Sunday, December 22, 2013

Beyond Paula Deen, Don Imus, Phil Robertson, and Other Racists Du Jour: Reforming Civil Rights Advocacy

I woke up this morning and wrote the following text that appears in quoted format beneath this paragraph. I posted it as a quote, because I did not publish it as a blog entry.  Nevertheless, I believe the text contains an important message, which readers should understand after they finish reading this blog post in its entirety.
BREAKING NEWS: A coalition students, academics, famous actors, bloggers, and civil rights organizations are staging a massive protest in front of the Florida capitol building. The protesters demand an end to institutional racism in Florida public schools. They claim that historic inequality in public schools has only worsened over time; today, 2/3 of black and Latino students attend schools where they are the only racial group and where over 80 percent of the students qualify for free or reduced lunch subsidies. An abundance of educational research documents the harm caused by poverty schools.  
A study by the US DOJ has also demonstrated that students color color and disabled students in Florida are routinely disciplined for behavior that does not lead to sanctions when white and more able-bodied students engage in the same behavior. Multiple studies show that harsh disciplinary sanctions, such as long suspensions, expulsions, transfers to "alternative education" injure the educational process, lead to criminality, and ultimately place these students in the prison pipeline. 
The protesters want the Governor to fire the State Secretary of Education and to develop programming that will give access to quality education, which in turn would empower them economically and politically. The protests have caused a major whirl on Facebook and other social media, as progressives, liberals, moderates, and even many conservatives have promoted the cause online. Furthermore, a petition at Change.Org has received over 3 million signatures. Stay tuned for more details.
I did not post this essay because it describes a fictional event. It satirizes a dangerous contemporary trend among civil rights activists and organizations. These justice advocates reserve their loudest protests to combat individual bigots of the day. Paula Deen, Don Imus, and Phil Robertson immediately come to mind as examples of "racists du jour." A racist du jour is a lone individual who makes a racially offensive statement, which attracts intense media and public scrutiny. Civil rights activists also condemn the speech. Typically, opponents of the individual's comments, including civil rights activists, demand that the individual lose his or her job. Seemingly, there is no middle ground. Termination is the only option.

I believe that this stark type of activism betrays liberal and equitable principles of flexibility. It applies a one-size-fits-all formula; it also goes for the harshest sanction available. Conservatives engage in the same practices, sometimes regardless of the merits of the argument (think: Shirley Sherrod and Lani Guinier).

Even worse, the repeated advocacy against racists du jour gives the impression that individual bigotry is the most important barrier to disadvantaged groups. This view, however, does not comport with reality. Institutionalized inequality exists, and it does not represent the sum total of individual bigotry. Institutional inequality also has sweeping effects. Its harms are generational; it also causes immediate and long-term material consequences. While Robertson's speech might hurt many people, I am not persuaded that it can top the harms of multiple centuries of repression. Accordingly, the disparate responses to institutional and individualized bigotry among the public, media, and (especially) civil rights activists likely represents misplaced priorities.

Many people describe Dr. Martin Luther King, Jr. as one of the most passionate voices for equality in world history. The recently deceased Nelson Mandela occupies the same list. These men, however, did not limit their work or even focus primarily upon isolated incidents of racism by du jour racists. Instead, they challenged racism and economic inequality that are fashioned in legislation, courts, executives, national culture, churches, corporations, police forces, and other broad societal institutions. These structural demands have given way largely to social movement strategies that focus upon shaming individuals, rather than advocating institutional reform.

I am not claiming that no social justice advocates pursue institutional reform. Nor am I claiming that individual bigotry is unimportant. Instead, given the terribly injurious impact of structural inequality, one would logically expect this issue to occupy center stage within social justice movements. Unfortunately, that is not the case.

People who claim to live according to the philosophy these two champions of equality need to examine their history.  Many of today's social justice advocates will find wide disparities in their activism and the activism of Mandela, King and other successful civil rights leaders of the past. These differences are not simply stylistic. The passage of time and new situations also do not justify these differences. Institutional inequality remains a substantial source of disempowerment.  Ignoring institutionalized inequality or giving it less attention than individual bigotry is a problematic and very limited civil rights strategy.

