Racial Justice In North Carolina

Judge Finds Racial Bias In Death Penalty Sentencing

By Keith Kamisugi, cross-posted from Equal Justice Society

Just days before the 25th anniversary of McCleskey v. Kemp, a North Carolina judge today ruled that racial bias impacted the death penalty conviction of Marcus Robinson and re-sentenced him to to life imprisonment without possibility of parole.

This was the first case applying the historic and ground-breaking Racial Justice Act, enacted by the North Carolina General Assembly and Governor Bev Perdue to reject the influence of race discrimination in the administration of the death penalty. The RJA represents a landmark reform in North Carolina, a state which has long been a leader in forward-thinking criminal justice policies.

As reported by The New York Times, Judge Gregory A. Weeks of Cumberland County Superior Court said that “race was a materially, practically and statistically significant factor in the decision to exercise peremptory challenges during jury selection by prosecutors” at the time of the trial of the inmate, Marcus Reymond Robinson. The disparity was strong enough, the judge said, “as to support an inference of intentional discrimination.”

Judge Weeks found that prosecutors deliberately excluded qualified black jurors from jury service in Robinson’s case, in Cumberland County, and throughout the state.

Rob Thompson, one of the prosecutors in Cumberland County, said in his closing arguments: “They do not have evidence of purposeful discrimination. They do not have some secret society of prosecutors maniacally plotting to remove people from juries. They do not have any of that because there is no such evidence. It doesn’t exist. They have numbers.”

This prosecutor’s argument demonstrates the importance of EJS’s goal to replace the intent standard of the Fourteenth Amendment with a disparate impact standard. Instead of having to prove intent, criminal defendants could use statistical evidence of racial bias – the “numbers” referred to by the Thompson.

From the ACLU Blog of Rights: “The Robinson decision is really the first significant win since the Supreme Court dealt a blow to fairness in the death penalty 25 years ago this Sunday, ruling in McCleskey v. Kemp that statistical evidence of systemic racial disparities could not be used to overturn death sentences because such disparities were ‘inevitable.’ Today’s decision, and the RJA itself, stand as a powerful rebuke to the Supreme Court’s defeatist view of discrimination.”

To observe this tragic anniversary of McCleskey on Sunday, April 22, the NAACP Legal Defense and Educational Fund, Inc. (LDF) and the Equal Justice Society (EJS) joined with organizations across the country – including the ACLU Capital Punishment Project, the Capital Litigation Communications Project, the Center for Death Penalty Litigation Inc., the Death Penalty Information Center, Equal Justice USA, the Innocence Project, the National Coalition to Abolish the Death Penalty and the Proteus Fund – to raise awareness of how this landmark decision fundamentally threatens equality and opportunity in this country.

Together, we launched mccleskeyvkemp.com, a website that provides information about the ongoing crisis of race in criminal justice and offers information about specific activities that individuals and organizations can take to repeal the death penalty and ameliorate the racial disparities in the criminal justice system.

The site includes publications and reports, media articles, links to take action, as well as information about the LDF/Columbia Law School Symposium, “Pursuing Racial Fairness in Criminal Justice: Twenty Years After McCleskey v. Kemp,” which was held in March of 2007 to mark the 20th anniversary of the McCleskey decision.

Join us in the effort to raise awareness of this landmark decision that every day threatens the ideals of equality and opportunity in this country. Visit mccleskeyvkemp.com to learn more.

Civil Rights Groups Urge Supreme Court To Prohibit Housing Policies That Have Discriminatory Impact

By Keith Kamisugi, cross-posted from Equal Justice Society's website

Several of the nation’s leading civil rights organizations filed amicus briefs this week urging the U.S. Supreme Court to rule in Magner v. Gallagher that the federal Fair Housing Act can be enforced when a seemingly neutral housing policy results in discrimination.

The Opportunity Agenda joined AARP, ACLU, The Lawyers’ Committee For Civil Rights Under Law and the NAACP Legal Defense & Educational Fund in filing briefs with the court. (The Equal Justice Society signed on to the Opportunity Agenda brief.) Twelve state attorneys general also filed briefs in favor of fair housing law enforcement.

The Supreme Court will hear arguments in this case on February 29.

What’s at stake in Magner is the obligation of cities and towns to protect equal opportunity in housing. That responsibility includes avoiding unnecessary policies that discriminate in practice, as well as those that are intentionally discriminatory.

For more than 40 years, our courts have said that the Fair Housing Act prohibits both old school bigotry in housing, and policies that have the unnecessary effect of excluding qualified people based on their race, disability, or other factors. In Magner, the Supreme Court will be deciding whether that longstanding, commonsense interpretation will continue, or whether only intentional discrimination can ever violate the Fair Housing Act.

The plaintiffs in the case are building owners in St. Paul, Minn., who rent their properties to working class people, including many African Americans. They say that the city is trying to push them and other rental owners out of town, in favor of owner-occupied housing, with the practical effect of excluding many African Americans from any housing in the city. According to the property owners, the city is using excessive and often false code enforcement against these owners, but leaving alone owners who live in their homes.

The plaintiffs challenged the City of St. Paul’s policy in federal court under the Fair Housing Act. The Act, part of the Civil Rights Act of 1968, prohibits discrimination in the sale, rental, and financing of dwellings, based on race, color, national origin, religion, sex, familial status and disability.

