Thursday, May 28, 2009

"Separate But Equal?": Segregated High School Proms in the South

This one has been brought to our attention by a few of you over the past few days so let's talk about it. Recently, the New York Times ran an article about a situation in Montgomery County, Georgia where - are you sitting down? - white and black high school students are forced to hold two separate proms (one all white and one all black) due to a long standing tradition of racial segregation dating back to the days before Brown v. Board.

What is even more troubling than the fact that the two races hold separate proms is that the "black prom" has reached out to white students and allows them to attend, while the "white prom" has refused to do the same. It would be one thing if this were a situation of de facto segregation where both black and white students just so happened to be hanging out with people from their own background during prom night, but the following evidence from the article strongly suggests that this arrangement is nothing short of good old fashioned de jure segregation:

When the actor Morgan Freeman offered to pay for last year’s first-of-its-kind integrated prom at Charleston High School in Mississippi, his home state, the idea was quickly embraced by students — and rejected by a group of white parents, who held a competing “private” prom. (The effort is the subject of a documentary, “Prom Night in Mississippi,” which will be shown on HBO in July.)

It may be difficult for those of us in 2009 to imagine that cases like this still exist but they do, and apparently it is so common that it goes unquestioned. As one student from the Times artcile put it:

“It’s awkward,” acknowledges JonPaul Edge, a senior who is white. “I have as many black friends as I do white friends. We do everything else together. We hang out. We play sports together. We go to class together. I don’t think anybody at our school is racist.” Trying to explain the continued existence of segregated proms, Edge falls back on the same reasoning offered by a number of white students and their parents. “It’s how it’s always been,” he says. “It’s just a tradition.

Back in 1995, the Supreme Court decided a case by the name of Missouri v. Jenkins, which narrowed the holding in Brown v. Board with respect to the notion that segregated schools are unconstitutional. In the '95 Jenkins case, the most notable concurring opinion was written by the Justice we all know and love, Clarence Thomas, who basically said that the government can only step in when states purposely act (de jure) to segregate schools, but if schools just happen to be segregated (de facto) then there's nothing the government can or should do about it. In other words, if a school (or in this case a school prom) happens to be all white then so what? Let it be all white. Who cares?

So is separate but equal back in style? Or perhaps the better question for some parts of the country is, did separate but equal ever really leave? And more importantly, do we care?

Tuesday, May 26, 2009


This is first and foremost a rant about the past month or so of the sinister Dick Cheney, who, with the aid of his public relations cohorts at NBC, ABC, CNN and CBS, has been allowed to spread his venom of hate and discord across the airwaves. But before delving into what his reemergence says about the U.S., let me share a small story I came across in the Philadelphia Inquirer today (5/25/09).

In the local section in an article entitled, “Unusual twist in Civil War commemoration”, reporter Maya Rao, described a memorial day celebration at Philadelphia’s Laurel Hill cemetery in honor of Union civil war general George Meade, and confederate soldier, George Ashmead. Evidently this was the first time Mr. Ashmead had been honored. He was born in the area and grew up in Philadelphia before moving to Texas where he enlisted to fight with the South to keep black people enslaved. Betty Mastin of the local chapter of the United Daughters of the Confederacy felt it was about time to honor this “noble” warrior.

It just doesn’t seem odd anymore that white supremacists, warmongers and pathological liars make themselves and their opinions known publicly. So long as it’s done with a modicum of class and without particularly revolting language, one can be a racist and dedicate him or herself to the destruction of other peoples without fear of too much backlash.

Our former vice-president has a pretty impressive resume of hateful and malevolent political action: support of the notorious “Contras” and the illegal arms for hostages deal; support of the racist regime of South Africa and one of only five senators who voted against the release of freedom fighter, Nelson Mandela; one of the architects of the murderous invasion of Panama (4,000 civilians killed); and most recently, the kidnapping of Haitian President Aristide, complicity in the coup and attempted murder of Hugo Chavez of Venezuela and of course, the destruction of Iraq. And yet, he was elected to the second highest office in the land – twice!

It took almost 100 years after the betrayal of African Americans (the compromise of 1877) for their human and constitutional rights to be restored in many of the so-called “red” states. Terrorism against black folks (lynching) was never made a federal crime and it wasn’t until a few years ago that the U.S. Senate passed a resolution apologizing for not making it so.

Betty Mastin is going to hold on to her warped sense of valor and honor. But if this new, so-called progressive administration allows Cheney and the other neocons to walk away from their crimes unpunished, they will commit them again, and again, and again. This is far from over.

