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.

What makes a great coach, or a great applicant, or a great anything? And what does race have to do with it?

A few days ago, Terry Bradshaw, hall of fame quarterback, offered his thoughts on Pittsburgh Steelers coach Mike Tomlin.  They were not kind:

“I don’t think he’s a great coach at all. . . . He’s a nice coach. To me, I’ve said this, he’s really a great cheerleader guy. I don’t know what he does. I don’t think he is a great coach at all. His name never even pops in my mind when we think about great coaches in the NFL.”

The quote raises obvious questions.  What makes a great coach?  What does a great coach do?  What is a "great cheerleader guy," as opposed to a great coach?  Who is a great coach in the NFL today, or ever? And most importantly, what does Mike Tomlin's race have to do with any of this?

A great coach

Is Mike Tomlin a great coach?  His numbers at least put him in the conversation.  In his ten years as head coach of the Steelers, he has compiled a 159-102 win-loss record.  That means that he has won 64% of his games.  In those ten years, he has led his team to the playoffs 7 times, has won the AFC twice, and won one Super Bowl.  On its face, this is an impressive record.  By way of a comparison, look at everybody's hall of fame coach Bill Belichick.  In  22 years, Belichick has a 67% winning percentage, 6 AFC championships and 4 Super Bowl wins.  

How do we measure these numbers?  How do we compare Tomlin's numbers to all great coaches in the league, past, present and future?  I cannot pretend to know.  But the beauty of this particular debate is that a lot of people have lots of answers, and they do not always agree with each other. Here's an answer, from Paul Zeise of the Pittsburgh Post-Gazette: Tomlin is a good coach, not a great one, "but numbers without context are meaningless."  And the only context that matters, according to Zeise, is that Tomlin "has never had to coach even one season without an elite/Hall of Fame-level quarterback."  This means that "Tomlin has to be judged on a different scale and with a different curve than most coaches of the past, say, 35 years."  Tomlin also inherited a great team.  And his drafts have been mediocre.  He could be a great coach, Zeise concludes, "but he needs to win at least another Super Bowl, and it wouldn’t hurt if he had a run of successful seasons after [his hall of fame quarterback] is gone."

This is the line that sticks with me: "Tomlin has to be judged on a different scale and with a different curve than most coaches of the past, say, 35 years."  I am not about to fact check whether most hall of fame coaches of the last 35 years have had a hall of fame quarterback or not.  But we know this: Belichick has won four Super Bowls with the best quarterback of his generation, maybe of all time. Does that take away from his accomplishments?  We also know that John Gruden won a Super Bowl in Tampa Bay with what may be, at best a pedestrian quarterback.  Does that make him a great coach?  And we also know that Don Shula never won a Super Bowl with hall of famer Dan Marino as quarterback.

Is the point, then, that Mike Tomlin's record is as-of-yet incomplete?  Is the point that we ought not anoint Tomlin as a great coach until he coaches for longer than ten years?  Maybe so.  But that's not the point that Bradshaw was making.  He was not making an epistemic claim but an ontological one.  The point was not whether Tomlin's record was the record of a great coach, but whether Tomlin is a great coach irrespective of his record.  He is not, according to Bradshaw.  Rather, he is "a great cheerleader guy."  That's who he is, and this is something that a better record will not change.

Think about that for a second.  What makes a great coach and how do we know?  These are old questions.  What is merit and how do we determine it?  I don't pretend to know.  And anyone who pretends otherwise is probably lying, or hasn't given these questions the thoughtfulness they deserve.

A cheerleader guy

Bradshaw did give Tomlin credit for being "a great cheerleader guy."  I think I know what that means. Tomlin is not a strategy guy, and Xs and Os guy, a coach who will out-scheme and out-smart the opposition.  What he will do, according to Bradshaw, is rally the troops and cheer them on.

This quote reminds me of something I read years ago about Sir Alex Ferguson, one of the greatest managers in English soccer history.  Ferguson's greatest strength as a manager, or so I read, were his leadership qualities, the way he could rally a team to fight for a common goal.  One could even think of it as "cheerleading."  I never thought of it as a negative thing.  To be sure, "cheerleading" may be a negative as applied to Tomlin. But without question, the term, standing alone, is loaded.  Think of how many Super Bowl winning coaches you know who are considered "cheerleader guys" and nothing more.  I can't think of many.

