Keynote Remarks by Reggie Shuford at Motley Luncheon
EJS’s new Director of Law and Policy, Reggie Shuford, delivered the following remarks at our 5th Annual Judge Constance Baker Motley Civil Rights Fellowship Luncheon, held today at the Empress of China restaurant in San Francisco. Reggie’s keynote was preceded by an introduction by EJS President Eva Paterson and a presentation by third-graders from Civicorps Elementary School in Oakland, Calif., who attended the April 2010 commemoration of the April 1960 founding of the Student Nonviolent Coordinating Committee at Shaw University in Raleigh, N.C.
Following Reggie’s remarks, EJS board chair Anthony Solana, Jr., moderated a panel with Reggie, President and General Counsel of MALDEF Thomas A. Saenz, and Regional Counsel Mona Tawatao of Legal Services of Northern California. EJS board member Jim Brosnahan concluded the program.
The luncheon program at this event provided litigators and service providers with an analysis of recent developments in Equal Protection and anti-discrimination law, with particular reference to the “intent” doctrine as originally established in the U.S. Supreme Court decisions in Washington v. Davis, and McCleskey v. Kemp. Potential litigation approaches were discussed, including litigation and public education strategies utilized in the historic case of Brown v. Board of Education and more recent racial profiling cases. The speakers also shared thoughts on the legal ramifications of current social science regarding unconscious bias and discrimination create the possibility of new formulations impacting potential civil rights litigation.
EJS expresses its appreciation to our event sponsors: Barbara Caulfield; Wilson Sonsini Goodrich & Rosati; Arnold & Porter; van Loben Sels/RembeRock Foundation; National Center for Lesbian Rights; Lieff Cabraser Heimann & Bernstein; Altshuler Berzon LLP; Covington & Burling LLP; Arlene Mayerson; Morrison Foerster. And to the firms and organizations that purchased tables: Minami Tamaki LLP; Lawyers Committee for Civil Rights; Legal Services of Northern California; Remcho, Johansen, & Purcell, LLP; Colette Holt & Associates; Charles Houston Bar Association; California Faculty Association.
The Judge Constance Baker Motley Fellowship was established to invigorate the next generation of progressive legal practitioners seeking to transform anti-discrimination law and policy. Proceeds from the luncheon will go towards supporting the 2009-10 fellowship of a recent law school graduate committed to advancing racial justice through innovative legal strategies and progressive public policy.
REMARKS BY REGGIE SHUFORD AS PREPARED FOR DELIVERY
Thank you, Eva, for the very generous introduction.
And can I just say – wow! Our future is in good hands! I certainly know better than to follow kids on a program. Especially such talented kids as these. Hard to be unmoved and cynical in the presence of such unadulterated enthusiasm and excitement. It really does make you hopeful for the future. It also makes you want very much for that enthusiasm to continue, that children in America and all over the world will be able to hold on to their dreams and aspirations, and that no superficial or unnecessary obstacles will get in the way of the realization of those dreams.
SETTING THE TABLE
I am, in fact, reminded of one of my former clients, Gregory, who was a dreamer. Gregory was a little older than these students when I met him about ten years ago. Great kid. Really shy and reserved. Pretty much kept to himself. Sort of in his own head. One thing was clear, though: he idolized his father, Master Sergeant Rossano Gerald. Gregory’s parents were divorced and SGT Gerald was often deployed overseas, so father and son prized whatever time they had together. In August 1998, SGT Gerald thought it would be a great idea for Gregory, who was then 12, to spend some time with his paternal relatives, so the two of them embarked on a cross-country trip from Maryland to Oklahoma for a family reunion. Within minutes of crossing the Oklahoma border, SGT Gerald and Gregory were stopped by the police, allegedly for following another car too closely. They were warned but not cited and eventually allowed to go on their way.
