Based on the U.S. Supreme Court argument in the Wisconsin Gerrymandering case, I am optimistic that we may get some very much needed reform. To see why, click here for my commentary on TheHill.com.
I went out for an early walk recently. One of the things I like about taking a walk is the way it clears the mind. This morning, the fog lifted and I realized with great clarity that I was an affirmative action baby. About a decade before I applied, Princeton had made the decision, not just to eliminate the quota that limited the number of Jews admitted, but to actively encourage Jews to come.
When my high school college advisor suggested I apply to Princeton I was surprised. Princeton was not on my radar. But all the top students at Midwood wanted to go to Harvard, so I figured it was worth a try. I will never forget the day my parents drove me to campus for an interview. I expected to be grilled on whether I was good enough. The admissions office was on Cannon Green, cattycorner from Nassau Hall where the 1783 Treaty of Peace ending the Revolutionary War was signed. I don’t remember the man’s name, but I think he was an assistant Dean. And the whole interview was about trying to convince me to come.
I walked out and told my parents, in a tone that must have revealed both my joy and surprise, that they want me to come. Is it ever great to feel wanted. After that, there was never any question in my mind where I was going. I remember trying to conceal my sense of joy from fellow students at Midwood High – I didn’t want to be taken as bragging. And by the way, Yale Law School treated me much the same way four years later. This was not the education I expected. But I would have had to be dumb to turn it down.
It doesn’t seem to have occurred to anyone to challenge my credentials because Princeton decided to encourage Jews to apply and come. I think it was a good bargain for everyone. As a group we were hungry for knowledge, opportunity and a chance to make the world better. And Princeton designed its program so that we students got to know our professors. Some of them invited us to their homes; some of us invited them to dinner with our friends.
Only one African-American graduated with our class. So I was proud of the school when it made the same decision to bring African-Americans to campus and then did it again with women. That’s quite a transformation between about 1944 and 1969. And it didn’t hurt a bit. Princeton is still at the top of everybody’s chart of the best schools to go to 55 years after yours truly graduated.
When I got to law school, I really got to experience and appreciate the value of diversity. Students came from literally all over the world to study with a couple of my teachers. I learned a great deal. Some of it was comic, like the student who wanted to work for Pakistan in order to promote the independence of Kashmir, directly contrary to Pakistani policy. One of my fellow students nearly burned my stomach with Indian spices. And I was terrified to introduce my dates to him because they all thought he was gorgeous. But they all enriched my life, my understanding and my appreciation of different peoples.
So yes, I’m an affirmative action baby. I’m not the least bit embarrassed about it. I hope I’ve justified their confidence in me – I’ve certainly spent my life trying.
— This commentary was broadcast on WAMC Northeast Report, September 19, 2017.
The North was segregated after Brown outlawed segregation in 1954. It didn’t happen by private individual choices but by government decisions that blocked banks from lending to African-Americans in both the suburbs and inner cities. Those now well documented decisions created many of the inner cities’ problems and the struggle to make equality real. But who cares?
Who cares because all the proposals to fix a huge injustice, not in the distant years of slavery but now, mean paying to help “them.” It’s fine if someone else pays. But not us, not the wealthy, the middle class or the poor.
So are there answers society could adopt?
We nibble: the Fresh Air Fund, scholarships for the African-American elite, the people who overcame all the potholes and roadblocks in their way.
In 1938, years before Brown, the Supreme Court understood that the inescapable sin of segregation was the barrier to networking. Missouri was prepared to send African-Americans to any law school in neighboring states so that they would get what Missouri called an “equal” education, but not to Missouri schools. Presaging Brown, the Court said it wasn’t equal to deny African-Americans the chance to get to know future colleagues, adversaries, judges and legislators. As Brown would say 16 years later, segregation is inherently unequal.
There lies the real problem of race – any real solution involves us all. Would we put the resources into “their” schools that we put into “ours”? Would we share some classrooms? Would we allow willing parents to send their kids to our schools or would a modest program be too much for us or the racist majority on the court in Washington?
I think there will be success for African-Americans too. Fresh out of slavery, their ancestors created a system of higher education, fine colleges and universities which survive and thrive. Then they started the climb toward the middle class familiar to many of us. Many African-Americans joined the ranks of civil servants in the federal government. Government service had been a route out of poverty for many of our ancestors. But beginning in 1913, after years of progress, President Wilson excluded African-Americans from all but menial federal jobs, pushing educated and successful African-Americans out of the federal bureaucracy.
That story was repeated after World War II, after Brown v. Board, when federal officials denied that African-Americans had any rights the capitalist system need honor and instead used the federal agencies they controlled to block African-Americans from getting loans to build businesses or join the march to the suburbs. It wasn’t anything African-Americans did, but that deliberate undermining of their efforts and successes laid the seeds of contemporary inner city problems.
