Reasonable Suspect

In 2016, I published an article titled "Unsuspecting" in the Boston University Law Review that explored how a constitutionally "suspect" classification (like race) might lose that status. In its conclusion, I argued that suspect classification was doing more harm than good for the groups it purportedly protected. It had become only a tool to strike down legislation that sought to achieve racial equality.

I termed this dynamic "partial racial politics". Far from representing a near per se rule against de jure wielding of race, the actual doctrine is that "government can legislate on race freely, except when it expressly seeks to combat ongoing racial inequality." "Suspect classification doctrine is a vestigial artifact that only comes into play when racial minorities appear to be winning the political game." The government relying on race to cut off Black communities from White neighborhoods, or to decide who to execute? Supposed "strict scrutiny" falls silent. Too many minority students going to college, or voting, or entering into political office? Then strict scrutiny and a commitment to radical colorblindness suddenly comes roaring back.

I wrote that article, again, in 2016, and while living in California. I presented it in Louisiana, where one bit of pushback was basically to argue that the risks of giving up suspect classification for race look different in California versus Louisiana. Just how confident was I, really, that suspect classification doctrine was no longer deterring any sort of racist legislation? Who knows what sorts of White supremacist malice would be unleashed if the "democratic" branches were unshackled once more?

Today, in a typical unreasoned shadow docket opinion, the Supreme Court (by a likely 6-3 vote) cleared the Trump administration to use racial profiling as part of its immigration enforcement raids. Racial background can validly be part of the basis for forming reasonable suspicion that a person is in the United States without legal documentation. The only Justice to write substantively in defense of this atrocity was Justice Kavanaugh, who suggested that undocumented immigrants have no legally protected interest in "evading questioning" and documented immigrants and U.S. citizens suffer no material injury because "the questioning in those circumstances is typically brief, and those individuals may promptly go free after making clear to the immigration officers that they are U.S. citizens or otherwise legally in the United States." What's a little race-based "stop and show me your papers" in the land of the free?

I look at today's decision, and I can't decide whether the conclusion to my 2016 paper was correct. On the one hand, the Court since then has grown only more aggressive in declaring an implacable commitment to colorblindness in the aforementioned circumstances of too many Black and brown people going to school or voting. The juxtaposition of those commitments, chest-thumpingly backed by an ironclad commitment to "colorblindness", against the willingness to sanction "color-consciousness" when it is deployed as a tool to terrorize immigrants (or those suspected of being immigrants, or those the government simply wants to terrorize under the guise of regulating immigration), seems to be a crystalline manifestation of the "partial racial politics" dynamic I identified in my article.

And yet, my Louisiana interlocutor's critique also feels more salient than ever before. In a 2025 where the government is not even nominally constrained from race-based policymaking, what horrors lie just beneath the surface, waiting to emerge? It somehow seems to simultaneously be true that the Supreme Court is doing nothing to stop (indeed, is the handmaiden of) the tidal wave of White supremacist fury crashing over the polity, and also that if we explicitly told the federal judiciary to butt out things could only get worse -- and worse in ways so terrifying I struggle to name them.

I don't have a resolution to this dilemma. We live in impossible times, where nakedly White Supremacist Senators align with a White Supremacist presidency and a White Supremacist Supreme Court to wage war on American constitutional liberty. Against this onslaught, what doctrine could ever hope to save us?

There's No Wrong Way To Terrorize a Black Guy in the Eighth Circuit

Last week, the Eighth Circuit released an opinion in Clark v. Clark, a case involving a law-abiding Black gun owner in Missouri. Police responded to claims of gunshots in the vicinity of a Missouri rest stop. On arrival, they encountered Gregory Clark, a Black man sitting a table outside the building. Seeing they were officers, Clark immediately handed over his driver's license, retired military ID, and concealed carry permit, and also informed them he was armed. He was questioned if he had heard any gunfire (he hadn't) and where he was going (Chicago).

Then the police ran his identification (which came back clean). Clark was apparently not wild that the police ran his ID, which he thought was potentially a case of racial profiling, and asked a question gesturing in that direction ("[would you] have done that to anyone else?"). The officer responded poorly, angrily replying "don’t play the race card with me", and returned the identification cards back to Clark.

The police then left Clark, and Clark in turn returned to his vehicle and drove away in the direction of Chicago. The police trailed him, and Clark began to fear for his life. He made a U-turn, and officers continued to follow. After more cop cars began to arrive on the scene, he pulled over to the side of the road and placed both hands outside of the window to show he wasn't holding his gun. Officers nonetheless approached the car with weapons drawn, one pointing his gun at Clark while ordering him out of the car. After a bit more confusion and discussion, it was eventually determined that Clark had committed no crime and done nothing wrong, and he was allowed to leave once more.

The Eighth Circuit, in an opinion by Judge Erickson joined by Judge Colloton, concluded that the entirety of the police conduct -- which culminated, let's recall, in the police pointing their weapon at a Black man who had done absolutely nothing wrong and had seemingly taken every conceivable step to scream out "I am not a threat" -- was wholly lawful.

And that's why I flag this case. In an alarming number of circumstances, there is nothing a Black man can realistically do to avoid having a gun pulled on him by police. He can be entirely law-abiding, forthright about his (legal) gun ownership, compliant with police demands, going out of his way to and keep his hands clear -- doesn't matter. And likewise, he cannot seek to avoid police interactions -- even knowing (apparently accurately) that they put him at risk of having a gun pulled on him for no reason whatsoever. Judge Erickson, for example, argued that both Clark's highway U-turn to avoid the police, and his affirmative decision to put his hands out the window to show that he wasn't holding his gun, were "unusual and may be indicative of guilty conduct."