See also: Duck Dynasty and Discrimination: Firing Phil Robertson Will Not Advance Gay Rights Or Racial Justice!

Friday, December 20, 2013

Duck Dynasty and Discrimination: Firing Phil Robertson Will Not Advance Gay Rights Or Racial Justice!

The latest national crisis involves comments that Duck Dynasty star Phil Robertson made in a GQ interview. Robertson's comments regarding gay men are downright offensive:
"It seems like, to me, a vagina -- as a man -- would be more desirable than a man's anus," Robertson says in the January issue of GQ. "That's just me. I'm just thinking: There's more there! She's got more to offer. I mean, come on, dudes! You know what I'm saying? But hey, sin: It's not logical, my man. It's just not logical." 
Robertson also is asked what he finds sinful. His answer: "Start with homosexual behavior and just morph out from there. Bestiality, sleeping around with this woman and that woman and that woman and those men."
Although Robertson's comments regarding gays and lesbians has received the most attention in the press, Robertson also makes highly problematic statements regarding race. He says that:
“I never, with my eyes, saw the mistreatment of any black person," Robertson is quoted in GQ. "Not once. Where we lived was all farmers. The blacks worked for the farmers. I hoed cotton with them. I’m with the blacks, because we’re white trash. We’re going across the field.... They’re singing and happy. I never heard one of them, one black person, say, ‘I tell you what: These doggone white people’—not a word!... Pre-entitlement, pre-welfare, you say: Were they happy? They were godly; they were happy; no one was singing the blues.”
Robertson's comments mirror a false American cultural narrative that describes blacks as content with Jim Crow.  This narrative is indisputably false. Many blacks did not complain about racism because of the violent repercussions they faced for doing so.  Still many whites, especially older southern whites, accept a myth of black contentment with segregation. Jim Crow was violently imposed upon blacks; it was not a negotiated relationship.

Despite the harshness of Robertson's words, I am uncomfortable with liberal activists who demand that A&E remove him from the show. My discomfort stems from various factors. I have debated this issue with several colleagues today; so I will collect the central themes of these arguments below, rather than exploring each one in enormous detail.

First, Robertson's words were not made during the show. Instead, he made them in a magazine article. Thus, no direct connection between his words and the network exists.

And while the network probably has the right to fire Robertson, most people who are fired for out-of-work speech are not wealthy television stars. And they do not receive huge severance packages and immediate reemployment. Instead, they are average workers, who need to work in order to live.

Often, workplace speech codes are disproportionately enforced against socially vulnerable groups, including people of color and LGBT individuals. If a black person suffers a job loss after contesting racism (inside or outside of the workplace), Supreme Court interpretation of employment discrimination statutes and the First Amendment (which applies to government employers) has made it much easier for private and public employers to avoid liability.  

Second, a rush to fire someone for controversial speech suggests that only one approach -- the least forgiving -- exists to address the situation. A dialogue over the issues and how the speech might harm certain communities seems off the table. Instead, opponents seek blood.

In my own teaching and scholarship, I have criticized US culture for lacking basic compassion for people who transgress certain norms. This unsympathetic culture explains why the US has the highest number of incarcerated individuals in the world and the harshest sentences for nonviolent crimes. The US can be very unforgiving.

Seeing liberals embrace this approach is disturbing.  There are many other things that the network could do under these circumstances (suspension, diversity training, warning, etc.). Instead, Robertson's opponents seek the death penalty.

Third, and most importantly, the anti-Robertson advocacy (once again) elevates isolated incidents of bigotry over structural inequality. Robertson is one private individual. He made his comments during an interview on his own time. A&E did not broadcast the comments during the show. Nevertheless, liberal activists believe the network should fire Robertson for his racism and homophobia. Most contemporary liberal groups follow a similar type of advocacy: Person X says something outrageously offensive. Liberal groups demand that Person X lose his or her job. Person X loses his or her job. Liberal groups rejoice. Person X gets another job. Racism, sexism, and homophobia remain intact.

