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Category: Race

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March Madness, part 2

A propos of some of the comments made in response to my earlier March Madness post, readers may be interested in the recent Graduation Rate Study of NCAA Div. 1 Tournament teams, authored by Dr. Richard Lapchick of the Institute for Diversity and Ethics in Sport.

In a nutshell, athlete graduation rates aren’t very good at some of the schools (but not all) sending teams to March Madness. Two notable high seeds posted scores that look pretty bad. Number 1 seed Ohio State graduated only 10% of its players in a 6 year span, and the University of Oregon a whopping 0%. That isn’t a typo. It’s “zero.” At the other end of the scale, Holy Cross (86%) and Butler (82%) led the honor role. Lapchick also lamented a significant disparity in the graduation rates of whites and African-Americans.

Granted, graduation rates don’t tell you everything about a program’s commitment to the student-athlete, but it’s striking how low some of the graduation rates are. Hmmm….now maybe this will lead to a new way to fill out those brackets….

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Protecting The Rights Of African-American Majorities

Jack Chin offers up an interesting new take on Jim Crow, arguing that the 14th and 15th Amendments were adopted at a time of African-American majority rule. From the abstract:

When it mattered, when the Fourteenth and Fifteenth Amendments were enacted and for decades after, African Americans were a majority or controlling plurality in the states where most lived. African American-backed majoritarian governments controlled the South after the Civil War; while in power, they enacted strong civil rights laws and created a public education system. These policies were reversed, and segregation imposed, not because African Americans were a minority, destined to lose in the majoritarian political process, but rather through elimination of democratic politics and imposition of minority rule.

He goes on to raise the spectre of a “majoritarian difficulty.” The piece is worth a look.

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Racism in Sports discussed at blackprof

I just noticed an interesting post by Chris Bracey over at blackprof: “(More) Racism in Sports.”

Here’s the beginning: “What has gotten into people these days? A number of folks here and elsewhere have commented upon what appears to be an uptick in racial callousness among Republican candidates for public office. But it’s also worth noting that, within the past couple of weeks, we have witnessed a similar uptick in racially insensitive conduct in the realm of athletics. Is racial callousness back en vogue or what?”

You can link to the whole piece here.

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Xoxohth, Civility, and Prestige: Part I

xoxo.jpgXoxohth claims to be the “most prestigious law school admissions discussion board in the world.” According to its marketing materials, it controls 70% of the online “market” for “higher education and career discussion”, with around 6000 posts a day on various topics. One of its founders reports that the site receives 350,000 to 500,000 unique visitors every month, making it significantly more trafficked than any other law blog, with the exception of Volokh. (By comparison, we get 60-70K unique hits a month.)

But.

Among many legal scholars and administrators, there is a shared impression that discussion at XO is overrun by sexist, racist, anti-semitic, and just plain foolish talk. The well-known Leiter-XO engagement (see here) is just one example, but it isn’t alone. Based on correspondence, I have learned that multiple law school deans and assistant deans have dealt with the Board when trying to mediate online disputes involving their school’s students. XO has been threatened with legal action (at least twice) involving alleged defamation on the board, although the site is not, to my knowledge, involved in pending litigation. Some wish the entire XO discussion board was a hoax (although others think it may be providing a public service) and some, well, some are mad as hell:

If this is what other lawyers are going to be like, I want out. They make us all look like utter a[*******]. People should avoid law school because it sucks, not because of these jerks.

I’ve written a bit about the Board before, in the context of a US News citation dispute, and since then, I’ve been in contact with one of the Board’s administrators, Anthony Ciolli, a 3L at Penn Law. I think the board is pretty fascinating, primarily because its anonymity enables, and its format records, discussions among rising lawyers that are frank and heterodox (in legal culture) with respect to race, gender relations, and professional development. It isn’t the only forum for such discussions, but it may be the largest.

In subsequent posts, I will be exploring three basic questions about XO.

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Pop quiz.

