Racism Deserves A Remedy

The American flag and the South Carolina state flag were lowered to half-staff at the State Capitol to honor the nine African Americans killed in what surely seems like a racially-motivated terrorist attack at Emanuel African Methodist Episcopal Church in Charleston.  The Confederate flag -- the battle flag of an armed revolt whose aim was to maintain the enslavement of the South's black population; the flag of white supremacists who sought to violently control that population after the revolt failed; the flag of the perpetrator of these killings -- continues to fly unfettered at its peak in front of the Confederate Soldiers Monument on Capitol grounds. 

What a perfect metaphor for the dogged persistence of racism in this country. 

President Obama noted that "the fact that this took place in a black church obviously ... raises questions about a dark part of our history. This is not the first time that black churches have been attacked ...."

Indeed, as Charles Pierce reminds us, "this was the church founded by Denmark Vesey, who planned a slave revolt in 1822. Vesey was convicted in a secret trial in which many of the witnesses testified after being tortured. After they hung him, a mob burned down the church he built. His sons rebuilt it."  

But this isn't just about our history.  It is very much about our present.  As Kali Holloway says, to pretend to be surprised by this latest horrific crime is to be complicit:

Who, at this point, can feign surprise at this latest massacre when it sits at the nexus of so much that is familiar and perfectly in line with the U.S. that we know? We are a country where mass shootings are weekly news, where gun violence is a fact of daily life, where there is a legacy of terror against black people and communities, where white racists have long targeted black churches, where African-American life is so devalued it can be taken with impunity

 Jesse Jackson is right: "This young white man, whoever he is, did not originate terrorism.  He is merely reflecting decades and centuries of institutional and active political terrorism."

The shooting in Charleston is the result and the product of a protracted political genocide resulting from institutionalized racism, centuries of dehumanization and the current denial of economic and political equality of opportunity.  Today everyone is outraged at the killings, but there is not the same outrage that African Americans are number one in infant mortality, in life expectancy, in unemployment, in cheap wages, in access to capital and denial of bank loans, in imprisonment, in segregated housing and home foreclosures, in segregated and underfunded public schools, in poverty, in heart disease, liver disease, diabetes, mental health issues, HIV/AIDS and the lack of access to health care and more.  We ignore this institutionalized state of terror and the resulting racial fears at our peril.

As Charles Pierce says, we must "think about what happened. Think about why it happened. Talk about what happened. Talk about why it happened. Do these things, over and over again. The country must resist the temptation present in anesthetic innocence. It must reject the false comfort of learned disbelief and the narcotic embrace of concocted surprise."

We need to take serious steps to end gun violence by electing politicians who will enact meaningful gun control laws

We need to tear down state-sanctioned Confederate flags and other symbols celebrating our racist heritage.  (Sign the petition here)

"Racism deserves a remedy," Jesse Jackson states, proposing "a White House Conference on racial justice and urban policy to make sure no one else is being hurt because of economic, political and leadership indifference or lack of vision of what needs to be done!"

Can anyone imagine any of the Republican candidates for president convening such a conference or meaningfully addressing the issues of race?  Just listen to what they have to say about this latest attack on "religious liberty."  To them, it has nothing to do with race. For them, it is never about race.  For them, it can't be about race because to acknowledge the existence of institutional racism (like acknowledging the existence of man-made climate change) would mean having to do something about it.

In any event, Isaiah J. Poole, Jr., notes, "this incident should call America to the realization that it needs something deeper than yet another White House conference can provide – a recognition of the continuing infection of racism in the nation’s bloodstream – an infection unfazed by our denials of its existence or our protestations that it’s not our problem – and the determination to do whatever it takes to root out that infection and heal its effects once and for all."

As Charles Pierce concludes: 

There is a timidity that the country can no longer afford ... This was not an unthinkable act ...  If people do not want to speak of it, or think about it, it's because they do not want to follow the story where it inevitably leads. It's because they do not want to follow this crime all the way back to the mother of all American crimes, the one that Denmark Vesey gave his life to avenge. What happened on Wednesday night was a lot of things. A massacre was only one of them.

Obama's Crusade, High Horses And American Exceptionalism

The reaction to President Obama's observation that we shouldn't condemn an entire religion, in this case Islam, because of the barbaric acts done in its name is another reminder of how difficult it is to have a serious conversation about issues that have the potential to undermine our unwavering belief in American exceptionalism.

Obama stated a fairly obvious truth:  "Lest we get on our high horse and think this is unique to some other place, remember that during the Crusades and the Inquisition, people committed terrible deeds in the name of Christ. In our home country, slavery and Jim Crow all too often was justified in the name of Christ."

The overheated response from the right, from Christian groups, and even from some mainstream pundits for what Ta-Nehisi Coates described "as relatively mild, and correct, point" should not have come as a surprise.  We don't really like to think about those burning crosses do we?  We don't like to think about slavery or Jim Crow or the institutional racism that continues to have a profound impact on our society.

We don't like to think about the decimation of the native population that succumbed to our Manifest Destiny.  We don't like to think about the internment of Americans of Japanese heritage or the deployment of not one, but two atomic bombs.  We don't like to think about the many popularly-elected governments we have overthrown in the name of freedom.  We don't like to think about our use of torture (we don't even like to use the word, preferring 'enhanced interrogation').

There have been critical moments in our country's history where it was imperative to face up to some of our more malevolent deeds, confront hard truths, point out where we have strayed from what America is supposed to stand for and deal honestly with the fall out.  All too often, we have punted. 

When Richard Nixon resigned, his successor Gerald Ford declared that "our long national nightmare is over."  A month later, Ford pardoned Nixon, apparently deciding that the nightmare was not over.  Ford did not wish to "prolong the bad dreams that continue to reopen a chapter that is closed" and exercised his power "to firmly shut and seal this book."  And so, for the sake of less fitful sleep, we were denied a true reckoning of the many abuses of power committed by the Nixon Administration, all but guaranteeing that future high government officials would feel similarly unconstrained.  (See, e.g., Iran Contra Affair)

Say what you will about the inefficacy of Jimmy Carter's presidency but he did try to get us to be a bit more reflective.  His derisively (and inaccurately) dubbed "Malaise Speech" in July 1979, describing a "crisis of confidence" in America's future, was supposed to be a wake up call for the nation to pull together to ease the energy crisis.  Carter acknowledged the loss of faith in government stemming from "the murders of John Kennedy and Robert Kennedy and Martin Luther King, Jr.," "the agony of Vietnam," and the "shock of Watergate."  He conceded that "these wounds are still very deep" and "have never been healed." Carter's idea was to reinvigorate Americans through our joint efforts at energy conservation and innovation:  "the solution of our energy crisis can also help us to conquer the crisis of the spirit in our country. It can rekindle our sense of unity, our confidence in the future, and give our nation and all of us individually a new sense of purpose." 

Americans soon opted instead for Ronald Reagan's "Morning in America" and the promised end to our national nightmares.  Reagan disavowed Carter's pessimistic soul-searching for a rosy view of America as a "shining city on the hill."  The cure for Carter's "crisis of confidence" was  an invasion of the little island of Grenada to restore our military glory.  Reagan cloaked our unsavory policies in patriotic rhetoric.  The "contras" we armed and trained to overthrow the Nicaraguan government were "freedom fighters," "the moral equivalent of our founding fathers."  In Reagan's America there were no hungry children, ketchup was a vegetable and welfare queens drove Cadillacs. 

