Friday, May 31, 2013

Republicans Use Race-Based Affirmative Action to Attract Latino Candidates

Race-based affirmative action is a four-letter word for most conservatives. In fact, most conservatives would probably consider modifying the phrase "affirmative action" with the qualifier "race-based" redundant. Typically, conservatives only target race-conscious affirmative action plans, even though this practice often involves many categories, including sex/gender, poverty, and (increasingly) sexual orientation.

Even though affirmative action is an anathema to contemporary conservative ideology, the GOP has openly embraced this instrument in order to diversify its ranks. Returns from the 2012 election showed that the vast majority of persons of color voted for Democratic candidates. Also, projected demographic patterns predict a substantial increase in the voting power of persons of color. This is especially true in some important Republican states, such as North Carolina, Virginia, Texas, Arizona, and Florida. The growth in Latino voters in those states could make it impossible for Republicans to win national office unless significant numbers of these voters are attracted to GOP candidates.

In response to this reality, Republican leadership has decided to target Latino voters -- apparently deciding that they have no chance of capturing significant numbers of black voters and that the number of Asian-American voters is too small to concern them. Since the election, Republican leaders have made repeated calls for the party to "reach out" to Latinos. Now, they have put money behind this effort.

Today, the GOP announced a national plan to recruit Latino political candidates to the GOP. The Future Majority Project announced that it would spend $6 million to attract Latinos. The Republican State Leadership Committee, which works to increase the number of Republicans holding state political office, operates The Future Majority Project. The project has used similar efforts in the past to recruit women (and even Latino) candidates).

It is difficult to distinguish this initiative from affirmative action. Like affirmative action, this initiative will give Latinos special resources to increase their numbers in state political office. Similarly, schools offer scholarships or special admissions consideration to qualified applicants of color in order to achieve academic diversity. Employers offer jobs or special consideration to qualified persons of color in order to ensure workplace diversity.

The Supreme Court has held that affirmative action is legal to achieve diversity in higher education. Conservatives, however, loathe any consideration of race by state and private parties. This initiative is certainly protected as political speech. Liberal commentators have similarly argued that affirmative action at universities should be analyzed under the Right of Association, which is shielded by the First Amendment (just like political speech). Nonetheless, conservatives remain generally opposed to affirmative action -- unless it is necessary to achieve political victories for the Republican Party.

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Wednesday, May 29, 2013

KAITLYN HUNT: Case Raises Questions of Sexuality AND Sexual Orientation

The Kaitlyn Hunt case demonstrates, once again, the tendency of people to reduce complex problems into singular concerns. Hunt, an 18-year-old Florida high school student, was recently charged with felony sexual battery for having sex with a 14-year-old teen who attends the same school.

Two competing narratives regarding the case have developed in media accounts. A liberal narrative depicts the decision to prosecute Hunt as an act of homophobia. A conservative side has recently emerged which contends that the case has nothing to do with sexual orientation.  Instead, the case concerns the regulation of sexuality; Hunt is being prosecuted simply because she violated a gender-neutral Florida statute. This "either/or" analysis, however, obscures the many factors that influence cases like this.

Regulation of Sexual Conduct Among Youths
Although much of the media discussion of the Hunt cases focuses on questions of homophobia and sexual orientation, this case, at a minimum, is indisputably about sexuality. Florida does not allow persons to consent legally to sexual conduct until he or she reaches the age of 18. The law does not contain any gender or sex classifications. Thus, it applies to heterosexuals, gays, lesbians and bisexuals. Accordingly, it is easy to identify sexuality as a factor in Hunt's prosecution.

Sexual conduct among youths is a delicate topic. Many people believe that young persons -- especially girls -- lack the maturity to consent to sexual conduct. In fact, statutory rape laws in many states used to protect female "victims" exclusively. In these states, young males who had sex were effectively viewed as consenting individuals from the standpoint of the law. In 1980, the Supreme Court upheld a California statute of this kind. Those statutes have largely been repealed, and the modern trend criminalizes sexual conduct with minors regardless of gender. 

Rigid application of statutory rape laws have received a tremendous amount of criticism. Historically, critics rightfully argued that statutory rape laws failed to recognize that teenagers commonly have sex with one another and that this conduct is not nearly as problematic as sex between adults and children. Thus, while states can legitimately ban sexual conduct between adults and children, when the two participants are very close in age, these laws can lead to questionable or unfair results.

In response to these arguments, many states have implemented "Romeo and Juliet" exclusions (which is literally heterosexist terminology) to reduce the harshness of statutory rape laws. In many states, consensual sexual conduct among individuals who are close in age, e.g., four years apart, is not considered rape or sexual assault. This is a departure from traditional practice. Florida, however, does not have such an exception. Instead, the state simply allows persons convicted in close-in-age situations to petition a judge to remove the "sex offender" registration requirement, which, if not done, would haunt the young defendant for his or her entire life.

The Hunt case implicates the historical critiques regarding the regulation of sexual conduct among youth. Hunt and her "victim" are both teenagers at the same school. According to media accounts, Hunt said that she loved the victim during a telephone conversation that police recorded. The victim's parents said that their daughter ran away from home to be with Hunt after they demanded that the relationship end. That the victim went to Hunt's house after her parents expressed their displeasure with her relationship with Hunt demonstrates the intimacy of the girls' relationship. In real (even if not legal) terms, the relationship between the two girls was consensual.

