Archive | Racial Discrimination

Lawyers for Victims of WWII Internment of Japanese-Americans Urge Overruling of Korematsu

At SCOTUSblog, Lyle Denniston has an interesting post on an effort by lawyers who represented Fred Korematsu and other victims of the internment of Japanese-Americans during World War II to persuade the Obama administration to advocate the overruling of Korematsu v. United States, the notorious 1944 Supreme Court decision that upheld the forcible internment of over 100,000 Japanese-Americans during World War II [HT: GMU law student Rebecca Bucchieri]:

Lawyers who worked for years — ultimately successfully — to clear the names of U.S. citizens of Japanese ancestry who were convicted of violating government detention policy during World War II are trying to persuade the Obama administration to join in wiping off the books the Supreme Court rulings of that time, upholding those detentions. The most famous of those rulings – often reviled – was the 1944 decision in Korematsu v. United States.

The lawyers did so in a letter last week to U.S. Solicitor General Donald B. Verrilli, Jr., attempting to shape the government’s response to a new Supreme Court appeal that attacks the Korematsu decision. They want the government to formally repudiate that precedent, and tell the Court that it is no part of the justification today for detention of U.S. citizens during the war on terrorism.

The new case is Hedges v. Obama (docket 13-758), an attempt to revive a constitutional challenge to Congress’s recent support of presidential power to detain suspected terrorists….

While Congress was debating that measure, a controversy arose over how far it would go, if at all, to permit the detention without trial of U.S. citizens captured inside the U.S. In a compromise effort to resolve that dispute, Congress included a statement that now seems ambiguous about what was intended. In the Hedges case, the claim is that the statement can be

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NAACP Backs State Autonomy on Marijuana Policy

The NAACP recently passed a resolution backing a proposed federal law that would prohibit enforcement of federal laws banning marijuana in states that have imposed lesser penalties or have legalized marijuana entirely. The resolution cites the “misguided and misplaced policies” of the War on Drugs, which have resulted in “the disproportionate over-confinement of racial and ethnic minorities.”

In one sense, this is not a surprising move. The NAACP previously called for an end to the War on Drugs in 2011, for similar reasons. But it is somewhat unusual for the nation’s most prominent African-American civil rights organization to back state autonomy on an important policy issue. For many decades, most political liberals and most minorities associated “states’ rights” with the defense of racism and segregation.

The NAACP’s endorsement of state autonomy on this issue certainly does not mean that they necessarily support greater political decentralization generally. But it is of a piece with other recent moves towards a more positive view of federalism on the left, including Yale Law Professor Heather Gerken’s work on the subject. Gerken argues that, despite its historic association with racism, conditions have changed in ways that make federalism more beneficial to minorities today than it might have been in the past. In some of my own work (e.g. here and here), I have argued that federalism was not uniformly harmful to minorities in earlier periods in American history either. During some crucial time-frames, minorities might well have been worse off under a unitary national policy on racial issues than they were with federalism.

None of this proves that federalism is always good for minorities, either today or in the past. There clearly are times when federal government intervention is the best way to protect minorities from state or local oppression. But it [...]

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Former “Southern Avenger” Jack Hunter Resigns from Rand Paul’s Staff

Jack Hunter, the Rand Paul aide once known as the “Southern Avenger” has resigned from the senator’s staff in order to avoid being a “distraction.” Hunter has a history of pro-Confederate and borderline racist statements, though he has repudiated them in more recent years. In addition to creating a political problem for Rand Paul, the controversy over Hunter has also led to extensive discussion of libertarian attitudes towards the Civil War, including VC posts by Randy Barnett, David Bernstein, Jonathan Adler, and myself (here and here). I discussed the three major types of libertarian views on the War in this post last year.

Although only a relatively small minority of libertarians either sympathize with the Confederacy or believe that the world would have been better off with a Confederate victory in the war, it is important to properly address this dirty laundry within the movement, for reasons well expressed by Jacob Levy. A person who sympathizes with the Confederacy despite knowing its true record cannot be a libertarian in any meaningful sense, or a minimally decent human being. Libertarians and others who support it out of ignorance should take the time to study the relevant history, at least if they intend to make public statements on the subject.

It’s worth noting, however, that Hunter describes his neo-Confederate views as arising from conservatism rather than libertarianism, and says that he has become more racially and ethnically tolerant as he became “far more libertarian” in recent years:

“I’ve long been a conservative, and years ago, a much more politically incorrect (and campy) one,” Hunter said in an email. “But there’s a significant difference between being politically incorrect and racist. I’ve also become far more libertarian over the years, a philosophy that encourages a more tolerant worldview,

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Libertarianism, the Confederacy, and the Civil War Revisited

Revelations that Rand Paul aide Jack Hunter has a history of racist and pro-Confederate statements during his days as a radio shock jock have rekindled the longstanding debate over libertarian attitudes towards the Civil War. Hunter has repudiated many of his former statements and attitudes. But that hasn’t stopped the controversy from continuing.