There are many more chapters to the story of the ways that the financial and political rugs were pulled from under potentially successful African-Americans and their businesses. The road of our African-American brothers and sisters has been longer, harder, more unjust than the ancestors of most of the rest of us because America made it so.
I was there in front of the Lincoln Memorial when Dr. Martin Luther King shared his glorious dream. That dream of equality belongs to all of us. All of us depend on the crucial American realization that all mankind is created equal. So, like most Americans, I thrilled to King’s words. And I admire the principled courage and dedication of Charlottesville’s counter-protestors. Their presence was an indication of the progress America has made, and their struggle reflects the distance still to travel. King’s dream, our dream, is still a dream.
— This commentary was broadcast on WAMC Northeast Report, August 22, 2017.
Last night I heard an episode of Radio Lab, which they call “Shots Fired,” that is far and away the best presentation I have heard about the persistent tragedy of police shootings.
They were very blunt about the part that racial prejudice plays in leading cops to make all the wrong assumptions with tragic results, as well as the disasters brought about by those cops who use positions in the police force to act out their aggressions, who are, in a word, bullies. It was also realistic in analyzing steps that a few departments have taken to break or attenuate the chains of events that lead to tragedy.
I’ve known, written and spoken about police shootings for decades and am well acquainted with the outlines of what has been going on. This program was a very well-rounded, well-done piece. It had me in tears for a full hour, but it was by no means all “touchy-feelie;” the program explored stories, facts, statistics, a support group, conversation with police administrators and some real understanding and sleuthing by some very dedicated, thorough and persistent reporters.
This is a podcast everyone should see and hear, including the police – the reporting is done in a way which can even reach police administrators who are looking for why these events happen and how they can deal with it.
Radiolab did us a service; now we need to get the story out.
For the podcast, click here.
You will see mention of a very different follow up which was not aired and is for podcast only. It examines the miscommunications which led to the killing of a white woman. The point they try to make in this second podcast is that there are multiple opportunities for miscommunications which can and did have tragic results. In this case the woman, thinking the police were intruders, came out holding a shotgun, the last trigger to the barrage of shots which killed her.
Last week I spoke about labor. Next week is the anniversary of Martin Luther King’s speech at the 1963 March on Washington. I intended to connect the two. After hate intervened in Charlottesville, that’s even more urgent.
In the late 19th and early 20th centuries the Progressive Movement was making great strides on behalf of American workers and farmers. Gradually, the political parties adopted parts of the Progressives platform and many of their proposals were eventually adopted. But in the South, white elites drove a stake through the heart of the Progressive Movement by dividing workers on race. It took the Great Depression of the 1930s to wake America up.
The March on Washington that many of us remember as Martin Luther King’s great triumph was actually called by a coalition of labor leaders. Labor understood that workers had to stand together or they would be trashed together. If you could underpay African-American workers you could underpay everyone. The AFL-CIO, clear about the ways our fates interrelate, was a major supporter of the Civil Rights Movement.
But some politicians used racial prejudice to drive a wedge into support for progress, to prevent government from providing benefits and services for all of us, and then take the “savings” as tax breaks for themselves. Far more whites land on the public safety net but politicians want us to believe it’s just African-Americans. Far fewer African-Americans than whites depend on public schools but politicians want us to think money spent on schools is wasted because “they” get it. In area after area, politicians convinced many of us to starve public services. They want whites to think we would never need what African-Americans would get. They tell us we don’t want to spend anything on “them.” We should be allies, but the politics of race turns us into competitors.
Last time, I described how states and the Supreme Court have been undermining labor’s political role even as it augments management’s. So-called free market “conservatives” don’t want to do anything for the public, for you, your kids and your parents. They tell us that the market solves all problems for the deserving and only the undeserving need help, even while sanctimonious business men poison and defraud us. The real culprits want the freedom to take advantage of us while piling on more tax breaks for themselves. Racial prejudice just makes it easier for them to hide their own misbehavior.
So I want to make three points. First, racial prejudices do the greatest harm when politicians exploit them. I applaud those who condemn the violence and the perpetrators specifically. White supremacists don’t just object to policies – they hate everyone different from them. And no, Black Lives Matter is not a racist organization – objection to racism isn’t racism.
Second, the Supreme Court handed us heavily armed racists massing and marching to intimidate the rest of us. That must stop. Guns have no place in politics or public debate. Worse, white supremacists here admire Hitler, and study his path to power. Hitler’s Brown Shirts terrorized Germany. These folks are terrorists.
Third, Trump has done permanent damage to American politics. His close ties to groups which hate a large portion of America because they think we have the wrong parents is outrageous and highlights the danger of those hate groups. Trump has shown a path to power that every decent American must reject.