And the Supreme Court Pick Survey Says....Sonia Sotomayor!

A few posts back we talked about who the next pick for the nation's highest Court will be to replace retiring Associate Justice David Souter. Well now it is official: Sonia Sotomayor is President Obama's pick to be the next Associate Justice to the Supreme Court of the United States. Throughout the 218 year history of the Supreme Court, she will be the 3rd woman (after Sandra Day O'Connor and Ruth Bader Ginsberg) and the first latina to ever serve on the bench.

About a week ago, the rumor mill narrowed the President's choices down to four ladies, federal Judge Diane Wood, Solicitor General Elena Kagan, Secretary of Homeland Security Janet Napolitano, and federal appellate Judge Sonio Sotomayor. From those choices, President Obama chose Sotomayor who will now have to be confirmed by the Senate.

Speaking of the Senate, this will make for an interesting confirmation hearing for the Republicans. Do they really want to make a case against the first latina Supreme Court Justice? The better question, perhaps, is can they make a case against her?

She does not have a long record on hot-button topics like abortion or gay-marriage. She graduated from Princeton Univeristy and then from Yale Law School where she made the law review (Yale Law Journal). After she graduated from law school she went on to become a prosecutor and she currently has more federal judicial experience than anyone nominated to the Suprme Court in over 100 years. Although the conservative blogosphere has tried to paint Sotomayor as a raging liberal or a "judicial activist," her judicial record is actually quite moderate ideologically. There is, however, one possible Achilles' heel that the Republican's could go after if they are so inclined: Ricci v. DeStefano.

A few posts back we talked about Ricci v. DeStefano, which as you may recall was the recent controversial case about the white fire fighters who sued the city in Connecticut for racial discrimination because it threw out the promotion tests when it saw that no black fire fighters passed the promotion exam. Remember that one? Well that case came out of the 2nd Circuit Court of Appeals where Sotomayor is currently a judge, and Sotomayor was on the panel of 3 judges who voted against the white fire fighters in that case and in favor of the City throwing out the test. The white fire fighters later appealed the decision handed down by Sotomayor et al., which sent the case up to the Supreme Court where it currently is awaiting a decision. Oh, and by the way, did I mention that the Supreme Court's 5 conservative members are actually expected to reverse Sotomayor's ruling on that case which could make for a very awk-waaaaaard confirmation hearing.


All that said, what do you think about this pick by Obama and the potential static that lays ahead during her confirmation?

Wednesday, May 20, 2009

The End of the HBCU?

Last week you may have heard the outcries all over the blogosphere and in various op eds surrounding the controversy of Historically Black College and University (HBCU) funding and President Barack Obama. The story was typically framed with language such as "Obama Cuts HBCU Funding" or words to that effect, which, understandably, ignited the black blogosphere into outrage. Unfortunately, as with most "news" that spreads throughout the black community (ie. the government invented AIDS, Tupac is still alive, we lose our right to vote in 90 days if you don't forward this message e-mails), we as a people tend not to do our homework far too often, and seldom check the facts of these and other headlines before we run with them.

We here at The Urban Politico like to know what we're talking about first before we speak. Therefore, upon closer inspection, the facts show us that in 2007 under then President Bush, Congress voted to give $85 million in extra federal money to HBCU's for a 2-year period, terminating automatically at the end of fiscal year 2009. It is notable to observe that this budget line item was already set in place before President Obama took office. So in other words, Obama didn't "cut" anything. It would be accurate to say "Obama Cuts HBCU Funding" if he actually came along and stopped the funding to the HBCU's. But he didn't. So why phrase it that way?

While you ponder that question, it is notable to observe that the Obama Administration did decide to increase student aid funding*1 and increased the direct discretionary funding of HBCU's from $238 million to $250 million. Now granted, this "mere" $12 million increase pales in comparison to the extra $85 million/yr that HBCU's have enjoyed over the past two years, but it is still an increase nonetheless.

Federal funding aside, CNN recently featured an Essence interview regarding the dwindling enrollment at HBCU's and the new proposal from Georgia Senator Seth Harp (R) to combine HBCU's with the Predominantly White Institutions (PWI's) of the state of Georgia as a means to "ease racial tensions while cutting costs."

When Essence asked Carlton E. Brown, president of Clark Atlanta University, what he thought would happen if Senator Harp's proposal were to pass, he replied "I think it would be the beginning of the end for [HBCU's]."

