Monday, July 06, 2009

Social engineering, Roberts Court-style

Now that a week has passed since the Court handed down Ricci v. DeStefano (2009), better known to the public as the "white firefighters" case, and the lawyers have had their back-and-forth over what this decision means for the law of Title VII, "disparate treatment" vs. "disparate impact," the professed standards of the Roberts Court on "judicial minimalism" vs. the Roberts Court's avowed preference for moving the law in any direction it sees fit and, naturally, whether this renders Sonia Sotomayor "unfit" to serve on the Court, this seems as good a time as any to offer some thoughts on what the Court's decision means beyond the narrow world of legal academia and those in the mainstream media who genuinely believe there is something called "the law" that stands apart from the political world that creates it.

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Sonia Sotomayor: If the conservative majority's 5-4 decision to reverse the unanimous opinion of the 2nd Circuit Court of Appeals decision affirming the federal district court's decision in favor of New Haven makes Sotomayor "unfit" to take Justice David Souter's seat on the Court, then more than one justice on the current Court better call College Hunks Hauling Junk and clear out their offices, starting with Chief Justice John Roberts.

In 2005, Roberts wrote the opinion for a three-judge panel for the D.C. Circuit Court of Appeals that upheld, in Hamdan v. Rumsfeld, the Bush administration's decision to establish military commissions without congressional approval based on the theory that Article II pretty much gave the president the power to do what he wished in "times of crisis" and, secondarily, that the Geneva Convention was judicially unenforceable in the American judicial system. A few days later, President Bush nominated Roberts to the Court, and he was confirmed with little controversy, something, in retrospect, that should have been remarkable given that his view of executive power in Hamdan was without precedent. In 2006, the Court, with Roberts abstaining, reversed the new Chief Justice's opinion. Five members of the Court -- Stevens, Souter, Ginsburg, Breyer and Kennedy -- rejected in toto the Bush administration's theory of unbridled executive power, and, by default, the legal justification for the military commissions that Roberts, in his opinion for the D.C. Circuit, endorsed without reservation. Hamdan is perhaps the most important decision on the "inherent" power of the executive to take extra-constitutional action since the Pentagon Papers decision of 1971, and Roberts got it completely wrong.

Sam Alito should get packing, too. In 1991, Justice Alito wrote the opinon for a three-judge panel of the Third Circuit Court of Appeals upholding Pennsylvania's restrictive abortion law. Alito's decision to uphold the provisions requiring parental notification, a 24-48 hour "waiting period," and "informed consent" were upheld by the three justices -- O'Connor, Kennedy and Souter -- who helped formed the five member majority upholding the "core" of Roe -- and the Court's four dissenters -- Rehnquist, Scalia, Thomas and Byron White. But the section of Alito's opinion upholding the state's "spousal consent" requirement was rejected by a majority of the justices. Indeed, Alito's opinion upholding a husband's "right" to approve his wife's decision to have an abortion met with not-so-carefully disguised hostility from O'Connor, who, according to Jeffrey Toobin's book, The Nine: Inside the Secret World of the Supreme Court (2007), was less than thrilled that Alito was nominated to replace her. I can only imagine why.

Perhaps Justice Stevens should go ahead and book a one-way trip on his own plane back to Florida to take the retirement that "veteran Court watchers" (Does that job description actually go on someone's 1040?) have been predicting for the last five or six years. This term, the Court, with Justice Scalia writing for a 5-4 majority, overruled a 1986 opinion on the right to counsel, Michigan v. Jackson (1986), that was written by Justice Stevens. Yes, the decision had been eroded over the years; but there was nothing to suggest that Jackson needed to go. But the Court's minimalist, restraint-oriented, non-ideological wing decided that, hey, why the hell not, as long as they've got the votes.

Compare Roberts and Alito's constitutional errors in their appeals court opinions with Sotomayor's alleged misjudgment. Roberts was writing on a blank slate, and got it so wrong that even Anthony Kennedy decided to vote with the liberals in Hamdan. Alito's opinion upholding the "spousal consent" provision of Pennsylvania's restrictive abortion was so offensive to O'Connor (and Kennedy and Souter) that it led her, for just the second time since coming to the Court, to strike down an abortion restriction as an "undue burden."


