Category: Race

19

The U.S. Census and Latinos’ Conceptions of Race

My parents were filling out the U.S. Census a few nights ago when they reached a question that stumped them both—the race question.  The Census requires that individuals “answer BOTH Question 8 about Hispanic origin and Question 9 about race” and states that for purposes of the 2010 Census, “Hispanic origins are not races.”

Question 8 asks:

Is Person 1 of Hispanic, Latino, or Spanish origin?

–No, not of Hispanic, Latino, or Spanish origin

–Yes, Mexican, Mexican Am., Chicano

–Yes, Puerto Rican

–Yes, Cuban

–Yes, another Hispanic, Latino, or Spanish origin –Print origin, for example, Argentinean, Colombian, Dominican, Nicaraguan, Salvadorian, Spaniard, and so on.

Question 9 asks:

What is Person 1’s race?

–White

–Black, African Am., or Negro

–American Indian or Alaska Native –Print name of enrolled or principal tribe.

–Asian Indian

–Chinese

–Filipino

–Other Asian

–Japanese

–Korean

–Vietnamese

–Native Hawaiian

–Guamanian or Chamorro

–Samoan

–Other Pacific Islander

–Some other race – Print race.

 My parents had no difficulty answering Question 8.  They are both from the Dominican Republic so they checked “Yes, another Hispanic, Latino, or Spanish origin” and printed “Dominican” in the box provided.  They did not know how to respond to Question 9, however.  My father, whose phenotype is that of a light-skinned Black man, wanted to select “White” because he equates Black with African-American.  My mother wanted to select “Black” because, in her view, “White” refers to Caucasian and, although her grandfather was a Spaniard, her grandmother was of African descent.  Confused, my parents asked their four adult daughters, all of whom were born and raised in the U.S., how we self-identified in the Census.  Three of us checked “Black” and one checked both “Black” and “White.”  My father finally agreed to check “Black,” not because he identifies as such, but because there were no other “adequate choices.”  When I asked him what race he would have selected had it been listed, he responded “Latino.”  For him, and many other Latinos, his race is not White, Black, or American Indian, but Latino—the result of a mixing of European (mostly Spaniard), African (brought as slaves to the Americas), and the indigenous people of the Americas (for example, Taino, Aztec, Mayan, etc.) Read More

2

Not-Quite-Live-Blogging Intersectionality (Part I: General overview, Thursday)

I’m at the UCLA Intersectionality conference, and so far it has been phenomenal. I’m going to post some brief notes about the sessions I’ve attended so far. I’m typing these up while in a session – the intersectionality teaching and reading workshop. Hopefully these will be moderately coherent.

The conference started with an introduction from Saul, and quick comments from co-sponsors (including me, because TJSL is a co-sponsor of the event. The opening event was very well attended – a hundred people or so (maybe?), even though it was at 10 a.m. on a Thursday. Read More

5

A double whammy for diversity

Law firms aren’t just laying off lawyers, they’re laying off racial minority lawyers. A recent Law.com story sets out the detail:

Large U.S. law firms became less diverse last year. That’s the key finding to emerge from the latest version of our annual Diversity Scorecard, which counts attorneys of color in the U.S. offices of some 200 big firms. In each of the previous nine years that we’ve compiled the Scorecard, the percentage of minority attorneys at all participating firms increased, rising from less than 10 percent in 2000 to 13.9 percent in 2008. In 2009, for the first time, that proportion dipped, to 13.4 percent. The drop in law firm diversity may be small, but it’s important. Overall, big firms shed 6 percent of their attorneys between 2008 and 2009 — and, amid the bloodletting, lost 9 percent of their minority lawyers. . . .

The data shows that, while minority lawyers as a whole lost ground, not all groups were affected equally. In proportional terms, African-Americans lost the most: the percentage of all black lawyers fell by 13 percent (462 lawyers), with the number of black nonpartners sliding by a startling 16 percent. Translation: Almost one in six African-American nonpartners left the surveyed firms in the space of a year without being replaced. In raw numbers, Asian-Americans dropped the most, by 9 percent (556 lawyers). The number of Asian-American nonpartners dropped by 11 percent, while the number of partners rose by 6 percent. As for Hispanic lawyers, their numbers dropped by 9 percent overall (282 lawyers). Hispanic nonpartners fell by 13 percent; partners rose by 3 percent.