Chief Judge Smith disagreed -- and it is perhaps not coincidental that Judge Smith is the only African-American Judge on the Eighth Circuit. In his view, while the initial encounter at the rest stop was lawful (and I agree -- while I understand why Clark might have felt aggrieved, he was the only person in the vicinity where gunshots had been reported and he admitted he was carrying a gun), the police response to Clark on the highway was not (Judge Smith ultimately would have found that the officer nonetheless enjoyed qualified immunity).

Put simply, Clark is allowed to not want to interact with the police. African-American men have excellent reason to try to avoid police encounters for fully innocent reasons like "wanting to avoid an elevated chance of having a gun pulled on you" -- as this case well demonstrates. But there's really nothing they can do to avoid it -- including "literally trying to avoid it".

Meanwhile, today the Eighth Circuit en banc dismissed, by 5-4 vote, Dorian Johnson's claims against Ferguson, Missouri and Officer Darren Wilson for conduct stemming from the infamous shooting of Michael Brown (Johnson was walking beside Brown during the incident). Johnson alleged that Wilson ordered the pair to "get on the fucking sidewalk", then abruptly parked his car in front of the duo, blocking their path, struck Brown with the car door, got into a scuffle with Brown, and ended up firing his weapon at the pair (missing Johnson but striking and killing Brown). Nonetheless, the Court concluded that the pair had not been seized because (a) Johnson did not need to "remain by Brown's side" while Wilson and Brown fought and (b) the position of Wilson's police car did not literally block them entirely from fleeing the area.

The dissenters (Judge Melloy writing for Chief Judge Smith and Judges Erickson and Kelly) simply make mince-meat of this argument. The touchstone question for a seizure is whether the officer's actions would "have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business". There might not be a single area of constitutional law with more ludicrous precedents than this -- the sorts of scenarios where courts say, with apparent straight faces, that people would feel free "to ignore the police presence" are beyond absurd (to take one example, cited in the dissent: in United States v. Hayden, we were told that any reasonable person would feel free to ignore the police when the officer pulled up alongside the defendant, shined a flashlight on him, and screamed “Police!”). Yet even here, the facts clearly "communicated an intent to use a roadblock to stop Johnson’s movement," and therefore a seizure.

The argument that the roadblock did not literally prevent all modes of escape from the area should be too ludicrous to reply to if the majority did not rely on it. Not only is that unrealistic in practice -- just how tight must the dragnet be, then, before it is conceded to be impossible to escape? Must the officers all lock arms in a circle? -- it has nothing to do with the legal inquiry, which is whether a reasonable person would understand the officers as trying to communicate an order to stop. Abruptly driving your police car to place it directly in front of your quarry's path does that, and it's not close. There's virtually no question that had Johnson attempted to "simply ignore" Wilson's directives the officer would not have thought "well, that's perfectly innocent conduct reflecting his right to ignore me under the Constitution" (look what happened to Clark!).

Of course, it's possible that in this case the extremely high-profile and heavily-reported nature of the controversy might have influenced the court's decision -- in particular, they might believe that the facts might not have been as Johnson alleged. But it is hornbook law that at this stage in the proceeding judges must accept Johnson's factual allegations as true -- disputes of fact are addressed at a later stage. And that matters because this case sets a precedent, which in turn applies to other cases down the line where the facts haven't been as thoroughly hashed out in the media as here. It is not just Dorian Johnson but any person who finds a police car screeching to halt inches in front of them after being screamed at by the officer who now will find that -- contrary to any actual "reasonable person's" perspective -- it would be wholly unreasonable for them to believe that the police were communicating that they needed to submit.

I'd say that the majority might have allowed itself to be swayed by the public nature of the controversy, except that gives them far too much credit. The fact is, the Eighth Circuit has near-infinite tolerance for police excesses directed against the citizens in its jurisdiction, in cases of any degree of public prominence. Clark is a low-profile case and Johnson is a very high-profile one, but they're tied together by the unifying cord of all the Eighth Circuit's jurisprudence in this area: extreme, complete, and unshakable deference to the police over and against ordinary citizens.

Suit Up Roundup

The latest wedding prep item to be checked off the list is my wedding suit. I like it. It's snazzy. Still have to pick it up post-alterations, though.

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Anil Kalhan explains what was evident to anyone paying attention: John Roberts didn't "overturn" Korematsu in Trump v. Hawaii -- he renamed it.

What do you call a Jewish Indian fusion food truck? Nu Deli. I love this more than I can express (semi-related: I picked up The Last Jews of Karala: The 2,000-Year History of India's Forgotten Jewish Community at a bookstore the other day. So far, so good.).

Right now, we're seeing growing recognition of the full diversity of the Jewish community. That's good. But it also means reckoning seriously with the fact that the Jewish community has not always been welcoming of our full diversity. Hey Alma hosted a roundtable discussion with six Jews of Color that's definitely worth a read. Sandra Lawson and Donna Cephas write of racism they've experienced within the Jewish community. And the Baltimore Jewish Times just ran a profile on Mendel Davis, son of an African-American Chabad Rabbi.

Nobody expects the National Review to defend the Spanish Inquisition!

An interesting blast from the past: the Jewish Current reprints an exchange between Rabbi Joachim Prinz and an antisemitic Christian pastor who heard him speak at an army base in Abilene, Texas. It is striking reading, precisely because the pastor's arguments come couched in language we'd recognize today: he condemns Nazism, acknowledges the existence of some good Jews, speaks in unfailingly polite terms -- but nonetheless makes sweeping generalizations against the faith as a whole to justify his bigotry. It's well worth reading not because of how alien it is, but because of how little the language of "civil" bigotry has changed over the past seventy years.

