Thursday, August 25, 2016

The D-Word: On Discrimination

I was recently reminded once again that "discrimination" is a powerful word.  I recently joined an over-forty soccer league and we had our first game recently. From my perspective, the referee was calling most of the fouls against our team and in favor of the other team.  After yet another call that went against our team, which resulted in a booking of one of our players, I ran to the referee and shouted "this is discrimination."

The accusation of discrimination upset both the referee and some of the players on the other team.   The referee proceeded to tell me that his father was black and a couple of the players on the other team, who were Latino claimed that the charge of discrimination was absurd because they were non-white.  Words were exchanged.

As it turns out, I was not accusing the referee of racial discrimination, that would have been a non-sensical accusation. Both teams (my team and the opposing team) were predominantly white.  The people of color on my team included two Latinos who could be visually identified as such, two players of Asian descent, and myself.  The people of color on the other team included at least three Latino players but at least two could phenotypically pass as Anglos.  The foul that resulted in a yellow card was called against one of my white teammates.  The referee appeared to me to be Latino and his seemed limited.

I was not accusing him of racial discrimination or of discriminating against me.  I was accusing him of favoring the other team and discriminating against my team. My accusation was not about skin color but shirt color.

But it was interesting to me how an accusation of (a) discrimination (b) by a black person is not only a conversation stopper but evokes deep anger. People get angry about being accused of racial discrimination even when they are discriminating.  And of course the ability to level a charge of discrimination is an extremely powerful weapon.  This is why some have tried to reduce the power of the charge by inventing the concept of "playing the race card."

My opponents and the referee thought I was playing the race card.  I doubt that the referee and my opponents would have a similar reaction if I had used the word "bias" or "favoritism" instead of discrimination.  Moreover, my guess (and this is only a guess) is that if one of my white teammates had leveled the charge of discrimination, the referee would have laughed it off.

I wonder what we be gained and lost, if anything,  if people of color substituted phrases like "racial bias" or "racial favoritism" and the like for "racial discrimination"?  Would a change in discourse inhibit our ability to effectively describe racial discrimination and articulate it as such or would it enhance our ability to communicate with others the cost of racial bias and how it might be addressed?

Monday, August 15, 2016

Monica Puig, citizenship and representation

A few days ago, Monica Puig won Olympic gold in tennis, the first athlete competing under the flag of Puerto Rico ever to do so.  I was sitting at my computer when I heard the news and a bolt of electricity shot through my body.   I cried the first time I saw Puig on the medal stand and heard "La Borinqueña" in the background, and cry every subsequent time I watch the clip. It took me back to my childhood, when my entire neighborhood sat around the television set and watched Wilfredo Benitez and Wilfredo Gomez win world championships in boxing.  The sense of pride is indescribable.  

Yet my passport tells me I am an American citizen.  My passport is wrong.

Friday, August 12, 2016

Caste, the 14th Amendment, and overcoming white supremacy

I just listened to a recent Diane Rehm showTwo Views On The Jim Crow South And Its Legacy, this morning. She interviews Charles Dew and Isabel Wilkerson.  From Professor Dew, I got some answers to questions I ask myself every time I see an old picture of a lynching.  From Professor Wilkerson, I got angry.  Not about what she said, but how her discussion recalled for me our 14th Amendment doctrine and its modern colorblind interpretation.  The moral equivalence of, say, Blacks growing up under Jim Crow and whites applying to college, escapes me.  If that's what the 14th Amendment really means, I am fully prepared to give it back.

Thursday, August 11, 2016

The diversity of the 2016 US women's gymnastics team

How is this for an incredible picture?


I am almost at a loss for words.  When I first saw that picture, a million questions crossed my mind.  How did we get here?  How did US gymnastics put together an elite team of gymnasts that look like a microcosm of our society?  Could we replicate this success in other contexts? If the US gymnastics team could go this far over a generation, maybe there is hope for us?

It is easy to look at this picture differently, as a critique of efforts to diversify our society.  In other words, one can look at this picture and conclude that diversity efforts are unnecessary in a world where individual merit and hard work are rewarded. Chief Justice Roberts offered a variant of this argument in his opinion in Parents Involved: "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."  And once we stop, all will be well.

I don't buy it, and I don't think the Chief Justice buys it either.  A world where merit is rewarded accordingly, and where hard work takes you where you deserve to go, is not a world I recognize. It is the great American story, to be sure, but it is not reality.  Spend one moment in a hiring committee of your choice and you will know exactly what I mean.  Merit and desert are amorphous catch phrases devoid of any useful meaning.  They are conclusions, not arguments.

Which is why the US gymnastics team blows my mind.  It is one thing to put ten runners at the starting line if we are trying to decide who is the fastest of them all (think here, incidentally, about the Iliad, and particularly Achilles' struggle with merit and desert throughout the poem, and especially during the Games).  But gymnastics, where judges stand on the sidelines and award scores to individual competitors on the basis of what they see and understand, is clearly not racing.  This is a world where conventions and traditions must be followed.  This is also a world where athletes of color have been largely absent.

And that is the point.  This team is normalizing race within a sphere where race has almost served as a barrier of entry, no different from playing quarterback or running back.  And for that, I am thankful, and hopeful.  America's darlings are White, and Black, and Latina.  And so could be anyone else, whether Asian or American Indian, Muslim or Jew.

Indeed, my mind is blown.

Indeed.

Wednesday, August 10, 2016

A word on Justice Kennedy's "surprising" turn to the left

A few weeks ago, the US Supreme Court upheld the University of Texas' affirmative action plan in Fisher v. Texas.  The big story of the case was Justice Kennedy's apparent switch on questions of race.  How in the world does a justice who refers to the use of race by the state as a "corrosive category," and who argues that “[p]referment by race, when resorted to by the State, can be the most divisive of all policies, containing within it the potential to destroy confidence in the Constitution and in the idea of equality," vote to uphold an affirmative action plan?