Meanwhile, another recent Law.com article focuses on diversity declines in law school admissions:

Research by two social scientists suggests that the U.S. News & World Report law school rankings aren’t helping legal educators build a more diverse student body. Deans and admissions officers told the researchers that the pressure to maintain or improve their U.S. News rankings can mean fewer slots for diverse students, who tend to score lower on the LSAT and have lower grade point averages. “Selectivity” — LSAT scores, undergraduate grades and schools’ degree of exclusivity in accepting applicants — accounts for one quarter of each school’s ranking. . . .

“By creating strong incentives for law schools to focus more narrowly on test scores, rankings make it seem more risky to admit diverse students when those students tend to have lower test scores,” the report says. “Moreover, rankings ratchet up the competition for poorer students and students of color with high scores….Administrators say they often feel forced to choose between a higher median LSAT score and a more diverse student body.”

To synthesize: There are no jobs for Black lawyers; but hey, there are no Black law students anyway. Double whammy.

1

Natural Law, Imperialism, and the Birth of Free Exercise Jurisprudence

I have been researching Reynolds v. United States (1879), the Supreme Court’s first Free Exercise case, on and off for several years. For those who are interested, my paper on the topic is now available for download at SSRN. My interest in the case is historical rather than doctrinal. I am interested in what Reynolds, which held that religious polygamy was not protected by the First Amendment, and the anti-polygamy crusade that followed tell us about constitutional politics in the nineteenth century. Historians have generally situated the case within the context of the post-Civil War politics of Reconstruction. The anti-polygamy crusade kicked off by Reynolds is seen as an extension of Reconstruction into the West. I offer a new interpretation.

I began my research by asking myself what the theory of the First Amendment put before the Court by the Reynolds’s lawyers looked like. The Court — following the arguments of the Attorney General — characterized the Mormons as claiming that all religiously motivated action was exempt from the criminal law. This sort of absolutist position, the Court and the government pointed out, would allow absurd results such as the inability to criminalize religiously motivated murders. The Court, however, was knocking down a straw man. The Mormons never in fact made this claim. Rather, they argued that the First Amendment only protected religiously motivated conduct that was not malum in se, that is wrong in and of itself as opposed to being wrong merely because of the law (malum prohibitum). Actions could be judges as malum in se, they went on to argue, by appeal to a set of well-established natural law arguments. These arguments were based in part by a series of more-or-less positive analogies to non-Western legal systems. The Court responded implicitly to this argument by analogizing Mormons to Indians and the federal government to the British Raj. In other words, the Court in effect looked at “The Mormon Question” through the lens of imperialism.

This imperial analogy was more than a one-off rhetorical fillip in the Court’s opinion. It shows up all over the anti-polygamy battles, where it is important for distinguishing the situation in Utah from the situation in the Reconstruction and post-Reconstruction South. It also gets picked up on in the first generation of cases that invoke Reynolds and its progeny as precedent. These cases, known as The Insular Cases, arose in the context of the United States’ conquest of the Philippines in the Spanish American War of 1898 and addressed the question of the federal government’s authority to engage in imperialism and colonialism abroad. In these cases Reynolds was seen not as a First Amendment case as much as a case about the scope of Congressional power over a conquered people. My paper thus suggests that Reynolds and the anti-polygamy battles need to be seen not only in the context of the domestic debates over Reconstruction that proceeded them. Rather, Reynolds and its heirs must also be seen as a prelude to the international debates over imperialism that followed the Spanish American War.

For those interested, here is an abstract of the paper: Read More

3

What a “Ghetto” Party at UCSD Can Teach Us About the Importance of Racial Diversity on Campus

Black History Month just ended.  In honor of Black History (or perhaps its end), certain students at the University of California, San Diego decided to leave us with one last lesson about the importance of diversity.

On February 15, 2010, individual members of a fraternity at UCSD held an off-campus party in honor of Black History Month called the “Compton Cookout” (The President of Pi Alpha Kappa criticized the party and asserted that the party was not sponsored or condoned by the fraternity.).  The invitation included references to “dat Purple drank,” which the party creators described as consisting of “sugar, water, and the color purple, chicken, coolade, and of course Watermelon.”   The students sent the invitation via Facebook with dress and behavior requirements for attendees.

Men were asked to be “stuntin’ in ya white T (XXXL smallest size acceptable), anything FUBU. . . .”