JTA profiles Alma Hernandez, a 25-year old Mexican-American Jewish women running for a seat in the Arizona House of Representatives. (She's also being targeted by David Duke, which is possibly the least surprising thing imaginable).

Nordstrom's Terrible, Horrible, No-Good, Very Racist (and Almost Entirely Legal) Racial Profiling Scandal

Three Black teenagers shopping for prom wear at a St. Louis-area Nordstrom's had the police called on them for suspected shoplifting. But that's skipping to the end of the story. Here's the beginning:

Mekhi Lee, Eric Rogers and Dirone Taylor were shopping at the Nordstrom Rack on Thursday when they noticed store employees closely eyeing them and following them through the aisles. Lee has just completed his freshman year of college and was with his
longtime friends, Taylor and Rogers, who were shopping for prom.

[Local NAACP President Adolphus] Pruitt said that one of the men wanted to try on a shirt, so he removed his hat to do so. The store employees kept following the men, Pruitt said, so they decided to leave.

Shortly after, the man who had tried on the shirt realized he left his hat in the store, so the three of them went back. That’s when they were approached by an elderly white woman who had also been shopping.

“Now they’re confronted by an elderly white woman in the store who says to them, ‘Would your parents and grandparents be proud of what you’re doing?’ ” Pruitt said. The woman also referred to them as “a bunch of bums,” according to Pruitt.

At that point, the men asked to speak to a store manager, but employees told them they couldn’t meet with one, Pruitt said. The men left the store a second time and turned back to see the manager come to sidewalk and wave.

That’s when they chose to return, Pruitt said.

“They decided, ‘We have money, we came here to shop and demonstrate to them that we aren’t thugs. We have money like anybody else,’ ” Pruitt said. 

While the men were making their purchases, the elderly woman was in line waiting to check out behind them. The manager, who is white, opened up a new register to ring the woman up, Pruitt said.

The manager then escorted the white woman to her car, Pruitt said.

While the men were paying for their items, they heard staff employees say they were calling the police. Pruitt said the men left the store and waited for the police to arrive.

Title 42, Section 1981 of U.S. Code is one of the single oldest civil rights laws in America. Enacted as part of the Civil Rights Act of 1866, it protects the equal rights of all persons to "make and enforce contracts" (including retail transactions) notwithstanding race. As the Supreme Court has made clear, this statute "protects the would-be contractor along with those who already have contracts." Indeed, in Runyon v. McCrary, the Court described a circumstance where individuals "sought to enter into contractual relationships" but were denied the ability to do on basis of race as "a classic violation of § 1981."

So you might think that, at least if it could be proven that the behavior of Nordstrom's employees -- shadowing and surveilling the customers, denying their request to speak to a store manager, then having that manager give them a mocking wave goodbye when they left in disgust, opening a new register for the benefit of a White customer behind them in line who had called them "bums" -- were race done because of race, it would violate federal law. The customers' ability to make a desired contract with Nordstrom's (here, buying prom clothes) would have been obstructed and interfered with on account in race -- in open defiance of Section 1981.

Fun fact: You'd be wrong. And again, you'd be wrong even if it was absolutely, 100% incontestably proven that Nordstrom's did this only to Black customers, due to avowedly racist beliefs acted on by store employees.

St. Louis, Missouri, you see, lies in the jurisdiction of the United States Court of Appeals for the Eighth Circuit (indeed, the Eighth Circuit is based in St. Louis). The Eighth Circuit, for its part, is the single most conservative appellate court in the country. And so Eighth Circuit observers perhaps would not be surprised to find out that in 2009 the Eighth Circuit, sitting en banc, handed down a 6-5 decision in Gregory v. Dillard's which immunized virtually all of the above behavior from legal challenge under Section 1981.*

The court concluded that neither a department store's practice of explicitly racist shadowing and surveillance, nor racist remarks or gestures directed at the customers, nor these things in conjunction, can make out a Section 1981 violation even in circumstances where it is indisputably the but-for cause for why a customer who otherwise planned to purchase a product decides not to do so. Hence, until Nordstrom's actually called the cops on the customers -- and perhaps not even then -- everything it was doing was wholly lawful under Gregory even if there was no question that it was targeting the Black customers due to their race.

The Gregory decision held that, as a matter of law, no amount of racial harassment or disdain directed at shoppers acts to "block" or "thwart" the creation of a contract -- only an explicit refusal to make a sale will do the trick. So if you're a Black shopper in Missouri and being nakedly racially profiled causes you to leave the store in disgust -- hey, that's on you. As far as the Eighth Circuit is concerned, you should have grown a thicker skin.

And yes, in case you're curious: part of the Eighth Circuit's rationale for why Section 1981 had to be constricted so as not to include racist shadowing, surveillance, and harassment is that these practices might be necessary to stop "shoplifting". Of course.

* The lead dissent in Gregory was authored by Judge Diana E. Murphy, whom I clerked for several years later. It was joined by Judges Bye, Melloy, Smith, and (in relevant part) Benton. Judges Murphy and Bye were Clinton appointees, while Judges Melloy, Smith, and Benton were all George W. Bush appointees. All six judges in the majority were Republican appointees. Judge Smith was also the only African-American judge serving on the Eighth Circuit at that time, and I believe only the second ever to sit on that court.

