Wednesday, July 21, 2010

The Real Shirley Sherrod Scandal

No matter how much we like to think that we live in a post-racial world, where black and white doesn't matter and everyone has the same opportunities, that's just not true.  And there is perhaps no better example of that than the Shirley Sherrod controversy that has been raging for the past few days.

At an NAACP dinner a few months ago, Sherrod told a story about her time working in an advocacy agency helping black Southern farmers keep their land back in the eighties. The first time a white farmer came to her for help, she struggled with what to do since her father had been killed by a Klansman: "He took a long time talking but he was trying to show me he was superior to me. I know what he was doing. But he had come to me for help. What he didn't know, while he was taking all that time trying to show me he was superior to me, was I was trying to decide just how much help I was going to give him. I was struggling with the fact that so many black people had lost their farmland." She goes on to relate how the experience was a revelation to her, how it helped her move beyond race and focus instead on helping the impoverished: "I didn't discriminate ... If I had discriminated against him, I would not have given him any help at all because I wasn't obligated to do it by anyone ... I didn't have to help that farmer. I could have sent him out the door without giving him any help at all. But in the end, we became very good friends, and that friendship lasted for some years. [...] Working with him made me see that it's really about those who have versus those who haven't. They could be black, they could be white, they could be Hispanic. And it made me realize then that I needed to help poor people - those who don't have access the way others have."

And then someone over at Fox News took pruning shears (or, really, more of a hatchet) to the video of her speech, painting her as a racist who was using her government job to oppress the poor white people.  Now, there's a couple things wrong with this representation.  First, Sherrod wasn't working with the government when the incident happened (she only took up her post last year).  Second, CNN decided to do some real investigative journalism into the matter and was interviewing the alleged victims of Sherrod's racism, who said that not only had Sherrod been more than helpful, she saved their farm. (Incidentally, they also had on Andrew Breitbart, the conservative blogger who released the chopped video, and he said he doubted the identity of the farmer's wife during the interviews).

But that didn't seem to matter to the USDA, which promptly kicked her out (with prompting from the White House), claiming a 'zero-tolerance' policy on racism.  Do they also have a zero-tolerance policy on suspensions, investigations, and disciplinary boards?  The Obama White House has faced criticism for being too slow to react to the oil spill, the economy, and countless other things.  But oh man, did they ever pick the wrong issue to act quickly on.

The real Shirley Sherrod scandal is not what she said or did twenty years ago.  The real scandal is twofold.  One: The lying and misrepresentation going on at Fox News, and the lack of censure faced by Andrew Breitbart (as Rachel Maddow so wonderfully put it, "Omission Accomplished"). There is a reason that the slogan for journalists says: "Get it first. But first, get it right". And two: That the White House, which just a few months ago was decrying Fox as entertainment and not news, would help fire a USDA staffer when Fox is the only network reporting on a (non)incident from so long ago.

Update: Now that the uncut video has come out, the administration and the USDA have both issued apologies to Sherrod, as well as offering her a new job. She has not made a decision on whether or not to accept it.

Tuesday, July 20, 2010

It's OK to Stop People From Discriminating: An Analysis of CLS v. Martinez

You might be wondering why it is necessary for the highest court in the land to have to hand that seemingly obvious message down from the bench in one of the last four rulings before the Court adjourns for April. Yet that's exactly what they were forced to do in Christian Legal Society v. Martinez, brought before the Court by the Hastings College of Law chapter of the CLS, who were less than pleased that they couldn't get school funds and resources if they banned gays and non-Christians from their group.

Basically, the facts of the case are this.  The law school of Hastings College has a policy that all of its student groups must accept anyone who wishes to join, or lose official recognition, money from the school's activities fund, school letterhead, and other such perks. The Christian Legal Society, which requires members to sign a code that affirms, among other things, the belief in god as savior and the rejection of any and all aberrant sexual conduct, was denied recognition and promptly sued.  They alleged that not only were they being unfairly targeted because of their religion, but that the whole policy was unconstitutional.  The Court, divided 5-4 along the familiar lines of major cases, ruled in favor of the law school. 