Passage of the Fair Housing Act was not easy. From 1966 to 1967, Congress was unable to garner a strong enough majority for its passage. The Rev. Dr. Martin Luther King, Jr. was closely associated with the fair housing legislation since the 1966 open housing marches in Chicago. When Dr. King was assassinated on April 4, 1968, President Johnson urged Congress to pass the fair housing act as a tribute to Dr. King.

During this same time period, the deaths of our soldiers in Vietnam fell heaviest upon young, poor African Americans and Hispanics. The families of these soldiers could not purchase or rent homes in certain residential developments on account of their race or national origin. Senators Edward Brooke and Edward Kennedy of Massachusetts argued strongly for the passage of this legislation. In particular, Senator Brooke, the first African American ever to be elected to the Senate by popular vote, spoke personally of his return from World War II and his inability to provide a home of his choice for his new family because of his race.

Despite the progress we’ve made as a nation more than four decades after passage of the Fair Housing Act, significant obstacles to equal opportunity still exist, particularly when it comes to housing and homeownership. There are still some real estate agents, landlords, and others who practice intentional discrimination against people of color, families with children, people with disabilities, and other Americans.

But more often these days, local governments and real estate corporations engage in unjustified and unnecessary practices with the practical effect of discriminating against well-qualified Americans. Some cities and towns, for example, prohibit the building of smaller homes or apartments that working people could afford, which in many places excludes most people of color. That means certain Americans are unfairly and unnecessarily cut off from opportunities like quality schools, jobs, and business possibilities.

That’s bad for all of us, and the Supreme Court should reaffirm that the law forbids it by ruling in favor of the plaintiffs in Magner.

Civil Rights Groups Urge The Sixth Circuit To Strike Down Michigan's Anti-Equality Law

 Equal Justice Society, headed by my dear friend and mentor, Eva Paterson, is a national strategy group heightening consciousness on race in the law and popular discourse.  EJS seeks to restore race equity issues to the national consciousness, build effective progressive alliances, and advance the discourse on the positive role of government.  Not surprisingly, they are at the forefront of a key battle in Michigan.  -- Lovechilde

By Keith Kamisugi, cross-posted from Equal Justice Society

The Equal Justice Society and more than a dozen other civil rights organizations this week filed an amicus brief (PDF) in the U.S. Court of Appeals for the Sixth Circuit, urging the court to strike down Michigan’s anti-equality Proposal 2 as unconstitutional.

In its brief, EJS argues that Proposal 2 violates the Equal Protection Clause of the 14th Amendment of the Constitution by creating procedural barriers for people of color.

“Since its founding, certain interests in America have tried to restrict access to the political process,” said Eva Paterson, President of the Equal Justice Society. “First only white male landowners could vote. The franchise was expanded after the Civil War but women could not participate. Now we see many states erecting barriers to voting that may appear harmless, but are designed to keep voters of color from helping shape their political destinies. The national civil rights community speaks in one strong voice in opposing these measures, including Michigan’s Proposal 2.”

Several organizations joined EJS in signing the brief: the California Voting Rights Institute, Public Advocates, LatinoJustice PRLDEF, the Asian American Legal Defense and Education Fund, the National Women’s Law Center, Chinese for Affirmative Action, Worksafe, South Asian Network, the Association of Asian American Attorney and CPA Firms, the Council of Asian American Business Associations, Equal Rights Advocates, and the Asian American Justice Center and the Asian Pacific American Legal Center, the latter two both members of the Asian American Center for Advancing Justice.

Michigan voters passed Proposal 2 in 2006, amending the state’s constitution to prevent the state government from advancing equal opportunity by considering race, sex, color, ethnicity, or national origin. In March 2008, a federal district court judge upheld the law, but the decision was reversed this July by an appeals court panel. The case is now under consideration by the full Sixth Circuit Court of Appeals.

“We stand with our civil rights allies in opposing Proposal 2 and other similar laws that exclude racial minorities and women from the political process,” said Allison Elgart, Supervising Attorney at the Equal Justice Society. “When people of color have to amend the state constitution just to have their interests represented, the law is not protecting their right to equal protection under the law, and the court should step in.”

“Proposal 2 is the most recent example of a voter initiative that restructures the political process in a non-neutral way and places special burdens on racial minorities who want to lobby for race-conscious admissions processes,” reads the brief. “Voting changes and requirements that disproportionately impact racial minorities and provide them less opportunity than others to participate in the political process and effectuate their choices are violations of the Equal Protection Clause.”


The brief cites several reasons why Proposal 2 violates the Constitution:

The law impedes participation in the political process by people of color. After Proposal 2 passed, advocates of race-conscious admissions policies can no longer lobby admissions committees or university administrators. Their only recourse is to launch another statewide initiative, a costly process that could take years to see through to its conclusion. Advocates for other considerations in the admissions process do not face the same burden and are free to continue lobbying admissions committees without structural limitations.

People of color have historically faced hurdles that hinder participation in the political process. Participation in the political process by people of color in the past has been thwarted by literacy tests applied differently to distinct racial groups, electoral redistricting that disfavored racial minorities, and more recently by states that have established seemingly innocuous voter requirement laws that often result in racial exclusion and vote suppression. Courts have found these seemingly “neutral” laws unconstitutional if their purpose is to impede participation by people of color in the political process. Proposal 2 falls into this category.

