Intent Doctrine: Its Relationship to Seattle and Louisville School Cases and the Need to Preserve Brown’s Legacy

UPDATE JUNE 28: The Supreme Court today handed down its decision on the Seattle and Louisville schools cases. Read our statement here.

This term, the Supreme Court faces a question that it set itself on a collision course with three decades ago.[1] The Court will decide whether school districts in Seattle and Louisville can consider the racial composition of a particular school in deciding student assignments within a district.[2]

The school assignment plans utilize race as a factor to try and alleviate systemic barriers to full participation and integration by taking race into account in student assignment. The irony of the Court addressing this particular question is palpable, given that a scant few decades ago the Constitution was interpreted as compelling governments and localities to remedy such racial inequities through race conscious plans.[3]

How did the Court position itself to decide whether just taking race into account, even when proactively and voluntarily addressing de facto racial segregation, is Constitutionally permissible? By adopting an ideology of “color-blindness,” the Court has contrived an unintended constitutional mandate under the Equal Protection Clause that fails to acknowledge and distinguish different uses of “race” in our society.[4] This jurisprudence, manifested through the Court’s “intent doctrine,” precludes the ability of courts to protect individuals who have suffered real harms as a result of racial inequities.[5]

Thus, while the Court decides whether schools have the power to voluntarily follow Brown v. Board of Education’s mandate to eradicate racial segregation,[6] we are left to ask the extent to which the Supreme Court’s equal protection jurisprudence has foreclosed the ability to address and rectify inequality, racial and otherwise.[7] An increasing number of the Court’s decisions have crippled the foundations of civil rights laws laudably enacted by Congress and ingrained in our Constitution. The present legal landscape begs the question of how will the Court address racial inequality and segregation going forward.

The Court’s Ideology of Race

The Supreme Court has not coherently articulated a conception of race in the context of history and social reality.[8] Instead, the Court persists in employing its ideology of color-blindness, which it portrays as a neutral principle. In fact, however, this ideology is far removed from the racial realities of society. The color-blind ideology treats any and all uses of “race” as false ascriptions of inherent characteristics, and thus inherently problematic.[9] However, the affirmative use of race is oftentimes the only effective way to recognize and address real social phenomena.

This presumption, termed the “intent doctrine,” has been applied to any governmental action where groups are treated differently on the basis of race. Under this doctrine these overt uses of race are constitutionally permissible only if they are “[narrowly tailored] to serve a compelling governmental interest.”[10] This standard, known as “strict scrutiny,” has for the most part been “strict in theory, but fatal in fact,”[11] and has meant that a great many of the governmental actions designed to address racial inequality, in areas such as higher education,[12] contracting,[13] and voting,[14] have been deemed unconstitutional. In essence, this ideology of color-blindness functions to “legitimate[] and thereby maintain[] the social, economic, and political advantages that whites hold over other Americans.”[15]

Ironically, in the rush to impose its color-blind ideal, the Supreme Court has severely weakened the ability of the Fourteenth Amendment to protect racial minorities from discriminatory and inequitable practices. The Court’s ideologically created mandate to demonstrate “intent” creates a retrenchment of the ability to address racial inequality by requiring a plaintiff to prove the near-impossible: a decision-maker’s specific motivation to discriminate against a minority group.[16] Thus to prove a claim under the current Equal Protection Clause jurisprudence, it is not enough for a plaintiff to show that the defendant acted with knowledge that his or her actions would have a discriminatory impact on an identifiable racial group. Instead, an aggrieved individual must show that the harmful government action was taken “at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.”[17] This leads to a situation where the “practical result is to convert the burden of proof of improper motive into a substitute rule for upholding governmental action.”[18]

