IN THIS ISSUE

Front Page

Letter from the President: Putting Race Back on the Table

Notes from the Right: Race and Poverty —Getting a Legal Burial?

Law Review Summaries: Racial Lines and Property Rights

Funders Support Innovative Meeting on Intent Doctrine

EJS and California Teachers Association Collaborate on Unconscious Bias Project

EJS Argues Admissions Policy of Hawai'i Private School for Native Hawaiian Children Does Not Violate Civil Rights

New Chief Justice: Where Will He Stand on Civil Rights?

Staff/Board News and Notes

Newsletter Editors:
Elaine Elinson
Miguel Gavaldon

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 From Eva Paterson

Putting Race Back on the Table

When did you first realize that the majority of people trapped in the Superdome were African-Americans? How many tears did you cry when you saw the grandmothers in their wheelchairs looking dazed and bewildered on the streets of New Orleans? How did you feel when you heard that Bill Bennett spoke casually of aborting Black babies as a way to control crime? Or when the Forty-Niners used blatant anti-Asian caricatures in their training video? How do you feel when vigilantes patrol the borders with Mexico to keep Latinos out of the country that was once Mexico?

How angry are you about the persistence of racism in our country?

For years, the topics of race and racism have been verboten in this country. I vividly remember a middle-aged White woman saying that President Reagan gave White people permission not to feel guilty about race. Before that, there was the "code word" bigotry of the Nixon era. New York Times columnist Bob Herbert said that Bennett's knuckle-headed comments came as no surprise to him. Herbert made me recall Lee Atwater, former Chair of the Republican Party and a mentor to Karl Rove. Atwater was clear that the GOP was courting the bigot voting bloc by talking of "cutting government benefits" - merely code language for harming Black people. Current GOP Chair Ken Mehlman recently copped to this strategy during his mea culpa speech at the NAACP national convention. Some might say he was shedding crocodile tears, because at the same time another arm of the Republican machinery is trying to challenge the tax exempt status of the NAACP for criticizing the Bush regime.

And lest a sharp-eyed critic of the Equal Justice Society thinks that the previous paragraph exposes us to the harsh scrutiny of the IRS, I am also quite critical of the Democrats. I have been told repeatedly that race is a "non-starter" for discussion by the Democratic Party. The shameful abandonment of the interest of Black voters in the 2000 election will haunt me to my dying day. The consequences of that election are apparent to all of us every day.

So why curse the darkness? Where is the match for the candles full of light and the firesides full of warmth?

Since its inception in 2000, EJS has focused considerable energy on issues of race, color, and ethnicity. Our spiritual ancestors are the attorneys who knocked out Plessy v Ferguson, the evil doctrine of "separate but equal." Over the past five years, we successfully argued in support of affirmative action in the Grutter case. We challenged the misguided notion of colorblindness in our work to defeat Proposition 54. We supported the rights of Native Americans in Hawai'i, and are currently investigating anti-Indian bigotry that is dismissive of tribal law. Racial justice is a key component of our mission.

EJS knows that structural and institutional racism are alive and well, and we will continue seeking to eliminate these blights on our national psyche. We are engaged in several exciting new initiatives: The topic of unconscious racial bias has opened up new and exciting vistas for racial justice work. You will read in this issue of our newsletter some examples of our efforts. Here, I would like to tell you of its origin and development for EJS.

In 2003, just four days before the vote on Proposition 54, we cosponsored a conference on Colorblind Racism at Stanford. There, Professor Michelle Alexander gave a moving talk on unconscious bias, that is, that all of us make snap judgments on those we encounter based on their race, age, gender and weight. This topic is also addressed in Malcolm Gladwell's latest book, Blink.

Out of those conference discussions, we developed a project with the California Teachers' Association and the National Education Association to tackle unconscious bias in the classroom. Unexamined views about students of color can lead to disastrous results. We are working closely with social scientists who are doing groundbreaking work demonstrating the existence of unconscious bias. This is hard-wired into our psyches from our earliest days on this planet. If you, Cro-Magnon man or woman, were out walking and you notice something coming towards you, you would not have the luxury to stop and think, "Hmm…. Is that Neanderthal Man or a saber tooth tiger?" We are hard wired to make snap decisions. One of the first things we notice about people we encounter is their race.

Here is an example that will make this more concrete. When Nelson Mandela was spirited out of South Africa during apartheid, he was taken to an airplane. When he boarded the plane, he noticed that the two pilots were Black. He almost got off the plane because he assumed Blacks were not qualified to fly planes. He quickly came to his senses, but his unconscious had been so trained NOT to see Blacks holding these positions that he reacted in ways that his conscious mind would have rejected.

Once the unconscious is brought to the light of day, we are able to react in less racist ways. That is the hopeful part of this work. The implications for education are enormous. We are also working with Kaiser Permanente on unconscious bias in the delivery of health care. Unconscious bias theory will also be invaluable in our assault on the intent standard mandated by Washington v Davis. I know you non-lawyers are saying "what the hell is she talking about?" I am referring to the fact that to show the Equal Protection Clause of the Constitution has been violated, one must show that the discrimination is intentional. By demonstrating that much bias operates at the level of the unconscious, litigators can revert to using statistics and proving the existence of discriminatory effects as the relevant constitutional standard. This will make proving cases much less arduous.

EJS has also assembled a wonderful communications team, Elaine Elinson, Keith Kamisugi, Rico Oyola and Shannon Seibert. We feel that educating the public about the continuing vitality of racism is an essential aspect of any effort to combating racial discrimination.

When EJS first talked of "putting race back on the table," (big thanks to our friend Bill Kennedy of Legal Services of Northern California for bringing the phrase to our collective attention) we faced an uphill struggle. The horrors we saw with our own eyes in New Orleans put the issue squarely on the public stage. Why even President Bush had to acknowledge its existence.