Forget Intent: Why The School Closings are Plainly Discriminatory

28 05 2013

Last week, the Chicago Board of Education closed 50 schools, including ten percent of the city’s elementary schools. More than 80% of the students impacted are black. About 42% of CPS students are black.

A lot of emotions and outrage get ginned up. The CEO of the Chicago Public Schools was outraged, because she had supposedly been called a racist in pushing a policy of mass closure of public schools. Schools CEO Barbara Byrd Bennett was outraged that “as a woman of color,” she could be accused of racism. Also, how could the Chicago Teachers Union and its allies in the parent and student community call the school closure plan “racist” when its purpose is purportedly to get kids out of failing schools? (As one of several rationales).

There’s two parts to the answer here, and they’re very important, and each deserves its own, focused article (so let’s do one at a time). The one of interest right now is the nature of a discriminatory policy; one for another day, is the conditions that result in discrimination.

Racist can be a tough word to hear or to understand. The school closure plan is absolutely not racist in the way we think of Archie Bunker (that’s old-timey Eric Cartman for you youths) as being racist–that is, fueled by conscious hatred for a group, or subconscious fear of that group. But that is not the only definition of racist. Many a racist remark has been made with good intentions, for example; we can all think of cringe-inducing incidents of those from our personal experience. So perhaps it’d be better to call the school closure policy discriminatory. Oh, CPS’s school closure plan is plainly discriminatory. The only open issues are whether the government had no choice but to be discriminatory. To date, CPS has not made that case.

This isn’t controversial, in fact. Discrimination based on race is not about the intent of the discriminator. It’s about the effect of the policy. This isn’t Leftist race theory, this is taken directly from the United States Congress. Even to the Congress it’s long been understood that a private employer or a government body can be guilty of discrimination even with a pure heart. Several pieces of long-standing legislation bear this out: the Civil Rights Act’s “Title VII” which bars discrimination in employment; the Fair Housing Act, which bars discrimination in housing; the Americans with Disability Act; and the Age Discrimination in Employment Act, among others. These statutes all, either on their face or through interpretation by courts, contemplate that a policy can be discriminatory–have racist effects–even absent any racist motives.

In such scenarios, intent is immaterial. Motive is immaterial. What matters is, when a powerful actor (an employer, a government) acts, it has to be sensitive to the impact of that policy on protected classes–whether they be women or people of color or religious minorities or the disabled–and aware of possible disparate impacts. If they aren’t sufficiently careful to justify or mitigate those impacts, then they have discriminated. Again, don’t ask me, ask Congress–and take an example.
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If We Had a Judiciary Seriously Concerned With Justice

7 05 2013

This Mother Jones article detailing the outrages of the public defender system really lays bare the fact that access to the justice system is something you have to be able to afford, not unlike health care or education or everything always.

A citizen’s ability to express her constitutional rights is as important as the right itself. To that end, access to the legal system to vindicate our various rights are critical. For too many Americans, the immiseration of labor means insufficient resources (money) to avail themselves of the legal system. If the government, or your employer, or whoever, is screwing you over, you likely can’t afford to assert your constitutional or statutory rights.

This is particularly true if you’re a poor criminal defendant. In a place like New Orleans, your overworked and underpaid public defender, the person entrusted with safeguarding your constitutional rights as a citizen, may only have seven minutes to prepare your case.

A federal judiciary that put access to justice, rather than “federalism” and “judicial economy” at the core of its jurisprudence, should never stand for this outrage. The right to effective counsel, found in the Sixth Amendment and applied to the states by the Fourteenth (in a case called Gideon v. Wainwright, so such clients or attorneys are may be referred to as Gideon clients or Gideon counsel), is no less a right than speech or free exercise or bearing arms. But it’s treated more like a mere check box on a procedural list; did you technically have counsel? Then the state satisfied the Sixth Amendment.

Rightfully, the federal courts should be accepting habeas corpus writs from state courts in every case where an indigent defendant was represented by one of these Gideon attorneys in a state with underfunded public defenders (e.g., every state) and overturning their convictions on Sixth Amendment grounds. Habeas writs from final state court decisions can be filed in federal venues where the criminal defendant can allege certain classes of constitutional violations implicated by the process leading up to his conviction. The Sixth Amendment is one of those, and a federal court has the power to invalidate a conviction on Constitutional grounds. Imagine if a state faced the prospect of every Gideon-scenario conviction being overturned by a federal court. It’s a wonderful vision of a legal system that cared as dearly for those who cannot afford to assert their Constitutional rights as it does for massive corporations it shields from class actions.

Obviously this will never, ever happen. It does seem to me to be the only way to force state legislatures to take this Constitutional right as seriously as they do the Constitutional rights of pharmaceutical companies to advertise to you or gun manufacturers to sell you military-grade weaponry.