Proposal 2 is a modern reincarnation of white primaries, literacy tests, and redistricting. Like voting, lobbying to change the admissions processes in Michigan is a way for people of color to participate in governance. The Equal Protection Clause “guarantees racial minorities the right to full participation in the political life of the community,” and therefore requires that every group has equal opportunities to participate in the decision-making process, particularly in the context of public education. Proposal 2 prevents the full participation by people of color in the decision-making process regarding admissions.

The case should be fully briefed before the Sixth Circuit Court of Appeals by the end of the year and the Sixth Circuit will then set a hearing date.

Halloween Weekend At Occupy Oakland

By Eva Paterson, cross-posted from Equal Justice Society

All is well here in Oakland after the police went wild. I went down to Occupy Oakland Friday night. There were hundreds of people there. The faint scent of marijuana was in one of the areas where a long line of people were assembled. I kept walking and saw a field of tents.

I then came to the plaza in front of Oakland City Hall. The last time I had been there was to hear Senator Obama in May of 2008 ask for our support for his candidacy. Last night, the plaza was filled with hundreds of people talking in small circles. I heard earnest conversations about how the Occupy Oakland folks were interacting with each other. As I continued walking around, I was struck by how serious these folks were.

Two young women then told those assembled that they had to wrap up their conversations. They asked one representative from each group to come up and talk about the topic they had all been given to discuss: “How is privilege a part of the Occupy Oakland movement?” Folks were instructed to line up behind a man named Sweet Potato. I loved that and wondered if he often said “Who yam I?”

The crowd was filled with young people, but the first speaker was a 70-year-old woman who did not start off talking about race or class. She said that she envied the energy and physical dexterity of the young. She also said that the activists should make sure that those with physical impairments or with hearing difficulties were treated with respect and had their needs taken into account during the occupation. I smiled.

I then left feeling conspicuous in a dress and stockings. I had started the evening at a wake for the daughter of a friend whose 22-year-old daughter had suffocated after having an epileptic seizure. It was a very sad, sad moment. All the parents had a common refrain. “This is a parent’s worst nightmare.”

We hugged each other and cried and let old grievances and hurts wash away with our tears. A colleague and a friend had a similar reaction to seeing young people look at one of their friends in a coffin. They both said that young people in Oakland frequently are in funeral homes and mortuaries viewing the bodies of fallen friends. That realization deepened our collective grief.

Yet later that evening at Occupy Oakland, I brushed by young Black men walking through the encampment. I thought that perhaps the Occupy Wall Street movement might provide a way out of the misery and despair that sometimes leads to violence. One can only hope.

Life is good and goes on in Oakland.

The Death Penalty And North Carolina's Racial Justice Act

By Abby Bar-Lev, cross-posted from Equal Justice Society

On August 11, 2009, North Carolina Governor Purdue took an affirmative step in providing racial justice advocates a tool to ferret out racial bias in the criminal justice by signing the North Carolina Racial Justice Act.

The Racial Justice Act, the product of a concerted effort by legislators and racial justice advocates, provides defendants in capital cases the opportunity to argue that their death sentence or charge was based on race in court.  In doing so, North Carolina confronts the real and deplorable fact of racial injustice in death penalty process. The RJA leads the way in rooting out race as a basis for the death penalty though it does not necessarily ensure racial justice.  Efforts and legislative actions such as these are deeply needed.

Study after study exposes that racial disparities remain rampant in capital cases, from jury selection through the sentencing phase.  Specifically in North Carolina, a report authored by faculty of the Michigan State University College of Law reveals that those charged with murdering white victims are 2.6% more likely to end up on death row than those charged with murdering a person of color.

North Carolina’s Racial Justice Act allows defendants to present statistical evidence to challenge the prosecutor’s decision to seek the death penalty or the actual capital punishment sentence.  If the state cannot specifically refute the evidence, the judge must order that the prosecutor not seek the death penalty, or, if the defendant has already been sentenced to death, that sentence must be substituted with life imprisonment without the possibility of parole.

Republicans in North Carolina have been calling for the RJA’s repeal and have challenged it in court. They claim the law is too vague to fit with the North Carolina Constitution, but the RJA survived its first court challenge when a judge rejected that argument.  Republicans have attempted to repeal the RJA in the legislature, but Democrats have managed to table that discussion until May of 2012.

Meanwhile, nearly all of North Carolina’s 158 death row convicts are challenging their death penalties through the RJA.

The first hearing is slated for later this summer when Marcus Robinson, who was sentenced to death for the murder of a white teenager, will allege that his death sentence was based on racial biases.  He will present statistical evidence showing that the race of the victim has been a significant factor in the decision for prosecutors to seek the death penalty in the county where he stood trial, that defendants of color in his county are much more likely to receive the death penalty than white defendants, and that significant racial disparities pervade the jury selection process.

In Robinson’s case, the state struck 50% of all qualified jurors of color, compared to only 14.8% of all other qualified jurors.  Robinson’s case is just the tip of the iceberg in terms of jury selection.  In fact, the case of Kenneth Rouse focuses on him being one of thirty-three death row inmates in North Carolina sentenced to death by an all-white jury.