Individual acts of bigotry excite and inflame the nation much more than structural inequality. As a corporate entity concerned about its profits, A&E would never make the statements that Robertson uttered. But, a cursory look at A&E's lineup reveals that it does not have much in terms of programming for LGBT youth. They are invisible on the network. Furthermore, most of the black and Latino persons on the network are criminals and crime victims (see the numerous weekly episodes of The First 48). The invisibility of LGBT youth and the stereotypical depiction of blacks and Latinos by large cultural institutions can cause much more harm than isolated acts of bigotry. In fact, a large body of psychological literature demonstrates that that cultural and systemic inequality causes more individual distress to minority group members than actual incidents of discrimination. The perception of second-class citizenship and fear of discrimination make them emotionally vulnerable and mentally distressed.

Also, institutionalized oppression limits economic opportunities and political power of marginalized groups. Despite the deep and dispersed harms it causes, institutional oppression does not generate anything close to the animated and loud liberal responses as discrete and isolated bigotry.  For example, if the major newspapers provide an accurate insight into the mindset of antiracist organizations, then Paula Dean, George Zimmerman, and Phil Robertson are the most troubling things to impact persons of color this year. High unemployment, political inequality, resegregation of public schools, and other structural problems seem minor, by comparison.

When I raise this criticism, liberals typically say: "but we can respond to both types of inequality." This is true, but the responses are quite disparate. You "can" respond to institutional inequality, but, typically, you do not.

I am convinced that people who dismiss the importance of responding to institutional oppression doubt its existence, or they believe that simply responding to individual bigotry will mitigate institutional oppression. Institutional inequality, however, is not the sum of individual bigotry. It exists within and outside of individual behavior. The injuries it causes are generational and widespread.

If any form of inequality warrants more attention, it is the structural kind. Yet, liberal activism focuses on individualized prejudice. Firing Robertson will only perpetuate this troubling social movement behavior.

Tuesday, December 17, 2013

Federal Judge Rules Against the NSA in Snooping Case. What's Next?

A federal judge has preliminarily enjoined the controversial NSA spying program. Edward Snowden, a former NSA employee, leaked information regarding the classified program earlier this year.

The judge held that the policy likely violates the Fourth Amendment because plaintiffs have a reasonable expectation of privacy with respect to information that telecoms store regarding their use of computers, phone calls, etc.

The judge distinguished difficult and possibly contrary Supreme Court precedent in part because he believed that the dated case law should not apply in today's world where the implications of technological snooping are quite extreme:
[T]he almost-Orwellian technology that enables the Government to store and analyze the phone metadata of every telephone user in the United States is unlike  anything that could have been conceived in 1979. In Smith the Supreme Court was actually considering whether local police could collect one person 's phone records for calls made after the pen register was installed and for the limited purpose of a small-scale investigation of harassing phone calls. . . . . The notion that the Government could collect similar data on hundreds of millions of people and retain that data for a five-year period, updating it with new data every day in perpetuity, was at best, in 1979, the stuff of science fiction.  By comparison, the Government has at its disposal today the most advanced twenty-first century tools, allowing it to "store such records and efficiently mine them for information years into the future" [quoting Justice Sotomayor opinion in a recent Fourth Amendment decision regarding GPS monitoring] . . . . And these technologies are "cheap in comparison to conventional surveillance techniques and, by design, proceed[] surreptitiously," thereby "evad[ing] the ordinary checks that constrain abusive law enforcement practices: limited police . . . resources and community hostility" [id.].
The ruling has sparked debate among law professors, even though the judge has stayed the injunction pending appellate review. Orrin Kerr of the Volokh Conspiracy, for example, describes the ruling as "remarkable" (not in a positive way). Kerr finds the opinion "unpersuasive. . .quite plainly so." I tend to disagree for the reasons the judge stated. The breadth of the NSA program and the conditions of modern technology seem to beg for a different analysis to protect individual privacy. Ultimately, however, the Supreme Court will have to decide this issue.