And Sotomayor? The unanimous three-judge panel for the 2nd Circuit issued a one paragraph per curiam opinion affirming the district court's "thoughtful" analysis of New Haven's decision to throw out the promotions exam. An en banc 2nd Circuit, 7-6, affirmed the three-judge panel's ruling. That means that 11 of the 21 federal judges who voted in Ricci agreed with New Haven and, by extension, the prevailing interpretation of Title VII in "disparate impact" cases.

Another quick tidbit I haven't seen anyone point out about Ricci: the vast majority of amicus support went to New Haven, including six states, the United States and numerous well established and reputable civil rights organizations. Contrast that with the support going to the petitioners: a handful of right-wing groups, including the Eagle Forum, the American Civil Rights Union and a few others that were obviously created for no other reason than to file a brief in this case. On top of that, not one municipal or state government submitted a brief in support of the petitioners.

Not even Sarah Palin's beloved Alaska, which supported New Haven.

Enough? So who is really out of the mainstream? Hint: It's not Sonia Sotomayor.

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Title VII bars workplace discrimination. The law doesn't say that only employers who deliberately discriminate against their employees (or job applicants) are on the hook; it says, and the courts and Congress have been clear on this, that employers may not discriminate on the basis of race (or sex, color, national origin and, in subsequent provisions, many other categories as well). New Haven, like many other cities with majority African-American and/or Latino populations, employed firefighters in non-supervisory capacities; but, as you go up the chain of command, minorities become almost invisible. And, yes, exams are part of the selection and promotion process. But let's consider this: if minorities fail these exams at higher rates than their white counterparts, enough so that few, if any, are promoted, then we are left with two choices to explain this outcome:

1. African-American and Latino firefighters are capable of putting out fires, risking their lives in burning buildings and attending to all the difficult problems that firefighters face in their professional capacity. But African-Americans and Latinos stop short of having the intelligence and skill to command firefighters.

2. The examination process is producing results that are not accurately capturing the intelligence and skills of African-American and Latino firefighters in a way that makes them suitable to command their white colleagues.

Those are your two choices. Either African-Americans and Latinos aren't smart enough to get promoted or there is something wrong with the tests. Nothing else explains an outcome in which minorities come up so short.

The conservative majority on the Roberts Court -- and this includes Anthony Kennedy, who has never voted to uphold an affirmative action program created and administered by a private or public employer or public educational institution (he voted against the University of Michigan's law school admissions program that Justice O'Connor upheld in her opinion in Grutter v. Bollinger (2003) -- likes to trumpet its true commitment to civil rights by insisting there is something called "colorblindness" in the law. By drawing no moral distinction between affirmative action and Jim Crow-type discrimination, the position that Roberts articulated in the Parents Involved case two years ago, the Court's conservatives claim that there is no place for "counting by race" in equal protection analysis. Not to sound like Maureen Dowd, but, for a Court that doesn't like to count by race, it sure likes to count by race -- as long as the racial group coming up short falls meets the criteria of whiteness.

