In this post, I’ll explore another possible way of accounting for differences in the three states’ incarceration rates, the racial threat hypothesis.  The basic idea is this: a larger racial minority population causes the majority to feel more threatened by the minority and consequently to prefer to stronger social control measures.

Here are the relevant numbers from Indiana, Wisconsin, and Minnesota:

As you can see, the incarceration-rate order tracks the order based on the size of the each state’s black population.

Interestingly, the pattern does not hold if you focus on the size of the white population.  The three states are almost indistinguishable in how white they are, and the order of “whiteness” does not follow the incarceration-rate order: Wisconsin is number one (86.2% white), followed by Minnesota (85.3%) and Indiana (84.3%).  We might hypothesize, then, that there is something about having a relatively large percentage of a particular minority group that tends to push incarceration rates higher.

A similar pattern is evident nationally.  Consider the top ten states by imprisonment rate (from highest to lowest):

Thus, among the top ten imprisoning states, eight are also among the top ten in the number of blacks or Hispanics relative to whites.  A ninth, Arkansas, is only a little outside the top ten in proportion of blacks.  The tenth, Oklahoma, seems to deviate from the pattern, but is still in the top half of both the black and Hispanic scales.

Now consider the bottom ten imprisoning states (from lowest to highest imprisonment rate):

Note that not one of the bottom ten for imprisonment is among the top ten based on the proportion of either blacks or Hispanics.

A possible explanation for these patterns comes from scholars who write about the “racial threat” phenomenon.  I’ll crib a little bit from a fascinating new article by Christian Breunig and Rose Ernst, “Race, Inequality, and the Prioritization of Corrections Spending in the American States,” 1 Race & Justice 233 (2011):

“Racial threat,” in the most simplified terms, describes a group of theories positing a relationship between the sizes of the Black population in one area to the extent of social control measures aimed at that population.  Broadly speaking, this theory posits that the presence of a racialized “other” in a population increases fear and/or hostility among White Americans toward this other group which, in turn, provokes support for social control policies.  Social control policies include but are not limited to social service policies such as “welfare,” as well as a host of criminal justice policies.  For example, Pamela Irving Jackson’s work in the area of policing has found a connection “between minority group size, competition for sociopolitical dominance, and the level of policing resources.”  (235)

In order to test the racial threat hypothesis, Breunig and Ernst have studied data from all fifty states over a fifteen-year time period and attempted to control for many different variables.  Their focus was on corrections spending, not imprisonment rates per se (my focus), but one would expect a correlation between the two.  More specifically, their dependent variable was what they call the “corrections priority index” (CPI), which is simply the percentage of state spending that goes to corrections.

Surprisingly, Breunig and Ernst found that CPI does not seem to be determined by any of the obvious political factors, such as which party is in power or whether the population is more liberal or conservative:

An intriguing aspect of our analysis is that we did not discover any evidence that institutional and political factors, including partisanship, divided government, referendum, and citizen ideology, influence the prioritization of corrections spending.  (243)

If not those factors, then what?

On the whole, our analysis suggests that structural factors, specifically racial threat and inequality, are the dominant forces in determining the prioritization of corrections spending. . . . We also find that the number of people incarcerated in state prisons as well as murder rates are statistically significant but have only small effect.  (243)

Breunig and Ernst more precisely quantified the racial effect as follows: “[A] 1% increase in the percentage of the African American population in a state leads to at least a 0.2% increase in the CPI.”  (244)

One potential response to this research is that race per se may not matter since we know that race is closely correlated in this country with poverty.  In other words, one might wonder if the “racial threat” theory should be recast as a “poverty threat” theory.

However, Breunig and Ernst also considered the effect of economic inequality on the CPI, and found that the racial variable had a distinct effect.  At all levels of inequality, increasing the black percentage of the population also increased the CPI.  Breunig and Ernst did find that inquality mattered, but only in states with relatively low black populations.  They suggest that “racial cleavages” are the primary social division that politicians exploit, but that class cleavages become salient in their own right in states in which there is little racial threat (238).

Putting all of this together, we might hypothesize that one explanation for Indiana’s high imprisonment rate (relative to Wisconsin’s and Minnesota’s) is that Indiana has a much larger black population, which triggers racial threat dynamics and a more powerful demand in the political system for social control.

But, if that’s right, how do we account for the fact that Indiana has much lower racial disparities in its prison population than its two neighbors to the north?  If Indiana’s whites feel more threatened by blacks, shouldn’t that translate into more vicious racial disparities?

Not necessarily.  This is all quite speculative, but let me suggest three possible reasons why strong racial threat dynamics might not necessarily produce high racial disparities.  First, the political demand for more aggressive social control must be mediated through a legal system that may be more committed to racial equality norms than the population at large.  Second, a relatively large black population probably means not only stronger racial threat effects, but also a greater voice for blacks in a state’s political and legal systems.  Blacks may not be able to (and indeed may not wish to) blunt the state’s demand for penal severity, but may be able to exercise some influence in minimizing the extent to which the demand is met through racially discriminatory policies and practices.  Finally, racial threat dynamics may serve to undermine social trust generally across a state’s population, leading to relatively higher white crime rates.

To be clear, I don’t think anything in my analysis here demonstrates that racial threat dynamics play an important role in explaining the relative imprisonment rates of Indiana, Wisconsin, and Minnesota.  But, to my mind, the racial threat hypothesis remains an intriguing possibility that may warrant further research.

The next post in the series will examine how imprisonment rates in the three states have changed over the past twenty years.

Cross posted at Life Sentences and Prawfs.

The U.S. Constitution’s 14th Amendment provides, among other things, that “[n]o state shall . . . deny to any person within its jurisdiction the equal protection of the laws.” The Constitution’s text actually provides no comparable limitation on the federal government, but the U.S. Supreme Court in 1954 held that the 5th Amendment’s Due Process Clause, which does apply to federal law, encompasses a nearly identical guarantee of equal protection.

But this equal protection guarantee gets used with rigor by judges, in their review of challenged laws, only when the government is discriminating on certain grounds (e.g., race or ethnicity), when the law impinges on certain fundamental rights, or, every so often, when a court believes that the government has acted so arbitrarily or perniciously that the government’s action cannot fairly be sustained.

It is the initial set of these circumstances—discrimination on the basis of race, ethnicity, or ancestry—that may seem, at least at first blush, to be rather problematic when it comes the government’s relationship to Indian tribes and their members. After all, tribal membership—which is a prerogative of the tribes, but is in some manner sanctioned by the federal government—almost always requires proof of tribal ancestry, often described in terms of a blood quantum such as one-quarter (a grandparent) or one-eighth (a great-grandparent).

Thus, when the government treats Indians differently from non-Indians, it is effectively, even if indirectly, treating persons differently on the basis of race or ethnicity or ancestry. In turn, one would think that the equal protection guarantee would be operating in full gear every time a law or regulation is enacted or enforced that relies on the distinction of being an Indian tribe or tribal member. To pose the issue more dramatically, why isn’t Title 25 of the U.S. Code, which after all is labeled “Indians,” one large conglomeration of presumptive equal protection violations?

The U.S. Supreme Court unanimously issued its formal answer to this question in 1974 in a case titled Morton v. Mancari, which involved a challenge by non-Indian employees of the Interior Department’s Bureau of Indian Affairs to the Bureau’s promotion preference for Indians. The Court rather matter-of-factly declared that “this preference does not constitute ‘racial discrimination’” and “is not even a ‘racial’ preference.” In a critical footnote, the Court explained that “[t]he preference is not directed towards a ‘racial’ group consisting of ‘Indians’; instead, it applies only to members of ‘federally recognized’ tribes. This operates to exclude many individuals who are racially to be classified as ‘Indians.’ In this sense, the preference is political rather than racial in nature.”

In other words, the fact that the tribes are sovereign entities means that relationships, including employment relationships, between the federal government and one or more tribes or its members (who are citizens of these separate sovereigns) can and ought to be viewed as fundamentally political in nature, at least from a constitutional perspective. What the Court sidesteps, of course, is the above-noted reality that the citizenry of these separate sovereigns is overwhelmingly a function of ancestry or race or ethnicity and, as is not the case with foreign sovereigns, the federal government has regularly approved, directly or indirectly, this type of tribal citizenship criterion.

Intellectually, the Mancari opinion can leave one quite disappointed if not perplexed, especially if one focuses narrowly on the Court’s analysis within the confines of equal protection doctrine. There is, of course, more to the complicated history of federal-Indian relations, and thus to the Mancari decision, than any clause-specific analysis can attempt to capture, and the striking inadequacy or superficiality of Mancari’s reasoning can no doubt be partly explained on that basis.

