Racial justice

  • May 9, 2012
    Guest Post

    By Ray McClain, Director of the Employment Discrimination Project at the Lawyers’ Committee for Civil Rights Under Law


    In late April, the Equal Employment Opportunity Commission (EEOC), under the leadership of Chair Jackie Berrien, approved updated Enforcement Guidance on Consideration of Arrest and Conviction Records by employers. The Guidance analyzes clearly and comprehensively the restrictions that Title VII places on an employer’s use of any employment screen that has the intent or effect of excluding minority workers disproportionately from being hired or retained by the employer.  

    This post addresses the broader significance of the EEOC’s updated Guidance and the additional actions that are likely to be necessary to persuade employers that the Commission’s action is not merely symbolic, but requires employers to change their practices.

    Significance of the Guidance

    Pundits try to persuade the White public that we live in a “post-racial America” because President Obama is of mixed descent – Black African and White American. Both the Guidance and the Commissioners in their remarks prior to the vote laid out a few of the many statistics that starkly demonstrate that America today is anything but “post-racial”; the Guidance recounted that:

    African Americans and Hispanics are arrested at a rate that is 2 to 3 times their proportion of the general population.  Assuming that current incarceration rates remain unchanged, about 1 in 17 White men are expected to serve time in prison during their lifetime; by contrast, this rate climbs to 1 in 6 for Hispanic men; and to 1 in 3 for African American men.

    Virtually all public employers and 80 percent of private employers check all new applicants for employment to see whether they have records of recent arrests or criminal convictions. Over 90 percent check on at least some applicants. From the EEOC’s statistics, it is clear that the practice of so many employers in excluding ex-offenders from equal consideration in hiring takes a heavy toll on minority workers, especially African Americans, and helps to keep African American unemployment at consistently twice the rate of unemployment for white workers. 

    Depression-level rates of unemployment have plagued the African American community since early in the current recession. Unemployment for African American men has recently been as high as 18 percent of those seeking employment and about 25 percent when the numbers include African American men who would work if they thought they could find anyone to hire them. The rate has been 40 percent for African Americans 19 and younger.  

    The EEOC’s updating of Guidance on this critical issue can be a major step in opening many doors to jobs that for too long have been closed to many minority workers.

    What did the Guidance do?

  • April 27, 2012
    Guest Post

    By Leslie Proll, Director of the NAACP Legal Defense & Educational Fund’s Washington Office


    The current foreclosure crisis constitutes a monumental civil rights issue. Communities of color were targeted for risky mortgage loans, have experienced disproportionately high foreclosure rates, and have been stripped of vast amounts of wealth because of discriminatory lending practices. From 2005 to 2009, median wealth fell by 66 percent among Latino households and 53 percent among African-American households, compared with just 16 percent among white households, largely due to declining home values. From 2009 through 2012, African Americans are projected to lose an estimated $194 billion in housing equity, and Latinos are expected to lose $177 billion.

    Unfortunately, there is reason to believe that the destructive effects of the foreclosure crisis on communities of color have yet to be fully realized. They face another devastating blow caused by further discriminatory treatment towards homes and neighborhoods by the very lenders who initiated the foreclosures. 

    The civil rights problems that permeate the foreclosure crisis are unfolding in stages. First, lenders targeted communities of color with subprime and other risky loan products that led to foreclosure. Last year, the U.S. Department of Justice (DOJ) announced the largest residential fair lending settlement in history, in which Bank of America agreed to pay $335 million to settle allegations that Countrywide Financial discriminated against African-American and Latino borrowers during the housing boom. DOJ found that Countrywide loan officers and brokers charged higher fees and interest rates to 200,000 African-American and Latino borrowers than to white borrowers who posed the same credit risk. Countrywide also steered borrowers of color into costly subprime mortgages when white borrowers with similar credit profiles received prime loans. Countrywide was not an isolated example. Other research has found that African-American and Latino borrowers were much more likely to receive subprime loans than white borrowers, even after controlling for income level or credit risk. 

