In a 5 to 4 decision in the case of Ricci v. DeStefano, the U.S. Supreme Court ruled today that the city of New Haven, Connecticut violated Title VII when it declined to make promotions in the fire department on the basis of a test that disproportionately screened out minority candidates.
The Equal Justice Society joined the Lawyers’ Committee for Civil Rights Under Law in an amicus curiae, or friend of the court, brief urging the Court to uphold New Haven’s efforts to root out discrimination from its promotional process, consistent with civil rights laws and the Constitution. The Lawyers’ Committee brief was also joined by the National Association for the Advancement of Colored People and the National Urban League.
“We are shocked by the decision and we will continue our work to preserve the vital protections of Title VII of the Civil Rights Act of 1964,” said Barbara Arnwine, executive director of the Lawyers’ Committee for Civil Rights Under Law. “Like Justice Ginsburg, we anticipate that the decision ‘will not have staying power.’”
In this case, the city of New Haven, Connecticut declined to certify the results of a firefighter promotion test based on evidence that the test discriminated on the basis of race. The city also had evidence that more fair and effective tests were available. Rather than making promotions on the basis of the discriminatory test, the city declined to certify the results, and sought to explore less discriminatory alternatives, in keeping with its obligations under Title VII of the Civil Rights Act of 1964. When the city declined to make promotions on the basis of the test results, firefighters who had scored highly on the test filed suit, alleging that the city discriminated on the basis of race.
“Today’s decision ignores the plain language of Title VII, congressional intent and established precedent,” said Sarah Crawford, senior counsel with the Lawyers’ Committee for Civil Rights Under Law’s Employment Discrimination Project. “We still have far to go to fulfill Title VII’s promise of equal employment opportunity. This is a giant leap backward.”
In a statement issued today on the Supreme Court’s 5-4 decision on Ricci v. DeStefano, Alliance for Justice President Nan Aron said that the “majority’s opinion ignores our nation’s history, rejects precedent, overturns the judgment of local government officials and makes it more difficult for employers to take voluntary steps to break down barriers to equal employment.”
“Continuing its assault on our civil rights laws, the five conservative ideologues on the Supreme Court today rejected long-standing law to weaken Title VII protections for traditional victims of discrimination,” said Aron.
Before the Court issued its ruling, People For the American Way Executive Vice President Marge Baker said that: “Opponents of Judge Sotomayor have gone to great lengths to use the ruling of her panel in Ricci v. DeStefano against her, and they will surely ramp up their efforts if the Supreme Court overturns the Second Circuit. But the simple fact is that the Supreme Court’s ruling, whatever it may be, will not reflect upon Sotomayor’s jurisprudence.
“Sotomayor and her panel colleagues were bound by longstanding precedent and federal law. They applied the law without regard to their personal views and unanimously affirmed the district court ruling. To do anything but would have been judicial activism.
“The full Second Circuit backed up the panel, which came as no surprise. Nearly ten years earlier a Second Circuit panel — consisting of three GOP nominees — reached the same conclusion in a similar case (Hayden v. County of Nassau).
“When a case virtually identical to Ricci came before the Sixth Circuit — Oakley v. Memphis — a panel rejected the plaintiffs’ claims and affirmed the district court ruling. Notably, they did so in an unpublished summary order, and one of the three judges was conservative Bush nominee Richard Allen Griffin.
“In other words, Sotomayor is anything but an outlier. She and the seven other federal judges who decided Ricci and Oakley at the district and circuit levels were unanimous in determining that precedent and federal law required the rejection of the suits.”
BBC Radio’s Mark Forrest talks with EJS President Eva Paterson following reports this week that a staffer for a Republican state Senator in Tennessee sent an email with an image showing portraits of our presidents, except President Obama is depicted only with two eyeballs on a solid black background.
As reported by numerous outlets, including HuffPo, Newscoma and Nashville is Taking, Sherri Goforth, an executive assistant for Tennessee State Rep. Diane Black (R-Gallatin), sent this picture out to other legislative staffers:
Eva talks about the role of unconscious bias in how racism is manifested today and also about her movie, Presidential Race, which examines how far we have come in the forty-six years since Martin Luther King electrified the country with his “I Have A Dream” speech.
