“Strange Justice”: A Victory For Right-Wing Ideology, But A Profound And Deep Loss For Racial Justice
Yesterday marked the twentieth anniversary of one of the great wrong turns in American civil-rights history, a grotesque decision that helped those who falsely and nonsensically believe that eliminating federal efforts to establish racial equality will somehow, in and of itself, establish racial equality. The horror of that day still reverberates, the pain of that moment still sears.
On June 12, 1995, the United States Supreme Court, in a ghastly 5-4 decision known as Adarand Constructors v. Pena, gutted the legal infrastructure upholding the country’s affirmative action programs:
In refusing for the first time to uphold a federal affirmative action policy, the court said that such race-based policies enacted by Congress must now survive the same judicial standard that state and local programs have faced since 1989. Known as ‘strict scrutiny,’ it is the toughest judicial standard to meet. To survive, a program must serve a compelling governmental interest and must be narrowly tailored to address identifiable past discrimination.
“Government may treat people differently because of their race only for the most compelling reasons,” Justice Sandra Day O’Connor wrote for the court. She said the Constitution’s guarantee of equal protection of the laws protects “persons, not groups” of people.
“It follows from that principle that all governmental action based on race – a group classification long recognized as . . . irrelevant and therefore prohibited – should be subjected to detailed judicial inquiry to ensure that the personal right to equal protection of the laws has not been infringed.”
O’Connor and her conservative court colleagues effectively struck Rep. John Lewis in the head one more time with this disgusting and destructive ruling, which was, of course, seized upon by right-wing ideologues to block pathways to black progress. The Adarand decision represented the Supreme Court’s shout-out to those who believed that the federal government had done too much to combat past and present-day discrimination.
Perhaps the most repugnant aspect of this decision was the concurring opinion written by Justice Clarence Thomas–an opinion that rhetorically lynched his own black brothers and sisters. Then-TIME Magazine columnist Jack E. White was correct beyond refutation when he observed:
These days Washington seems to be filled with white men who make black people uneasy, like Newt [Gingrich] the slasher, Bill [Clinton] the waffler and Jesse the crank—Helms, that is, not Jackson. But the scariest of all the hobgoblins may well be a fellow African American, Supreme Court Justice Clarence Thomas. In the four years since George Bush chose him to fill the “black seat” vacated by Thurgood Marshall, Thomas has emerged as the high court’s most aggressive advocate of rolling back the gains Marshall fought so hard for. The maddening irony is that Thomas owes his seat to precisely the kind of racial preference he goes to such lengths to excoriate. And as long as he is on the court, no other black need apply: Thomas fills a quota of one.
The most disturbing thing about Thomas is not his conclusions, but his twisted reasoning and bilious rage. In his written opinions, he begins with premises that no self-respecting black would disagree with, then veers off into a neverland of color-blind philosophizing in which all race-based policies, from Jim Crow laws designed to oppress minorities to affirmative-action measures seeking to assist them, are conflated into one morally and legally pernicious whole. He delights in gratuitously tongue-lashing the majority of blacks who disagree with him on almost every civil rights issue. He heaps scorn on federal judges who have used the bench to enforce and expand civil rights, accusing them of a paternalistic belief in black inferiority…
[Thomas] does not hesitate to incorporate dubious theories into his opinions when they suit his purposes. In his brief concurring opinion in the court’s Adarand Constructors v. Pena, in which the court suggested that federal set-aside programs for minority contractors may be unconstitutional, Thomas wrote, “Inevitably, such programs engender attitudes of superiority or, alternatively, provoke resentment among those who believe that they have been wronged by the government’s use of race. These programs stamp minorities with a badge of inferiority and may cause them to develop dependencies or to adopt an attitude that they are entitled to preferences.” That claim reflects the wisdom of Gingrich country, where, as the House Speaker opined last week, most problems poor black people face are caused by their own “bad habits.”
What Thomas, O’Connor and their right-wing friends will never admit is that bigotry will always be with us; it is hard-wired into our very nature, and thus the federal government will always need to take measures to ensure that bigotry does not strangle the aspirations of Americans of color. To that end, there will never be a day that we can get rid of affirmative action. We will always need goals, timetables, set-asides, preferences and yes, even the dreaded quotas, as they are nothing more than tangible measures by which we seek to reduce racial inequality.
The Adarand decision did great violence to the dream of racial equality. It empowered aggrieved right-wing whites to attack affirmative action programs with vicious vehemence, and put white progressives on the defensive against dubious claims of so-called reverse discrimination. The case was a victory for right-wing ideology, but a profound and deep loss for racial justice.