Name the high-profile mass-media immigration reform opponent who, after speaking of her own “light mocha brown skin,” said this:

Never could I have imagined growing up that I would see the day when brown- and yellow-skinned people would stand on the side of pink-skinned bigots railing against the problem of too many of “them.”

Answer (as if you needed it) below the fold.

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Grutter Redo, Part 3

Recall that in a earlier post, I wrote about Judge Kozinski’s concurring opinion in the 9th Circuit ruling which upheld the Seattle school choice plan. His view was that rational basis review was preferable and strict scrutiny inappropriate because while the “program does use race as a criterion, [it does so] only to ensure that the population of each public school roughly reflects the city’s racial composition.” Kozinski’s position raises a number of interesting questions — at least one of which I alluded to before — the potential appeal of his approach to Justice Kennedy. But now I want to focus on the normative question which lies at the heart of Kozinski’s approach.

Let us set aside for a moment the Court’s view, which it has repeatedly reaffirmed in cases like Adarand, Grutter and Johnson v. California, that strict scrutiny review must apply to all racial classifications. The question I want to pose is this: is there a meaningful distinction between the racial preference that was at issue in Grutter, and the racial classification scheme that is challenged in the K-12 cases the Court has recently accepted. To assist you in answering this question, I’ll provide a quick review of the use of race in the two situations.

Grutter concerned the University of Michigan Law School’s admissions policy which sought to enroll a “critical mass of underrepresented minority students.” In short, while the policy did not set aside a fixed number of seats in the incoming class for minority group members, it did consider race or ethnicity “flexibly as a ‘plus’ factor in the context of individualized consideration of each and every applicant.” Even though race was used flexibly (no bonus points or set asides as was the case in Bakke), there is little doubt that with respect to some candidates, race was outcome determinative. That is, race was outcome determinative for some white candidates in the sense that minority group members with identical qualifications would have been admitted to the Law School while they were not. (We can address the standing difficulties raised under this scenario at a different time.)

Contrast the Law School’s admissions plan in Grutter with the Seattle school choice plan. Under the Seattle plan, race was used as a tiebreaker. In the first instance, students are given their choice of schools. It is only when a school becomes oversubscribed and racially imbalanced that the racial tiebreaker comes into play, and even then it only operates on the margins; effecting only schools where the “student body differs by more than 15 percent from the racial make up of the students of the Seattle public schools as a whole.” Finally, we should note that under the Seattle plan, no student is denied an opportunity to attend a public school in the school district; all students are placed in some public school within the district. Thus, Judge Kozinski’s view of the Seattle plan was, “that a student is denied a school of his choice may be disappointing, but it carries no racial stigma and says nothing at all about that individual’s aptitude or ability.”

Do you agree? Are the Grutter and Seattle plans distinguishable? Is it really true that one plan attaches “stigma” to a frustrated applicant while the other inflicts no such stigmatic harm to the students? Isn’t one argument that the stigmatic impact of each plan is a matter of degree. If that’s the case, then perhaps Kozinski is right after all that a heightened form of rational basis review is superior because it would allow the Court to take all of the relevant facts into consideration. Unless you think strict scrutiny, in the race context at least, already performs this function.

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Grutter redo, part 2

The Court’s acceptance of the two K-12 cases raises so many interesting questions that it is difficult to know where to start. For this post, I’ll quickly recap the facts and ask a question about Justice Kennedy’s potentially pivotal role in deciding the cases. Later posts will address other issues raised by the cases.

Both cases deal with “voluntary” desegregation plans where there is no court order otherwise requiring desegregation. In both cases, the school districts sought to break the link between residential and school segregation. Given the racially segregated nature of the neighborhoods within the school districts, an uncontrolled school choice plan would have likely replicated such segregation within the schools. Instead, the districts sought to both preserve neighborhood school choice and produce more integrated public schools. As a general matter, one school district used race as a tiebreaker. In this district, students were given their choice of schools, race notwithstanding; race came into play as a tiebreaker for oversubscribed schools that were racially imbalanced. In the other district, the school board established black student enrollment ranges. Administrators then used race as one factor among many (residence, school capacity, popularity, student’s choice, etc.) to achieve enrollment within those ranges.