Women were asked to come as “ghetto chicks” with “short, nappy hair” (Did we not learn anything from Don Imus?).   The dress and behavior requirements for women were extensive and included the language below:

“For girls: For those of you who are unfamiliar with ghetto chicks-Ghetto chicks usually have gold teeth, start fights and drama, and wear cheap clothes – they consider Baby Phat to be high class and expensive couture. They also have short, nappy hair, and usually wear cheap weave, usually in bad colors, such as purple or bright red. They look and act similar to Shenaynay, and speak very loudly, while rolling their neck, and waving their finger in your face. Ghetto chicks have a very limited vocabulary, and attempt to make up for it, by forming new words, such as “constipulated”, or simply cursing persistently, or using other types of vulgarities, and making noises, such as “hmmg!”, or smacking their lips, and making other angry noises, grunts, and faces. The objective is for all you lovely ladies to look, act, and essentially take on these “respectable” qualities throughout the day.”

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2

The Newest Scottsboro Boy

Hear the words “Scottsboro Boys” and what comes to mind is the picture of southern injustice.   Nearly a dozen black teenagers taken off a train in Alabama in 1931 and accused of raping two white girls.  The sheriff calling out the militia to protect the boys from a mob lynching.  The defendants, illiterate young men whose families resided in other states, held under military guard.   A summary trial held six days after arraignment.  The boys tried without counsel.  Each convicted and sentenced to death.  The case successfully challenging their conviction, Powell v. Alabama, is central to our modern conception of the requirements of due process for criminal defendants.

Fast forward 80 years and Jeffrey Skilling, former president and chief operating officer ofcollapsed energy giant Enron, is the newest Scottsboro boy.  Skilling’s attorney argued on Monday before the U.S. Supreme Court that his client was tried and convicted in Houston in what amounted to a mob atmosphere.  Skilling, was convicted of securities fraud, conspiracy and insider trader for actions he took to cover up the financial collapse of Enron, which resulted in losses estimated at tens of billions of dollars for Enron shareholders.  Thousands of Enron employees lost their retirement funds.  Skilling was sentenced to 24 years, which he is serving in a minimum security prison.  He challenges his conviction on the grounds that the crime of “honest services fraud” is unconstitutionally vague, and on the grounds that he was tried and convicted amidst an atmosphere of “pervasive community bias.”

It’s true that feelings about Skilling and Enron CEO Ken Lay ran high during those days – especially in Houston.  It’s also true that government surveys indicated that potential jurors in Houston were more likely than those residing outside Houston, to believe that Skilling and Lay were innocent.  Skilling argued, nevertheless, that “overwhelming passions” gripped the pool of Texans from which the jury was selected, stoked by a “media frenzy.”  His prosecution was, according to Skilling, “as dramatic as any in U.S. criminal trial history.” (I’m not sure that the Scottsboro boys, Sacco and Vanzetti, Richard Hauptmann (kidnapper of the Lindbergh baby),the police officers who beat Rodney King, or O.J. Simpson, would agree with that assessment, but history will have to sort it out).  At oral argument, several members of the Court – Justices Sotomayor and Breyer among them – reportedly expressed serious concerns about the trial court’s voir dire of the jury.  The Court may yet find that Skilling – who was represented by some of the finest attorneys in the country, and who reportedly spent more than $30 million dollars on his defense —   is entitled to a new trial in a different venue. Read More

4

Speak of the Devil

Pat Robertson made headlines a few weeks ago with his claim that Haiti’s earthquake was the product of a centuries-old curse caused by a pact with the Devil. Of course that assertion is preposterous. In fact, Robertson was several hundred miles off course. Haiti never made a pact with the Devil; the United States did.

Our deal with the Devil, as abolitionist writers remind us, was the conscious choice made by American leaders, two centuries ago, to taint our most sacred national documents by writing racism and slavery into them. Revolutionary leaders had talked boldly of freedom and equality. The Declaration of Independence contained soaring promises: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”

But the constitutional framers ran into political trouble – and, as usual, Black interests were the first to be abandoned. Under pressure from Southern landowners, the framers agreed on a Constitution which left slavery untouched, and even let Southerners count slaves (as 3/5ths of a person) for representation purposes. The result was a Constitution which abolitionist William Lloyd Garrison rightly called “a covenant with death, an agreement with Hell.” Or in other words, a pact with the Devil.

The Civil War provided a chance for repentance, as newly freed Blacks slowly began to build communities and cautiously claim their rights. But once again political exigencies required a compromise, and once again it was Black freedom which lost out in 1877. For thirty pieces of silver – the disputed electoral votes of three states – the nation’s political leaders sold the South to a century of Klan rule. Again. The pact would formally last until 1964; its effects are still easily observed today.