Overt acts by district attorneys are also at issue here.  There is the especially startling case of Guy LeGrande, a black defendant who was sentenced to death by an all-white jury despite being declared mentally incompetent to be executed.  He was prosecuted by a district attorney known for wearing a lapel pin in the shape of a noose to court and who gave similar pins to assistant district attorneys who secured death penalty convictions.  This is the same district attorney who made allusions to a noose by telling jurors that “as the evidence mounted and became overwhelming, those strings were bound into a rope.  A rope.”

As North Carolina paves the way in capital punishment reform, other states are following. Last year, the California legislature failed to pass its own version of the Racial Justice Act.  We cannot afford to let that defeat be the end of the battle for racial justice in capital punishment cases.

In 1987 the United States Supreme Court was presented statistical evidence showing that the race of the victim played a significant role in whether a defendant would receive the death penalty.  The Court ultimately decided that the statistical study did prove that the sentence violated the Eight and Fourteenth Amendments.  The author of that opinion, Justice Powell, later expressed that he would change his vote if he could.  By 2011, the findings have not changed. It is unacceptable that race discrimination continues to saturate the death penalty process.  Through litigation, advocacy, education, and policy efforts, North Carolina’s Racial Justice Act can become a tool for  racial justice advocates to challenge racial disparities and eventually abolish the death penalty.

Building A Real Progressive Movement For Change

After a completely disheartening few weeks culminating in the complete and utter abdication of liberal principles by the President and the Democratic Party, leave it to my old friend and mentor Eva Paterson  (who is not old at all) to get us re-focused on what we need to do to fight back. 

By Eva Paterson, cross-posted from Huffington Post

Equal Justice Society

A progressive movement across this country is more aspiration than reality when its members work toward many of the same goals, but apart from one another. If we are not arm-in-arm while marching toward our dreams, we may be moving, but we are not a movement. We all suffer when we turn our backs and say, "That's not my issue."

Today, too many progressive groups still remain disconnected from one another. In my view, coalitions are not optional. They are essential. Without joining hands with each other, we cannot achieve ambitious goals such as reclaiming the full protections of the 14th Amendment against institutional discrimination. We cannot ensure that there will be more Black males in colleges than in prisons. We cannot give our LGBT brothers and sisters the same rights and freedoms to marry afforded to the rest of us. We cannot secure full civic and economic integration for immigrants.

At Equal Justice Society, the practice of coalition building was embedded into our organizational DNA from day one, and remains one of our core principles. We learned this crucial lesson from Dr. Martin Luther King, Jr., who, through the urgings of his aide, Bayard Rustin, sought to create the "Grand Coalition," an alliance of groups and individuals who hungered for justice and equality. This meant bringing together women, people of color, union members, peace activists, and environmentalists -- all those who saw the possibility of a better world with equal opportunity for all people. Here are five important lessons we have learned in our efforts to develop coalitions:


Find Common Goals In Seemingly Disparate Issues

When Proposition 8 in California threatened to erode the rights of the LGBT community, many of us recognized that we could not allow others to pigeonhole the move as a "gay" issue. By rolling back the fundamental rights of one group, Proposition 8 cast a threat that loomed over the civil rights of all Californians. Cross-coalition opposition to Proposition 8 took the form of public appearances with LGBT community leaders, media interviews, forums and outreach to communities of color -- all of which contributed to showing the impact of the proposition outside of the LGBT community. Immigration reform, marriage equality and the advancement of equal opportunity may appear to many as issues that have minimal overlap. In reality, success in each of these areas advances fairness, access and equality for all of us.

Learn And Embrace The Culture And Terminology Of Your Allies

Understanding and embracing the culture and languages of our allies demonstrates respect for others and their ideas, and contributes to our collective solidarity. In terms of language, one of the toughest battles today is over the widespread use of the term "illegal immigrant," made popular by conservatives in an attempt to dehumanize undocumented immigrants. Despite the fact that a person cannot be "illegal," the term has been widely adopted in news coverage by the mainstream media and in the lexicon of our courts. By continuing to protest the incorrect use of "illegal" to describe immigrants, we not only embrace the values of our immigrants' rights allies, but we also push back on the efforts of those who seek to use language to frame values in a degrading manner.

Set Aside Differences In Strategy To Achieve Common Goals

In 2003, California's Proposition 54 threatened to amend the state Constitution in a manner that would have prohibited state and local governments from using race, ethnicity, color or national origin to classify students, contractors or employees in public education, contracting, or employment practices. A statewide coalition organized to defeat the measure. Pollsters advised us that success would require employing messages that focused on Proposition 54's negative impact on health care, rather than framing it as an assault against people of color. While voters of color immediately understood the negative impact Proposition 54 would have on efforts to remedy racial discrimination, polling indicated that White voters were by and large not moved by an appeal to racial justice. Although we initially pushed back against the race-neutral focus, the coalition ultimately accepted the polling data and its health-oriented approach. The tactic proved successful. Proposition 54 ultimately was defeated. If we, as racial justice advocates, had not agreed to rely on research-driven messaging, Proposition 54 might have passed.