EJS’s profound interest in the science of unconscious bias is a key component of our long-range initiative to dismantle the Intent Doctrine. In 1976, just a few years after Justice William Rehnquist joined the bench, Washington v. Davis was decided, placing a nearly insurmountable hurdle in the way of plaintiffs seeking redress for discrimination.
This decision placed a prohibitive burden on victims of discrimination and limited the Equal Protection Clause of the Fourteenth Amendment by restricting its remedial reach to cases in which the plaintiff could prove a decision-maker’s specific “intent” to discriminate.
Racial justice is impossible to achieve when the law fails to reflect the actual experiences of communities who have seen and felt discrimination. Social psychologists, critical sociologists and other social scientists have developed empirical and theoretical research showing that the Intent Doctrine fails to reflect how a large part of discrimination actually occurs.
According to these studies, all of us have unconscious biases that influence how we perceive and make decisions about other people. Individual and institutional discrimination, often guided by these cognitive biases and stereotypes, can occur even in the absence of blatant prejudice. Many of these powerful theories and studies, however, are not being fully utilized on the front lines of political debate or courtrooms by legal advocates.
In order to provide lawyers with the necessary tools to challenge the faulty assumptions of the Intent Doctrine, the Equal Justice Society brings together social scientists, lawyers, pollsters, legal academics and students to develop long-term strategies for introducing a more accurate understanding of discrimination into the law. Most Americans do not want to be racist and do not think they act in racially biased ways.
Not only does our promoting of the unconscious bias framework support our work to dismantle Intent, but it also allows for a more engaging approach to address racism - i.e., promoting unconscious bias takes a “building awareness” rather than a “blaming” approach.
I stumbled upon an intriguing June 7 post by Tamara K. Nopper, Ph.D., Adjunct Assistant Professor, Temple University and the University of Pennsylvania. She discusses the racial dynamics of the popular reality TV show Top Chef on the cable network Bravo. How the entertainment industry deals with race is an element of our communications strategy here at EJS. We developed a focus on this knowing that popular culture has a powerful impact on Americans; and the way that TV shows, movies and other entertainment platforms frame race is an area that we must continue to engage in. Her blog post is re-posted here from the Everyday Sociology blog with Dr. Nopper’s permission.
“Top Chef and the Black/Non-Black Divide”
I love the show Top Chef. I watch it religiously and regularly chat about it with fellow fan and friend Kevin Eddington. Although more of a foodie than me—he actually knows what sous videmeans—we share concerns about the show’s racial dynamics, some of which I want to discuss here. Specifically, I want to explore how Asian Americans and African Americans are represented on Top Chef and in the process, draw from approaches emphasizing the Black/non-Black divide.
The Black/non-Black framework is proposed by George Yancey in his book Who is White?: Latinos, Asians, and the New Black/Nonblack Divide. According to Yancey, this framework is more helpful for analyzing racism than a white/non-white paradigm because Blacks experience a unique degree of social isolation, as evidenced by how whites, Latinos, and Asian Americans reject them as potential neighbors and marriage partners yet remain open to each other. Yancey’s conclusion bears out on the show.
Asian Americans are present as contestants, chefs, judges, and of course, hosts, and Hung Huynh won the title on season three. Yet Asian Americans face particular racial expectations: they’re encouraged to talk about their ethnicities or immigration histories, badmouthed for cooking too many Asian-influenced dishes, or expected to cook Asian food regardless of training. For example, Huynh was told that despite his skill and “technique,” his food lacked “soul.”
White head judge Tom Colicchio, reminding Huynh of Huynh’s Vietnamese background,said he didn’t “see” him in his food. Such comments reinforce the model minority myth, which celebrates “Asian” work ethic and mechanical productivity while denying us unconditional subjectivity, sociability, and authority automatically afforded whites.
