Who speaks for the poor?

This election season was disappointing, to put it mildly.  Infuriating, even.  But not for the obvious reasons.  The election of Donald Trump did not infuriate me or disappoint me as much as it embarrassed me, for what I take to be obvious reasons.  The presidency always stood for something much bigger than all of us.  That is no longer true.  This is not what I want to write about today, however.

The 2016 election cycle took me back to my law school days, a time when I first came upon the Rodriguez case.  This is San Antonio Independent School District v. Rodriguez, decided in 1973.  The case challenged a Texas funding scheme for its public schools that both set a minimum funding threshold for every school in the state but also relied on local property taxes for supplemental revenue.  This reliance on property taxes led to vast and obvious inequalities among schools, since richer schools had a much more robust property tax base than poorer schools.  This was obvious to anyone who cared to pay attention.  Thus the question that reached the Supreme Court in 1972: does this obvious and severe funding inequality violate the equal protection clause, that is, the principle that all persons must be treated equally?  Put a different way: could such severe funding inequality possibly conform with the constitutional norm of equality?

This was not a crazy question, nor was it a question with an obvious answer, not in 1973 and not today.  Reasonable minds can disagree.  The three-judge panel held that the funding scheme violated the Constitution, both because wealth was a suspect class and education was a fundamental right.  This meant that the state must provide a compelling reason for its funding scheme but it could not do so.  The panel struck down the plan yet gave the state ample time to come up with a new funding scheme.  The US Supreme Court disagreed, in a 5-4 decision authored by Justice Lewis Powell, and upheld the Texas scheme. 

I remember reading the case and trying to make sense of it.  It was easy enough to make sense of the case as a legal issue.  Once the Court decided the threshold questions -- whether wealth was a suspect class or education a fundamental right -- the rest of the opinion followed as a matter of course.  There was nothing there.  But that was precisely the point.  Why in the world was wealth not a suspect class or education a fundamental right?  On the wealth issue: how could the state pick winners and losers from the moment a child steps on public school grounds?  How could such stark inequalities in funding meet constitutional norms?  On the education issue: whatever happened to Brown and its language about the importance of public education in modern society?  This was another way of asking, whatever happened to the Warren Court?

And that was the point.  The Nixon election in '68 had brought about the expected change in the Court's composition.  This is what follows when a president nominates 4 new justices in the span of four years.  This is another way of saying that elections matter.  As others have written, this is the most direct way to affect constitutional change outside the amendment process.  Nixon did that.  Faced with a chance to extend Brown to its logical resting place, or to continue the trend begun by the Warren Court to recognize wealth as a suspicious category, the Burger Court chose neither.  And poor children, whom in the Rodriguez case were mostly children of color, lost again.  No surprise there.

The Rodriguez case offers two lessons worth remembering.  The first is implied in the prior passage: judicial nominations matter and the worldviews of those who take to the bench.  Too often, we speak of courts as a faceless monolith, but doing so serves to hide the real faces and ideologies of those who make some of the most important decisions in our society.  Take Rodriguez, for example.  Earlier, I referenced the lower court panel, which sided with the plaintiffs.  What I did not say was that two of the members of that panel were nominated by President Johnson, and the third was nominated by President Kennedy.  And that matters.  These three judges read the same record facing the Supreme Court yet interpreted it differently.  Where the lower court saw the stark inequalities in the state scheme and demanded a compelling state interest in accordance with recent Warren Court cases, the Supreme Court saw the same facts and could not find "any evidence that the financing system discriminates against any definable category of 'poor' people" and concluded that "the Texas system does not operate to the peculiar disadvantage of any suspect class."  Importantly, Rodriguez was a 5-4 decision.  The Supreme Court was itself closely divided on these questions.

The question was obvious to me then, and it is obvious to me today.  I agree with the lower court in Rodriguez that the Texas scheme violates the equal protection clause.  The poor are a suspect class and education is a fundamental right.  Maybe this makes me an activist, or a liberal, or a believer in a living constitution. If so, I find myself in good company.  This is Heller, the Second Amendment case.  This is Citizens United, the campaign finance case.  This is any race case decided by the Rehnquist or Roberts Court.  So there is really no need for sanctimony.

As for the bigger question, and the second lesson in Rodriguez: who speaks for the poor?  We are asked to believe that the Republican Party, and its plutocratic flag-bearer, speak for the poor.  We are asked to believe that the party of Trump speaks for the poor.  We are asked to believe that the same man who paid no taxes, created Trump University and swindled many, and bankrupted myriad properties in order to achieve his own financial gain, speaks for the poor. We are asked to believe that Trump read Michael Harrington and found religion.  

We are asked to believe the unbelievable.  

So this is what we have left.  A few generations ago, the Democratic Party spoke for the poor and we could dream of a Great Society.  Judges appointed by Democratic presidents sought to understand the Constitution thusly, but Republican judges thwarted that effort.  Yet the Republican nominee rode that very issue all the way to the White House.  

It is hard not to be disappointed, and infuriated. 

And the question remains: who, then, speaks for the poor?

Nobody.

Affirmative Action is Back on Center Stage . . . and I Feel . . . Fine?

