Archive for law
The pending Supreme Court decision in Fisher v. University of Texas presents a new challenge to the Court’s decision of a decade earlier in the Grutter v. Bollinger and Gratz v. Bollinger cases at the University of Michigan. In the Michigan cases, the Court clearly recognized the value of student body diversity in the educational process and upheld the inclusion of race as one factor among others in a narrowly tailored holistic review process. Numerous expert studies support the Court’s position on diversity and student learning outcomes. For example, four studies presented at the most recent meeting of the Association for the Study of Higher Education (ASHE) provide empirical support for the benefits of diversity for college students, using longitudinal assessment of the scores from the Collegiate Assessment of Academic Proficiency and the Collegiate Learning Assessment.
Yet a recent Inside Higher Ed survey of 841 college presidents conducted by Gallup found that 70% agreed that consideration of race in admissions has had a “mostly positive effect” on education in general, while only 58% agreed that such consideration has had a “mostly positive effect” on their campuses.
Dr. Benjamin Reese, president of the National Association of Chief Diversity Officers in Higher Education (NADOHE) and Vice President for Institutional Equity at Duke University, suggested that framing the question around race rather than the benefits of diversity resulting from a holistic review of applications may have elicited less positive responses. In reporting Reese’s perspective in his March 1 article, editor Doug Lederman writes, “That, though, is not the question before the courts.” He then cites Richard Kahlenberg, senior fellow at the Century Foundation, who indicates that “the Presidents are completely out of step with where the courts seem to be heading and where the American public is on this issue.”
A closer reading of the Grutter decision suggests that the Court was focused on the overall benefits of diversity. It specifically reaffirmed the opinion of Justice Powell in the landmark 1978 Regents of the University of California v. Bakke decision who found that “diversity is a compelling state interest” essential to the university’s mission. Writing for the narrow 5-4 Grutter majority, Justice Sandra Day O’Connor focused on the concept of “critical mass” in summarizing the positive impact of diversity at the University of Michigan’s Law School. She noted the effects of diversity on learning outcomes and the preparation of students for a diverse workforce, society, and legal profession:
But the Law School defines its critical mass concept by reference to the substantial, important, and laudable educational benefits that diversity is designed to produce, including cross-racial understanding and the breaking down of racial stereotypes.
The crux of the issue in Fisher relates to critical mass. How is it defined? How will we know when we reach it? What benefits derive from it? We have seen the concept of critical mass in the research literature as it refers to a substantial presence of women and minorities on campus. It refers to the sufficient presence of underrepresented groups to be able to overcome isolation, defeat stereotypes, and provide a welcoming atmosphere for diversity.
The concept of critical mass is a qualitative rather than a quantitative concept. Yet justices sympathetic to Fisher have been asking for quantification of the attainment of critical mass, even though quotas are not permitted under prior judicial rulings. Chief Justice Roberts repeatedly questioned Gregory Garre, the lawyer for the University of Texas asking: “What is that number? What is the critical mass of Hispanics and African Americans at the university that you are working toward?” When Garre argued that the school did not have a specific point of critical mass and would make this determination, Roberts responded, “So I see, when you tell me, then it’s enough.”
From this perspective, the responses of the college and university presidents to the Inside Higher Ed Survey do not appear to be “out of step” with the American public. Rather these responses reflect a very real awareness of the complexities and nuances relating to the implementation of affirmative action in admissions processes. Support for affirmative action was strongest among presidents of public master’s (81%) and public doctoral universities (80%). In Alvin Evans’ and my review of institutional diversity plans in Are the Walls Really Down? Behavioral and Organizational Barriers to Diversity , we found that public universities have been in the forefront in the development of institutional diversity plans, perhaps due to their legal reporting requirements, size, resources, and requirements for public accountability.
Although the outcome of Fisher v. Texas remains uncertain, the fact that numerous legal briefs have been filed by associations and groups asserting that curtailing affirmative action would hurt the quality of the education students receive is promising. The voices of educational leaders, professional associations, and scholars are critical in the ongoing debate of how education can continue to serve as the gateway to opportunity and the great equalizer in our richly diverse society.