Nevertheless, the reality is that there remains a degree of tension—culturally and constitutionally—inherent in the special relationship between the federal government and the Indian tribes and tribal members within the nation’s borders. Perhaps there will come a time when the Court can speak with greater precision or candor, or within a different doctrinal landscape, and this tension can be diminished as a result. That said, the Court has ventured close to the meaning of Mancari only once in recent decades, in a 2000 case involving Hawaii, and has otherwise shown little interest in either revisiting or clarifying its original reasoning. Thus we are left with Mancari, with the tension that it leaves unresolved and the questions that it leaves unanswered.

For further reading, I recommend Bethany R. Berger, Reconciling Equal Protection and Federal Indian Law, 98 California Law Review 1165 (2010).

In this post, I cover racial disparity data in the two states.  As summarized in a helpful new article by Michael Rocque (“Racial Disparities in the Criminal Justice System and Perceptions of Legitimacy: A Theoretical Linkage,” 1 Race & Justice 292 (2011)), a substantial body of research documents wide racial disparities in the American criminal justice system.  Consistent with the national data, and despite longstanding reputations for progressive politics, both Minnesota and Wisconsin exhibit troublingly large disparities in white and black incarceration rates.

The numbers are set forth in a table at the end of this post.  In both states, the black incarceration rate is several times that of the white incarceration rate.  However, Wisconsin’s disparity ratio (10.6) is somewhat worse than Minnesota’s (9.1).

Although the difference between the numbers may not seem large at first blush, it does translate into a meaningful difference in the overall prison population.  For instance, if Wisconsin were able to bring its disparity ratio down to Minnesota’s 9.1 by lowering its black incarceration rate, that would mean a reduction in the state prison population of more than 2,200 individuals, which is about ten percent of the total.  Among other things, this would help to close the wide gap in corrections expenditures between Wisconsin and Minnesota.

Surprisingly, the two states have almost exactly the same disparity ratio in their probation populations: 4.2 for Minnesota and 4.3 for Wisconsin.  Because probation is a much more common disposition than imprisonment in both states (overwhelmingly so in Minnesota), the probation numbers suggest that disparities in Wisconsin and Minnesota are similar in the early stages of the criminal process (arrest, charging, conviction), but that Wisconsin’s disparities accelerate more rapidly than Minnesota’s in the latter stages (sentencing and revocation of community supervision).

In any event, at whatever stage of the process they arise, it is not clear what one should make of racial disparities.  A great deal of research has been done to try to determine whether the disparities are warranted (i.e., due to a greater crime-proneness among blacks or a tendency to commit more serious crimes) or unwarranted (i.e., due to conscious or unconscious racial bias in the design or implementation of criminal laws).  Reviewing this research, Rocque concludes:

It is fair to say that most recent studies conclude that racial disparities in the CJS [criminal justice system] reflect both differential behavior and treatment.  Even those studies suggesting that discrimination exists in the CJS grant that much of the racial disparities found can be explained by “legitimate” factors.  (299)

I reached a similar conclusion in a recent article discussing racial disparities in drug enforcement.

As Rocque also points out, however, it is too simplistic to think of racial disparity in either/or terms: either caused by black criminal conduct or white official bias, as if these were wholly distinct social phenomena.  More likely, there are powerful synergistic relationships between disparate treatment, perceptions of bias, loss of trust of the police in black communities, crime, and actual bias.  Rocque provides a complicated diagram with causation arrows pointing back and forth among these phenomena (303).  The basic idea is that racial disparities can feed on themselves to the point that the warranted/unwarranted distinction loses much of its significance.  If this sort of a feedback effect is indeed playing itself out in Wisconsin and Minnesota, the result may be elevated levels of both crime and incarceration in black communities.  (As I discussed in this post, research on procedural justice suggests ways to break the feedback loop.)

In the next post in this series, I will add data from the third state, Indiana, to the mix.

Cross posted at Life Sentences.

In the United States, zoning according to race had been found unconstitutional in the early twentieth century, but segregationists turned instead to private restrictive covenants to keep African Americans and members of other minority groups out of white towns and neighborhoods. Fortunately, the United States Supreme Court ruled in Shelley v. Kraemer (1948) that a court enforcing such a restrictive covenant was denying equal protection of the laws and therefore acting unconstitutionally. Would-be segregationists then attempted to sue private parties for breaching the covenants when they sold or rented properties to African Americans, but the United States Supreme Court said that any court entertaining these suits was also acting unconstitutionally.

In Israel, starting in the 1970s, Jewish nationalists began settling in the sprawling exurbs of northern Israel, where membership committees often decide who can buy local homes. When Jewish-only communities emerged in the Negev and in Gallilee, Arab citizens sued, arguing they were being excluded. The Israeli Supreme Court barred the exclusion, asserting that “equality is one of the foundational principles of the State of Israel.” However, just this year the Knesset in effect overruled the judiciary by enacting a law that allows local membership communities to reject potential residents who did not fit the “social-cultural fabric.”

Both extended controversies suggest that equality is impossible if citizens of different races and religions are not free to live where they want. One’s home and one’s ability to choose it are a base for one’s sense of equality, not in the Blackstonian sense of each man’s home is his castle but rather as a starting point for civic self-actualization. How can one understand oneself as equal without the same freedom as others to decide where to live?

It seems almost certain that the Supreme Court will again take up the issue of affirmative action in higher education, as two highly controversial cases separately make their way up the appellate ladder.

On two occasions, Regents of the University of California v. Bakke (1978) and the companion cases of Gratz v. Bollinger (2003) and Grutter v. Bollinger (2003), the Supreme Court has, by narrow 5-4 majorities, upheld the constitutionality of college and graduate school admissions programs that take race into account when making admissions decisions. In the same cases, the Court, also by 5-4 votes, struck down the use of formal admissions quotas (Bakke) and the awarding of a specific number of points for race in a numerically-based admissions systems (Gratz) as running afoul of the Equal Protection Clause of the Fourteenth Amendment. Although there was no clear majority sentiment on this point, the use of race as an admissions “consideration” was famously justified in opinions by now-former justices Lewis Powell and Sandra Day O’Connor as a way of achieving the “compelling state interest” in “diversity” in the composition of college and university student bodies.

In the first of the new cases, Fisher v. University of Texas, Abigail Fisher and a number of other unsuccessful white applicants to the undergraduate program at the University of Texas argue that they were denied the opportunity to attend the university because of its policy of taking race into account in making some of its admissions decisions.

The University of Texas uses an admissions system that guarantees admission to students who graduate in the top ten percent of their Texas high school classes. This system accounts for 81% of admitted students, but the other 19% are chosen through a competitive process in which race is taken into account as one of multiple factors used to determine which students will be offered admission. The policy was adopted following the Supreme Court’s decision in Grutter in which a similar practice by the University of Michigan Law School was upheld.

Fisher’s suit was dismissed by the federal district court on the grounds that this issue had been resolved by Grutter. On appeal to the Fifth Circuit, the three-judge panel unanimously upheld the decision of the district court, although one of the three, Judge Emilio Garza, filed a concurrence in which he forcefully questioned the correctness of the Grutter decision.

Fisher then petitioned for an en banc hearing, which was denied, although by a narrow vote of 9-7, with Chief Judge Edith Jones filing a dissenting opinion which was joined by four of her colleagues.

Fisher then petitioned to the United States Supreme Court for a writ of certiorari, and the petition remains on the Court’s current docket. To date, the University of Texas has, somewhat mysteriously, refused to respond to the petition, although at least six amicus briefs have already been filed. The Supreme Court has already taken the unusual step of formally requesting a response from the University, which now has until November 30, 2011, to file a reply or request an extension of the time to do so.

Should cert be granted, it is still possible that Fisher could still be argued before the full court during this term.

Two questions jump out in regard to this case. The first has to do with the personnel changes on the court since 2003. Is there now a five-justice majority willing to overturn the Court’s Grutter decision? Many observers think there is. Presumably, Chief Justice Roberts shares the affirmative action views of his predecessor Chief Justice Rehnquist, but there are strong reasons to believe that Justice Alito’s views are more in line with those of strongly anti-affirmative action justices Scalia and Thomas than they were of his predecessor, Justice Sandra Day O’Connor. However, the matter is somewhat complicated by the increasingly unpredictable views of Justice Kennedy, who could conceivably shift over to the pro-affirmative action side.

The other interesting issue raised by Fisher involves a question of standing. No court has yet ruled that either Abigail Fisher or any of her other co-appellants would have been admitted to the University of Texas had it not been for the school’s practice of taking race into account. This is a recurring problem in reverse discrimination cases: how does a plaintiff establish conclusively that he or she has Article III standing to challenge an allegedly unconstitutional admissions system that may (or may not) have affected them adversely?

It is possible, of course, that the trial court could reach such a conclusion, as it apparently did in Bakke and Grutter, but in this case there was really never an opportunity to do so, since the district court believed the question to be irrelevant under Grutter.