Conservatives, leaving people like Charles Murray and Rush Limbaugh aside, have learned enough from the civil rights movement not to suggest that African-Americans and Latinos lag behind whites on standardized tests of all sorts -- from firefighter examinations to the SAT -- because they're less smart; rather, conservative usually respond by saying that affirmative action is just a quick fix, and a bad one, that doesn't address the "underlying" problems with substandard African-American and Latino achievement -- fewer educational opportunities, disproportionate poverty and . . . here comes their favorite one . . . a "culture" that looks down upon persons who aspire to something more than a life of crime. Fix those problems, say conservatives, and the test scores will come. But conservatives still live in denial on the fundamental force that accounts for so many of these social and educational pathologies -- the discrimination, sometimes subtle and sometimes not, that is still very much a part of American culture. Simply because the law makes it illegal to discriminate in an open manner doesn't mean that minorities, on average, compete on an equal footing with whites. Living, as I do, in an area where white privilege is the norm and not the exception, I am still amazed at how unwilling and/or unable so many affluent, well-educated whites are to admit that our children start with advantages that most African-American and Latino children do not. If I had a nickel for every time I have heard a well-heeled white parent congratulate his or herself on the great job "we" did getting their child into a selective college or securing a spot on the U16 National Bound Hockey Team or sending their child to the Poconos or Berkshires to work for free at a $4000 a month sleep-a-way camp, I could retire and live off the interest alone. In a sense, white privilege operates like compound interest on a savings account -- the earlier you start saving, the more you earn over a longer period of time. And when you start with an advantage that no African-American or Latino can -- race -- at an early age, from whether one parent should "opt out" of the labor force to avoid having to hire, ironically enough, a Latino or African-American to care for their children, clean their house and do their laundry, that position only strengthens over time.

Here's a question for the Court's conservative majority, the majority so concerned about equal opportunity without regard to race: Of the 112 13 and 14 year-olds who played in our Bantam House program in the Montgomery Youth Hockey Association during the 208-09 season, one was African-American. The only kids who spoke English as a second language were the handful from other countries, Canada (Montreal), France and Germany. Of the 90 or so kids who played in our Bethesda-Chevy Chase recreational baseball league this year, not one was African-American. The hockey club is open to anyone who wants to play; residency and neighborhood are irrelevant. If you want to drive here from Northern Virginia, Frederick or Prince George's County to play hockey, and many do, you can. Our baseball teams, on the other hand, are entrepreneurial in their creation. You round up kids from your neighborhood, your kid's school and, if you still need players, you get your kid's friend from another neighborhood to come on board.

So now the question: what accounts for the lack of local African-American and Latino players in these two sports?

Neither organization discriminates on the basis of race. Both organizations offer "sliding scale" fees to families who need help paying fees or acquiring equipment. Both organizations advertise extensively to the local community, although in recent years that advertising has more become Web-centric. The areas from which the vast majority of our players come are Northwest D.C. and Montgomery County. Neither area lacks for eligible 13 and 14 year-old boys who are interested in baseball and hockey. According, then, to the Court, since the traditional bludgeons of discrimination are absent, race cannot possibly account for the near whites-only population playing in these programs.

But we don't even have to go deep below the surface to understand why this is. To play house hockey in MYHA -- that's not travel, which is about a $1000 more per year -- you start by writing a $1400 check. And that's before equipment and incidental fees. Then you deal with the odd times -- 6.45 a.m. weekend game times and/or 6.00 - 8.45 p.m. practice times during the middle of the week. For families down the income ladder who do not hold jobs that allow them the degrees of freedom to leave their offices to get their kids to and from practice and games, or families with only one parent in the house and no spouse near-by to help with the driving, it is impossible to play hockey. As for baseball, there is very little racial integration in the Montgomery County public schools, and what little integration there is stems from white kids attending magnet programs at schools that serve predominantly African-American and Latino communities.

Forty-five years after the passage of the Civil Rights of 1964, there is still this unpleasant truth about the socio-economic mobility of Americans -- race correlates with income, education,two-parent homes, access to health care and social status. The further down you go on all these characteristics, the more likely you are to be African-American or Latino. New Haven, like every other city with a majority non-white population in the country prior to the passage of the Voting Rights Act of 1965, was run by whites -- white mayors, white district attorneys, white police and fire chiefs, white utilities directors and on and on. Police and firefighting forces were reserved almost exclusively for whites and depended very heavily on patronage, ancestry and family ties for entry into those professions. Only in the last twenty or thirty years, as Justice Ginsburg pointed out in her dissent, have majority non-white cities made meaningful progress in integrating and diversifying their police and firefighting forces. But now, thanks to the Supreme Court, New Haven, a city that is approximately 60% African-American, will have few blacks or Latinos in command positions. Something, then, is accounting for all this . . . and it's not a sign hanging in an employer's door telling African-Americans or Latinos not to apply.