Jeane Kirkpatrick, U.S. Ambassador to the UN, gave the keynote address at the 1984 Republican National Convention, where she portrayed Democrats who criticized U.S. policy as disloyal, repeating the mantra, "they always blame America first." She closed by saying:  "The American people know that it's dangerous to blame ourselves for terrible problems that we did not cause . . . With the election of Ronald Reagan, the American people declared to the world that we have the necessary energy and to defend ourselves, and that we have as well a deep commitment to peace. And now, the American people, proud of our country, proud of our freedom, proud of ourselves, will reject the San Francisco Democrats and send Ronald Reagan back to the White House."

We did send Reagan back to the White House, and more than 30 years later, the same dynamic remains.  True patriots  are "proud of our country, proud of our freedom, proud of ourselves."  Then there is the pessimistic "Blame America First" crowd whose relentless questioning of the underpinnings of America's mythic greatness is a threat to that very greatness.

So when President Obama, referring to slavery, acknowledged that "the United States is still working through some of our own darker periods in our history" or suggested we may have "a moral responsibility to act" on arms control because only the U.S. had "used a nuclear weapon," he was hammered for apologizing for America.  When, after Trayvon Martin's murder, Obama explained that the "African American community is looking at this issue through  a set of experiences and a history that doesn't go away," he was accused of fomenting racial divisions.  And, most recently at the National Prayer Breakfast, when he tried to provide some badly needed perspective on religious extremism, his remarks were characterized, for example, by former Virginia governor Jim Gilmore as "the most offensive I’ve ever heard a president make in my lifetime" and by Catholic League President Bill Donohue as "insulting" and "pernicious."

The American psyche is not so fragile that it can't stand a bit of reflection and self-criticism.  We really aren't such a simpleminded people that we can't hold two conflicting concepts at the same time -- we can love our country and the many great things about it while recognizing its deep flaws.  It is therefore far past time to rid ourselves of Reagan's literal and figurative amnesia about America, to get off that high horse, and engage in meaningful conversations that raise troubling questions about our history and what it means for the future. 

Proud To Be Maladjusted

Originally posted on January 17, 2011

Mountain Top by Romare Bearden

Over the weekend, I grabbed from my bookshelf A Testament of Hope: The Essential Writings of Martin Luther King, Jr., and literally dusted it off.  I flipped through it looking for something profound with which to pay tribute to the day.  There was so much eloquence to choose from, so many familiar, but nevertheless timeless speeches and essays defending the morality of non-violence and demanding racial justice, social justice and human rights. As I leafed through the book, I kept returning -- as Dr. King did -- to the theme of embracing "maladjustment;" refusing to be comfortable in an unjust world and insisting on action to achieve a better one.

In the summer of 1957, King addressed students at UC Berkeley, where he spoke of being maladjusted:

Now we all should seek to live a well adjusted life in order to avoid neurotic and schizophrenic personalities.  But there are some things within our social order to which I am proud to be maladjusted and to which I call upon you to be maladjusted.  I never intend to adjust myself to segregation and discrimination.  I never intend to adjust myself to mob rule.  I never intend to adjust myself to the tragic effects of the methods of physical violence and to tragic militarism.  I call upon you to be maladjusted to such things. . . . God grant that we will be so maladjusted that we will be able to go out and change the world and our civilization.  And then we will be able to move from the bleak and desolate midnight of man's inhumanity to man to the bright and glittering daybreak of freedom and justice.

Dr. King reiterated this theme in 1958, in an article he wrote for a Christian publication.  The article criticizes churches for failing to be more vocal in denouncing racism.  He stated "it may well be that the greatest tragedy of this period of social transition is not the flaring noisiness of the so-called bad people, but the appalling silence of the so-called good people . . . .  What we need is a restless determination to make the ideal of brotherhood a reality in this nation and all over the world."  King then reprised the notion of being maladjusted, almost verbatim from the speech he gave in Berkeley.

And then, in 1961, Martin Luther King gave the commencement address at Lincoln University, in which he talked about "The American Dream," "a dream where men of all races, of all nationalities and of all creeds can live together as brothers."  (I'm sure he meant sisters too.)  King urged the students to "not be detached spectators, but involved participants, in this great drama that is taking place in our nation and around the world."  He concluded this remarkable speech with many of the same words on being maladjusted that he used earlier: 

Every academic discipline has its technical nomenclature, and modern psychology has a word that is used, probably more than any other.  It is the word maladjusted.  This word is the ringing cry of modern child psychology.  Certainly all of us want to live a well-adjusted life in order to avoid the neurotic personality.  But I say to you, there are certain things within our social order to which I am proud to be maladjusted.

If you will allow the preacher in me to come out now, let me say to you that I never did intend to adjust to the evils of segregation and discrimination.  I never did intend to adjust myself to religious bigotry.  I never did intend to adjust myself to economic conditions that will take necessities from the many to give luxuries to the few.  I never did intend to adjust myself to the madness of militarism, and the self-defeating effects of physical violence.  And I call upon all men of good will to be maladjusted because it may well be that the salvation of our world lies in the hands of the maladjusted.

So let us be maladjusted as the prophet Amos, who in the midst of the injustices of his day could cry out in words that echo across centuries, "Let justice run down like waters and righteousness like a might stream."  Let us be as maladjusted as Abraham Lincoln, who had the vision to see that this nation could not exist half slave and half free.  Let us be as maladjusted as Jesus of Nazareth, who could look into the eyes of the men and women of his generation and cry out, "Love your enemies.  Blequss them that curse you.  Pray for them that despitefully use you."

I believe that it is through such maladjustment that we will be able to emerge from the bleak and desolate midnight of man's inhumanity to man into the bright and glittering daybreak of freedom and justice.  That will be the day when all of God's children, black men and white men, Jews and Gentiles, Catholics and Protestants, will be able to join hands and sing in the words of the old Negro spiritual, "Free at last!  Free at last!  Thank God almighty, we are free at last."

It Is A Privilege To Ignore The Race Thing; A Duty To Engage With It

There is a brilliant scene towards the end of an old Curb Your Enthusiasm episode where Larry David (having earlier in the show mistaken a well-dressed black man for a valet) parks his car, walks away and after a black man happens to pass him, turns back towards his car and clicks on his car alarm, causing a beep.  The black man turns around and asks, "think I'm gonna steal your car?"  Larry protests:  "No, no, I just forgot to, to put the alarm on. It's not you.  It's no race thing! No, no race thing."

Of course, the bit would have made no sense if it had been a white man passing by.  A white man would be unlikely to even notice the alarm going on and even if he did, would never assume that the actions of locking a car could be a knee-jerk response to seeing him. 

And there's your white privilege.

As Sally Kohn wrote in a piece for the Washington Post:

Privilege is like oxygen: You don’t realize it’s there until it’s gone. As white folks, we can’t know what it’s like to go through life without racial privilege because we literally haven’t. You may have heard stories about black friends being monitored in department stores or seen the research that black names on resumes get half as many job interviews as white names on the same resumes. Maybe you know that a black man or boy is killed every 28 hours in America by police or vigilantes. Maybe you’ve read the studies on implicit “shooter bias” — how we’re all more likely to pull a simulated trigger on unarmed black men than unarmed white men — and maybe you know that even the most egalitarian Americans harbor unconscious negative attitudes about black people. The studies and the stories are overwhelming. Just this week, police shot and killed a black 12-year-old for holding a BB gun.