I was in front of the Lincoln Memorial when Dr. Martin Luther King shared his glorious dream. I thrilled to his words. But the March on Washington which we remember for Dr. King’s words was called and organized by the labor leaders of America dreaming of unity for all the working men and women of America. It is still a dream. We have to make it come true.
— This commentary was broadcast on WAMC Northeast Report, August 15, 2017.
To make it available on the web, I am posting this commentary originally aired on Dec. 10, 2003 together with a note describing the literature:
ON THE EFFECTS OF BROWN
It is easy to forget how recent are the pathologies that so many of us now routinely associate with black “ghettos”.
My dad taught music in a high school in Brooklyn. Because of the way music was handled, he had almost everyone who came through the school in his classes. When the district boundaries were changed in the early 60s he reacted with relief. The black kids who now came to the school were much easier to handle than the white toughs who now went to other schools.
In my youth black leather jackets were much scarier than black skin.
I am suggesting that the pathologies we associate with poor black ghettos are a product of the past half century.
Before Brown v. Board there was an entirely separate black economy. Riots and lynchings made it a dangerous world for blacks. But you could have all your needs taken care of without ever stepping outside of the black community from hair cuts to a plot in a cemetery. There were black doctors and black hospitals, black stores and black insurance companies. Some black communities were quite successful. Jealous whites burned the black district in Tulsa among others. Slaves had been trained in all the needed skills and one looked to their descendents until poorer whites forceably ejected them after the Civil War. In that black economy, however limited, blacks were masters in their own house.
By the time of Brown, large changes were affecting the black community. Blacks came north for jobs that had been opened by World War II. They moved into cities near those jobs.
Meanwhile, the Federal Highway Administration built the roads that opened up the suburbs. That led to an exodus. We burned a lot of gas in our old 1937 Chevy getting to old friends who’d moved out.
But the Federal Housing Administration red-lined the suburbs. That is, if you were white, you could have your mortgage guaranteed. If you were black, you were not welcome. The suburbs from their origins were lily white not because of white flight from blacks but because a house in the country had been an American dream which whites, but not blacks, were now able to realize.
They couldn’t move to the suburbs, and going all the way back to the time of Brown, what was variously called urban renewal or slum clearance tore down blacks’ homes in the cities. Blacks just called it “Negro clearance.” What happened to all those black businesses? When the government seizes property it has to pay just compensation. But only to the property owners. It assumes that lessees, i.e. most businesses, can get equivalent value elsewhere, that nothing is destroyed. But of course if the business is dependent on the neighborhood trade, it loses what we lawyers call good will and businesses call it loyal customers. As businesses were forced out, they had to start over, on the ground floor.
Minority-owned “mom-and-pop” businesses declined by half from 1960 to 1980.
Storied neighborhoods, live with business and social networks, are simply gone. Torn down to make way for offices and white owned stores. And then deserted even by the whites because there was no neighborhood left to support them – people had gone to the suburbs or been pushed out for “renewal.”
Now add Brown into the mix. all those blacks who had been shopping inside the black community could shop at Woolworth’s and other national businesses. So another economic prop was pulled out from under the black community.
Integration was not an unmixed blessing. Whole industries in the black economy disappeared and, with them, much of the capital that had been amassed. Working in the white economy meant starting the ladder at the bottom, playing by white rules and customs, and insisting on white good faith in hiring, training, educating and promoting blacks.
Ten years after Brown, Congress passed the Civil Rights Act of 1964 including provisions relating to equal employment, housing, public accommodations and government programs. Then the battle started in earnest with some defendants fighting decade long legal battles to avoid having to do anything. That was when courts started to employ the same remedies that they had for schools, telling defendants that they had talked the talk long enough and now they were going to have to do the behavior. Those orders are the origins of affirmative action.
I don’t want to make the claim that everything was better before Brown. I have lived through that transition and I know better. But I get very depressed when people claim that the black community has not shown the pluck and ingenuity and savvy and dedication to self-help that other immigrant groups have. On the contrary, they followed precisely that pattern until the fruits were systematically pulled out from under them.