In the March 8 edition of the Chronicle Review, Brian Rosenberg, president of Macalester College, sums up the importance of presidential voice as “the most influential public voice of the institution”:
I have always believed that courageous views, thoughtfully expressed, are actually less risky than silence in the face of serious wrong. I have spoken out, in my role as president of Macalester College, on many contentious issues, and I have chosen to remain silent on others. What has guided my decision-making, and what I believe guides that of most of my colleagues, is not cowardice or self-interest, but careful judgment about what is in the best interest of the institutions we hold in trust.
On April 12, 2012 the San Francisco Human Rights Commission held a public hearing on “The Human Rights Impact of the War on Drugs in San Francisco.” I attended upon the request of the Commission for a report authored with Mike Males (Research Fellow, CJCJ) for the Center for Criminal and Juvenile Justice. The pews of the hearing in SF City Hall were packed, and the room charged with howls and cheers immediately upon the first testimony of the evening by California NAACP President, Alice Huffman: “I will submit to you that the War on Drugs has destroyed many African American men and women and has not protected us at all.” Notably, the NAACP solidified their fundamental and universal opposition to the drug war in a 2011 resolution.
President Huffman, along with many others offering community and expert testimony declared their agreement with the 2011 Global Commission Report on the War on Drugs. The Report explicitly labels drug war policies utter failures, and calls for an immediate pivot toward legalization and regulation of illicit substances, and for public policy to define and treat drug abuse, addiction, and overdose deaths as public health issues. Further, the report recognizes legalization as a viable strategy to combat the violence and state corruption that regulates the illicit drug trade, as was the case in the (alcohol) prohibition era recently illustrated in HBO’s Boardwalk Empire.
In my testimony with CJCJ’s Selena Teji, we summarized the findings of my report with Dr. Males:
• African Americans experience felony drug arrest rates 19 times higher than other races in San Francisco, and 7.3 times higher than African Americans elsewhere in California.
• San Francisco’s explosion in drug felony arrests of African Americans, during the 1995-2009 period, did not occur elsewhere in the state, nor for other measured racial categories in the city.
• The city’s African American female youth account for over 40% of the felony drug arrests of African American female youths in California, and have arrest rates 50 times higher than their counterparts in other counties.
• More than half of all youth drug felonies involved African Americans, who constitute 9% of the city’s youth; and one-third Latino males, who comprise 11% of the city’s youth.
• Despite disproportionately high drug arrest rates among young African Americans in San Francisco, of the more than 2,000 residents and nonresidents in the city who have died from abuse of illicit drugs in the last decade, 6 in 10 were non-Latino Whites, and more than 7 in 10 were age 40 and older.
• Such stunning and socially destructive practices and disparities arguably constitute human rights violations against African Americans in San Francisco under the International Convention on the Elimination of All Forms of Racial Discrimination and the anti-discriminatory clause of the International Covenant on Civil and Political Rights. In agreement with social scientific research on contemporary systemic racism that recognizes the institutionalization of racial privilege and oppression and the role of “color-blind racism” in the post-civil rights era (Feagin, 1977, 2006, 2010; Feagin and Vera, 2001; Bonilla-Silva, 2003; Alexander, 2010; Ostertag and Armaline, 2011), international law does not require proof of conscious, explicit racial animus in the legal definition of racial discrimination as do U.S. courts—discriminatory results suffice (see also Fellner and Mauer, 1998).
Though a full report from the hearing in April awaits decision, that if adopted by the Commission would initiate review and public response by SFPD and the Board of Supervisors at the very least, the report’s adoption and publication are currently stalled. Populations of color, victims of the drug war, and the civil society that pays for this long expensive policy failure deserve an end to the drug war—perhaps faster than the system can or will deliver absent considerable resistance and political pressure.
Alexander, M. (2010). The New Jim Crow. New York, NY: The New Press.
Bonilla-Silva, Eduardo. (2003). Racism Without Racists: Color-Blind Racism and the Persistence of Racial Inequality in the US. New York: Rowman & Littlefield.
Feagin, Joe. 1977. “Indirect Institutionalized Discrimination: A Typology and Policy Analysis.” American Politics Quarterly 5(1):177-220.
