“Affirmative Action”: An Imperfect But Essential Way To Deal With A Persistently Unfair And Unequal Landscape
In all the well-justified furor over the Supreme Court’s review of voting rights and marriage equality issues, it’s easy to forget that when this term’s opinion roll out, the odds are high that the Court will strike a major blow against affirmative action programs for college admissions.
We are all familiar with the ideological dimensions of the affirmative action issues. But we have an original piece up on the website today, from Elias Vlanton, a distinguished public-school teacher in Maryland, that cuts through the hype and compellingly addresses the human element of affirmative action, and why it is an imperfect but essential way to deal with a persistently unfair and unequal landscape for college admissions. Here’s a sample:
Tramon, Morganne, Arnetta, and Anngie were all students of mine in Advanced Placement classes at Maryland’s Bladensburg High School . Bladensburg is neither a private school, nor a “we skim the cream of the crop” magnet public school. It is in one of Washington, DCs poorest suburbs, where family income ranks in the bottom quarter of the state, and a school where less than ten percent of any graduating class makes it through college.
This semester, while Morganne proudly posts videos of her next dissection and Anngie writes another long essay in French, the Supreme Court, in deciding Fisher v. University of Texas at Austin, will determine whether my students deserve to attend the colleges where they are being so successful. In addition to attending a low-performing high school, my kids are all African American and Latino. They were accepted into their elite colleges as part of those schools’ commitment to the mission of promoting diversity in higher education, the very diversity that affirmative action attempts to encourage—and that Fisher seeks to declare unconstitutional….
My four freshmen—my odds-beaters—had SAT scores hundreds of points below the average of the students admitted to their colleges. They took far fewer AP courses, and participated in fewer extra-curricular activities (since our school offers few activities other than sports). What set them apart was their class rank: they were all in the top two percent of the senior class, a function of their love of learning, their desire to do well, and their hard work to rise to the top. Despite the claim that, on the merits of their applications, they were “unqualified” for admission to the schools where they are getting As and Bs, all will graduate with honors from schools that are among the best in the country—joining my former students who graduated from Bowdoin College, Johns Hopkins University, Georgetown University, and Stanford University .
So Chief Justice Roberts, in the end, we agree: Discrimination is discriminatory. That is why colleges must be allowed to consider the social and economic circumstances of my students when making admissions decisions—as Bryn Mawr, Cornell, Dartmouth, and Middlebury have done. My kids don’t want a leg up; but neither do they deserve a kick in the chest.
Vlanton’s passionate essay is a reminder that while so many agonize over the “injustice” of affirmative action, our country is doing a terrible job (as Kevin Carey documented in his article in the January/February issue of the Washington Monthly) of providing anything like equal opportunity in higher education.
Yes, affirmative action programs are flawed, but not half a flawed as the “color-blind” system that will be left in place if affirmative action is discarded and something more systemic is not put in its place.
By: Ed Kilgore, Contributing Writer, Washington Monthly Political Animal, March 29, 2013
“Political Whiplash”: On Gay Marriage, GOP Is Damned If the Court Does, And Damned If It Doesn’t
However the Supreme Court rules on the question of gay marriage, Prop 8, and the Defense of Marriage Act (or DOMA, as it’s widely known), the rapid shifts in how the country views same sex marriages is giving the GOP a case of political whiplash, as some leaders try to go with the flow and others scream “stop.”
On the one hand you have Karl Rove envisioning a pro-gay-marriage Republican presidential nominee in three years; on the other, you have former Arkansas governor Mike Huckabee predicting a cataclysmic split in the Republican Party if that happens. If Republicans do flip on gay marriage, Huckabee said last week, “they’re going to lose a large part of their base because evangelicals will take a walk.”
So the immediate question facing conservatives is what outcome they should be quietly rooting for when the Supreme Court hands down its decisions. I think Hot Air’s Allahpundit has it about right:
I’ve read a bunch of pieces lately claiming that SCOTUS striking down gay-marriage laws will actually be a gift to GOP politicians because it’ll take this issue off the table. Rubio and Paul and Jindal et al. won’t have to squirm over whether to endorse SSM, back a federalist approach to the issue, or oppose it on the merits. They can just shrug and say “The Court was wrong but whaddaya gonna do?” and move on to other business. Take it from Huckabee: That won’t happen. Abortion’s technically been “off the table” for 40 years and yet it’s still an absolute litmus test for any potential GOP nominee (and any potential Democratic nominee too).