Misplaced Focus: Procedure and Remedies Probably More Important Than Constitutional Law

Like most lawyers, Kerr and others following the case have focused on the court's discussion of the constitutional issues. This analysis, however, is probably premature or even unnecessary. The judge's ruling only held that the plaintiffs met the standard to receive a preliminary injunction. A preliminary injunction is not a final ruling on the merits. Instead, it simply keeps the defendant from enforcing the policy until a final ruling on the merits, possibly after a full trial.

While these procedural concerns might not mean much for laypersons, they are central to the case at this moment. In fact, an appeals court could overturn the ruling without even discussing the Fourth Amendment. How?

In order to get a preliminary injunction, the plaintiff must meet four factors: a likelihood of success on the merits (likely that the law favors the plaintiff); irreparable injury in the absence of the injunction (harm that monetary compensation cannot remedy adequately); public policy favors issuance of the injunction; and the balance of the equities favor the plaintiff (in the absence of an injunction, plaintiff would lose a lot more than the defendant would gain from having the liberty to enforce the policy). A plaintiff much demonstrate each factor in order to qualify for the injunction.

There are at least two ways to reverse the injunction without turning to constitutional issues (related to the Fourth Amendment).  First, the Supreme Court is very reluctant to enjoin policies related to national security. This is so, even if the defendant has violated the letter of the law. National security could provide a basis to reverse the injunction.

In Winter v. National Resources Defense Council, the Supreme Court reversed a preliminary injunction granted to halt certain naval training operations offshore in California. The plaintiffs argued that the operations could harm protected species of aquatic animals. More importantly, a federal statute literally required the military to submit an environmental impact statement before conducting the activities, but the government did not submit such a statement. Accordingly, the military violated an unambiguous statutory provision.

Despite the fact that the government violated the statute, the Court held that the preliminary injunction was improper. The Court reasoned that it could not second-guess the military on national security concerns (and that it was not clear that the activities would irreparably harm, if at all, any aquatic species). So, national security weighed against issuance of the injunction despite plaintiffs proving actual success on the merits.

The circuit court and the Supreme Court would likely apply similar logic in this case. Rather than delving into the constitutional questions -- which courts wish to avoid if possible -- the appeals court could reverse on the grounds that the opinion does not give enough weight to national security concerns.

Furthermore, the opinion does not even contain a section that "balances the equities" by weighing the harm to the plaintiffs in the absence of the injunction against the harm to the defendant if the injunction is affirmed. This, however, is a mandatory part of the test.

The procedural dimensions of this case provide ample room for reversal -- without examination of the constitutional questions. Law professors (and I am guilty of this as well) routinely rush to analyze substantive legal questions without considering procedural and remedies questions. Procedure and remedies law, however, are probably more central to this case at the moment than the constitutional questions. Accordingly, if the DC Circuit is up to speed on remedies law, I expect a reversal without much discussion of the Fourth Amendment. We shall soon see.

Of course, the appeals court might agree with the district judge -- which would require a substantial analysis of the Fourth Amendment. But, despite my belief that the policy is unconstitutional, I could easily see the appeals court allowing the Supreme Court to cover new ground on this issue; it would take a substantial effort to clarify the doctrine.

Sunday, December 15, 2013

Town Hall Author Jack Kerwick Is Still Wrong [UPDATED]

Jack Kerwick, a columnist for Town Hall, has argued that reducing income inequality would necessarily enlarge the federal government and lead to the demise of liberty. I countered his argument by noting that states deal with these matters on their own and through partnerships with the federal government. Thus, social welfare policies, economic rights or positive rights do not inherently transfer all power from the states to the federal government, thus obliterating our constitutional system.

Kerwick has responded to my critique. But, rather than addressing my arguments Kerwick instead devotes attention primarily to issues that are immaterial to my post. Accordingly, his second essay is just as unconvincing as the first.