In many states, the law would not criminalize this conduct. Florida is not one of those states. The condemnation of Hunt's prosecution reveals that a large part of the public is uncomfortable treating sexual conduct among teenagers as criminal conduct -- certainly as a serious felony. The decision to prosecute Hunt does not take into account the reality of teen sexuality and the harsh collateral consequences that result from labeling teenagers as felons and sex offenders. At least one Florida lawmaker agrees. State Senator Thad Altman (Republican) believes the state should decriminalize consensual sexual conduct among teenagers. Amending the statutory rape law, however, would likely face stiff resistance from conservatives.

Sexual Orientation
Conservatives have recently sought to rebut the argument that sexual orientation is relevant in Hunt's case. The face of the statute does not implicate sexual orientation because it applies to all sexual conduct regardless of the participants' gender. Nevertheless, this does not preclude the possibility that homophobia shaped the decision to prosecute Hunt.

Criminal statutes do not mandate prosecution. Instead, prosecutors have the discretion to bring charges (see below). In many instances, punishable acts of sexual conduct among teenagers are never reported or pursued as criminal cases because either the parents or the participants do not want a criminal case.

Some parents approve of or acquiesce to the reality of teen sexual conduct. Some victims have effectively blocked prosecutions by refusing to testify. Prosecutors can choose to forego charges in cases of uncooperative victims or parents. They can also exercise their independent judgment and decide not to prosecute.

Consequently, when these cases proceed, they often do so based on the parents' wishes. In other words, even if a person has committed statutory rape, the parents (and victims) can influence the decision whether to prosecute. For this reason and due to the prosecutor's general discretion, homophobia could have led to the decision to prosecute Hunt, regardless of the neutrality of the Florida statute.

Many commentators claim that the victim's parents are homophobic. They have denied this assertion. Although it is difficult to read the minds of the victim's parents or the prosecutor, it is not unreasonable to argue that homophobia influenced this case. First, juvenile sex prosecutions have always raised questions of discrimination. For instance, several "black male defendant" and "white female victim" close-in-age prosecutions have generated intense public scrutiny.

In 2003, Georgia prosecuted Marcus Dixon, 18, for having sex with a 16-year-old white teenager who attended high school with him. Dixon, a black male, was a model student with a 3.96 GPA and a scholarship to Vanderbilt University. The state charged Dixon with numerous crimes, including forcible rape, statutory rape, aggravated child molestation, assault, and false imprisonment. Dixon was convicted of aggravated child molestation and statutory rape. He received a mandatory 10-year-sentence for aggravated child molestation.

Under Georgia law, statutory rape charge is a misdemeanor when the participants are close in age. But the prosecutor added on the aggravated child molestation charge, which carried a much harsher mandatory sentence.  Critics argued that the prosecutor and the victim's parents were motivated by race. Ultimately, the state supreme court dismissed the aggravated child molestation charge as inappropriately filed; today, Dixon is a professional football player.

In the past, Georgia law explicitly banned sexual conduct between blacks and whites. Today, it does not. But old habits die hard. If race can influence prosecutorial decisions in these cases, it is reasonable to believe that sexual orientation can do so as well.

And Florida is hardly progressive with respect to sexual orientation. In 2008, Florida voters amended the state constitution to ban same-sex marriage. The measure passed with the support of 62% of voters. Thus, on the question of marriage equality, the state constitution explicitly mandates antigay discrimination.

In 1977, Florida banned adoption by gay or lesbian persons. The state vigorously defended this law in state and federal court less than a decade ago.  In 2008, a state appeals court invalidated the statute. After this ruling, the state relented and refused to enforce the statute or pursue further judicial review.

Florida does not have any statewide law that prohibits sexual orientation discrimination. And while recent polls demonstrate wide voter support for such a law, for the last six years, conservatives have declined to give this such a proposal a hearing or workshop in the legislature.

Given this recent history, the notion that a Florida public official or a family could push for prosecution of an alleged crime due to homophobic intent is not far-fetched. While it is unclear what has actually motivated the parents or the prosecutor, it is not unreasonable to consider homophobia as a possible factor. Even Bruce Colton, the prosecutor on the case, has conceded the opposition to homosexuality could have motivated the victim's parents. Colton, however, denies that he is acting upon the victim's parent's desires, which seems implausible.

Prosecutorial Discretion
As stated above, prosecutors have the discretion to bring charges against a person who has allegedly engaged in criminal conduct. Statutes do not mandate prosecution, and the Supreme Court has treated prosecutorial discretion as an extremely important authority of states and the federal government.

Despite having the power to decline to bring criminal charges, Florida has decided to prosecute Hunt for felony sexual battery. Given the closeness in age of the victims and the possible homophobic motivation of the victim's parents, many people have contested the prosecution. Colton portrays the matter in very simplistic terms: the defendant violated the statute; actual consent is irrelevant; that they attend the same high school does not matter. But this reductionist position overlooks the important issues of sexuality, sexual orientation and fairness that this case implicates.

There are at least three important issues raised by the prosecution of Kaitlyn Hunt. These issues include the regulation of sexual conduct among youths, sexual orientation, and prosecutorial discretion. Hopefully public debate regarding the prosecution of Hunt will become more comprehensive as the case progresses.
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