Is this truly the end of our HBCU's?

*1 - The Obama Administration increased federal funding to student aid grants, loans and scholarships to items such as the Pell grant, for example, which supports over 50% of students at HBCU's as compared to 27% of students at PWI's.

Sunday, May 17, 2009


I wanted to start this article by saying I used to be a sports fanatic. Indeed, I’ve probably forgotten more sports trivia than most people know. But then I watched about two hours of the N.F.L. draft and realized that the fervor for football and basketball had not completely left me. But, I have gotten better. After March Madness, the NFL draft and now, the NBA playoffs, I thought I should pause though and share some reflections of what this sports insanity means (to me) in the larger scheme of things.

As I watched day one of the pro football draft (an event my son and I actually attended ten years ago at Madison Square Garden) it became increasingly difficult to pay any attention to what the commentators were saying. I kept asking myself, “Why are they so serious?” and “damn, they really get paid for this bs.” And, paid handsomely from what I can gather. I realize that the NFL is the most lucrative sports enterprise in the world. But, it’s actually become more than that. It’s our great sedative – the super male testosterone, magical elixir that keeps us transfixed on a game – while all around the world there’s crisis, confusion and chaos.

Maybe it’s ok though that we get a respite from the suffering in other parts of the world, other parts of the country for that matter. However, it always strikes me as deceitful when, during a televised professional football commercial break, a visual image of some famous landmark of the host city will be shown. Never will the more dilapidated or impoverished areas of town be shown.

Truth be told, we don’t really care to see those ugly sides of America, let alone the rest of the developing world. And in today’s entertainment environment, this mainstream, corporate, march-in-lock-step media joke we call the free press – there is no appetite for serious journalism except in support of the America the beautiful myth. Perhaps more importantly for me, professional sports and journalism reinforces a beautiful black America myth.

I think the “March Madness”, college basketball championship series has become particularly disingenuous. Folks identify so strongly with their schools and although I like Temple University a great deal (my alma mater), I’m not crazed about what they do on the basketball court. What affects me more and what I consider pitifully ironic is why the “Sweet Sixteen” or “Elite Eight” or god forbid, “The Final Four” never include Howard, Lincoln, Cheney, Southern, Grambling, North Carolina Central, NC A & T, Hampton, FAMU – you get the picture. I wonder what the HBCUs would do with the revenue generated from their sports programs if the best of African American athletes attended predominantly black schools of higher learning.

I can remember when most black professional athletes, particularly in the NFL came from HBCUs. In fact, they couldn’t get a run at Alabama, Texas, LSU or Florida (hell, they couldn’t get on campus!) It’s my understanding that a great documentary exists entitled “Black Magic” about the college basketball geniuses and superstars attending HBCUs during the era of American apartheid (1920s – circa 1965.) It documents black colleges and their teams enduring and challenging injustice and hypocrisy at the hands of such lofty institutions as the NCAA.

Now brothers and sisters are recruited to mega-universities at very early ages, treated like royalty and expected to act like dutiful, mainstream (but rich) Americans. All so that our insatiable desire for entertainment and competition can be fed. Fed by a new class of Negro. Beholden only to the master. My bad, manager.

It should come as no surprise to us that many of the new Negro, mainstream American pro athletes that have become politicians are Republicans. J.C. Watts, Lynn Swann, Tony Dungy (has not run for office but is an out-spoken supporter of the neo-conservative crack pots) are just a few that come to mind. Of course the white former athletes/republicans are too many to name but a sampling includes Steve Largent, Jim Bunning, Jim Kelly and Steve Young. I needn’t delve into the political affiliations of the owners of the sports franchises.

Is it any wonder that you didn’t hear a peep out of any NFL players with respect to the illegal Iraq war? This unnecessary disaster over oil was orchestrated by Bush and Cheney, two men who hid from the imperial war of their era but had no reservations in sending over 4,000 of their countrymen to their deaths. Now there’s teamwork. And courage. The NFL was effectively the private promotional venue for the neo-con warmongers. Seven Super Bowl winning teams had the opportunity to visit the White House after their victories on the gridiron, as is the tradition. They couldn’t wait to get there and take a picture with King George II. I bet they also took time to shake hands with the Vice President who voted against Nelson Mandela’s release from prison. To its credit the NBA, though certainly not without its problems, seems to have maintained a modicum of black sensibility and a minute degree of progressivism (Etan Thomas and Steve Nash are the best examples.)