The only point of substance that Kerwick attempts to address in his second essay is the fact that states and the federal government partner to ameliorate the conditions of inequality. Kerwick says that this is untrue -- not by challenging the claim factually, but by rephrasing the argument using loaded terms. He says that the federal government "bribes and coerces the states to do its bidding." Well, this is preposterous. Perhaps because Kerwick is not a lawyer (I find it amusing that Kerwick tries to malign my argument by stating that it comes from "a professor, mine you, of Constitutional law") he believes that tossing around such legally coded terms as bribery and coercion in an argument regarding law and politics is acceptable. It is not.

Even conservatives on the Supreme Court have not embraced the argument that the Congress's use of the Spending Power is inherently and inevitably coercive upon states. And, clearly, federal spending programs do not constitute bribery -- in the same way that taxing cigarettes does not coerce people to stop the habit and giving mortgage interest deductions does not bribe people into purchasing homes. These programs incentivize certain behaviors and policies, but states do not have to pursue them (just as people do not have to purchase homes or stop smoking as a result of tax policy). The Court has held that Congress cannot conscript state legislatures, but funding a national program -- often demanded by the states themselves -- and allowing state participation and collaboration is neither bribery nor coercion. Just ask Justice Scalia.

Kerwick does not even type one word regarding my discussion of states taking the initiative to reduce income inequality. Historically, states have done so through a number of programs, like funding (even mandating) public education, public higher education, social welfare subsidies, unemployment insurance, old age insurance, police and fire protection, and a numerous other services that only the wealthiest individuals could afford on their own. It is obvious why Kerwick omits this discussion -- because it negates his own uninformed (and ahistorical) position.

The rest of Kerwick's essay focuses on nonsubstantive issues. He quibbles with terminology that is, frankly, irrelevant to my discussion (federal v. nation, inequity v. inequality). If our positions departed on grounds of terminology, then this issue would be pertinent. But since we disagree on larger issues, he wastes time by addressing these concerns. He also wastes time avoiding the substance of my article and instead writing a dissertation against a parade of evils, like the left, redistribution, socialism, "you didn't build that," Obama, and even Elizabeth Warren! Surprisingly, Kerwick doesn't include Pelosi, Marx, Lenin, Stalin, and other conventional rightwing conversation-stoppers on his list. Because Kerwick fails to reconcile his argument with a robust history of state involvement in the reduction of economic inequality, he remains wrong.

UPDATE: This article sarcastically expresses my surprise that Kerwick does not include "Pelosi, Marx, Lenin [and] Stalin" on his list of horribles. Perhaps he did not want to preempt Bob Rucho, the North Carolina Republican State Senator who headlines many blogs 12/16/2013. Rucho recently tweeted that "Justice Robert's pen & Obamacare has [sic] done more damage to the USA then [sic] the swords of the Nazis, Soviets & terrorists combined."

Tuesday, December 10, 2013

Town Hall Author Jack Kerwick Is WRONG: States Also Help to Combat Income Inequality

Jack Kerwick, a commentator for the conservative blog Town Hall, argues that combating "income inequalities" is antithetical to a "free society." Kerwick's column responds to a recent speech that President Obama delivered regarding economic issues.

Kerwick laces his essay with standard rightwing arguments dismiss the significance of income inequality:
Think about this: of all of the problems in our world, the President of the United States and his ideological ilk view the fact that some people earn more than others as the problem, the one next to which all others pale in comparison, “the defining challenge of our time.” 
No disciple of liberty can so much as begin to relate to the thought that income inequality is a “problem,” let alone the greatest of problems.
Kerwick's comments are susceptible of numerous criticisms. The magnitude of economic inequity raises serious questions about the ability of the United States to compete globally in terms of education and economic productivity. Economic inequity is also linked to crime and ill-health, which greatly impact the nation.

But attacking Kerwick's ignorance of the severe consequences of income inequality is not the purpose of my response. Instead, I write to demonstrate how Kerwick's entire argument implodes in one single passage.

Kerwick believes that addressing income inequity will crush "liberty," by destroying private property, concentrating power into the national government, and, thus, obliterating federalism, checks and balances, and any limitations on the national government. Addressing income inequality would lead to a tyrannical national government.

