Wednesday, August 31, 2011

Race and Merit Return to the Firehouse

The question of hiring practices in fire departments is not new.  But it sure seems troubling.  This is the context that gave rise to the Ricci case and the decision by the city of New Haven to throw away an employment test that would have had a racially disparate impact.  The U.S. Supreme Court, in a 5-4 opinion, strongly disapproved of this action.

The city of New York is no stranger to this debate.  Currently, the city's fire department is in the middle of an effort to diversify that is unprecedented in the history of the department.  According to a recent report by the New York Times, "[i]n 18 months, officials say, recruiters have sought black candidates at more than 6,100 events at high schools, colleges, shopping malls, boxing gyms, softball games and military picnics, all but begging them to apply for the next entrance test, in January, by the Sept. 15 deadline."

This is remarkable in many ways. Commendable, to be sure, and also necessary; but this is not what caught my attention.

After one of his many recruiting speeches across the city, the fire commissioner explained his stance on the issue. 
After his speech, he sat near the church’s basketball court, where he avowed, remarkably, that while he had obviously always known the department was predominantly white, he never understood, until the suit was filed, that others viewed this whiteness through a lens of racial bias." 
“It never dawned on anyone,” he said. “We never looked at white or black. We looked at good firefighter or not so good. Me? I made it in this department by what I did, not who I was. But then you suddenly realize: people may actually think we’re discriminatory.” 
Looking almost hurt, he paused and said, “That’s why I’m here today.”
This is a remarkable passage.  Hurt?  Dumbfounded, as in, how could anyone think we discriminate? This is an old refrain: I made it far in _________ (fill in the blank with your profession of choice), and surely, if I made it, anybody can.

I suspect the fire commissioner is not alone. But such is the beauty of white privilege. Imagine the amount of guilt and unnecessary angst if he were to give any thought to why he rose through the ranks as he did.  It is much easier to think of his achievements as stemming from individual hard work and determination than as a measure of one's racial standing in the world.  

If only life were so simple.

The same day I read this account of the diversity struggle in NYC, I also read Nate Silver's insightful account of the difficulty inherent to differentiating, from the many available teams, which two teams deserve to play for the BCS national championship in football.  This piece is a remarkable read. Silver asks the following question: are the people who participate in the polls used to determine who deserves to play in the championship game "judging teams based solely on their performance? Or do biases and preordained notions about the teams’ quality enter into the equation?"  Unsurprisingly, Silver concludes that "[t]he evidence points toward the latter. A team’s preseason ranking has a modest but statistically significant effect on its B.C.S. ranking at the end of the season, even after controlling for its quality of play as determined by computer systems."

It gets better.  According to Silver, "[t]here is also evidence that teams with wider fan bases are more likely to be treated favorably by B.C.S. voters — meaning that the surveys are a popularity contest, at least in part. A marquee name like Notre Dame is likely to finish a couple of ranks higher than, for instance, Mississippi State or Northwestern given equivalent performance on the field."  This is another way of saying that teams are not treated equally, and that "merit" is more of an aspiration than a political reality.

So much for the objectivity of computers and fancy formulas.

Next time your boss brings out fancy tests or formulas to prove to you why you are not getting a raise or a promotion, think twice about he's telling you.  (It is particularly amusing when a dean pulls out a sheet of paper where he ranks the faculty according to a formula that is only understood by whomever designed it, as if to prove objectively why you are not getting what other people are).  These are probably the same fancy tests and formulas that determined that he should have a raise or a promotion.  It is likely that he became your boss thanks in great part to these same metrics.  That fact alone makes them true.

Maybe this is not so remarkable after all.

Jim Tressel's Nifty New Mural

A scant few weeks after Ohio State threw Jim Tressel under the bus and blamed their current problems on the coach, the University unveiled a mural honoring their old coach

This is a bit tricky, even controversial.  Without question, the coach had a great run as coach of the Buckeyes, winning 6 Big Ten titles and a national championship, going 8-1 against hated Michigan, and sporting a nifty 94-21 overall record.  No question that Tressel is a terrific coach.  There is also no question that his stint at OSU is deserving of a mural.

On the other hand, what kind of a message does this send not only to the NCAA, but also to fans of college football, to high school students, and to the people of Ohio?  How in the world do we consistently profess derision at Tressel's actions yet turn around a few weeks later and unveil a mural in his honor?

I don't think there is any question that coach Tressel's actions on the field are deserving of a mural.  But so soon?

This is like a poke in the eye to all the reformist talk of recent months. it is as if Ohio State does not care.  This is particularly hubristic for a school that is currently awaiting the result of an NCAA investigation and whether that body will add to the schools self-sanctions in the wake of the Tressel scandal.

NCAA and university presidents everywhere: your move.