Haiti’s situation is complex, and made more so by some very bad decisions in American foreign policy. As we focus on rescue and rebuilding, Robertson’s ill-advised words can be a reminder of Garrison’s more apt description, and a reminder of a very real centuries-old pact with the Devil made in this hemisphere.

1

Billionaire Girard’s Imperfect Legacy

GC Founder's HallIn his early-19th century will, Stephen Girard, one of the richest persons in United States history, endowed a school, Girard College, for the education of white boys who were poor and orphaned. As of the early 21st century, the Philadelphia school (whose Founder’s Hall is pictured at right and from which I was graduated in 1980), educates students of all races and both genders from families with limited financial resources headed by a single parent or guardian. Thus have the scope of race and gender radically opened and the concepts of poor and orphaned subtly shifted.

Girard’s will, which elaborately detailed all aspects of the school and dedicated his entire fortune to creating it, also prohibits clergy of any sect ever from stepping foot on campus. Despite early constitutional challenges, this provision remains unchanged and generally enforced. Though there is considerable scholarship on Girard College, in law as well as sociology and other fields, relatively little intellectual energy has been devoted to discerning how and why transformations occurred as to race, gender, poverty and family, yet not as to religion.* Read More

8

On Brains and Football

There are many candidates for the best visual display of quantitative information.  But how about a prize for worst display of information?  Call it the anti-Tufte. There has been some competition of late.  The graph can’t be merely misleading, or distracting. That’s too darn easy! A really bad display has several characteristics: (1) it has to overstate the certainty of the underlying data; and (2) by using pictures, it must reinforce our biases.  A recent example is the Obama Cabinet/Private Experience graphic.

Here’s another example I’ve been thinking about lately: the claim that offensive linemen are smarter than other players on the field.  Think about it.  Doesn’t it just feel true?  And here’s the graph that popularized the claim:


olineman

Ben Fry, a smart fella by all accounts, created the graph.  The size of the circles represent mean scores by position on the Wonderlic, a 12 minute, 50-question, intelligence test which players take during the combine before the NFL draft.  This graphic is often deployed to support the cliché that players closer to the ball have to be smarter. But closer examination has led me to believe that the claim – and the graph – are bunk.  And bunk of a particular sort: misleading empiricism of the sort that reinforces racial stereotypes.

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11

Ricci and Briscoe as Disparate Impact Cases

UPDATE: Seven African-American testtakers in Ricci have moved to intervene in Ricci, which is back at the district court for implementation of the Supreme Court decision. Also, African-American testtakers have filed disparate treatment and disparate impact discrimination charges with the EEOC. All this reported in the Connecticut Employment Law Blog, www.ctemploymentlawblog.com/2009/11/articles/decisions-and-rulings/black-firefighters.

The main thrust of Ricci focused on the disparate impact issue and its implications will likely be worked out in Briscoe v. City of New Haven, a disparate impact case brought against the City because it has now used the test scores challenged in Ricci. In Ricci, the City argued that its decision not to use the test scores was made to avoid the risk of disparate impact liability to the African-American testtakers who would not be promoted if the test scores were used.  The Court conceded, as did all the parties, that the use of the test scores would have resulted in a disparate impact on African-American testtakers. Using the “pass rate,” or cutoff score that was set for the test, less than 80% of the minority testtakers passed. More important, the actual use of the test among those who passed would have excluded from immediate promotion all the African Americans and all but two of the 22 Hispanic testtakers. (Three African Americans might have some chance for promotion if new openings occurred in the future during the life cycle of the test.) With that prima facie case of disparate impact discrimination conceded, the focus moved to the business necessity and job relatedness affirmative defense and the plaintiff’s surrebuttal possibility of showing that an alternative was available that served the interests of the City but resulted in less impact.

Given the posture of the case – using the risk of disparate impact liability as a defense to a disparate treatment claim – the City had the burden to prove that it would not be likely to carry its burden of proving the test’s business necessity and job relatedness or that disparate impact plaintiffs would likely be able to prove an alternative way promote to promote firefighters that had less impact. The Court rejected the arguments that the City had to prove it would actually lose such a disparate impact case or that its good faith belief sufficed. Instead, the City had to have a “strong basis in evidence” for believing it would be liable for disparate impact discrimination. In other words, it should be somewhat easier for the City to win the issue of its potential risk of disparate impact liability than it would be if disparate impact plaintiffs actually had to prove the City liable for disparate impact discrimination.

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