The Supreme Court may (or may not) have reached this issue in its 1999 decision in Texas v. Lesage, a Section 1983 action filed by an unsuccessful white applicant for a graduate program at the same University of Texas. In that case, the Supreme Court unanimously dismissed the plaintiff’s action, but there the trial testimony had included evidence that Lesage would not have been accepted to the program, even if all of the available slots had been filled by Caucasians. (My friend Vik Amar has written a very intelligent commentary on this question which can be found at http://verdict.justia.com/2011/10/28/an-update-on-the-fisher-v-university-of-texas-affirmative-action-case.)

The second of the two new cases involves an amendment to the Michigan state constitution enacted after the Supreme Court’s decision in Grutter. The amendment was designed to achieve what the Gratz-Grutter litigation had not. Similar state constitutional amendments had earlier passed in California and Washington.

The Michigan Civil Rights Initiative, formally known as Proposal 2, was a proposed amendment to the Michigan Constitution that was adopted by a public referendum in 2006, by a vote of 58% to 52%. The amendment prohibits any agent of the state from discriminating against, or giving preferential treatment to, anyone on the basis of race, sex, color, ethnicity, or national origin.

The Proposal 2 amendment was sponsored by a number of groups, including noted black anti-affirmative action activist Ward Connerly and the Michigan Civil Rights Initiative, whose executive director was Jennifer Gratz, the successful plaintiff in Gratz v. Michigan.

A number of different legal challenges have been filed against Proposal 2. An effort to have it removed from the ballot in 2006 as inconsistent with the federal Voting Rights Act was unsuccessful; however, after its adoption, it was again challenged on the theory that the amendment violated the Fourteenth Amendment to the United States Constitution.

In 2008, the United States District Court for the Eastern District of Michigan upheld the constitutionality of the Michigan Amendment, but that decision was recently reversed by a 2-1 decision of the Sixth Circuit Court of Appeals in Coal. to Defend Affirmative Action v. Regents of the Univ. of Mich. At the end of June, the court ruled that the amendment “unconstitutionally alters Michigan’s political structure by impermissibly burdening racial minorities.” The state of Michigan has petitioned for a hearing en banc, and as of the end of November, no ruling on the request has been issued.

While the Michigan case will not be part of the Supreme Court’s 2011-12 docket, it may well hear the matter the following year.

The Supreme Court has avoided making a conclusive ruling on the constitutionality of race-based affirmative action for almost forty years now, but the issue has a way of coming back time after time. However, with all the evidence pointing toward a sharply and evenly divided court, it is unlikely that these cases, if they are in fact heard, will be the end of the story.

On Wednesday of this week, the world lost several visionaries. Rev. Fred Shuttlesworth, a prominent civil rights activist, and Steve Jobs, co-founder of Apple, Inc. both died.  But there was a third visionary whose light went out on Wednesday:  Derrick Bell.

Bell was a visiting professor of law at New York University School of Law when he died. He is considered a pioneer of critical race theory, which theory examines issues of race, racism, and power in law and legal institutions.  But while he had spent most of his life as an academic, his roots – and his defining experiences – were in civil rights. Bell graduated with an LL.B. from the University of Pittsburgh School of Law in 1957 and, after a short stint in the Civil Rights Division at the U.S. Justice Department, went to work for the NAACP Legal Defense Fund, working closely with Thurgood Marshall, who recruited him.  According to Bell’s biography on TheHistoryMakers, while he was at the NAACP Legal Defense Fund, he oversaw more than 300 school desegregation cases.  His experience with those desegregation cases factored significantly in his developing interest convergence theory, which he wrote about in law review articles as well as in the 2004 book Silent Covenants:  Brown v. Board of Education and the Unfulfilled Hopes for Racial Reform.

I read Silent Covenants last year.  It is an amazing text that directly challenges the iconic U.S. Supreme Court decision in Brown v. Board of Education.  While that decision seems to remain what Bell called “the Holy Grail of racial justice,” Bell found the decision to be less about racial equality and more about national security.  Claims Bell, in the aftermath of World War II and rise of the Cold War, America found itself in a bit of what one might call a public relations bind.  It billed itself as a world leader in democracy, yet at that time de facto if not de jure segregation prevailed across the country. African Americans who enlisted in the armed services to fight (in their segregated units) Hitler and fascism in the name of freedom and justice returned home to find that they still were not allowed to eat at the same lunch counters or stay in the same hotels or go to the same schools as the whites for whom they had risked their lives.  This discrepancy did not go unnoticed by the Soviets, whom some feared would use America’s racial inequality to recruit members for the communist party.  So when the NAACP brought the Brown case to the U.S. Supreme Court, the timing was right to make some changes in America’s racial policies.

Said Bell in Silent Covenants, “Black rights are recognized and protected when and only so long as policymakers perceive that such advances will further interests that are their primary concern.”  Thus Bell introduces his interest convergence covenants, events in history where black rights were recognized but the underlying reasons were not recognition of the rights for their own sake but recognition because such rights served broader interests.

In his view, Brown should not have dismantled Plessy v. Ferguson as it did.  In fact, Bell claims, the Court should have upheld Plessy and actually enforced the “equal” part of “separate but equal.”  In this way, Bell believed most school districts would either be able to truly equalize their segregated schools or degregate on their own because they would not be able to afford to equalize.

It was typical of Bell to find that race mattered in a whole host of ways in a whole host of situations.  In fact, one of the criticisms levied against him was that he was often too quick to “play the race card.”  But he probably isn’t wrong.  Perhaps Bell saw racism everywhere because it is everywhere, although sometimes it manifests only in the most subtle of ways.

Thank you, Professor Bell, for your contributions to legal theory.  You will be missed.

RIP Derrick Bell, Pioneer of Critical Race Theory

On the whole, police should regard the report as good news. Here are some of the basic findings.

Nearly 17 percent of the population had face-to-face contact with the police in 2008. This is down from 21 percent in 2002. The most common reason for contact with police in 2008 was being a driver in a traffic stop (44 percent of contacts). Despite the overall drop in police contacts since 2002, the number of drivers stopped actually increased by five percent over the 2002-2008 period. (Query whether this reflects a more widespread adoption of the Milwaukee Police Department’s recent strategy of deliberately increasing this sort of police-citizen contact.)

What has really driven the overall drop is a huge decrease in the number of people reporting crimes to the police or otherwise requesting police assistance. Presumably, this is a reflection of declining national crime rates, although (a less positive interpretation for the police) it may also partially reflect less confidence in the police to respond effectively to calls for help.

Here’s the really good news, though. First, nearly 90 percent of those who had police contacts felt that police acted properly. Second, an even slightly higher percentage felt that police acted respectfully. Third, nearly 85 percent of drivers who were stopped thought that police had a legitimate reason for the stop. Finally, fewer than two percent of those with police contacts reported that police used or threatened the use of force against them.

Despite the good news, police ought to take note of some racial disparities in the responses.  The disparities are not dramatic, but they are consistent. For instance, while 92.7 percent of white respondents said they were treated respectfully by the police, the corresponding number for blacks was 87.4 percent. (6) Likewise, 90.8 percent of whites said that police acted properly, but only 84.2 percent of blacks. (6) Moreover, in some categories, Hispanics had even more negative views. For instance, among those who were investigated by the police, only 62.3 percent of Hispanics said the police acted properly, as against 69.6 percent of blacks and 82.3 percent of whites. (6)

As to traffic stops, 86.3 percent of whites said they were stopped for a legitimate reason, but only 73.8 percent of blacks gave the same answer. (8) Moreover, black drivers were three times as likely as white drivers to be searched during a traffic stop. (1) Black and white drivers were actually about equally likely to be stopped, but, once stopped, it appears that blacks were much more likely to experience a significant intrusion by police. The data thus provide a nice reminder that looking only at numbers of stops misses important differences in the character of different stops.

As to force, 1.2 percent of whites reported a threat or use of force by the police, as against 3.4 percent of blacks.

Although not broken down by race, I also found some of the other search-related information interesting. According to the survey respondents, traffic-stop searches were rarely successful; only 8.4 percent of searches actually produced incriminating evidence. (11) Additionally, most drivers who were searched did not think that police had a legitimate reason for the search. Depending on the type of search, perceptions of legitimacy ranged from 20.7 percent to 36.1 percent. (10) Data of this nature should perhaps play some role in the Fourth Amendment reasonability analysis for stop-related searches.

Cross posted at Life Sentences.

The arrest rates for simple possession and trafficking have not moved in sync, suggesting shifting patterns of enforcement in the War on Drugs.

In 1991, 36 percent of drug arrests were for trafficking, but that number has since dropped to 19 percent.  To judge by these numbers, the War on Drugs is now more than ever targeting users rather than dealers, although I think most people would agree that the dealers are more culpable.  I wonder how much of this trend results from the implementation of a couple thousand drug treatment courts since 1991; one of the recurring concerns about these courts is that they implicitly encourage police to target relatively harmless, low-level drug offenders in the hope that treatment will be made available for them.  It is at least an open question whether such “net-widening” constitutes the best use of scarce criminal-justice and drug-treatment resources.