Few can or should dispute that the United States has made meaningful progress in addressing the consequences of its Original Sin. But the answers to the deep problems resulting from the vestiges of slavery, state-enforced segregation that permeated every aspect of American life and a culture reluctant to acknowledge the power that white privilege still wields in our contemporary society have never come, nor will they, by treating racial discrimination as a math problem. A horrible, shameful stain on American society cannot be cleansed by treating the moral consequences of the deliberate choices made by our largest and most powerful institutions, public and private, as amoral.

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President Obama was criticized early on for taking Sonia Sotomayor's background into account when he decided to nominate her to replace David Souter. Conservatives complained about the "empathy" that Obama believed was important for judges to have when deciding cases that deal with real people who have real problems. Conservatives who normally have no warmth for Justice Kennedy have praised his Ricci opinion as an exercise rooted in the law rather than "empathy" for the minority firefighters who still have no access to the command positions in the New Haven fire department. But Kennedy's opinion is hardly dispassionate analysis. Throughout his opinion, Kennedy makes multiple references to the hardworking firefighters who were denied their "merit-based" promotion because the test failed to yield enough minority applicants into command positions. We learned that Frank Ricci has dyslexia and worked hard to overcome it, and even paid out over a $1000 from his own pocket to pay for additional materials that would help him, as well as to compensate a neighbor who would read the materials to him. In a truly bizarre passage from his concurring opinion, Justice Alito spent several pages telling the story of a black preacher and self-professed "king maker" who more or less intimidated New Haven officials into throwing out the results and making sure that African-American firefighters got their share of the bounty. What any of this has to do with "disparate-impact" analysis is beyond me.

Then again, I have a real hard time relating to the world that Roberts, Kennedy and Alito inhabit, and an even harder time understanding and relating to the world that Roberts and Kennedy come from. Perhaps not coincidentally, these are the two justices who have written the Court's most recent and important opinions on race. Roberts wrote Parents Involved and the Court's big voting rights case this term; Kennedy, who, obviously, wrote Ricci, also wrote the opinion in Patterson v. McLean Credit Union (1989), a case that narrowed the "disparate-impact" analysis on Title VII in place since 1971 so substantially that it led Congress to enact the Civil Rights Act of 1991 to restore it. The 1991 law, not the "original" language of Title VII, formed the basis of the Court's analysis in Ricci. So there you go: another member of the Court's conservative bloc that found himself overruled, except this time by Congress rather than his colleagues on the bench.

As was well documented in their confirmation hearings, Roberts and Kennedy come from a world of affluence and privilege. Neither has ever confronted discrimination at any point in their lives. Elite education from the elementary level through law school, country clubs, well-to-do and privileged families, membership in their chosen professional cities most elite law firms (San Francisco and Washington), federal judgeships while still in their forties and an appointment to the Supreme Court by their 50th and 51st birthdays, respectively. For many who cling to the false calculus of American meritocratic achievement, the personal and professional lives of Roberts and Kennedy are often described as "impeccable" and "ideal." To me, their lives are and have been walled off, by design, from the world that neither has any hesitation in judging and correcting.

And, yes, I am a white male, and just six years younger than John Roberts. But the world in which he grew up could not be more foreign to me. By the time I was 12, I could stand on the street corner on a Saturday in Atlanta's West End and play the dozens with black guys twice my age. I could walk into record stores around the corner from where my father had his clothing stores in the 1960s and 70s and recognize the music coming through on the sound system. I knew my Motown and I was just starting to learn a little bit about jazz, enough so that I could say, "Holy Shit!" when I learned that John Coltrane, Wes Montgomery, Cannonball Adderly, Wynton Kelly and Philly Joe Jones had all come through, at one point or another, my father's first store, which was located across the street from Paschal's Motor Hotel, which was the destination spot for black jazz musicians coming through Atlanta during the days of Jim Crow. Most of the men who worked for my dad as salesmen and managers were jazz musicians who needed steady day jobs. I could walk the streets of all these now-historic black Atlanta neighborhoods, have my regular stores to stop in and hang out, talk to all the street characters and black professional that befriended me because they knew my dad and never worry about anything. Hank Aaron, Lou Hudson, Orlando Cepeda and many other prominent African-American athletes were regular customers in my dad's store. It never occurred to me then that outside the world of black Atlanta these men were treated as second-class human beings and subject to racial slurs and overt acts of racism. Really, how could anyone not like Hank Aaron, who was an absolute gentleman (although he was a secret smoker. He used to smoke in my dad's store and I remember the first time I saw him light up I got so upset and went in the bathroom and cried)? Not until I was about 10 or 11 did I start to realize how deep and penetrating racism was in the world in which I was growing up.