Practice 'Physical Solidarity'

In the 1940s, Bayard Rustin traveled to California to help protect the property of Japanese Americans who were interned in concentration camps. At that time, the U.S. had forced Japanese American citizens to leave their property unattended or under the watch of others. In a time when Japanese Americans "looked like the enemy" and could count on few supporters, Rustin came to their aid, setting a powerful example for us to follow, especially in today's increasingly virtual world. Today, it is easier for us to avoid physically showing up. We sign online petitions, have Twitter protests and email our elected officials -- all of which are helpful strategies. We must not forget, however, that we can best forge our alliances by being there for others in person, by practicing "physical solidarity." In victory and in the toughest of times, we should be there when our allies call for our presence.

Do Unto Others As You Would Have Them Do Unto You

This last suggestion is the simplest in concept, yet it is often the most difficult to practice: "Play nice." The stakes are so high and the pressure so fierce on many of our issues that the worst of our natures can get the best of us. We become bitter toward an ally over a tactical disagreement; we keep our objections to ourselves and seethe; we cry foul when we think another organization is stepping on our institutional toes. At the end of the day, movement building is all about personal connections. We must learn to be generous, give credit to others even when it doesn't benefit our own organization, and find ways to have open discussions about differences and grievances.

Coalition building is more art than science. It requires flexibility, patience and perseverance. This way of doing business won't come easily. It will require some or more of us taking a step back so that others may step forward. It will also require a collective commitment to staying in the fight over the long haul. Yet, we cannot afford to be poor students at it. Our communities are counting on us.

Connecting The Dots

The current Supreme Court, Andrew Cohen writes in the Atlantic, is "as conservative as it has been in three quarters of a century."  Indeed, I've previously cited empirical studies establishing the unprecedented nature of the Court's pro-business bias.   E.J. Dionne is therefore spot on when he says that "not since the Gilded Age has a Supreme Court been so determined to strengthen the hand of corporations and the wealthy." 

The Equal Justice Society is fighting back against efforts to weaken the 14th Amendment as a tool to fight discrimination that have persisted since its enactment and continue today.  (See Don't Take The 14th Amendment For Granted.)  Below Keith Kamisugi explains how difficult this is when faced with a Supreme Court that refuses to mete out "Equal Justice Under The Law."

Connecting The Dots:  A Supreme Court Broken

by Keith Kamisugi , originally posted on Equal Justice Society's website, June 22, 2011.

The end of the Supreme Court’s 2010-2011 term was marked in part by a series of recent developments and revelations highlighting the dire state of the Supreme Court, an institution that should be a fair and impartial forum for justice.

The Court has instead become increasingly damaged, especially with landmark decisions such as in Dukes v. Wal-Mart, which told women that Wal-Mart is above the law. We only have to look back to Bush v. Gore, Citizens United, and numerous other cases to see that our highest court in the land does not mete out “Equal Justice Under Law.”

If the Equal Justice Society and its allies are to accomplish our mission of reclaiming the 14th Amendment and its protections against discrimination, we must be able to argue our cases before impartial justices who do not reflexively rule against the interests of average Americans.

Let’s connect the dots:


“Wal-Mart Gets a Free Pass For Bias From the Supreme Court” — “The Supreme Court issued its decision in the Dukes v. Wal-Mart sex discrimination case [Monday], a frustrating ruling that doesn’t challenge the existence of bias, but that exempts the company from accountability” wrote Rinku Sen on Colorlines.com. “The case highlights the difficulty of addressing discrimination at a time when intentional bias is both illegal and socially unacceptable, and yet obvious gender and racial gaps remain.”

Our friends at the Impact Fund and Equal Rights Advocates are continuing the fight. But like the Citizens United decision, the Dukes decision demonstrates that the Supreme Court will favor corporations over people and business interests over civil rights.

Eva Paterson ties together the problems with the courts. — EJS President Eva Paterson joined Nan Aron (Alliance for Justice), U.S. Senator Sheldon Whitehouse, Dahlia Lithwick (Slate) and Carl Pope (Sierra Club) on a panel organized by Alliance for Justice at last week’s Netroots Nation to address the growing influence of corporations within the American judicial system, particularly in the Supreme Court. Watch the video.

And on top of the high court’s pattern of decisions, we see growing concern over ethics.

“Clarence Thomas participated in a secret political fundraising event put on by the Koch brothers to fund Tea Party infrastructure groups.” — A June 19 exposé in The New York Times detailed Justice Clarence Thomas’s ties to a conservative donor, his lack of disclosure in receiving gifts, and donations given to the Justice’s wife to fund a Tea Party-related group. From the NYT article: “The code of conduct is quite clear that judges are not supposed to be soliciting money for their pet projects or charities, period,” said Arn Pearson, a lawyer with Common Cause. “If any other federal judge was doing it, he could face disciplinary action.”

In April, Bob Egelko of the San Francisco Chronicle reported that Justice Antonin Scalia’s son was a partner in the firm representing Wal-Mart. Egelko describes the convoluted way in which Justice Scalia was able to escape an obligation to recuse himself from the case, but it demonstrates the need for more attention to the matter of judicial ethics.

It’s time that we work together to restore the Supreme Court to a level playing field with impartial referees so that our efforts to reclaim the 14th Amendment and the Constitutional protections against discrimination can someday be fairly heard.

Lessons Learned From Brown v. Board of Education

The Equal Justice Society is fighting back against efforts to weaken the 14th Amendment as a tool to fight discrimination that have persisted since its enactment and continue today.  (See Don't Take The 14th Amendment For Granted.)  On the anniversary of the Supreme Court's landmark decision in Brown v. Board of Education, EJS explains how to do it.  (Originally posted at  Equal Justice Society.)