This uproar raises two important issues: First, is there any possible justification for libertarian sympathy for the Confederacy? Second, how should the libertarian movement react to people with views like Hunter’s?

I. The Case Against the Confederacy.

I have written about the first point at length in the past. To briefly summarize, the Confederacy is indefensible because it was created for the purpose of perpetuating and extending the evil – and manifestly unlibertarian – institution of slavery. Don’t take my word for it. Take that of Confederate President Jefferson Davis, Vice President Alexander Stephens, and the southern states’ official statements outlining their reasons for seceding.

It’s also worth remembering that the Confederacy was a brutal and oppressive regime even aside from slavery. I am by no means hostile to all secession movements. But even if you endorse secession in any situation where a majority of the people in a state support it, you should still denounce Confederate secession. I explained why here:

As of 1860, African-Americans constituted about 40% of the population of the states that formed the Confederacy. It’s a safe bet that they were overwhelmingly opposed to secession. When you combine this overwhelming black opposition with that of the substantial minority of southern whites who also wanted to stay in the Union, it is highly likely that a majority of southerners in 1861 opposed secession. Once you recognize that blacks count too, it becomes clear

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Frederick Douglass on How We Should Remember the Civil War

On Civil War anniversaries, like today’s 150th anniversary of the end of the Battle of Gettysburg, it has become traditional to commemorate both sides equally. There is some logic to this practice. We do not want to unnecessarily perpetuate sectional grievances, or be seen as somehow blaming today’s white southerners for the wrongs of earlier eras. And it is also true that the federal government committed significant wrongs of its own during the conflict, such as persecuting some of those who spoke out against its war policies. But, as Frederick Douglass pointed out in this 1871 speech in honor of the Union war dead, we should not commemorate the war in a way that obscures the moral chasm between the two sides:

We are sometimes asked, in the name of patriotism, to forget the merits of this fearful struggle, and to remember with equal admiration those who struck at the nation’s life and those who struck to save it, those who fought for slavery and those who fought for liberty and justice.

I am no minister of malice. I would not strike the fallen. I would not repel the repentant; but may my “right hand forget her cunning and my tongue cleave to the roof of my mouth,” if I forget the difference between the parties to that terrible, protracted, and bloody conflict….

The essence and significance of our devotions here to-day are not to be found in the fact that the men whose remains fill these graves were brave in battle. If we met simply to show our sense of bravery, we should find enough on both sides to kindle admiration….

But we are not here to applaud manly courage, save as it has been displayed in a noble cause. We must never forget that victory to the rebellion

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Indian Commerce Clause in the Supreme Court

Among the cases decided during final week of the Supreme Court term was Adoptive Couple v. Baby Girl (Scotusblog summary here.) Justice Alito’s opinion for a 5-4 majority begins:

This case is about a little girl (Baby Girl) who is classified as an Indian because she is 1.2% (3/256) Cherokee. Because Baby Girl is classified in this way, the South Carolina Supreme Court held that certain provisions of the federal Indian Child Welfare Act of 1978 required her to be taken, at the age of 27 months, from the only parents she had ever known and handed over to her biological father, who had attempted to relinquish his parental rights and who had no prior contact with the child. The provisions of the federal statute at issue here do not demand this result.

The majority opinion is about statutory interpretation. Justice Thomas joined the majority opinion, and also wrote a concurrence. His concurrence explained that the doctrine of constitutional avoidance was the reason that he joined the majority on statutory interpretation, thus finding that South Carolina’s adoption laws had not been preempted by the Indian Child Welfare Act. As Justice Thomas’s concurrence points out, the Constitution grants Congress the power “To regulate Commerce…with the Indian tribes.” Some persons have over-read the Indian Commerce Clause as a grant to Congress of plenary authority over anything involving Indians. Justice Thomas points out the error: the Indian Commerce Clause is about commercial relations with tribes. It is a not a grant of plenary congressional power over every Indian anywhere in the United States. Thus, Congress has no constitutional power to displace state adoption laws simply because a child has a drop of Indian blood.

Cited 9 times in the Thomas opinion is The Original Understanding of the Indian Commerce Clause, [...]