The look of a coach...and race

And this brings me to the elephant in the room.  Mike Tomlin is Black.  He was hired only after the NFL instituted the Rooney rule, which required teams to interview an applicant of color before moving forward with a coaching hire.  Tomlin was not in the team's radar, and the interview was extended only as a courtesy.  But Tomlin blew away the interview and got the job.  The hire turned a lot of heads around the league.  It was unexpected, to say the least.  Ten years and a Super Bowl win later, we are still debating whether Tomlin is a good coach, or a great one.  

This debate also reminds me of hall of fame quarterback Warren Moon.  Or Doug Williams.  Or Randall Cunningham.  They were all very good quarterbacks, even great, but the football world had a hard time seeing their greatness.  They did not look the part of "great quarterback."  They were Black quarterbacks before they were great quarterbacks.  And yes, race had everything to do with it.  

I would love to believe that we don't see race, that we only see merit, and that the world is ready to move past race conscious policy making.  But I know better.  And if you don't believe me, do a simple thought experiment.  Imagine a white coach who has won a Super Bowl and been to the playoffs in 7 of his first 10 years in the league, and whether we would be debating if he was a great coach or merely a cheerleading guy. Or think about how many mediocre coaches get second chances, and how many coaches of color get only one chance.  

Just imagine.

What does it mean to look "presidential" (or "professorial," or "decanal," or...)?

One of the big stories of the 2016 presidential election is whether Donald Trump looks and acts presidential. This is no idle conversation.  What voters want to know is whether Trump can act like a president is supposed to act, do the things a president is supposed to do, look like a president is supposed to look.  Note that the bar for candidate Trump is very low.  Reading from a teleprompter will do.  Or not behaving like a sixth grade bully.  Note also that the point is not whether he is or can be presidential.  The point is whether he can pass for one.

Think first about what that means.  And think next about who benefits and who does not when we think about candidates, and jobs, and life, in that way.

What to make of the Puerto Rico Fiscal Control Board?

Back in June, the US Congress agreed on a bill to "solve" Puerto Rico's financial problems.  One of the solutions under the PROMESA Act (who says that politicians and their aides do not have a sense of humor?) is the establishment of a federal control board to oversee the finances of the island and the restructuring of the notorious Puerto Rican debt.  And just this past week, President Obama appointed seven members to the board, five of whom are Latin@s.

This is in-your-face colonialism for a 21st Century audience.

Alt-Right and "race realism" taken with a dose of history

The Diane Rehm show had a terrific discussion about race and immigration this week.  You can find it here.  Of particular interest to me is the conversation began by Jared Taylor, editor of American Renaissance magazine, a self-described "race-realist, white advocacy organization".  This particular exchange, early in the conversation, is particularly revealing:

REHM
Help me to understand what the term race realism means.

TAYLOR
Well, this has to do with the central element that does unite the alt-right. Among the many positions held by the alt-right, we reject the notion that race is some sort of sociological optical illusion. Race is a biological fact, whether we wish to recognize that or not, and we completely reject the idea that all races are exactly equal and equivalent and in effect interchangeable. 

TAYLOR
It's obvious that if a nation goes through substantial racial demographic change, many aspects of it will change, and a majority has the right to remain a majority. This is taken for granted in all non-white countries. You would never expect the Japanese or the Nigerians or the Mexicans to countenance some kind of immigration or other program that reduced them to a minority within a period of decades. They would laugh at it. 

REHM
Of course the United States has, from its very beginnings, taken in far more of a variety of races, some voluntarily and some otherwise. 

TAYLOR
Yes, but the very first immigration law established in 1790 by the very first Congress of the United States, when these fellows were sitting around trying to decide what sort of nation they are going to be, the very first naturalization law was going to restrict naturalizations to free, white persons of good character. 

REHM
And that's how you'd like to keep it. Is that correct? 

TAYLOR
Nations have a right to maintain some kind of cultural, racial and historical homogeneity, yes indeed. Furthermore we had an immigration policy, up until 1965, that was explicitly designed to keep the nation majority European. There was absolutely nothing wrong with this. The United States, people like to call it the American experiment. I don't like to think of my country as an experiment, a bunch of chemicals sitting over a Bunsen burner. 

