Category: Civil Rights

Short Course on Some Origins of Inequality

no child left behind.jpg

Recently my law school’s clinic “filed a class action lawsuit in federal court on behalf of all parents of children attending Newark Public Schools who are being denied their rights under the No Child Left Behind Act.” BlackProf regular Shavar Jeffries is lead counsel for the plaintiffs, who charge that the “Newark Public Schools district has systematically failed to meet even the Act’s minimum notification requirements.”

In honor of that effort, I’m highlighting a fascinating article from the NYT Magazine by Paul Tough on the challenges facing the No Child Left Behind (NCLB) effort. The article notes that NCLB aims to erase a persistent achievement gap between African American and white, and lower and middle/upper class, students (by 2014). It summarizes two bodies of literature on the subject:

The first is about causes; the second is about cures. The first has been taking place in academia, among economists and anthropologists and sociologists who are trying to figure out exactly where the gap comes from, why it exists and why it persists. The second is happening among and around a loose coalition of schools, all of them quite new, all established with the goal of wiping out the achievement gap altogether.

The “causes” literature is fascinating. I’ve heard about studies like Lareau’s Unequal Childhoods for some time, but the quantifications provided in the article are compelling:

By age 3, the average child of a professional heard about 500,000 encouragements and 80,000 discouragements. For the welfare children, the situation was reversed: they heard, on average, about 75,000 encouragements and 200,000 discouragements. Hart and Risley found that as the number of words a child heard increased, the complexity of that language increased as well. As conversation moved beyond simple instructions, it blossomed into discussions of the past and future, of feelings, of abstractions, of the way one thing causes another — all of which stimulated intellectual development.

I’ve heard similar explanations of a new gender gap in academics; social critics claim that boys too often succumb to a “dude culture that demeans academic achievement” and discourages expression of ideas.

So what are the solutions? They involve massive effort, and will test whether NCLB is mere opportunistic “symbolic politics” or a real effort to address inequality.

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New Insights Into Guantanamo Bay Detention Hearings

This morning, NPR played excerpts of several Guantanamo Bay detention hearings. Portions are available here. These hearings were conducted in 2004 to determine whether the individuals should be treated as “enemy combatants.” Unfortunately, the recordings are of relatively low quality. In any case, they provide only limited insight into the totality of the process. Meanwhile, Mark Denbeaux of Seton Hall studied over 400 detentiion hearings. His conclusion: all of them ultimately resulted in the suspects being found “enemy combatants.” (On a couple of occassions, the hearings had to be redone to allow for this conclusion.) More on this from NPR as well.


Supporting Racially Inclusive Schools

blackwhite kids.jpgYesterday, briefs supporting school districts’ authority to adopt race conscious student admissions plans in public schools were due to the Supreme Court. The plans in both cases, Meredith v. Jefferson School District and Committee of Involved Parents v. Seattle School Board, were upheld in their respective circuits — and are extraordinarily important to anyone who is concerned about racial integration in our public schools. As the NAACP Legal Defense Fund stated in its website today, these cases give the Court an opportunity to preserve some measure of integration in our public schools, or to end the era of Brown. In interests of full disclosure, I co-authored a brief with my colleague Michelle Adams on behalf of the National PTA arguing that education in a multi-racial context is a compelling government interest. Our brief, and the many other amicus briefs submitted in the case, are available here.

Many of the multiple amicus briefs focused on the specific benefits to children from primary and secondary education in a multi-racial setting. These briefs assume that the parties have the burden of meeting the strict scrutiny standard — thus establishing that the use of race this context serves a compelling interest and that the means are narrowly tailored. Others, however, argue a very different point. As Michelle Adams noted here in June when the Supreme Court took these cases, in Judge Kozinski’s concurrence in the 9th Circuit, he disputed that strict scrutiny applied in the context of non-magnet public schools. He suggested that any admissions plan that does not involve competition between racial groups and does not favor one race over the other does not carry any sort of racial stigma — and therefore that strict scrutiny need not apply. NAACP LDF presents this argument most thoroughly and completely in its amicus brief

These cases will undoubtedly garner a great deal of attention, both because of the importance of the issues to public schools throughout the country, and also because they will give us a sense of how the loss of Justice O’Connor and the ascension of Chief Justice Roberts and Justice Alito will affect the Court’s decisionmaking on race issues more generally.


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.


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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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.


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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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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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.


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.