______. (2006). Systemic Racism: A Theory of Oppression. New York: Routledge.
______. (2010). Racist America: Roots, Current Realities, and Future Reparations. New
Feagin, Joe, Hernán Vera, and Pinar Batur. (2001). White Racism. 2nd ed. New York:
Fellner & Mauer. (1998). Losing the Vote: The Impact of Felony Disenfranchisement Laws in the United States. Washington D.C.: Joint Report from Human Rights Watch and The Sentencing Project. Retrieved on 03/30/12 from http://www.sentencingproject.org/doc/File/FVR/fd_losingthevote.pdf.
International Convention on the Elimination of All Forms of Racial Discrimination [ICERD], 660 UNTS 195, entered into force Jan. 4, 1969. The United States ratified ICERD on October 21, 1994.
International Covenant on Civil and Political Rights, G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force March 23, 1976, Art. 25. The U.S. ratified the ICCPR on June 8, 1992.
Ostertag, S. & W. T. Armaline. (2011). Image isn’t everything: Contemporary systemic racism and anti- racism in the age of Obama. Humanity and Society, 35(3).
William Armaline is the Director of Human Rights (@SJSUHumanRights) and an assistant professor in Justice Studies at San Jose State University.
On Wednesday August 15, eligible undocumented immigrants throughout the nation began to apply for work permits under the Obama administration’s Deferred Action for Childhood Arrivals program. As The New York Times put it, “The work permit young immigrants can receive with the deferral opens many doors that have been firmly shut. They can obtain valid Social Security numbers and apply for driver’s licenses, professional certificates and financial aid for college.” On the same day, Arizona Governor Jan Brewer issued an Executive Order aimed at keeping those doors firmly shut in Arizona.
Her order [pdf] directs state agencies to initiate any changes necessary to prevent “Deferred Action recipients from obtaining eligibility . . . for state funded public benefits and state identification, including a driver’s license.”
Brewer’s order contradicts Arizona’s current policy that provides driver’s licenses to undocumented individuals who have secured jobs and attorneys doubt that it will have any practical effects.
Brewer’s action might have been motivated by her notorious animosity towards President Obama (pictured above in an encounter in January, 2012). An editorial in the August 17 issue of the Arizona Republic characterizes Brewer’s executive order as a “Move that Goes Too Far”.
in her efforts to oppose the president, “Even if the issue is something as seemingly straightforward as allowing Dream Act kids to obtain driver’s licenses, a fundamental precondition for Americans seeking to improve their lot in a mobile society.”
This is just another episode in Brewer’s relentless campaign against the undocumented. It is another instance of the racism that has tarnished Arizona’s reputation. Sadly, it delights racist voters, which evidently trumps human decency.
The Obama administration just submitted their amicus brief in regard to the Fisher v. University of Texas (Austin) affirmative action case, which our substantially conservative Supreme Court has decided to hear in the fall.
The brief is indeed fairly brief and mostly sticks to fairly narrow affirmative action arguments based largely in the language and logic of the University of Michigan Grutter v. Bollinger (2003) Supreme Court decision and a few related decisions, such as by arguing that the University of Texas (UT) remedial admissions plan tried unsuccessfully other admissions approaches first, only uses “race” as one variable among several “diversity” variables, is limited in time (reviewed every five years), and has had a modest but good effect in improving UT campus diversity. The brief lays out these conditions and the Grutter perspective allowing “race” as on variable among many pretty well, as a historically rather mainstream and white-centrist position on these university affirmative action issues.
The central arguments, and main rationale, of this brief use common but tepid “diversity” language and cite various important legal cases and agency/research studies (see here for one other study) to back up the argument that diversity helps (especially white, but they don’t use the word in that context) people adjust to and work with (including in the military and business) people who are different from them. The brief is generally cast in that more modest “diversity is important to student careers and success in the ‘real world’” rationale for adding some (modest, actually) “race” diversity to the student body.
What is not here in the rather timid Obama administration brief is rather striking. The brief never uses the word “racism,” nor does it directly reference the fact that UT was for many decades a prominent Jim-Crowed university. It still was firmly segregated, like all historically white southern universities, when I attended college in Texas in the late 1950s and early 1960s. Indeed, UT’s football coach then famously said he would not have an “N-word” on his football team, one of the last teams in the old southwest athletic conference to be racially desegregated. That prominent view of the coach was well-known in Texas’s black communities and indeed alienated many black parents and students from considering going to UT. I know that from personal efforts when I was a UT faculty member trying to recruit black students to this university in the 1970s and 1980s. Relatively few black students went to UT until the 1970s.