TAYLOR
We have not suspended the laws of human nature in the United States of America. We are a nation like any other, and the extent to which we lose any kind of cultural, racial homogeneity, the extent that we become a multi-culti mishmash, we will become an ungovernable place...

This is breathtakingly refreshing.  It is a testament to Diane Rehm and her wonderful show.  I am particularly intrigued by Mr. Taylor’s gloss on the past.

Mr. Taylor argues that the white majority has a “right” to remain a majority.  Diane Rehm pushes back, and rightly so: the US has admitted a multitude of races and nationalities from the beginning of the country, “some voluntarily and some otherwise.” Taylor responds with the 1790 Naturalization Act, which reserved U.S. citizenship to “any alien, being a free white person.”  Mr. Taylor appears to read this language as a hardened racial classification.  One need not do so, of course; instead, this language could reflect a racialized baseline that accounted for the reality of slavery as it existed in the late 18^th Century.  In other words, the language of “free white person” is simply to draw a line between black people and everyone else.

Note that this second reading is much kinder to the founding generation and their conflicted views about race.  In contrast, Mr. Taylor’s reading sides with Dred Scott and the reading of our founding generation as racist and white supremacist.  He further ascribes this view to subsequent generations, up to 1965 and the Immigration and Nationality Act, which replaced the national origins quota system with a preference system.

So there you have it.  Mr. Taylor is essentially calling into question the First Reconstruction, which overruled Dred Scott and extended rights of citizenship to the former slaves, and the Second Reconstruction, which continued the earlier struggle.  Mr. Taylor objects to racial progress, diversity and multiculturalism.  He objects to the very things that many of us see as what makes the United States an exceptional country. 

More generally, what I find most interesting about Mr. Taylor’s views is how he deploys history and his reading of our shared past in order to tell a story of where we should be as a nation.  But of course, Mr. Taylor is telling you the story he wants you to hear.  I wonder what he would say, for example, about the Treaty of Guadalupe Hidalgo and its treatment of those living in the annexed Mexican territory.  I also wonder how he would fit Hawaiian and Alaskan statehood within his narrative, or the 1917 Jones Act, which extended US citizenship to the people of Puerto Rico, or the 1924 Indian Citizenship Act, which conferred US citizenship to American Indians born in the US.  Or the McCarran Walter Act of 1952, which removed race as an exclusionary category in immigration.

I imagine he would revert back to his view of the founding generation as racist and white supremacist.

Refreshing indeed.

The Supreme Court has Denied the Stay Request on the NC Case

The Supreme Court denied North Carolina's application to stay the mandate of the Fourth Circuit decision that essentially struck down NC's omnibus voting law.  The Chief Justice, and Justices Kennedy, Alito would have granted the stay except for the preregistration issue.  Justice Thomas would have granted the stay in its entirety.  Some brief observations:

First, as I noted here, on a Court that is evenly divided on contentious voting issues, the courts of appeals are essentially courts of last resort.  But more importantly, they know that and they are behaving that way. The Fourth Circuit wrote the opinion it did because it knew that its decision was effectively unreviewable as long as no one defected from the liberal bloc.

Second, the fact that the conservative justices would have granted the stay (Justice Thomas in toto, the others everything but the preregistration), tells us a lot about the strength of the application for stay by petitioners (and the strength of the ideological divide on these issues).  The application for stay was very strong and obviously attractive to the conservative Justices, presumably the applicant's primary target.  The application was addressed to the soft spot in the lower court opinion, including the Fourth Circuit's understanding of intentional discrimination and the manner in which the Fourth Circuit's analysis limited the Supreme Court's decision in Shelby County.

Third, there are simply two different ways of thinking about law and political participation in this country.  One way of thinking about it appeals to liberals and the other way of thinking about it appeals to conservatives.

Lastly, liberals, particularly liberal academics, depending upon the outcome of the election, may get a chance to not only develop their theories of race and political participation (or of political participation writ large), they may see those theories implemented.  It will be interesting to see what the new scholarship on these issues will look like.  An example of what I have in mind is this recent paper by Pam Karlan.

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?