For a brief biliography on resegregation after Brown v. Board, see Stephen E. Gottlieb, Robin L. West, Brian Bix and Timothy D. Lytton, JURISPRUDENCE, CASES AND MATERIALS: AN INTRODUCTION TO THE PHILOSOPHY OF LAW AND ITS APPLICATIONS, 3rd. ed., 940n (LexisNexis, 2015):
Melvin L. Oliver & Thomas M. Shapiro, BLACKWEALTH/WHITEWEALTH: A NEW PERSPECTIVE ON RACIAL INEQUALITY 17-18, 51-52, 150, 174 (1995) (tracing the continued impact of FHA’s racial preference in enhanced white wealth today); Douglas S. Massey & Nancy A. Denton, AMERICAN APARTHEID: SEGREGATION AND THE MAKING OF THE UNDERCLASS 54-55 (1993) (summarizing FHA’s role in imposing residential segregation); Kenneth T. Jackson, CRABGRASS FRONTIER: THE SUBURBANIZATION OF THE UNITED STATES 203-15 (1985) (describing how “FHA exhorted segregation and enshrined it as public policy”); FlorenceWagman Roisman, The Lessons of American Apartheid: The Necessity and Means of Promoting Residential Racial Integration, 81 IOWA L. REV. 479, 486 (1995) (review of Douglas S. Massey & Nancy A. Denton, AMERICAN APARTHEID (“the massive new housing production fueled by the Federal Housing Administration (FHA) and Veterans Administration (VA) financing of suburban areas was a major cause of increased segregation”) (citing Charles Abrams, FORBIDDEN NEIGHBORS: A STUDY OF PREJUDICE IN HOUSING 229-37 (1955)) (“FHA adopted a racial policy that could well have been culled from the Nuremberg Laws”). See also National Comm’n on Urban Problems, BUILDING THE AMERICAN CITY 101 (1969) (concluding that “There was evidence of a tacit agreement among all groups—lending institutions, fire insurance companies, and FHA — to block off certain areas of cities within ‘red lines,’ and not to loan or insure within them” but later studies cited above found considerable and explicit documentation).
ABOUT THE AUTHOR: Steve Gottlieb is Professor at Albany Law School. His most recent book is Morality Imposed: The Rehnquist Court and Liberty in America. This commentary was broadcast December 10, 2003.
In one of the last cases to be decided this term of Court, the Supreme Court described the death of Sergio Hernandez as “a tragic cross-border incident.” Indeed. I want to make clear that I care deeply about this case. Several friends and I helped write an amicus brief to the Court about it.
Sergio Hernandez was 15 years old. The Court continued, “According to the complaint,” which the Court must accept as true at this early stage of the proceedings, “Hernandez and his friends were playing a game in which they ran up the embankment on the United States side [of the Mexican border], touched the fence, and then ran back down.” Border Patrol Agent Mesa caught and detained one of Hernandez’ friends but “Hernandez ran across the international boundary into Mexican territory and stood by a pillar that supports a railroad bridge spanning the culvert” between the c ountries. At a distance – the Court wasn’t precise but the culvert was up to 270 feet wide – Agent Mesa shot and killed Sergio Hernandez though the Agent was in no danger.
Notice the issues that the District, Appellate and Supreme Courts have been “struggling” with.
First, the Court had to deal with whether the Constitution itself authorizes a remedy when Congress has not provided one for the violation of constitutional rights. In other words, do our rights exist at the pleasure of Congress? That’s known technically as the Bivens question.
Second, do foreigners have any constitutional rights or may American officials kill them at pleasure? The Court of Appeals had decided that Sergio had no rights under our Constitution.
Third, even if Sergio’s rights were violated, did the Agent have “immunity … from civil liability.” They would have immunity if “their conduct ‘does not violate clearly established … constitutional rights.” So the fourth question is whether killing foreigners across the border violates any clearly established rights?
Along the way the Court commented that some of the issues in the case are “sensitive and may have consequences that are far reaching.” Sounds like the Court was thinking about foreign relations. The Bible just says “justice, justice shalt thou pursue.”
The Court finished by noting that the case “result[ed] in a heartbreaking loss of life” but thought the Court of Appeals should think about those issues before the Supreme Court reached any final resolution about the issues in the case:
- whether foreigners have any rights that American officials are bound to respect;
- whether there is any remedy for murder;
- whether murder by a government official is a clear violation of a constitutional right?
Abroad, and we use the same term when describing behavior in other countries, people who are protected from any responsibility for the harm they do are described as having impunity. It does not describe freedom. It describes lawlessness, in countries run for crime bosses and rapacious masters.
Think now about shootings of Americans in America by police officers, shootings of Americans with their backs turned, with their hands up, with their house keys in their hands. Are we now a nation with impunity? Does freedom still live here or are too many people here forced to bow, scrape and beg those with the power to kill. If there are people who, in the language of Dred Scott, have “no rights which … [American officials are] bound to respect,” does that mean that they and we are treated like the slave in Dred Scott?
 Hernandez v. Mesa, U.S. Sup. Ct. No 15-118, decided June 26, 2017.
 Brief for Amici Curiae Legal Historians in Support of Petitioners in Hernandez v. Mesa, U.S. Sup. Ct. No 15-118.
 Deut. 16:20.
 Dred Scott v. Sandford, 60 U.S. 393, 407 ((1856).