Tuesday, August 8, 2017

What Jeff Sessions will Learn from a Truly Honest Examination of University Admissions Policies

Affirmative Action and Angry White Men
By Leland Ware

Multiple media outlets report that the Trump administration is preparing to investigate university admissions programs that allegedly discriminate against white applicants. It is highly unlikely that the Justice Department would be able to find any such programs. The Supreme Court has affirmed the validity of affirmative action in every case that has come before it. In the first case, Board of Regents v. Bakke, the Supreme Court approved the constitutional validity of affirmative action with the caveat that numerical quotas could not be used to promote student body diversity.

Decades later in Grutter v. Bollinger the Supreme Court affirmed the validity of affirmative action admissions at the University of Michigan’s law school. In three more recent cases involving the University of Texas, the Court reaffirmed the validity of policies in which race was considered to enhance student body diversity. The bottom line is that race can be one among several considerations when minorities are underrepresented in a university’s student body.

The Supreme Court has made clear in case after case that race can be a factor, but it cannot be the predominant or motivating factor. The Justice Department is not likely to find any schools in which race is the primary factor in admissions decisions. There have been too many cases, too many academic journal articles, and too many professional conferences to assume colleges and universities do not know the rules.

Individuals involved in the process know how affirmative action works; what is permitted and what is not.  Most schools use a “holistic” approach to admissions, which involves a “full file” review of individual applications. Admissions decisions are not a mechanical, by-the-numbers process.  That approach was struck down in Gratz v. Bollinger.  Admissions Committees consider a number of factors including standardized test scores, grade point averages and academic recommendations. There are several other factors that come into play. These include, among other considerations, musical talent, athletic ability, legacies and the sons and daughters of wealthy donors.

The widely held belief that grades and test scores are the only considerations is not accurate.  Most schools have a set of “automatic admits” for the students with the strongest academic records. At the other end are automatic denials for students with the weakest records. The vast majority of the students fall into the middle range. Their academic records indicate that they can succeed as students. The question is who among them should be selected for the limited number of seats that are available. That is where the softer, more subjective considerations come into play. 

The irony of the claims of “reverse discrimination” is that no individual applicant can prove that he or she would have been admitted but for minority students who were admitted with lower grades and test scores. The white students who sued Michigan and Texas found there were other white applicants who were admitted with lower grades and test scores than theirs.  Numbers do not tell me entire story. This is what Attorney General Sessions will learn when he moves beyond his unfounded assumptions. Sessions’ plans are merely pandering to those in Trump’s base. These are whites who believe that people like them have been passed over for a position or promotion in favor of a less-qualified minority. This is the sort of racial resentment that propelled Trump’s election.  

Seventy years ago the Civil Rights Act of 1957 established the Civil Rights Division of the U.S. Department of Justice. It has the responsibility of upholding the civil and constitutional rights of all Americans, particularly those who are most vulnerable. Sessions’ plan to subvert the mission of the Civil Rights Division to appease angry white men is a sad commentary on the state of the nation.

Leland Ware is Louis L. Redding Professor of Law, University of Delaware.

Saturday, August 5, 2017

Elmore Nickelberry: 53 Years on a Memphis Garbage Truck

By: Harold Michael Harvey

Elmore Nickelberry
In 1964 Elmore Nickelberry was 32 years old. He was the father of five children.  He was a hero of sorts, but no one knew it or if they did know it, they gave him no recognition for his sacrifice and service to his country.

That year, Nickelberry was discharged from the United States Army, where he had served in the early stages of America's involvement in the Vietnam War. His release was bitter sweet.

On the one hand he was released from his tour of duty as President Lyndon Johnson was preparing to escalate America's involvement in Southeast Asia. But in 1964 he was unemployed and had to find a way to support his family back home in Memphis, Tennessee without the benefit of his Army wages.

It was hard for a Black man to find work, meaningful or otherwise in Memphis in the 1960s. Nickelberry found two menial part time jobs which required him to work during the night hours. He was constantly seeking a daytime job to replace the two part time jobs he had.