He goes on to argue that the best case for Republicans is for the court to hold up Prop 8, allowing pols to oppose it but say it should be up to the states. (It’s a rule of politics that in most cases when federal candidates insist a tough issue be left up to the states, they’re trying to avoid pissing off an important constituency.) Note that the “best outcome” is still pretty bad for the GOP: Young voters, who overwhelmingly favor gay marriage, and—oh yeah—voted in greater numbers in 2012 than seniors, will see through a pol trying to play both sides of the issue.
It’s also worth noting here that the Roe parallel works, but only to a point. As Media Matters’s Lara Schwartz wrote yesterday, the notion that the 40-year-old decision polarized the issue is nonsensical. As Yale Law School’s Linda Greenhouse (who used to cover the court for the New York Times) and Reva Siegel relate, “To the question of whether one can avoid conflict over such issues by avoiding courts, the answer from an accurate pre-history of Roe v. Wade is: no. The abortion conflict escalated before the Supreme Court ruled.”
By: Robert Schlesinger, U. S. News and World Report, March 26, 2013
“Arizona Versus The Right To Vote”: A Law Whose Sole Purpose Is To Disenfranchise Poor And Minority Voters
As part of a broader anti-immigration initiative in 2004, Arizona passed Proposition 200, a law requiring voters to provide proof of citizenship before registering to vote. One person affected by this law was Jesus Gonzalez, a custodian and naturalized American citizen who twice had his registration rejected by the state. Arizona couldn’t verify his naturalization number and erroneously identified his driver’s license as belonging to a non-citizen. Gonzalez’s case has reached the Supreme Court, which heard oral arguments about the constitutionality of Proposition 200 on Monday. The Court should rule that Arizona’s burdensome requirements are inconsistent with federal law and therefore illegal.
The Supreme Court has dealt with Republican legislators’ attempts to suppress voting before. In a highly dubious 2008 decision, the Supreme Court found that an Indiana statute—requiring a show of ID before hitting the ballot box—was not unconstitutional on its face, although it left open the possibility that the statute might be unconstitutional as applied. (The Indiana law was ultimately struck down by the Indiana Court of Appeals.) Because the Arizona law concerns voter registration, it is subject to another form of legal challenge.
In 1993, Congress passed the National Mail Voter Registration (or “Motor Voter”) Act, which among other things created a federal form that would streamline the registration requirements. The law mandates that “each State shall accept and use” the federal form. As the story of Jesus Gonzalez highlights, Prop 200 placed an additional set of requirements on Arizonans before they are able to register. The key question presented by the challenge to Prop 200 is whether the Arizona requirements are inconsistent with federal law. If so, because of the Supremacy Clause of Article VI of the Constitution, the Arizona law is “pre-empted” by the Motor Voter Act and is invalid.
The case for pre-emption in this case is clear and persuasive. The statute unequivocally requires states to use the federal form. To permit states to add additional burdens on registration is inconsistent with the text and purpose of the statute, which was designed to create a streamlined and uniform process. Determining qualifications for people voting for federal offices is a clear federal power. Justice Kagan observed at the oral argument that the Arizona law “essentially creates a new set of requirements and a new form.” Prop 200, therefore, is at war with the federal statute whose purpose was to create a clear process for registration. As the Obama administration noted in its amicus brief, to uphold the Arizona law “would thwart the central purpose of [Motor Voter]: to streamline the process of registering to vote for federal office.”
Justice Scalia, while somewhat more restrained than in the previous oral argument dealing with an Arizona law that conflicted with federal authority, was typically candid about his political support for the objectives of the Arizona vote suppression initiative. Leaving little doubt about his sympathy for the Arizona law, he mocked the federal registration requirements, which make it a criminal offense to misrepresent one’s eligibility to vote. “So it’s under oath. Big deal.” Scalia snorted. “If you’re willing to violate the voting laws, I suppose you’re willing to violate the perjury laws.”