Kerwick reaches his melodramatic conclusion only by dismissing the role of states and state-national partnerships in the reduction of income inequality. Kerwick contends that "'income inequalities' can be addressed only by a national government, a government in which authority and power are centralized." This utterly false contention destroys Kerwick's entire argument. Numerous examples disprove his contention.

First, the national government often partners with states and local governments to ameliorate the conditions of income inequality and to subsidize poor households. For example, the national government and states partner to administer Medicaid and TANF (what most people describe as "welfare"). The government also provides block grants and other targeted funds to states to fund their own antipoverty programs such as housing assistance and other direct programs for poor people.

Furthermore, the government contributes money to public schools, which states run almost exclusively. Public education is probably the largest shift of income to poor and middle-class people in the country. It has existed since the early-1800s, and it is primarily run by states. Nonetheless, the federal government, recognizing the importance of an educated society, helps to finance public education.  Clearly, if making income inequality a concern of public policy erodes freedom, then this process started in the 1800s, not in 2008.

Second, as the provision of free public education indicates, states have led the charge on many issues related to income inequality. States provided "welfare" subsidies to poor people before the national government. Also, every state guarantees a free public education to its residents, but the US Constitution does not (as interpreted by the Supreme Court). Some states even guarantee protection for certain crime victims (e.g., victims of domestic violence), rather than requiring them to pay for it themselves. States also fund and operate institutions of higher education (which also receive national assistance). These measures, which are often secured to individuals by state constitutions, go much farther than federal programs.

Emily Zackin's recent book, Looking for Rights in All the Wrong Places: Why State Constitutions Contain America's Positive Rights (Princeton University Press) provides numerous examples of state contributions to economic rights. These types of rights have a long place in the nation's history. Kerwick's argument that a concern for income inequality would only enlarge the federal government and kill liberty (or that it would erodes the constitutional structure of government) is simply wrong.

Saturday, December 7, 2013

Political Power, Economic Development, and Green Policies: Gainesville, FL

Recently, I left Washington, DC, and returned to my hometown to teach at the University of Florida Levin College of Law, located in Gainesville, Florida. Gainesville is a mid-sized city. Over the last 30 years, it has grown tremendously. But the city manages to maintain an abundance of green spaces. It is a very environmentally conscious city. This is one thing that makes it appealing.

The City Commission has enacted policies that some residents believe marginalize the interests of the city's poor citizens -- segregated primarily in eastern Gainesville -- while favoring middle- and upper-class residents. Although a full analysis of these policies lie beyond the scope of this article, one such policy has provoked controversy. The city has decided to reduce a major east-west artery from four lanes to two lanes as it moves through a particular neighborhood. The city has previously approved similar policies with respect to other major thoroughfares.

Proponents argue that these decisions can help create new green space and that they will not impact current traffic patterns. Opponents argue that these decisions will in fact aggravate traffic patterns today and in the future as the city continues to grow. Some opponents also believe that the city's traffic policies tend to favor the interests of wealthier citizens who demand the expensive programs, to the detriment of poorer citizens. How do these policies harm poor people? Arguably, they harm poor communities in two immediate ways. First, they allocate scarce financial resources to projects of questionable need that benefit upper-class citizens, while continuing to neglect blighted areas in the city. Also, because economic development is necessary to create jobs that can employ poor residents, any policy that reduces the capacity of the city's major roadways is antithetical to the interests of poor people.

A long debate over these issues has taken place on the Dissenting Justice Facebook page, the Gainesville Sun, and on the Facebook page of a liberal city council member who supported the new project. Instead of rehashing the debate here, I invite you to read the debate on Facebook and in the Gainesville Sun.

Link to Dissenting Justice on Facebook (Please LIKE the page!)

Link to Gainesville Sun coverage (Use discretion reading the comments section!)

Link to commentary on city council member (Susan Bottcher) Facebook page (Although I disagree with the policy, I admire Bottcher for responding publicly. Kudos!)

Finally -- link to my analysis of some of the political issues that the city must address, particularly liberals
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