Tuesday, August 30, 2011

White Vick

I generally agree with Luis both in his reaction to the the white-faced Michael Vick and his reaction to the accompanying article by Toure, a black cultural critic. I don't see the problem with putting Vick in whiteface (nor would I see the problem with say putting Ben Rothlisberger in blackface if the point is to talk about race and racial privilege).  Race and phenotype matter.  One of my all time favorite academic articles is this one, entitled Looking Deathworthy, by Jennifer Eberhart and colleagues.  From the article's abstract:
—Researchers previously have investigated the role of race in capital sentencing, and in particular, whether the race of the defendant or victim influences the likelihood of a death sentence. In the present study, we examined whether the likelihood of being sentenced to death is influenced by the degree to which a Black defendant is perceived to have a stereotypically Black appearance. Controlling for a wide array of factors, we found that in cases involving a White victim, the more stereotypically Black a defendant is perceived to be, the more likely that person is to be sentenced to death.
 Notice that we're not simply talking about race but also phenotype.  Thus, in my view, it is perfectly acceptable to change Vick's race and phenotype and ask whether our reaction to him is driven in by one or both.  When I medidated on the picture, it dawned on me that I found white Vick quite palatable, less menacing.  It reminded me of this Jason Williams.

As for the accompanying article by Toure, I thought the article was itself confused.  To ask whether Vick would be treated differently if he were white is not a "meaningless" question.  This is just a question of baselines.  The concept of equality requires a baseline.  In the American context, whites have always been the baseline.  In many ways, the comparison is a basic tenet of American law.  Compare here 42 U.S.C. section 1981(a), which provides:
(a) Statement of equal rights
All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.
I remember the first time I read this provision, I was struck by how explicitly the baseline was asserted.  Now one may say that whiteness as a baseline is incomplete, which is how one may charitably read Toure's piece.  But ultimately, the piece really is just confused. Consider Toure's closing lines:

 And to those who believe we should judge a man by how he responds when dealing with the worst life has to offer -- with how he climbs after he hits rock bottom -- Michael Vick has become heroic.
And that has nothing to do with race.

Huh?  Did Toure miss the fact that the reaction to Vick is completely racialized. If Toure had done some research, he would have found this article in the social science quarterly, which examined the racial reaction to the Vick case.  Specifically,
 Using data from 400 adults, we examine how race affects perceptions of criminal punishment and subsequent reinstatement into the National Football League in the case of Michael Vick, a star professional quarterback who pled guilty to charges of operating an illegal dog-fighting ring.
This is what the authors found:
 Attitudes toward both criminal punishment and NFL reinstatement vary across race such that there exists important divides in how individuals perceive the system meting out punishment and subsequently reintegrating offenders back into society. These results underscore that white and nonwhites perceive the law and its administration differently.

Monday, August 29, 2011

Thinking about a white Michael Vick

I can hardly think of a quarterback who has accomplished as little as Michael Vick has accomplished yet with as much press.  I am not saying it has never happened.  I just cannot think of any.

Here's the latest, which thankfully is not related to his football life: would Michael Vick be treated the same way for abusing his dogs if he were white?  This is from a piece for ESPN the magazine:
All of that is why, to me, Vick seems to have a deeply African-American approach to the game. I'm not saying that a black QB who stands in the pocket ain't playing black. I'm saying Vick's style is so badass, so artistic, so fluid, so flamboyant, so relentless -- so representative of black athletic style -- that if there were a stat for swagger points, Vick would be the No. 1 quarterback in the league by far. 
Race is an undeniable and complex element of Vick's story, both because of his style as well as the rarity of black QBs in the NFL. A decade after he became the first black QB to be drafted No. 1 overall, about one in five of the league's passers is African-American, compared with two-thirds of all players. But after his arrest for dogfighting, so many people asked: Would a white football player have gotten nearly two years in prison for what Vick did to dogs?
As soon as the reporter wrote this question, he began to hedge about its import.  For example, "[t]his question makes me cringe. It is so facile, naive, shortsighted and flawed that it is meaningless. Whiteness comes with great advantages, but it's not a get-out-of-every-crime-free card. Killing dogs is a heinous crime that disgusts and frightens many Americans. I'm certain white privilege would not be enough to rescue a white NFL star caught killing dogs."  All the same, he thought to ask it, and on a mainstream magazine to boot.

From what I gather, the reaction has been deafening, and largely negative (see here and here; but see here). But it appears that the negative reaction is largely a response to a decision by ESPN to offer a picture of a white Michael Vick.

I don't get it.  The idea itself is hardly crazy, that a white person would be treated differently than a black person for the same offenses.  So is the problem here with the picture?

Help me out, Guy.

Time to Give Back the First Amendment?

Here is what our politics look like, courtesy of the First Amendment:
One night last month, Mitt Romney strode into a dining room above Central Park that was packed with dozens of his wealthiest supporters, gathered there by a group of former campaign aides, to talk about his bid for the White House.
The event was not a fund-raiser for Mr. Romney’s campaign, however, but for Restore Our Future, a political action committee founded by his allies. And only when Mr. Romney left the room did one of the group’s officials stand up to brief the donors on their plans: to raise and spend millions of dollars in unrestricted campaign donations — something presidential candidates are forbidden to do themselves — to help elect Mr. Romney president.
A far more telling statistic: just 35 donors donated more than 80 percent of the money raised by Republican-leaning Super PACs, while just 23 donors donated more than 80 percent of the money raised by Democratic-leaning Super PACs.

This is preposterous.  This is 58 donors with a heck of a lot of things to say. Whatever happened to the other 300 million?

If this is what American Democracy must look like as demanded by the First Amendment, it must clearly be time to give it back.  