Three Lessons We've Learned From Brown v. Board of Education

At the Equal Justice Society, we are working to reclaim the full protections of the 14th Amendment and help those who experience discrimination get their day in court. We know we have a tough and long road ahead in tackling our biggest challenge, namely overturning the "intent doctrine" as established in Washington v. Davis.  

Yet,as we prepare for the next step in this critical work, we are glad to have the shining example that is Brown v. Board of Education - one of the most important decisions ever handed down by the United States Supreme Court - illuminating the way forward.

The Brown case, which ended the tyranny of "separate but equal" policies in America, was the result of a decades-long,multi-pronged, and disciplined strategy. Known as the "Houston Plan," the strategy first took shape at Howard University of Law School in the early 1930s, and combined impact litigation,innovative use of social science, and collaboration with civil rights organizations across the political spectrum. 

Charles Hamilton Houston, Thurgood Marshall, Robert Carter, Constance Baker Motley, Jack Greenberg, and others litigated all around the country in their efforts to take down Plessy v. Ferguson,the case that enshrined "separate but equal" in the law. These brilliant strategists wove social science into the law to illustrate the corrosive effect segregation had on the psyches of both African Americans and whites, showing how one group internalized a sense of inferiority while the other, a sense of superiority. Their efforts culminated in the landmark decision that overturned Plessy on May 17, 1954.

Today,as we mark the 57th anniversary of Brown v. Board of Education,we want to highlight three lessons we have learned from this monumental and hard-fought victory:

• Structural change often takes a long time: There's an adage: if you're working on an issue that will be resolved during your lifetime, you're not working on a big enough issue. In today's fast-paced world, we often are pressured to produce immediate results. Yet, tough social problems can be overcome only through sustained and long-term advocacy. Even before the U.S. Supreme Court endorsed the constitutionality of racial segregation in Plessy in 1896, African Americans had suffered the effects of racism for years. This deep-rooted social inequality could not be turned around overnight. We can learn from Brown that even social ills that seem impossible to defeat can be tackled if we are strategic and patient.
  
  
• It takes a coalition to win change: The victory of overturning state-sponsored segregation did not just belong to the lawyers. Civil rights activists were in the streets protesting segregation while the legal strategy proceeded in the courts. For example, in June 1953, Blacks in Baton Rouge, Louisiana, launched a mass boycott against segregated buses. Led by the pastor of one of the Black churches in the city, the boycott resulted in a limited victory: while two side front seats of the bus could be reserved for whites, and the long rear seats for blacks, all other seating could be opened. Two and half years later, Rosa Parks refused to give up her seat on a Montgomery city bus to a white passenger, sparking the Montgomery Bus Boycott led by Dr. Martin Luther King Jr.
  
  
• We must continue the fight: Dr. King once said, "We must face the tragic fact that we are far from the promised land..." Those words still ring true today. More than five decades after Brown v. Board of Education, and 140 years after the enactment of the 14th Amendment, there is no doubt that deep racial disparities still persist. The Supreme Court has been systematically gutting the Brown decision over the past 57 years in ways that would make Thurgood Marshall and Constance Baker Motley weep. Both the Equal Protection and the Citizenship clauses of the 14th Amendment are under attack. In addition, the Right wing has executed an assault on government, taxes, and teachers, undermining our children's ability to get quality education in public schools. Recently, when conservative legislators in California were told that budget cuts would hurt public education, they replied, "We do not care. Our children are in private schools." We have to stay ever vigilant in the work to safeguard our rights.
  

The Equal Justice Society needs our help in their efforts to overturn the Intent Doctrine. One way you can help is to be a part of their social network audience on Facebook and Twitter, and sharing their posts on those services with your networks. 

Don't Take The 14th Amendment For Granted

Originally enacted to protect blacks from inequality and violence after the Civil War, the 14th Amendment prohibits states from depriving persons of "life, liberty, or property" unfairly (i.e., without due process) and from denying any person "equal protection of the laws."  Efforts to weaken the 14th Amendment as a tool to fight discrimination have persisted since its enactment and continue today.  As Eva Paterson, President of the Equal Justice Society, contends in the following piece (originally posted on Huffington Post) we must safeguard the 14th Amendment from both frontal and stealth attacks.

Protecting the 14th Amendment

By Eva Paterson, March 16, 2011

For almost 150 years, the 14th Amendment has been the backbone of civil rights law in America. Its protection of individual rights for all -- from freed slaves to immigrants to workers fighting against race discrimination -- has made this amendment an honorary member of the Bill of Rights.

No wonder it is under attack.

In recent months, Republican Senators and state legislators have sought the public spotlight by calling for an end to the amendment's guarantee of citizenship to those born on U.S. soil. If a child's parents are not documented, they shout, that child should not be allowed to be a citizen. If they had their way, they would roll back a U.S. Supreme Court decision, U.S. v. Wong Kim Ark, decided more than a century ago.
If this is what the enemies of the 14th Amendment are doing in the spotlight, imagine what they are doing behind the scenes to eviscerate the measure. Those who want to turn the clock back on civil rights also are trying to undo the Amendment's Equal Protection clause, making it virtually impossible for victims of discrimination to find justice in our courts.