None of this long and extreme racist segregation background is noted in the administration’s brief, and the very high level of racial segregation still obvious in Texas high schools, from which UT draws most of its students, is only noted briefly and is not analyzed as to why that racial segregation was created or still persists.
Striking in this connection, too, is that there is no mention of the numerous white policymakers who historically and openly created (even into the 1960s), and still often create or maintain less blatantly, the state’s segregated high schools. White elite decisionmakers are only implicit in this brief, as they are in almost all discussions of U.S. systemic-racism issues. Clearly, the authors were afraid to call out and assess frontally the white racism that is foundational and systemic for Texas’s educational system, as elsewhere in the U.S. educational system.
Even the word “white” appears just four times in the document, once in reference to the plaintiff’s identity and only in vague passing comments for the other three cases. The reality of whiteness and white private in connection with such university cases, especially in the South, is nowhere addressed.
A major underlying structural and systemic issue ignored in this brief is the white-created system of Jim Crow racial segregation that dominated the state’s educational system from not long after its establishment by Reconstruction era state constitutions in the 1860s (ironically, shaped significantly by white and black “radical Republicans” then) for nearly a century, indeed until the mid- to late-1960s. The many impacts of that educational Jim Crow and other Jim Crow oppression cannot be undone by even more aggressive “affirmative” action than this modest plan of UT. That is especially true because a great many whites abandoned the public high schools as a reaction to the end of legal segregation. Whites have set up private overwhelmingly or completely white high schools across Texas, from the 1960s to the present, to avoid contacts with black (often Latinos too) students, and thus have usually destroyed much of the economic support and viability of all but the most well-funded public schools, and those mostly in white suburban areas of Texas cities.
The brief goes just as far as it had to go with its “diversity is essential” perspective in order to support the rather modest UT affirmative action program, and does that pretty well. Only a non-centrist, far-right white perspective would find the brief’s main arguments and this modest UT affirmative action program in admission really objectionable. It is but a very modest first step in the large scale change necessary for real and meaningful diversity in higher education.
Like many another person who had read of lynching in the South, I had accepted the idea meant to be conveyed—that although lynching was irregular and contrary to law and order, unreasoning anger over the terrible crime of rape led to the lynching; that perhaps the brute deserved death anyhow and the mob was justified in taking his life.
Crusade for Justice—Ida B. Wells
You know, I can see how Kobe Bryant could have done it…how he acts, his personality…I mean, he looks like a rapist.
Conversation with popular Black feminist blogger
The ongoing debate between Ebony.com and the popular feminist blog “What About Our Daughters” over the now removed article entitled “From Notorious to Glorious: Why Genarlow Wilson Is No Child Molester and Never Was,” by Chandra Thomas Whitfield, demonstrates more than a war of ideas—it has come to articulate a central idea between what is popularly considered feminist— and by effect for Black women— and how everything else that is not feminist is by necessity against Black women. Unfortunately, the central idea under contention is not one of degree, measured by the extent to which an action or concept benefits Black women, but categorical, as to whether or not a Black women’s magazine MUST on that basis understand a Black man charged with rape as being culpable, a priori, of rape.
Unfortunately, the discussions by Ebony.com concerning the celebration of Mr. Genarlow Wilson’s matriculation from Morehouse University have been depicted as the magazine and organization “siding with a rapist,” despite the fact that Mr. Wilson was never convicted of rape. Rather than a call for any substantive justice, these conversations demonstrate how deeply rooted the myth of the Black rapist is within the discursive moralism of these recent Black feminist pronouncements, and ask a public, without evidence or factual context, to treat Mr. Wilson as a rapist and sexual predator regardless of policy and legal opinion to the contrary. As the aforementioned quote by Wells cautions, Black men and anti-racist thinkers alike cannot take on faith than any ideology, including Black feminism, has totally separated itself from the historical and sexual vulnerability of the Black male to the rapist myth.
The Genarlow Wilson Case: The Facts and Context of Wilson’s Conviction for Aggravated Sexual Molestation.