How To Turn #IStandWithAhmed Into an Anti-Obama Attack

The big viral story of the day is a Muslim teenager, Ahmed Mohamed, who built a homemade clock, took it to school to show his teachers his engineering prowess, and was promptly arrested for bringing a "bomb". The case smacks of racial profiling and Ahmed's heartbreaking statement vowing "never to take an invention to school again" has really hit home the emotional and practical depths of his treatment. The President has joined the chorus of condemnations and invited Ahmed to the White House., and Kevin Drum wonders if this might be something so obviously outrageous that even Republicans have to follow suit.

Even conservatives can't really defend what happened here. On the other hand, they can hardly agree with Obama, can they? What to do?

Please. This is easy. First of all, the statement of Irving's mayor (previously most-well-known for engaging in hysterical Islamophobia in an attempt to ban religious mediation), or that of the school district, is the perfect conservative response: no direct attacks on Ahmed, but stressing the importance of public safety and reporting suspicious threats, and congratulating authorities on being "vigilant" towards any "threats". It's basically how Republicans react to cases of police brutality when they can't gin up a decades-old theft conviction or an embarrassing Facebook photo mugging for the camera: vague indication that it sucks for the victim, overridden by the importance of trusting and deferring to the authorities.

But honestly, that's still only scratching the surface. The real opportunity comes from that invitation for Ahmed and his clock to come to the White House. Because when he arrives, obviously the Secret Service is going to check his bag, because that's what they do. And then somebody -- my prediction is Breitbart -- will crow about the naked hypocrisy of Obama condemning a local school district from taking the same precautions that his own security detail demands.

That's how you go pro in anti-Obama hackery.

UPDATE: BOOM! I called it:

#IStandWithAhmed Didn't s.o. mail battery-powered socks to VP Gore once? Secret Service saw a bomb and attempted a controlled demolition.

— Richard5832 (@richard5832) September 16, 2015

They Love Us for Our Freedoms?

A Tea Party acolyte sings the praises of Israel:

Hucke is a Christian who has spent years evangelizing at shopping malls, and by her lights, our once-godly nation has become so decayed -- so crime-ridden and secular -- that it's time to draw lines. She supports racial profiling, for instance. "We've got Mexican people streaming across the border, and we can't profile that?" she says. "And who's flying airplanes into buildings? Muslims! You know how they treat Muslims over in Israel? They stop and search them. Because they're the ones who are doing it."

Israel, of course, does profile rather aggressively (though I don't think profiling exhausts Israel's treatment of Muslims). Nonetheless, this is hardly the type of praise I think Israel wants, nor is it the reason most American Jews support Israel. Jews want to see a "light unto nations"; (certain branches of) Christians apparently are just marveling at Israel's fine-tuning of a security state.

I accept that Israel faces grave security challenges that it needs to react to. But one of the things I admire about it is the degree to which it has preserved a commitment to human rights in the face of that struggle. Israel's engagement in profiling may be necessary, but it is hardly the element of its society that I'd want to see sung from the rooftops.

The Grand Except

Arizona Law Professor Jack Chin is far, far more charitable than I'm inclined to be towards UMKC Law Prof Kris Kobach, a principal drafter of the Arizona anti-immigrant law who is falsely claiming in bars racial profiling. Of course, it doesn't -- the bill says that law enforcement officers "may not consider race, color or national origin . . . except to the extent permitted by the United States or Arizona Constitution." Which, under Arizona and federal law, they can -- at least to some extent. Professor Kobach simply omits the qualifier at the end of the passage.

Professor Chin graciously accepts that "the misleading quotation reflects Prof. Kobach's honest [though incorrect] recollection of the law", and urges him to go back to the legislature and get them to fix the language so it actually bars racial profiling. But, "[o]n the other hand, on the off chance that the law was actually intended to" sanction racial profiling, Professor Chin rightfully says the law's proponents should acknowledge that it does so.

NCAA and a Roundup of Other Things

I love the NCAA tournament. And I particularly love the first few rounds, with a billion games going on at once and buzzer beaters and upsets by nobody-seeds you couldn't find on a map. And then there's the fun of making fun of my Georgetown alumni. Unfortunately, this year I took pity on her and the Hoyas going to the Final Four. That turned out great -- teach me to be nice to Liz.

* * *

A retired US general has blamed the Srebrenica massacre on Holland allowing gays in the military. That's because this general is a prejudiced dick, with views that have no basis in fact, history, or logic.

Bibi Netanyahu has apparently listed off concessions Israel is ready to make after its serious diplomatic faux-pas that has strained US-Israeli (not to mention Israeli-Palestinian) relations. Essentially, it would freeze, though not cancel, the offending housing announcement, as well as release more Palestinian prisoners and reduce checkpoints in the West Bank -- even possibly expand the amount of West Bank territory under PA control.

Jon Chait quite properly eviscerates Juan Cole's attack on "people like Jeffrey Goldberg", and the general presumption of ascribing to any remotely pro-Israel figure sets of views that they don't hold. This is yet another example of the maddening vagueness that often typifies discussions about who believes what regarding Israel and Palestine.

It's a shame we don't do more racial profiling -- we might have been even less likely to catch this guy.

Rep. Bart Gordon (D-TN) becomes the second "no-to-yes" switch on the health care vote (after Dennis Kucinich).

Don't blog on controversial topics you know absolutely nothing about, unless you're indifferent to spreading malicious and false insinuations.

Thomas, Morales, Race, and Crime

City of Chicago v. Morales, 527 U.S. 41 (1999), dealt with the constitutionally of a Chicago ordinance prohibiting "loitering". Specifically, the statute, enacted in response to gang violence, intimidation, and drug dealing, forbid "criminal gang members" from "loitering" with one another or anybody else in any public place. Loitering was defined as staying in any one location without an apparent purpose. The police could order loiterers to disperse, but could not arrest the persons unless they disobeyed the order.

