Equality and Liberty

  • July 18, 2014
    Guest Post

    by Gabriel J. Chin, Professor of Law, UC Davis School of Law

    *Noting the 50th anniversaries of Freedom Summer and the Civil Rights Act of 1964, ACSblog is hosting a symposium including posts and interviews from some of the nation’s leading scholars and civil rights activists.

    Practicing the art of the possible rather than seeking perfection may be an inevitable feature of civil rights legislation. Even the greatest and most honored laws have loopholes; the Thirteenth Amendment, for example, allows slavery based on conviction of crime, any crime, and the exception was liberally exploited in the former Confederacy after Redemption. The Fifteenth Amendment seems to countenance discrimination on the basis of sex, and a protection in earlier versions of the right to hold office was stripped out before enactment.        

    Nevertheless, I’ll take them; I do not criticize the Reconstruction Amendments or their makers for being merely as good as was possible at the time. Similarly, it would not have been better to give up what was good in the 1964 Act simply because of its deficiencies. At the same time, recognizing a law’s compromises and gaps is essential to understanding its real import, and to thinking about how policy can be shaped to fully reflect the principle at stake.

    Among the important compromises in the bill are exemptions from the employment discrimination prohibition of Title VII for businesses of less than 15 people, and the exemption from the Public Accommodations provision of Title II for small, owner-occupied motels and lodging establishments. Presumably, these exceptions exist for the benefit of racists who grew up in a racist system through no fault of their own. Congress might reasonably have concluded that forcing close contact between racial minorities and these racists might have been more trouble than it was worth.  But these exemptions should have been time-limited; at this point, all but the oldest business owners spent their entire lives, or at least their adulthoods, in a nation were discrimination has clearly been against the law and public policy. The case for continued compromise of the policy is not obvious.

    Another major gap in the Civil Rights Act is the lack of protection against discrimination of members of the LGBTQ community. Clearly, this was no oversight. The desegregation struggle was to some degree a Cold War propaganda effort. Fair treatment on the basis of race was a “cold war imperative,” and so too was controlling the potentially subversive effects of sexual minorities. Thus, the 1965 Immigration Act, a close cousin of the Civil Rights Act, eliminated discrimination on the basis of race in immigration law, but simultaneously clarified and strengthened a prohibition on gay and lesbian immigration. The Civil Rights Act makes little sense unless it recognizes a fundamental human dignity and equality. The Americans with Disabilities Act and the Age Discrimination in Employment Act closed unjustified gaps in the coverage of the original law, and the prohibition on gay immigration is gone. Continuing to allow discrimination against gays and lesbians in the Civil Rights Act is indefensible.

  • June 20, 2014

    by Paul Guequierre

    They may have taken different paths to civil rights stardom, but those paths started at the same place—the public housing projects in the Bronx, New York. Last night, attendees of the 2014 ACS National Convention got a glimpse into the events and personal journeys that got U.S. Supreme Court Justice Sonia Sotomayor and her longtime friend, civil rights leader and attorney Ted Shaw, where they are today.

    The two—who were high school classmates nearly 50 years ago in the Bronx—had a spirited conversation in front of hundreds of lawyers, judges, law professors and students and civil rights activists at the 2014 ACS National Convention. They shared their experiences growing up in tumultuous times during the civil rights movement in public housing and how that helped shape who they are today.

    After showing their high school yearbook to the audience, Justice Sotomayor asked Ted Shaw if he ever thought they would get to where they are in their careers. He replied, “Sonia, who would have ever imagined they would let the inmates run the asylum?”

  • May 22, 2014
    Last night, the Supreme Court stayed the execution of Russell Bucklew, a Missouri inmate convicted of rape and murder. The Court granted the stay after Bucklew’s lawyers noted that his rare health condition would cause excruciating pain if he was executed via lethal injection. Robert Barnes and Mark Berman at The Washington Post discuss the role Justice Samuel A. Alito Jr. played in the decision.
     