Each morning after completing his shift on the second part time job, Nickelberry would look for a full time job with day hours. The Memphis Sanitation Department had full time jobs that he could work during the day. The work conditions were very filthy; it was hard labor and demeaning to the honor and dignity of a military hero.

Nevertheless, Nickelberry sought a job with the Memphis Sanitation Department as a garbage man. At the very least the job would allow him to be at home with his family at night so that he could offer his family the protection that he had rendered to Vietnamese families during his tour of duty.

The problem with this idea was that Memphis had about as many Negroes as it wanted to pay on its sanitation trucks and they were not in any hurry to hire anymore Negroes to pick up garbage in the city. The department was content with working the ones they had very hard.

For a period of  two weeks Nickelberry would leave his second job every day and go to stand in a line with other Negro men in front of the sanitation department office seeking a chance to apply for a job to pick up garbage on the side of streets made famous by W. C. Handy, Elvis and B. B. King.

With Bernard Lafayette
"It would get hot out there," Nickelberry said recently at the Peabody Hotel where he was the guest of the Southern Christian Leadership Conference during their 59th National Convention.

"It was hot out there. I was tired and I got hungry, but I stood in that line. I was used to standing in formation from the Army, so it was not a big problem for me to do. Then one day a white fellow came out of the office," he said.

"Boy, you been standing out here for two weeks, aint you," the white fellow queried?"

"Yes sir, I sure have," Nickelberry said to the sanitation employee.

"Come over here, I think I can find a job for you," the staffer said.

The next day, Nickelberry was on the back of a garbage truck, jumping off to pick up garbage cans and dump them into the truck and jumping back on the truck for the next stop.

The job was as bad as it looks from the to any reasonable observer: sweaty, stinky, low paying, unsanitary; and supervised by a mean spirited white boss.

By the time that Nickleberry had spent four years on the job, Black sanitation workers had become increasingly vocal in expressing concerns about theire working conditions. It was now 1968, and the only job a Black man could get in the Sanitation Department was on the back of the truck. There were no white garbage men working with Black crews. However, all of the garbage truck drivers were white.

On February 1, 1968 two sanitation workers were accidentally killed on a sanitation truck. Their deaths led sanitation workers to organize for better working conditions.

First and foremost these workers wanted to be treated like the grown men that they were; as evidenced by the protest posters they carried during the Memphis Sanitation Workers Strike: "I Am A Man,"  one placard proudly pronounced.

Nickelberry joined the picket line and endured the wrath of Mayor Henry Loeb, III, an avowed segregationist, and the sanitation department managers. When Loeb refused to negotiate with the sanitation strikers they struck, bringing a halt to garbage collection in the city.

The strike was supported by both Roy Wilkins, President of the National Association of Colored People and Dr. Martin Luther King, Jr.

King had never become involved in a labor dispute, and many of his confidants advised him against getting involved with the sanitation strike. We know the rest of this story. King did travel to Memphis. He got in the middle of this labor war. He was gunned down outside of room 306 of the Lorraine Motel on April 4, 1968.

Twelve days after King was murdered, Loeb met with the sanitation workers and conceded to their core demands for better working conditions, recognition of the union and a pay raise.

Following the strike, Nickelberry went back to work on the back of the sanitation truck. Today Nickelberry is 85 years old, and every work day since the strike ended in '68, he has been on a Memphis Sanitation truck. The only difference is he now works as a driver.

"Dr. King gave his life for that strike, did he die in vain," he was asked?

"Many things have changed, but there are a lot more things that need to change," he said after a reflective moment.

"How much longer are you going to work," a reporter asked Nickelberry during the SCLC conference.

"Oh, I don't know. I may retire next year. It'll be 50 years since the strike," he said.

"You have worked this long, what are you going to do in retirement," he was asked.