It was a New Year’s Eve party at a Day’s Inn in 2003 where Mr. Genarlow and five of his high school friends had sex with a 17 year old classmate and oral sex with a fifteen year old Tiffany Cannon. When 17 year old (Morgan) awoke to find herself naked, she called her mother to pick her up from the hotel, and claimed that she thinks “they raped her.” Morgan’s mother called the police; they raided the hotel room, found a video tape of the sex act, and charged the boys with “rape, contributing to the delinquency of a minor, aggravated sodomy, and aggravated child molestation.” Mr. Genarlow, the only accused of the Douglasville Six to not take a plea deal, was acquitted of the rape charge of the 17 year old Morgan, but convicted for having consensual oral sex with a 15 year old Cannon. Because oral sex was considered “sodomy” under Georgia law, Mr. Genarlow was not protected under Georgia’s “Romeo and Juliet” law (close-in-age exemption) established by Dixon v. State (2004), which according to O.C.G.A. 16.6.3. would have made his “[felony] aggravated child molestation conviction which carries a mandatory 10 year sentence and registry as a sex offender into a [misdemeanor] statutory rape conviction punishable by up to a year in prison.” In fact, the very next year, (April 28, 2006), the Georgia legislature changed the law that imprisoned Wilson for 10 years eliminating the distinction between sodomy and sexual intercourse.
The details of this case, which seemed to be clear cut in the mind of the jurors and legal analysts for the last decade, especially since there was a video tape of the sex acts between the six boys and two girls that night, have recently come under attack by some Black feminists who seem to believe that Mr. Wilson has in fact gotten away with rape. Despite being convicted for consensual oral sex with a 15 year old when he was 17, and sentenced for 10 years by a law that was later deemed “cruel and unusual punishment” by the Georgia Supreme Court, Mr. Wilson is now said to be a “gang-rapist,” who continues to lie and erase the suffering of the female victims in the incident..
To substantiate her claim that Mr. Wilson is a rapist, Ms. McCauley offers a quote from an “attorney who saw the videotape during the trial,” and believes that the tape showed “a gang rape of a semi-conscious, 17-year-old girl, followed by a bizarre display of sexual precociousness by a 15-year-old girl.” What Ms. McCauley fails to disclose to the reader is that this is not the testimony of just any attorney interested in the case, but the unsolicited opinion of William J. Atkins, the longtime friend and employee of Georgia District Attorney David McDade, who published a defense of McDade’s (non-racist) character and integrity.. The irony of this defense, and the narrative advocated by McDade, who has been tried for sexual harassment (Atlanta Journal Constitution, July 16, 1999), is that McDade himself was threatened with criminal charges for the distribution of child pornography, since he believed it was legal to make copies of and distribute the “sex tape” of minors to the public, news outlets, and members of the Georgia legislature. McDade later defended his actions as necessary due to Georgia’s “open records” laws (Atlanta Journal Constitution, 7/16/2007), but the federal prosecutors office of Georgia declared possession and distribution of the tape a violation of child pornography laws (Carlos Campos, Atlanta Journal Constitution, 7/13/2007).
Despite the concerns of community leaders, federal prosecutors, and even juvenile and family experts like Karen Baynes who warned that the release of that tape victimizes all the juveniles involved and “re-victimizes the girls involved,” there has been no serious journalistic or academic conversation as to how the criminalization of teen sex and the puritanical adjudication of this common and normal activity victimizes Black children ignorant of the law and its use.
What I find most troubling and dangerous about the position that the author of “What About Our Daughters” takes is the hypocrisy of how a public audience is supposed to evaluate the character and culpability of Mr. Wilson. On the one hand, Ms. McCauley urges the readers, and Ebony to label Mr. Wilson based on his conviction as a “child molester.” As Ms. McCauley says about Ebony.com’s article “From Notorious to Glorious: Genarlow Wilson is No Child Molester and Never Was,” “Yes, this article title is a lie—he is in fact a convicted child molester.” Ms. McCauley is correct; he was convicted by a jury of aggravated child molestation, but also acquitted by that very same jury of rape. So why does Ms. McCauley insist on believing Mr. Wilson is a rapist despite the findings of the jury and courts she tells us as readers we should trust?