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From the age of 8 until I went to college, I spent just about every Saturday going to work with my dad, who, at one point, had two or three men's clothing stores around the Atlanta area. By the time I left for college, my dad was down to one store, called "Out of Sight," a homage to the black phrase that became popular in the late 1960s and gradually, like all black vernacular, morphed its way into the lingo of white-hipster wannabes and hippies. I still worked in my dad's store during winter and summer breaks home from college, and I remember how heartbroken I was when my father called me at school around the middle of my junior year to tell me he was closing down his business to move on to some other adventures. As I wrote two years ago, I went back and forth between the white world I lived in during the week and the black world I visited on the weekends. When I needed my first nice watch, I didn't head to a mall store near my house. No, no. I went to the West Side Loan Co., which was the fancy name for the pawn shop around the corner from my father's last store, and visited "Fast Eddie." True to form, Fast Eddie pulled me to the side and opened his jacket to display a cascade of watches, some of which grazed against the handgun he kept tucked into the slacks I recognized from our store (with no back pockets). After I picked out my watch, Fast Eddie refused to let me pay, mentioning something about an "arrangement" he had with my dad. My first stereo also came from the West Side pawn shop. So what if the serial numbers had been scratched off the receiver and the speakers? And once my friends got wind of the deals available at the pawn shop, they didn't hesitate to navigate their way down to this part of now-historic black Atlanta, even though more than one friend asked me if I had ever been mugged or assaulted. Thinking back on it, I'm pretty sure that none of my white middle-class friends was harmed or killed on their way to or from the West Side Loan Co.

This was the world I knew as a child, teen-ager and young adult. I didn't know anyone who belonged to a country club, owned a boat, went snow skiing, vacationed to foreign countries, had parents who drove a car fancier than, say, a Buick or Mercury. I didn't know what "preppy" meant until I went to college and sat next to a girl in my Introduction to Western Civilization class who was dressed in a plaid skirt that came to the knees, a green cardigan sweater, an add-a-bead necklace, knee socks and topsiders. I had never heard of the L.L. Bean, Land's End or original Abercrombie and Fitch catalogues, much less seen someone who looked as if he or she had just stepped off the page of one. I didn't know anyone named Courtney or Tucker, who had nicknames like "Muffy" or "Chipster," or called beer "brewski." And I definitely had never seen a guy my age walking around in shorts with whales or crabs on them who could walk up to a bartender and ask for "the usual," or a girl who, at 18 or 19, had already begun dressing like her mother or, even worse, her grandmother. That world was and remains a mystery to me.