  • April 26, 2012
    BookTalk
    The Immigration Crucible
    Transforming Race, Nation, and the Limits of the Law
    By: 
    Philip A. Kretsedemas

    By Philip A. Kretsedemas, an associate professor of sociology at The University of Massachusetts Boston


    For the past two years, the national debate over police involvement in immigration enforcement has focused on Arizona Senate Bill 1070. When it was first enacted, SB 1070 was widely criticized for the broad discretion it allowed Arizona police to question people about their legal status. Much of this criticism focused on the problem of immigrant racial profiling. Opponents of the bill argued that it opened the door for the indiscriminate interrogation of anyone who looks like an unauthorized migrant.

    Even though these complaints figured prominently in the public debate over SB 1070, it is rather telling that they have dropped out of the legal arguments that have been marshaled against the bill. One reason for this curious situation is that complaints about racial profiling and selective enforcement have historically been framed as violations of Fourth Amendment rights. But it also so happens that the legal challenge against SB 1070 is being led by the Department of Justice which, for obvious reasons, is not interested in setting legal precedents that would limit the search and seizure power of the police. The Supreme Court, which is currently deliberating over the DOJ's lawsuit against SB 1070, also has a history of favoring the discretionary powers of law enforcement over Fourth Amendment considerations.

    It is important to keep this context in mind when evaluating the legal arguments that are being levied against SB 1070. The DOJ is advancing a finely pitched argument which takes issue with the law making powers of local governments but not the search and seizure practices of law enforcement. It is also bears noting that the DOJ is not opposing local immigration laws on principle. The DOJ supported Arizona's employer sanctions law (penalizing businesses that hire unauthorized migrants) which was subsequently upheld by the 9th Circuit and Supreme Court. The federal government also doesn't seem to be opposed, on principle, to the involvement of police in enforcing federal immigration laws. The Obama administration has actually given state and local police new opportunities to enforce immigration laws. It has only taken issue with local enforcement practices that operate outside of the federal-local enforcement arrangements that have already been authorized by federal law.

  • April 3, 2012
    Guest Post

    By Inimai Chettiar, Policy Counsel at the American Civil Liberties Union, where she serves as national legislative counsel to end mass incarceration in states across the country.


    Yesterday a divided Supreme Court ruled in Florence v. Burlington that any person arrested can be subject to a strip search - even for a minor offense or traffic violation – without any reason to suspect that they may be carrying a weapon or contraband. (Read the ACLU press release here.)

    As disturbing as the practice of subjecting people accused of minor offenses to degrading strip searches is, it wouldn’t be a problem if those people weren’t thrown behind bars in the first place. Unfortunately, U.S. jails are full of people accused of minor, nonviolent crimes. One such person was Albert Florence (pictured), a 35-year-old Black man erroneously arrested in 2005 for failing to pay a traffic fine he had already paid –  and whose experience is the center of the case decided by the Court.

    A New Jersey state trooper pulled over Florence’s pregnant wife as she was driving Florence and their four-year-old son to dinner to celebrate their purchase of a home.  Because Florence owned the vehicle, the officer ran his license and discovered a warrant for an outstanding noncriminal traffic fine. Despite the fact that Florence had already paid the fine and carried an official letter proving it, the police handcuffed and arrested him and dragged him off to jail.  He was incarcerated for six days and subjected to two invasive strip searches. As Florence recounts, "I was just told, 'Do as you're told.' Wash in this disgusting soap and obey the directions of the officer who was instructing me to turn around, lift my genitals up, turn around, and squat." The next day a judge freed Florence, confirming that he had in fact paid his fine.  (You can hear more from Florence in an ACS podcast interview. )

    In a 5-4 opinion, the Court held that two New Jersey county jails had not violated the Fourth Amendment by routinely strip searching all new detainees including those, like Albert Florence, who had been arrested for minor offenses and were unlikely to spend more than one night in jail. With 13 million Americans jailed each year, the decision could have far reaching consequences. 