The tape was shown on CNN on February 17, 2007, and seems to suggest quite strongly that rape was not a justifiable conviction. When Georgia Senator Eric Johnson tells viewers that we are witnessing a rape of an unconscious 17 year old, and the molestation of a 15 year old drugged and intoxicated by the 6 boys, CNN anchor Rick Sanchez steps in correcting his interpretation of the events pointing out that the 17 year old was not unconscious and was not physically forced to have sex with the young men, the 15 year old did not drink at all that night, and points out that Johnson maintains an interpretation of events the jurors said was not present on the tape. Journalist Maureen Downey (Atlanta Journal Constitution, 10/10/2006) reported that one of the boys was concerned for the health of the 17 year old and asked if “she needs to go to the hospital.” Even the 15 year old’s mother, Veda Cannon, came to the defense of Genarlow Wilson and stated that her daughter told her that the sex between her and Wilson as well as the other four boys was consensual (Jeremy Redmon, Atlanta Journal Constitution, 6/14/2007), though McDade was adamant in censoring and even threatening Veda Cannon when this hit the airways (Maureen Downey, Atlanta Journal Constitution, 7/9/2007).
The O.J. Defense?: Just Because It’s Black and Feminist Doesn’t Make it Right!
The conversations surrounding Mr. Wilson’s path to matriculation from Morehouse by popular Black feminist blogs perpetuate a dangerous complacency towards institutional racism, white supremacy, sexual predator myths, and ideology that Black intellectuals cannot afford. The trope of “centering Black men,” judging situations by the “genitalia involved and not the circumstance” strives to deem the moralization of Black men as rapists as the categorical imperative of gender advocacy. I find it morally deplorable that readers are being told to support a sodomy law that not only is deployed against Black men disproportionately, but homosexual teens as well. Remember even the author of the Child Protection Act of 1995, Sen. Matt Towery was clear that his bill was never meant to police teen sex, or convict Genarlow Wilson as a felon child molester.
Should we ignore the historical milieu of these charges, and ignore the tribulations of Marcus Dixon, the reality that oral sex between married (hetero) couples was illegal until 1998, the fact that until 1996 sex with a 14 year old was legal, or that Kari McCarley, a 27 year old white woman who had sex with a 16 year old male student got 3 months in jail and probation in Georgia? Identity politics should not trump facts; if anything they should make us better aware of the complexities and dynamics of white supremacy. Unfortunately, this does not seem to be the aim of this recent attack against Mr. Wilson. We want to avoid the logic of a recent feminist reply to the disclosure of these facts I recently received on Facebook: “People are acquitted of crimes they commit all the time! Need I say OJ? Come on Tommy, we all know he did it!”
The U.S. has numerous anti-democratic institutions like our Supreme Court, Senate, and electoral college. One would think that the wealthy and well-off whites–who mostly run our political and economic institutions–would find them skewed more than enough in their direction without all the new anti-voting legislation. Numerous Republican state legislatures’ recent attempts and successes in making voting more difficult intentionally extend this well-off-whites’ control.
A savvy columnist at the Washington Post, Eugene Robinson, has done an interesting detailed analysis (“The GOP’s crime against voters”) of these attempts at voter suppression:
The Republican-led crusade for voter ID laws has been revealed as a cynical ploy to disenfranchise as many likely Democratic voters as possible, with poor people and minorities the main targets. . . . Late last month, the majority leader of the Pennsylvania House of Representatives, Mike Turzai, was addressing a meeting of the Republican State Committee. . . . . he mentioned the new law forcing voters to show a photo ID at the polls. Said Turzai, with more than a hint of triumph: “Voter ID, which is gonna allow Governor Romney to win the state of Pennsylvania — done.”
The number of people affected in this state is quite large, for some 758,939 registered voters there right now
do not have the most easily obtained and widely used photo ID, a state driver’s license. That’s an incredible 9.2 percent of the registered electorate. Most of the voters without driver’s licenses live in urban areas — which just happen to be places where poor people and minorities tend to live. More than 185,000 of these voters without licenses, about one-fourth of the total, live in Philadelphia — which just happens to be a Democratic stronghold where African Americans are a plurality.
If this significantly reduces the vote of modest income and working class people, especially people of color, then President Obama may have a difficult time winning the state, especially given current estimates of a close race there.