"I'll probably buy me a wide brimmed hat, a pair of brogan shoes and travel out to California and do some fishing in the Pacific Ocean," he said.

Harold Michael Harvey is an American novelist and essayist. He is a Contributor at The Hill, SCLC National Magazine, Southern Changes Magazine and Black College Nines. He can be contacted at hmharvey@haroldmichaelharvey.com

Sunday, July 2, 2017

On this Independence Day, a Call to Action in the Struggle for Fair Courts



Our Struggle for a Fair Justice System is Deeply Rooted in the American Struggle. Will You Join Us?


“The ultimate measure of a man is not where he stands in moments of comfort and convenience, but where he stands at times of challenge and controversy.”


            - Martin Luther King, Jr.

Throughout our nation’s history, progressive change has come about in large part because activists have worked outside of official channels to create a climate that is more conducive to that change. 

Frederick Douglas once observed that “The whole history of the progress of human liberty shows that all concessions yet made to her august claims, have been born of earnest struggle. . . . If there is no struggle there is no progress. Those who profess to favor freedom and yet depreciate agitation, are men who want crops without plowing up the ground, they want rain without thunder and lightening. They want the ocean without the awful roar of its many waters. This struggle may be a moral one, or it may be a physical one, and it may be both moral and physical, but it must be a struggle. Power concedes nothing without a demand. It never did and it never will. "

This is a principle as old as the American Republic.

For example, it was in the Treaty of Paris that King George III of Great Britain formally acknowledged the existence of the United States as free, sovereign and independent, but few today would attribute this accomplishment solely to the efforts of Benjamin Franklin, John Adams, and the other diplomats who directly negotiated the Treaty. Rather, it generally accepted that Britain would never have even come to the negotiating table without  the “agitation” of people like Patrick Henry and Thomas Paine (which some of their contemporaries viewed as outrageous), together with the valor of those who risked their lives at Lexington, Concord, Saratoga and Yorktown (which some of their contemporaries viewed as extreme).

From another era, we have the story of Sidney Hillman, who served for a time as head of the Amalgamated Clothing Workers Union.  After helping Franklin Roosevelt get elected in the Presidential campaign of 1932, Hillman is said to have gone to the White House and presented an ambitious agenda of progressive reforms for the new President to adopt.  President Roosevelt supposedly replied: “Sidney, I agree with everything in your proposal. It is all exactly right.  Now you just go back home and make me do it.”  Following the President’s admonition, Hillman proceeded to “make” the President embrace many of his recommendations through a campaign of what Frederick Douglas would have described as “agitation.”

Years later, Martin Luther King, Jr. is said to have had a similar conversation with President Lyndon Johnson.  In response to Dr. King’s call for voting rights legislation and for the appointment of more African American officials, President Johnson is said to have challenged Dr. King to essentially “make me do it”. It is doubtful that many of the progressive initiatives sponsored by President Johnson could have been achieved without “agitation” on the part of advocates such as Dr. King and others.

In more recent times, the Plaintiffs in Brooks v. State Board of Elections played a role similar to that of Sidney Hillman and Martin Luther King.  They saw that those who were charged with administering justice in the State of Georgia in the 1990s were not representative of the communities that they served, and not representative of the populations whose lives they influenced. With little thought for their own personal needs, they “agitated” through the courts to make Georgia’s justice system more representative, with some measure of success.

More than 30 years after the Brooks litigation, the goal of a representative judiciary remains an elusive one, and progress toward that goal appears to have stalled.  There are numerous communities throughout the State of Georgia where persons of color constitute a majority of the population, but in which there have never been any judges of color.  Meanwhile, appointing authorities too often appear to have embraced a single-minded focus on filling judicial vacancies only with people who look like they look and think like they think. We are headed toward a closed, stagnant and inbred system in which the quality of justice will inevitably decline.

How are we to reverse this disastrous trend? Only by concerted action on the part of those of us who truly care about the quality of justice.