The Supreme Court granted review today in Fisher v. University of Texas at Austin. The question at the heart of the case is disarmingly simple, even innocent enough: whether the admittedly race-conscious undergraduate admissions program at the University of Texas at Austin meets the exacting demands of the Equal Protection Clause.

A sensible thing to do at this point, I imagine, is to read the lower court opinions, maybe even carefully.  With a clear sense of what the University of Texas-Austin has done, one could then re-read Grutter and try to chart the Supreme Court's expected path.  According to Judge Higginbotham on the 5th Circuit, the University of Texas--Austin is on safe constitutional ground per Grutter.  But is it?

I'd rather think about this case differently.  First and foremost, could the Court possibly overturn its 9-year-old holding in Grutter? Even in the face of the Rule of 4, which requires only 4 votes in order for the Court to accept a case, what other motivation could the justices have to grant review here? The next step is also quite clear: if admonitions from Justices Scalia and Kennedy are accurate indicators, the Court will soon face the constitutionality of Title VII and the Voting Rights Act.  This gets us to the end game: could Fisher be the beginning of the end of the Second Reconstruction?

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.

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.

Looking for Justice Marshall

A recent survey conducted by the Kellogg Foundation, due out today, reveals startling conclusions about the available opportunities for children of color in their communities.  In general, these children have fewer opportunities to gain access to good health care and education, and their communities are less safe and fail to provide them with adequate support.  According to Gail Christopher, a Kellogg Foundation vice president, "you have major, major pockets of poverty in this country, many of which are tied to race."

These findings remind me of the work of Robert Coles, Jonathan Kozol and Alex Kotlowitz, among others.  These are not new findings.  Coles and Kozol, for example, have documented the destabilizing effects of race and poverty on the children of this country for well over forty years.   Yet we still find ourselves in the same place.

On Judging and "Classical Judicial Jurists"

A few nights ago, watching the Stanley Cup finals reminded me of the confirmation hearings for my colleague Dawn Johnsen to head the Office of Legal Counsel. During her exchange with Senator Sessions, the Senator expressed the following view:

I think Justice Alito and Roberts have firm, classical judicial philosophies that would really trouble me if somebody thought they were unfit for the bench -- (inaudible) -- said about to radically remake the Constitution, it's the activists that are remaking the Constitution, not the classical judicial jurists.

It would be too easy to criticize this statement as sheer lunacy (note to self: send Senator Sessions a copy of The Attitudinalist Model Revisited and The Choices Justices Make). But that would be to give this view far too much credit. The better story here is how such a view is accepted in places that matter, like the U.S. Senate. And that, standing alone, is a triumph of the conservative movement.

Consider also Chief Justice Roberts' confirmation hearing, where he assured the Judiciary committee that

Judges and justices are servants of the law, not the other way around. Judges are like umpires. Umpires don't make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ball game to see the umpire. Judges have to have the humility to recognize that they operate within a system of precedent, shaped by other judges equally striving to live up to the judicial oath.

Unsurprisingly, this vision of his role died soon after his confirmation to the Court. He is not the limited judge he professed to be. It appears he never was.

Move this story ahead, to the upcoming racial "discrimination" case, Ricci v. DeStefano, or the Namudno case, which will consider the constitutionality of the special provisions of the Voting Rights Act. The same Chief Justice who professes to only apply the rules as they exist, and who abhors judicial activism, will decide these cases not on the law as it is written, but on the law as he wishes it to be.

This brings me to the Stanley Cup finals. After game 2, a star player received an "instigator" penalty for fighting during the last minute of the game. And the Rule seems pretty clear on this:

47.12 Instigator in Final Five Minutes of Regulation Time (or Anytime in Overtime) - A player or goalkeeper who is deemed to be the instigator of an altercation in the final five (5) minutes of regulation time or at any time in overtime shall be assessed an instigator minor penalty, a major penalty for fighting, and a game misconduct penalty (see 47.22).

The problem was, this was a star player, and to suspend him would place his team at a serious disadvantage. But rules are rules, right? Here's what his coach said after the game: "If he got an instigator in the last five minutes, I think there are rules that are clear. I don't know." However, here's what the league office said, in a statement issued an hour after game 2 ended:

None of the criteria in this rule applied in this situation. Suspensions are applied under this rule when a team attempts to send a message in the last five minutes by having a player instigate a fight. A suspension could also be applied when a player seeks retribution for a prior incident. Neither was the case here and therefore the one game suspension is rescinded.

Of course. Tell it to Chief Justice Roberts, or Senator Sessions.

So when you read Ricci and Namudno, think about stare decisis; and about the text of the Equal Protection Clause and Section 2 of the Fifteenth Amendment; and about the intentions of the Reconstruction Congress who drafted these Amendments into the Constitution. All of these "classical" sources of law will point you in the same direction. And yet none of these sources will matter to the "classical" jurists on the Court. They will vote to overturn the Second Circuit in Ricci, and they will likely vote to strike down the special provisions of the VRA in Namudno. And Senator Sessions will not call them "activists," because, well, they reached the right result (that is, a result with which he agrees).

I wonder if Chief Justice Roberts is a hockey fan. The NHL did him proud the other day. He could not have done it any better.