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

By Lee Cokorinos

Even Fox News reporters bellowed with rage at the injustice of it all, interrupting Sean Hannity’s thieves-and-looters tirades. Newsweek blared on its cover “Poverty, Race and Katrina: Lessons of a National Shame.”  For a few weeks after Hurricane Katrina, it appeared as if the spectacle of poor African Americans bearing the brunt of disaster in New Orleans without any help from a Federal government whose disaster response capacity had been “drowned in the bathtub” by Grover Norquist’s allies, was going to put the issues of poverty and race on the front burner.

It didn’t last long.  After a few early stumbles when President Bush veered from the standard right wing story line by connecting racial discrimination and poverty, and even raised the issue of historical discrimination (legally taboo as a matter of government concern since the Bakke decision), his handlers got him under control and called in the Heritage Foundation and American Enterprise Institute for help. Edwin Meese and two of his sidekicks at Heritage produced an instant manifesto declaring it was all too expensive to rebuild the lives of poor and black people in New Orleans, and instead recommended turning the Gulf area into a free fire zone for private contractors and a laboratory for madcap tax cutting and deregulation.

Every item on the domestic policy wish list of the right wing, from private school vouchers to pumping millions of tax dollars into the coffers of evangelical churches for disaster relief and recovery, was now touted as an emergency priority. Losing no time, the Bush administration also acted swiftly to put a legal response together—and came up with eliminating requirements that contractors pay prevailing wages to their workers and practice affirmative action.

Then the hard core shock troops of the right wing think tanks counterattacked. In the midst of the debate about why people weren’t provided adequate warning or means of evacuation, Linda Chavez of the Center for Equal Opportunity, which has waged war against the gains of the civil rights movement for twenty years, was quoted in the Washington Post as describing the victims of the hurricane as “people who don’t have jobs, are not used to getting up and organizing themselves and getting things done and for whom sitting and waiting is a way of life.”

William Bennett  introduced race into the volatile post-Katrina atmosphere when the remark “you could abort every black baby in this country, and your crime rate would go down” somehow randomly bubbled up out of his “colorblind” psyche. “But of course,” Bennett went on to say, doing so would be “morally reprehensible.” Even the White House distanced itself from his  comment.

Linda Chavez once said of her appointment to the US Civil Rights Commission during the Reagan administration that “if there’s any single person responsible for my being in the administration it’s Bill Bennett.”  Chavez’ buddy at CEO, Roger Clegg, cheered on the Bush administration’s suspension of affirmative action rules in one of his regular postings on the National Review website. National Review’s national political reporter, John Miller, is a former vice president of the Center for Equal Opportunity, and its president, Thomas Rhodes, sits on the board of Ward Connerly’s American Civil Rights Institute.

Longtime Federalist Society supporter William Pryor, now a sitting judge on the United States Court of Appeals for the Eleventh Circuit, wrote in on October 6 to congratulate National Review on its 50^th anniversary, expressing his “joy of visiting National Review Online every single day.” As Alabama Attorney General, Pryor (who founded the Federalist Society chapter at Tulane Law School in New Orleans) successfully argued against the use of a disparate impact standard of discrimination under Title VI of the 1964 Civil Rights Act in the landmark Alexander v. Sandoval case. He has called into question all lawsuits brought in response to the discriminatory effect of a law with the excuse that “every law has a disparate impact on someone.” Bennett also wrote in to pay tribute to National Review for “providing intellectual moorings to our movement.”

A day after Bennett’s remarks on his radio talk show, the American Enterprise Institute’s W.H. Brady Scholar Charles Murray, co-author of the notorious The Bell Curve linking race and intelligence, weighed in with a Wall Street Journal op-ed linking poverty, race and crime, blaming growing poverty on “looters and thugs” and “inert women doing nothing to help themselves or their children.” Making it up as he went along, Murray wrote that “people who get into the American job market and stay there seldom remain poor unless they do something self destructive.” According to the U.S. Census Bureau, there are currently nearly 3 million full-time workers who live below the poverty line, 11.5% of the total workforce.

Counter-Reconstruction

Although Hurricane Katrina provided an opening for the right to make progress on its longstanding dream of reversing the legal gains of the civil rights movement, some of its key players have been laying the organizational groundwork for a long time. Indeed the politics of race has played a central role in the rise of the right wing infrastructure. As attorney general under Ronald Reagan, Meese fought to have affirmative action programs overturned alongside his assistant attorney general, William Bradford Reynolds, with whom Meese now sits on the Federalist Society’s Board of Visitors. Reynolds was ably assisted by Charles Cooper, who went on to form the Center for Individual Rights (which sued to challenge the University of Michigan’s affirmative action admissions policies), and by John Roberts, the new Supreme Court Chief Justice.

