• August 20, 2012

    by Jeremy Leaming

    Our Society continues to be adversely impacted because of racial stereotypes and divisions, regardless of the rhetoric from opponents of education admissions policies that seek to create a diverse student body. The opponents of such policies are urging the U.S. Supreme Court to invalidate the University of Texas at Austin’s admissions policy that takes race into account.

    But in a friend-of-the-court brief recently filed with the Supreme Court by some of the nation’s largest unions representing education associations, national unions and civil liberties advocates, detail why the nation’s educational institutions must be allowed to combat racial divisions and stereotypes by promoting and advancing diverse student bodies.

    “In sum, ours is not a color-blind society, and race still matters,” the groups state in their 38-page brief. “When it comes to public elementary and secondary education, minority and nonminority students of equal ability do not, in the aggregate, have equal opportunities. In light of this inescapable fact, the mission of public elementary, secondary, and higher education cannot be fulfilled without affirmative efforts to achieve racially diverse classrooms. Such racial diversity in classrooms, as we now show, contributes significantly to the fulfillment of the public educational mission.”

    Recently the Constitutional Accountability Center, along with some of the nation’s leading constitutional scholars, lodged a friend-of-the-court brief with the high court in Fisher v. University of Texas to be heard in the high court’s next term showing why the admission’s policy  is supported by the Constitution’s Fourteenth Amendment, which is supposed to foster equal protection. CAC’s David H. Gans says, “Both in writing the text and in enacting race-conscious measures to foster equality, the Framers of the Fourteenth Amendment resoundingly rejected the notion that the government could not take race into account in order to ensure equality of opportunity for all persons regardless of race.”

    The brief written and filed by the Service Employees International Union (SEIU), the National Education Association (NEA), the American Federation of Labor-Congress of Industrial Organizations (AFL-CIO), the American Federation of Teachers (AFT), the American Federation of State, County, and Municipal Employees (AFSCME), and People For the American Way Foundation focuses more on Supreme Court precedent that has held education institutions have great leeway to direct their educational experiences.

    For instance high court precedent has found that school officials are allowed to “fulfill their dual missions of instilling in all students ‘the values on which our society rests,’ and providing them with the skills and knowledge necessary to realize their full potential.”

  • August 16, 2012
    Guest Post

    By David H. Gans, Director of the Human Rights, Civil Rights and Citizenship Program at the Constitutional Accountability Center. This is a cross-post from CAC's Text & History Blog.

    On Monday, Constitutional Accountability Center filed an amici curiae brief in the Supreme Court in Fisher v. University of Texas, urging the Court to reaffirm that the Fourteenth Amendment permits the sensitive use of race to foster equality in education and to uphold the University of Texas’ use of race as one factor in its holistic admissions policy. The brief is available here. Our brief, filed on behalf of CAC and six of the nation’s most prominent constitutional scholars – Bruce Ackerman, Vikram Amar, Jack Balkin, Burt Neuborne, James Ryan, and Adam Winkler – demonstrates that the text and history of the Fourteenth Amendment permit government to take race into account in certain circumstances in order to ensure equality of opportunity for all persons regardless of race.

    For the last four decades, the fight over the constitutionality of race-conscious measures to foster equality has been reduced to a sound-bite – whether the Fourteenth Amendment is “color-blind” – with conservatives claiming the mantle of Justice Harlan’s dissent in Plessy v. Ferguson to argue that the Fourteenth Amendment prohibits virtually all use of race by the government. Progressives, all too often, have missed their most powerful rejoinder: the Fourteenth Amendment’s text and history. As our brief explains, not only does the Amendment’s text permit government to enact race-conscious policies to fulfill the Constitution’s promise of equality, but the Framers of the Amendment themselves enacted many such measures.

    The Constitution is certainly color-blind to a certain extent. In writing the broadest textual guarantee of equality in our Constitution, the Framers of the Fourteenth Amendment very deliberately rejected limitations on the scope of the Equal Protection Clause, sweeping men and women of all races and classes into its coverage. As the text of the Equal Protection Clause makes clear, every person can invoke its universal guarantee of equality. It was precisely for this reason that Justice Harlan declared in Plessy that the “Constitution is color-blind, and neither knows nor tolerates classes among citizens.” But color-blind does not mean blind to reality.  Both in writing the text and in enacting race-conscious measures to foster equality, the Framers of the Fourteenth Amendment resoundingly rejected the notion that the government could not take race into account in order to ensure equality of opportunity for all persons regardless of race. Faced with the task of fulfilling President Lincoln’s promise of a “new birth of freedom” and integrating African Americans into the civic life of the nation, the Framers recognized that the Constitution could not be simplistically colorblind. 