This constricted “intent doctrine” permeates antidiscrimination law, ignores much of what we know about the dynamics of discrimination, and deprives many of redress for discrimination. The extraordinarily high burden almost requires a civil rights plaintiff to find a “smoking gun” statement expressing outward racial animus.[19] In modern times, however, overt statements of racial hostility are known to be socially unacceptable. Additionally, the intent requirement does not take into account how modern cognitive science understands discrimination. Scholars such as Charles Lawrence,[20] Linda Krieger,[21] and Jerry Kang[22] have demonstrated that discrimination is often a product of unconscious or implicit biases and categorizations, rather than “intentional discrimination.”[23]

Turning a Blind Eye to Real Inequality

Of course, this willful ignorance of historical and social context is nothing new in the Court’s race jurisprudence.[24] However, the cumulative and very deleterious effect is the inability of the Court (and resulting refusal by the public) to recognize, and therefore to directly address, the harms that accrue due to persisting racial inequality. Instead, the Court sees the Equal Protection Clause as a bulwark against the “harm” of a person being classified as a member of a race, rather than a safeguard from real harms suffered by an individual on account of race.[25] This normative discourse of color-blindness ends up masking entrenched systems of inequality; it hinders any government agency – from the Seattle and Louisville school boards to post-209 California – from making race-conscious efforts to mitigate structural inequities. In the case of the school assignment plans, the districts utilize a race-conscious program not because race is some immutable characteristic to which they ascribe certain inherent characteristics, but because “race” has real social effects.

This inability to directly address racial inequity is rooted in the Supreme Court’s decision in Washington v. Davis, which essentially determined that the Equal Protection Clause would equate color-blindness with a constitutional mandate. The doctrinal feature that undergirds this color-blind mandate, the intent doctrine, largely prohibits governmental actors from taking overt, proactive action (ameliorative or otherwise) that attempts to modify social distribution on the basis of race. However, in the absence of overt usage of race, the existing social and economic distributions are assumed to be neutral and non-suspect. In this way, the Court, by importing a conception of what the neutral is, engages in a pretense of objectivity that actually preserves the existing distribution of social resources.[26] Accordingly, this color-blind ethic sees baseline juridical regimes—from district assignment plans that rely on only factors other than race in Seattle and Louisville cases, to admissions criteria that rely on tests that have severe racial impacts in higher education,[27] to “traditional districting criteria”[28] in cases of voter districting—as natural.[29]

Today, some of the most pernicious and pervasive forms of discrimination result from facially neutral practices that diminish the opportunities of whole minority communities. For example, Richard Thompson Ford has argued that governmental actors can now make decisions on the facially race neutral basis of geographical boundaries, despite the fact that those boundaries are a function of de jure and de facto segregation.[30] These ostensibly neutral practices have the effect of allowing governmental decision-makers to take advantage of “locked –in”[31] discrimination without being violative of the Constitution. With this limitation in place, it becomes increasingly difficult to remedy the effects of structural inequality. At the same time, the elimination of a right of action to bring suits based on a disparate impact severely hampers the ability of aggrieved parties to challenge much of the structural inequality in schools based on statutory civil rights protections.[32]

However, some school districts, such as those being challenged in Louisville and Seattle, understand well that in a segregated community, students may not be able to interact or study together in integrated schools unless race is taken into account in assigning students to schools under a plan that offers an equal educational opportunity to all the districts’ children. Yet, the Supreme Court may well take away the districts’ ability to do so.

In her dissent in Gratz v. Bollinger, Justice Ginsburg noted that the Constitution must be color conscious so that it can “prevent discrimination being perpetuated and to undo the effects of past discrimination.”[33] In other words, color-consciousness does not look at race because it falsely captures some presumed inherent qualities, but rather, because it captures and directly addresses the lived social reality of communities in which African Americans, Latinos and other people of color have less access to social resources than whites. By explicitly addressing the way in which race has been deployed in any particular action,[34] the Court can accordingly apply a more fitting level of scrutiny necessary to determine if the action satisfies the Equal Protection Clause.[35]