By: D. R. Tucker, Political Animal Blog, The Washington Monthly, June 13, 2015
“Patterns Or Practice Of Unnecessary Force”: Justice Department Reaches Settlement With Cleveland Over Police Conduct
The Justice Department has reached a settlement with the city of Cleveland over the conduct of its police officers, the latest case in which the Obama administration has investigated excessive use of force and the violation of constitutional rights by a local department, according to an agency official.
The settlement, amid the growing national debate about American policing, is expected to be announced early this week, the official said. It comes just days after a judge acquitted a Cleveland police officer for his role in the fatal shooting of two unarmed people in a car in 2012 when officers thought the sound of the car backfiring was gunshots.
The Justice Department in December issued a scathing report that accused the Cleveland Police Department of illegally using sometimes deadly force against citizens. The Justice Department civil rights division found that the Cleveland police engaged in a “pattern or practice” of unnecessary force — including shooting residents, striking them in the head and spraying them with chemicals.
In one incident, an officer used a stun gun on “a suicidal, deaf man who committed no crime, posed minimal risk to officers and may not have understood officers’ commands.” The police were also accused of repeatedly punching in the face a handcuffed 13-year-old boy who had been arrested for shoplifting.
The Cleveland report was released the month after a 12-year-old African American boy, Tamir Rice, was fatally shot by a white Cleveland police officer. Cleveland officers had responded to a 911 call that reported a person pointing a gun. It turned out to be a toy pistol.
A Justice Department spokeswoman would not comment on the settlement, which was first reported on the Web site of the New York Times.
When last year’s report about Cleveland was released, then-Attorney General Eric H. Holder Jr. traveled to the city to announce the findings and said the Justice Department and the city had agreed to establish an independent monitor who would oversee police reforms. The changes will include better training and better supervision of officers, Holder said.
In the past five years, the Justice Department’s civil rights division has opened more than 20 investigations of police departments across the country, more than twice as many as were opened in the previous five. The department has entered into 15 agreements with law enforcement agencies, including consent decrees with nine of them. They include the New Orleans and Albuquerque police departments.
The Cleveland settlement will be the first under the new attorney general, Loretta E. Lynch.
Justice Department officials would not provide any details of the Cleveland settlement. But other cases have required an independent monitor and significant changes in training and policies.
Since April 27, when Lynch was sworn in as the first African American woman to serve as the nation’s top law enforcement official, she has been immersed in the debate on policing tactics. Her first meeting with President Obama was to discuss the violence in Baltimore after the funeral of 25-year-old Freddie Gray, who suffered a fatal spinal injury while in police custody. Six Baltimore police officers have been indicted in connection with Gray’s death.
Lynch’s first official trip was to Baltimore to meet with the mayor, law enforcement officials and community leaders. She also met with Gray’s family and spoke with an officer who was injured in the violence.
At her first news conference, on May 8, Lynch announced that the Justice Department had opened a broad “pattern or practice” investigation into the Baltimore Police Department to determine whether officers have committed systemic constitutional violations.
The investigation is separate from the Justice Department’s criminal civil rights probe into the death of Gray.
Similarly, the settlement with the city of Cleveland is separate from the Justice Department’s investigation into the conduct of Cleveland police officer Michael Brelo.
On Saturday, a judge found Brelo, a 31-year-old white officer, not guilty of two counts of felony manslaughter in the deaths of African Americans Timothy Russell, 43, and Malissa Williams, 30.
Hours of protests ensued in downtown Cleveland, and the Justice Department released a statement saying that the Cleveland U.S. attorney’s office, the FBI and the Justice Department’s civil rights division were all still investigating the case.
Russell and Williams were killed in November after they led 62 police vehicles on a chase across Cleveland. When Russell’s car finally stopped, 13 officers opened fire and shot at least 137 rounds into the vehicle. Brelo was accused of being the only one who continued to shoot after any possible threat was contained. Prosecutors said he climbed onto the hood of the car and shot 15 rounds into the windshield, striking both Russell and Williams.
“We will continue our assessment, review all available legal options and will collaboratively determine what, if any, additional steps are available and appropriate given the requirements and limitations of the applicable laws in the federal judicial system,” said the statement from several officials, including Vanita Gupta, head of the Justice Department’s civil rights division.
As with the Ferguson, Mo., civil rights investigation into the August death of Michael Brown, an unarmed black 18-year-old who was shot and killed by Officer Darren Wilson, the Justice Department faces a high bar in bringing federal civil rights charges. Prosecutors would have to prove beyond a reasonable doubt that Brelo intended to violate the constitutional rights of Russell and Williams.
When Holder released the December report about the “unreasonable and unnecessary” use of force by the Cleveland police, he said he was hopeful that “meaningful change” was possible in the police department.