Within just a few miles, SGT Gerald and Gregory were stopped again. This time by the Oklahoma Highway Patrol, allegedly for failing to signal before changing lanes. During the course of a two-and-a-half hour stop, the Oklahoma Highway Patrol dismantled SGT Gerald’s car (a red 1991 300ZX), handcuffed SGT Gerald and placed him in a patrol car with the air conditioner turned off, separated him from Gregory so that Gregory was out of his sight, placed Gregory in another, hot patrol car with a barking and salivating German Shepherd dog and questioned each of them separately, threatened that, if they tried to run away, the dog would attack them, refused to follow Army protocol and notify SGT Gerald’s commanding officer of the stop, lied and accused SGT Gerald of running drugs or money laundering and of having a “secret compartment” in his car containing drug residue, and caused over $1000 in damage. Of course, no drugs or any other contraband were found. Again, SGT Gerald and Gregory were not even ticketed and were left to clean up the mess caused by the troopers and the dog.
We sued the troopers involved and the Oklahoma Highway Patrol for having a policy and practice of racial profiling. We brought claims under the Equal Protection Clause of the 14th Amendment, Title VI, and the Fourth Amendment. We threw in the kitchen sink to prove our claims. We compiled statistics to demonstrate the disproportionate targeting of African-American motorists. We provided anecdotes from African-Americans who believed they had been wrongfully stopped or searched by the Oklahoma Highway Patrol. We had compelling testimony from experts in police practices, statistics and even canines. We included stirring testimony from SGT Gerald and Gregory about the profound impact and disruption this experience had on their lives. And we lost. To be more precise, we lost all of our racial discrimination claims on summary judgment. Our fourth amendment claim survived, and the case ultimately settled. Sure, the money came in handy, and later helped pay for Gregory to go to college, but it was an extremely unsatisfying end to an egregious case, and it haunts me to this day. Everyone – everyone – knew this case was all about race. Yet, the law provided no remedy for what happened to Gregory and his father on that hot August day.
It was cold in New York on December 31, 2001. It’s always cold in New York on New Year’s Eve. Michael Dasrath, was flying from New York to Florida to spend time with his wife and two young sons. Michael was a banker for JP Morgan Chase in New York, while his wife worked for Continental Airlines in Tampa. Edgardo Cureg, a PHD candidate in mathematics at the University of South Florida, happened to be on the same flight as Michael Dasrath. He, too, was returning home to Tampa to be with family for New Year’s Eve. While the flight awaited take-off, Ed Cureg, who is from the Philippines, spoke with his mathematics professor, an Indian man who happened to be on the same flight. Michael Dasrath, who is an American citizen originally from South America, sat in his assigned seat one row behind Ed Cureg in first class and never said a word to them, or anybody for that matter. Not one word. A female passenger walked up the aisle to first class on a few occasions and stared at the three men. She then summoned the pilot and told him that “three brown-skinned men are behaving suspiciously.” The pilot failed to ask the woman to elaborate on those behaviors, and he never questioned Michael Dasrath, Ed Cureg or Ed’s professor. Instead, he left the cabin area. Thereafter, a flight supervisor came aboard the plane and asked the three men to leave the plane. After their removal, the flight supervisor explained that the pilot said that a passenger was uncomfortable with their presence. Michael, Ed and Ed’s professor had to wait hours for a later flight, which flew to Orlando as there were no more flights to Tampa. The men were placed on the later flight without any additional security checks and right back in first class. We sued on behalf of Michael Dasrath and Ed Cureg, and our complaint against Continental Airlines raised claims under both federal and state laws against discrimination, including Title VI, which prohibits discrimination by recipients of federal financial assistance, and 42 USC section 1981, which prohibits discrimination in the making and enforcement of contracts. While we won in the early rounds, the case was ultimately tossed out on summary judgment. Again, no remedy for the racial discrimination to which these men had been subjected. The outcome of this case also continues to haunt me to this day, and I know for a fact that it has forever changed Michael Dasrath. Years later when another one of my airline profiling cases received a lot of publicity, and long after his case had been put to rest, Michael called me to ask if there was anything at all that could be done. My heart broke upon receiving that call, especially after having to respond: No.
THE PROBLEM
The problem is abundantly clear: the 14th Amendment isn’t what it used to be. The same can be said of statutes like section 1981 and Title VI, which have borrowed heavily from equal protection jurisprudence. The main culprit is Washington v. Davis, a 1976 Supreme Court case that articulated the intent standard that causes so much heartache for civil rights practitioners and victims of discrimination today.