Almost all of the debate around these cases has taken as their starting point that the Court will apply “strict scrutiny” to the school plans at issue, and those in favor of maintaining race-conscious districting have attempted to demonstrate why the plans are narrowly tailored to serve a compelling governmental interest. However, it is becoming clear that the narrow Equal Protection Clause jurisprudence will continue to limit the ways in which society can remedy the social ill of racial oppression. While the Court will like continue to utilize its existing framework in Seattle and Louisville, it must at some point deal with the fact that “[i]n order to get beyond racism, we must first take account of race.”[36]

—

[1] Many argue that this question is “fundamentally different” than any that the Court has previously faced. For instance, Judge Kozinski’s concurrence in Seattle argues against the shared analytical framework of the majority and dissent because “this case is fundamentally different from almost anything the Supreme Court has previously addressed.” Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 426 F.3d 1162, 1193 (9th Cir. 2005) (en banc), cert. granted, 126 S.Ct. 2351 (2006) (citing Comfort v. Lynn Sch. Comm., 418 F.3d 1, 27 (1st Cir.) (Boudin, C.J., concurring), cert. denied, 126 S. Ct. 798 (2005). Professors Pamela Karlan and Goodwin Liu have pointed out that school desegregation plans and redistricting plans that take race into account are fundamentally different than affirmative action cases and should be treated accordingly. See Pamela S. Karlan & Daryl J. Levinson, Why Voting is Different, 84 Cal. L. Rev. 1201 (1996); Goodwin Liu, Seattle and Louisville, 95 Cal. L. Rev. 277 (2007).

[2] Seattle, 426 F.3d 1162; McFarland v. Jefferson County Pub. Schs., 330 F. Supp. 2d 834 (W.D. Ky. 2004), aff’d per curiam, 416 F.3d 513 (6th Cir. 2005), cert. granted sub nom. Meredith v. Jefferson County Bd. of Educ.,126 S. Ct. 2351 (2006).

[3] See generally Gary Orfield et al., Dismantling Desegregation: The Quiet Reversal of Brown v. Board of Education 53-55 (1996); see also Missouri v. Jenkins, 515 U.S. 70 (1995) (holding that interdistrict remedies are impermissible to correct intradistrict segregation).

[4] For example, Neil Gotanda has analyzed the various ways in which race has been employed by courts. See Neil Gotanda, A Critique of “Our Constitution Is Color-Blind,” 44 Stan. L. Rev. 1 (1991).

[5] First articulated in Washington v. Davis, 426 U.S. 229 (1976), the intent doctrine requires plaintiffs challenging the constitutionality of a facially neutral law to prove a racially discriminatory purpose on the part of those responsible for the law’s enactment or administration. Essentially, laws that distinguish groups based on race are subject to “strict scrutiny,” meaning that the law can only past constitutional muster if it is narrowly tailored to serve a compelling governmental interest. Conversely, laws that do not use race (or another suspect classification) are only subject to rational basis review, meaning that the law must be rationally related to a legitimate governmental purpose. In the most famous cases invalidating laws under rational basis review for violation of the Equal Protection Clause, City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985), and Plyler v. Doe, 457 U.S. 202 (1982), the Court arguably applied an “enhanced” form of the rational basis test. For more discussion of the real world effect of applying strict scrutiny, see infra.

[6] Brown v. Bd. of Educ., 347 U.S. 483 (1954). While Brown is held to be many things, it is best understood within an interpretation of the Equal Protection Clause understanding that: “guarantees of equal citizenship cannot be realized under conditions of pervasive social stratification and . . . that law should reform institutions and practices that enforce the secondary social status of historically oppressed groups.” Jack M. Balkin & Reva B. Siegel, The American Civil Rights Tradition: Anticlassification or Antisubordination?, 58 U. Miami L. Rev. 9 (2003).

[7] Cf. David A. Strauss, Discriminatory Intent and the Taming of Brown, 56 U. Chi. L. Rev. 935, 946-51 (1989).