The Supreme Court struck done the ordinance, saying it was too vague. Justice Thomas dissented, and (among other points) wrote the following:

Today, the Court focuses extensively on the "rights" of gang members and their companions. It can safely do so -- the people who will have to live with the consequences of today's opinion do not live in our neighborhoods. Rather, the people who will suffer from our lofty pronouncements are ... people who have seen their neighborhoods literally destroyed by gangs and violence and drugs. They are good, decent people who must struggle to overcome their desperate situation, against all odds, in order to raise their families, earn a living, and remain good citizens. As one resident described, "There is only about maybe one or two percent of the people causing these problems maybe, but it's keeping 98 percent of us in our homes and off the streets and afraid to shop. By focusing extensively on the imagined "rights" of the two percent, the Court today has denied our most vulnerable citizens the very thing that Justice Stevens elevates about all else -- the "freedom of movement." And that is a shame.

I always find it interesting when Justice Thomas brings in his perspective as a Black man when crafting his judicial opinions (and I think that's pretty clearly what he's doing here), precisely because he is (falsely, in my view) alleged to never do so. Each time I read Justice Thomas write, I become more convinced that the claim he simply does not care about Black people -- that he has consciously and deliberately set himself away from the race -- is simply untrue.

After all, the claim Justice Thomas is making here is not unknown in the Black community. Randall Kennedy, writing in (among other locations) his book Race, Crime, and the Law notes that historically Black people in America have faced twin injustices from the criminal justice system: over-enforcement against Black alleged criminals, but also under-protection of Black victims. There is a definitive class within the Black community which, observing the gangs and drugs and street crime that are immolating their neighborhoods, wants nothing else than to see the police come down with an iron fist and crush the criminal element once and for all. That perspective can't be ignored, and it particularly can't be ignored when the communities which are seeking more stringent police enforcement are the same one's that are at risk from police racism -- a statement which may be true in many of America's urban cities. See Dan M. Kahan & Tracey L. Meares, The Coming Crisis of Criminal Procedure, 86 Geo. L.J. 1153, 1169-70 (1998).

The trade-off between risk of racist over-enforcement, and racist neglect on the other, is probably real, (some of the more extreme cases, like the recent apparent execution of an unarmed Black man by a San Francisco transit police officer, can be fought against without serious compromise, but over the broad stroke choices will have to be made) but there is something quite pernicious in largely White outsiders deciding where the line ought to be drawn. There are limits on how much pressure we can put upon the Black population via over-policing so we can feel safe, but there are likewise limits on how much we can deny police protection so we can feel like good liberals making our statement about the racist criminal-industrial complex. One Black student in my criminal law class today, reading Thomas in Morales said that while he doesn't agree with Justice Thomas often, something rubs him the wrong way about very abstract appeals to constitutional values when the folks who are getting killed by them are his aunts, uncles, cousins, brothers and sisters.

But. But. This is not the whole story either. When the Morales opinion was released, Steve Chapman wrote an editorial for the Chicago Tribune ("Court Upholds America's Right to Hang Out," Chicago Tribune, June 13, 1999, p. 19) where he made some important points. First, that Justice Thomas, living in wealthy Fairfax County, Virginia, isn't going to be ordered to leave his own neighborhood simply for talking to someone whom, it turns out, is an alleged gang member. Second, that Justice Thomas' perspective on what is good for the Black community is hardly universal, including amongst Blacks themselves. The ordinance in question in Morales, it turns out, received the votes of nearly all the White aldermen on the council, but the Black membership voted 2:1 against it. They were attuned to the risk that what they were being asked to vote for was essentially a new crime of "standing around while Black" -- and that's something of concern to their community too.

So what's the point to all this? The perspective of Justice Thomas, and those Black Americans who agree with them, is not "anti-Black". It is rooted in a particular conception of what the Black community needs in order to flourish and be safe. The mediation between over-enforcement and under-protection is a difficult question, and the line that Justice Thomas seeks to draw is not necessarily illegitimate. But at the same time, it is at the moment a minority view within the community, and both I and Justice Thomas need to be attentive to that. Insofar as the majority of the Black community still sees itself as more imperiled by police over-enforcement than they do by police neglect, that's an opinion I -- as a voter or a policymaker -- have to give significant(not blind) deference to. And Justice Thomas, for his part, has the right to make his case as to what policies best create equality for the Black community. But he has to be mindful that, being of the minority view in his community, listening to him is not exhaustive, or even sufficient, to say I've "engaged" the Black perspective on the subject.

Sunday Clearinghouse

Getting some tabs off my girlfriend's computer before I leave for Chicago tomorrow.

Reversing its previous stance, AirTran has apologized to a Muslim family kicked off a plane for discussing where the "safest" place was to sit. The family was cleared to fly by the FBI, but AirTran still refused to rebook them.

There are a bevy of international law analyses floating out there of Israel's Gaza operation: An overview written prior to the attack by Avi Bell and Justus Weiner, Eric Posner, Kevin Jon Heller, and Marko Milanovic. The most important things you can draw from them, collectively, are:

(1) The legality/morality of Hamas' attacks on Israel have little bearing on the legality of Israel's response, and vice versa;

(2) Most lay commentators don't know what "proportionality" means in the context of international law; and

(3) Determination of whether Israel is, in fact, violating international law in the current operation depends on a lot of facts that most of us simply do not possess. Speculation on either side of the question tends to simply mirror pre-existing political commitments and works to obscure more than it illuminates.

