suits contending that their children had been denied admission to the schools they preferred. The question in both cases was whether public school officials could use race conscious student assignment plans without violating the Fourteenth Amendment.

Roberts rejected diversity as a compelling governmental interest in elementary and high school student enrollments. Race could never be a factor in admissions assignments. He added cynically, [t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” This disingenuous comment equates affirmative action to remedy past discrimination to a “no blacks allowed” sign on a restaurant in the pre-Civil Rights South. There can be no legitimate comparison between the two.

In 2003, the Supreme Court ruled in a case involving the University of Michigan that the Equal Protection Clause did not prevent the use of race-conscious admissions criteria to promote student body diversity. This should have been controlling legal precedent in Parents Involved. However, Justice Roberts’ plurality opinion attempted to distinguish the Michigan decision because it involved what he asserted were the “unique” circumstances of higher education. Roberts did not explain how student body diversity in higher education is different from diversity in elementary and secondary schools. This was a classic case of “distinction without a difference” when both principles were exactly the same.

Associate Justice Anthony Kennedy disagreed with Roberts stating a “compelling interest exists in avoiding racial isolation.” However, Kennedy and four other justices agreed that the assignment plans were not “narrowly tailored.” Race-neutral means should have been explored before resorting to a process that considered the students’ race. This created the 5-4 ruling against the school districts. Parents Involved makes efforts to achieve student body diversity in elementary and high schools extremely burdensome and difficult.

Disparate Impact Cases

In another case, Ricci v. DeStefano (2009), the Roberts court ruled that white firefighters in New Haven, Connecticut, were victims of discrimination because they were not promoted after passing tests for lieutenant and captain positions. The test results were discarded after it was shown the test-based promotions would have excluded a disproportionate percentage of African American test takers. The majority held that New Haven acted with an intent to discriminate against the white and Hispanic firefighters.

To resolve what it viewed as a tension between the disparate impact and disparate treatment requirements the majority in Ricci imported a standard from affirmative-action jurisprudence under which race conscious actions by government actors are constitutional only when there is a “strong basis in evidence” that remedial actions are necessary.

This decision undermines long-standing disparate impact jurisprudence in which race-neutral policies are unlawful when they exclude a disproportionate percentage of racial minorities without a “business justification.”  This is exactly what the promotional examinations would have done in this case. New Haven acted in accordance with existing precedent. The Roberts majority upended well-established precedent to the detriment of racial minorities.

 Evidence of racial resentment can be found in Associate Justice Samuel Alito’s concurring opinion in Ricci. Alito described in detail his rank speculation about events surrounding the decision not to certify the firefighters’ examinations. He presented an elaborate scenario in which New Haven’s Mayor was heavily influenced by Reverend Boise Kimber, an African American minister. Alito depicted Kimber as an “angry black militant” who intimidated whites by calling them racists in public settings. Under Alito’s scenario, Kimber engineered the decision to prevent the white and Hispanic firefighters from receiving promotions. According to Alito’s fertile imagination:

Reverend Boise Kimber… is a politically powerful New Haven pastor and a self-professed  ‘kingmaker’ …On one occasion, ‘[i]n front of TV cameras, he threatened a race riot during the murder trial of the black man arrested for killing white Yalie Christian Prince. He continues to call whites racist if they question his actions… [On another occasion] Rev. Kimber told firefighters that certain new recruits would not be hired because “they just have too many vowels in their name[s] “…After protests about this comment, Rev. Kimber stepped down as chairman of the BFC… but he remained on the BFC and retained “a direct line to the mayor.”

None of these claims was established at any trial. Alito speculated that “a reasonable jury could easily find that the city’s real reason for scrapping the test results was not a concern about violating the disparate impact provisions of Title VII but a simple desire to please a politically important racial constituency.” Alito portrayed Kimber as an angry black bigot who frightened and intimidated whites. Kimber is an imposing, dark-complexioned African American male. Alito’s harsh portrayal fits the longstanding “Black Buck” stereotype; a large, hot-tempered, threatening, black male who defies white authority. Alito’s negative perception of Kimber suggests that he viewed Ricci through a fog of racial stereotypes and saw the case as an example of less qualified blacks benefiting from a “rigged” process that disadvantaged more deserving whites.