[8] See Gotanda, supra note 4.

[9] Cf. Eric K. Yamamoto, Carly Minner, & Karen Winter, Contextual Strict Scrutiny, 49 How. L.J. 241 (2006). In this article, the authors demonstrate the ways in which the Court has employed a varied conception of race in which it may be willing to consider context in its strict scrutiny analysis. See also Alan David Freeman, Legitimizing Racial Discrimination Through Antidiscrimination Law: A Critical Review of Supreme Court Doctrine, 62 Minn. L. Rev. 1049 (1978).

[10] Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 275 (1978) (opinion of Powell, J.)

[11] Fullilove v. Klutznick, 448 U.S. 448, 519 (1980) (Marshall, J., concurring in judgment) (citing Bakke, 438 U.S. 265, 362 (1978)).

[12] Bakke, 438 U.S. 265; Gratz v. Bollinger, 539 U.S. 244 (2003) (striking down point-based affirmative action programs in higher education). But see Grutter v. Bollinger, 539 U.S. 306 (2003) (upholding University of Michigan School of Law’s affirmative action program employing race as a “plus factor”).

[13] See City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989); Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995) (striking down affirmative action in contracting).

[14] See, eg., Shaw v. Reno, 509 U.S. 630 (1993).

[15] See Gotanda, supra note 4, at 2-3.

[16] See, Washington, 426 U.S. 229.

[17] Personnel Administrator v. Feeney, 442 U.S. 256, 279 (1979).

[18] Kenneth Karst, Belonging to America: Equal Citizenship and the Constitution 154 (1989).

[19] But see, Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266 (1977) (stating that evidence of discriminatory impact “may provide an important starting point” to determine if there has been intentional discrimination).

[20] Charles R. Lawrence, III, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, 39 Stan. L. Rev. 317, 323 (1987).

[21] Linda Hamilton Krieger, The Content of Our Categories: A Cognitive Bias Approach to Discrimination and Equal Employment Opportunity, 47 Stan. L. Rev. 1161 (1995).

[22] Jerry Kang, Trojan Horses of Race, 118 Harv. L. Rev. 1489 (2005).

[23] For a further discussion of the need to reevaluate the concept of intent based on advances in cognitive psychology and critical sociology, see the Equal Justice Society report by Eric K. Yamamoto, Susan K. Serrano, and Minal Shah Fenton, Redefining Discrimination: Using Social Cognition Theory to Challenge the Faulty Assumptions of the “Intent Doctrine” in Anti-Discrimination Law that is included in the supplemental materials.

[24] See, e.g., Personnel Administrator, 442 U.S. 256, 279 (holding that there is no constitutional violation when a governmental decision is made merely “in spite of” its known discriminatory impact); Shaw v. Reno, 509 U.S. 630, 657 (1993) (stating that racial considerations in districting “may balkanize us into competing racial factions; it threatens to carry us further from the goal of a political system in which race no longer matters,” in the face of the extant racial bloc voting).

[25] Seattle, 426 F.3d at 1199 (citing Miller v. Johnson, 515 U.S. 900, 911 (1995)). The Equal Protection Clause of the Fourteenth Amendment to the Constitution protects persons from discriminatory conduct by government actors.

[26] For an extended critique of adjudication that normalizes and legitimates its decisions according to this function, see Cass Sunstein, Lochner’s Legacy, 87 Colum. L. Rev. 873 (1987). For a specific critique of the way that antidiscrimination law performs the function see Kimberlé Williams Crenshaw, Race, Reform and Retrenchment: Transformation and Legitimation in Antidiscrimination Law 101 Harv. L. Rev. 1331 (1988).

[27] See Grutter, 539 U.S. 306; Gratz, 539 U.S. 244.