“Accountability and legitimacy are essential for communities to trust their police departments and for there to be genuine collaboration between police and the citizens they serve,” Holder said.
By: Sari Horwitz, The Washington Post, May 25, 2015
“Kansas Has Gone Full Tea Party”: Kansas’ Experiment In Concentrated Conservatism Keeps Getting Grimmer
Kansas is in the midst of a grim experiment putting crackpot supply-side economic theories into practice. While these economic anti-reforms will have devastating results for poor people in the state, in other respects Republican Gov. Sam Brownback and his legislative allies have made the government more intrusive into the private lives of the state’s citizens. April has provided some particularly egregious examples of this disastrous turn.
Kansas has been a Republican state for a long time. Since 1936, the only time the state has given its electoral votes to a Democratic candidate was to Lyndon Johnson in the massive landslide of 1964. Despite this, Kansas has historically not been a far-right state. Prominent Kansas Republicans have generally been moderates, like Bob Dole and Nancy Kassebaum. Kathleen Sebelius, President Obama’s former secretary of health and human services, was the state’s Democratic governor as recently as 2009.
But since the election of Brownback, Kansas has gone full Tea Party. Kansas Republicans have enacted massive upper-class tax cuts, with the idea that they would produce such an explosion of economic growth that the state would actually gain revenues. This makes no sense in theory and has been a catastrophe in practice. Revenues have cratered, while economic growth lags behind neighboring states. Spending on the poor has decreased, while the tax burden on the poor has increased. Needless to say, Kansas has rejected the Medicaid expansion offered by the Affordable Care Act, denying access to health care for many poor Kansans.
Kansas Republicans certainly have no intention of taking responsibility for this disaster, which means a search for scapegoats. The targets should not be surprising: poor people, women, and gay people.
Earlier this month, Brownback signed a bill that, among other things, prevents welfare recipients from spending government-provided funds on things poor people do not spend their money on, such as cruise ships. As Emily Badger of The Washington Post observes, this reflects a trend in Republican-governed states of placing burdens and restrictions on poor people that do not apply to any other recipients of government benefits — and for no good reason.
The demeaning of the poor doesn’t end there. Recipients of funds from the Temporary Assistance to Needy Families program will have their daily withdrawals, using the provided ATM cards, limited to $25 a day, not only creating needless inconvenience, but effectively transferring money from the poorest citizens in the state to banks in the forms of additional fees.
Brownback rose to prominence as more of a social conservative than a fiscal conservative. So it’s not surprising that Kansas is placing irrational legal burdens on women as well. Kansas passed a bill banning dilation and evacuation abortions (under the junk science name “dismemberment abortions.”) The procedure is safe — so there is no health-related justification for banning it — and is the most common one used for second-trimester abortions, which women have a constitutional right to obtain.
Even worse, the ban does not contain exceptions for rape, incest, or most threats to a woman’s health. The law puts women’s health at risk by interfering with the judgment of doctors in order to punish women for exercising their constitutional rights in a way Kansas legislators disapprove of.
Brownback’s attacks on basic justice and equality don’t end there. In 2007, Sebelius issued an order banning discrimination against LGBT state employees. Earlier this year, Brownback rescinded the order, creating a new standard under which state employees could be fired simply because of their sexual orientation. Brownback defended the order using the traditionally disingenuous “special rights” language so often employed by those who favor legal protection for bigotry: “This Executive Order ensures that state employees enjoy the same civil rights as all Kansans without creating additional ‘protected classes’ as the previous order did.”
This argument would make sense — if you think that gay and straight people are equally likely to be discriminated against because of their sexual orientation. In the actually existing world, Brownback’s measure does not guarantee civil rights to all Kansans, opening the door for discrimination against gays and lesbians based on their sexual orientation.
Under Brownback, Kansas has offered a concentrated form of what most national Republicans claim to want. Tax cuts for the wealthy, tax increases and reduced benefits for the poor, arbitrary interference with the reproductive freedom of women, and increased discrimination against gays and lesbians. Voters next November should ask themselves whether they want this ghastly agenda to be repeated on a national scale.
Editor’s note: A previous version of this article mistakenly asserted that Kansas recently banned dilation and extraction abortions, but these were already illegal.
By: Scott Lemieux, The Week, April 24, 2015
“Rand Paul Consistently Defends Discrimination”: And Opposes The Government’s Right To Protect People From Discrimination
In the past, when Senator Rand Paul has been asked about enforcement of the Civil Rights Act of 1964 or other civil rights bills, he’s fallen back on the idea that you can better assure, for example, desegregated lunch counters by denying that particular Woolworth’s your business than by enacting federal legislation. When it came to housing, he said this, “Decisions concerning private property and associations should in a free society be unhindered. As a consequence, some associations will discriminate.”
