Equality and Liberty

  • 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.”
     
  • May 1, 2014
    BookTalk
    Reproducing Racism
    How Everyday Choices Lock In White Advantage
    By: 
    Daria Roithmayr

    by Daria Roithmayr, George T. and Harriet E. Pfleger Professor of Law, University of Southern California Gould College of Law

    This is a book about why racial inequality persists.  Six years after the President Obama’s inauguration, blacks and Latinos have barely a nickel of wealth for every dollar that whites have. The wealth gap between black and white has increased by fourfold in the last generation. Poverty rates for Latinos are almost three times that of whites.  The black unemployment rate is double, as are dropout rates for young Latino and black men. Incarceration rates are respectively three and seven times the rate of white men.  Far from being post-racial, then, race continues to matter on almost every measure of well-being. Why do we see these huge racial gaps—in jobs, housing, education, wealth, incarceration—decade after decade?

    Reproducing Racism argues that racial inequality reproduces itself automatically, generation after generation, in the everyday choices we make about our lives—like choosing where to live or deciding to refer a friend for a job. Light on the subject comes from a most unexpected place—innovative work on a phenomenon called “lock-in.” Economists like Brian Arthur have developed the “lock-in model” to explain why an early lead for one technology can sometimes persist for extended periods even when the technology faces competition from a superior alternative. The lock-in model describes the way that unfair competitive advantage can begin to reproduce itself over time, automatically, without any ongoing illegal behavior.

  • April 30, 2014
    Guest Post
    by Alex Kreit, Associate Professor of Law and ACS Co-Faculty Advisor, Thomas Jefferson School of Law; Chair, ACS San Diego Lawyer Chapter
     
    Yesterday, the Supreme Court considered what the Fourth Amendment requires when the police want to search an arrestee’s cell phone. The outcome will depend on how the Court applies an old rule to new technology—a challenge that is likely to recur in the years to come as smartphones, cloud computing and tools like license plate readers change both the way we store information and the government’s ability to collect and analyze it.
     
    Before the police can search your home or property, they need a warrant or an exception to the warrant requirement. One well-established exception is the so-called “search incident to lawful arrest” doctrine. This rule says that the police can search an arrestee without a warrant, simply on the basis of the arrest. The rationale for this exception is that an arrestee might have a weapon on them or try to destroy evidence after they’re arrested. Plus, because an arrestee is being taken into custody, she has a reduced expectation of privacy.
     
    Until recently, this exception was relatively uncontroversial. It meant that the police could look through an arrestee’s pockets, wallet or purse for weapons, drugs or other evidence—something they would be very likely to do anyway while booking the person back at the station.
     
    But how should this rule apply now that we carry our “entire lives on cell phones,” as Justice Kagan put it during oral argument? Should the government be able to rummage through the cell phone of every single person they arrest for hours or days without a warrant? Or, should a different rule apply to phones?
     
  • April 24, 2014
    Guest Post

    by Gabriel J. Chin, Professor of Law, University of California Davis School of Law

    Schuette v. Coalition to Defend Affirmative Action (BAMN), decided this week, did not deal another blow to affirmative action, exactly, but it upheld an earlier attack. The justices, 6-2 with Justice Kagan recused, approved a Michigan law prohibiting voluntary affirmative action in higher education.  The eight participating justices issued five separate opinions. 

    In 2006, the voters of Michigan responded to the Court’s 2003 decision in Grutter v. Bollinger, allowing affirmative action to promote educational diversity by passing an initiative banning it.  The Coalition to Defend Affirmative Action, Integration and Immigration Rights and Fight for Equality By Any Means Necessary persuaded a panel of the Sixth Circuit, and then a majority of the court en banc, that Michigan’s ban was unconstitutional. The Sixth Circuit was on firm ground; Washington v. Seattle School District Number 1, a 1982 decision, invalidated an initiative banning voluntary bussing to achieve racial integration.  The laws at issue were, seemingly, indistinguishable: Both involved initiatives meant to squelch voluntary measures to achieve racial integration, in situations where remedies where not legally required. The Seattle case built upon earlier decisions invalidating anti-civil rights initiatives.

    I read Justice Kennedy, whose plurality opinion was joined by the Chief Justice and Justice Alito, as distinguishing Seattle School District Number 1 on a subtle point: the identity of the beneficiaries. Voluntary bussing to achieve integration has often been defended because it benefits the racial minorities or other disadvantaged pupils who are bussed. Prohibiting voluntary bussing harms minorities, and thus might be a subject of equal protection concern. The trick, though, is that since Bakke, in 1978, diversity has been the compelling interest justifying voluntary affirmative action in higher education. African-American students are not admitted under Bakke or Grutter primarily for their own benefit, but instead, for the benefit of other students – thus Richard Delgado’s famous observation that affirmative action is a “majoritarian device” for the benefit of whites. Since affirmative action in higher education cannot be primarily for the benefit of minorities, its elimination is also not necessarily to their disadvantage.  Thus, unlike this case, Justice Kennedy explained, the older cases in which the court invalidated initiatives “were ones in which the political restriction in question was designed to be used, or was likely to be used, to encourage infliction of injury by reason of race.”