There is also an interesting racial dimension to the drug arrests.  Although both whites and blacks have experienced increasing arrest rates for possession/use, the black rate has tripled since 1980, while the white rate has only doubled.  The black arrest rate is three times the white rate.  Given that possession/use is the second most common offense for which people are arrested (after only DUI), the possession/use racial disparities are a major driver of overall disparities in arrest rates.

Indeed, the black percentage of possession/use arrests (29 percent) is almost equally equal to the black percentage of arrests overall (28 percent).  These numbers are, of course, much higher than the black percentage of the general population (about 12.5 percent).  The numbers also make for an interesting contrast with DUI, where blacks constitute only 11 percent of arrestees.  The offenses with the largest disparities in arrest rates are gambling (68 percent black) and robbery (55 percent).  Drug trafficking arrestees are about 41 percent black.  Although these offense categories are even more racially lopsided than possession/use, the numbers arrested in those categories are much lower, which is why possession/use might still be thought of as a major driver of overall disparities.  (Query why DUI is so overwhelmingly a white crime and gambling so overwhelmingly black, at least as measured by arrest rates.)

A couple of caveats are in order.  First, arrest rates for a type of crime do not necessarily correlate with the incidence of that crime.  Many crimes go unreported (particularly, but not exclusively, “victimless” crimes like possession/use), and many reported crimes go unsolved.  To a great extent, arrest rates reflect discretionary choices made by police, either at the level of policy (e.g., targeting certain neighborhoods for “broken windows” policing) or at the level of the individual officer.  Thus, for instance, one should not assume that higher black arrest rates for possession/use indicate higher black rates of offending.  Indeed, survey data indicate that about the same percentage of black and white people are drug users.

Second, the arrest numbers used by BJS are based on annual reports made by a large number of police agencies to the FBI.  Within FBI guidelines, there may be some inconsistency in the way agencies collect and report data.  One notable FBI rule, though, requires that an arrest be associated only with the most serious offense charged.  Thus, arrests for relatively minor crimes like possession/use may be underreported to the extent that more serious offenses are also charged.  On the other hand, it is likely that individuals suspected of more serious crimes are sometimes arrested pretextually for crimes like possession/use, which are typically very easy to prove.  In such cases, an arrest may show up in the FBI data as a possession/use arrest, even though the arrest was largely motivated by suspicion of a more serious crime.

Cross posted at Life Sentences.

So what happened to most of the Native-American law school graduates in the 1990’s? Did they fail the bar examination? Did they decide not to practice law? Did they leave the country? Or, were they not really Native Americans after all?

The answer appears to be the latter. A large number of law students in the 1990’s, who were not actually Native American, reported themselves as Indians or Eskimos on their law school applications and in the materials they filed with the Law School Admission Council (LSAC).

Was this simply a case of students willing to lie about their identity in hopes of receiving special treatment by law school admissions committees, or is there another explanation?

Part of the problem is that many Americans think of Native American as an ethnic category, rather than a citizenship status. Furthermore, it is apparently understood to be an ethnic classification that still follows the “one drop rule,” so that any person with a Native-American ancestor is a Native American. While certain types of racial ancestry carried with them negative stigmas and were usually denied, if possible, most white Americans seem happy to boast about their Indian ancestry, especially if the ancestor was a grandparent, or some more distant ancestor.

As a legal matter, these assumptions are completely without foundation. In Morton v. Mancari, 417 U.S. 535 (1974), the United States Supreme Court confirmed that Native-American status was not a purely racial matter, but was derived from membership in a tribe recognized by the federal government. Moreover, at least since the Indian Reorganization Act of 1934, 48 Stat. 984 (now 25 U.S.C. §§ 461-79 (1983)), authority to determine tribal membership was vested exclusively in the federally-recognized tribes themselves.

In other words, the only people who are Native American are those whose status is recognized by their tribe. All members of recognized tribes have Tribal Identification Numbers (which are similar to Social Security Numbers and are sometimes referred to as registration numbers).

Native American status is, therefore, a concrete matter of tribal citizenship and not an amorphous racial classification. Consequently, a law student without a Tribal Identification Number is technically not a Native American, no matter what her or his ancestry may be.

The law school totals reported by the American Bar Association are based on self-reported ethnicity claims filed at the time of application to law school. The Census totals, in contrast, are based on a more rigorous definition of Native American.

Whether or not this same pattern was duplicated in the first decade of the 21st century is not yet clear, as the United States Census Bureau has not yet released its figures for the number of Native-American lawyers in 2010 (or, for that matter, for any racial, ethnic, or citizenship group). However, signs point to the continuation of the same phenomenon.

According to American Bar Association statistics, obtained from the Law School Admission Council and the law schools, there were 3332 Native-American third-year law students enrolled in ABA-accredited law schools between the 2000-01 and 2009-10 academic years. While a few of these students may have failed to graduate or failed to pass the bar examination, their numbers suggest that the number of Native-American lawyers in the United States should have at least doubled during the past decade, and there is little reason at this time to believe that actually happened.

Native-American lawyer groups have been aware of this discrepancy for some time, and they have expressed anger at what they believe has been the unwarranted assertion of Native-American status by law school applicants who have no basis for such a claim, and at what they see as an unjustified willingness of law schools to accept such claims at face value. Even today, only a handful of law schools—Harvard is one—ask students that claim Native-American status to name the tribe with which they claim affiliation.

(For reporting purposes the American Bar Association counts “Native Americans” as part of the category of “minority law students,” and for the past three or four decades all law schools have been under pressure to admit more minority students. To achieve a more diverse student body, most law schools will accept minority students with lower college grades or LSAT scores than normally expected of admitted students. Consequently, applicants who can claim to be a minority student have a strategic advantage when it comes to law school admissions.)

Concern that numbers inflated by the presence of pseudo-Native Americans were masking the fact that very few real Native Americans were attending law school in the United States, the leading Indian bar association finally decided to take action. On April 8, 2008, the National Native American Bar Association (NNABA) adopted a resolution denouncing the fraudulent self-identification of law school applicants as Native Americans.

The NNABA also expressed the belief that many of those who claimed to be Native Americans not only lacked a formal tribal affiliation but lacked any Native-American heritage whatsoever. As a solution, it called upon the LSAC to require law school applicants claiming Native-American status to list their tribal affiliation and Tribal Identification Number when they register with the LSAC as part of the application process.

After publicizing its claims in a number of different venues, in late 2010 and early 2011, the NNABA appealed directly to the American Bar Association’s House of Delegates and Committee on Legal Education and Admission to the Bar (of which the writer is a member) to endorse its proposals.

The efforts were successful, and on Monday, August 8, 2011, the ABA’s House of Delegates approved a resolution urging the Law School Admissions Council and ABA-approved law schools to require additional information from people who indicate on their registration for the Law School Admission Test and law school applications that they are Native American; specifically, they are to supply information about their tribal citizenship, tribal affiliation or their enrollment number. Applicants who don’t belong to a tribe recognized by the government but who wish to claim Native American status would have to provide a detailed “heritage statement.”

The ABA resolution has no binding effect, so it is still an open question as to how the LSAC and the law schools will respond to what NNABA president-elect Mary Smith refers to as “an issue of ethics and professional responsibility.”

Here’s what happened.  Winston was charged with sexual assault of a fifteen-year-old girl and convicted by an all-woman jury.  His lawyer had used his seven peremptory strikes to remove six men and one woman from the jury.  As Winston’s post-conviction counsel later discovered, the trial lawyer struck the male jurors because he thought that females would be more critical of the victim.

Apart from the fact that such gender discrimination is illegal, trial counsel’s strategy may actually have been a good one.  Indeed, the jury acquitted Winston of an intercourse charge.

No matter, the Seventh Circuit ruled.  Competent counsel (in the constitutional sense) does not discriminate against men in the exercise of peremptory strikes.  Period.

Because Winston’s claim arose in a habeas challenge to his state-court conviction, the Seventh Circuit had to sort out the complex interaction between the Batson line of cases on discriminatory use of peremptory strikes, the Strickland line of cases on ineffective assistance of counsel, and the limitations on habeas relief imposed by the Antiterrorism and Effective Death Penalty Act.