When ESPN decided to hire closet klansman Rush Limbaugh as a color analyst in 2003, the network knew about his racist commentary and intolerant opinions. How could you not? However, our Negro football heroes just grinned and skinned about the addition to the network. Not even the Players Association put up any protest even though at that time it was run by a black man. That is until the bombastic white supremacist put his foot in his mouth with an asinine comment about Donovan McNabb. The trespass got Limbaugh fired but the most embarrassing thing about the episode were the black ESPN commentators who cried (literally) and whined on camera about how unfair Rush had been (for upsetting their great fantasy world.) How times have changed. Jim Brown would have probably slapped the sh*&$ out of him.
As annoying as incidents like this are, what’s most revolting is the way the new breed of sports journalists (particularly radio personalities) frivolously juxtapose athletics and politics – American sports as a metaphor for American life. These highly paid, talking heads are the embodiment of the “average guy-G.I. six pack Joe the Plumber.” Perhaps a step above that malignant creature of American media, the right wing talk show host, the sports talk personalities often elevate themselves to conservative political commentator. Not all of them are of this ilk (Keith Obermann, Philly’s Mike Missanelli, Bill Rhoden - writer and Dave Zirin – writer, are notable exceptions), but too many assume their awareness of white American pop culture trivia qualifies them as political analysts.

One millionaire sports talk bozo in Philly is well known for his admiration of the 9th grade dropout, former Mayor and police brutality poster boy, Frank Rizzo. The talk show host once shared his “hatred” for the late attorney Johnnie Cochran, because Cochran got involved in NFL player contract negotiations. The past few years it seems as if it’s a rite of passage for anyone running for Mayor in Philadelphia to come on this person’s radio show to share their political and sports views. It’s hard to believe that politicians have to pay homage to someone who’s given the city such an important cultural event as “wing bowl.”

The historic election of Barack Obama generated commentary from all manner of mainstream media drones. And, sure enough, the Joe America sports crew was not to be denied its place in the sun. I had the misfortune of watching Mark Kreigle of Fox give an impassioned, but frighteningly ignorant diatribe about how sports had helped pave the way for Obama’s victory. The only shred of evidence or example to support his fantasy was that former Alabama football coach, Paul “Bear” Bryant stated in 1970/71 that University of Southern Cal, African American running back Sam “The Bam” Cunningham’s dominating performance over the Crimson Tide in a bowl game did more to end segregation than the civil rights struggle. The fact that this watershed moment occurred more than five years after the landmark civil rights legislation seemed to have been overlooked by Kreigle.

Ian O’Conner, also of Fox, wrote an article entitled, “Sports figures helped pave the way for Obama.” O’Connor claims Obama wouldn’t have even “gotten the chance to defeat John McCain…” if it had not been for black sports pioneers. He then goes into an unsubstantiated, convoluted tale of black athletes appearing on TV and into the living rooms of white folks. We are then to infer that these television appearances desegregated lunch counters, universities and fire departments. O’Conner even quotes a Brooklyn Dodger pitcher, Ralph Branca, who supposedly said, “I think Jackie Robinson accomplished more for black people than Martin Luther King did.”

It’s one thing for a white baseball player from Alabama to make a patently dumb statement. It’s quite another for a “professional” journalist in 2009 to use such a quote as some enlightened bit of fact or social analysis. For Mr. Kreigle and O’Connor’s very limited information base, Barack Obama is president because of the work, trials, tribulations, courage and sacrifice of both life and limb of thousands of people committed to eradicating hate and oppression. As that centuries old struggle evolved after the Second World War into what became the civil rights struggle, men, women and children suffered and were persecuted, also on TV in the living rooms of ordinary Americans.

One can understand the difficulty many pioneering black athletes had in trying to just persevere and succeed in their respective sports, while dealing with racism in athletics and in society at large. But not many were either willing or able to publicly challenge unjust laws, discrimination and terrorism. The Muhammad Alis, John Carlos and Tommie Smiths were few and very far between.

But the Paul Bryants, Ralph Brancas and the many other captains of sports enterprises – owners, executives, media professionals and the more popular players – did nothing whatsoever about the oppression they saw every day. None used their considerable political influence, financial resources or social notoriety to make a statement or stand against injustice and for universal suffrage. Not one person. That’s the story.

It was Martin and Malcolm, Ella and Fannie Lou, Rosa and Viola, Goodman, Chaney and Schwerner and so many other soldiers of peace and freedom who brought into being civil and voting rights legislation. That’s why Obama is in office today. Let’s not get it twisted and let’s keep athletes and their journalists in their proper place.