Davis involved two African-American applicants who failed personnel tests for jobs as police officers in Washington, DC. The two applicants alleged that the test was unconstitutional because it disproportionately failed blacks, excluding them from work at the police department. Despite evidence that the government’s actions created a discriminatory impact, the Court held that the Constitution was not violated because the plaintiffs could not show that the racial inequality was not merely incidental but rather was intentional. Under this standard, it is no longer sufficient to show that a policy favors one race over another or the policy-makers knew the effects of their decision or policy would be racially biased. A law or policy will be held unconstitutional only if enacted with the specific purpose to treat people differently based on their race. As demonstrated above, the result is that countless otherwise valid claims are lost, dismissed or never even brought.
And as if Davis wasn’t bad enough, the icing on the cake came 11 years later in McCleskey v. Kemp, in which the Supreme Court rejected devastating evidence of racial disparity in the imposition of the death penalty. For example, the evidence showed that if the victim was white, the defendant was 4.3 times more likely to receive the death penalty than if the victim were black. If the victim was white AND the defendant black, it was 11 times more likely to result in a death sentence than if the victim were black and the defendant white. The Court rejected McCleskey’s claim that his death sentence was unconstitutionally imposed on the basis that the evidence did not demonstrate an intent to discriminate. Despite the overwhelming evidence of disparity, the Court found no proof that the jurors sentenced McCleskey to death with the clear intention of discriminating on the basis of his race. Warren McCleskey was executed by the State of Georgia on September 25, 1991.
Again, the problem is clear: equal protection jurisprudence has failed to keep pace with the way that discrimination is now practiced and experienced in America today. Racism today is by and large (but certainly not always) not of the explicit n-word variety, or, as one of my colleagues observed, the kind with signs in diners or above water fountains that restrict access to certain races of people. So, unlike in the past, resort to the courts provides no meaningful remedy. We know what the problem is. The more important question is how do we redefine the intent doctrine to make it more responsive to the modern-day reality of racism and discrimination. Our charge is an ambitious one, to be sure, but an essential one, as well.
STRATEGY
The strategy to overturn Plessy v. Ferguson’s separate but equal doctrine, which culminated in the landmark Brown v. Board of Education case of 1954, is instructive. The strategy, known as the “Houston Plan”, was a long-term strategy combining impact litigation, the innovative use of social science, and collaboration with well-connected, media savvy centrist, progressive and occasionally radical civil rights organizations. A long-term strategy is a good thing. For us, it means we don’t need to overturn Washington v. Davis tomorrow. Instead, we can be strategic about which cases and fact patterns to bring, i.e., those that lend themselves best to an implicit bias/structural discrimination analysis, which jurisdictions to bring them in, whether to bring them in state vs. federal courts, or before certain judges, and when exactly to bring them.
Second, the Brown strategy incorporated innovative social science. EJS’s goal is to do likewise, again by introducing the concepts of unconscious bias and structural discrimination into legal jurisprudence. We are in the very early stages of this thinking, but potential areas might be racial disparities in Medicare spending; non-criminal cases where there is no allegation of wrongdoing on the part of the plaintiff; and cases which are likely to prevail on other grounds but where judicial analysis of unconscious bias theory could create some helpful jurisprudence. Public contracting, higher education, school to prison pipeline (the imposition of disparate disciplinary measures in the education setting) might be other areas.
Finally, potential alliances with now-friendly federal agencies, like the EEOC and the Department of Education, and in the areas of health care and housing might prove fertile ground for the introduction of unconscious bias theory. Such alliances with other rights organizations and advocates (including many of you), potentially across the political spectrum, are in keeping with the Brown strategy, as well.
The good news is that we won’t necessarily have to start from scratch, in that unconscious bias theory is already being used in some areas of the law, namely Title VII. In a Business Week article from May 2006, the author says that if an employer is faced with a class action lawsuit based on gender or race, there is at least a 50% chance that plaintiffs will cite unconscious bias theory. E.g., Dukes v. Wal-Mart (class cert. granted April 2010, with two million women plaintiffs, making it the largest of its kind in American history)(Our good friend Brad Seligman of the IMPACT FUND is lead counsel and was just featured in the New York Times). Granted, T7 has a disparate impact standard, where evidence of unconscious bias might be more readily accepted.