Sunday, August 28, 2011

Ugliness and Protected Class Status

Daniel S. Hamermesh, economics professor at Texas-Austin, argues that ugliness should be granted protected class status under federal law. This is apparently not a joke.
why not offer legal protections to the ugly, as we do with racial, ethnic and religious minorities, women and handicapped individuals?
We actually already do offer such protections in a few places, including in some jurisdictions in California, and in the District of Columbia, where discriminatory treatment based on looks in hiring, promotions, housing and other areas is prohibited. Ugliness could be protected generally in the United States by small extensions of the Americans With Disabilities Act. Ugly people could be allowed to seek help from the Equal Employment Opportunity Commission and other agencies in overcoming the effects of discrimination. We could even have affirmative-action programs for the ugly.
Think about this a second.  As we move towards a post-racial society -- or pretend we are already there -- Hamermesh asks us to consider adding ugliness as a protected category.  He so argues on the basis of research showing that ugly people earn less than good looking people and are generally subject to discrimination in employment, hiring, and the like.  One thing he does not argue, because he cannot, is that ugliness is a historical disadvantage.  It thus fails as a constitutional argument, which is probably a good thing. Hamermesh asks for legislation for the ugly, not constitutional protection.

I really cannot tell whether he is serious or not.

I also don't know whether to laugh or cry.

Charles Krauthammer on King Memorial

I have found that I don't often agree with Washington Post columnist Charles Krauthammer.  But I found this . . . tribute really to the King Memorial, thoughtful. There are some claims in the column that one might find objectionable, but that might be uncharitable.

Saturday, August 27, 2011

The Limits of Race-Neutrality in American Politics

This Washington Post article by Peter Wallsten and Krissah Thompson reminds once again of the limits of race-neutrality, this time in American politics.  The point here is quite simple and not at all novel, where groups are positioned unequally in society "neutral" public policies will impact different groups differently. Depending upon the policy, it might improve the position of some groups, worsen the position of other groups, and have a truly neutral impact on some other groups.   Everybody understands this basic point, which is why all interest groups seek group-specific benefits and not neutral-measures.

This is also why the Obama position that he is the President of the whole country and not just African Americans never made any sense.  You can't ask me to vote for you but then ask me not to ask you for anything specific to my needs.  That is not consent of the governed.  There are limits to group-specific measures (moral, constitutional, political, etc.).  So, the point here is not that group-specific must always trump group-neutrality, but the public position of the Obama administration, no race-specific measures (or as Wallsten and Thompson put it, "race-avoidance strategy") was extreme.  In practice the Obama administration was willing to be race-specific as long as it could do so with little attention and visibility.

The truth is that race-neutral public policy measures--the idea that a rising tide will lift all boats, as a universal strategy, will not work for the black community.  We're not all in the same lake. It might marginally improve the black community's position in some contexts, but it will always leave them quite vulnerable at best.

So, here are two questions: (a) will the Obama administration offer specific race-based public policy measures aimed directly at improving the position of the black and latino communities? (b) will those communities settle for less for the symbolic benefits of reelecting the first black president?

Friday, August 26, 2011

Should Republicans Worry?

Notwithstanding the sorry state of the economy, President Obama's  is doing relatively well in the world of public opinion.  Yes his approval has gone down, but it could be much worse. See this excerpt from a recent Pew report:
The better news for Obama is that he continues to be seen by majorities as someone who stands up for what he believes in (71%), as caring (63%) and trustworthy (59%). Moreover, his 43% job approval rating, while much lower than his rating just a few months ago, is relatively strong given the widespread dissatisfaction with national conditions, increasingly negative views of the economy, and broad distrust of government. And Obama’s approval rating continues to be much higher than those for congressional leaders of both parties.
Obama continues to run even in a 2012 matchup against a generic Republican presidential candidate. Currently, 43% of registered voters say they would like to see Obama reelected while 40% would prefer a Republican. That is little changed from a month ago (41% Obama, 40% Republican), but in May Obama held an 11-point lead in the generic ballot.
Voters remain unimpressed by the GOP field. As was the case in late May, prior to the Ames straw poll and Rick Perry’s entry into the presidential race, only about a quarter of voters (26%) say they have an excellent or good impression of the possible GOP candidates. Most (64%) say as a group the candidates are only fair or poor.
 The Republicans have hurt themselves with the recent debt debate and the weakness of their presidential field.  I've long thought that folks are writing off the President way too early.  If there is angst, it ought to be on the Republican side.

Thursday, August 25, 2011

Arizona Files Suit Challenging the Voting Rights Act

The State of Arizona has filed a lawsuit challenging the Voting Rights Act.  The State argues that the Act is unconstitutional and that the State bears a significant burden in complying with the Act.  Luis and I are finishing an article on the Voting Rights Act.  In our view, the likelihood that the Court will strike down the Act is significant.  A few years ago, Texas challenged the Act, the Court ducked the question but signaled very strongly its view that the Act is on shaky constitutional grounds.  The only real question is whether the Court dare strike down one of the most iconic statutes ever passed by Congress.

Monday, August 22, 2011

Taking Stock of the Health Care Mandate in Court

This is exactly what anybody who is seriously following the health care debate needed; a scorecard of the various decisions and their court of origin. An editorial in yesterday's Times offered precisely that:

This is very helpful, but woefully incomplete.  According to the piece, six judges have concluded that the health care mandate is constitutional and five have concluded otherwise.  The article also notes that the judicial conclusions are tinted by partisan overtones, with most judges appointed by Republican presidents ruling against the mandate and judges appointed by Democratic presidents upholding it, though two judges have "broke[n] away from the partisan pattern."