This was the leading narrative in the wake of Fisher.  Justice Kennedy's opinion was "stunning," "surprising," even "shocking." But that's not quite right.  

Monday, August 1, 2016

More on North Carolina NAACP v. McCrory, the North Carolina Voter ID Case

Last week, a 3-judge court of the Fourth Circuit Court of Appeals issued a unanimous opinion striking down North Carolina's voter identification laws.  Guy offered a terrific discussion of the opinion here, and I don't have much to add to his analysis.  It is dead on.  I want to focus instead on the lessons of the case about judicial behavior, race, and constitutional interpretation.

Friday, July 29, 2016

Fourth Circuit Court of Appeals Strikes Down North Carolina Voting Law

I have a few thoughts on the Fourth Circuit's decision today, which struck down NC's omnibus voting rights law.  North Carolina's law required voters to show a a photo ID when voting at the polls; it eliminated same date registration; it reduced the number of early voting days; it eliminated pre-registration, among its more notorious accomplishments. The Court concluded that the State enacted the law with a racially discriminatory intent.  After finding discriminatory intent, the Court shifted the burden to the State to show that the law would have been enacted in the absence of a racially discriminatory purpose.  The Court concluded that NC could not meet that burden and it struck down the law as unconstitutional. 

First, the most compelling part of the Fourth Circuit's opinion is its argument that the legislature requested racial data on how voters used various election procedures; after receiving the data the legislature decided which voting procedures they were going to change; the voting procedures that they changed "target[ed] African Americans with almost surgical precision." For example, the legislature requested racial data on voter ID and excluded many of the types of photo IDs used by African Americans but permitted the types of photo IDs used by whites.  The legislature requested racial data on early voting.   The data revealed that African Americans disproportionately used the first seven days of early voting.  The Court noted that "[a]fter receipt of this racial data, the General Assembly amended the bill to eliminate the first week of early voting, shortening the total early voting period from seventeen to ten days." This was also true for same-day registration and provisional voting.  For the race and law nerds, the Fourth Circuit's analysis here is similar to the Supreme Court's analysis in Gomillion v. Lightfoot: the way that the voting restrictions affected African Americans is only explainable if African Americans were being intentionally targeted.  The Fourth Circuit concluded: "In sum, relying on this racial data, the General Assembly enacted legislation restricting all--and only--practices disproportionately used by African Americans.  When juxtaposed against the unpersuasive non-racial explanations the State proffered for the specific choices  it made . . . we cannot ignore the choices the General assembly made with this data in hand."

Second, the Fourth Circuit also made clear that partisan discrimination is not a compelling defense or justification to a charge of vote denial or franchise restriction.  But as importantly, the Court made an important link between partisan discrimination and racial discrimination.  The Court said, "intentionally targeting a particular race's access to the franchise because its members vote for a particular party" is racial discrimination.  See also pages 40 and 56 where the Court is explicit that "targeting voters who, based on race, were unlikely to vote for the majority party[,] [e]ven if done for partisan ends, . . . constitute[] racial discrimination." This line of reasoning essentially eliminates the "it was not race it was party" defense.  This is very interesting and a potentially powerful development.

Third, this opinion is a repudiation of Shelby County.  The opinion is clear that just as "African American registration and turnout rates had finally reached near-parity with white registration" and that "African Americans were poised to act as a major force," the State tried to curtail the voting power of African Americans. The opinion strongly intimated that the State was able to do so only because of the Supreme Court's decision in Shelby County.  On page 32 of the opinion the Fourth Circuit take's Shelby County head-on and essentially refutes Shelby's claim that "history did not end in 1965."  From the perspective of the Fourth Circuit, NC has not stopped discriminating ("state officials continued in their efforts to restrict or dilute African American voting strength well after 1980 and up to the present day"). Moreover, they would have been more successful in their discriminatory attempts were it not for "the robust precautions of section 5 and suits by private plaintiffs under section 2 of the Voting Rights Act [which] prevented those efforts from succeeding." Shelby County removed that protection.  The Fourth Circuit restored it. 

Fourth and relatedly, the Court's analysis essentially shifts the burden on to the state to prove that it was not discriminating where there is a strong discriminatory impact.  The Court is explicit about its burden-shifting framework, but says it applies only where there is discriminatory intent.  But discriminatory intent here is basically shown with discriminatory impact. Yes, the Court uses NC's history of discrimination and some other factors to infer intent.  But the biggest factor is discriminatory impact.  If other courts follow this opinion, plaintiffs can get the burden shifted to the state where there is a strong discriminatory impact and a history of discrimination.  This process goes a long way toward restoring section 5's burden-shifting framework.

Fifth, I don't think this opinion would have been written the same way and I'm not sure if it would have come out the same way if Justice Scalia were still on the Court.  It is easily conceivable that this panel, given its makeup, might have struck down the most vulnerable provisions of the law but maybe not the whole thing.  Moreover, they would probably have done a disparate impact analysis instead of a discriminatory intent analysis.  The discriminatory intent finding allowed the Fourth Circuit to avoid sending the case (specifically the voter ID portion of the case) back down to the district court, which had upheld the law in its entirety. 

With a 4-4 split on contentious issues, Court of Appeals are functionally courts of last resort.  NC can cry as much as it wants, but its omnibus law is now dead.  It will be buried after the appeals have been exhausted.

Lastly, big win for the plaintiffs.  Total victory.