In order to establish a Sixth Amendment violation, Strickland requires that a defendant show both that his lawyer provided unreasonably poor performance and that he was prejduced by that poor performance.  The court had little difficulty concluding that Winston satisfied the performance prong:

Intentionally violating the Constitution by discriminating against jurors on account of their sex is not consistent with, or reasonable under, “prevailing professional norms.” Strickland, 466 U.S. at 688. To the contrary, Wisconsin forbids lawyers from engaging in unlawful representation. See WIS. RULES OF PROF’L CONDUCT, at Preamble (“A lawyer’s conduct should conform to the requirements of the law.”); id. at R. 3.1(a) (“In representing a client, a lawyer shall not . . . knowingly advance a claim or defense that is unwarranted under existing law.”). . . . In light of these well-established professional norms, we have no trouble concluding that trial counsel’s decision to strike jurors based solely upon their gender constituted deficient performance.  (21-22)

The prejudice prong was the more difficult one, for prejudice is not normally required for a defendant to obtain relief on a Batson-type claim.  Here’s how the court resolved the tension:

[W]hile a direct Batson claim would be viewed as a structural error and thus not subject to a harmless-error rule, a Strickland argument requires an examination of prejudice. But the Supreme Court has said that structural errors fall within “a limited class of fundamental constitutional errors that defy analysis by harmless error standards.” Neder, 527 U.S. at 7 (internal quotation marks deleted). If, therefore, analysis is impossible for harmless-error purposes, then it is hard to see how it would be possible for purposes of Strickland prejudice—after all, prejudice is the central inquiry in a harmless error inquiry. But a closer look at Neder reveals that the Court was not so much dispensing with harmless error as it was finding that structural errors “are so intrinsically harmful as to require automatic reversal.” Id. Translated into Strickland’s terms, it was saying that such errors inevitably “undermine[] confidence in the outcome” of a proceeding. 466 U.S. at 694.  (24)

But this finding of per se prejudice did not end the matter, for AEDPA limits relief to cases in which a state court has unreasonably applied a clearly established Supreme Court precedent.  The problem for Winston, as the Seventh Circuit saw things, is that the Supreme Court did not clearly establish the principle of automatic reversal for Batson violations until Rivera v. Illinois, 129 S. Ct. 1446, 1455 (2009) — two years after the state courts had rejected Winston’s Strickland claim.  Thus, although we can now see in hindsight that the state courts made a mistake in failing to give relief to Winston, he is precluded from getting a remedy for that error in federal court.

Cross posted at Life Sentences Blog.

What explains the different legal treatment of the two types of transracial adoption? David suggests two answers. The “formal” answer “involves the unique status of Native Americans under the law of the United States,” which regards tribes as sovereign nations of sorts. But a “more fundamental explanation” may have something to do with the unique force of racist attitudes towards African Americans and related negative beliefs regarding their parenting abilities.

David’s paper is entitled “Transracial Adoption: The Adoption of Native American and African American Children by Whites.”

According to the complaint (which can be viewed here), on March 10, 2010, MSP submitted a development application to construct 180 units of affordable housing in what is known as New Berlin’s “City Center.”  The proposal stated that the development would include 100 elderly units and 80 workforce housing units.  The development was intended to be financed in part by the Low-Income Housing Tax Credit program, a program that allows a developer to sell tax credits to investors in exchange for the promise that the developer will rent the apartments for below-market rates to tenants who qualify.  For this specific development, MSP was going to rent to individuals who made 40 to 60 percent of the median household income in New Berlin.  In New Berlin, the median income as of 2000 was approximately $70,000, which means the proposed development would rent to individuals who made $28,000 to $42,000 a year.

On May 3, 2010, the New Berlin plan commission voted 4-3 to approve MSP’s application.  The next day, the local media reported the approval, and residents of New Berlin began to voice their disapproval, with protests culminating at a local town hall meeting.  (Some examples of the local opinions voiced at that meeting are here.)  According to the complaint, Mayor Chiovatero also received threatening phone calls at his home, and had a sign that read “n—-r lover” placed in his front yard.

The complaint alleges that these events eventually led the Mayor to move for reconsideration of the approval, and the plan commission unanimously approved the Mayor’s motion to reconsider on June 7, 2010.  This vote eventually led to a 90-day moratorium on any new development proposals, and effectively denied the MSP application.  Now, the government alleges that New Berlin’s action violated § 3604(a) insofar as the City denied housing to individuals on the basis of their race when it voted against the MSP project.

Although it may seem like the complaint is based on income level, a class that is not protected by the Fair Housing Act, the complaint points out that minority households make less income annually, on average, than white households do.  Further, minority households are more likely to be below the poverty line.  Thus, these statistics, taken together with the allegations of racially based comments, will lay the groundwork for the theory that citizens of New Berlin opposed the project based on the belief that it would attract more minority residents.  Liability might then extend to the City through the theory that the City denied the project to appease the citizens’ racially-based opposition.

Like the proposed development, the filing of this complaint has provoked feelings of strong opposition.  These feelings come with good measure.  The filing of the complaint implicitly calls New Berlin residents racist, and brings national attention to the City that is not favorable.  To be sure, this post is not endorsing the belief that all residents of New Berlin are racists, or that the government is trying to make that allegation; however, these are inferences that the public will make upon learning about this complaint.

Nonetheless, the fact remains that Milwaukee is the third-most segregated city, and the Milwaukee metro area is the most segregated metropolitan area, in the Country.  Census data show that Milwaukee County is only 54 percent white, whereas Waukesha County is approximately 90 percent white, Ozaukee is 93 percent white, Washington is 94.2 percent white, Racine is 74 percent white, and Kenosha is 78 percent white.

As problems of racial discrimination and separation continue on into 2011, perhaps the main question becomes whether integration will ever be an achievable goal for this country.  It may be possible that the legal fight against racial discrimination has grown similar to the legal fight against drugs; no matter how hard one tries, people will always engage in the illegal practice.  And no matter how hard one tries, perhaps racial integration is something that cannot be forced upon various communities in our society.

Housing discrimination and segregationist practices are problems that still plague the City of Milwaukee, the Milwaukee metropolitan area, and the United States as a whole.  Although there are many individuals who either applaud or bemoan this lawsuit, most do so for incorrect, politically charged reasons.  Segregation and racial discrimination are both issues that need to be addressed in Southeastern Wisconsin.  At the very least, perhaps this complaint can bring attention to these problems and provide an impetus for people to work toward a solution to fix them.

Their thesis is simply stated.  A vastly disproportionate number of federal death sentences come from counties with high minority populations that are located in districts that are heavily white overall.  Think diverse urban cores surrounded by lily-white suburbs.  Given that federal juries are typically drawn from the entire district, this means that capital trials in these districts are apt to involve minority defendants being judged by white-dominated juries.  Having minimal racial diversity on the jury means that black defendants have little protection from the unconscious racial biases that most of us carry around.  This, in turn, drives both the racial and geographic disparities in federal death sentences.

The patterns are striking. 

For instance, both federal districts in Missouri display the racial demographics that are of interest to Cohen and Smith (racially diverse urban county surrounded by heavily white suburban counties), and Missouri has returned more federal death sentences than New York, California, and Florida combined (p. 436).  In fact, Cohen and Smith contend that all eight of the districts that have returned more than two federal death sentences exhibit pronounced county-district racial disparities.

By contrast, the three districts in which it has been hardest for the feds to get a death sentence are all majority-minority: District of Columbia, Puerto Rico, and the Southern District of New York.  ”These three federal districts account for 55 of the 460 death-authorized cases but are not responsible for a single death sentence” (465).  Expanding the view to the ten districts in which it has been hardest to get a death sentence, eight have “similar demographic profiles between the federal district and the most populous county.”

Cohen and Smith have uncovered a fascinating pattern, although it surely does not tell the whole story.  What about the Eastern District of Wisconsin, for instance?  While the largest city in the District, Milwaukee, is 37 percent black, the District as a whole is only nine percent black.  This disparity would seem to put the District at considerable risk for the racial dynamics that are of concern to Cohen and Smith, but we have no death sentences.  In fact, the numbers for Milwaukee and the Eastern District of Wisconsin are almost identical to the numbers for Kansas City and the Western District of Missouri, which leads the nation in federal death sentences.

Indeed, while I haven’t cranked the numbers, I strongly suspect there are a great many other death-free districts with similar profiles to these two.  High county-district racial disparities may be necessary for federal death sentences, but I doubt they are sufficient.

Even at that, what Cohen and Smith have uncovered should heighten concerns about the role of racial bias in the administration of the federal death penalty.  For that reason, their reform proposals (especially drawing the venire for federal capital trials from the county of the offense, as federal law mandated prior to the Civil War) deserve attention.

I wonder, too, if the race-geography dynamics they have uncovered are apparent more broadly in federal criminal trials.  If racial bias is a problem in capital trials in some districts, why would it not also be a problem in noncapital trials?  As federal law enforcement has become more oriented to responding to street crime, which is really a local problem, it makes sense for federal juries to be drawn on a more local basis, too.

Cross posted at Life Sentences Blog.

