Category: Civil Rights

1

Blogger Wrong, Issues Embarrassing Retraction

I payoff on my bets! In a post last May, I argued that a Fourth Circuit panel in Jordan v. Alternative Resources Corp. had erroneously dismissed an employment discrimination claim. The case involved a situation where white workers watching a news account about the DC snipers had said, in front of an African-American employee, “they should put those two black monkeys in a cage with black apes and let the apes fuck them.” The court found that NO reasonable African-American man, having heard these comments at work, could ever have concluded he was experiencing a hostile environment.

I suggested that despite the conservative nature of the Fourth Circuit, this outcome was sufficiently problematic that the court would reverse en banc. MJ, in a comment, issued a bet that it would not reverse. He promised to post the lyrics to “I Was Wrong” by Social Distortion if the case was reversed. I responded that I would put up a post with the above title. Paul Gowder chimed in that he thought the case would not even be heard en banc.

Paul was right, and thus so was MJ. I was wrong. The Fourth Circuit declined to rehear the matter en banc, albeit in a 5-5 tie, with two judges recusing (Motz and Williams). Interestingly, one African-American judge, Allyson Duncan, voted to deny rehearing. Judge Wilkins – a very conservative South Carolinian – voted to rehear. I must admit, I’m not feeling much embarrassment. In my view, some folks on the Fourth Circuit should be.

13

Expertise and the Blawgosphere

TortureRack.jpgA recent, well-publicized, comment thread over at the VC caught my attention. In it, Professor Ilya Somin explained his silence on the habeas/torture legislation as a combination of humility and utility maximization:

I try to limit blogging to issues where I have a comparative advantage: that is, questions on which I can say something useful or interesting that is unlikely to be said by others. I do not regard the VC as a forum for me to air all aspects of my world view, or even all of my views on contentious political issues. Little purpose is served by my simply repeating the same points on torture, detention or any other issue that have already been made by dozens of others.

Moreover, I take seriously the implications of some of my own scholarly work on political ignorance. Merely knowing a few basic facts that can be gleaned from perusing a newspaper is not enough knowledge to conclude that I have something original and important to say about an issue, except in very rare cases where the issue in question is unusually simple. My experience as an expert on political information is that there are far more issues that are more complex than most nonexperts believe than the reverse. In this regard, my general expertise on political information helps me keep tabs on my lack of expertise on specific issues.

Marty Lederman commented:

The odd thing is figuring out why many of the VC bloggers have not been *interested* in becoming more informed about these questions, and about this legislative initiative — *not* because they are bloggers or even legal bloggers (heaven knows we don’t want every legal blog to pretend to be expert in such questions), but because many of them are committed *libertarian* bloggers who are obviously impassioned and informed about many other arrogations of state power and threats to individual liberty.

It is a debate with some bite, I think, for this blog. We aspire to be a general interest law blog, with mostly serious content. But we have demonstrated little collective interest in the habeas/torture problem. Sure, we’ve had a few posts, but nothing like the sustained attention given by Balkinization, or Opinio Juris. The question I wonder about is whether a blog that claims to be a general interest legal forum has a duty – if it is to be respected – to weigh in the big legal questions of the moment.

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9

Gender and the Eve-of-Wedding Prenup

Gender wars are alive and well in the blogsphere recently. While it seems to me that more than enough cyber ink has been spilled over boobgate and the fracas over Above the Law, I do think that the role of gender in law and culture continues to be actually difficult and worth discussing. I am teaching Family Law for the first time this semester and have noticed that my students often find ideals of formal sex equality extremely unsatisfying. As an example, I offer the enforceability of the eve of wedding prenup.

wedding.jpg

Let’s imagine a couple — Catherine and Fred. Catherine is a 23 year old nurse and Fred is a 39 year old neurosurgeon. On the night before their wedding, Fred’s lawyer presents Catherine with a prenup limiting her to support payments of $200 per week with a max of $25,000 should their wedded bliss end in divorce. Catherine signs — without any legal advice. Should this be enforceable?