There was a Constitutional issue in the case, I think, flitting around the role public schools play in promoting religion and/or religious tolerance.  In fact, that's why I originally followed/decided to write about it.  But I was hard pressed to find it in the actual case.  I read all the opinions (and undertaking requiring multiple hours and countless repetitions of the Battlestar Galactica soundtracks) but couldn't quite bring myself to do more than skim the oral argument transcripts after reading through SCOTUSWiki's summaries.  Ruth Bader Ginsburg's majority opinion reads more like a lecture to the lawyers on the actual meaning of a "stipulation", specifically, the joint stipulation that Hastings' policy was "all-comers" and applied to everyone neutrally.  There was a certain amount of civic-mindedness driving the Court as well: Anthony Kennedy wrote that “A vibrant dialogue is not possible if students wall themselves off from opposing points of view" — which might be read, in less-Courtly terms, "Get over it."  Samuel Alito's dissent took a different view of the record (including the stipulation) and used the fact that only the CLS had been banned from recognition under the policy to argue that the policy unfairly singled out because of their beliefs.

Actually, no one, the Court included and especially, seems to be quite clear on what the policy — and maybe even the argument — was.  There were, as I have stated before, two issues: The policy, and the way the CLS was treated under that policy.  In the joint stipulation, it was stated that the policy was an all-comers policy that was applied neutrally and had nothing to do with religious beliefs.  Apparently just realizing that that was rather damaging to their case, the CLS lawyers tried to backtrack, only to be met by an implacable stone wall otherwise known as Ruth Bader Ginsburg who declared that the two sides had told the District judge "Here are the facts, and the facts were not qualified at all".  It was even suggested by Gregory Garre, arguing for the College, that perhaps the case should be dismissed as a mistake.

The weird part is that there is a constitutional issue here: how far colleges can go in supporting/suppressing religious groups, and that was rarely touched upon.  Actually, no.  Scratch that.  That's what the CLS lawyers were arguing.  This case has nothing to do with religion.  It has to do with a policy that is designed to promote fairness and inclusiveness.  It has to do with an appeal that merited a bare 2 sentences from the 9th Circuit because the core issue had been decided in a stipulation: If Hastings' policy was inherently unfair, and specifically unfairly applied to religious groups, then how could lawyers from both sides have written that stipulation?

What the CLS seemed unwilling to realize in this case is that Hastings' policy is not an attack on them and their religious beliefs.  It is not a restriction on their rights, it is an expansion of the rights of others.  None of the other organizations at Hastings (including, presumably, other religious organizations) had any problem adhering to the policy.  In fact, the CLS itself had held to the policy until it affiliated with a national organization and adopted the new, stricter, more discriminatory rules.  Even without this ruling, the group would not be banned, or even kicked off campus.  The verdict is a victory, in a way, because it affirms the rights of schools to make and enforce their own discrimination policies, including those which bar all forms of discrimination.  But the fact that this came before the Court, in a case where there was no circuit conflict and a barely-there constitutional issue, is a bit baffling.  As Lyle Denniston wrote for SCOTUSBlog, "When the Supreme Court is confronting a major constitutional decision, but Justice Anthony M. Kennedy begins the questioning by wondering exactly what case is before the Court, the chances that a big decision will emerge drop perceptibly at the very outset. And when Kennedy is followed by several colleagues voicing deep doubts about what the facts are, the case begins to look very much like a waste of judicial time."  Which it was.

Sunday, July 4, 2010

Supreme Court's Decision on McDonald v. Chicago

The decision and opinion for McDonald v. Chicago recently came out before the Court closed for the summer session. The Court sided 5-4 with the petitioner's (McDonald et al). The fun thing about moot court is seeing how your justices decided vs. the actual Court so that's why I thought I'd follow through with bringing out the decision.

This means the Court has decided to incorporate (make binding on the states) the Second Amendment via the Fourteenth Amendment (which is used to incorporate). So now states can't make laws that ban guns (like handguns in the case of Chicago), but there probably will be some regulation power used by the states. All in all, this is a really important case and some things will be changing.

To read more about the case and to get the majority opinion written by Justice Alito go here.
And if there are any questions about the case please comment or e-mail me at