University Admissions

In 2013, the Supreme Court decided Fisher v. University of Texas. In an earlier case, Grutter v. Bollinger, the Supreme Court applied strict scrutiny and affirmed the constitutionality of University of Michigan's affirmative action admissions program. In Fisher the Court affirmed Grutter’s ruling that student body diversity is a compelling state interest.

The case focused instead on the “narrow tailoring” requirement. The majority held that universities must show that race-neutral alternatives would not suffice, stating “[t]he reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity.”

This reverses the burden of proof in affirmative action cases and imposes on universities the nearly impossible obligation to show there are no workable race-neutral alternatives. Affirmative action survived Fisher hypothetically, but not in reality. The Roberts Court achieved its goal of gutting affirmative action.

Voting Rights

In one of its most significant and far-reaching decisions, the Roberts Court in Shelby County v. Holder, struck down the preclearance formula for the Voting Rights Act, gutting the law and opening the door to voter suppression tactics. Under Section 5 of the Voting Rights Act, states and jurisdictions, mostly in the former Confederate states, had to submit voting law changes for pre-approval (“preclearance”) by the Justice Department. Roberts wrote that the preclearance requirement was no longer necessary because in his view, the tide of racism in America and the South had receded. It was unfair, he contended, for the federal government to discriminate against states to prevent them from discriminating against minority voters.

The federal government argued that the evidence on which Congress in reenacting Sections 4 and 5 included 15,000 pages of testimony, reports, and data regarding racial disparities in voter registration, voter turnout, and electoral success; the nature and number of Section 5 objections; judicial preclearance suits and Section 5 enforcement actions; successful Section 2 litigation; the number of justice department information requests; reports from federal election observers; and evidence of racially polarized voting.

Rejecting the mountain of evidence in the voluminous record developed during the 2006 Congressional hearings, the majority found that preclearance was justified in the 1960s but conditions have changed over the 50 years since the VRA was originally enacted. The current record did not show the widespread and rampant discrimination that was common in the 1960s. 

What happened in the case was a Supreme Court majority re-weighing the evidence that Congress amassed which is precisely what an appellate court cannot do. This violates the well-established rule that courts are precluded from re-weighing or reconsidering evidence during an appeal. There is another, equally forceful principle that the Supreme Court should "invalidate a congressional enactment only upon a plain showing that Congress has exceeded its constitutional bounds." No such showing was made in this case. Roberts ignored the extensive congressional record and arrogated to himself the authority to re-weigh Congressional fact-finding when there was no basis for doing so except to advance his anti-minority agenda. After the Shelby County decision, Republican-controlled states have rushed to institute all sorts of voting restrictions that would otherwise have been blocked. 

Affirmative Action

In, Schuette v. BAMN, (2014) the Court ignored controlling precedent and overruled an appellate court’s pro-affirmative action decision. The central question was whether an amendment to a state’s constitution prohibiting race conscious affirmative action in university admission decisions violated the Equal Protection Clause of the Fourteenth Amendment.

The challengers in Schuette relied on Reitman v. Mulkey, 387 U. S. 369 (1967) in which voters amended the California Constitution to prohibit any state legislative interference with an owner’s prerogative to decline to sell or rent residential property on any basis. The Supreme Court concluded that the state constitutional provision was a denial of equal protection.

In another case, Hunter v. Erickson, 393 U. S. 385 (1969) voters amended a city charter to overturn a Fair Housing ordinance and to require that any additional antidiscrimination housing laws be approved by referendum. The Supreme Court found that under the “political process” doctrine, by singling out antidiscrimination ordinances, the city charter amendment “places special burden on racial minorities within the governmental process,” making it as impermissible as  any other government action taken with the intent to injure a racial minority.