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3

NY Court of Appeals Decides Same-Sex Marriage Case

New York’s highest court handed down its eagerly anticipated decision in Hernandez v. Robles this morning. The court first decided that New York statutes did in fact limit marriage to opposite-sex couples, then proceeded to analyze that restriction under a rational basis test, defining the relevant right as not the right to marry a person of one’s choosing, but “[t]he right to marry someone of the same sex.” It found that the New York legislature could have had rational bases for drawing a line between opposite-sex and same-sex couples:

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1

Casting Fresh Light On A Quiet Civil Rights Hero

This week, Is That Legal featured a mini-symposium commemorating the life of the recently deceased Mitsuye Endo, a Japanese-American woman who sued to challenge her internment during WW II. Her case, which came out quite differently than the dark landmark, Korematsu v. United States, may have triggered the end of FDR’s internment policy. Eric Muller, Jerry Kang, Greg Robinson and Patrick Gudridge contributed interesting essays casting fresh light on an overlooked historic individual and Supreme Court decision. Read these posts here, here, here, and here.

1

Grutter Redo, Part 3

Recall that in a earlier post, I wrote about Judge Kozinski’s concurring opinion in the 9th Circuit ruling which upheld the Seattle school choice plan. His view was that rational basis review was preferable and strict scrutiny inappropriate because while the “program does use race as a criterion, [it does so] only to ensure that the population of each public school roughly reflects the city’s racial composition.” Kozinski’s position raises a number of interesting questions — at least one of which I alluded to before — the potential appeal of his approach to Justice Kennedy. But now I want to focus on the normative question which lies at the heart of Kozinski’s approach.

Let us set aside for a moment the Court’s view, which it has repeatedly reaffirmed in cases like Adarand, Grutter and Johnson v. California, that strict scrutiny review must apply to all racial classifications. The question I want to pose is this: is there a meaningful distinction between the racial preference that was at issue in Grutter, and the racial classification scheme that is challenged in the K-12 cases the Court has recently accepted. To assist you in answering this question, I’ll provide a quick review of the use of race in the two situations.

Grutter concerned the University of Michigan Law School’s admissions policy which sought to enroll a “critical mass of underrepresented minority students.” In short, while the policy did not set aside a fixed number of seats in the incoming class for minority group members, it did consider race or ethnicity “flexibly as a ‘plus’ factor in the context of individualized consideration of each and every applicant.” Even though race was used flexibly (no bonus points or set asides as was the case in Bakke), there is little doubt that with respect to some candidates, race was outcome determinative. That is, race was outcome determinative for some white candidates in the sense that minority group members with identical qualifications would have been admitted to the Law School while they were not. (We can address the standing difficulties raised under this scenario at a different time.)

Contrast the Law School’s admissions plan in Grutter with the Seattle school choice plan. Under the Seattle plan, race was used as a tiebreaker. In the first instance, students are given their choice of schools. It is only when a school becomes oversubscribed and racially imbalanced that the racial tiebreaker comes into play, and even then it only operates on the margins; effecting only schools where the “student body differs by more than 15 percent from the racial make up of the students of the Seattle public schools as a whole.” Finally, we should note that under the Seattle plan, no student is denied an opportunity to attend a public school in the school district; all students are placed in some public school within the district. Thus, Judge Kozinski’s view of the Seattle plan was, “that a student is denied a school of his choice may be disappointing, but it carries no racial stigma and says nothing at all about that individual’s aptitude or ability.”

Do you agree? Are the Grutter and Seattle plans distinguishable? Is it really true that one plan attaches “stigma” to a frustrated applicant while the other inflicts no such stigmatic harm to the students? Isn’t one argument that the stigmatic impact of each plan is a matter of degree. If that’s the case, then perhaps Kozinski is right after all that a heightened form of rational basis review is superior because it would allow the Court to take all of the relevant facts into consideration. Unless you think strict scrutiny, in the race context at least, already performs this function.