    On Tuesday, Judge John E. Jones III of the U.S. District Court for the Middle District of Pennsylvania ruled that the state’s ban on gay marriage violated the Constitution. Gov. Tom Corbett (R-Penn.) announced that he will not appeal the decision. Trip Gabriel at The New York Times reports on the victory for gay and lesbian couples in the Keystone State. 
     
    Writing for TIME, Andrew Rossi comments on the state of higher education as it begins to benefit more private than public interests.
     
    At Jost on Justice Kenneth Jost explains why “the history of the fight for marriage equality is yet to be written.” 
  • May 12, 2014
    BookTalk
    Place, Not Race
    A New Vision of Opportunity in America
    By: 
    Sheryll Cashin

    by Sheryll Cashin, Professor of Law, Georgetown University Law Center. This essay is adapted from parts of Cashin’s book Place, Not Race: A New Vision of Opportunity in America. Professor Cashin will also participating in a panel discussion, “Race and the law in 2014: Still Separate and Unequal?” at the ACS 2014 National Convention.

    Despite the Supreme Court’s compromise decision in Fisher v. Texas, affirmative action is on life support. In Schuette v. Coalition to Defend Affirmative Action, the Supreme Court upheld the ability of Michigan voters to ban race-based affirmative action. Conservative opponents will continue to attack the policy in politics and the courts. There will always be another Abigail Fisher. One important response to the demise of race-based affirmative action should be to incorporate the experience of segregation into diversity strategies. I argue that use of place, rather than race, in diversity programming will better redress the separate and unequal schooling that most black and Latino children endure, while enhancing the possibility that we might one day move past the racial resentment that affirmative action engenders.

    While I propose substituting place for race in university admissions, I am not suggesting that American society has become post-racial. My proposal accounts for the racial architecture of opportunity in this country through the race-neutral means of place. Ultimately, I conclude that the social costs of racial preferences outweigh any marginal benefits when race-neutral alternatives are available that will create racial diversity by expanding opportunity to those most disadvantaged by structural barriers. The truly disadvantaged—black and brown children trapped in high-poverty environs—are not getting the quality of schooling they need, partially because backlash wedge politics undermines any possibility for common sense public policies. Affirmative action as currently practiced in admissions at most elite institutions does little to help this group and may make matters worse by contributing to political gridlock borne of racial cleavage.

  • May 7, 2014
    Guest Post
    by Joseph Thai, Watson Centennial Chair in Law and Presidential Professor of Law, University of Oklahoma College of Law
     
    If there is a silver lining to the rushed—and botched—execution of Clayton Lockett last week in Oklahoma, it is the national soul searching that it ignited over the place of the death penalty in our society. The public post-mortem has appropriately spotlighted the means by which the state attempted to kill Lockett—the injection of a secretly procured drug cocktail that failed to put him to death in the “humane” manner intended, but instead caused him to writhe in agony for over half an hour before he died of a traumatic heart attack. But hidden in plain sight was another troubling dimension to the double execution Oklahoma had planned for that night, with the second now on hold. Both condemned men were black.
     
    The mug shots of Lockett and the other condemned prisoner, Charles Warner, splashed across the front pages and screens of news outlets across the nation. They stared out at the viewer, expressionless, but not lifeless, bound to the same fate, and bound by race.
     
    It is no secret that race infects the death penalty. In the landmark case of McCleskey v. Kemp, which involved a challenge to capital punishment in Georgia as racially biased, the Supreme Court in 1987 acknowledged that capital sentencing “appears to correlate with race.” In fact, the correlations drawn by a seminal study of the death penalty in that southern state were stark: among them, a defendant was 4.3 times more likely to draw the death penalty if the crime involved a white victim rather than a black one, and the racial combination most likely to result in the death penalty was a black defendant and white victim. The Court rejected the challenge in a deeply divided 5-4 ruling, accepting that “apparent disparities in sentencing are an inevitable part of our criminal justice system,” but reasoning that “the Constitution does not place totally unrealistic conditions on its use.”