Wednesday, May 13, 2009

Black Like Me: Vol. 1

The topic of race is a tricky subject to discuss. Especially in those sections of the country where diversity is scarce. So what about those parts of the country where diversity is plentiful? In places like, oh I dunno, Newark, New Jersey, for example. Surely race can be discussed freely in a community as rich with diversity as Newark right?

Well maybe not.

On Monday, May 11, 2009, a white male medical student by the name of Paulo Serodio filed a discrimination law suit in federal court against the University of Medicine and Dentistry of New Jersey (UMDNJ) for a reason that may surprise you. This was not your standard run of the mill "reverse discrimination" claim like we've grown accustomed to seeing in other higher education law suits. He's not claiming that anybody took his seat; in fact, he was finishing up his 2nd year of med school when the incident in question took place. No, Mr. Serodio brought this suit against UMDNJ because he claims he was discriminated against for being...(are you ready for it?)...a "White African American."

You couldn't make this stuff up if you tried.

Yes, folks, Mr. Serodio, who for all intents and purposes is White, identifies himself as an African American - a White African American to be exact. What is his background, you ask? Good question. His ancestry is European, hailing from Portugal. Three generations ago, his grandfather migrated from Portugal to Mozambique, Africa, where Serodio was born and raised. Then in 1984, Serodio came to the United States and is now a naturalized United States citizen.

In 2006, while attending UMDNJ, he and his classmates were asked to identify themselves culturally as an exercise aimed at discussing culture and medicine. When the teacher came around to Serodio, he defined himself as a White African American which offended some students in his class who felt that it was disrespectful for Serodio to define himself as African American since he had white skin. Complaints were made, and Serodio was told by the faculty not to define himself as a White African American again because it was offensive to the people of color in his class.

Subsequent to that event, racial tensions escalated between Serodio and his classmates until finally he was suspended from UMDNJ for "unprofessional conduct" stemming from an article he wrote in the student paper in an attempt to explain his view on his own racial identity.

Which leads us to the question of the day: given everything we know about race, culture, color, and national origin in this country, can a white person, especially one in Paulo Serodio's position, be classified as an African American?

*Note: we appear to be experiencing technical difficulties with the comment software. If you're not able to leave a comment immediately try refreshing the browser or checking back in a few minutes. It has been off and on all day today. Sorry for the inconvenience*

Tuesday, May 12, 2009

The Economy and the Class of '09

"You know what college does for you?
It makes you really smart man.
All you kids wanted to talk in the back of the class not me, I listened, ok?
I was a hall monitor! This was meant to be!
You know how many classes I took? Extra classes...extra classes.
No I've never had sex but you know what, my degree keeps me satisfied!
When a lady walks up to me and says 'hey u know what's sexy?'
I say 'no, I don't know what it is, but I bet I can add up all the change in your purse very fast.'"
- College Dropout, School Spirit Skit 1, Kanye West

It used to be, you went to school, you got good grades, you graduated and you got a good job and lived happily ever after. Sounds pretty straight forward, right? This conventional wisdom has been handed down from generation to generation as the basis for many a speech from moms and dads all across the country as to why we should feel motivated to stick our heads in a book for the better part of our youth (as opposed to hanging outside on the corner). And since it seems to have worked for all of the generations before us, we dared not question the sanctity of this advice. Indeed it was beyond reproach...until now.

Last month, over 530,000 jobs were lost. Some 5.6 million jobs in total have been lost since Wall Street collapsed last fall, bringing the national unemployment percentage to 8.9% (it's highest rate in a quarter century). Nearly every industry has been effected across the board, including my own profession (the legal profession) which saw over 3,000 top notch lawyers laid off from the top "big law" corporate law firms in 2009 alone. These were people who not only graduated from college, but went on to law school, graduated near the top of their respective classes, and passed the bar. They too, are now standing shoulder to shoulder in the bread line along with everybody else. It has become commonplace for law school grads in the class of '09 to have their start dates either pushed back significantly or their offers rescinded altogether.

To make matters worse, a racial disparity seems to have emerged among the unemployment rates for college graduates and current working professionals. According to the Bureau of Labor Statistics, since the economic crisis began last fall, the Latino unemployment rate has risen 4.7 points, to 10.9%, and the Black unemployment rate has risen 4.5 points, to 13.5%. The White unemployment rate, by contrast, has risen 2.9 points, and is just under the national average at 7.3%. It appears that many employers are exercising the "last hired, first fired" mantra to the detriment of those last hired, which tend to be minorities.