Twenty years ago, when I moved to Washington, I thought I was moving to a city in which imagination, perseverance, creativity and a willingness to think and act independently would be noticed and rewarded and not, as it turns out, ignored or punished. I had no idea that entering the professional world and, later, parenthood, meant that I was supposed to devote every waking hour to making sure that my children -- and myself, for that matter -- would not have to associate with the riff-raff, whether in sports, education or in whatever feeble effort we made to introduce them to the "proper" culture. Moving here presented another culture shock for me. I had never seen so many Volvo station wagons carting around children whose educational pedigrees, and those of their parents, were pasted on the rear window. Nor had I ever heard of Martha's Vineyard, Nantucket, Cape Cod or Jackson Hole, or knew that you could go skiing in Utah, much less have a second house in any one of these places. I didn't know that a three bedroom house with three bathrooms for a family of four was "too small." I never expected to draw looks of disbelief from my peers when I confessed that my children were attending public schools in the Montgomery County system rather than "securing" a spot for them in one of the ring of elite private schools that populate Northwest Washington and lower Montgomery County. I didn't know that children were supposed to attend "elite" sports or "knowledge" camps during the summer so they could distinguish themselves early enough to be competitive for admission to Oberlin, Swathmore or Harvard. I never anticipated that someone my own age would ask me to "coordinate" with their nanny to arrange a playdate with one of their children, since no one I knew growing up had a nanny or arranged playdates. We just walked around to each other's houses until we found something to do. I had never heard parents congratulate themselves as much as they do here for getting their children into the right private school, select sports team or elite college, then turnaround, without the slightest hint of self-awareness, complain about how "affirmative action" almost kept Rachel, Josh or Courtney from their birthright place in the University of Virginia's class of 2013. And I had absolutely no idea that teaching at the college level was something the accomplished, professional Washingtonian would find attractive once he or she "had made some real money."

Twenty years of living in Washington has not whetted my appetite to enter the world that John Roberts and Anthony Kennedy have lived in for their entire lives. As my own children move closer and closer to getting their own wings to enter a world that bears very little resemblance to the cucoon they have grown up in here in suburban Washington, I realize that the greatest gift of my childhood was not the signed baseball that Hank Aaron gave me when I was eight (which I promptly scuffed throwing grounders with my friends in the street), attending the 1972 MLB All-Star game or my first kiss from Terri Merlin in the 1st grade). Rather, it was exposure to a world that was completely unlike the one most white kids my age had ever seen, much less had the fortune to grow up around. And, that, more than any contemporary theory of constitutional jurisprudence or judicial decision-making informs my disappointment in a Court that cannot understand how the social, political and, above all, racial privilege it is determined to socially engineer from above does not, in any way, shape or form, serve the needs of American society.

2 comments:

Stephen Meli said...

Dr. Ivers, I am going to have to disagree with some points here.

I think what the decision truly shows is how laws passed with good intentions can backfire and present results that are opposite of their original intention. When the government passed anti-discrimination laws, their intention was to prevent private business and public institutions that were predominantly white from discriminating against minority applicants. Of course, the language of the law was broad enough so that it would encompass all persons. This means the law protects everyone from discrimination on the basis of their race, religion, sex, etc...

The disparate impact test that the SCOTUS uses to decide cases that deal with discrimination is pretty much just a post hoc fallacy. The city paid $100,000 to have their test vetted for just these purposes. The reason that the test is being disparaged is because it didn't produce "desired" results. I find this to be a pretty dubious legal argument. To determine if discrimination occurred, it is the means and not the ends that need to be considered.

If New Haven formulated a new test based on the flaws of the old one and got a similar result, they would then have the power to throw out that test as well. If the city has the power to make such arbitrary decisions, then why bother having a test? Why not just implement the results that are desired and skip the farce?

Of course they cannot do that because quotas are illegal and the appearance of fairness is important to save face. But lets remember that a quota of 1 is still a quota.

The socio-economic status between whites and blacks vary and that will continue to be reality for some time. However, the law should be a constant. I think New Haven should be able to choose the very best firefighters it can to be officers. Whatever test they come up with to make that so is their business. However, I agree with Kennedy's opinion in that you can't make your decision based purely on race. It is so obvious that that was the reason for the decision that it is difficult for New Haven to defend.

So I think a decision has to be made as to what is more important, a rule of law that is non-arbitrary but at times will provide results opposite to our wishes -OR- an arbitrary rule of men who will provide us with the ends we desire. I don't think we can have both.

Carlos said...

I haven't read through the whole post, but for the record, the ACRU was founded in 1998.

Full Disclosure:

I work for the ACRU

I wrote our brief in Ricci

The court did not adopt my reasoning.