Earlier this year, the Equal Justice Society (EJS), the Lawyers’ Committee for Civil Rights, Legal Services for Prisoners with Children, and the American Parole and Probation Association submitted an amicus brief in the Ninth Circuit case, Farrakhan v. Gregoire, which would determine whether Washington’s felon disenfranchisement law violated the Voting Rights Act of 1965 (VRA). Section 2 of the VRA was enacted to protect against racial discrimination in voting, and prohibits states from using any voter qualification system that results in a denial of the right to vote on account of race or color. Here, Washington’s disenfranchisement law resulted in the loss of voting rights to an astonishing 24 percent of African-American men and 15 percent of Washington’s overall black population.

An earlier ruling by a three-judge panel of the Ninth Circuit relied on undisputed, “compelling” evidence of racial bias throughout Washington state’s criminal justice system to determine that the disproportionate disenfranchisement of Blacks, Latinos and Native Americans as a result of this bias violates Section 2 of the VRA. The case was subsequently taken up by an en banc, eleven-judge panel.

In a disheartening ruling, the en banc panel overruled the three-judge panel and upheld Washington’s felon disenfranchisement law. While acknowledging the presence of discrimination in Washington state’s criminal justice system, the court declined to adopt the previous holding that Washington’s disenfranchisement law violates the VRA because it found no evidence of intentional discrimination.

The court concluded:

[P]laintiffs bringing a section 2 VRA challenge to a felon disenfranchisement law based on the operation of a state’s criminal justice system must at least show that the criminal justice system is infected by intentional discrimination or that the felon disenfranchisement law was enacted with such intent.

Because plaintiffs presented no evidence of intentional discrimination in the operation of Washington’s criminal justice system and argue no other theory under which a section 2 challenge might be sustained, we conclude that they didn’t meet their burden of showing a violation of the VRA. (Emphasis added.)

The court’s conclusion is particularly troubling given that – as noted by the earlier three-judge panel – voter discrimination need not be intentional to violate Section 2 of the VRA. In fact, Section 2 was explicitly drafted to cover both intentional and disparate impact-based instances of discrimination. The court’s holding provides yet another example of how the “intent” requirement first articulated in the 1976 Supreme Court case Washington v. Davis gradually has crept into areas of law beyond 14th Amendment equal protection jurisprudence, denying victims of discrimination access to meaningful relief in a wide variety of contexts.

According to EJS President Eva Paterson, “In the years since Washington v. Davis was decided, the requirement of proving discriminatory intent has barred countless victims of discrimination from accessing a legal remedy because it fails to address contemporary forms of discrimination. We no longer have George Wallace’s chanting: ‘segregation now, segregation tomorrow, segregation forever’ on the school house steps, yet we continue to see race-based disparities in almost every measure of societal well-being. Requiring proof that these disparities resulted from ‘intentional’ discrimination simply makes no sense in an age when the majority of racial bias is implicit or structural.”

Extensive empirical and theoretical research confirms that implicit bias substantially motivates disproportionate outcomes even absent an express intent to discriminate. However, courts have been slow to acknowledge this reality. For instance, in McCleskey v. Kemp, a 1987 Supreme Court case, a habeas petitioner presented statistical evidence showing grave disparities in the imposition of the death penalty in Georgia. Specifically, a review of over 2,000 cases illustrated that the death penalty was assessed in 22% of cases involving black defendants and white victims, and just 1% of those involving black defendants and black victims. Likewise, application of the death penalty was 4.3 times higher when the defendant was charged with killing a white victim. Despite this clear evidence of systemic racial bias, the Supreme Court held that the petitioner failed to show discriminatory intent or purpose sufficient to establish a violation of the Equal Protection Clause. Moreover, the Court insinuated that accepting McCleskey’s claim would require the court to address discrimination present throughout the criminal justice system, a task that was simply “too large” for the Court to undertake. Making a similar argument in Farrakhan, the Pacific Legal Foundation asserted that allowing disenfranchisement statutes to be invalidated based on unintentional racial discrimination would require states to monitor their criminal justice systems to ensure that arrests and convictions were “racially balanced.” [1]

These arguments fly in the face of the notion of equal protection enshrined by the 14th Amendment. That the task of “addressing systemic bias within the criminal justice system” is too large is not a reason to avoid undertaking it. In fact, justice demands that we do undertake this task, alongside the task of addressing systemic bias throughout our society, and that our courts do the same. This is why the Equal Justice Society’s commitment to overturning Washington v. Davis and the Intent Doctrine is so essential. Voters in Washington State and victims of discrimination everywhere should again be able to rely upon the 14th Amendment’s guarantee of equal protection under the law.

The Equal Justice Society is a national legal organization that promotes a vision of a society where race is no longer a barrier to opportunity. To achieve its mission, EJS is active in a number of criminal justice and voting reform initiatives, as well as cases that highlight modern-day manifestations of discrimination.