Relying on Reitman and Hunter the challengers in Schuette argued that the amendment placed special burdens on minority groups in a manner that violated the Equal Protection Clause. Justice Anthony Kennedy delivered the opinion for the three-justice plurality. Kennedy argued that the issue was whether the voters of a state could choose to prohibit the use of racial preferences in the decisions of governmental bodies. His opinion concluded that the attempt to define and protect interests based on race ran the risk of allowing the government to classify people based on race perpetuating the same racism such policies were meant to alleviate. While voters may determine that some race-based preferences should be adopted, it was not the role of the courts to disempower the voters from making such a choice. The reasoning of Reitman and Hunter was rejected. This was another battle in the Supreme Court’s war against affirmative action and other measures that seek to advance the equal rights of African Americans.

Conclusion

The tide of racism in America and the South has not receded nearly as much as Justice Roberts contends. If anything, racial antagonism and hostility has grown as the nightly news reports of police violence against African Americans demonstrate. Voter suppression tactics are rampant. Roberts’ disingenuousness, lack of adherence to precedent and his overturning decades of prior decisions shows that his "real" agenda is anti-black.
Leland Ware is the  Louis L. Redding Professor of Law & Public Policy at the University of Delaware.

Tuesday, May 26, 2015

"Without Mercy" is Nominated for Lillian Smith Book Award

Without Mercy: The Stunning True Story of Race, Crime and Corruption in the Deep South

by David Beasley


On December 9, 1938, the state of Georgia executed six black men in eighty-one minutes in Tattnall Prison's electric chair. The executions were a record for the state that still stands today. The new prison, built with funds from FDR's New Deal, as well as the fact that the men were tried and executed rather than lynched were thought to be a sign of progress. They were anything but. While those men were arrested, convicted, sentenced, and executed in as little as six weeks---E. D. Rivers, the governor of the state, oversaw a pardon racket for white killers and criminals, allowed the Ku Klux Klan to infiltrate his administration, and bankrupted the state. Race and wealth were all that determined whether or not a man lived or died. There was no progress. There was no justice.
David Beasley's Without Mercy is the harrowing true story of the Great Depression, the New Deal, and the violent death throes of the Klan, but most of all it is the story of the stunning injustice of these executions and how they have seared distrust of the legal system into the consciousness of the Deep South, and it is a story that will forever be a testament to the death penalty's appalling inequality that continues to plague our nation
 
REVIEWS:
 
“Not often does a single book deal with governmental corruption, poverty, inequality, history and crime. David Beasley's book does all that - and does it masterfully…The grinding poverty that drenched the state is described in a way that tears at the soul...Anyone interested in the sufferings of the Great Depression and in criminal justice will benefit from perusing this work. It is a keeper, one of the best I've seen in a long time.” - The Oklahoman
 
“David Beasley's prodigious research has excavated the bones of a sordid time in Georgia's history, when the unholy alliance of corruption and white supremacy, operating behind the mask of civility and the hood of the Ku Klux Klan, perverted justice all the way to the death chamber. Beasley shows men of privilege and of penury, white and black, all of them convicted criminals, as they move closer to the electric chair and beg for exemption from one of the nation's largest mass executions in a single day.” - Hank Klibanoff, Pulitzer Prize-winning coauthor of The Race Beat: The Press, the Civil Rights Struggle, and the Awakening of a Nation
 
“The modern death penalty in Georgia was preceded not too many years before by a system that was plagued by racism, injustice, and political corruption. In his fascinating book, Without Mercy, David Beasley tells the stories of many who vainly sought justice in this earlier system. Hopefully, all such prejudice and official misconduct has been weeded out, but it would be naive to think The modern death penalty in Georgia was preceded not too many years before by a system that was plagued by racism, injustice, and political corruption. In his fascinating book, Without Mercy, David Beasley tells the stories of many who vainly sought justice in this earlier system. Hopefully, all such prejudice and official misconduct has been weeded out, but it would be naive to think that human nature has changed so radically that executions can now be carried out without deep concerns.” - Richard C. Dieter, executive director of the Death Penalty Information Center
 
“David Beasley's superb Without Mercy is that rare true-crime book that deepens your understanding of a time and place even as it shakes you to the bone. If Raymond Chandler and James Agee had gotten together, this is what they might have written.” - Steve Oney, author of And the Dead Shall Rise: The Murder of Mary Phagan and the Lynching of Leo Frank
 