That said, some judges appear to be willing to consider evidence of unconscious bias in equal protection cases, as well. For example, in Chin v. Runnels, 343 F.Supp.2d 891 (N.D. Cal. 2004), the petitioner sought a writ of habeas corpus on the basis that his murder conviction was unconstitutional due to a history of Chinese-Americans, Filipino-Americans, and Hispanic-Americans being excluded as grand jury forepersons, in violation of his right to equal protection. Petitioner, of Chinese-American ancestry, presented uncontroverted statistical evidence demonstrating that from 1960 to 1996, grand jury forepersons were underrepresented with respect to these three groups. In fact, there were NO Chinese-American, Filipino-American, or Hispanic-American forepersons during that 36-year period. On rebuttal, there was testimony by two court personnel involved in the jury selection process that they looked at attributes like “leadership ability,” “administrative skills,” and “people skills” in recommending a foreperson. Other testimony was that the “perfect example” of what judges were looking for, was that “[h]e was a claims examiner for [X company]. He dealt with paper constantly. He also had a totally sunny disposition, friendly . . . [a] hardy handshake sort of guy.”
Judge Breyer, of the Northern District of California, ultimately denied the writ, on the basis of the narrow and exacting standard of review. In his conclusion, however, he noted that if the standard were de novo, he would have delved further into the state court’s findings, given the absolute absence of Chinese-American, Filipino-American, or Latino forepersons for 36 years. He then went on for a number of pages, discussing unconscious bias theory – where, he observed, the folks who selected the jury forepersons probably meant well but likely were nevertheless influenced by stereotypes of Asians, in particular, as passive, unassertive, more technical-than people-oriented, and not leadership material. Judge Breyer recalled the testimony about judges looking for folks with “people skills” and the individual who was described as a “perfect example, a friendly . . . hardy handshake of a guy” and wondered whether unconscious biases and stereotypes had come into play.
In addition to the Brown strategy, another potentially useful model is international human rights law. Not only do most other major countries have a disparate impact standard, the common and growing citation to international human rights principles in American jurisprudence suggests a path we might consider traveling. Litigants are showing a greater willingness to include international human rights principles in their arguments, and courts, in particular the Supreme Court, especially of late, have shown greater receptivity to those arguments. E.g.,
Graham v. Florida – (a case decided by the Supreme Court just last month, May 17, 2010)(outlawing sentences of life without parole for juveniles for a nonhomicide crime);
Roper v. Simmons – 543 U.S. 551 (2005)(striking down the death penalty for juveniles);
Atkins v. VA – 536 U.S. 304, 316 n.21 (2002)(outlawing the death penalty for defendants with mental retardation);
Grutter v. Bollinger, 539 U.S. 306, 344 (2003)(Ginsburg, J., concurring)(upholding the University of Michigan law school’s affirmative action program); and
Lawrence v. TX, 539U.S. 558, 576-77 (2003)(holding unconstitutional TX’s law prohibiting sodomy).
As with international law, not all judges will be on board, to say the least, with respect to unconscious bias doctrine. Especially early on. But some judges, like Judge Breyer, appear ready to listen. In fact, we have heard one judge refer to implicit bias as a topic of growing interest on the bench, given its applicability to jury, employment, housing and other claims, and that state courts are “way ahead” of federal courts in terms of providing training on implicit bias to incoming and sitting judges. So, it is up to us to give them something to hang their hats on. If you are litigating a discrimination case, you should seriously consider incorporating unconscious bias theory. For those judges who are not with us, well, it is our responsibility as advocates to nudge them along. As the late, great Sister Dorothy Height said, “If the time is not ripe, we have to ripen the time.”
While he was my client, SGT Gerald told me two things that I will never forget. First, he spoke of how humiliating the experience was. A frequently decorated soldier, stoic, proud and not given to outbursts of emotion or hyperbole, he said: I have spent the majority of my adulthood trying to spread America’s ideals and principles of democracy and humanity abroad. Yet, I return home for just a brief period of time in between tours of duty, and am made to feel like a second-class citizen in my own country.
The second thing he said, recalling being separated from Gregory during the stop and unable to see what was happening to him, was that the experience made him break one of his earliest promises to his son, who he told as a baby that he would always be there to protect, no matter what. Although this incident was not his fault in any way, he felt he had let his only son down.