—
[1] Bob Egelko, Court upholds Washington inmate voting ban, The San Francisco Chronicle, October 8, 2010, available at: http://articles.sfgate.com/2010-10-08/bay-area/24117303_1_felons-appeals-court-justice-system

EJS joins the Writers Guild of America West, Screen Actors Guild, Americans for American Values and the Kirwan Institute in presenting “Reading Between the Lines: Uncovering Unconscious Bias” on September 30, 2009, from 6:30 p.m. to 8:30 p.m. at the Writers Guild of America, 7000 West Third Street, Los Angeles. A reception will follow the panel, which will be introduced by Norman Lear.

UPDATE: We will be videotaping this event.

The event is listed on Facebook, but RSVPs must be sent to diversity@wga.org with “Between the Lines” in subject line of your email. Contact the WGAW Diversity Department at 323-782-4589 with any questions.

In his autobiography Nelson Mandela tells of getting on a plane in Africa after his release from 28 years of imprisonment. The pilot of the plane was a Black African. This frightened Mandela. When he examined his fears, he realized that he had internalized negative stereotypes of Black incompetence. Many of us have internalized negative stereotypes of women, lesbians and gay men, the disabled, older people, and people of color. These fears operate in our unconscious.

Panelists include:

• Celinda Lake, Pollster
• john powell, Professor of Law, The Ohio State University
• Antonia Hernández, President and Chief Executive Officer, The California Community Foundation
• Dr. Camille Charles, University of Pennsylvania
• Jerry Kang, Professor of Law, UCLA
• Dr. Maninder Kahlon, Cognitive Neuroscientist
• Jeff Adachi, San Francisco Public Defender and Producer of The Slanted Screen, a documentary on Asian Americans in cinema
• Eva Paterson, President, Equal Justice Society

With special guests:

• Kathleen Antonia, attorney and actor
• Tim Paulson, California Teachers Association
• Larissa Fasthorse, WGAW American Indian Writers Committee
• John S. Johnson, Director, Harmony Institute

The panelists will explore how the brain processes information and how the need for quick decision often leads to faulty conclusions. Political ads from the 2008 presidential campaign will be used as examples of how media can “prime” viewers to activate stereotypes and similarly, deactivate the impact of negative unconscious stereotypes. A number of ads showed candidate Obama as a menacing Black man – purposefully done to make voters afraid of him.

EJS has studied the intersection of unconscious bias and social justice since 2003. Our signature project on this issue is the collaboration with the California Teachers Association to assess racial bias in the classroom and school environment and its impact on student achievement.

“Implicit (unconscious) bias and stereotyping are gaining increasing attention as a possible explanation of unequal treatment in a number of settings including education, employment, health care and law,” said Dr. James Outtz, an industrial and organizational psychologist, who leads the research team on behalf of EJS and CTA. Dr. Outtz explained that scientists define unconscious bias as implicit attitudes, actions or judgments that are controlled by automatic evaluation without a person’s awareness. Existing research shows that we all engage in a cognitive process called “categorization” to simplify and streamline how we perceive others (e.g. sex, race, or age). This process can lead to stereotype application that influences our thoughts and behaviors towards members of certain groups.

Notably, there are a number of social power relationships in our society in which the application of stereotypes may be particularly detrimental to members of racial and ethnic minority groups, the teacher-student relationship being one significant example.

Our workshop will provide a background on the unconscious bias theory, drawing from our six years of work on the issue and identifying ways that unconscious bias can be better understood and used by writers.

Contact me at kkamisugi@equaljusticesociety.org if you have questions about this event.

]]> http://www.equaljusticesociety.org/2009/07/unconsciousbias-panel-wga/feed/ 1 http://www.equaljusticesociety.org/2009/07/session-on-myth-of-post-racial-america-at-netroots-nation-in-pittsburgh-aug-13-16/ http://www.equaljusticesociety.org/2009/07/session-on-myth-of-post-racial-america-at-netroots-nation-in-pittsburgh-aug-13-16/#comments Wed, 15 Jul 2009 22:26:38 +0000 Keith Kamisugi http://www.equaljusticesociety.org/?p=824 The Equal Justice Society is proud to support Netroots Nation, the country’s top convention for progressive online activists. The fourth annual gathering of the Netroots (formerly known as the YearlyKos Convention) will be held August 13–16 at the David L. Lawrence Convention Center in Pittsburgh, Pa.

EJS is coordinating a session on “The Myth of Post-Racial America” on Thursday, August 13, from 9 a.m. to 10:15 a.m. Panelists include Rinku Sen, President and Executive Director of the Applied Research Center (ARC); Rich Benjamin, Senior Fellow at DEMOS; Annabel Park, director/producer of the upcoming documentary film “9500 Liberty” and moderated by Keith Kamisugi, EJS Director of Communications. Save the session date and info on Facebook.

Netroots Nation 2009 will include panels led by national and international experts; a progressive film screening series; practical training sessions and workshops; and the most concentrated gathering of progressive bloggers to date.

Past gatherings have included a Presidential Leadership Forum that drew seven Democratic candidates, a surprise visit from Al Gore; an interactive Ask the Speaker session with Nancy Pelosi; and hundreds of panels, roundtables, training sessions, workshops and keynotes.

Contact Keith Kamisugi (kkamisugi@equaljusticesociety.org) for more information on this session or the conference.