This barely begins to scratch the surface.  Making sense of what has happened, and what is likely to happen in the future, requires far more information.  We need to know who these judges are, and not just who nominated them.  Think of it this way: knowing that Justice Thomas was nominated by the first President Bush tells us very little information about the ideological zealotry of the justice and the lengths to which he and his wife go in furthering conservative causes.  To be clear, I do not intend this as a criticism of Justice Tomas -- though also to be clear, I side with Randy Kennedy over Guy on this one.  The point is that a reasonable portrait of Justice Thomas, or any judge for that matter, must include more information.

The piece is falls short in other ways as well. It frames the legal question as a debate over the power of Congress to require everyone to buy health insurance even if they do not want to.  From this question, the competing answers are straight forward. To those who uphold the law, the question is whether the relevant activities affect interstate commerce in any way.  They answer this question in the affirmative.    Conversely, judges who strike down the law argue that forcing people to buy insurance is not commerce in the constitutional sense and beyond the scope of congressional regulation.  According to the 11th Circuit, the mandate is “a wholly novel and potentially unbounded assertion of Congressional authority: the ability to compel Americans to purchase an expensive health insurance product they have elected not to buy, and to make them repurchase that insurance product every month for their entire lives.”

This is all very riveting. But is it something that the rule of law could possibly decide objectively? Put another way: how does a judge -- even a strict constructionist, assuming any such thing exists -- decide this question under the law? Does the constitutional text, or existing precedents, give us an answer? This is to ask: Does anybody buy Chief Justice Roberts' umpire analogy any loner, assuming they ever did?

This takes me to a related question: whatever happen to the many attacks on judicial activism?  If striking down the health care mandate is not judicial activism in its clearest sense, then the term is empty of any meaning.  In case you suspected as much, think about and compare the reactions to Citizens United. Your curiosity ought to be piqued, at the very least.  

Finally, I wonder how constitutional law professors teach this health care debate.  Do they teach it formalistically, and try to fit it within the post-1937 commerce clause tradition?  This is to ask, if Congress can stop people from buying small amounts of wheat for personal consumption, then surely they can force these same people to buy health insurance, no?  And if they teach these cases within that tradition, then how do they explain the recent turn?  If ideology and crass political preferences do not explain the shift, then what?

Anybody out there NOT angry at Obama?

The campaign to fill Anthony Weiner's seat in New York's Ninth Congressional District is well underway. And it turns out to be a far more competitive race than anybody expected.  Anybody not paying attention, that is.  So here is the New York Times headline this morning: "In the Race to Succeed Weiner, a Surprising Anger at Obama." I don't know how anybody out there with any kind of political pulse cannot possibly be mad at the president.

I, for one, am glad that the voters in this predominantly Democratic district are showing a pulse.  Whether he wins or loses next year is not the real question; rather, it is whether the president will continue taking his base for granted.    

Sunday, August 21, 2011

Education Reform as Politics as Usual

Few things upset conservatives as much as unions and school reform.  Put those two variables together and you end up with a fight in your hands.  This is why I found Sarah Mosle's recent review in the New York Times so maddeningly frustrating.  She was reviewing Steven Brill's Inside the Fight to Fix America's Schools.  As Mosle underscores, Brill is not a big fan of teachers unions, which he blames for all that ails public education in the United States.  

The frustration stems not from Mosle's conclusion that "his case is not airtight, and reasonable doubts remain about his subjects’ prescriptions for reform."  Such can -- and must -- be expected from so complex and sensitive a topic.  One need not be a fan or critic of unions to know that they are neither solely responsible for all that ails in public education nor all that is good about them.  They reside in the gray area where most difficult issues reside.

Instead, it appears that Brill chose instead to take sides, even when the evidence far from warranted it.  Even worse,supportive evidence was given extensive discussion, whereas research that runs contrary to his thesis is referred to "obliquely" and "in half a sentence," or else it is altogether ignored. Brill clearly had an agenda, and fair-minded reporting was not it.

This reminds me of our political culture, and the inability of those in positions of influence to work together towards common goals.  Hence the frustration: education reform, not to mention the national debt or the economy, affirmative action or majority-minority district, are serious, and seriously difficult, questions.  

Until the grown ups in the room begin to treat these questions accordingly, we will remain in the morass we find ourselves today.

Saturday, August 20, 2011

What Obama Might Learn from Chris Christie?

In a column on why New Jersey's Republican Governor will not run for President, notwithstanding the fact that some Republicans are clamoring for him, George Will remarked on Christie's aggressiveness as Governor.  Will observes:
Understanding the first rule regarding political power — “use it or lose it” — he has flexed his institutional muscles. “I don’t want to leave my political capital in my desk drawer to frame when I leave.” A legislature, he says, “is almost genetically predisposed to inaction.” To get it to move on his combative agenda for taming public employees unions, he held 30 town meetings in nine months — almost one a week.
Has President Obama been too passive with Congress?  Should he have been more combative or aggressive?  Or is this an apples to oranges comparison?

Thursday, August 18, 2011

The End of the NCAA?