Scalia’s arguments are problematic for two reasons. First, whether or not Scalia thinks the federal requirements are sufficient is beside the point—Article I Section IV gives Congress the power to “make or alter” state voting regulations, so the judgment about what requirements are sufficient rests with Congress, not with Arizona or the Supreme Court. And even on its own terms his argument that the threat of a perjury conviction represents an insufficient deterrent is unpersuasive. Arizona provides no evidence that this kind of voter fraud is a problem. The problems of individual voter fraud the bill allegedly addresses are essentially non-existent, and even in theory it is impossible for individual fraudulent voters to alter the course of an election. And, in particular, it is extremely implausible to think that the illegal immigrants the bill targets are likely to risk attracting the attention of federal authorities by committing perjury on a form submitted to the federal government. It is hard to avoid the conclusion of one Arizona legislator that “was never intended to combat voter fraud. It was intended to keep minorities from voting.”
Scalia also mocked the idea that the additional Arizona requirements represented a substantial burden. “Enclosing your driver’s license number is that immense barrier?” he sarcastically asked Patricia Millet, the attorney representing the challengers. But the data proves Scalia is dead wrong to dismiss the extent of vote suppression caused by the initiative. “The district court,” Millet pointed out, “found that 31,550 people were rejected from voting because of Proposition 200.” This is a serious additional burden which shows that the inconsistency with federal law is not merely formal. The vote fraud Scalia and other Republicans are purportedly concerned with is imaginary, but the burdens created by the Arizona law are quite real.
Arizona’s latest attempt to interfere with federal law is particularly problematic given that it concerns the right to vote. Voting is a field in which greater uniformity is a particular virtue. The fact that standards for registration and voting vary not only between states but within states represents “local control” fetishism at its most inane. State and local administration of voting isn’t merely inefficient; the purpose and effect of this decentralization has been to disenfranchise poor and/or minority voters. In this case, Congress appropriately acted to create more uniform and streamlined standards for vote registration. Arizona should not be allowed to contradict federal law and invite other states to similarly disenfranchise voters.
By: Scott Lemieux, The American Prospect, March 19, 2013
“Gideon’s’ Promise Still Unfulfilled”: It Turns Out Poor People’s Justice Is To Justice As Monkey Business Is To Business
“Make me wanna holler, way they do my life.” — Marvin Gaye, “Inner City Blues”
Karen Houppert has written a book of nightmares.
Houppert, a veteran reporter for, among others, The Washington Post and The New York Times, is the author of Chasing Gideon: the Elusive Quest for Poor People’s Justice, which comes out this week coincident with the anniversary of a legal milestone. It was 50 years ago Monday that the case of Gideon v. Wainwright was decided.
Clarence Earl Gideon, 51, was arrested in Panama City, FL, in 1961 for burglary. When his case came to trial, Gideon, who was indigent, asked the court to provide him an attorney. The court refused and Gideon, a four-time loser and eighth-grade dropout, had to represent himself. He was found guilty and given five years.
But though he was no scholar, Gideon knew something was wrong with this picture. He wrote a letter — in pencil and with a dropout’s creative spelling and grammar — to the Supreme Court, which agreed to hear the case and appointed counsel to represent him. The decision it handed down affirmed the Sixth Amendment promise that every criminal defendant — even an indigent one — shall have “the Assistance of Counsel for his defense.”
It is a right we take for granted now, part of the boilerplate every TV cop rattles off to every suspect. “If you desire and cannot afford an attorney…” and etcetera. It is hard to imagine that such was not always the case. Perhaps you’re grateful to live in a country where even the humble poor are ensured of quality representation when they stand before the bar of justice.
Except that you don’t. Hence, the nightmare.
It turns out there is a gulf between the 1963 promise and the 2013 reality. It turns out one lawyer can be expected to try 400, 500, 600 cases a year. It turns out public defenders are so underfunded and overwhelmed it is not uncommon for a defendant to meet his attorney for the first time in court. It turns out the situation is so dire that in at least one jurisdiction a judge pressed tax attorneys and property lawyers into service in criminal court. It turns out poor people’s justice is to justice as monkey business is to business.
Ask Clarence Jones, who spent over a year in prison just waiting for an attorney — and was still there as the book went to press — on a charge of burglary.
Ask Carol Dee Huneke, a novice lawyer with no experience in criminal law who was hired as a public defender on a Thursday and assigned a case that began Monday. She had never even seen a trial before.