Scholarships Available for Bloggers Covering Immigration Issues

As progressives across the country begin strategizing and organizing around comprehensive immigration reform, there’s no better place to connect than this summer’s Netroots Nation convention. With nearly 100 training sessions and panels to choose from, it’s vital that those who write about immigration are well-represented in Pittsburgh.

Do you know someone working at the intersection of new media and immigration, who blogs on the issue, and who needs some help getting to Netroots Nation? If so, tell them to apply for a scholarship!

This year, America’s Voice, an organization committed to supporting a vibrant and independent pro-migrant blogosphere, will send eight immigration bloggers to Pittsburgh to attend the convention. The scholarship includes registration, a travel stipend and shared hotel accommodations.

The America’s Voice and Netroots Nation scholarship selection committee will rely on several unique factors to select contest winners. Above all, we are interested in hearing your personal story and your personal connection to the issue, what drives your work, and why you would like to attend Netroots Nation.

It’s also important that we select people who are not only passionate about blogging and/or online activism, but who bring a unique and underrepresented perspective to the Netroots Nation convention.

The answers that you submit in your application are private, but if selected as a winner, we may ask to publish some of your answers on our website.

Apply now to be a America’s Voice/Netroots Nation 2009 Scholar.

Since time is short and we want to let winners make their travel arrangements, all applications are due by Monday, July 20. Selections will be posted online by August 1, but winners will be contacted via email as soon as they are selected.

Over the last few days, I’ve searched my heart and mind to figure out why I’m so emotional about Michael Jackson’s death. I mean, it’s not like I knew him . . . or even followed his career in many years.

Friends in my age group say that it’s because his music helped to define our childhood. Others say it’s because his death signifies the end of a chapter of our lives. Yet others say that it’s because his songs conjure deep memories of the past.

All of those things are true. So are the memories of the Michael Jackson concert I went to in 1997 with my closest friends, the zillion times I played “Thriller” on my record player, and the way I almost wore out our Betamax VCR playing his videos. And, of course, I’m emotional because I feel sorry for his tortured life and much-too-early death. But for me, there’s something more.

I’m half Japanese American and half Puerto Rican – and quite Afro-Puerto Rican, at that. I grew up in a small, very-predominantly white town – Petaluma, California – with my single mom. Playing with my friends was fun. We all had white baby dolls. We all had blond Barbies. We acted out Grease. We loved Shaun Cassidy. We read Tiger Beat and kissed all the handsome, young, white movie stars that graced the pages. We got “Physical” to Olivia Newton John.

But I never saw anyone in my image. No teachers. No parents. No friends. No role models. At that time, there may have been many white ethnic groups in Petaluma, but a diverse place it was not.

Some kids called me “nigger.” Others called me “Jap” (making sure to make squinty-eyes with their fingers while they were saying it). Others told racial jokes in my presence as if it didn’t matter that I was there.

One girl said that if she ever brought a non-white boy home, her dad said he would get out the shotgun. Even those important adults (teachers, parents and others) who were well-meaning, inadvertently said things that made me feel even more different – and excluded.

I was full of self-hate. I straightened my hair. I wore the whitest powder on my face I could manage. I lied about my race. I envied my white friends. I wished on stars that I could be white – somehow. I even asked my mom why she couldn’t have married a white guy so I could have come out different. Some days, I felt as though I lived in my own private hell.

Then came the force that was Michael Jackson. He was Black. He was handsome. He was a superstar. We all learned how to moonwalk. We watched his videos over and over . . . and over. We bought his records, his posters. White girls screamed for him. White girls.

For the first time in my short and undeveloped life, I breathed a sigh of relief. If white girls could have crushes on an African American man, that must mean that being non-white was OK. Maybe I was OK. Maybe the standard of beauty wasn’t blond hair and blue eyes – maybe I could look more like the African American girl in the “Thriller” video – and that was OK.

For the first time, I really realized that there were people out there who looked more like me, and they were well-loved, popular, and real.

I know, almost all kids and teens go through a “stage.” They feel like they don’t belong. They get teased. But this is not just about zits or baby fat. This is about race. And race in America comes with a long history of exclusion, occupation, segregation, discrimination.

So, the fact that Michael Jackson broke down barriers, integrated music television, crossed-over, transcended, spoke to the masses, was – and is – a big deal. For the U.S. and the world.

And while Michael was throwing open the doors of opportunity in the entertainment business, he was giving me the confidence as a young woman of color to stand tall and go on. And for that, I am forever grateful.

Of course, Michael Jackson did not single-handedly solve my – or anyone else’s – racial issues. Transformation doesn’t happen overnight, and sometimes not in a lifetime. The wounds of American racial history run deep. And, ironically, Michael suffered from his own intense version of self-hate.

But that doesn’t matter to me now. All I remember is that fast-footed, sparkling-gloved, sweet-voiced Black man who helped launch me into adolescence just a little less ashamed of who I was.

And that is why I mourn his passing.

Thank you, Michael, for what you gave me . . . and the world. Rest in peace.

- Susan K. Serrano

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.”