College athletics are a mess.  While select schools reap tremendous economic rewards, the student athletes must take whatever the NCAA determines they are worth.  This is a remarkable system, especially if you are the one in control of the means of production.  I don't need to quote Marx here.  The point is too obvious for words.

Here's the problem, in the words of Michael Rosenberg:

But college sports, at their core, have nothing to do with amateurism. I mean that in a very practical sense. Players choose schools for education or playing time or because they like the coaches or the helmets. They work out and practice and study and party. Coaches watch film and recruit and put together game plans and punt on fourth-and-1 when they should go for it.

Nobody gets into sports because they have a passion for players not getting paid. They are certainly players who believe in following rules, but that doesn't mean they believe in the rules themselves.
This why all these scandals are not terribly surprising.  There is a market for elite college athletes, and there is also a need to win.  Put those two impulses together and you get exactly what we see in Miami and North Carolina; in Oregon and Southern California; in Auburn, Alabama, and Ohio State.

Anybody who thinks bad things only happen at other schools in not living in the real world.

Part of the problem is that the rules make no sense.  They address different questions for different times, and are established by people who lead comfortable lives and make more money than they probably deserve.  Case in point: Terrelle Pryor quarterbacks his OSU team to victory over hated arch rival Michigan and is given a pair of funny looking pants.  They are given to him because he had, as a student athlete, the opportunity to represent Ohio State.  This is an opportunity that other students do not have.  The pants themselves are immaterial, for the student population does not have access to them, irrespective of whether Pryor decides to sell them or not.  Of course, when Pryor decides to sell these pants, he violates an NCAA rule that does not allow him to benefit in ways other students cannot.

Not sure how that makes any sense.

This is why, to Guy's question whether disclosure would work, the answer depends on your goal for college athletics.  Clearly, disclosure only works once we disabuse ourselves of the quaint idea that  elite athletes go to college to get a top-notch education. Some do, I am sure.  But too many come to college to prepare for "the league."  And there is really nothing wrong with that.

It is time to turn back the clock to 1905 and blow up the system.  The NCAA exists only because a lot of fat cats want it to exist. 

Were I NCAA czar, I would begin my reform project with three basic ideas.  First, I would stop pretending athletes have no value.  They do.  And they know it. Pretending otherwise is not really working.  This reminds me of Nancy Reagan's abstinence program. Makes plenty of sense in theory, even if impractical in the real world.  Amateurism no longer makes any sense.  Big time college athletics are big business.  We should treat the athletes accordingly and stop pretending otherwise.

Second, I would punish schools for their indiscretions.  Heavily.  This might force them to monitor their coaches.

Third, I would also punish the head coaches.  As matter stand today, coaches walk away while their schools are left behind to pick up the pieces.  It happened at Indiana University with the mess left by Kelvin Sampson, and at USC with Pete Carroll, who went on to a $33 million contract with the Seattle Seahawks.  This also makes no sense.  To ask schools simply to show cause in hiring these coaches is not enough.  Restitution might be a much better option.

Obama and Black Voters: Beginning of the End?

The Washington Post's Jonathan Capehart has this post about Representative Maxine Waters asking black voters at a job fair in Detroit the permission to put pressure on the President.  As reported by Capehart, Representative Waters said:
We don’t put pressure on the president. Let me tell you why. We don’t put pressure on the president because y’all love the president. You love the president. You’re very proud . . . to have a black man [in the White House] . . . First time in the history of the United States of America. If we go after the president too hard, you’re going after us. . . . When you tell us it’s all right and you unleash us, and you tell us you're ready for us to have this conversation, we’re ready to have the conversation. . . . All I’m saying to you is, we’re politicians. We’re elected officials. We are trying to do the right thing and the best thing. When you let us know it is time to let go, we’ll let go.
Caphart reports that she received permission, at least from those at the jobs fair in Detroit.  The President has lost some support from the black community, but not too much.  Are black voters starting to take defect?  Is the high-profile criticisms of the President by Dr. Cornel West and Tavis Smiley starting to soften the President's support in the black community?

UPDATE: See this article in Huffington Post.  There seems to be a concerted effort by black political leaders in Congress to be more vocal and public about their criticism of the President.  It might be that these leaders are feeling increasing pressure from their constituencies and thus pointing the finger at the President.  But this is definitely something to pay attention to.

Wednesday, August 17, 2011

Miami Hurricanes NCAA Violations: Disclosure as Remedy?

My colleague James Boyle brought this article to my attention, which details various and multiple NCAA violations by the University of Miami.  Basically one of the boosters provided millions of dollars of illegal benefits to basketball and football players. The question that many have asked is whether this type of activity can be stopped.  Can a player who comes from difficult circumstances really refuse $10,000 from a booster just so he can maintain his NCAA eligibility?

One solution is to allow boosters to buy players but to compel the school to disclose the benefits both to the players and to the boosters.  Luis, since you're a big sports guy, what do you think of disclosure as a remedy?

Mis-using Racism

I'm particularly skeptical of cries by racism from white liberals against white conservatives.  Too often those accusations simply use race to discredit a political perspective.  MSNBC commentator Ed Schultz got caught doing exactly that here.  He accuses Texas Governor Rick Perry of racism after Perry said that there was a black cloud hanging over America.  Schultz states that Perry is referring to the President, when Perry is clearly referring to the economy. Schultz is clearly attacking Perry's political position, but as an aperitif to the political attack, he first accuses Perry of racism.  This is clearly a mis-use of race and the folks who will pay for it ultimately are folks of color when they object to legitimate acts of racism.