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Stuart Taylor’s Response to My Post on Prospects for Challenges to University Affirmative Action Policies After Fisher

Well-known columnist Stuart Taylor has posted a thoughtful response to my critique of his earlier post arguing that the prospects for future challenges to university affirmative policies after Fisher are bleak:

Ilya Somin has posted a critique of my Minding The Campus commentary worrying that the Supreme Court’s decision in Fisher v. University of Texas could have the paradoxical effect of entrenching racial preferences for decades.

Ilya makes reasonable points, and he may turn out to be right. I respectfully disagree, as explained below, with his contention that I was “off base” in saying that it is extremely difficult for a rejected student to know, let alone prove, that she would have been admitted but for racial preferences….

As for “off base”: Ilya does not deny the factual accuracy of my statement that rejected students’ inability to know whether they would have been admitted but for racial preferences may be a major deterrent to reverse-discrimination lawsuits. Rather, he disputes my suggestion that this may be a major deterrent to suing.

In fact, it has already proved to be a strong deterrent. The proof is that during the more than 45 years since racial preferences in admissions got started, only five reverse-discrimination lawsuits (the first of which was dismissed as moot) have gotten to the Supreme Court. And very few have prevailed in lower federal courts.

Among the reasons for this paucity is the fact that neither Abigail Fisher nor any future plaintiff can ultimately win a remedy unless the courts end up deciding after years of litigation that she would have been admitted had race not been considered — an issue about which the rejected applicant has far less information than the university does.

Other deterrents to suing are the unlikelihood of a substantial damage award; the negative publicity, vilification,

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Will There be More Challenges to Affirmative Action Policies in the Wake of Fisher?

Unlike me, co-blogger David Bernstein and widely respected columnist Stuart Taylor believe that the Court’s recent decision in Fisher v. University of Texas was a setback for opponents of affirmative action. They agree that the Court’s ruling raised the legal standards that affirmative action programs must meet in order to survive judicial scrutiny. But they argue that this will not matter much because too few plaintiffs will challenge the policies. Taylor summarizes the reasons for this conclusion:

1) Very few white or Asian students who suspect that they were rejected on account of racial preferences are motivated to bring lawsuits. The vast majority would rather get on with their lives…. (2) It is extremely difficult for a rejected student to know, let alone prove, that she would have been admitted but for racial preferences…. (3) Another deterrent to suing is the endless delay that is routine in major litigation…. (4) Such lawsuits are very expensive, and far beyond the means of almost all rejected applicants. While Fisher’s lawsuit has been financed by conservative activists led by Edward Blum, they could provide only a tiny fraction of the resources that any university can throw into the fray.

Taylor’s second reason is off-base. Rejected applicants disadvantaged by racial preferences are not required to prove that “they would have been admitted but for [those] preferences.” Abigail Fisher, Barbara Grutter, and Jennifer Gratz, among others, could not and did not prove any such thing. Yet they were able to bring their cases anyway. The applicable legal rule is that such plaintiffs need only prove that they were denied an equal chance to compete for admission regardless of race. As the Supreme Court ruled in the 1978 Bakke case:

E]ven if Bakke had been unable to prove that he would have been admitted

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Jack Balkin on Fisher

Yale law professor Jack Balkin – a leading constitutional law scholar generally sympathetic to affirmative action – has an interesting post on Fisher v. University of Texas. Like me, Balkin believes that the decision will make it more difficult for universities to defend racial preferences in court:

Fisher distinguishes between two questions. The first is whether diversity is a compelling interest for a state university; the second is whether an admissions program that uses race to achieve educational diversity is narrowly tailored.

On the first question, the courts will generally defer to university officials’ belief that educational diversity is essential to the university’s educational mission.

However, on the second, question–whether the university’s use of race is narrowly tailored–courts will not defer to the university’s views. In particular, courts will not defer to the university’s judgment that no workable race-neutral alternative would achieve the benefits of educational diversity “about as well and at tolerable administrative expense….”

This is important news, even if you think that this view was implicit in previous caselaw. If a race-netural approach would achieve the benefits of educational diversity not exactly to the same degree, but “about as well and at tolerable administrative expense,” then the university may not use a race-based program. The judgement of adequacy of race-neutral alternatives will be made by a court, and although it will pay attention to the professional judgment of educators, the court will not simply defer to that judgment.

This means that universities will be pressed to prove that “ten-percent” plans and class-based or socio-economic-based affirmative action programs will not do approximately as well as programs that consider race as one factor. The question will not be only one of numbers, but also the kind of diversity produced and its effects on education. That question will be

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Competing Interpretations of Fisher

Commentary on today’s Supreme Court decision in Fisher v. University of Texas seems to be divided between those who believe, as I do, that the ruling tightens judicial scrutiny of university affirmative action plans, and those who contend it will make no real difference.