Ultimately Huynh incorporated Asian-influenced flavors into his final meal in hopes of revealing his “authentic” (ethnic) self to the judges. As Huynh tried to express “soul,” his (aired) image shifted from a technically efficient, ultra-competitive, and unlikable Asian to a more humbled Asian eager to take advantage of American opportunities available to him and other immigrants, making one blogger conclude, “he seemed to…acquire social skills in front of my eyes.”
Whereas Asian Americans are racialized in ways that whites aren’t— white contestants aren’t expected to cook foods of their ethnicities so that judges “know” them—African Americans, for the most part, are physically absent from the show. Yet as Frank B. Wilderson, III explains in the anthology Biko Lives!, even when physically present, Blacks remain absent. Despite the popularity and skills of Tre Wilcox and Carla Hall, they exemplify what Wilderson describes as “the absence of a subjective presence.” Unlike Asian Americans, who could explicitly reference their ethnic backgrounds, they could not. They couldn’t talk about Black marginalization in the culinary industry, but were forced to adopt de-racialized tropes of gender and class marginalization used by whites, particularly women and those who are not classically trained.
Black participants also lacked what Wilderson describes as “political presence” in that they were denied cultural and institutional authority. Although Blacks don’t automatically cook (or eat) “soul food,” they are often relegated to doing so regardless of training. While “ghettoizing,” such gestures, as my friend Kevin points out, also imply that soul food has little value to the non-Black culinary world.
Indeed, no chefs were expected to know foods that are culturally associated with Black people, with the exception of the final competitions held in New Orleans on season five. Yet at both dinners, all of the judges were white except for Asian host and judge Padma Lakshmi. Because Bravo TV, which airs Top Chef, doesn’t have all five seasons archived on its website, I can’t say for certain, but I only remember one Black person, chef Govind Armstrong, ever sitting at the judges’ table during deliberations. I only remember four other Black people—and only one of them a chef—serving as guest diners: chef Marcus Samuelsson (whom my friend Kevin points out was not born or raised in the United States), actress and comic Aisha Tyler, sociologist Mary Patillo (who was never introduced to viewers but who I recognized from being in the same profession), and musician Branford Marsalis—who was the lone Black guest at the final New Orleans dinner.
Marsalis even drew attention to his lack of political presence: after listening to others discuss how dishes tasted good but didn’t “pop,” he remarked that chefs talk just like musicians. Although the others tittered, Marsalis, perhaps inadvertently, alluded to the absurdity of his physical presence as a musician at a food competition where all of the other guests were esteemed members of the culinary world—and all non-Black.
Consistent with Yancey’s and Wilderson’s arguments, then, Asian Americans are more present in multiple ways compared to African Americans on Top Chef. Asian Americans compete, host, sample, and judge. We’re recognized as having an identifiable culture and permitted narratives of “Asian Americanness.” Intrusive, limiting, and racist, these narratives nevertheless serve to endear us to non-Asians because they affirm our presumed ethnic “exoticness” while simultaneously re-institutionalizing “universal” ideas related to the white immigrant experience that emphasize outsider status (but not social inequality). And, Asian cuisine is treated as a legitimate cuisine with history, culture, and place as demonstrated by whites citing it as their specialty, talking about taking classes in Asian cooking, or traveling to Asian countries to learn flavors and techniques. Finally, Asian cuisine is racialized as simultaneously traditional and global and therefore marketable to non-Asians.
Enjoyable to watch, Top Chef is, like many pleasures experienced in a racist society, an opportunity for sociological reflection. When the soon to be launched Top Chef Masters airs, I am sure my friend Kevin and I’ll have lots to dish about. And I am certain that the Black/non-Black divide framework will still be useful for understanding the show’s dynamics. The program’s website already tells me as much. Announcing the competition of “24 world-renowned chefs,” its pictures do indeed speak a thousand words. As images of participants reveal, a few Asian Americans will be featured as competitors and host/judge; but this time around, there are literally no Blacks on the show.
The Oklahoman newspaper printed on Tuesday a racist, sexist and outright offensive “editorial” cartoon.
It depicts Judge Sotomayor strung up by a rope, likening itself to lynching images or a piñata, with President Barack Obama wearing a sombrero, holding a stick and asking a crowd of elephants (Republicans) “Now, who wants to be first?”