Two From the Randy Kennedy Department: His New Book and Expelling Clarence Thomas from the Black Community

First, Professor Kennedy's new book, "The Persistence of the Colorline: Racial Politics and the Obama Presidency," is out and has been reviewed in the NY Times here.  I can't wait to read it and after I do will post.

Second, Kennedy recently reviewed Toure's book at The here.  The most arresting paragraph of the review follows a discussion  of whether the black community should police the boundaries of belonging (determine for itself who is or who is not black to belong to the community).  Kennedy says yes and here is his example:

Some folks ought to have their racial credentials lifted. Consider Supreme Court Justice Clarence Thomas -- the most vilified black official in American history, a man whose very name has become synonymous with selling out. Many organizations, including scores of law schools, refuse to bestow any semblance of prestige or support through association with him. He is being massively boycotted. And like all boycotts, this one is coercive. It applies pressure to the target.
It also applies pressure to third parties, threatening with disapproval those who might cross the boycotters' picket line. The boycott of Thomas is largely monitored by blacks who detest his reactionary politics and rue his paradoxical success in exploiting black racial loyalism. Remember that but for his appeal for protection against a "high-tech lynching," he would probably have failed to win senatorial confirmation to the seat once occupied by Thurgood Marshall.
Is it right for blacks to cast Thomas from their communion? Is it appropriate to indict him for betrayal? These questions have arisen on numerous occasions. In confronting them now, I conclude that I have erred in the past. Previously I have criticized Thomas' performance as a jurist -- his complacent acceptance of policies that unjustly harm those tragically vulnerable to ingrained prejudices; his naked Republican Party parochialism; and his proud, Palinesque ignorance. But I have also chastised those who labeled him a sellout.
I was a sap. Blacks should ostracize Thomas as persona non grata. Despite his parentage, physiognomy and racial self-identification, he ought to be put outside of respectful affiliation with black folk because of his indifference or hostility to their collective condition. His conduct has been so hurtful to and antagonistic toward the black American community that he ought to be expelled from membership in it.
 This is a tough call for me.  First, is Clarence Thomas the most vilified black official in American history?  Hmm.  Is Clarence Thomas' jurisprudence so outrageous that he should be shunned?  If we boycott Thomas why not boycott Scalia and Roberts?  Should we boycott Thomas because as a black man he ought to know better?  Does that mean that Scalia and Roberts get a free pass.  Randall Kennedy is one of my intellectual role models, but I am not convinced on this one.

Thursday, August 11, 2011

How not to criticize the supercommittee

On his eponymous show, last night Lawrence O'Donnell offered one of the most bizarre and wrong-headed critiques I have heard so far with respect to the so-called super committee, the committee of 12 congresswomen and men (or really 11 men and one woman) that is tasked with reducing the deficit.  O'Donnell argues that the super committee is problematic because it does not adequately represent America on a per population basis.

There are many criticisms that one can offer of this committee--not enough expertise, not sufficiently bipartisan, it is structurally set-up to fail--but criticizing it because its members represent too few Americans is just plain silly.  First, it is a committee, a section of the whole.  If per population representation was the goal then you would not set up a committee in the first place.  Put differently, the committee is not a representative body.  It was not intended as such, that is not its function.  So criticizing it on that basis makes no sense. Second, the committee derives its legitimacy from Congress, which is a representative institution.  Congress set up the committee and Congress will have to ratify whatever agreement comes out of the committee. Put differently, the output that comes of the committee will be the output of Congress, a representative body.  Third, it is clear that Congress as a committee of the whole cannot come to a long-term agreement.  This structural move might actually be an ingenious mechanism for addressing the gridlock that plagues our legislature.

Let's give this super committee a chance before we tear it down.  Let's encourage its members to rise above their partisan identities and to be statesmen and stateswomen.  Let us not poison the well that we might have to drink from.

Wednesday, August 10, 2011

On the Embarrassment of Higher Education and Student Athletes

Here are a few headlines from the last few days:
The last headline doesn't quite tell the whole story.  Here is how the article begins:
Joseph Agnew was once a Friday night superstar. A defensive back, he led his Texas high school football team to consecutive state titles in 2004 and 2005. He was also an A student.

Agnew went on to Rice, a first-rate university with an improving football program. But things didn’t quite work out for him, at least football-wise. The coach who had recruited him left after his freshman year. Agnew struggled to find playing time and had a string of injuries. After his sophomore season, he was cut from the team. The next year, he lost his scholarship and later left Rice.
 Somebody should be embarrassed.  Coaches get paid, booster influence is on the rise, and student athletes continue to be treated as means to the much larger aim of winning games and entertaining the masses. 

 This is not to say that the answer is simply to pay student athletes. This is too simplistic and probably unfeasible.  But this is not to say that better answers do not exist.  Here are a few few suggestions, from Jonathan Mahler, a writer for the Times:
They could start by declaring freshmen ineligible for intercollegiate sports to encourage them to focus on their classwork. They could take the scholarship status of athletes out of the hands of coaches, who have the power to cut off a player with a 4.0 grade point average but a bum knee. Most of all, they could place strict limits on full-contact football practices, a step recently taken by the Ivy League, so the minds they’re developing in the classroom aren’t being hastened toward dementia on the field. 