6

Grutter redo, part 2

The Court’s acceptance of the two K-12 cases raises so many interesting questions that it is difficult to know where to start. For this post, I’ll quickly recap the facts and ask a question about Justice Kennedy’s potentially pivotal role in deciding the cases. Later posts will address other issues raised by the cases.

Both cases deal with “voluntary” desegregation plans where there is no court order otherwise requiring desegregation. In both cases, the school districts sought to break the link between residential and school segregation. Given the racially segregated nature of the neighborhoods within the school districts, an uncontrolled school choice plan would have likely replicated such segregation within the schools. Instead, the districts sought to both preserve neighborhood school choice and produce more integrated public schools. As a general matter, one school district used race as a tiebreaker. In this district, students were given their choice of schools, race notwithstanding; race came into play as a tiebreaker for oversubscribed schools that were racially imbalanced. In the other district, the school board established black student enrollment ranges. Administrators then used race as one factor among many (residence, school capacity, popularity, student’s choice, etc.) to achieve enrollment within those ranges.

Both the 6th and 9th Circuits upheld these plans, applying the Grutter “student body diversity” rationale to the K-12 context. In this post, I want to focus on just one question: Justice Kennedy’s role. While it is true that two new justices have joined the Court since Grutter, I think it highly likely that both Roberts and Alito will vote to strike these plans down (we can debate exactly how they will do this at a later date). I believe Kennedy’s vote will be pivotal. While it is true that Kennedy dissented in Grutter, essentially arguing that the Law School’s affirmative action plan was not narrowly tailored under the strict scrutiny test, I believe there may be a way to reach him here. But how? Enter Judge Kozinski.

In the 9th Circuit opinion, Judge Kozinski wrote an interesting concurrence. In it, he argued that a heightened form of “rational basis” review ought to apply to the case. His theory was that the Seattle plan wasn’t really an “affirmative action” plan given that it concerned admission to K-12 education. According to Kozinski, it had none of the “defects” associated with other racial preference schemes because “there is no competition between the races, and no race is given a preference over another. That a student is denied the school of his choice may be disappointing, but it carries no racial stigma and says nothing at all about the individual’s aptitude or ability.” Thus, from Kozinski’s perspective, strict scrutiny need not apply — and instead a less deferential form of rational basis review would do. Given Kennedy’s position in Romer and Lawrence, will Kennedy be persuaded by Kozinski’s argument? If so, it would allow him to uphold the plans and to distinguish his position in Grutter, where arguably, strict scrutiny had to apply.

0

Lots Worth Reading At Is That Legal

Eric Mulller, over at Is That Legal, has been very busy for the last few days. First he offered a trenchant critique of Pope Benedict’s talk at Auschwitz last week. (“The Pope’s Disasterous Speech At Auschwitz.”) Then he engaged Dean Esmay over what he frames as Esmay’s propogation of ” the revisionist myth of a terrorized German populace whose will was overborne.” You know the world is topsy-turvy when John Leo is citing Eric approvingly.

Now Eric’s writing about an interesting development in Wilmington, North Carolina: a legistlatively authorized commission has concluded that an 1898 race riot there was a political coup d’etat that reversed the fortunes of the city’s African-American community for years to follow. The committee offered recommendations “to repair the moral, economic, civic and political damage wrought by the violence and discrimination resulting from a conspiracy to re-take control of city, county, and state governments by the Democratic Party’s white supremacy campaign.” The executive summary is here.

This report will presumably be of great interest to Al Brophy, who served as counsel to the Tulsa Race Riot Commission. You can find a number of links to Tulsa Race Riot materials here.

On a more self-interested note, we’re very excited that Eric will be visiting with us here at Co-Op starting in a couple of weeks!