We were saddened to hear this morning that Prof. Ron Takaki passed away yesterday. Below is the official statement from UC Berkeley and I set up a Facebook page so folks could share their thoughts about his legacy.
Ronald Takaki, a professor emeritus of ethnic studies at the University of California, Berkeley, and prolific scholar of U.S. race relations who taught UC’s first black history course, died at his home in Berkeley on Tuesday (May 26). He was 70.
Ronald Takaki During his more than four decades at UC Berkeley, Takaki joined the Free Speech Movement, established the nation’s first ethnic studies Ph.D. program as well as Berkeley’s American Cultures requirement for graduation, and advised President Clinton in 1997 on his major speech on race.
A descendent of Japanese plantation workers in Hawaii, Takaki left the islands in the late 1950s to study at Ohio’s College of Wooster, where he earned a bachelor’s degree. He went on to earn a Ph.D. in American history from UC Berkeley in 1967 and was hired at UCLA, where he taught the campus’s first black history course. He joined Berkeley’s Ethnic Studies department in 1971 and served as chair from 1975-77.
Among his numerous accolades for scholarship and activism, Takaki received a Pulitzer nomination for his book, “A Different Mirror: A History of Multicultural America” (Little Brown and Company, 1993); a Distinguished Teaching Award from UC Berkeley and the 2003 Fred Cody Award for lifetime achievement from the Bay Area Book Reviewers Association.
“When I think of Ron, the words that come to mind are: solidarity, justice, easy-going, self-effacing, generous, creative,” said Beatriz Manz, chair of UC Berkeley’s Department of Ethnic Studies. “He poked fun at himself and had a contagious laughter. He embodied kindness. He was agreeable, conciliatory and non-confrontational.”
He is survived by his wife, Carol, his three children and his grandchildren. Plans for a campus memorial service are pending. A complete obituary will be posted on Thursday.
UPDATE: Article by the San Francisco Chronicle’s Bob Egelko.
California State Attorney General Jerry Brown today filed a brief (PDF) with the state Supreme Court today opining that article 1, section 31 of the California Constitution (Prop. 209) is unconstitutional as applied in certain circumstances.
The letter brief was filed in response to the Supreme Court’s request for an opinion regarding Coral Construction v. City and County of San Francisco, a case pending before the Court concerning whether San Francisco’s attempt to remedy longstanding exclusion of minority- and women-owned businesses in its public contracting violates article I, section 31.
The letter stated: “To the extent that the prohibitions against race- and gender-based discrimination in article I, section 31 of the California Constitution (hereafter referred to as section 31) are aligned with the prohibitions enforced under the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution, section 31 is constitutional.
“However, to the extent that section 31 is interpreted more broadly to bar race- or gender-conscious programs that would be permissible under the Fourteenth Amendment, it violates the Equal Protection Clause of the federal Constitution, pursuant to Washington v. Seattle School Dist. No. 1 (1982) 458 U.S. 457 (Seattle) and Hunter v. Erickson (1969) 393 U.S. 385 (Hunter). To that extent, section 31 would create an unequal political structure based on race and gender that is not narrowly tailored to achieve a compelling governmental interest.”
“It is unclear precisely what governmental interest section 31 was intended to serve,” the letter also stated. “If it is the interest in protecting all Californians from discrimination based on race or gender, that is concededly a compelling governmental interest. However, there appears to be no factual basis to support a governmental interest in denying preferences that are permissible under the Fourteenth Amendment.
“Ironically, by effectively disadvantaging racial minorities and women in the political process, without an evident compelling governmental reason for doing so, section 31 seems to accomplish the very evil it purported to eliminate, viz. racial and gender discrimination.”
The Equal Justice Society and the Lawyers’ Committee for Civil Rights of the San Francisco Bay Area, on behalf of a coalition of more than 60 organizations and individuals advocating against the constitutionality of Prop. 209, applaud Attorney General Jerry Brown for his position on this issue.
We will continue to argue that the state Supreme Court should take this opportunity to strike down Prop. 209, an initiative responsible for much harm to communities of color, women and to California as a whole.