This is just the beginning. The real strides would come when universities declared a truce in the arms race of new athletics facilities and agreed to cap the soaring pay of coaches. Earlier this summer, John Calipari signed a contract extension with Kentucky that guarantees him $3.8 million a year — nearly 10 times what the president of an average state university makes.

Better yet, why not compel football and basketball programs to contribute a modest percentage of their revenue to their universities’ primary mission, education? These programs are heavily dependent on their universities. They leverage their brands, use their facilities and take up more than their share of their administrations’ time. (How do you think the Ohio State president, E. Gordon Gee, spent his summer? Reviewing course offerings, or dealing with the Jim Tressel mess?)
 The NCAA is looking into the matter.  Maybe they are finally embarrassed enough.  They are considering, among other things, extending scholarship offers from one year renewables to multi-years; increasing scholarship offers through stipends; and simplifying the NCAA rulebook. 

For one, I am not holding my breath.  Self-interest will rule the day, and that usually is bad news for student athletes.

Giving Back the First Amendment

To those who want to see the Supreme Court adopt a strict scrutiny standard for gender discrimination, I say, be careful what you wish for.  Adoption of any such standard would likely render Title IX unconstitutional, and myriad other federal and state laws.  This is the lesson of the Court's bizarre race jurisprudence.

My response is to give back the 14th Amendment. 

The same goes for the First Amendment.  Just this morning, the New York Times editorial once again chastised the Court's notorious Citizens United decision for allowing the infusion of so much money into our political system.  From the editorial:
When the Supreme Court ruled that the government may not ban campaign spending by corporations in the landmark Citizens United decision last year, it argued that disclosure of contributions would protect American democracy from hidden corporate agendas.
The court reasoned that “prompt disclosure of expenditures can provide shareholders and citizens with the information needed to hold corporations and elected officials accountable for their positions and supporters.”
American elections have since been flooded with corporate money. And the court’s reasoning is proving to be wrong: Shareholders of most American companies can’t determine whether corporate campaign spending is in their best interest because they haven’t been told how the companies are spending in political races.

Of course the Court was wrong.  Citizens United is not about the conservative justices' best guess about what a healthy democracy needs and wants.  It cannot even be pretended that this is so.  Instead, the case, as most others, is about ideology and the political preferences of the justices in the majority. 

If this is not an activist decision, then the concept has ceased to have any meaning.

The answer is usually that Citizens United is demanded by the First Amendment.  This is the one that bars Congress from "abridging the freedom of speech."  If the First Amendment in fact demands the conclusion the Court reached in Citizens United, then it is time to give back the First Amendment as well.  

While we are at it, we might give back a few others.  The Second Amendment is an easy target.

Monday, August 8, 2011

Should Liberals Fret about Future Supreme Court Rulings?

In a very provocative article in the New York Times Magazine, Emily Bazelon suggested that "[t]he next few years of Supreme Court rulings could be brutal for liberals."  This is because some weighty issues are coming to a Court where conservatives hold a 5-4 edge.  And the issues are certainly volatile, from the constitutionality of the health care law to same sex marriage, affirmative action and illegal immigration.  Fretting appears to be in order.

There is reason to fret, for example, about the state of the federal judiciary.  As Bazelon writes, Republican Presidents since 1981 nominated and confirmed 41 appellate judges under the age of 45, as contrasted to only 10 for the Democrats.  President Bush contributed 10 appellate judges to this list.  president Obama?  Zero.  This is baffling, especially since Obama is a former law professor who seemingly understood that lower court judges "turn the Supreme Court's vague decrees into actual marching orders for the country."  Instead, the President has shied away from big fights, and in so doing has left the federal bench with more than 80 vacancies.  Incidentally, these vacancies are unparalleled in the history of the federal judiciary.  

There is further reason to fret in Bazelon's plea for strict scrutiny for sex discrimination. She writes that the three women justices might be able to find two more votes -- Breyer's, Kennedy's, or maybe Scalia's -- to change the standard for sex discrimination from intermediate scrutiny to strict scrutiny.  On her account, this is important because the government has an easier time justifying such discrimination under intermediate than under strict scrutiny.  This is right, of course, but it is also why I think she has it exactly backwards.  This is not Bazelon's fault, of course; her argument is on the side of reason. This is due to the conservative justices' ahistorical and disingenuous application of strict scrutiny.

Their story is quite simple.  While facing a state racial set-aside program, Justice O'Connor wrote for the Court that she could not tell whether the program was in fact a benign law designed to help its intended beneficiaries, or a law analogous to Jim Crow statutes  of old.  She had no idea.  And so the only way she was able to draw that distinction was by applying strict scrutiny and asking the government to proffer a compelling interest for enacting any such laws.  Needless to say, whatever interests the government proffered fell short.  And the laws were struck down time and again.

Note what this would do for sex discrimination statutes. As matters stand, the government only needs to identify an important interest for treating men and women differently.   Under this standard, Title IX remains a constitutional exercise of congressional power, as does Title VII's prohibition against sex discrimination.  Were the standard ratcheted up to strict scrutiny, it remains to be seen whether the government could justify either of these two laws.  It seems unlikely.  