Norm Coleman is not thrilled with how the recount is progressing.

The Worst Americans of 2008.

Massachusetts police are balking at enforcing the state's newly relaxed laws on marijuana, which make it only a civil offense. The reason appears to be less a belief that pursuing marijuana users is a waste of police time, and more a protest against the new lenient law, which they view as fatally flawed.

Those LAPD Profiling Stats

I flagged this study by Yale law professor Ian Ayres in the civil rights roundup [The link in which I've now fixed -- DS], but I just wanted to block quote some of the findings:

We found persistent and statistically significant racial disparities in policing that raise grave concerns that African Americans and Latinos in Los Angeles are, as we put it in the report, "over-stopped, over-frisked, over-searched and over-arrested." After controlling for violent crime rates and property crime rates in specific neighborhoods, as well as a host of other variables, we found the following:

For every 10,000 residents, about 3,400 more black people are stopped than whites, and 360 more Latinos are stopped than whites. Stopped blacks are 127% more likely to be frisked -- and stopped Latinos are 43% more likely to be frisked -- than stopped whites.

Stopped blacks are 76% more likely to be searched, and stopped Latinos are 16% more likely to be searched than stopped whites.

Stopped blacks are 29% more likely to be arrested, and stopped Latinos are 32% more likely to be arrested than stopped whites.

Now consider this: Although stopped blacks were 127% more likely to be frisked than stopped whites, they were 42.3% less likely to be found with a weapon after they were frisked, 25% less likely to be found with drugs and 33% less likely to be found with other contraband. We found similar patterns for Latinos.

Not only did we find that African Americans and Latinos were subjected to more stops, frisks, searches and arrests than whites, we also found that these additional police actions aren't because of the fact that people of color live in higher-crime areas or because they more often carry drugs or weapons, or any other legitimate reason that we can discern from the rich set of data we examined.

The LAPD, of course, is using the study as an impetus for much needed reform hotly contesting the validity of the numbers. Some of their objections are methodological, ones I think Prof. Ayres dispatches quite handily. But several betray a fundamental misunderstanding of what this sort of finding means, and demonstrates how the "are you calling me a racist!?!!?" reaction acts to stifle really important and necessary discussions.

The police representatives say, basically, that the study is flawed because a) it does not account for the race of the stopping officer and b) data cannot tell us what individual officers are thinking when they make any given decision to stop or frisk a suspect. Both of these objections operate from the same basic thought, which is basically that the purported conclusion of this report is that the LAPD is racist, that racism is purely a function of the state of mind of a particular actor, and that raw data can't provide that information and in any event it is patently absurd to think that, say, Black officers have racist views towards other Blacks.

Now, Prof. Ayres said that he did, actually, find that the racial disparities in rates of arrest did fall somewhat when at least one of the arresting officers was of the same race as the suspect. This, he points out, is bad news, because it indicates that the disparities may be attributable to racial bias. But, he goes further, that really isn't the point of the study -- it makes no claim as to the state of mind of any or all of the arresting officers. The point is to demonstrate that, whatever is driving the policing policies in Los Angeles, they are falling on Black and Latino persons far more than can be at all justified by legitimate policing goals. That's a problem regardless of what is in brains of the officers when they are making the decisions, and regardless of what race the arresting officer is.

What Prof. Ayres research shows, if anything, is that intention is not a necessary component to demonstrating a racially unjust distribution of effects. Responding to this type of data with flailing assertions about it's all meaningless because intent is missing prevents these really rather simple insights from getting into the public consciousness. I might say that intent or foreseeability is a component of moral culpability, and without knowing the state of mind of any individual LAPD officer I cannot justly label them bad persons. But showing that the systematic distribution of effects is improperly skewed so as to unfairly burden certain racial groups is sufficient to show that an injustice is present, and impel upon society a duty to rectify it.

Related Posts:
The Profile, 8/18/07

"Fit the Description", 12/14/06

Civil Rights Roundup: 10/23/08

Your daily dose of civil rights and related news

Breath-taking results from a study by Ian Ayres on racial profiling by the LAPD. I'm probably going to write a separate post on this one -- the data is jaw-dropping.

The polls on Proposition 8 have been narrowing, and it looks like the right to gay marriage will go down to the wire.

Three Jews, Four Opinions has a good perspective on how Jews concerned about Halakah should approach issues like same-sex marriage.

ACORN is fighting back against smears that it is (among other things) destroying the fabric of democracy.

America wastes the talents of immigrants with college and professional degrees. One in five college educated immigrants are either unemployed or in unskilled professions, and the problem persists even when the field is restricted to those here legally. Unsurprising note: Highly educated African and Latino immigrants fare worse than their Asian and European peers.

The number of low-income families in America has risen by 350,000.

The EU parliament has given a prestigious human rights award to a Chinese democracy proponent, in direct rebuke to the ruling Communist regime.

The Senate is trying to get the number of foreclosures under control in exchange for the massive bailout money the banks are getting from the federal government.

A federal court is preparing to rule on the propriety of citizenship tests for voters.

In Wisconsin, the forces who care about voter suppression (Democrats) gear up to do battle against those who care more about voter fraud (Republicans).

Though it has been trying to make some reforms, the system for re-enfranchising ex-felons in Florida remains seriously broken.

The Government Accountability Office blasted the civil rights record of the USDA, saying it was unresponsive to reports of discrimination and suggesting it be brought under external oversight.

The British High Court wants to see documents which might verify whether a British Guantanamo detainee was tortured.