Our goal of redefining the intent doctrine is ambitious but it is not optional. We need to ripen the time so that the students from Civic Corps and the Gregorys of the world will always, always enjoy America’s promise of first-class citizenship. I hope you will join EJS in this fight.
National Immigration Law Center, MALDEF, ACLU, ACLU of Arizona to Mount Legal Challenge Against Arizona Racial Profiling Law
The National Immigration Law Center, MALDEF, the American Civil Liberties Union, and the ACLU of Arizona today held a news conference in front of the Arizona State Capitol Building in Phoenix to announce their future legal challenge to Governor Jan Brewer’s recently signed SB1070.
The organizations also sought to address misinformation and fears that have been spreading throughout the Latino community across Arizona.
MALDEF, ACLU, ACLU of Arizona and NILC leaders were joined by civil rights leaders Dolores Huerta, Richard Chavez and multi-Grammy winning artist and human rights advocate, Linda Ronstadt.
“Today, the three most experienced immigrants’ and civil rights legal organizations nationwide – MALDEF, ACLU and NILC – announce their partnership, together with local Arizona-based counsel, to challenge SB1070 in court,” said MALDEF President and General Counsel Thomas A. Saenz.
“The Arizona community can be assured that a vigorous and sophisticated legal challenge will be mounted, in advance of SB1070′s implementation, seeking to prevent this unconstitutional and discriminatory law from ever taking effect.”
“This law will only make the rampant racial profiling of Latinos that is already going on in Arizona much worse,” said Alessandra Soler Meetze, Executive Director of the ACLU of Arizona. “If this law were implemented, citizens would effectively have to carry ‘their papers’ at all times to avoid arrest. It is a low point in modern America when a state law requires police to demand documents from people on the street.”
Linton Joaquin, General Counsel of NILC, added, “This unconstitutional law sends a strong message to all immigrants to have no contact with any law enforcement officer. The inevitable result is not only to make immigrants more vulnerable to crime and exploitation, but also to make the entire community less safe, by aggressively discouraging witnesses and victims from reporting crimes.”
There are a number of serious constitutional problems with the law, the groups say. It violates the supremacy clause by interfering with federal immigration power and authority. The law also unlawfully invites racial profiling against Latinos and other people of color.
“What we are witnessing today is the blatant targeting of an entire American population, Latinos,” stated civil rights leader Dolores Huerta. “We must not give in one inch to Arizona’s effort to blame our community for all the ills of the state or their efforts to run us out. We have worked this land, built and maintained these buildings and sacrificed as much as any other. We must put an end to SB1070.”
“My family, of both German and Mexican heritage, has a long history in Arizona. It has been our diverse and shared history in this state that unites us and makes us stronger,” stated Linda Ronstadt. “What Governor Brewer signed into law last week is a piece of legislation that threatens the very heart of this great state. We must come together and stop SB1070 from pitting neighbor against neighbor to the detriment of us all.”
Latinos Missing from NY Times Recollection of 2009 Passings
Our friend and ally Tom Saenz, President and General Counsel of MALDEF, has brought to our attention the issue addressed in the article that follows. After seeing the new Star Trek movie, he pointed out that there are apparently no Latinos in the future. There were no Latino characters on the starship Enterprise. The following article makes that point again.
“Dead Latinos” by José R. Sánchez (January 2, 2010)
When does one dead Hollywood actor trump another? When does one fierce dead organizer against social injustices trump another? In fact, when does a dead chimp responsible for a hideous attack catapult himself above the life of a dead Mexican anthropologist with over 150 books and articles filled with archaeological and cultural studies about Mayan civilization? For The New York Times the answer seems to be whenever the second option is a Latino.
Travis the chimp was one of the few fortunate deceased to get star billing in the New York Times 2009 annual issue devoted to the passing of important people. Travis, you may remember, was the Connecticut chimpanzee, raised by a woman in Stamford, who was killed after he mauled the face off of his caretaker’s friend. This annual Times compilation included twenty-three essays on this year’s deceased. Like in past years, not one single Latino made it onto this lamentable list of the departed, famous and not-so-famous.