So to recap, let me see if I've got this go to school, you get good grades and you don't get a job? And furthermore, if you were lucky enough to have gotten one before all this mess started, there's still a growing % that you will lose it anyway. And if you were lucky enough to have gotten one before all of this mess started and you're black then you might as well not even go into work tomorrow because your desk is already cleaned out.

From the sounds of it, one could make a veritable argument that the proverbial sky is, in fact, falling.

However, I've never been a "sky is falling" kind of guy, and being broke isn't exactly a new state of affairs where I come from, so let me offer a few words of wisdom to the class of '09 if I may:

  1. The First Rule is, man the f*ck up (and for the ladies woman the f*ck up) - The sky is not falling and we're going to get through this. And since we're going to get through this...
  2. The Second Rule is, get a game plan going - You've made it this far so stop and think for a second about the skills you have, all of the many contacts you have made through school and previous jobs, and how you can use all of the above to bring in some income. It may mean taking a job in a field outside of your degree. If so, then so be it; it's only temporary. Never be afraid to branch out and reinvent yourself. Leave no stone unturned.
  3. The Third Rule is, (wo)man the f*ck up, again - The game plan may not work the first time. Tweak it, retool it or scrap it as necessary and keep it moving.
  4. The Fourth Rule is, stack your chips - we've all seen Suze Orman (the lady who wants you to have $100,00 grand in the bank before you buy a snicker's bar). Well as it turns out during these hard economic times she couldn't be more right. So once you get your job (which you will) don't go out spending money like you've lost your damn mind. Your goal as soon as you start working should be to figure out how much money you need to survive on a monthly basis (rent + necessary bills), multiply that by at least 3, and then start saving it. The average person is going to take at least a month, perhaps 2, to find a new job in this economy. Give yourself some cushion. I can not stress this enough. And in the interest of keeping this short and sweet...
  5. The Fifth Rule, keep Hope alive - no that's not a Jesse Jackson reference, that's actually real talk. You will come across many people during these times who have already thrown in the towel. Don't become one of them. Talk to family, talk to friends, talk to whoever gives off positive energy and hold on to that; during these hard times it may be worth more than money itself.

Monday, May 11, 2009

Monday Morning Humor

If you missed the White House Correspondents Dinner this weekend, enjoy:

President Obama:

And Wanda Sykes:

Friday, May 8, 2009

Civil Rights Laws - Harmful of Helpful?: What Ricci v. DeStefano Says About America's Race Problem in 2009

This week, our favorite 9 people in government (aka The Supreme Court) began hearing the racially charged case Ricci v. DeStefano, which has the potential to take everything we ever thought we knew about civil rights laws and turn our understanding on its head. It also raises several questions about race relations that I will submit at the end of this piece. As with any legal matter, let us begin with the facts.


So what the hell happened here? Our journey begins about an hour northeast of New York City in New Haven, Connecticut, a town with a population of approximately 124,000 that is 44% white and 36% black. There, the New Haven Fire Department administered a promotion exam to fill 15 seats for fire fighter lieutenants and captains. The exam tested on firefighting methods, knowledge and skills. The first part had 200 multiple-choice questions and counted for 60% of the final score. The second part, which counted for the other 40%, was an oral exam in which fire fighters had to respond to various scenarios. The test was given to 118 people and of those 118, 56 passed. Of those 56, 19 of the top scorers were eligible for the promotion to lieutenant or captain. So far so good.

Normally this would have been where the story ended but the city noticed one small problem: based on these test results, no minorities would have been eligible for lieutenant, and only two Hispanics would have been eligible for captain. Of the 27 black fire fighters who took the test, none of them would have been eligible for either promotion.

Furthermore, at the time of the 2003 test, white people made up:
53% of the city's firefighters
63% percent of lieutenants
86% percent of captains

Black people, on the other hand, made up:
30% percent of the firefighters
22% of lieutenants
4% of captains

The City of New Haven felt that if they allowed the test results to stand it would have been in violation of the Civil Rights Act and the Equal Protection Clause by causing a disparate impact against minority applicants. In other words, they would have taken an already bad situation and made it even worse. Thus, the City (DeStafano) decided to throw out the test and design one that would have less of a disparate impact on minorities. So nobody got promoted.