Using this rough logic, if you can call it that, people who seek to order lunch or buy a home are behaving a certain way. And people who deny patrons a meal or won’t sell them a house are also behaving a certain way. And people should be free to behave pretty much however they want. In a free society, some people will exhibit racist behaviors: “some associations will discriminate.” Other people will try to do certain things and find that they can’t accomplish them because of their race, gender, religion, or sexual orientation. But no one told them that they couldn’t try.
For Rand Paul, the best way to change someone’s behaviors is to behave some way yourself. Like Indiana Governor Mike Pence, who said he wouldn’t continue to eat at a restaurant that turned away gay couples, Rand Paul thinks that businesses can best be persuaded to serve all people by the threat of lost business from customers whose patronage they actually want.
So, pretty much across the board, Senator Rand Paul thinks about civil rights as a matter of how people behave rather than a matter well-suited for legal solutions or protections.
But, then, look at this:
“I don’t think I’ve ever used the word gay rights, because I don’t really believe in rights based on your behavior.” –Senator Rand Paul
The logic of that statement appears straightforward. Being black or a woman, how old you are, are not things you can change through behavioral modifications, but who you are physically attracted to is purely a matter of choice. Someone can deny you a sandwich or a wedding cake based on their perception of your sexual orientation because the presumption is that you behave a certain way, not that you are a certain way.
So, suddenly, the gay couple seeking dinner is distinct from the black gentleman seeking lunch, even though their behaviors are nearly identical.
If you’re seeking some consistency here, it’s not that hard to find. Rand Paul, in all circumstances, defends the right to discriminate and opposes the government’s right to protect people from discrimination.
He’ll shift around how he justifies these positions, but the positions remain the same.
There’s a certain appeal to the Paulista philosophy that has the potential to attract a lot of people in the younger generations, but here we see him running afoul of a core value of our youth, which is that gays should not be denied the same rights as everyone else.
It’s not just that he seems to be insisting that sexual orientation is a choice, but also that he wants to defend people’s right to behave any way they want, even in an openly discriminatory manner, unless their behavior involves sex.
This is not a winning position and it will hurt Paul badly with the very generations that might otherwise flock to his campaign.
By: Martin Longman, Ten Miles Square, The Washington Monthly, [Cross-posted at Progress Pond], March 31, 2015
“Let’s Not Worry About Civil Rights In This Country”: Tom Cotton; Opponents Of Anti-Gay Law Need ‘Perspective’
I’m starting to long for the good old days, just weeks ago, when nobody had to think about Senator Tom Cotton, Republican of Arkansas.
Mr. Cotton, you will remember, was the primary author of the constitutionally outrageous and substantively mindless letter from Republican senators telling the leaders of Iran that they shouldn’t negotiate on nuclear weapons with President Obama. Now, he is adding his voice to those who are telling gay Americans that they shouldn’t get too pushy about their civil rights.
Mr. Cotton was asked by Wolf Blitzer on CNN yesterday about a law passed by legislators in his home state that is clearly intended to permit businesses and individuals to discriminate against people on the basis of their sexual orientation.
“In Arkansas,” he began, “we believe in religious freedom.” Mr. Blitzer, to his credit, pointed out that “everybody believes in religious freedom.”
Mr. Cotton countered with the irrelevant fact that President Clinton signed a federal law on which the current assault on gay rights is based. (The comically named Religious Freedom Restoration Act). That’s true. He also signed the Defense of Marriage Act, an outrageous infringement on the constitutional rights of gay, lesbian, bisexual, and transgender Americans. And he signed the bill that turned military policy against gays and lesbians serving openly in the armed forces into the moronic law known as “don’t ask, don’t tell.”
So Mr. Clinton was lousy on this civil rights issue. What’s Mr. Cotton’s point?
“It’s important that we have a sense of perspective about our priorities,” he said. “In Iran they hang you for the crime of being gay.”
So, let’s not worry about civil rights in this country, which Mr. Cotton and other lawmakers can actually protect, but rather in Iran. Why Iran?
I’m so glad you asked — because Mr. Cotton wanted to turn the conversation to his current propaganda campaign about Iran. “We should focus on the most important priorities facing our country, right now,” he said, adding that the prospect of a “nuclear-armed Iran” is one such priority.
So why is Mr. Cotton trying so hard to scuttle the talks in Switzerland that could actually lead to limits on Iran’s nuclear programs?
By: Andrew Rosenthal, Taking Note, The Editorial Page, Editor’s Blog, The New York Times, April 2, 2015