Equality and Liberty

  • August 13, 2014
    Video Interview

    by Caroline Cox

    This year marked the 50th anniversaries of both the Civil Rights Act of 1964 and Freedom Summer, but these victories have not erased many persistent racial inequalities in the United States. In a discussion about race, education, and the legacy of Brown v. Board decision at the 2014 ACS National Convention, Tomiko Brown-Nagin, the Daniel P.S. Paul Professor of Constitutional Law and Professor of History at Harvard University, explained how the world has changed in the years after these civil rights landmarks.

    While Brown-Nagin argued that the United States has managed to achieve the promise of Brown in many respects, these successes are qualified. The decision slowly eliminated de jure segregation, but de facto segregation continues and even thrives in the post-Brown world. Brown-Nagin explained that public support is “shifting away from support for an affirmative movement of students across neighborhood lines, away from even having students of different races in the same school building.”

    The majority of people, according to Brown-Nagin, agree with the principle of racial equality. But this belief does not in and of itself mean that inequality no longer exists. This is not the inequality seen during the Warren Court, but rather are the result of “social conditions related to race” that are largely ignored because “people don’t understand them as related to racial animus.”

    The way to bring the ethos of Brown into a new era, Brown-Nagin argued, requires the formation of new coalitions and policies that can address inequality but are not necessarily race-conscious. Race does matter, but in a time when Parents Involved has made addressing racial inequality in schools more difficult, Brown-Nagin made clear that the real solution is “to be creative and innovative in the policies that we choose.”

    ACSblog hosted a symposium on the Civil Rights Act of 1964 and Freedom Summer, and a collection of blog posts on the legacy of Brown v. Board. Watch the brief interview with Tomiko Brown-Nagin below or here

  • August 12, 2014

    by Caroline Cox

    Time’s Nolan Feeney reports that for the first time since June 2013 a prohibition against same-sex marriage has withstood a constitution challenge.

    The Editorial Board of The New York Times praises 16 states that have made it easier to vote despite the recent changes to the Voting Rights Act: “Congress needs to quit seeing voting in partisan terms and make it a fundamental right that cannot be limited by states trying to block access to the polls.”

    Dahlia Lithwick argues in Slate that Justice Breyer is the “unsung feminist” of the Supreme Court. 

    Adam Liptak of The New York Times discusses a new study from Harvard Law School Professor Cass R. Sunstein that questions the value of unanimity on the Supreme Court.

    In the Huffington Post, Philip Marcelo reports on Chief Justice Roberts’ recent comments at the American Bar Association’s annual meeting in which he advocated for lawyers to mend the growing partisan divide.

    The Brennan Center for Justice provides arguments against Arkansas’s new photo ID law based on an amicus brief filed yesterday. 

  • August 1, 2014
    Guest Post

    by Atiba R. Ellis, Associate Professor, West Virginia University College 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.

    As we celebrate the fiftieth anniversary of the Civil Rights Act, and the fiftieth anniversary of the Freedom Summer protest, it is well worth reflecting on the how the movement challenged us to not only establish formal legal equality, but also to address enduring poverty. The Civil Rights Movement sought to persuade America that all Americans are equal. The Freedom Summer riders (and the many, many more who pressed for civil rights) sought to expose the inequality and oppression in the segregated south of 1964.

    The passage of the Civil Rights Act, the Voting Rights Act, the Fair Housing Act, still impact us today.  These enactments represent significant progress towards the goal of fostering equality. Moreover, with the contemporary tide of referenda and judicial rulings on marriage equality, the Civil Rights Movement continues to evolve to protect many people who fifty years ago weren’t deemed deserving of civil rights.

    Though we think of Martin Luther King, Jr., Freedom Summer, and formal legal equality when we think about the Civil Rights Movement, we should also remember that the struggle is really, as historian Jacqueline Dowd Hall explained, a “long civil rights movement.”  Hall’s work locates the genesis of the twentieth century movement in the 1930s with the social transformations that occurred due to economic disruption of the Great Depression.  Moreover, the long arc of legal transformation to foster equality began with the Civil War and the Reconstruction Amendments.  The civil rights struggle began with confronting the subordination and poverty slavery created.

    In this sense, the long civil rights struggle had economic equality of opportunity at its core from the beginning. As Jeremy Leaming discussed on this blog, the question of racial equality in twenty-first century America is at a crossroads in light of retrenchment in civil and voting rights.  Yet racial inequality and poverty walk hand and hand and continue to affect the lived experiences of people of color.

    NPR host Michel Martin recently wrote an article in the National Journal, discussing the key obstacles that women of color continue to face in the twenty-first century.  In discussing this article on NPR’s All Things Considered (where she called her essay her own “Letter from the Birmingham Jail”) she explained how poverty creates an enduring problem for racial minorities:

    People of color particularly — but not exclusively blacks and Latinos — are connected to poverty and to disadvantage in ways that often our white colleagues don't understand. That causes you to have to think about things that they aren't thinking about. And that's the kind of thing that I really feel a need to call attention to.

    Martin’s words -- especially as they reflect her own experience navigating the intersection of race and class-- remind us that poverty daily affects the lives of people of color, no matter how affluent.  Indeed, it is a yet-to-be-fulfilled civil rights issue of the long civil rights movement.

  • July 28, 2014
    Guest Post

    by Christine Chiu and Sascha Murillo. Chiu is staff attorney and Murillo is community organizer at New York Lawyers for the Public Interest

    With more than 900,000 people enrolled in insurance plans through New York’s Health Plan Marketplace, New York is an “Obamacare” success story. A recently released New York State Department of Health (DOH) report, detailing demographic information of consumers who signed up for insurance through the Marketplace from October 1, 2013 to April 15, 2014, showed that more than 80 percent of enrollees were previously uninsured – some receiving coverage for the first time in their lives. Furthermore, nearly three-quarters of enrollees received tax credits or cost-sharing reductions to make their coverage more affordable.

    While thousands of individuals now enjoy the benefits of health insurance, many New Yorkers, particularly those who are limited-English proficient (LEP), still lack coverage. According to the State’s report, only 15 percent of enrollees self-reported that they preferred to speak a language other than English. Before the launch of the Marketplace, the State estimated that 36 percent of potential enrollees would be LEP. The difference between potential and actual self-reported LEP enrollees may be indicative of the barriers that these New Yorkers encountered when accessing the Marketplace during the first open enrollment period. For example, the Marketplace website and online application were available only in English, and the homepage of the Marketplace website did not contain taglines directing consumers to materials and information in their language.

    In order for health reform to achieve its full potential, it is critical that these immigrant and LEP populations enroll in health insurance; immigrants are more likely than U.S. born citizens to be uninsured and less likely to obtain needed medical services. Additionally, providing immigrants and LEP New Yorkers access to health insurance is not only the right thing to do; it’s also fiscally responsible.  Enrolling LEP New Yorkers in health insurance will not only improve access to health care for these populations, but will also help reduce the cost of healthcare for everyone, as immigrants tend to be younger and healthier than U.S. citizens.

  • 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.