How can the vicious circle be broken?  In a new paper on SSRN, Matt Parlow argues that neighborhood councils — “new substructures of local government that aim to involve citizens in the decision- and policy-making processes” — have the potential to raise the engagement level of minority citizens with local government.  He uses Detroit to illustate the problems of local government corruption and minority political marginalization in American cities, while pointing to Los Angeles as an example of a city that has had some recent success with neighborhood councils. 

Entitled “Revolutions in Local Democracy? Neighborhood Councils and Broadening Inclusion in the Local Political Process,” the paper will be published in the Michigan Journal of Race & Law.  Here is the abstract:

Political marginalization of minorities and government corruption are two key factors that have led to the overwhelming decline and decay of America’s major cities. Local governments must combat the historical entrenchment of these two evils in order to reverse the trend toward demise. Neighborhood councils may be the best structural changes to local government because they provide more meaningful opportunities for political engagement of minority groups, while also serving as an antidote to systemic corruption in local government. This Essay analyzes the problems plaguing local government in urban cities and explores how neighborhood councils may be able to help address them.

To what extent are the troubling rankings and the patterns to which they point truly based on race?  American racism is hardly dead and buried, but in our society race often obscures the equally pernicious workings of socioeconomic class inequality. 

While blacks are concentrated in worn-out center-cities, their inability to move to the suburbs involves income and asset factors more than skin color.  Surely a black physician or business executive can take up residence with his or her family in a $400,000 home on a countrified suburban cul-de-sac, but the disproportionately impoverished blacks of American center-cities cannot afford this kind of housing.  Moderately priced rental housing is the only type of housing the urban poor can afford.

The realities regarding socioeconomic class stand behind the troubling statistics regarding residential segregation by race in the Milwaukee metropolitan area.  The poor – black, white, or Hispanic – live almost completely within the City of Milwaukee, while Ozaukee and Washington Counties rank among only nineteen counties in the entire country with poverty rates below five percent.  Second-ring suburbs and outlying towns like New Berlin and West Bend have been in the news lately because of efforts in those towns to prevent the construction of moderately priced rental housing.  If this kind of housing was built, some fear, the urban poor might relocate and try to build lives and raise their kids among the middle and upper classes.

And here’s one more depressing fact from still another study.  According to a report from the Eisenhower Foundation, the 10-15 percent of the contemporary population living below the poverty line is actually both growing in numbers and becoming more residentially concentrated.  The nation is taking baby steps to overcome its racial inequality, but the existence of a concentrated, urban sub-working class might actually be endemic to advanced capitalism.

An increasing chorus argues, today, that risk-assessment instruments are a politically feasible method to redress our problem of mass incarceration and reduce prison populations.  The argument, in essence, is that prediction tools can identify low-risk offenders for release and thereby protect correctional authorities from the political whiplash of early release.

Harcourt’s concern is that risk-based early release opportunities will disproportionately benefit white inmates and thereby exacerbate racial disparities in the prison population.  He points out, “[R]isk today has collapsed into prior criminal history, and prior criminal history has become a proxy for race.” 

I’ve heard variations on this argument before, but Harcourt’s new paper adds some interesting historical dimensions to the analysis.  For instance, as a “cautionary tale,” he discusses the turn to risk-based institutionalization in the 1970’s, which resulted in a dramatic increase in racial disparities in mental hospitals.  ”[T]he proportion of non-whites admitted to mental facilities increased from 18.3% in 1968 to 31.7% in 1978 . . . .”

Harcourt also describes the explicit use of race as a predictor of dangerousness in parole decisions between the 1930’s and 1970’s — a shocking practice to contemporary ears.  Although criminal history may correlate closely with race, it does not seem nearly so pernicious to rely on criminal history as to rely expressly on race.  Nonetheless, I share Harcourt’s sense that progressives are apt to be disappointed by risk-based early release initiatives.  Simply quantifying risk more precisely still leaves unanswered the critical ethical question of why we should want to release anyone who poses any degree of risk, no matter how small.

Cross posted at Life Sentences.

On February 25, the bill passed in the State Assembly by a vote of 51-42.  However, before passage, it was amended to exempt from the bill’s coverage any school that uses a federal-government recognized tribal name as its nickname or any district that obtains permission to use its name or logo from a federally recognized tribe.  (Consequently, the Auburndale High Apaches would not be covered by the bill.)  At the moment, the bill appears to be bottled up in the Senate where a vote has yet to be scheduled.

During the current academic year, there are still 38 Wisconsin high schools that use Native American team names, including the above-mentioned Auburndale and the all-Native American Menominee High School.  No school uses a racially-related team name referring to a group other than Native-Americans.

 THE NATION’S CAPITAL.  In Washington, D. C., the Supreme Court’s refusal late last year to review a lower court holding dismissing the 1992 Lanham Act challenge to the Washington Redskins trademark filed by Native American activist Suzan Harjo has not ended the Redskins problems.  Harjo’s suit was ultimately dismissed on the basis of laches—Harjo and her fellow complaints had waited too long to challenge the 1967 trademark registration by Pro Football, Inc., the corporate name of the Washington NFL team. 

However, a new effort to invalidate the Redskins trademark on disparagement grounds–Blackhorse v. Pro Football, Inc.—is currently pending before the Trademark Trial and Appeal Board.  The plaintiffs in Blackhorse are all young Native American adults who are claiming that because of their age, they had no previous opportunity to object to the mark and thus are not bared by the lower court ruling in the Harjo litigation.  More recently, a second action has been filed by different plaintiffs attacking the legitimacy of six derivative versions of the Redskins trademark—including one for Washington Redskins Cheerleaders—filed since 1992.  These actions are seeking to deny the Washington team the right to use the name “Redskins” but they are trying to prevent the team from being able to license the mark.

 NORTH DAKOTA.  Finally, the debate continues in North Dakota over the right of the University of North Dakota to continue to use the name “Fighting Sioux” for its athletic teams.  The NCAA has adopted an approach that prohibits the use of Native American team names and logos unless the tribal group bearing the name in question approves.  (More generic team Native American names like Indians, Braves, or Redmen are limited to those colleges like UNC-Pembroke or Haskell University that were founded as colleges for Native Americans.) 

The problem in North Dakota is that one of the state’s two Sioux tribes (the Spirit Lake Sioux) has authorized the use of the name but the other (the Standing Rock Sioux) has not.  The State Board of Higher Education had ordered the University to begin phasing out the nickname on November 30 unless it secured the permission of both tribes.  However, the situation has reached a standstill, and the University is still using the name.  (The Fighting Sioux ice hockey team is one of the favorites in the current NCAA championship play-offs and the team squares off against Yale in a first round game on March 27.) 

At the moment a number of Native-Americans are fighting to allow the University to continue its use of the name.  A petition signed by 850 members of the Standing Rock Sioux tribe is currently in circulation as pro-nickname members of the tribe try to force their leaders to schedule a plebiscite on the issue on the reservation.  (The Standing Rock Sioux also elected a pro-nickname council president last year.)

At the same time, eight members of the Spirit Lake Sioux have filed suit against the state arguing that they will be harmed if the University of North Dakota drops the Fighting Sioux nickname and that under an earlier settlement agreement between the NCAA and North Dakota, approval of the name by the Spirit Lake Sioux was sufficient for its continued use.  Their request for an injunction was denied by the state district court, but the appeal in Davidson v. State is currently before the North Dakota Supreme Court.  Apparently no action will be taken until the court rules.  Oral argument in the case is scheduled for tomorrow (March 23).

In Milwaukee, one tenant in every 25 renter-occupied units is evicted annually. Poor African American women constitute 13 percent of the City’s population but 40 percent of those evicted. The impact of evictions on social connections, school enrollments, and credit ratings should not be underestimated.

To the extent it pays attention to housing issues, the media has of late focused almost exclusively on mortgage foreclosures, and, to be sure, the damage subprime lenders have done to the hopes and dreams of the working class has been huge. However, there is a socioeconomic class trying to carry on without even the assets and income of the working class. We might reflect on its plight when we drive through the center-city and see the humble furniture and other possessions of low-income African American women stacked alongside the curb by landlords who have just finished evicting. But, then, how many of us even drive through the center-city?

As Draper (L ’75) looked out at about 50 people, many of them African Americans who are current law students, in Eisenberg Hall Wednesday evening, he agreed that the situation, not only in the Law School but across the American scene, has improved for black people in recent decades.

But Draper, who went on to be an assistant district attorney and a court commissioner in Milwaukee County, and three other community leaders emphasized how far things still have to go before it can be rightly said that America has become a “post-racial” society. The four took part in a panel discussion on the state of black America sponsored by the Black Law Students Association.

There are still gaps, huge and small, between the opportunities and circumstances of white and black people in the United States, the panelists agreed. The election of Barack Obama as president is a milestone, and he and his wife, Michelle, provide powerful role models for black youth, the panelists agreed. But, as much as a black president was unimaginable a few years ago, his election was only one step toward change.