“Without Mercy builds outward from one dramatic event, the mass execution of six black men in Georgia in 1938, to tell a compelling story that rings the bell of justice to our own time.” - James H. Madison, author of A Lynching in the Heartland: Race and Memory in America
 
“Without Mercy reads like a John Grisham thriller, but unfortunately, it isn't. It is, sadly and regrettably, entirely true. In a meticulous and measured book that lifts the curtain on a handful of murders that took place in Georgia in the New Deal era, David Beasley has illuminated the role that race, wealth, social status, and privilege play in determining who lives and who dies in our nation's execution chambers. This is not only history and crime-writing at its very finest, it is a haunting and searing moral indictment of a legal system that remains to this day characterized by the very same inequalities.” - David R. Dow, author of The Autobiography of an Execution
 
“Beasley builds his thesis case by case. [and] retains his reporter's objectivity as he records the facts.” - Book Reporter
 
“David Beasley's fastidiously researched Without Mercy tells the story of a justice system that was anything but just... Much like a nightmare or a heart-pounding action movie, this is a story one doesn't easily forget. Without Mercy is history, but its shadows and echoes are still very much alive today in the unsettling and eye-opening reality of capital punishment... A terrifying study of how lopsided the justice system can be while still technically maintaining the letter of the law.” - Shelf Awareness
 
“This is a gripping read for anyone... This is a must read.” - Charleston Chronicle
 
“The book Without Mercy, is a stunning true story of race, crime and corruption in the deep South as it pertains to the pattern of convicting and in some cases executing people of color without fair a trial.” - Baltimore Sun
 
“[Beasley] effectively juxtaposes the lives of the black men who were executed with white men who were not, following their passage through the judicial system. Beasley's well-documented and vivid account ultimately puts capital punishment itself on trial.” - Publishers Weekly
 
“Beasley's catalogue of inequities accrues to a kind of tragic narrative, a tale in which progress is too slow to save those whom tradition would rather let die.” - The Boston Globe
 
“Georgia's history is a goldmine of corruption, and David Beasley... has reached in and grabbed a few glittering chunks for examination... Without Mercy is well researched and Beasley moves along his various plots with a mannered precision that emphasizes the giddy perversities of Georgia life in the '30s.” - Atlanta Journal-Constitution
 
“Must-read.” - New York Post

Saturday, May 9, 2015

"Desire and Disaster in New Orleans" is Nominated for Lillian Smith Book Award

Desire and Disaster in New Orleans:
Tourism, Race and Historical Memory
By Lynnell L. Thomas


New Orleans has long been a place of desire, luring visitors to the city “to do things that they felt they couldn’t do in other places,” said Lynnell L. Thomas.

But along with the pleasures that New Orleans offers — good food, music and other charms — it is a city with a painful past and sometimes disastrous present.

In Desire & Disaster in New Orleans: Tourism, Race and Historical Memory (Duke University Press, 2014), Thomas examines how New Orleans is presented — pre- and post-Katrina — in tourism advertising and through the guided tours that thousands of out-of-towners take every year.

“All of those things that I talk about, I’m a product of and appreciate,” said Thomas, a native of New Orleans. “It is this strange thing of being an insider and also being critical.”

Thomas earned a Master of Liberal Arts from Tulane University in 1997, and then went on to get a PhD from Emory University. She is now an associate professor and chair of American studies at the University of Massachusetts–Boston.

Thomas began to research the mythologies of New Orleans tourism when she discovered “servant” dolls sold in French Quarter souvenir shops.

A tag on a brightly dressed doll, Cleo, Market Lady, described her “high station” in a household that she ran smoothly, “respected by the other servants and loved by the family she served.”

But, wait a second, thought Thomas. These attractive dolls ignore the fact that black women running households on a plantation before the Civil War were not “servants” but instead slaves performing “unpaid, coerced labor to sustain the plantation system.”

It is a disservice to the richness and depth of New Orleans culture to neglect, deny or distort the pain as well as the pleasure that is imbued in it, said Thomas. “It certainly won’t help us preserve it.”