And ask Greg Bright, who spent 27 years in prison on a murder charge he might have easily beaten, writes Houppert, had his court-appointed attorney done even minimal investigation on his behalf. As a later attorney discovered, the single witness the state’s case hinged upon was a mentally-ill heroin addict with a history of hallucinations who physically could not have seen what she claimed she did.
Twenty-seven years. “Make me wanna holler,” indeed.
What is reflected here is not simply incompetence, but disdain; contempt for the rights, lives and humanity of the less fortunate. And perhaps your instinct is to look away, secure in the naive delusion that no one gets arrested unless they’ve “done something.” Truth is, it happens every day.
Taken alongside the failed War on Drugs that has devastated African America, this treatment of indigent defendants depicts a “justice” system that too often produces the exact opposite of what its name suggests, particularly for its most vulnerable constituents. That’s a sad state of affairs 50 years after what was once considered a milestone triumph for the poor.
And it should — we should — send a clear and unambiguous message to lawmakers. The system is broken. Fix it.
By: Leonard Pitts, Jr., The National Memo, March 18, 2013
“SCOTUS Naive On Super PACs”: Insulated From The Machinations Of Political Campaigns And Campaign Finance Realities
When the Supreme Court paved the way for unlimited independent spending in elections with its Citizens United decision, the justices assumed a key protection to prevent corruption: The expenditures would be truly independent, so it would make it impossible for a candidate and a donor to engage in a quid pro quo. In theory, this makes sense. If there’s no coordination between the independent groups like super PACs and candidates — and coordination remains technically illegal — then donors will fund independent expenditures purely out of their own political beliefs and not in the expectation of getting anything in return.
In practice, however, this distinction completely breaks down because groups are often established to fund a single candidate, as opposed to a broad cause, and there are plenty of ways to communicate intentions or expectations without violating narrow coordination laws.
A new report from Public Citizens shows just how absurd it is to assume that outside groups are truly independent. Of all the major super PACs and 501(c) nonprofit groups that engaged in the 2012 election, about half backed a single candidate exclusively, effectively making themselves auxiliary organs of the candidate’s campaign, the report found. Generally, these groups were “founded, funded or managed by friends, family members, or recent campaign aides of the candidate they supported,” the report adds.
The most obvious examples are Priorities USA, the Obama super PAC founded by a former White House aide, and Restore Our Future, the Romney super PAC founded by the general counsel of Romney’s 2008 presidential campaign. These groups allowed wealthy donors who had already maxed out their donations to either candidate’s official committee to give unlimited additional funds to the auxiliary super PAC to support their candidates.
Meanwhile, another 30 percent of spending came from groups designed specifically to aid the parties. For instance, the Democratic-affiliated House Majority PAC acted as an auxiliary to the Democratic Congressional Campaign Committee. All of this is aboveboard.
In total, candidate-specific and party-allied groups accounted for more than 65 percent of all spending by outside groups in the 2012 elections, including seven of the top eight groups, according to the report. Among super PACs alone, that percentage climbs to 74.4 percent.
“The emergence of entities using unlimited contributions to aid candidates and parties with which they have close relationships threatens to gut the anticorruption policy underlying campaign finance laws, which the court claimed it did not intend to weaken,” Taylor Lincoln, the research director of Public Citizen’s Congress Watch, and his co-authors wrote.
In its Citizens United decision, the Court approvingly quoted from an earlier decision, Buckley v. Valeo, observing that in independent expenditures, “The absence of prearrangement and coordination of an expenditure with the candidate or his agent not only undermines the value of the expenditure to the candidate, but also alleviates the danger that expenditures will be given.”
Clearly, if independent expenditures de facto operate as direct contributions, the distinction is meaningless and the supposed protection of independence is destroyed. This was obvious to almost everyone before the decision — except for the justices, apparently. They are insulated from the machinations of political campaigns and campaign finance realities, which is usually a good thing, but it allowed them to base a major overhaul of the nation’s campaign finance laws on a flawed and naive understanding of the world.
None of this is particularly surprising to anyone even vaguely aware of the campaign finance dynamics of the 2012 cycle, but the report adds critical numbers and details.
By: Alex Seitz-Wald, Salon, March 5, 2013
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