[28] See Shaw v. Reno, 509 U.S. 630, 642

[29] Jerome McCristal Culp, Jr., Understanding the Racial Discourse of Justice Rehnquist, 25 Rutgers L.J. 597, 617 (1994) (arguing that the Rehnquist Court’s color-blind jurisprudence assumes that “the racial status quo, is an appropriate base line and that any deviation from that status quo invades a protected right”); See also Bakke, 438 U.S. 407 (Blackmun, J., concurring in part and dissenting in part) (Stating that, “We cannot-we dare not-let the Equal Protection Clause perpetuate racial supremacy.”)

[30] Richard Thompson Ford, The Boundaries of Race: Political Geography in Legal Analysis, 107 Harv. L. Rev. 1841 (1994).

[31] Daria Roithmayr, Locked In Segregation, 12 Va. J. Soc. Pol’y & L. 197 (2004).

[32] See Rachel F. Moran, Undone By Law: The Uncertain Legacy Of Lau v. Nichols, 16 Berkeley La Raza L.J. 1 (2005) (arguing that the elimination of the private right of action based on disparate impact claims may have the effect of undermining Lau v. Nichols which “barred school practices that have the effect of excluding children from the educational process based on language, where language is a proxy for race, ethnicity, or national origin”).

[33] Gratz, 539 U.S. at 302 (Ginsburg, J., dissenting) (quoting United States v. Jefferson County Bd. of Educ., 372 F.2d 836, 876 (5th Cir. 1966)).

[34] In the Seattle and Louisville cases, many members of the Court questioned whether the districts could have achieved its racially motivated goal without overtly using race as a factor without subjecting themselves to the same constitutional scrutiny. In this sense there is a concern for the legitimacy of the legal system when the legal rules encourage “hiding the ball,” Gratz, 539 U.S. at 298 (Souter, J., dissenting), and legislation “through winks, nods, and disguises,” id. at 304 (Ginsburg, J., dissenting).

[35] Yamamoto et al., supra note 9.

[36] Bakke, 438 U.S. 407 ((Blackmun, J., concurring in part and dissenting in part).

Latinos, Military and Citizenship

Recently Eva Paterson asked about the relationship between the civil rights and the war in Iraq. I began to think about the complex relationship between Latinos, Military and Citizenship.

Military recruiters target Latino neighborhoods and schools. This is essentially a poverty and race draft, and is definitely a civil rights issue. There are troubling reports of undocumented Latinos being tacitly promised a path to legal status by recruiters. While there is a way for legal residents who already have the means to naturalize to speed up the process, there is no current path to legal status for undocumented folks based solely on military service.

However, the proposed DREAM Act does provide such a path, along with a path to citizenship for undocumented students who attend college. In truth, it is a piece of legislation that does not have a ton of hope of passing as is, and would likely have none without the military portion. This has led many advocates to have mixed feelings about the legislation, but upon the urging of the constituency most effected (undocumented young folks) and weighing the balance of the good vs. the bad, most immigrant advocates are fully supporting the bill. This is because the situation is so desperate for the growing population of young undocumented immigrants in this country, who have lived in the US for the majority of their lives, YET HAVE NO WAY TO GAIN LEGAL STATUS. This leaves these young people with no hope of ever escaping their de jure second-class status. This DREAM Act would provide an opportunity for many of this group to gain legal status, in a way that may garner sufficient bipartisan support.

However, there are vocal portions of the Latino community that oppose the bill. I feel that this is a mistaken move, and one that results from not listening to the community of folks effected. While I share their reservations about a law that will effectively target one group for military service, I do not place these concerns over what is being said by the undocumented students. In fact, to my knowledge most of the advocacy organizations and all the student organizations that specifically work on undocumented student issues support the DREAM Act.