Amy Howe of SCOTUSblog suggests that “affirmative action survives at least in theory…, but will be far more difficult to implement in practice.” Bill Mears of CNN reaches a similar conclusion, and affirmative action opponent Roger Clegg claims that the ruling will be “helpful” to litigators seeking to strike down racial preferences. By contrast, Gerard Magliocca believes that Fisher “said nothing,” and UC Irvine Law School Dean Erwin Chemerinsky concludes that it just reaffirms Grutter and other previous decisions.

I think the latter interpretation of Fisher is difficult to defend. It’s true that the Court did not hold that all affirmative action for diversity purposes is unconstitutional, and claimed that its decision was completely consistent with Grutter. On the other hand, as I explained previously, it ruled that affirmative action plans must be scrutinized by courts without giving any deference at all to the university’s judgment, and should be judged by the same standards as racial preferences in non-university settings (where the Court tends to be very tough). This is a major change from Grutter’s extension of a substantial “degree of deference” to university’s expertise. Essentially, in the opinion he wrote today, Justice Anthony Kennedy adopts the legal rule advocated in his Grutter dissent, where he took the majority to task for its “perfunctory” review of the University of Michigan Law School’s affirmative action program, and for “deferring to the law school’s choice of minority admissions programs.” Today’s decision holds that a university “receives no deference” on such questions.

To determine the [...]

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Fisher, the Texas Ten Percent Plan, and “Race-Neutral” Alternatives to Affirmative Action

When it was litigated in the lower courts, most observers thought that the most distinctive aspect of Fisher v. University of Texas is that the racial preferences used in its affirmative action plan were grafted on top of the Texas Ten Percent Plan, which guarantees any Texan admission to the UT so long as they were in the top ten percent of their high school class. This plan ensured that the university had a large number of black and Hispanic students, because many high schools are overwhelmingly minority. While formally “race neutral” the Ten Percent Plan was clearly enacted by the state legislature for the purpose of increasing the percentage of African-American and Hispanic students after the Fifth Circuit court of appeals struck down the University of Texas’ affirmative action program in the 1996 Hopwood case. Before the Supreme Court decided Fisher, I worried that it would validate the Ten Percent Plan in the process of striking down the additional preferences placed on top of it. For reasons I discussed here, the Ten Percent Plan is not really race neutral, and is in many ways worse than conventional affirmative action programs.

Today’s Supreme Court majority opinion does not directly address the question of whether the Ten Percent Plan is genuinely race neutral or not. Justice Kennedy emphasizes that:

Narrow tailoring…. requires that the reviewing court verify that it is “necessary” for a university to use race to achieve the educational benefits of diversity…, [which] involves a careful judicial inquiry into whether a university could achieve sufficient diversity without using racial classifications….The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity.

But he doesn’t explain what counts as a “race-neutral alternative.” In the context of traditional discrimination against minorities, courts have [...]

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Preliminary Thoughts on Fisher v. University of Texas

Today’s Supreme Court decision in Fisher v. University of Texas is a significant victory for opponents of affirmative action in higher education. Formally, the 7-1 ruling written by Justice Anthony Kennedy only remands the case to the court of appeals for consideration under the “strict scrutiny” standard, which requires the government to show that racial classifications are “narrowly tailored” to the achievement of a “compelling state interest.” But it also makes it much more difficult for state universities to prove that affirmative action plans meet that standard. To understand why, we need to compare today’s ruling to the 2003 case of Grutter v. Bollinger, the leading previous Supreme Court decision on the subject.

Grutter ruled that affirmative action programs in higher education have to meet strict scrutiny, but also concluded that “diversity” is a compelling state interest. Most importantly, it held that in considering whether an affirmative action program meets the narrow-tailoring requiring, courts should give universities’ judgment about the amount of racial preferences needed to promote diversity “a degree of deference.” Such questions, the Court then said, are “complex educational judgments in an area that lies primarily within the expertise of the university.” By contrast, today’s majority opinion is much less deferential:

Once the University has established that its goal of diversity is consistent with strict scrutiny, however, there must still be a further judicial determination that the admissions process meets strict scrutiny in its implementation. The University must prove that the means chosen by the University to attain diversity are narrowly tailored to that goal. On this point, the University receives no deference. [emphasis added]

The Court therefore vacated the Fifth Circuit opinion, which gave the University of Texas substantial deference in determining how much racial preference was needed to achieve the goal of educationally valuable [...]