To believe that this country has moved beyond race is to be wedded to denial and a romanticized view of America that never existed -- that while we might have sanctioned slavery long ago, it had little to do with our growing power and economic wealth; that Abraham Lincoln freed the slaves and thereby removed our Nation's moral taint; that any residual racism was quashed during the Civil Rights Era; and that the election of Barack Obama provided the ultimate proof that we are a post-racial society.

To find resonance in the views of a vicious hack like Rudy Giuliani, who responded to the outrage over police killings of unarmed black men by decrying the lack of an equivalent reaction to black-on-black violence, is, as Jamelle Bouie wrote, a failure to see this "an attempt to avoid the fundamental difference between being killed by a citizen and being killed by an agent of law."  Of course, as Michael Eric Dyson put it, "black people are[] weary of death ravaging [their] communities." The difference is that black murderers "often go to jail, unlike the white cops who kill blacks with the backing of the government."

To discount the thousands of nonviolent protesters while focusing on the small minority of more destructive ones that get all the media attention is to ignore the justifiable anger and despair engendered by putting hope, energy and time into government institutions ostensibly established to ensure justice for all that invariably prove to be arbitrary, biased and unfair.  As Michelle Alexander wrote, explaining the "pain, sadness and rage" underlying the setting of fires and breaking of windows is not condoning it.  At the same time, it is important to understand that "when people have been hurt over and over, and rather than compassion or understanding you’re given lectures about how it’s really all your fault, and that no one needs to make amends, you can lose your mind." 

An unassailable rebuttal that we are now a colorblind society comes from Ta-Nehisi Coates, who detailed in The Atlantic Magazine the relentlessly destructive impact of institutional racism that persists to this day:  "Two hundred fifty years of slavery. Ninety years of Jim Crow. Sixty years of separate but equal. Thirty-five years of racist housing policy. Until we reckon with our compounding moral debts, America will never be whole."  As Coates summarized in an interview with NPR, "the legacy of slavery extends in the policy of the American government, in the policy of the states in the deep South, in the policies even of cities and states in the north long past slavery, for 100 years after. And the effects are there. And the people who suffered those effects are the people who were redlined, the people who suffered job discrimination, the people who suffered from educational discrimination are very much alive and still with us."

Another one comes from Michelle Alexander, who wrote so powerfully in The New Jim Crow about the mass incarceration of black men in the so-called war on drugs:  "Today there are more African-Americans under correctional control — in prison or jail, on probation or parole — than were enslaved in 1850, a decade before the Civil War began. There are millions of African-Americans now cycling in and out of prisons and jails or under correctional control. In major American cities today, more than half of working-age African-American men are either under correctional control or branded felons and are thus subject to legalized discrimination for the rest of their lives."

We don't need to feel guilty for being white or from benefitting from a culture that makes it a whole lot easier to be safe and successful if you're white.  But, as Sally Kohn pointed out, "responsibility isn’t the same as culpability." 

Being a constructive part of America’s necessary discussion on race and racial bias means acknowledging how bias and privilege may shape your own life even if you don’t want it to. It is not your personal fault that Michael Brown was shot and killed or that we have deep and structural racial bias in America. But that bias is nonetheless a reality, and so you do have a responsibility as to whether you are part of the problem or part of the solution. Just like you’re mistaken if you don’t think white is a race, you’re mistaken if you think you can remain neutral.

Thus, we ignore race at our own peril.  Michael Eric Dyson is absolutely right:

More than 45 years ago, the Kerner Commission concluded that we still lived in two societies, one white, one black, separate and still unequal. President Lyndon B. Johnson convened that commission while the flames that engulfed my native Detroit in the riot of 1967 still burned. If our president and our nation now don’t show the will and courage to speak the truth and remake the destinies of millions of beleaguered citizens, then we are doomed to watch the same sparks reignite, whenever and wherever injustice meets desperation. 

The Ginned Up Race War Of 2012

By Sally Kohn, cross-posted from Colorlines

“The secret of Republican political success since the rise of the right is not, as many liberals believe, that they play no-rules hardball. Instead, it’s their skill at projection—at accusing Democrats of doing what they are doing themselves, or are planning to do, or have done.”
—Michael Tomasky, Daily Beast

Nothing stirs up white racial anxiety in an election year like a black-against-white race war. Never mind the fact that there isn’t one. When has that ever stopped the inventive right wing?

Those of us living in the world of objective facts and reality might be mistaken for thinking that the United States remains an at best well-intentioned, but nonetheless deeply hostile nation toward its communities of color. In New York City, reports have shown that in 2011, police conducted 685,724 street stop and frisks (up from 97,000 in 2002). Young black and Latino men between the ages of 14 and 24 accounted for 41.6 percent of those stopped—although they are only 4.7 percent of the city’s population. In Missouri, a black man named George Allen has been in prison for almost 30 years for allegedly murdering a white woman, a crime that mounting evidence suggests Allen did not commit. Last month, a black woman named Marissa Alexander was sentenced to 20 years in prison for firing a single warning shot into the kitchen ceiling of her home to warn off her abusive husband and protect her three children.

But according to conservative media, exactly the opposite is occurring. Conservatives allege there is a growing but underreported black-versus-white race war in America.

There’s no data, of course, just some strung together anecdotes—namely, one about two white newspaper reporters who, while driving through Norfolk, Va., were attacked by a group of young black kids. The media didn’t pounce on the story—even the reporters’ own newspaper, the Virginian-Pilot, only mentioned the incident in an opinion piece two weeks later. Conservatives, who actually love to talk about race and racism when they can do so with their fingers pointing at people of color and liberals, pounced on the story as evidence of media bias. The lamestream media was all over the Travyon Martin story but ignored the beating of whites by black kids. That, conservatives screamed, is racial bias.

Mind you, the two reporters in the Virginia incident weren’t hospitalized for their injuries, let alone killed. Local police moved quickly to investigate and three days after the incident was first reported by the paper, police arrested one teen, charging him with throwing a rock at the reporters’ car (a felony) as well as related misdemeanors. By comparison, George Zimmerman wasn’t arrested until almost two months after he shot Trayvon Martin, and only then as a result of community pressure. Only those desperate to distract from productive conversations about racial bias and injustice and return American attention to reinforcing racial stereotypes and hierarchies could manage to find anything comparable between the Trayvon Martin case and the Virginia incident.

Even most white conservatives know better than to use the term “race war” to describe this concocted, black-against-white threat. Fortunately, conservatives have Thomas Sowell. In a widely circulated, syndicated column for the National Review entitled “The Censored Race War,” the black conservative wrote:

What the authorities and the media seem determined to suppress is that the hoodlum elements in many ghettoes launch coordinated attacks on whites in public places. If there is anything worse than a one-sided race war, it is a two-sided race war, especially when one of the races outnumbers the other several times over.

Sowell is either intentionally feeding the idea that blacks like himself are more dangerous and violent than whites or unwittingly providing cover for those who seek to do so.

The root of inequality is the simple but sinister idea that some people are inherently inferior to others. I’ll give Sowell and other conservative media figureheads the benefit of the doubt that they do not personally believe young black men are inherently more dangerous and violent, but that’s all the more reason not to play into such biases and fan the flames of white racial anxiety. Sowell and others should understand that, in America today, this is how racism operates—not primarily through explicit epithets and force but through subtle winks and nods to the prejudices on which our society remains built.