But concerted action begins with individual resolve. It only takes one person at a time. One person can decide that, sometimes, there are some things in life that are bigger than himself/herself or his/her career.  One person can resolve not to give in to apathy, discouragement, distrust, or disappointment. One person can decide that “I’m too busy to fight for this cause” is not an acceptable answer. Each person who stands stand silent, because others are uncomfortable, risks condemning future generations to a judiciary that is not representative of their communities or responsive to their interests.

We are on the precipice of change in our country and in our State. Our populations are becoming more and more diverse and, consequently, more and more open to the reality that they can use their votes to counteract the damage that some of our politicians are doing through the appointment process. In order to take advantage of these developments, it will be necessary for each of us to be that one person,  working with others of like mind, fighting for justice, willing to commit himself or herself to speaking up and speaking out about why our courts need to be representative and accountable to the communities they serve.  This is, after all, a major element of the “more perfect union” that we all profess to seek.

This is a moral issue, for which we must all stand up in unison.

Can we count on you?

For more information, click here.

Sunday, May 28, 2017

Supreme Court Strikes Down North Carolina's Brazen Racial Gerrymander



Cooper v. Harris[1]

On May 22, 2017, the Supreme Court held that North Carolina legislators redrew two legislative districts in ways that intentionally discriminated against African American voters. Using the pretext of complying with the Voting Rights Act (VRA), North Carolina’s General Assembly redrew the boundaries of two legislative districts to dilute the voting strength of African Americans.

The events leading to this case began when the 2010 census showed that North Carolina’s District 1 was significantly underpopulated. To comply with the one-person-one-vote principle, the State needed to place almost 100,000 new people in the district. The other District, (District 12), did not need any changes as it was only overpopulated by 3,000 people out of over 730,000 residents. Despite the lack of any significant population changes boundary lines were redrawn in ways that significantly altered the district’s racial composition. It gained approximately 35,000 African-Americans of voting age and lost 50,000 whites. The black voting age population increased from 43.8% to 50.7%.

To prevail on a claim of racial gerrymandering the plaintiff must prove that race was the motivating factor in the decision to place a significant number of voters in or outside of a particular district. This requires a showing that the legislature subordinated traditional districting considerations to racial considerations. If racial considerations predominate, the burden shifts to the State to prove that its race-based voter distributions serve a “compelling interest” and are “narrowly tailored” to achieving that goal. The Supreme Court has held that compliance with the VRA can be a compelling justification.

In this case legislators decided African-Americans should constitute majority of the voting-age population in District 1. They argued that the district needed a majority-minority voting population to comply with the VRA. In Thornburg v. Gingles the Supreme Court identified three conditions for proving vote dilution under Section 2 of the VRA. First, a minority group must be sufficiently large and geographically compact to constitute a majority in a legislative district. Second, the minority group must be politically cohesive. Finally, the district’s white majority must vote sufficiently as a bloc to defeat the minority’s preferred candidate.

In this case North Carolina’s evidence did not satisfy the third Gingles prerequisite; white bloc-voting. The evidence showed that year after year, District 1 was a “cross-over” district, in which white voters helped African Americans to elect the candidates of their choice.

In the case of District 12, North Carolina claimed that legislators redrew lines to “pack” the district with Democrats, not African Americans. Rejecting this argument the Supreme Court concluded that the evidence presented at trial adequately supported the conclusion that race, not partisan considerations, was the predominate factor in the district’s configuration.

The Court also rejected the State’s claim that a plaintiff in a racial-gerrymandering case had to prove that an alternative districting plan would have the same partisan impact without the same racial demographics.

As one commentator explained, “the equal protection clause does not have a partisanship exception.” Republican-dominated state legislatures have created brazen racial gerrymanders, pushing black voters out of GOP districts and herding them into Democratic ones. States attempting to use packing to dilute the voting strength of black or Latino voters cannot hide behind the Voting Rights Act to justify doing so. Republican efforts to manipulate and corrupt the electoral process undermine the foundations of our democracy.


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