First, a short history. The 14th Amendment was added to the U.S. Constitution in 1868, promoted by the Republican Party of the time -- the party of Lincoln -- to protect Blacks from the violence and inequality they faced in the aftermath of the Civil War. The Amendment granted the rights of citizenship to all individuals born in the U.S., including freed slaves. It guaranteed African Americans the right to citizenship, and to the privileges and immunities that go along with citizenship.

Almost immediately after it was enacted, lawmakers began trying to chip away at the Amendment, defining it so narrowly as to make it almost toothless. As Lawrence Goldstone outlines in his powerful new book, Inherently Unequal: The Betrayal of Equal Rights by the Supreme Court, one of the first salvos against the 14th Amendment took place in the 1870s, following the "Colfax Massacre." After a disputed gubernatorial race, several hundred white men attacked freed slaves in Colfax, Louisiana. More than 100 Black men are estimated to have been killed. Though a few of the white mob were charged in federal court, only three eventually were convicted. Later, the U.S. Supreme Court overturned even those convictions in the case of United States v. Cruikshank, finding that the 14th Amendment did not apply to individuals, only the state.

In another pair of cases just a decade later -- Strauder v. West Virginia and Rives v. Virginia -- the nation's high court would go even further in eroding of the 14th Amendment. In Strauder, an African American man was convicted of murder by an all-white jury, and he appealed. The Supreme Court found that West Virginia's statute explicitly stating that African Americans were not allowed to serve on juries did violate a Black defendant's right to a fair trial and was unconstitutional under the 14th Amendment. However, in Rives, the Court upheld the convictions of two African Americans by an all-white jury in Virginia. The reason? Virginia did not have an explicit law on its books that barred Blacks from serving on juries, even though it did so in practice. As a result, states could find ways to segregate, discriminate against, and exclude Blacks without being found in violation of federal law and the 14th Amendment.

The political attacks became even stronger after the successes of the civil rights movement. The Amendment's Equal Protection Clause became the basis for the U.S. Supreme Court's 1954 ruling in the landmark case Brown v. Board of Education, which ended the doctrine of "separate but equal." It gave new hope and legal strength to millions who challenged legalized segregation and race discrimination. When President Lyndon Johnson signed the Civil Rights Act of 1964, he was well-aware that the enemies of equal rights would not sit quietly by, noting wryly, "we just gave the south to the Republicans."

The biggest legal blow came in 1976, when the U.S. Supreme Court decided Washington v. Davis. Two African-American applicants who failed personnel tests for jobs as police officers in Washington, D.C., alleged that the test was unconstitutional because it disproportionately failed Blacks, excluding them from work at the police department. They were backed by clear scientific evidence showing that the tests did disproportionately impact Blacks. But because the plaintiffs could not show that the racial inequality was intentional, the Court ruled that the Constitution was not violated. The standard the court set in that case is known as the "intent doctrine."

This crowning blow to the gradual erosion of the 14th Amendment's protections currently bars countless victims of discrimination from seeking justice in the courts. Though George Wallace is no longer chanting "segregation now, segregation tomorrow, segregation forever" on the school house steps, race-based disparities still persist in almost every measure of societal well-being -- from employment, health, and education to wealth, housing, and the criminal justice system. When racial bias is implicit or structural, it makes no sense to require proof that these disparities result from "intentional" discrimination.

Our embattled 14th Amendment deserves to be safeguarded both from frontal and stealth attacks. We must first shed sunlight on the insidious efforts to do away with this bedrock principle. Then, we must return to the courts - yes, even the United States Supreme Court - and insist that the full Constitution be upheld, including the 14th Amendment. Civil rights advocates must not cede the ground to those who would deny us equal protection of the law. We're ready to fight; join us.

[Related posts:   Federal Court Can't Remedy Structural Racism; Reclaiming the 14th Amendment]

Federal Courts Can't Remedy Structural Racism

A series of United States Supreme Court decisions, beginning in the mid-1970s, placed a near-impossible burden on those seeking to remedy discriminatory practices by requiring not only proof of racial inequality but also a showing that such inequality was purposeful.  The application of this "intent doctrine" in the recent Ninth Circuit case of Darensburg v. Metropolitan Transit Commission, raises the critical question of whether victims of subtle, implicit and unintentional but, nevertheless, very real discrimination can find justice in our courts.  The following piece which addresses this question, was written by Eva Paterson and Reggie Shuford, president and director of law and policy, respectively, at the Equal Justice Society.  It was originally published on March 6, 2011 in New American Media.

Transit Case Raises Question:  Can the Poor Ever Find Justice?

by Eva Paterson and Reggie Shuford

A recent decision handed down by the U.S. Ninth Circuit Court of Appeals raises this important question: Can victims of contemporary forms of discrimination and disparity find justice in our courts?

The court ruling came in the case of Sylvia Darensburg, an African-American mother of three who lives in East Oakland. Every day, along with tens of thousands of low-income African-American, Asian and Latino bus riders in the Bay Area, Sylvia experiences the reality of transit inequality.

According to the case, Darensburg v. Metropolitan Transportation Commission, Sylvia relies on the AC Transit bus system as her primary means of transportation to her job during the day and to college classes at night. She endures long waits for the two buses she needs to take, with each trip taking an hour or more each way. On her way home at night, she has to walk 12 blocks from the nearest bus stop in her neighborhood.