The Virginia case specifically and the manufactured race war in general conveniently feed a larger conservative narrative this election year—reminding white America of how dangerous and scary black men are and how white people, especially white men, are the victims. Despite the fact that, yes, a lot of white folks voted for President Obama in 2008, most didn’t and according to a post-election study by a researcher at Harvard, racial animus cost Obama anywhere from three to five percentage points in the 2008 popular vote. In what is shaping up to a be a tight re-election battle, a few percentage points can really matter.

In addition, the 2012 election will likely be less about independent voters (who polls indicate may split fairly evenly between Romney and Obama) than about voter turnout in each party’s base. Republicans know they have an enthusiasm gap—even now that the primaries are over, Republicans say the main reason they support Romney simply because he’s “not Obama.” Yet in 2008 exit polling, 24 percent of American voters said they were “scared” by the prospect of Barack Obama being elected president. Of those, 95 percent voted Republican. Gin up fear, win the election.

I’m not saying racial animus is the only way to stoke white conservative fear in an election. But it’s sure a popular choice, one we have already seen that Republican Super PACs are pursuing. And we can see this at play in other campaigns too, including the fact that Scott Brown has tried far harder to portray Elizabeth Warren as a person of color than she ever did herself, desperately hoping to increase his own margin of the racial animus vote.

Things really are bad for most white men in America today, just like they are for the rest of us. Jobs are disappearing and so are the public benefits that have traditionally supported them in times of need. And if the present seems bad, the future seems even worse, as public schools implode and college tuition gets further out of reach. Anger is a powerful motivator.

Republicans can’t risk white voters realizing that conservative policies have caused their suffering. And though President Obama’s own record isn’t strong, for the majority of voters middle class tax cuts, affordable health care and fairly centrist policies from education reform to the military aren’t exactly the stuff of fire and brimstone. But the president is black. I’m not arguing that conservatives are attacking the president only because of his race, but they are certainly guilty of tapping into and fanning racial resentment to ignite their critiques. In that sense, sadly, by inventing a fake black-versus-white race war, conservatives are reinforcing and exploiting the divisive white-versus-black racial dynamics in America that they should be instead helping to fix.

 Sally Kohn is a progressive activist, writer, Fox News contributor, and a regular contributor to Colorlines.com.

Racial Justice In North Carolina

Judge Finds Racial Bias In Death Penalty Sentencing

By Keith Kamisugi, cross-posted from Equal Justice Society

Just days before the 25th anniversary of McCleskey v. Kemp, a North Carolina judge today ruled that racial bias impacted the death penalty conviction of Marcus Robinson and re-sentenced him to to life imprisonment without possibility of parole.

This was the first case applying the historic and ground-breaking Racial Justice Act, enacted by the North Carolina General Assembly and Governor Bev Perdue to reject the influence of race discrimination in the administration of the death penalty. The RJA represents a landmark reform in North Carolina, a state which has long been a leader in forward-thinking criminal justice policies.

As reported by The New York Times, Judge Gregory A. Weeks of Cumberland County Superior Court said that “race was a materially, practically and statistically significant factor in the decision to exercise peremptory challenges during jury selection by prosecutors” at the time of the trial of the inmate, Marcus Reymond Robinson. The disparity was strong enough, the judge said, “as to support an inference of intentional discrimination.”

Judge Weeks found that prosecutors deliberately excluded qualified black jurors from jury service in Robinson’s case, in Cumberland County, and throughout the state.

Rob Thompson, one of the prosecutors in Cumberland County, said in his closing arguments: “They do not have evidence of purposeful discrimination. They do not have some secret society of prosecutors maniacally plotting to remove people from juries. They do not have any of that because there is no such evidence. It doesn’t exist. They have numbers.”

This prosecutor’s argument demonstrates the importance of EJS’s goal to replace the intent standard of the Fourteenth Amendment with a disparate impact standard. Instead of having to prove intent, criminal defendants could use statistical evidence of racial bias – the “numbers” referred to by the Thompson.

From the ACLU Blog of Rights: “The Robinson decision is really the first significant win since the Supreme Court dealt a blow to fairness in the death penalty 25 years ago this Sunday, ruling in McCleskey v. Kemp that statistical evidence of systemic racial disparities could not be used to overturn death sentences because such disparities were ‘inevitable.’ Today’s decision, and the RJA itself, stand as a powerful rebuke to the Supreme Court’s defeatist view of discrimination.”

To observe this tragic anniversary of McCleskey on Sunday, April 22, the NAACP Legal Defense and Educational Fund, Inc. (LDF) and the Equal Justice Society (EJS) joined with organizations across the country – including the ACLU Capital Punishment Project, the Capital Litigation Communications Project, the Center for Death Penalty Litigation Inc., the Death Penalty Information Center, Equal Justice USA, the Innocence Project, the National Coalition to Abolish the Death Penalty and the Proteus Fund – to raise awareness of how this landmark decision fundamentally threatens equality and opportunity in this country.

Together, we launched mccleskeyvkemp.com, a website that provides information about the ongoing crisis of race in criminal justice and offers information about specific activities that individuals and organizations can take to repeal the death penalty and ameliorate the racial disparities in the criminal justice system.

The site includes publications and reports, media articles, links to take action, as well as information about the LDF/Columbia Law School Symposium, “Pursuing Racial Fairness in Criminal Justice: Twenty Years After McCleskey v. Kemp,” which was held in March of 2007 to mark the 20th anniversary of the McCleskey decision.

Join us in the effort to raise awareness of this landmark decision that every day threatens the ideals of equality and opportunity in this country. Visit mccleskeyvkemp.com to learn more.

Photo Of The Day

President Obama seated in the bus in which Rosa Parks refused to give up her seat.

25 Years After McCleskey, Racial Bias Remains "An Inevitable Part Of Our Criminal Justice System"

Twenty-five years ago, the United States Supreme Court issued McCleskey v. Kemp, one of its more shameful decisions.  Despite overwhelming statistical evidence of systemic racial bias in Georgia's imposition of capital punishment, the Court upheld Warren McCleskey's death sentence.  It held that statistics proving a discriminatory effect were insufficient and that a showing of deliberate, purposeful discrimination -- a nearly impossible burden -- was required to establish a constitutional violation on equal protection grounds.  The majority 5-4 opinion, authored by Justice Powell, acknowledged that racial bias was "an inevitable part of our criminal justice system," but cynically concluded that if sentences stemming from such bias were tossed out it would call the entire system into question. 

I am not a fan of analogies to Nazi Germany, which in many ways was an incomparable horror.  But in the piece written below by my dear friend, the remarkable Denny LeBoeuf, the thought experiment she proposes is quite apt.  -- Lovechilde

If Germany Had The Death Penalty:  A Thought Experiment

By Denny LeBoeuf, cross-posted from the ACLU Blog of Rights

Imagine it's 1976. A high crime rate afflicts German cities, and the government reinstates the death penalty. "We'll have the strongest possible protections for people accused of capital crimes, providing them with free lawyers, right to experts, investigators, appeals to higher courts, and trial by a jury of their peers. This is not the Germany of the Nazi Party. We will never repeat those terrible errors."