Meanwhile across town, the white fire fighters who passed the discarded test were understandably none too thrilled about having all of their hard work thrown out the window. One fire fighter in particular, Frank Ricci, (the named plaintiff) had been a firefighter at the New Haven station for 11 years. He was working two jobs at the time and quit his other job in order to make time to study for the test. Since he suffered from dyslexia, he took extra steps to study, paying extra money for audio tapes to help him learn. As a result, Ricci received the 6th highest score on the test that was subsequently thrown out by the city. He and several other white fire fighters then brought suit against the city alleging racial discrimination.

The Civil Rights Act of 1964 and the Equal Protection Clause of the U.S. Constitution

Since this case involves these two laws I thought a brief word might be helpful before we jump into discussion.

The Civil Rights Act of 1964, as the name implies, was signed into law back in '64 originally as a law to help protect minorities against discrimination, and was later expanded to include discrimination against white people as well. Title VII of the Civil Rights Act is probably the most popular section because it deals with employment discrimination. It provides that no person in our country can be fired or passed over for promotion on the basis of race, color, nationality, gender or religion. This law includes both government jobs and the private sector.

The Equal Protection Clause has about 100 years on the Civil Rights Act. It comes from the 14th Amendment of the United States Constitution, and it was one of three amendments (13th, 14th, and 15th) adopted after the Civil War to (i) end slavery, (ii) stop discrimination against people of color, and (iii) give people of color the right to vote. Like the Civil Rights Act, it too was later defined by the Supreme Court to include discrimination against white people as well. Because of the Equal Protection Clause, no person in our country, regardless of their race, can be discriminated against by any state law or government agency.

Disparate Impact Discrimination

The law recognizes that there are 2 major ways in which discrimination takes place: intentionally and unintentionally.

Intentional discrimination ("disparate treatment") is easy to spot. That's where a boss comes in and says something crazy like "all you black people are fired because you are black and I don't like black people!" Life, of course, is rarely ever that simple.

Unintentional discrimination ("disparate impact") is a little harder to spot. That's where policies, practices, or rules that are set up, that don't mention the word "race" anywhere in their text, still end up producing different results for people of different races. It is notable to observe that policies that do this are not automatically considered illegal - rather, they become illegal in a court of law if the employer can't come up with a legitimate, non-race based reason for the policy.


This case is loaded with issues. I submit the following ones off the top of my head for consideration. Feel free to tackle any or all:

1. Given the disparate racial make up of the fire dept officers and test results, AND given that on most standardized tests, regardless of the subject, blacks score lower than whites, did the promotion exam really have a disparate impact against black fire fighters?

2. By merely throwing the test out and not promoting anybody (in other words, not taking any action), did the City of New Haven really discriminate, intentionally or unintentionally, against the white fire fighters who passed the exam?

3. Do minorities and women still need legal protection from discrimination in 2009?

4. Given the state of American race relations in 2009, do these laws cause more harm than good for our country?

and lastly

5. Which side will the Supreme Court support here?

Sunday, May 3, 2009

The Latest USAJOBS.COM Posting: 1 Supreme Court Justice Needed

The 9 Supreme Court Justices of the United States:
1. Justice Anthony Kennedy; Harvard Law School; appointed by Reagan 1988.
2. Justice Stephen Breyer; Harvard Law School, Harvard Law Review; appointed by Clinton 1994.
3. Justice John Stevens; Northwestern Law School, Northwestern Law Review; appointed by Ford 1975.
4. Justice Clarence Thomas; Yale Law School; appointed by Bush (41) 1991.
5. Chief Justice John Roberts; Harvard Law School, Harvard Law Review; appointed by Bush (43) 2005.
6. Justice Ruth Bader Ginsburg; Harvard & Columbia Law Schools, Harvard Law Review, Columbia Law Review; appointed by Clinton 1993.
7. Justice Antonin Scalia; Harvard Law School, Harvard Law Review; appointed by Reagan 1986.
8. Justice Samuel Alito; Yale Law School, Yale Law Journal; appointed by Bush (43) 2005
9. Justice David Souter; Harvard Law School; appointed by Bush (41) 1990.

I have a confession to make: I am a Constitutional Law Nerd.