To Margaret Henningsen, co-founder and vice president of Legacy Bank, the continuing problem shows up in what she perceives as more attention her bank gets from federal regulators (“13 white guys in suits,” as she described the auditors who come in frequently) than a white-owned bank would get. To Draper, the problem can be seen in a white person he works with in his current position as a consultant to the state Office of Justice Assistance. The colleague can’t bring himself to refer to Obama as president, but has lots of other pejorative labels for the Commander-in-Chief. To Ald. Willie Hines, president of the Milwaukee Common Council, it can be seen in the large number of foreclosed homes in his central city district. To Judge Charles N. Clevert Jr., chief judge for the Eastern District of Wisconsin,  it can be seen in reports on nationwide statistics on racial gaps in economic opportunity and anecdotes from friends who say they are still not given work as readily as comparably qualified white people.

“People expect more from us,” Henningsen said. Hines responded that it isn’t fair, but, if necessary, black people need to work “as hard as it takes” to succeed in careers. “If it’s twice as hard (as white people), so be it,” he said.

Clevert said anyone who is new or different in a workplace or other situation is going to stand out and get more scrutiny. He urged African Americans seeking jobs to do as much networking as possible, and to handle all the details carefully when they are given opportunities.

Henningsen said that black youth need more role models. She urged each person in the audience to seek out 10 students they can encourage and help.

Clevert said that by 2050, America is projected to be a nation where white people will be in the minority, so it is in the nation’s interest to pursue paths that improve the picture of opportunity. “We have to become less racist, and I think we are on the way to a more tolerant society,” he said.

I didn’t expect to be as moved as I was when six of the nine took the stage at the Varsity Theater this week to receive Marquette’s highest honor, the Pere Marquette Discovery Award, from Father Robert Wild, S.J., the university’s president. 

Maybe it was because I was just barely old enough at the time – I was seven – to have the television images from Little Rock permanently planted in my mind. And here they were, in person. 

Or maybe it was how their presence inevitably made the 1,000 or so in the audience focus on the sweep of all that has happened since those days, on all that has been accomplished and all that has not. We live in a time when no one could envision black high schoolers being treated with such official or unofficial hostility any more, just for wanting to enroll in a school. But we live in a time when actual equality in educational access and success remains far more distant than anyone with any civil rights sentiment in 1957 could have imagined. 

Or maybe it was just the six award recipients themselves — now generally in their late 60s, they were dignified, gracious, and good natured in talking about the events of 52 years ago. They carried themselves the way you would hope living legends would. They talked about how they never wavered in their commitment to going through with enrolling in Little Rock Central because they simply wanted a good education and knew they were entitled to be in that school. As for those who acted toward them with malice, “they threw their dignity away and, guess what? It landed on us,” said Mannijean Brown Trickey. 

The Law School’s Mike Gousha, moderator of the hour-long conversation with the six, asked them what their thoughts were on the achievement gaps and other issues that still exist in education. 

Trickey said people need to look at the societal issues that still shape lives and make America a fragmented society, such as the legacy of centuries of mis-education or no education for African Americans. The have-nots still get less when it comes to resources, power, and the factors that give children strong starts in education. 

Carlotta Walls LaNier said her thinking returns to the basics. “We need to revisit the fundamentals of families and put the emphasis back on education being the number one priority for your children,” she said. “We need to bring it back to where it belongs, and that is in the home.” The Little Rock Nine were each young people who wanted to learn and who had strong support from their families to succeed in school. Expectations were high. 

Green said he hoped that accepting the award would be a way for the six who came to Milwaukee to inspire some young people, to convince them “that they can get more out of life than perhaps what they’re doing now.” He added, “I’m an optimist that the best is in front of us.”

Little Rock Central itself was rated in the most recent Newsweek magazine list as the thirty-sixth-best high school in America. Elizabeth Eckford said that the success at her old school is praiseworthy, but she said it is also a very distressed school if you look at how some students are doing.

What emerged from that crucible of Little Rock in 1957? For the individuals of the Little Rock Nine, good things. Many have college degrees and have had distinguished careers, and their warmth and wisdom were clearly evident at the Varsity Theater.

And for the nation? To pick up on Green’s optimism, maybe the best thing to say is that the crucible shaped a very important set of changes, but the final product is not yet fully formed.

Details of Scurry’s life are meager.  He was born in 1865 in Delaware, Ohio, and first arrived in Milwaukee in 1882 at age 17.  He attended school in Milwaukee and then returned to Ohio, where he enrolled in Ohio Wesleyan College (which was in his hometown of Delaware).  The college catalog listed him as a Milwaukee resident, and he apparently entered college with the intention of becoming a teacher. In 1900, he was working at Booker T. Washington’s Tuskegee Institute, as the steward of the teachers’ house and, reportedly, as a teacher.

He returned to Milwaukee at some point and enrolled in the Milwaukee Law School. 

Although he studied law, he does not appear to have been admitted to the bar.  The Milwaukee Law School was designed to prepare students for admission to the Wisconsin bar and did not award degrees of its own.  However, in 1908, following the merger, Marquette University awarded a law degree to any former student of the Milwaukee Law School who had been admitted to the Wisconsin bar.  Scurry’s name does not appear on the list of degree recipients, although it is possible that he was admitted but did not bother to apply for the Marquette degree.

In any event, Scurry’s future was in neither education nor law, but in religion.  In the early twentieth century (if not sooner), he became an ordained Baptist minister. He was affiliated with the Mt. Zion Baptist Church in Milwaukee (a black Baptist church) and with the Wisconsin State Baptist Convention.  After his entry into the ranks of the clergy, he retained an interest in politics and public affairs.  The archives of the American Socialist Party contain a letter written to Scurry by Norman Thomas, the party’s perennial presidential candidate.

In 1935, Scurry, aged 70 and retired from the ministry, was awarded a monthly old-age pension of $30 from the Milwaukee county court.  A story in the December 17, 1935, edition of the Milwaukee Journal reported the award of the pension by County Judge John C. Karel and mentioned Scurry’s prior affiliation with the Milwaukee Law School.  Scurry died on June 6, 1943, still affiliated with the Mt. Zion Baptist Church.

Enshrining a permanent justification for racial preferences would offend this fundamental equal protection principle. We see no reason to exempt race-conscious admissions programs from the requirement that all governmental use of race must have a logical end point. . . . From today’s vantage point, one may hope, but not firmly forecast, that over the next generation’s span, progress toward nondiscrimination and genuinely equal opportunity will make it safe to sunset affirmative action.

Although O’Connor and her colleagues upheld the constitutionality of the University of Michigan Law School’s affirmative action program at issue in Grutter, her opinion reflected a belief that affirmative action programs would draw to a close at some future point.

Data released by the College Board, the organization that administers the SAT exam, at the end of August suggests, however, that the end date for affirmative action is probably still a long way off. 

Once again, Non-Hispanic whites and Asians scored significantly higher on the SAT than African-Americans and Hispanics, and the pattern of scores provides no evidence that the gap is closing.  Over 1.5 million college-bound seniors took the test, the largest number in history.

The SAT now consists of three sections — writing, critical reading, and mathematics — each of which is scored on a scale that ranges from 200 to 800.  Since April 1995, the targeted median score on each test has been 500 (rather than 450 as it was before).  Consequently, the range of combined scores is 600 to 2400, with an “average” score being 1500.  The actual average for the 2008-09 academic year was 1504, essentially the same as it was the previous year.

For the test as a whole, Asian students scored 1633 compared to 1581 for non-Hispanic whites, with most of the disparity resulting from a significantly higher mathematics score.  Other groups did not do nearly as well.  The scores of Native Americans and Eskimos averaged 1448; Hispanics, 1364; and African-Americans, only 1273.  Males of all races, who counted for only 46.5 percent of test takers, outscored females, 1523 to 1496.

Much of the discrepancy in racial performance is due to socio-economic factors that adversely affect black and Hispanic adolescents.  Low family incomes, single-parent homes, low levels of education in the family, and the lack of role models who have achieved academic success all contribute to poor test performance. For example, students of all races with family incomes of $200,000 or more averaged 1702 on the SAT; those with family incomes of below $20,000 scored 1321.  Students whose parents had at least one graduate degree averaged 1683; those who parents had not finished high school scored only 1281.

With this kind of disparity in SAT scores, only affirmative action programs can guarantee that African-Americans and Hispanics will be proportionally represented at America’s more selective colleges and universities.  Although we may reach Justice O’Connor’s sunset at some point, right now we are clearly still in the middle of the day.