Now imagine that 30 years later, statistical evidence shows that Jewish citizens disproportionately get the death penalty; crimes by Jews against Christians are more likely to be selected for a capital prosecution; Jews are routinely excluded from jury service. Further imagine that prosecutors defend all this by saying that Jews shouldn't sit on capital juries because they are mistrustful of German authorities, and that the German high court has ruled that statistical evidence of discrimination against Jews is inadmissible in a death penalty case.

You see where we're headed. My guess is that most people can't get past the second sentence of this thought experiment, let alone past the discrimination against Jews.

Bryan Stevenson, whose idea this is, asks this of America: "Do we deserve to have a death penalty?" If Germany does not — and they emphatically believe they do not — then why do we? Think the parallels are forced? Not accurate? Really?

Consider this: before the Civil War, crimes against Black people in the South were considered only as property crimes against their owners. The Supreme Court issued its Dred Scott decision in 1857, finding that Blacks have "no rights which the white man is bound to respect." Within a few years after the Civil War, the criminal justice system became an engine to produce bodies — Black bodies — to work in the same agricultural fields they had tended as slaves, and in the burgeoning industries of the post-Reconstruction South.

The 65th Anniversary Of Jackie Robinson's Debut

By John Schachter, cross-posted from American Constitution Society

To many wise people, baseball possesses an importance beyond the comprehension of non-fans. Emotions and moods ebb and flow with the fate of our favorite teams. Baseball lingo fills our conversations, as we talk about a ballpark figure, a whole new ballgame, playing hardball, covering all the bases, stepping up to the plate and hitting it out of the ballpark. Or someone batting a thousand or being off base, something being bush-league or inside baseball. And, of course, people invoking the infield fly rule because of a routine and playable, if fair, pop-up in the infield with less than two outs and the bases loaded or runners on second and third. (OK, maybe that’s not as common.)

But baseball as hobby, diversion and pastime is merely one aspect of the game. The sport is sometimes so much more, a reflection of our times and our society, for better and for worse. This Sunday, April 15, will be a reminder of one of those “for better” examples. That day will mark the 65th anniversary of Jackie Robinson breaking the so-called color barrier and making his major league baseball debut. Teams and fans across America will celebrate Jackie Robinson Day to pay tribute to the son of Georgia sharecroppers who grew up to become an incomparable leader and symbol of civil rights challenges and advancement.

Humorist Dave Berry once pinpointed what he saw as a critical difference between the sexes. “If a woman has to choose between catching a fly ball and saving an infant's life,” Barry remarked, “she will choose to save the infant's life – without even considering if there are men on base.” While men and women may quibble over various aspect of the sport, there is virtual unanimity when it comes to recognizing the magnitude of Jackie Robinson’s role.

The Major League Baseball tribute to Robinson on his day includes all players wearing his uniform number 42, which has otherwise been retired by all teams. The league website devotes a page to Robinson’s story and his “immeasurable impact” on the game and beyond. The page salutes Robinson’s courage, commitment, determination, teamwork, persistence, integrity, citizenship, excellence, and quest for justice. Countless other adjectives could further describe Robinson.

Robinson’s career numbers are impressive enough. A .311 batting average, an on-base average of .409, nearly 200 stolen bases, a Rookie of the year Award in 1947 and a Most Valuable Player Award two years later when he hit a career-high .342 to go with 203 hits, including 38 doubles, 12 triples, 16 home runs, plus 124 runs batted in. But, of course, Jackie Robinson is so much more than his stellar statistics.

“If Jim Crow seems distant today, it is because of men like Robinson,” wrote Chris Lamb, a professor of communication at the College of Charleston. “We need to remember him for what he accomplished inside the white lines of baseball, but we also need to remember him for what he accomplished outside. His life teaches us that progress often depends on individuals willing to sacrifice themselves for something bigger.”

Few people can imagine the contemptible abuse Robinson faced when he joined the Dodgers, from fans, opponents, and even some teammates. Aside from the on-the-field challenges of beanballs and high-flying spikes aimed his way, Robinson had to deal with a steady flow of death threats in nearly every city to which the team traveled. But Robinson rose above the hatred and proved his critics and detractors wrong. His success made him an All-Star player and civil rights leader.

“There's not an American in this country free until every one of us is free,” Robinson said. He knew his success was but a small step toward a much grander goal. “The right of every American to first-class citizenship is the most important issue of our time.” Some 65 years after Robinson set foot upon his first major league field, the fight for freedom for all people continues. But thanks to his efforts along the way, we all have that much less to travel to see our ultimate goals achieved.

Robinson died far too early, at the age of 53 in 1972. He’s buried in Brooklyn next to his son and mother-in-law. His gravestone reads, “A life is not important except in the impact it has on other lives.”

John Schachter is the Vice President of Public Education and Outreach for American Constitution Society 

Demand "Justice" But Beware The Rush To Judgment In The Trayvon Martin Case

There are many disturbing questions surrounding the shooting of Trayvon Martin, many of them outlined here.  A rigorous independent investigation geared towards answering these questions and determining the extent to which George Zimmerman committed criminal acts is essential.  But as rallies today by civil rights groups and others "demand justice" and call for Zimmerman's "immediate arrest," I want to urge caution.

The disparity in treatment between young African Americans suspected of criminal conduct and George Zimmerman, who we know shot and killed Trayvon Martin, is stark and I share the frustration and the outrage of the protesters.  But, I remain very uncomfortable with the demands and petition drives calling for Zimmerman's arrest and prosecution (not to mention the vigilante response) based only on the selected facts to which we, the public, have become privy. 

There are very good reasons to doubt the good faith of local law enforcement and the prosecuting agencies in this case, and we should certainly be demanding justice.  But we can't know yet what a just response is.  We should await the findings of the special prosecutor -- which may very well spur more legitimate questions and demands -- rather than rush to judgment now based on the limited information filtered down to us from the media.

Far more often than not, in the wake of a tragic death it is the suspicious-looking African American in the hoodie for whom there is this kind of clamor for "swift justice."  

[Stop Racism, Not Hoodies;  The Right Continues To Play To Stereotype]

Do We Deserve To Kill?

Bryan Stevenson

I consider myself very fortunate to have met Bryan Stevenson up close and personal.  I have heard him speak countless times, and he never fails to inspire and educate.  No one speaks with more power, eloquence and compassion on the death penalty, on criminal justice, on race, and on how these issues intersect.

The Founder and Executive Director of the Equal Justice Institute in Alabama, Bryan is a brilliant lawyer who recently argued in the United States Supreme Court on behalf of two defendants who were sentenced to life without parole for murders committed when they were fourteen.  He was a guest on Rachel Maddow's show last night, where he discussed the cases, which he described as "death in prison" for juveniles, and how the death penalty frequently "obscures such other issues of severe and excessive punishment."

Bryan explained how our political discourse around crime and punishment "has been corrupted by decades of politics of fear and anger" so that people believe that the fact that a terrible crime has been committed is the "end of the conversation."  But, he maintained, while the criminal justice system is designed to punish and protect public safety, "it also has to be just, to have integrity and to have credibility."

Finally, he talked about the death penalty:

Increasingly we have to confront the fact that the death penalty in this country isn't a question that has to be answered by simply asking, "do people deserve to die for the crimes they committed?"  I think we have to ask, "do we deserve to kill?"  And if our system is flawed, if our system is discriminatory, if our system is unequal as to class and economic status, if our system permits innocent people to be wrongfully convicted and condemned, then I think we will get to a different answer then we might otherwise get. 