‘Unflagging Courage’ by Elaine Elinson in LA Daily Journal

Unflagging Courage

By Elaine Elinson
Los Angeles Daily Journal
June 14, 2007

Charlotte Gabrielli was 9 years old in 1936, when she was suspended from Fremont Elementary School in Sacramento. The bright little girl with brunette sausage curls and a sweet smile was not suspended for misbehaving; in fact, she was trying to obey her parents’ instructions. Her parents, both deaf, were Jehovah’s Witnesses who told Charlotte that in their religion, the “flag salute is a form of idolatry, forbidden by the divine mandates.” Like other Witness parents, they instructed their second-grader to show respect by standing quietly while the others said the pledge, but not to join in the ritual.

Charlotte’s case went all the way to the California Supreme Court. While Jehovah’s Witnesses prayed silently in the courtroom, an American Civil Liberties Union attorney argued that the California Constitution’s guarantee of the “free exercise and enjoyment of religious profession and worship, without discrimination or preference” should prohibit school officials from suspending Charlotte because of her religious beliefs. The state constitution’s assurance of religious liberty was even stronger than the U.S. Constitution’s First Amendment, Charlotte’s lawyer told the court, adding that patriotism could be taught by other methods.

But in 1938, the state high court upheld the compulsory flag salute, stating, “We see no violation of any article of the federal or state [c]onstitutions, …. simple salutation to the flag and repetition of the pledge … tend to stimulate in the minds of youth … lasting affection and respect for, and unfaltering loyalty to, our government.”

Following the California Supreme Court ruling in the Gabrielli case, schools all over the state cracked down on Jehovah’s Witness families. Students in Crescent City, Alhambra and Fresno faced expulsion for refusing to salute the flag. Parents in Delhi and Modesto were even arrested for failing to send their children to school.

In June 1940, on the eve of World War II, an event took place that served as a catalyst for the escalation of attacks on Jehovah’s Witnesses in California and across the country. The U.S. Supreme Court ruled in Gobitis v. Minersville, a case from Pennsylvania, that school boards could compel all students to salute the flag or face expulsion.

The 8-1 decision by the high court reflected the political imperative to whip up enthusiasm for war and squelch any challenges to patriotism. The ruling, by Justice Felix Frankfurter, stated, “We live by symbols, and our flag is the symbol of national unity.”

The single voice of dissent, Justice Harlan Fiske Stone (who had earlier exhibited his passion for religious liberty by supporting conscientious objectors during World War I), described the treatment that Jehovah’s Witnesses were enduring in Nazi Germany: They were threatened and later arrested en masse and forced into concentration camps because they would not pledge allegiance to Hitler.

When schools opened the following autumn, Jehovah’s Witness students were expelled up and down the state - from the San Joaquin towns of Selma and Hanford, to the southern California suburbs of San Bernardino and 29 Palms, to Marin and Napa counties in the north.

The ACLU documented 2,000 school children expelled throughout the country and reported 355 violent incidents in 44 states.

The ruling also unleashed a wave of vigilantism against Jehovah’s Witnesses, leading author Sinclair Lewis to write, “The gangs behind this compulsory flag salute nonsense are trying to turn that flag from the symbol of liberty into the symbol of tyranny, fascism and death.”

Mobs attacked Jehovah’s Witness meetings in Elsinor and Mount Shasta and in Klamath Falls, Ore. At the latter meeting, more than 1,000 vigilantes stormed the convention hall, shattering plate windows, burning banners and religious literature and injuring scores at the conference. The chief of police stood within a few feet of those ransacking the convention hall and did nothing.

But on Flag Day 1943, change came from a most unlikely source. The U.S. Supreme Court, in a rare move, admitted that it had made an error in the Gobitis ruling. Justice Stone, the lone dissent in Gobitis, had become Chief Justice in 1941.

In the case of Barnett v. Virginia State Board of Education, the court, by a vote of 6-3, reversed itself. The decision by Justice Robert H. Jackson not only declared the mandatory flag salute ordinances unconstitutional, but also became a landmark for asserting the rights of religious liberty. Jackson wrote, “If there is any fixed star in our constitutional constellation it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism or other matter of opinion, or force citizens to confess by words or act their faith therein.”