This is why if given a choice, I'd happily give back strict scrutiny as applied to racial classifications.  I don't think advocates of gender equality want any part of it.

* * * 

Bazelon makes a third point, and by the title of her essay, this is where I thought she'd spend most of her time.  This is the question of what the Court will do with the big cases it will soon face.  On this point, she hedged: on the one hand, she offered Kennedy's opinion in Brown v. Plata, the California prisoner population case where Kennedy wrote that “[p]risoners retain the essence of human dignity inherent in all persons. Respect for that dignity animates the Eighth Amendment prohibition against cruel and unusual punishment.”  This ruling signals that Kennedy might be inclined to rule in favor of the health care law.

On the other hand, Kennedy joined the five-member majority that upheld Arizona's laws that crack down on businesses who hire illegal immigrants.  This is a strong signal that Kennedy will vote to uphold the notorious Arizona immigration law that allows the state to stop people and ask for their papers.  Bazelon also cites work by Professor Lee Epstein that suggests that median voters on the Court "line up almost exactly with the president who chose him."  In Kennedy's case, Bazelon points out, that would be President Reagan. Hardly a comforting thought for liberals, "no matter how many times Obama invokes him in speeches."
The question of what Kennedy will do in the future presents one of the most interesting questions in constitutional theory and law.  This is why I think Bazelon gave it short shrift.  Undoubtedly, Kennedy is the Court's median justice, and according to Epstein, a super median justice at that.  He holds the future of the Court in his hands. This is key, as the Court is gearing up to face some of the iconic statutes that form part of the Second Reconstruction.  The next few years could indeed be "brutal" for liberals.

When it comes to questions of race, however, Kennedy has given us enough information to think that he will give these questions the considered attention they deserve.  I am thinking here of his concurrence in Parents Involved and his majority opinions in both Ricci and LULAC v. Perry.  I will say much more about this argument in a future post. For the moment, I can say that I do not think he will take that fateful step.

As for the implications of this view: it is clear that the conservative justices are gearing up to examine the constitutionality of the Voting Rights Act and select portions of the Civil Rights Act. This means that one person, properly situated, can single-handedly bring down the Second Reconstruction. This is a remarkable fact of American political life. Justice Kennedy will choose to uphold or strike down these revered civil rights laws on the basis of his idiosyncratic cultural worldviews and his particular understanding of the politico-constitutional domains in question. How in the world do we justify that?

In the end, I think Alexander Bickel had it almost right. The challenge of constitutional theory lies in justifying placing this power not on an unaccountable court but on a single justice.

Devasting indictment of Obama Presidency

Drew Westin has published this devastatingly critical op-ed in the NY Times on the Obama presidency.
I found the following paragraph particularly heart-wrenching:
Like most Americans, at this point, I have no idea what Barack Obama — and by extension the party he leads — believes on virtually any issue. The president tells us he prefers a “balanced” approach to deficit reduction, one that weds “revenue enhancements” (a weak way of describing popular taxes on the rich and big corporations that are evading them) with “entitlement cuts” (an equally poor choice of words that implies that people who’ve worked their whole lives are looking for handouts). But the law he just signed includes only the cuts. This pattern of presenting inconsistent positions with no apparent recognition of their incoherence is another hallmark of this president’s storytelling. He announces in a speech on energy and climate change that we need to expand offshore oil drilling and coal production — two methods of obtaining fuels that contribute to the extreme weather Americans are now seeing. He supports a health care law that will use Medicaid to insure about 15 million more Americans and then endorses a budget plan that, through cuts to state budgets, will most likely decimate Medicaid and other essential programs for children, senior citizens and people who are vulnerable by virtue of disabilities or an economy that is getting weaker by the day. He gives a major speech on immigration reform after deporting a million immigrants in two years, breaking up families at a pace George W. Bush could never rival in all his years as president.
 The President and his political team are going to need to come back to the left.  These narratives have a way of snowballing.  It is way too early to pass judgment on the likelihood of success of the Obama re-election effort, but there are very clear warning signs.

Sunday, August 7, 2011

The Canard of Judicial Diversity

My ninth grader tried out for the high school soccer team a few weeks back.  And as I watched a practice here and there and wondered who would make the team and who would not, I could not help but think about debates over judicial diversity.

The question is this: how do you choose the eighteen best deserving players to join the team?  Is it the players who best handle the ball?  The ones with the best shot?  Or is it the ones who run fastest, or who hustle on every play?  In a nutshell: who deserves to make the team?

This is not an easy question when talking about putting together a soccer team, and nobody pretends that it is.  Yet somehow we pretend otherwise as soon as we translate this question into debates over racial diversity.  Here is an example, from Curt A. Levey, the executive director of the Committee for Justice:
Diversity is a good thing, but how do you achieve it — by quotas? . . .  Do you achieve it by lowering your standards? Or do you achieve it by removing any discriminatory barriers that might exist and by casting a wide net?  The more you focus on race and gender, . . . the less you’re going to focus on other traditional qualifications — that’s simply the math of it.
This is a canard, plain and simple.  But there is no denying that it is a very effective canard.

What makes a deserving judicial candidate?  This is a very difficult question.  We ought to stop pretending otherwise.