Civil Rights Roundup: 10/14/08

Your daily dose of civil rights and related news

Among other problems, the language interpretation at Guantanamo Bay trials is awful.

Wyoming remains one of the few states without a hate crimes law.

The Tulsa World: Many Native Americans don't celebrate Columbus Day.

Civil rights leaders are worrying that a new agreement between Las Vegas officials and ICE will increase racial profiling and decrease the reporting of violent crime.

Working from the ground up: Increased success by local Black politicians is getting White voters used to Black leadership. See, e.g., my home of Montgomery County, which recently elected African-American Ike Leggett as our County Executive. Montgomery County is 65% White and only 15% Black.

The Supreme Court has cleared the way for Troy Wilson to be executed. Wilson, convicted of capital murder, became a cause for many death penalty opponents (or supporters who care about justice) because the vast majority of the witnesses against him have since recanted their testimony.

Gay couples in California worry it's now or never. What a sad position to be put in.

Are Georgia election officials illegally purging voters?

The war over Amendment 46 continues to rage in Colorado.

Civil Rights Roundup Returns! (09/30/08)

Okay, here's the scoop everybody. The civil rights roundup is back. But it will be on a significantly modified schedule. For starters, this is likely the only Tuesday you'll see it, as I have class with only a lunch break straight through from 9:45 - 4 that day. Most days, though, a probably abridged roundup will show up by mid-afternoon.

And with that, away we go!

The trial of a South Carolina state trooper accused of ramming a fleeing suspect with his car has begun.

A group of pastors gave political sermons in an effort to provoke a showdown over whether the IRS can withhold tax-exempt status to religious bodies which engage in political activity.

A prosecutor has been appointed by Attorney General Michael Mukasey to continue the investigation into the US Attorneys firings.

Early voting has been approved in Ohio.

The NAACP claims racial profiling is on the rise in the Seattle area.

Civil rights leaders are targeting Greenbelt, Maryland's at-large election system as diluting the power of Black voters.

A Montana woman whose same-sex partner adopted a child has gained parental rights, a first in Montana.

The Governor of Colorado has come out against the efforts to ban affirmative action in that state.

A Lowell man has plead guilty to hate crimes after beating someone due to his perceived sexual orientation.

A sex discrimination case against major glass manufacturer will move forward after the presiding judge rejected a motion to throw out the case.

Smaller school districts are beginning to encounter the language barrier.

Efforts to register veterans are foundering on a mess of red tape. But maybe they're "phony veterans" anyway?

This Boston Herald story commits the typical universalist fallacy of assuming Whites' views of Blacks, and Blacks' views of Whites are equally groundless.

American Airlines has endorsed the Employee Non-Discrimination Act. And here comes another boycott!

Off to a Fine Start

A Black member of a dance troupe on (of all things) an international goodwill tour was forced to dance by Israeli security upon arriving at the airport in order to prove his identity. The man, Abdur-Rahim Jackson, was singled out by Israel's notoriously tough airline security personnel due to his Muslim-sounding name. As it turns out, he's engaged to a Jewish woman with relatives in Israel.

Fortunately, it appears that this did not derail the entire trip:

Jackson said he did not plan to press the matter further, saying the numerous apologies he has received from American dignitaries and his Israeli hosts is "enough for me." The Israel Ports Authority said it had no comment because it did not receive a formal complaint.
[...]
Jackson said that since the Israeli airport incident, the reception in Israel has been "amazing."

"We're only here to bring positive light to our lives and the people here," he said, calling the group's multicultural appeal "an amazing bind you can't touch, you can only experience."

Via Prom6.

Civil Rights Roundup: 08/06/08

Your daily dose of civil rights and related news

Almost forget today, kids ... I took the day off from work to catch up on some law school related paperwork, and my mind assumed it was a weekend.

It's tough being a woman of color in the military.

Chicago is starting to detain Hispanics during traffic stops on suspicion of being illegal immigrants, apparently in violation of local law.

Cry me a river of tears: Prince Williams County's aggressive campaign to undertake immigration enforcement on its own is costing more money than expected.

Two members of the Congressional Hispanic Caucus have written an op-ed protesting the Bush administration's policies in the wake of the Postville raid.

The McCain campaign has apologized after a Black reporter was apparently singled out and tossed from one of his events.

Mr. Medellin has been executed. Hopefully, the damage to the Vienna Convention will not be too great.

The Atlanta police force is facing a sex discrimination lawsuit from a former high ranking officer.

Wal-Mart is furiously denying that it told its employees to vote against Democrats (which would have probably been illegal).

A local resident has stepped up to pay the tuition of a high school valedictorian who was facing deportation due to his father's immigration problems.

The original judge on the Jena 6 case has already been removed, and now defense attorneys are trying to follow suit with the prosecutor.

A poultry plant with a large contingent of Muslim workers has replaced Labor day with a Muslim holiday as one of the worker's eight official days off. Despite the fact that all the principals (management and the union) seem to be happy with it, the union president (who is Jewish) is getting a lot of negative feedback from outsiders who think that its anti-American. Or something.

The EEOC has found evidence that a Louisville Sheriff violated the civil rights of female employees through sexual harassment.

Bad headline, good story about the battle to register Black voters as Obama makes a play for North Carolina.

Chicago-area parents are alleging that the practice of holding classes in trailers is abetting racial segregation.

The NYT asks: Is Obama the End of Black Politics?

Civil Rights Roundup: 08/04/08

Your daily dose of civil rights and related news

The part of this story about video-taping errant traffic cops is not civil rights related. But the part about private citizen videos serving as a check against abusive cops is.