On this Flag Day, more than 60 years later, it is important for all those who treasure religious liberty to remind themselves of the vigilantism that arose from religious intolerance in California. Let us also remember that both our flag and our Constitution’s “fixed star” protect little girls like Charlotte Gabrielli of Sacramento, who have the courage to act on their beliefs.

Elaine Elinson is an editor and communications consultant in San Francisco. She is the co-author of a forthcoming history of civil liberties in California that will be published by Heyday Books in 2008.

EJS Helps Working Assets Deliver Petitions to Congress to Urge the Restoration of Habeas Corpus

Working Assets Wireless congratulates members of the Senate Judiciary Committee for voting to approve legislation restoring habeas corpus by passing the Habeas Corpus Restoration Act.

Working Assets (workingassetswireless.com) presented senators with petitions representing more than 4,000 lawyers, retired prosecutors and other members of the legal community urging the Senate to restore the constitutional writ of habeas corpus. In the two weeks before the Judiciary Committee vote, many of these lawyers met with staff or members of the Committee as part of a campaign organized with the assistance of the Alliance for Justice and the Equal Justice Society. Lawyers have unique knowledge of and commitment to the value of habeas and were effective in convincing senators to do the right thing.

According to Working Assets President Michael Kieschnick, “This vote is the first step toward restoring our basic constitutional protections after six dark years of erosion under the Bush Administration. It also begins to restore our moral legitimacy in the eyes of the rest of the world.” Kieschnick added, “Contrary to the Bush administration’s claims, the right of habeas corpus is a triumph of democracy and is the will of the people. Working Assets customers urge the Senate to finish the job and pass the Habeas Corpus Restoration Act.”

Customers of Working Assets’ services comprise one of the largest independent citizen lobbyist groups in the U.S. and contact targeted law makers over 4 million times a year on key political issues.

Working Assets is a social-change organization that has raised over $50 million in donations to politically progressive nonprofits. When Working Assets members use its cellphone, long distance or credit card services, a portion of customers’ charges automatically go to organizations working for peace, equality and the environment, at no extra cost. Members also engage in volunteer activities and activism campaigns organized by the company in partnership with nonprofit groups nationwide.

Gary Sheffield, Baseball and Latinos

When Gary Sheffield recently made comments about MLB teams preferring players from Latin America to African Americans because the Latinos are seen as being less likely to stand up for themselves, many took it to be insulting to both Latinos and African Americans. However, King Kaufman has pointed out in his that Sheffield’s comments should be taken as an indictment about the way in which discrimination and exploitation relies on the ability to break minorities and other disadvantaged groups into areas where the ability to make rights claims are undermined by the disempowerment of another group. By pointing out that MLB teams prefer Latinos because they will not stand up for themselves because they are not aware of how they should be treated, and are afraid of the dire consequences if they get sent back home, Sheffield and Kaufmann are pointing to a much larger problem facing minorities in this country.

The laws in this country that were put in place to protect against exploitation and discrimination have been under constant attack, leading to situations where the precarious ability of one group to make rights claims (to not be discriminated against in the amount of money you are paid or in your workplace conditions, or to be able to go to court and claim what you are owed) means that everybody is harmed.

In recent years the Supreme Court has severely undermine the protections of workers. In Hoffman Plastic Compounds, Inc., v. NLRB the Supreme Court held that undocumented workers are not entitled to back pay (the only monetary remedy available) under the National Labor Relations Act when they are illegally fired for attempting to unionize and stop exploitative practices.

Further, just this year, in Ledbetter v. Goodyear Tire and Rubber Co. the new Court under the leadership of Chief Justice John Roberts, undermined the ability to bring claims of pay discrimination. In that case, Lilly Ledbetter, who worked her entire career at lower pay than men doing the same job, could not recover the money she was wrongfully denied because she did not complain about it at the time she was hired, despite the fact she probably did not know at that time she was being discriminated against.