    At the same time, the Court was careful to note that the strip search policies it upheld did not involve any physical contact with the detainee, and only applied to detainees who were housed with the general population. Whether those reservations prove to be meaningful constraints on the power of prison officials to strip search detainees remains to be seen. More significantly, perhaps, at least 10 states already prohibit routine strip searches without reasonable suspicion, including New Jersey. (Read the ACLU’s amicus brief submitted on behalf of former attorneys general of New Jersey.)

    Yesterday’s ruling provides the country with an opportune moment to reflect on our epidemic of mass incarceration. There are six million people currently in prison or under correctional supervision in the U.S. — more than were in Stalin’s gulags.

  • March 25, 2012
    Guest Post

    By Theodore M. Shaw, Professor of Professional Practice at Columbia Law School; “Of Counsel” to Fulbright & Jaworski, LLP; and an American Constitution Society Board Member. He was an attorney at  the NAACP Legal Defense Fund for twenty-three years and was Director-Counsel and President from 2004 until 2008.


    John Payton, the sixth Director-Counsel and President of the NAACP Legal Defense and Educational Fund, Inc., died on March 22, 2012, after a brief illness, at the age of sixty-five. John was one of the most formidable advocates of his generation, and he litigated and argued some of the most important civil rights cases of his time. His legal career spanned private practice, governmental service, and public interest. He led the litigation department of Wilmer, Cutler & Pickering (now Wilmer, Hale), served as corporation counsel for the District of Columbia, and led the NAACP Legal Defense Fund. Among the Supreme Court cases he litigated were NAACP v. Claiborne Hardware, in which he won a decision in the U.S. Supreme Court overturning a monetary judgment against the organization under Mississippi’s secondary boycott law; City of Richmond v. J.A. Croson Co., in which he ably, albeit unsuccessfully, defended a minority contracting municipal ordinance; and perhaps most notably, two cases in which he defended the University of Michigan’s pursuit of diversity in admissions, Gratz v. Bollinger, and Grutter v. Bollinger. Most recently, in 2010, John successfully argued and won Williams v. City of Chicago,an employment discrimination case against the city’s fire department. Under his leadership LDF won five Supreme Court cases, including a successful defense of the recently extended Voting Rights Act.

    I had the privilege of knowing John Payton for almost thirty years. Among the most significant matters on which we collaborated were the two Michigan cases. It is said that success has many parents, while failure is an orphan. There were many who were responsible for the 2003 landmark affirmative action cases that saved diversity in higher education, thereby keeping the doors open to selective colleges, universities, graduate and professional schools. John litigated both cases in the trial courts, in the court of appeals, and in the Supreme Court. He argued Gratz, and his work was essential to the victory in Grutter. I was deeply involved in both cases, and while the Legal Defense Fund represented intervening black and Latino students in Gratz and filed an amicus brief in Grutter, the posture of “reverse discrimination” cases excludes or marginalizes the voices of those who have the most at stake -- African Americans and Latinos. Even as John represented the institutional interests of the University of Michigan, it made a difference to black and brown students, and people across the Nation, that his voice, eloquent, forceful, and passionate, was heard in oral arguments before the Court. And so it was in all of the civil rights cases John argued. His was a passionate voice for racial and social justice. But even in the “orphan” cases – which for John were few - John’s work and his voice were no less forceful, excellent, and passionate. When the Supreme Court struck down Richmond, Virginia’s minority contracting program in Crosonby a narrow 5-4 vote, it was not because John Payton failed his client. He had done the best that could be done, and a Supreme Court increasingly hostile to programs and efforts specifically designed to include African Americans and others who had been historically excluded from opportunity was on its way to becoming a forum in which they were unlikely to win. Yet John, in the aftermath of Croson, tirelessly traveled the Country, meeting with attorneys in the public and private sectors in an effort to properly craft contracting programs and to ameliorate the effects of the decision. John did not accept defeat. He simply went back to work.