Sylvia is not alone in making such an arduous journey—almost 80 percent of AC Transit riders are people of color, and over 70 percent have incomes below $30,000. Nearly 60 percent are entirely dependent on public transit.

In 2005, a group of law firms and nonprofit legal advocacy groups—claiming state and federal civil rights violations—filed suit in federal court in the hopes of getting Sylvia Darensburg and others like her equal access to quality transit services.

The suit charged that the Metropolitan Transit Commission’s (MTC) practice of persistently under-funding AC Transit, while investing in improving rail services, amounted to discrimination and had a disproportionate impact on low-income residents of color. Rail services are used primarily by individuals with incomes of more than $30,000 and who have other means of transportation. A greater percentage of white riders use rail services rather than bus services like AC Transit.

The suit asserted that MTC's decision not to allocate greater funding for bus expansion projects in its Regional Transit Expansion Plan causes, at least in part, the fare hikes, service shortages, and lack of improvement on AC Transit buses that Sylvia and others experience.

In late February, the Ninth Circuit derailed Bay Area low-income residents’ chances of getting improved public transportation services. The court ruled that Sylvia and other plaintiffs had failed to make a showing of discrimination because they failed to demonstrate how MTC’s funding decisions either intentionally discriminated against or had a disparate impact on them.

One of the judges went even further by decrying the fact that the lawsuit was brought in the first place.
Taking aim at what he described as “hopelessly outdated” racial categories, he concluded: “[I]n the Bay Area . . . social change has been fostered by liberal political attitudes, and a culture of tolerance. An individual bigot may be found, perhaps even a pocket of racists. The notion of a Bay Area board bent on racist goals is a specter that only desperate litigation could entertain.”

Both the court’s decision and that particular judge’s concurrence ignore or fail to take into account how discrimination actually takes place in our society today. While we may no longer have George Wallace or his ilk chanting “Segregation now, segregation tomorrow, segregation forever!” on the school house steps, we do have well-documented and persistent racial disparities in virtually every measure of societal well-being, from employment, health, and education to wealth, housing and encounters with the criminal justice system.

Research shows that, today, the majority of racial bias is structural or implicit. Structural or institutional racism refers to any system of inequality based on race. In America, it defines who has access to goods, services and opportunities—or, as in the Darensburg case, to quality transit services that can determine whether one can get to work or school.

By requiring that discrimination be intentional and explicit (an almost impossible high bar), courts no longer provide a meaningful remedy to victims of discrimination and bias. The end result is that countless valid claims are lost, dismissed or never even brought.

If we are to solve the persistent disparities that remain embedded in our society today, judges, lawyers and the public must be better educated about how discrimination plays out in modern society, and in the daily lives of people like Sylvia Darensburg. Only then will we stand a fighting chance of making America a place that can truly live up to its ideal of equal opportunity for everyone.

Reclaiming the 14th Amendment

Equal Justice Society, headed by an old friend and mentor, Eva Paterson, is a national strategy group heightening consciousness on race in the law and popular discourse.  EJS seeks to restore race equity issues to the national consciousness, build effective progressive alliances, and advance the discourse on the positive role of government.

Last week, Reggie Shuford, EJS's Director of Law and Public Policy, wrote an important and visionary op-ed entitled Reclaiming the 14th Amendment, which was published in the Daily Journal, California's largest legal newspaper.  Shuford persuasively argues that the 14th Amendment, which was intended to protect blacks from discrimination and violence after the Civil War, has "failed to keep pace" with the kinds of subtle, implicit, and unintentional racial bias of today.

Dilution of the 14th Amendment stems from a series of U.S. Supreme Court decisions, beginning in the mid-1970s, which established and solidified the "intent doctrine," a near-impossible standard which requires those suffering from the impact of discrimination to prove the racial inequality was intentional.  EJS plans to pursue a litigation and public policy strategy to dismantle or at least reformulate the intent doctrine in order to reclaim the 14th Amendment as "a tool for securing justice."  Below is Shuford's article which explains their ambitious and innovative ideas for doing so. 

Reclaiming the 14th Amendment

by Reggie Shuford

Daily Journal 

The 14th Amendment isn’t what it used to be.

Enacted in 1868, the 14th Amendment was intended to protect Blacks from the violence and inequality that arose after the Civil War. Just over a decade earlier, the U.S. Supreme Court had decided Dred Scott v. Sandford, ruling that all people of African ancestry - slaves and those who were free - could never become U.S. citizens and, therefore, could not sue in federal court. Confederate state laws during that period also barred Blacks from serving on juries, voting, leasing or owning land, or entering professions. In contrast, the 14th Amendment guaranteed African Americans the right to citizenship, and the privileges and immunities that attach to citizenship. The amendment’s Equal Protection Clause would later become the basis for the Supreme Court’s 1954 ruling in Brown v. Board of Education, which ended the doctrine of “separate but equal.” 

Today, in the age of Obama, racism is by and large not of the explicit variety. It is not the kind with water fountains that restrict access only to certain races, or the kind that explicitly withholds the right to vote from individuals based on the color of their skin. Today, discrimination or bias is far more subtle, even unconscious, and their effects sometimes unintentional. The problem, however, is that equal protection jurisprudence has failed to keep pace with the way discrimination is now practiced and experienced in contemporary American society. Click here to read the entire article.