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My Take on Heather Gerken’s Progressive Defense of Federalism

I recently participated in a Tulsa Law Review symposium in honor of Yale Law School Professor Heather Gerken, one of the nation’s leading federalism scholars. Much of Gerken’s work urges her fellow political liberals to rethink their traditional distaste for federalism. My contribution to the symposium is now available on SSRN. Here is the abstract:

Professor Heather Gerken has made important contributions to our understanding of democracy and federalism. Part I of this article summarizes two of her most significant ideas. The first is “taking federalism all the way down,” the theory that many of the benefits of federalism can be enhanced by empowering local governments as well as states. The second is her insistence that federalism can be used to empower political dissenters, including racial and ethnic minorities. Subnational jurisdictions where nationwide minorities are in the majority enable these minorities to exercise power in their own right instead of relying on the good will of the national majority. In Gerken’s trademark phrase, they can “dissent by deciding.”

Part II proposes three extensions of Gerken’s ideas. First, both “federalism all the way down” and the empowerment of minorities might be enhanced by greater attention to the benefits of “voting with your feet” as well as voting at the ballot box. Foot voting has some important advantages over ballot box voting as a tool for actualizing political freedom and expressing dissent. Second, for minorities to be able to “dissent by deciding” effectively, Gerken may wish to rethink her opposition to judicial enforcement of constitutional limits on federal power. Finally, while Gerken argues that federalism may be beneficial for minority groups today, she accepts the conventional wisdom that it was largely detrimental to them throughout most of American history. In reality, however, the situation was far more nuanced. Although state and

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The Federalist Society’s New Executive Branch Review Blog

The Federalist Society recently unveiled its new Executive Branch Review Blog, which focuses on legal and constitutional issues involving – you guessed it – the executive branch.

One of the regular bloggers there will be my wife Alison Somin, who serves as a special assistant/counsel with the US Commission on Civil Rights. Yesterday, she put up her first post, which focuses on the EEOC’s efforts to curb employers’ use of criminal background checks in hiring on the grounds that such checks might have a disproportionate negative effect on minority job-seekers:

The Equal Employment Opportunity Commission… is making a particular effort to restrict allegedly discriminatory use by employers of criminal background checks. Because African-Americans and Hispanics are more likely to be arrested or convicted of crimes than members of other racial and ethnic groups, the EEOC’s thinking goes, an employer policy that excludes job applicants based on past arrests or convictions will have a disparate impact on African-Americans and Hispanics and, if not job-related and justified by business necessity, may violate Title VII of the Civil Rights Act of 1964.

In April 2012, the EEOC issued a new Enforcement Guidance regarding such employer criminal background checks. Some civil rights advocacy groups praised the document, stating that it will help “remove unfair barriers for people who have moved beyond their pasts” and discourage employers from discriminating against employees who have paid their debt to society.”

But critics raised both substantive and procedural concerns about the new guidance. Substantively, critics noted that the new policy does not do enough to make clear in what circumstances an employer may use a background check; it notably contains no “safe harbors” and may chill some lawful use of checks….

The EEOC appears committed to rigorous enforcement of the new Guidance. At a Chamber of

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New Scholarship on Originalism and Discrimination

For a long time, the conventional wisdom among legal scholars has been that an originalist interpretation of the Fourteenth Amendment would require courts to uphold laws that discriminate against women and laws banning interracial marriage. While these arguments were once advanced by defenders of sexism and Jim Crow laws, today they are usually used as justification for rejecting originalism itself rather than for rejecting court decisions such as Loving v. Virginia, which struck down anti-miscegenation laws. At the same time, most scholars have also argued that the original meaning of the Amendment permits states to adopt affirmative action programs.

Recent scholarship has called this conventional wisdom into serious question. In 2011, Northwestern law professor Steven Calabresi and Julia Rickert published an important article outlining an originalist case for striking down laws that discriminate on the basis of sex. More recently, both Calabresi (with Andrea Matthews) and David Upham have published originalist defenses of the result in Loving.

Just a few days ago, Michael Rappaport posted this paper questioning the conventional wisdom on originalism and affirmative action (which I myself questioned much less thoroughly here). It is not my view that the original meaning of the Fourteenth Amendment clearly requires courts to strike down all affirmative action programs. But the application of the original meaning to these programs is far from being as clear as the conventional wisdom suggests.

I don’t think the work of Calabresi and his coauthors, Rappaport, and Upham will definitively end the debate over originalism and discrimination. Critics of originalism will likely develop rebuttals to their arguments. But this new wave of scholarship does mount a strong challenge to the previously dominant conventional wisdom. [...]

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