The atmosphere within the Reagan Justice Department is illustrated in many of the documents released to the public during the Roberts confirmation hearings, only a small portion of which have been covered in the media. In one memo, special assistant F. Henry Habicht (a Kirkland and Ellis lawyer who was on the DOJ transition team for Reagan) urges his staff lawyers to attend an American Enterprise Institute conference on setting the right wing legal agenda (Bruce Fein, who helped lead the right wing charge that sunk the Harriet Miers nomination, ran AEI's legal program in the 1980s). In another, Meese counselor Kenneth Starr sends Reynolds “an excellent piece on the voting rights act which appears in the current issue of The American Spectator” written by Terry Eastland, then editor of the Norfolk Virginian-Pilot, who went on to become the DOJ spokesperson. Eastland is now the publisher of Rupert Murdoch’s Weekly Standard.

Roberts wrote 25 separate memos in 1982 arguing that Section 2 of the Voting Rights Act should not be amended to cover the discriminatory effects of state and local official actions (the subject of Eastland’s piece). At the time, Congress had been attempting to pass a legislative fix for the notorious City of Mobile v. Bolden decision (446 U.S. 55, 1980) that invalidated the effects test for voter discrimination developed by lower courts, instead substituting the wooly and difficult to prove “intent test”—i.e., that one had to prove that officials intentionally discriminated against potential voters. The intent doctrine has become a major means for gutting enforcement of antidiscrimination laws and regulations.

In a sense, Bill Bennett’s remark itself indicates how difficult it is to apply the intent standard as it is currently understood—i.e., as requiring blatant evidence of discriminatory intent or animus. What did Bennett really intend by his comments, couched though they were in the language of pseudo-sociology? Did they represent something more disturbing? Can anyone really be certain, much less prove such a thing in a court of law? Even conservative commentator Richard Davis called Bennett’s remark a “classic Freudian slip, the expression of the unconscious” showing that we need to have a more honest and open discussion about race in America. [See articles this issue on the Unconscious Bias Project and Race and the Intent Doctrine.]

This will be especially difficult, however, because the right’s longstanding crusade against more effective antidiscrimination laws is now being carried forth from within the very institutions of government set up to enforce civil rights. The U.S. Civil Rights Commission has been turned over by the Bush administration to the battle hardened opponents of the legal enforcement of diversity remedies, such as Gerald A. Reynolds, chair of the commission and former legal analyst at Chavez’s CEO; Peter Kirsanow, former head of the right wing Center for New Black Leadership; Abigail Thernstrom, CEO board member and author of the key text of the antidiversity movement, America in Black and White (Roger Clegg assisted with the manuscript); and Jennifer Braceras, a visiting fellow at the antifeminist Independent Women’s Forum, where she serves with Linda Chavez on its national advisory board. Braceras and Kirsanow testified in support of John Roberts at his confirmation hearings.

Getting Race and Poverty Back on the Agenda

The mainstream media, recovering from its temporary outburst of real news coverage, has also now taken to running "correcting the record"-type stories that downplay what everyone saw with their own eyes about the security problems at the New Orleans Superdome and Convention Center. The New York Times has published a formal obituary of Establishment concern about race and poverty-an October 11 story titled "Liberal Hopes Ebb in Post-Storm Poverty Debate." National consensus on the need to do something has become "liberal hopes."

True, there have been some glitches in the right's efforts to rebury race as a front-page issue. Video surfaced of white New Orleans police officers beating retired 64-year-old African-American schoolteacher Robert Davis and screaming at and assaulting a reporter filming the incident. But after a few short weeks the right is attempting to put the discussion of race and poverty on the back burner.

Progressives need to use every opportunity, and create more, to ensure that these issues remain in the brightest possible national spotlight. A wider discussion of how the courts presently adjudicate discrimination claims also needs to be forced onto the national agenda. This is especially important with Roberts now heading the Supreme Court and a major battle looming over the nomination of Samuel Alito, who served in the Meese Justice Department's Office of Legal Counsel. With its proactive work challenging the intent doctrine and keeping racial justice issues at the forefront of legal debate, the Equal Justice Society is confronting the efforts of the right to turn back the clock on civil rights.