Bryan Stevenson is a national treasure.  Here's the entire segment:.

Visit msnbc.com for breaking news, world news, and news about the economy

The Right Continues To Play To Stereotype

The Republicans are on a roll.

They continue to vilify Georgetown law student Sandra Fluke, displaying not just their mean-spiritedness, but their remarkable misunderstanding of how birth control works and how health care operates.

They continue to blame and smear Trayvon Martin, showing their cold-heartedness while avoiding serious debate about gun control, misguided stand-your-ground laws and racism.

They tout the new budget unveiled by Congressman Paul Ryan which will not only increase the deficit, cut taxes for the wealthy, gut the social safety net, and end Medicare as we know it but, as E.J. Dionne notes, would "produce the largest redistribution of income from the bottom to the top in modern U.S. history and likely increase poverty and inequality more than any other budget in recent time."

I hate to perpetuate a stereotype but this sure seems ignorant, misogynistic, racist and greedy to me.

Stop Racism, Not Hoodies -- A Message To Geraldo Rivera

By Bilen Mesfin, originally published at Dominion of New York

The Real Trouble with Black Boys

Amid the furor surrounding the tragic death of 17-year-old Trayvon Martin at the hands of self-styled neighborhood watchman George Zimmerman, we find this slice of dubious wisdom from Geraldo Rivera: “I think the hoodie is as much responsible for Trayvon Martin’s death as George Zimmerman was.”

 
“When you see a black or Latino youngster, particularly on the street, you walk to the other side of the street,” Mr. Rivera goes on to say, “You try to avoid that confrontation. … I’ll bet you money, if he didn’t have that hoodie on, that — that nutty neighborhood watch guy wouldn’t have responded in that violent and aggressive way.”

Mr. Rivera, before you decide to launch a misguided #stophoodie2012 campaign a la Kony, let me posit a different theory. Could it be that the problem wasn’t Trayvon or his hoodie? Could it be that part of the problem is you? Because by making such ridiculous, tone-deaf statements, you’re simply exacerbating the bias that’s at the heart of this issue. You see, what you say and do matters, Mr. Rivera — not because you are Geraldo Rivera, the individual, but because you are Geraldo Rivera, a member of the media establishment, and media is one of the most powerful ways that such stereotypes and biases get spread and reinforced in the first place.

Consider a recently released research report titled “Opportunity for Black Men and Boys:  Public Opinion, Media Depictions and Media Consumption.” The report highlights some troubling points, which those of us who are concerned about equality, fairness and justice in this country intrinsically know: “Among the many factors that influence the opportunities and achievements of black men and boys are public perceptions and attitudes toward them as a group, and their own self-perception. Research and experience show that expectations and biases on the part of potential employers, teachers, health care providers, police officers, and other stakeholders influence the life outcomes of millions of black males, just as their own self-esteem, identity, and sense of empowerment affect their ability to achieve under difficult circumstances. In turn, one of the most important avenues for maintaining (or changing) these perceptions is the mass media, with its significant power to shape popular ideas and attitudes.”

When it come to mass media, the report details, black men and boys are:

- Vastly underrepresented: They are all too rarely visible across multiple mediums, whether as characters in TV shows, in advertisements,  or – as my partner often points out – in video games. They are also underrepresented as “talking heads” or experts on the news.

 - Negatively depicted: When they do appear in media, they are depicted in a negative light.  Rather than as “relatable characters with well-developed personal lives (i.e. fathers)…black males are overrepresented when the media touch on certain negative topics, such as criminality, unemployment, and poverty,” the report says.

- Narrowly portrayed: Any “positive images and attributes with which black males are associated tend to be constrained to a small, stereotypic set which includes sports, physical achievement in general, aggressiveness, and musicality, to the exclusion of other everyday virtues.

Simply put: the media to a large extent ignores the fullness, richness and complexity of black men and boys’ lives.

The result? According to the report: “Distorted media representations can be expected to create attitudinal effects ranging from general antagonism toward black men and boys, to higher tolerance for race-based socio-economic disparities, reduced attention to structural and other big-picture factors, and public support for punitive approaches to problems.”

In turn — and pay extra close attention to this part Mr. RIvera — these perceptions could mean trouble “any time a black man or boy is in a position where his fate depends on how he is perceived by others.” The impact can range from less attention from doctors, and harsher sentencing by judges to lower likelihood of being hired or admitted to school.  The impact can also include a beautiful young boy being shot for no discernible reason and the institutions sworn to protect and serve him failing to even detain his killer a month after his death.

In a sense you are right, Mr. Rivera. Bias against black men and boys does lead to negative and sad outcomes. It can make us, as you say, walk to the other side of the street when we see them coming our way. It can make us see a weapon when there is only candy. It can make police officers see dangerous thugs rather than fathers, brothers or sons. It can make  teachers and school administrators see future criminals that deserve harsh  punishment rather than scared or troubled little boys needing help and comfort.

But, if you really care for our youth, Mr. Rivera, why don’t you use your considerable platform to change the way black men and boys are depicted and represented in your  chosen career field — news, specifically, or mass media, broadly? Instead of asking parents not to let their kids wear hoodies, why don’t you push  for diversity in TV, print or online news, at all levels, as subjects, reporters and executives? Or advocate for more training so reporters don’t reinforce problematic frames when they cover communities of color? Or call for multi-dimensional representations of black men and boys in books, on reality TV, on talk shows, in sitcoms and in movies? Maybe then you can help us begin to change how we as a society perceive black and brown men and boys. Maybe then, Mr. Rivera, you can actually help save people’s lives, rather than simply perpetuating stereotypes.

Bilen Mesfin is a former journalist and a strategic communications consultant for social change leaders and organizations.

Civil Rights Groups Urge The Sixth Circuit To Strike Down Michigan's Anti-Equality Law

 Equal Justice Society, headed by my dear friend and mentor, Eva Paterson, is a national strategy group heightening consciousness on race in the law and popular discourse.  EJS seeks to restore race equity issues to the national consciousness, build effective progressive alliances, and advance the discourse on the positive role of government.  Not surprisingly, they are at the forefront of a key battle in Michigan.  -- Lovechilde

By Keith Kamisugi, cross-posted from Equal Justice Society

The Equal Justice Society and more than a dozen other civil rights organizations this week filed an amicus brief (PDF) in the U.S. Court of Appeals for the Sixth Circuit, urging the court to strike down Michigan’s anti-equality Proposal 2 as unconstitutional.

In its brief, EJS argues that Proposal 2 violates the Equal Protection Clause of the 14th Amendment of the Constitution by creating procedural barriers for people of color.

“Since its founding, certain interests in America have tried to restrict access to the political process,” said Eva Paterson, President of the Equal Justice Society. “First only white male landowners could vote. The franchise was expanded after the Civil War but women could not participate. Now we see many states erecting barriers to voting that may appear harmless, but are designed to keep voters of color from helping shape their political destinies. The national civil rights community speaks in one strong voice in opposing these measures, including Michigan’s Proposal 2.”

Several organizations joined EJS in signing the brief: the California Voting Rights Institute, Public Advocates, LatinoJustice PRLDEF, the Asian American Legal Defense and Education Fund, the National Women’s Law Center, Chinese for Affirmative Action, Worksafe, South Asian Network, the Association of Asian American Attorney and CPA Firms, the Council of Asian American Business Associations, Equal Rights Advocates, and the Asian American Justice Center and the Asian Pacific American Legal Center, the latter two both members of the Asian American Center for Advancing Justice.