Yes, I'm afraid it is true. I've got it bad. Like really bad. Like I should probably seek help bad. From the moment I got my hands on a copy of the Constitution during my first year of law school I remember studying it forwards and backwards. For some reason I was drawn to it (perhaps it fit my meticulous nature?). I can cite to it off the top of my head. I was a teaching assistant for the subject for 2 years. I wrote my Law Review note on a Constitutional Law issue. I interned with 2 different federal courts that dealt solely with Constitutional Law issues on a daily basis. I know the significance of "The Commerce Clause" and its evil twin "The Dormant Commerce Clause." I taught my bar exam study partner everything she needed to know about this section of the bar in under 30 minutes during one of our lunch breaks using a pen and a napkin. I know most of the info about the 9 Supreme Court Justices shown above by heart (I've even met a few of them in person). I know stupid little Constitutional facts that nobody cares about. Written September 17, 1787. Ratified in 1788. First President in 1789. 7 articles. 27 amendments. Sets up 3 Branches of Government: the Legislative, the Executive, and the Judicial.

Ah, yes, the Judicial Branch. An interesting branch of government indeed. What I find most interesting is that of the 3 branches of government, any citizen of proper age can run for office in the Legislative Branch (Congress) or the Executive Branch (The President), but unless you are specifically a lawyer you can't join the 3rd branch of government - the Judicial Branch.

As a law student, that always made me wonder what's so special about this so-called Judicial Branch? What makes it so exclusive? And as I soon learned some time later, the people write the laws through Congress, the President executes those laws through his/her various agencies (Social Security Administration, Dept. of Justice, Dept. of Treasury, etc.), but at the end of the day, it is the Judicial Branch that is the final arbiter on what the law "is" and what the law "is not."

There's an old lawyer joke that effectively has the following punchline: the law is whatever the courts say it is. The funny thing is that's actually true. Perhaps that is why picking a Supreme Court Justice is such a big deal. Supreme Court Justices get to say what the law is for the entire country and they get to do it for life. They're the ones who get to say whether abortion is legal or illegal, whether downloading music is copyright infringement, whether Bush or Gore won the election, whether affirmative action should exist in higher education, whether enemy combatants have rights in our prisons, or whether "separate but equal" schools will be allowed in this country. Given the aforementioned examples alone, one could make a strong argument that the Supreme Court is the most powerful of the three branches of government...even more powerful than the President. (see U.S. v. Nixon)

So on Friday morning, May 1st, 2009, you can imagine my eyebrows raising up as high as they can go on my forehead when it was officially reported that the #9 guy shown up above, Justice David Souter, is planning to retire this summer before the next term begins for the Supreme Court. This means that President Barack Obama will have his first chance to select somebody to fill this seat (with approval of the Senate of course). For liberals, this represents a day of rejoice; for conservatives, the opposite. Already the conservative blogosphere has run rampant with speculation of who Obama will choose and what arguments can potentially be made against them before the candidate is even chosen.

Indeed, a wikipedia page of all the potential nominees can already be seen HERE.

It is notable to observe that there is only 1 female and 1 "minority" (and I use that term loosely) currently among the 9 Justices who set policy for the entire nation. Thus, the concern on the Right is, of course, that Obama will choose a liberal candidate, perhaps even a minority female candidate, who will bring her own experiences to the bench. It is also notable to observe that the current make up of the Supreme Court is 5 conservatives, and 4 liberals with Justice Kennedy (a conservative) playing the role of "swing voter" in the middle. The soon-to-be-retired Justice Souter is one of the 4 liberals. Thus, replacing Souter with another liberal will not change the ideological make up of the Court.

Obama has stated that:

"I taught Constitutional Law for 10 years, and . . . when you look at what makes a great Supreme Court justice, it's not just the particular issue and how they rule, but it's their conception of the Court. And part of the role of the Court is that it is going to protect people who may be vulnerable in the political process, the outsider, the minority, those who are vulnerable, those who don't have a lot of clout.. . . [S]ometimes we're only looking at academics or people who've been in the [lower courts]. If we can find people who have life experience and they understand what it means to be on the outside, what it means to have the system not work for them, that's the kind of person I want on the Supreme Court."

The reaction on the Right might be best summarized by Wendy Long, legal counsel to the Judicial Confirmation Network and former clerk for Justice Clarence Thomas:

"President Obama has referred to this nice word empathy. He thinks judges should have empathy for certain litigants who come before them. Of course if you have empathy for everybody who comes before you, there are two sides to every case. If you have empathy for both sides then that's the same as having no empathy at all. So what he means is he wants empathy for one side and what's wrong with that is it is being partial instead of being impartial. A judge is supposed to have empathy for no one but simply to follow the law."

The question I submit is what criteria should the President consider in a Judge? Specifically, should a candidate's gender or minority status be considered when choosing the next Justice for the Supreme Court of the United States? Why or why not?