We certainly could see much of the harm unfold on the news and talk shows. Professor Gates, a highly respected scholar, gets arrested in his own home by a white officer. He (and many others) believes he has been treated unfairly because of his race. The officer, who with his fellow officers, including an African-American, believes he was doing his job because he is investigating a possible home invasion and has a man, in his opinion, who is uncooperative and verbally abusive. And we have a highly respected president, who usually is extremely careful with his words, announce that despite the fact that he does not know all the facts, that the police acted “stupidly.” Then we went on to learn that Lucia Whalen, who called in the suspicious behavior at Dr. Gates’ home, is now receiving death threats and being called racist despite the fact that she never volunteered anything about race to the 911 operator. We can then imagine the harm to the Cambridge police department, the African-American community in the Boston area, the family members of everyone involved and then of course the harm to the thousands and thousands of others who experience the renewed pain of some bad police/community member relations all over this country. We have some political pundits characterizing all police as men and women who routinely engage in racial profiling (never acknowledging that never does an entire profession engage in bad behavior so that the “good cops” are thrown into the same description as the “discriminating cops.”) Those kinds of comments not only demoralize police departments but also devastate family members of law enforcement officers. We have once again publicly displayed acts of racism (a Boston officer writing a letter describing Professor Gates as “banana-eating jungle monkey”). We know that the wounds of racism and profiling in this country are justifiably deep and painful. And we have a president, who is trying to focus on our national health care crisis, in part because of his own words, being embroiled in these events. There is not a question in my mind that this was an opportunity for all of us to watch and learn a better way to move forward other than our continuous name calling.

Restorative justice practices involve people who have been harmed having the opportunity to be heard by those they believe played a role in harming them. In our MULS restorative justice program, we routinely have victims, or family members of victims of crimes of severe violence request a meeting with the perpetrators (including murderers, rapists, and robbers) so that they can tell them, across a table, how deeply they have been harmed by what the other person did. Unlike the White House meeting, these dialogues can often take up much of a day. A victim/survivor can describe the pain that was caused and the “ripple effect” of the other’s actions. The offender learns the depth and breadth of impact of his or her actions on a myriad of people. The dialogue then often continues so that the victim can ask the offender about his or her life and how it is that this person came to harm him or her. What life experiences brought the offender to that moment? Most offenders apologize for their behavior. (We do not conduct these dialogues unless the offender admits at least some of the alleged criminal conduct.) Hearing about people’s life stories humanizes them and helps us understand (but not necessarily approve) of why others have acted in a certain way. From that place of understanding, we, as community, can better find ways to move forward in a positive way.

On a very regular basis, our MULS Safe Streets community coordinators, Ron Johnson and Paulina de Haan, conduct restorative justice talking circles in Milwaukee’s central city with victims, neighbors, police, offenders, prosecutors, church members, offenders and other community members. I have watched these groups of people weep as a Milwaukee police officer describes finding a two year little girl with a bullet hole in her forehead and quickly picking her up. He told all of us that the little girl took her last breath in his arms and that her death has haunted him since that moment. He looked at the others in the circle and said, “I never go to a call for a shooting without taking her with me.” I believe that there is no one who was there that day that still believes that “all police don’t care.” On another occasion, we had a gang member describe that when he was 7 he was sitting on the kitchen counter watching his mother prepare the Thanksgiving turkey. All of sudden tires were screeching and he heard the sound of gun shots. His mother threw him down onto the ground and then fell dead in front of him with three bullet holes in her back. He then was placed with family members in the Chicago projects where he grew up in violence. No one will ever condone what he has done, but after the circle a police officer went up to him and told him that he now had a better understanding of how he got there. We have seen officers actually go out and help serious offenders find employment after they have heard the stories in the circle.

Finally one older African American man told his story of calling the police about shooting on his street. He told them that he would be sitting on his porch in his white shirt waiting for them. When police arrived, the police pointed guns at him and told him to get up and then lay down on the ground. It took quite some time for them to acknowledge (without apology) that he was the person that had called for help. The police in that room truly got to hear what that horrible experience was like for that older man. That story telling and more important listening (and truly hearing) by others brings much healing and new understanding to everyone in the room and hopefully more sensitivity in the future. What happens during these dialogues or circles is that everyone present learns more about people’s experiences and perspectives. Invariably, people will see that in our humanness we are all much more alike than different. We all have had terrible experiences in our lives (obviously some much worse than others). People who hear those stories will often ask themselves, “what would I have done under those circumstances?” or “how would I feel about what I have done if I had lived that other person’s life?” From that understanding we can build human bridges of understanding that help “good and progress come from the bad.”

I do have some regrets about the way the White House handled this dialogue. I wish they had asked Lucia Whalen to join the discussion. She was an integral part of what happened and may be the only one who appears to have done everything right. Her voice should have also been heard at that meeting. She could have told them that each of their actions has led to more people calling her a racist and accusing her of causing national turmoil. Although her actions of calling 911 certainly set this series of events into action, she was just being a good citizen and reporting a potential problem in her neighborhood. She never volunteered the race of the men she saw and in fact when asked told the dispatcher that she was not sure of their ethnicity. It would have been good for these three men (including the president) to hear how their actions in all of this have made her life very difficult.

I also regret that the White House did not get a trained neutral restorative justice facilitator to shape the discussion. As good as the president is at bringing people together, he was not neutral in this incident. He was friends with Professor Gates and his words had certainly contributed to the harm from the events, particularly to the Cambridge Police Department. Although the image of the men sitting around the table in the White House garden was a good one, it would have been helpful for us in the greater community to learn more about what each of them learned from the discussion. Professor Gates and Sergeant Crowley have indicated that they will continue to talk. Hopefully they will bring in the community into that dialogue.

When it is all said and done, it does not really matter who drank what beer. It does not matter who wore what to the meeting. But hopefully we all will learn from this high profile meeting at a round table (like a circle) that when people have caused harm to each other by having made certain choices or are in serious conflict, it is important for everyone to slow down, ratchet down the level of anger, accusations and name calling…from “racist, to immoral to stupid to evil to without conscience” and actually create an environment where people can have a meaningful dialogue about what has happened, how everyone sees the situation and how they and all of us can work together in a positive way to prevent future harm. If we can do that, then we are good students learning from that proffered “teachable moment.”

The forty contributors vary considerably by gender, race, and ethnicity.  A majority, but only a majority, grew up in states where legally segregated schools existed at the time of the Brown decision.  Some are old enough to have remembered the day that the decision was handed down; others were born after it was already the law of the land.  But all, to one extent or another, believe that their personal and professional lives have been profoundly shaped by the Brown decision.

I read Law Touched Our Hearts with great interest. 

Although I am too young to remember the actual announcing of the Brown decision — it was handed down two weeks before my second birthday — it was clearly a defining event in my life.  In 1956, my family moved from Giles County, Virginia, where I was born, to White Sulphur Springs, West Virginia.  Two years earlier, after an attempt to integrate the White Sulphur schools in response to Brown, the town and nation witnessed the first post-Brown, anti-integration riot in the United States which led the county school board to cancel the integration experiment after only one week.  In 1956, integration occurred a second time, this time as the result of a federal court order.  My mother started teaching at White Sulphur Elementary that fall, and when I started school there two years later the fate of integrated education seemed anything but certain.  In 1959, we moved back to Virginia where the schools were completely segregated, and I experienced integration a second time in 1964, when Giles County decided to voluntarily close its black schools and incorporate the entire black and white population into a single school system.  (Incredibly, Giles County was the first county in Virginia to do this.)

I was also interested in Law Touched Our Hearts because eight of the contributors are good friends of mine.  I can say, though, without fear of contradiction, that the most moving and most poignant essay in the entire collection is the one written by my Marquette colleague Phoebe Williams.  Phoebe’s essay, titled “Segregation in Memphis,” tells the story of her experiences as an 8-year old school child in segregated Memphis schools when the Brown decision was handed down.  Although the Brown edict was to be adopted with “all deliberate speed,” the “promises of Brown,” as Phoebe puts it “remained unrealized” in Memphis.  There had been no school integration in Memphis when Phoebe graduated from high school in 1963, and there would be none for years to come.  Her first experience with integrated education came when she enrolled at Marquette as an undergraduate.

Phoebe’s essay wonderfully captured the spirit of optimism that arose with the handing down of the Brown decision, as well as the disappointment that accompanied the failure of southern states to live up to its mandates.

I was already familiar with much of Phoebe’s account because of an appearance she made several years ago in a class on the History of the Civil Rights Movement that I was teaching in the College of Arts and Sciences.  I invited Phoebe to come speak to the class about her experiences growing in the era of segregation.  The students in the class were riveted by her presentation, even though most were northerners and had been born more than two decades after the Brown decision.  Many students later told me that Phoebe’s presentation was the highlight of the class.

I strongly recommend Law Touched Our Hearts to anyone interested in the history of civil rights in the United States, but I insist that anyone with any sort of Marquette connection should read Phoebe Williams’ contribution to the collection (pp. 123-134).