Michigan voters passed Proposal 2 in 2006, amending the state’s constitution to prevent the state government from advancing equal opportunity by considering race, sex, color, ethnicity, or national origin. In March 2008, a federal district court judge upheld the law, but the decision was reversed this July by an appeals court panel. The case is now under consideration by the full Sixth Circuit Court of Appeals.

“We stand with our civil rights allies in opposing Proposal 2 and other similar laws that exclude racial minorities and women from the political process,” said Allison Elgart, Supervising Attorney at the Equal Justice Society. “When people of color have to amend the state constitution just to have their interests represented, the law is not protecting their right to equal protection under the law, and the court should step in.”

“Proposal 2 is the most recent example of a voter initiative that restructures the political process in a non-neutral way and places special burdens on racial minorities who want to lobby for race-conscious admissions processes,” reads the brief. “Voting changes and requirements that disproportionately impact racial minorities and provide them less opportunity than others to participate in the political process and effectuate their choices are violations of the Equal Protection Clause.”

The Death Penalty And North Carolina's Racial Justice Act

By Abby Bar-Lev, cross-posted from Equal Justice Society

On August 11, 2009, North Carolina Governor Purdue took an affirmative step in providing racial justice advocates a tool to ferret out racial bias in the criminal justice by signing the North Carolina Racial Justice Act.

The Racial Justice Act, the product of a concerted effort by legislators and racial justice advocates, provides defendants in capital cases the opportunity to argue that their death sentence or charge was based on race in court.  In doing so, North Carolina confronts the real and deplorable fact of racial injustice in death penalty process. The RJA leads the way in rooting out race as a basis for the death penalty though it does not necessarily ensure racial justice.  Efforts and legislative actions such as these are deeply needed.

Study after study exposes that racial disparities remain rampant in capital cases, from jury selection through the sentencing phase.  Specifically in North Carolina, a report authored by faculty of the Michigan State University College of Law reveals that those charged with murdering white victims are 2.6% more likely to end up on death row than those charged with murdering a person of color.

North Carolina’s Racial Justice Act allows defendants to present statistical evidence to challenge the prosecutor’s decision to seek the death penalty or the actual capital punishment sentence.  If the state cannot specifically refute the evidence, the judge must order that the prosecutor not seek the death penalty, or, if the defendant has already been sentenced to death, that sentence must be substituted with life imprisonment without the possibility of parole.

Republicans in North Carolina have been calling for the RJA’s repeal and have challenged it in court. They claim the law is too vague to fit with the North Carolina Constitution, but the RJA survived its first court challenge when a judge rejected that argument.  Republicans have attempted to repeal the RJA in the legislature, but Democrats have managed to table that discussion until May of 2012.

Meanwhile, nearly all of North Carolina’s 158 death row convicts are challenging their death penalties through the RJA.

Building A Real Progressive Movement For Change

After a completely disheartening few weeks culminating in the complete and utter abdication of liberal principles by the President and the Democratic Party, leave it to my old friend and mentor Eva Paterson  (who is not old at all) to get us re-focused on what we need to do to fight back. 

By Eva Paterson, cross-posted from Huffington Post

Equal Justice Society

A progressive movement across this country is more aspiration than reality when its members work toward many of the same goals, but apart from one another. If we are not arm-in-arm while marching toward our dreams, we may be moving, but we are not a movement. We all suffer when we turn our backs and say, "That's not my issue."

Today, too many progressive groups still remain disconnected from one another. In my view, coalitions are not optional. They are essential. Without joining hands with each other, we cannot achieve ambitious goals such as reclaiming the full protections of the 14th Amendment against institutional discrimination. We cannot ensure that there will be more Black males in colleges than in prisons. We cannot give our LGBT brothers and sisters the same rights and freedoms to marry afforded to the rest of us. We cannot secure full civic and economic integration for immigrants.

At Equal Justice Society, the practice of coalition building was embedded into our organizational DNA from day one, and remains one of our core principles. We learned this crucial lesson from Dr. Martin Luther King, Jr., who, through the urgings of his aide, Bayard Rustin, sought to create the "Grand Coalition," an alliance of groups and individuals who hungered for justice and equality. This meant bringing together women, people of color, union members, peace activists, and environmentalists -- all those who saw the possibility of a better world with equal opportunity for all people. Here are five important lessons we have learned in our efforts to develop coalitions:

Connecting The Dots

The current Supreme Court, Andrew Cohen writes in the Atlantic, is "as conservative as it has been in three quarters of a century."  Indeed, I've previously cited empirical studies establishing the unprecedented nature of the Court's pro-business bias.   E.J. Dionne is therefore spot on when he says that "not since the Gilded Age has a Supreme Court been so determined to strengthen the hand of corporations and the wealthy." 

The Equal Justice Society is fighting back against efforts to weaken the 14th Amendment as a tool to fight discrimination that have persisted since its enactment and continue today.  (See Don't Take The 14th Amendment For Granted.)  Below Keith Kamisugi explains how difficult this is when faced with a Supreme Court that refuses to mete out "Equal Justice Under The Law."

Connecting The Dots:  A Supreme Court Broken

by Keith Kamisugi , originally posted on Equal Justice Society's website, June 22, 2011.

The end of the Supreme Court’s 2010-2011 term was marked in part by a series of recent developments and revelations highlighting the dire state of the Supreme Court, an institution that should be a fair and impartial forum for justice.

The Court has instead become increasingly damaged, especially with landmark decisions such as in Dukes v. Wal-Mart, which told women that Wal-Mart is above the law. We only have to look back to Bush v. Gore, Citizens United, and numerous other cases to see that our highest court in the land does not mete out “Equal Justice Under Law.”

If the Equal Justice Society and its allies are to accomplish our mission of reclaiming the 14th Amendment and its protections against discrimination, we must be able to argue our cases before impartial justices who do not reflexively rule against the interests of average Americans.

Let’s connect the dots:

Lessons Learned From Brown v. Board of Education

The Equal Justice Society is fighting back against efforts to weaken the 14th Amendment as a tool to fight discrimination that have persisted since its enactment and continue today.  (See Don't Take The 14th Amendment For Granted.)  On the anniversary of the Supreme Court's landmark decision in Brown v. Board of Education, EJS explains how to do it.  (Originally posted at  Equal Justice Society.)



Three Lessons We've Learned From Brown v. Board of Education

At the Equal Justice Society, we are working to reclaim the full protections of the 14th Amendment and help those who experience discrimination get their day in court. We know we have a tough and long road ahead in tackling our biggest challenge, namely overturning the "intent doctrine" as established in Washington v. Davis.  

Yet,as we prepare for the next step in this critical work, we are glad to have the shining example that is Brown v. Board of Education - one of the most important decisions ever handed down by the United States Supreme Court - illuminating the way forward.

The Brown case, which ended the tyranny of "separate but equal" policies in America, was the result of a decades-long,multi-pronged, and disciplined strategy. Known as the "Houston Plan," the strategy first took shape at Howard University of Law School in the early 1930s, and combined impact litigation,innovative use of social science, and collaboration with civil rights organizations across the political spectrum. 