Both the 6th and 9th Circuits upheld these plans, applying the Grutter “student body diversity” rationale to the K-12 context. In this post, I want to focus on just one question: Justice Kennedy’s role. While it is true that two new justices have joined the Court since Grutter, I think it highly likely that both Roberts and Alito will vote to strike these plans down (we can debate exactly how they will do this at a later date). I believe Kennedy’s vote will be pivotal. While it is true that Kennedy dissented in Grutter, essentially arguing that the Law School’s affirmative action plan was not narrowly tailored under the strict scrutiny test, I believe there may be a way to reach him here. But how? Enter Judge Kozinski.

In the 9th Circuit opinion, Judge Kozinski wrote an interesting concurrence. In it, he argued that a heightened form of “rational basis” review ought to apply to the case. His theory was that the Seattle plan wasn’t really an “affirmative action” plan given that it concerned admission to K-12 education. According to Kozinski, it had none of the “defects” associated with other racial preference schemes because “there is no competition between the races, and no race is given a preference over another. That a student is denied the school of his choice may be disappointing, but it carries no racial stigma and says nothing at all about the individual’s aptitude or ability.” Thus, from Kozinski’s perspective, strict scrutiny need not apply — and instead a less deferential form of rational basis review would do. Given Kennedy’s position in Romer and Lawrence, will Kennedy be persuaded by Kozinski’s argument? If so, it would allow him to uphold the plans and to distinguish his position in Grutter, where arguably, strict scrutiny had to apply.

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Fourth Circuit Weighs In On Racist Talk In The Workplace

Full Court Press has a good post on a recent Fourth Circuit decision, Jordan v. Alternative Resources Corp., in which a divided panel upheld the dismissal of a Title VII race discrimination suit. In particular, the plaintiff argued that he had been fired in retaliation for making a complaint to management about what he perceived as a racially hostile working environment. The post at Full Court Press offers many more details, but the core of the court’s holding was that the employee was “unreasonable” in believing that his co-worker’s comments created a hostile working environment.

What were these comments that no reasonable African-American man could possibly have seen creating a hostile work environment? While watching a news account of the arrest of the DC snipers, his co-worker exclaimed: “they should put those two black monkeys in a cage with black apes and let the apes fuck them.” That according to the dissent. The majority redacted the text a bit, so that the gentlememan only suggested that the apes “f–k” them. In the aftermath of this incident, the plaintiff was told by colleagues that this offending speaker had used similar language in the past.

Two thoughts. First, it was interesting to see the majority turn what was clearly family-unfriendly language into, well, family-barely-friendly text. Apparently, for the majority, the “fuck” aspect of this comment was most offensive. Calling African-Americans monkeys – and thereby calling upon a rich history of bigotry – was merely being accurate. (No doubt some will argue that the “fuck” was irrelevant to the claim here, since it was grounded on the monkey image. But that is clearly debatable, if only because the term amplified the speakers intensity of hate.) Judge King’s dissent was very aggressive in terms of word choice. FIrst, he restated the facts, including the word “fuck.” Then, when citing contrary authority, he explicitly noted in parentheticals that those cases involved the use of the term “nigger.” We all know that the mere act of uttering this word is powerful and controversial. His point, presumably, was that any assessment of whether such abusive language could be reasonably viewed as creating a hostile environment cannot occur when the majority is perfuming these statements. Racist language must be addressed squarely, because the mere softening of terminology in a recitation of facts serves to retell a false narrative, one that the plaintiff never experienced. (In some ways, the panel’s decision to obscure the actual language – characterizing it rather than providing a precise image – brings to mind Eugene Volokh’s argument that you can’t discuss the cartoons spoofing Mohammed without seeing the precise images that are under discussion.)

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