It is precisely these issues that that create the atmosphere where Latino players are preferred over African American ones. From the standpoint of those in power, it is advantageous to keep those who you are seeking to maximize profit from as powerless as possible. It not only is it easy to keep those groups in control, but it also keeps groups who are relatively more empowered, but still vulnerable, in a precarious position.

When over a million people took to the street last year to demand to that undocumented people should be given legal status in this country, some legitimated this call on the basis that undocumented immigrants “do work that no one else is willing to do.”

In truth, Sheffield’s comments are closer to the mark. Essentially, his point exemplifies the reality that that it is undocumented immigrants, because of their legal vulnerability, are doing work under conditions that no one should have to put up with, for pay that is unjust, with little in the way of legal recourse or protection. This is a result of their de jure subordinate legal status, and the conservative retrenchment of the Courts who are dismantling a host of protections for vulnerable groups. Likewise, African Americans, who have long struggled against racial discrimination in the workplace and in other social institutions find their ability to make rights claims in a similar predicament. If they argue too much and demand their rights too vehemently, there is the reality that they could be replaced by another group that will not be able to “cause as much trouble.”

From Jackie Robinson to Mohamed Ali to the rhetoric that now surrounds the NBA and its players, sports have given us insights into our race relations. Now, Sheffield’s comments do the same in the context of changing racial demographics and global economic conditions, and what it means for the fight for social justice. Sheffield and Kaufman are on to something, that reveals the way in which the struggle for dignity and fairness is no longer a national issue, even in the context of our national past time. It for this reasons that the immigrants’ rights struggle is a struggle for all those facing discrimination. In fighting so that everyone working here and living here we ensure decent conditions for all.

Unequal Justice for Paris Hilton

UPDATE 6/26:  Jeremiah Owyang just emailed me about a post on feministing.com on Jeremy Bearer-Friend’s thoughts below.

I was in Los Angeles yesterday sitting in a hotel bearing Paris Hilton’s family name (getting ready to deliver an e-advocacy workshop for the California Pan-Ethnic Health Network) when I received a call from Rex Huppke at the Chicago Tribune asking for comment on Paris Hilton’s abbreviated jail stay. Instead of offering my own thoughts — which would have been colorful — I put him in touch with allies with more expertise on criminal justice reform or the racial disparities in our prison system.

Rex’s article eventually quoted one of the sources I passed along — Bill Ong Hing — who contrasted on the ImmigrationProf Blog the special treatment offered to Hilton versus immigrants who are deported for much lesser offenses.

Another source I referred, Karen Shain, co-director of Legal Services for Prisoners with Children, wrote in an email to me that while her organization “doesn’t believe that most people (including Paris Hilton) need to be incarcerated, it is absurd that she was able to receive [such] special treatment.”

Jeremy Bearer-Friend, a Field Building Fellow with the Oakland-based Movement Strategy Center wrote to me that “it’s imperative to bring in an abolitionist angle.”

“The real scandal here is that women of color are the fastest growing population of incarcerated people in the US, yet this story is never told or reported on. The current media frenzy over Paris demonstrates only the apartheid state we currently live under, with a media that is absolutely uninterested in reporting on the mass incarceration of people of color.

“De-incarceration has been a central goal of prison reform and prison abolition work in California. That Paris has the opportunity to remain within her community and recover from her substance abuse amongst her family is an opportunity that all addicts should be able to enjoy. The reaction to this story is not to lock up everyone for longer and prevent addicts from accessing treatment. The solution is to shut down a broken system and replace it with public health money that can treat addiction and substance abuse in an effective and healing way.”

As I finish writing this post, I received a CNN email alert that a judge ordered Hilton back to jail. “She was taken from the court screaming, The Associated Press reports.”