Nothing says sensible immigration policy more than deporting a 31 year old legal immigrant for a theft charge she got probation for ... as a teenager.

The Washington Post accuses the Virginia GOP of trying to scare voters away from the polls.

Texas is set to go forward with the Medellin execution, despite pleas from President Bush and the World Court to hold off.

New Mexico becomes the first state to adopt a Navajo textbook. I say: if you come to America, better learn to speak the language Anglos!

Now hospitals are getting in on the deportation game.

Is reduced illegal immigration a function of enforcement or the economy?

The railroading of suspected illegal immigrants continues to get attention.

Civil rights groups are nervous about new federal profiling that will hit Arab and Muslim Americans hard.

The DoD admits it targeted a man with accusations of spying for Israel strictly because he was an observant Jew.

The Confederate flag battles are moving to private property.

New Jersey adds religion-based jokes to the list of things that can constitute work-place harassment (here is the ruling).

Will the Obama campaign fracture or renew the Black/Jewish alliance?

Civil Rights Roundup: 07/31/08

Your daily dose of civil rights and related news

The Bush administration proposal to force hospitals and clinics to exempt employees who don't want to dispense birth control is gearing up to be a huge fight.

A report by the anti-immigrant Center for Immigration Studies credits the drop in illegal immigration population to stepped up enforcement.

The WaPo urges that Texas hold off on executing a Mexican citizen until Congress has time to address the international treaty concerns that made his case controversial in the first place.

ICE has released more information about its can't miss self-deportation program.

A Colorado man has been arrested for killing a transgender woman. Look for the trans-panic defense coming soon.

The Boston Globe has an editorial urging Congress to dig deeper into what went wrong with the Bush administration's Justice Department.

Should we make the right to vote explicit in the constitution?

CNN quoting Steve Sailer in the "Black in America" series (for any other proposition other than "there are still White racists around") may not have been the wisest choice.

Activists protesting public housing demolitions in New Orleans are being held on criminal charges, including (originally) terrorism. That charge has been dropped, others are still pending.

The 11th Circuit holds that, notwithstanding its anti-discrimination rules, the University of Florida must recognize a fraternity that requires its members to be Christian.

Florida Hispanics continue to protest racial profiling in their communities.

Anti-affirmative action proposals are on the ballot in Colorado, Arizona, and Nebraska.

The Deseret News reports on a election reform hearing (the very one that made yesterday's roundup late, as it happens) that got good reviews from voter advocates and civil rights groups.

The SCLC: New Orleans is "one of the most racist communities in this country."

Finally, condolences to the family of Sammy Davis, Jr., who just died. DUH! He died in 1990. I don't know why it came up in my search of daily news sources. Bizarre. Way to make me look like expose me as a moron, Google News.

Civil Rights Roundup: 07/30/08

Your daily dose of civil rights and related news

Sorry for the delay folks, I was on the Hill this morning.

In a resolution offered by Rep. Steve Cohen (D-TN), the House of Representatives has formally apologized for slavery and Jim Crow.

There is much to criticize with regards to the efforts against AIDS in the Black community.

In a related story, if Black Americans were a country, they'd rank 16th in the world in AIDS infections.

ICE has got a fool-proof new immigration strategy: Deport yourself!

The US will finally and belatedly end its ban on HIV-positive travelers.

The Catholic community is registering its concern with stepped up immigration raids.

The Houston Chronicle: If Hispanics don't succeed, Houston doesn't succeed.

Californians may soon be able to register to vote online.

The Federal government has gotten involved in the case of a racially-tinged fatal beating of a Hispanic immigrant.

Hispanics in West Palm Beach, Florida are complaining that immigration authorities are racially profiling them.

Three men who were assaulted in a scrap yard are filing a federal civil rights claim against their attackers.

Backers of the ballot initiative which would strip gay couples of their right to marry in California are pissed that voters will be told that their initiative will tell voters... it would strip gay couples of their right to marry in California.

The House once again is looking to circumvent DC's right to home rule by getting rid of its revised gun registration rules.

The Massachusetts legislature passed a bill repealing a 1913 law which prohibited out of state gay couples from marrying. The bill was originally targeted at inter-racial marriage.

Civil Rights Roundup: 07/17/08

Your daily dose of civil rights and related news. I'm going to New York this afternoon and won't be back until late tomorrow, so the roundup will be off until Monday

What is the world coming to when hippies attack the homeless?

An Arizona sheriff is being accused of racial profiling in his aggressive efforts to roundup undocumented immigrants.

The University of Texas is working to make sure websites which document human rights atrocities don't disappear.

Prison guard fired for wearing a beard in accordance with his religious obligations.

Missouri ordered to bolster efforts at registering low-income residents to vote.

ACLU will defend Amish in suit over how to label their horse-drawn buggies.

Census won't count gay marriages.

Latino squad earns respect at Watts basketball tournament.

A 3rd Circuit panel held that removing disruptive Christian protesters from a gay pride event was constitutionally permissible. In an opinion joined by the third justice on the panel, Judge Dolores K. Sloviter justified the removal because the protesters went beyond distributing literature and waving signs, and actively attempted to drown out the proceedings. A concurring opinion also would have upheld the removal, but on the grounds that the protesters used "fighting words" when they referred to a transgender woman as a "she-male" and told her she would be going to hell.

The NAACP was cordial but not exactly warm when John McCain came visiting.

One oft-repeated (by me as much as anyone) refrain about racism is that overt racist sentiment is not really expressed or actively believed much in modern America. Some 2004 survey data seems to indicate we're too optimistic about that.