  • July 6, 2012

    by Samantha Berkovits

    University of Texas law Professor William E. Forbath calls for liberals to champion a stronger interpretation of the Constitution that aims to squelch inequality. Those tempted to take up this cause, which Forbath presented in an op-ed in today’s New York Times, may find themselves facing an unfriendly battlefield, but Forbath is confident that history is on their side.

    The constitutional argument for equality may seem inherent in a document meant to “promote the general Welfare.” However, the recent victory for liberals in the Affordable Care Act case was ensconced in nearly 200 pages of opinion, with much of the language holding the potential to destroy the legacy of the New Deal, with rough consequences for an American public already facing a dangerous economic landscape. Forbath writes, “Even the new doctrine that the majority adopted may hobble efforts to condition federal grants-in-aid on compliance with national goals, like child-care assistance for the working poor.”

    Conservatives, Forbath notes, would have the public believe that the goal of the Constitution is to protect and establish “individualism, small government, godliness and private property.” In response to this “crackpot originalism” liberals have been playing defense, when they should have been on the offensive. According to Forbath, all the necessary tools to present a case for a Constitution that allows the government to, in the words of Justice Ginsburg, “regulate the national economy in the interest of those who labor to sustain it” can be found in American history.

  • May 17, 2012
    Implicit Racial Bias Across the Law
    Justin D. Levinson and Robert J. Smith (editors)

    By Justin D. Levinson, a law professor and Director of the Culture and Jury Project at the University of Hawaii at Manoa, and Robert J. Smith, a visiting assistant professor of law at DePaul University

    A young girl walks to school, eager for the opportunity to engage and learn, despite the so-called “achievement gap.” Later that morning, her mother reports to the courthouse, jury summons in hand, excited to participate in a civic responsibility. On the same day, her grandfather goes to the local Emergency Room, afraid that his chest pains might mean that has suffered a heart attack. Nearby, a non-profit serving underprivileged youth prepares to make its “pitch” to a local corporation, seeking a charitable donation that will allow it to survive and fulfill its mission. Each of these storylines, which by themselves illustrate separate challenges within the health, educational, and economic systems, share a troubling commonality: each depicts an area of social life that is characterized by racially disparate outcomes.

    Indeed, despite cultural progress in reducing overt acts of racism, stark racial disparities continue to define American life. Our new book, Implicit Racial Bias Across the Law, is for anyone who wonders, 58 years after the U.S. Supreme Court issued its landmark decision in Brown v. Board of Education, why race still matters and is interested in what emerging social science can contribute to the discussion. The book explores how scientific evidence on the human mind might help to explain why racial equality is so elusive. This new evidence reveals how human mental machinery can be skewed by lurking stereotypes, often bending to accommodate hidden biases reinforced by years of social learning. Through the lens of these powerful and pervasive implicit racial attitudes and stereotypes, Implicit Racial Bias Across the Law examines both the continued subordination of historically disadvantaged groups and the legal system's complicity in the subordination.

  • March 6, 2012

    by Jeremy Leaming

    While a large public school district in Minnesota has taken steps, prompted by legal action, to combat discrimination against LGBT students, the U.S. Department of Education has released information, which perhaps not surprisingly, reveals persistent discrimination against black students in public schools nationwide.

    Reporting for the Pioneer Press, Sarah Horner details the Anoka-Hennepin school district board’s vote, with one member resigning in protest, to “accept a settlement agreement with [Dylon] Frei and five other former and current district students who had filed two lawsuits over a policy requiring staff to remain neutral when the topic of sexual orientation came up in the classroom.” As Horner notes Frei and the other students had repeatedly faced sexual harassment and gender stereotyping. Frei, Horner reports, told a crown outside the school board offices that his peers had repeatedly called him “fag,” and physically harmed him.

    The school board voting 5-1 approved a consent decree that will resolve the students’ lawsuit brought by the Southern Poverty Law Center (SPLC) and the National Center for Lesbian Rights. The decree also resolves a separate complaint lodged in Nov. 2010 by the U.S. Departments of Justice and Education.

    The consent decree filed with the U.S. District Court for the District of Minnesota includes a number of requirements that Anoka-Hennepin school officials will have to undertake to ensure they comply with Title VI of the Civil Rights Act of 1964 and Title IX of the Education Amendments of 1972, which bar harassment of lesbian, gay, bisexual and transgender students.

    For example the school district, the largest in Minnesota, must retain a consultant to review the district’s policy on harassment, create and implement “a comprehensive plan for preventing and addressing student-on-student sex-based harassment,” and improve “its system for maintaining records of investigation and responding to allegations of harassment.”