Significantly too, the new law about IDs in Pennsylvania, as in some other states, officially tries to prevent voter fraud from use of false IDs, yet no one has found actual evidence of that kind of voter fraud.
Attorney general Holder just today at the NAACP convention in Houston put this comment into his talk there, about the new voter ID law in Texas:
Under the proposed law, concealed handgun licenses would be acceptable forms of photo ID, but student IDs would not. . . . Many of those without IDs would have to travel great distances to get them, and some would struggle to pay for the documents they might need to obtain them. We call those poll taxes.
I grew up under such poll taxes in Texas, where they were designed to keep black voters from voting. We need to bring back some difficult memories of our racist voting history and openly racist political system for public discussion today. The white racial framing today intentionally ignores this relatively recent racist history of keeping voters of color out of the electoral system. Are we moving backwards today on these matters?
Today the U.S. Supreme Court decided that Arizona (or other states such as Alabama, Georgia, Indiana, South Carolina and Utah which all have some type of tough state immigration laws) have little room to legislate regarding immigration policy. The Supreme Court declared immigration enforcement is a federal issue. However, the Court ruled that law enforcement officials in Arizona could still ask about immigration status if they had reasonable suspicion that the person being stopped was undocumented. I wrote about how this would target Latinos in my first blog on racismreview stating that I would not go visit my parents in Arizona without my passport.
Based on today’s Supreme Court ruling, I will still not travel to Arizona without my passport.
The fact that the arguments of the case turned to issues of federalism rather than arguments about equal protection and/or civil rights violations should come as no surprise. It was set up that way from the start. Solicitor General Donald B. Verilli assured Chief Justice Roberts that this case was not about racism towards Latinos. CNN Supreme Court Producer Bill Mears tellingly states:
Even before the solicitor general began speaking midway through the argument, Chief Justice John Roberts framed the debate away from what has become a major complaint about the law: that it would target mostly Hispanic people for scrutiny and detention. “I’d like to clear up at the outset what it’s not about,” Roberts said. “No part of your argument has to do with racial or ethnic profiling, does it?” Verrilli readily agreed.
In this context the Court unanimously sustained the law’s section referred to as the “show me your papers” policy.
In doing so, it continued the larger policy that says it is okay to subject an entire ethnic and racial group of people to fundamental questions of belonging and acceptance by allowing law enforcement officials to question whether they belong here in this country legally or not.
This perpetuates and contributes to what Professor Leo Chavez refers to as the “Latino Threat Narrative” which situates all Latinos—whether legal immigrants, undocumented, or U.S. born—as outside of the American national community and sees them in a suspicious light. According to Leo Chavez, even U.S. born Latinos are seen as: “ ‘alien-citizens,’ perpetual foreigners despite their birthright”. Today’s Supreme Court decision reinforces that Latinos are seen and can be treated as “alien-citizens.”
A recent report by the New York Civil Liberties Union revealed that the New York Police Department stopped and frisked nearly 700,000 people last year. Black and Latino youth were the primary targets of these policing efforts. Black and Latino males between the ages of 14 and 21 accounted for 41.6 percent of stops in 2011, yet they make up less than five percent of the city’s population. Ninety percent of Black and Latino young men who were stopped were innocent. The disproportionate targeting of black and Latino young men in New York City can help us to understand another phenomenon: why 98 percent of deportees are sent to Latin America and the Caribbean and why over three quarters are male. In my research with Dominican and Jamaican deportees, I found that the vast majority of them were first picked up by police officers and then handed over to immigration authorities.
(Image from here)
If you walk into an immigration detention center today – where an average of about 34,000 non-citizens are held as they wait on immigration hearings and for their deportation to happen – you will find that nearly all detainees are black and brown men. This is remarkable, because not all immigrants are men, and not all immigrants are from Latin America and the Caribbean. About 25% of undocumented immigrants are from Europe and Asia. And about half of all immigrants are women. So, how is this happening? Why are most detainees and deportees Latin American and Caribbean men? The answer to this question lies in racial profiling. As immigration law enforcement increasingly is being carried out by criminal law enforcement agents, the effects of racial profiling in criminal law enforcement have spillover effects into immigration law enforcement.