Charles Hamilton Houston, Thurgood Marshall, Robert Carter, Constance Baker Motley, Jack Greenberg, and others litigated all around the country in their efforts to take down Plessy v. Ferguson,the case that enshrined "separate but equal" in the law. These brilliant strategists wove social science into the law to illustrate the corrosive effect segregation had on the psyches of both African Americans and whites, showing how one group internalized a sense of inferiority while the other, a sense of superiority. Their efforts culminated in the landmark decision that overturned Plessy on May 17, 1954.

Today,as we mark the 57th anniversary of Brown v. Board of Education,we want to highlight three lessons we have learned from this monumental and hard-fought victory:

Federal Courts Can't Remedy Structural Racism

A series of United States Supreme Court decisions, beginning in the mid-1970s, placed a near-impossible burden on those seeking to remedy discriminatory practices by requiring not only proof of racial inequality but also a showing that such inequality was purposeful.  The application of this "intent doctrine" in the recent Ninth Circuit case of Darensburg v. Metropolitan Transit Commission, raises the critical question of whether victims of subtle, implicit and unintentional but, nevertheless, very real discrimination can find justice in our courts.  The following piece which addresses this question, was written by Eva Paterson and Reggie Shuford, president and director of law and policy, respectively, at the Equal Justice Society.  It was originally published on March 6, 2011 in New American Media.

Transit Case Raises Question:  Can the Poor Ever Find Justice?

by Eva Paterson and Reggie Shuford

A recent decision handed down by the U.S. Ninth Circuit Court of Appeals raises this important question: Can victims of contemporary forms of discrimination and disparity find justice in our courts?

The court ruling came in the case of Sylvia Darensburg, an African-American mother of three who lives in East Oakland. Every day, along with tens of thousands of low-income African-American, Asian and Latino bus riders in the Bay Area, Sylvia experiences the reality of transit inequality.

According to the case, Darensburg v. Metropolitan Transportation Commission, Sylvia relies on the AC Transit bus system as her primary means of transportation to her job during the day and to college classes at night. She endures long waits for the two buses she needs to take, with each trip taking an hour or more each way. On her way home at night, she has to walk 12 blocks from the nearest bus stop in her neighborhood.

Sylvia is not alone in making such an arduous journey—almost 80 percent of AC Transit riders are people of color, and over 70 percent have incomes below $30,000. Nearly 60 percent are entirely dependent on public transit.

In 2005, a group of law firms and nonprofit legal advocacy groups—claiming state and federal civil rights violations—filed suit in federal court in the hopes of getting Sylvia Darensburg and others like her equal access to quality transit services.

The suit charged that the Metropolitan Transit Commission’s (MTC) practice of persistently under-funding AC Transit, while investing in improving rail services, amounted to discrimination and had a disproportionate impact on low-income residents of color. Rail services are used primarily by individuals with incomes of more than $30,000 and who have other means of transportation. A greater percentage of white riders use rail services rather than bus services like AC Transit.

The suit asserted that MTC's decision not to allocate greater funding for bus expansion projects in its Regional Transit Expansion Plan causes, at least in part, the fare hikes, service shortages, and lack of improvement on AC Transit buses that Sylvia and others experience.

In late February, the Ninth Circuit derailed Bay Area low-income residents’ chances of getting improved public transportation services. The court ruled that Sylvia and other plaintiffs had failed to make a showing of discrimination because they failed to demonstrate how MTC’s funding decisions either intentionally discriminated against or had a disparate impact on them.

One of the judges went even further by decrying the fact that the lawsuit was brought in the first place.
Taking aim at what he described as “hopelessly outdated” racial categories, he concluded: “[I]n the Bay Area . . . social change has been fostered by liberal political attitudes, and a culture of tolerance. An individual bigot may be found, perhaps even a pocket of racists. The notion of a Bay Area board bent on racist goals is a specter that only desperate litigation could entertain.”

Both the court’s decision and that particular judge’s concurrence ignore or fail to take into account how discrimination actually takes place in our society today. While we may no longer have George Wallace or his ilk chanting “Segregation now, segregation tomorrow, segregation forever!” on the school house steps, we do have well-documented and persistent racial disparities in virtually every measure of societal well-being, from employment, health, and education to wealth, housing and encounters with the criminal justice system.

Research shows that, today, the majority of racial bias is structural or implicit. Structural or institutional racism refers to any system of inequality based on race. In America, it defines who has access to goods, services and opportunities—or, as in the Darensburg case, to quality transit services that can determine whether one can get to work or school.

By requiring that discrimination be intentional and explicit (an almost impossible high bar), courts no longer provide a meaningful remedy to victims of discrimination and bias. The end result is that countless valid claims are lost, dismissed or never even brought.

If we are to solve the persistent disparities that remain embedded in our society today, judges, lawyers and the public must be better educated about how discrimination plays out in modern society, and in the daily lives of people like Sylvia Darensburg. Only then will we stand a fighting chance of making America a place that can truly live up to its ideal of equal opportunity for everyone.

Reclaiming the 14th Amendment

Equal Justice Society, headed by an old friend and mentor, Eva Paterson, is a national strategy group heightening consciousness on race in the law and popular discourse.  EJS seeks to restore race equity issues to the national consciousness, build effective progressive alliances, and advance the discourse on the positive role of government.

Last week, Reggie Shuford, EJS's Director of Law and Public Policy, wrote an important and visionary op-ed entitled Reclaiming the 14th Amendment, which was published in the Daily Journal, California's largest legal newspaper.  Shuford persuasively argues that the 14th Amendment, which was intended to protect blacks from discrimination and violence after the Civil War, has "failed to keep pace" with the kinds of subtle, implicit, and unintentional racial bias of today.

Dilution of the 14th Amendment stems from a series of U.S. Supreme Court decisions, beginning in the mid-1970s, which established and solidified the "intent doctrine," a near-impossible standard which requires those suffering from the impact of discrimination to prove the racial inequality was intentional.  EJS plans to pursue a litigation and public policy strategy to dismantle or at least reformulate the intent doctrine in order to reclaim the 14th Amendment as "a tool for securing justice."  Below is Shuford's article which explains their ambitious and innovative ideas for doing so. 

Reclaiming the 14th Amendment

by Reggie Shuford

Daily Journal 

The 14th Amendment isn’t what it used to be.

Enacted in 1868, the 14th Amendment was intended to protect Blacks from the violence and inequality that arose after the Civil War. Just over a decade earlier, the U.S. Supreme Court had decided Dred Scott v. Sandford, ruling that all people of African ancestry - slaves and those who were free - could never become U.S. citizens and, therefore, could not sue in federal court. Confederate state laws during that period also barred Blacks from serving on juries, voting, leasing or owning land, or entering professions. In contrast, the 14th Amendment guaranteed African Americans the right to citizenship, and the privileges and immunities that attach to citizenship. The amendment’s Equal Protection Clause would later become the basis for the Supreme Court’s 1954 ruling in Brown v. Board of Education, which ended the doctrine of “separate but equal.” 

Today, in the age of Obama, racism is by and large not of the explicit variety. It is not the kind with water fountains that restrict access only to certain races, or the kind that explicitly withholds the right to vote from individuals based on the color of their skin. Today, discrimination or bias is far more subtle, even unconscious, and their effects sometimes unintentional. The problem, however, is that equal protection jurisprudence has failed to keep pace with the way discrimination is now practiced and experienced in contemporary American society. Click here to read the entire article.