(Image from here)
Deportations are carried out by immigration law enforcement officers who work in two branches of the Department of Homeland Security: Customs and Border Patrol (CBP) and Immigration and Customs Enforcement (ICE). In Fiscal Year 2010, immigration law enforcement agents apprehended over half a million non-citizens. The vast majority - 463,382 – were apprehended by the Border Patrol. The remaining 53,610 were encountered by ICE, usually within the interior of the United States, in cities such as Chicago, Atlanta, and San Francisco.
Border Patrol arrests happen much as they have since the creation of the Border Patrol in 1924, except that there have been enormous technological advances. Border Patrol agents have checkpoints and helicopters and motion sensors and all sorts of ways to find people along the US/Mexico border. They also have racial profiling, a central technique in immigration law enforcement along the border for the past 90 years. Thus, it should come as no surprise that Mexicans account for the vast majority of arrests along the Mexican border. In addition, the presumption of illegality has also spread to nationals of Mexico’s southern neighbors in Central America. Thus, the second largest group to face deportation is Central Americans. However, there is a third group that also faces deportation in large numbers: Caribbean immigrants from the Dominican Republic and Jamaica. Notably, Dominicans and Jamaicans, unlike Central Americans, are not likely to be stopped along the border for “Mexican appearance.” So, how are they getting caught up in the deportation dragnet?
When I spoke with Dominican and Jamaican deportees, very few of them reported having been arrested by immigration agents along the border. Nearly all of the Jamaicans and Dominicans I interviewed had arrived in New York City via airplane. Immigration law enforcement agents generally do not have license to walk up and down the streets of U.S. cities and demand proof of U.S. citizenship from pedestrians. The Border Patrol is only authorized to work in U.S. border areas. And, ICE, only has 20,000 employees overall, only a fraction of whom are officers engaged in raiding homes and worksites arresting illegally present immigrants. ICE does not have the staff or resources to patrol the county. Instead, ICE works closely with criminal law enforcement agencies to apprehend immigrants.
(Image from here.)
Enforcement and Removal Operations (ERO) is the division of ICE that carries out arrests. On an average day, Enforcement and Removal Operations (ERO) officers arrest 108 immigrants, and deport 1,057 people. ERO officers arrest many of these 108 immigrants per day after they have been processed through the criminal justice system.
There are at least three ways that Police/ICE cooperation works:
- A police officer pulls over a person for an alleged traffic violation. If that police officer is deputized to work for ICE, they can run the driver’s fingerprints right there on the road. If the driver turns out to be illegally present in the United States or has an immigration hold, the police officer can arrest the driver and hand them over to ICE.
- A police officer arrests a person and charges them with a crime. They take them to the police station, fingerprint them, and then run their fingerprints through the ICE database. Even if the police decide to drop the charges, if the person turns out to have an immigration hold, they will detain them until ICE comes to pick them up.
- A police officer arrests a person, charges them with a crime, and the person serves time in jail or prison. Before being released from jail or prison, the police can call ICE to come and check their eligibility to remain in the United States.
All three of these scenarios begin with a police arrest. We know well from criminal justice scholarship that black and Latino men are much more likely to be arrested than other people. The cooperation of police with ICE, then, leads to an expansion of this racially stratified system of punishment into the realm of immigration law enforcement.
In 2010, the Arizona state legislature passed a blatantly racist law, SB 1070.
One of its most notorious provisions (Section B) is particularly loathsome. It requires officers of the law who have “lawful contact” with an individual to make a “reasonable attempt” to ascertain the individual’s immigrant status “where reasonable suspicion exists that the person is an alien who is unlawfully present in the United States.” Two questions arise. First, what motivates the officer to initiate the “lawful contact”? Second, how does the officer arrive at a “reasonable suspicion”? The tool used in both cases is racial profiling.
The Obama administration challenged SB 1070 in court. Judge Susan Bolton of the Federal District Court issued a preliminary injunction against sections of the law, including Section B. The State of Arizona appealed Judge Bolton’s ruling to the Ninth Circuit Court of Appeals which upheld Bolton’s decision. Subsequently the State of Arizona appealed to the Supreme Court, which heard the case on April 25. There was some discussion of Section B during the hearing. Astonishingly, some Justices made comments that suggested support for this provision.
If the Supreme Court rules in Arizona’s favor, racial profiling will be legalized in Arizona for years. What’s next?