Many Latinos died this year, arguably many of them having led interesting and notable lives. But they apparently were not interesting enough for The New York Times. This newspaper highlighted the death of Karl Malden but not Ricardo Montalbán. The latter was the debonair path-breaking Mexican movie and television star, best known for his roles in the Star Trek series and movie and his commercials for promoting the “soft, Corinthian leather” in Chrysler Motors car seats.
The Times also wrote about the death of Crystal Lee Sutton, a fierce labor organizer in the South. But it ignored the death of Esther Chavez, a Mexican accountant who was one of the first to discover a pattern of murders in the 1990s against Mexican women working in U.S.-owned factories in border cities. Chavez helped to draw public attention and government prosecution against men who kidnapped young Mexican women off the streets, and raped and killed them with impunity. Her advocacy led the Inter-American Court of Human Rights to rule that Mexico had violated the human rights of women.
The Times also wrote about Robert Rines, an MIT scientist who spent most of his life pursuing evidence to prove the existence of the Loch Ness Monster. It ignored Dennis deLeon, a former New York City human rights commissioner, who created the premiere Latino advocacy group against AIDS. A Mexican American, deLeon created the Latino Commission on AIDS in 1994 and made it into a very effective tool against the spread of AIDS in the Latino community.
Why should we care that the Times ignored so many of Latinos in death? Some say this slight is one more example of the invisibility Latinos experience in life in the U.S. Death, apparently, does not redeem the living. Some Latinos, like Montalbán and deLeon, did get obituaries in the Times’ daily paper at the time of their death.
These annual compilations are done for many, often valid, editorial reasons. Some of the people the Times chose to celebrate led unusual lives, enough to have books or movies done about them. The Times also specifically selected each author to write these obit articles. Some were Times writers while others came from outside the paper. Who they chose to write about sprung from their individual “passions, quirks and curiosities” as writers and editors. The Times, in that sense, did not attempt to provide a comprehensive listing. All of this, however, simply underscores an even more troubling reality for Latinos. It’s one thing to be invisible, to not be seen; it is quite another to be in plain sight and yet not spark much interest or curiosity from others.
Public recognition of the dead provides a rough indication of the difference that person made in life, how much they were able to change the way others thought, behaved, or felt. Rines, the scientist who spent a large part of his life chasing the Loch Ness monster never found her, at least not conclusively. He inspired others by his quixotic efforts, however. He pushed the limits of how much we know and how much faith is warranted in the myth of her existence.
Omitting Latinos from this kind of recognition carries a message — that Latino lives do not really matter and did not have an impact. Is this a legitimate conclusion? The Times also omitted any recognition of Canadians, Jamaicans, Muslims and many others. But they did include two African Americans, Naomi Sims the model, and Reverend Ike, the irrepressible minister who built a church based on greed and hope. They also included a Trinidadian, the chili restaurant owner Ben Ali. Are these choices the product of simple editorial decisions, the play of curiosity, or pure whimsy? Are these news sources simply responding to audiences who have little interest in Latinos?
Latinos, obviously, did make a difference in this world before they passed on. We don’t need the Times to tell us so. But do we need the Times to tell others? How much do other Americans know about Latinos, the “fastest growing minority group” in the country? The Times treatment of Latino deaths is symptomatic of a wider neglect of Latinos in the media. Most mainstream newspapers and magazines also systematically ignored Latino accomplishments in their end-of-year appraisals.
The Chicago Tribune’s list of notable deaths in 2009 contained two Latinos out of 104. This included Mercedes Sosa, the Grammy Award winning Argentinean singer, and Alex Arguello, the Nicaraguan boxer. If we wanted to be generous, we could give them a third in Gidget, the Taco Bell dog featured in their commercials. The Los Angeles Times, meanwhile, listed about 120 notable deaths, only 3 of which were Latinos. This included Arguello, Montalbán and Ismael Valenzuela, the Mexican horse jockey. One last example is the Baltimore Sun. It listed only Montalbán, Rafael Antonio Caldera, the two-time Venezuelan president, as well as the baseball manager Preston Gomez, among the 134 notable deaths in 2009.
The wide reach of this neglect is probably driven by the current media structure. Most newspapers in the U.S. are part of a handful of media monopolies that share the same sources of information or rely on syndicated sources like the Associated Press. In this vein, the AP listed only Montalbán among the 91 notable deaths it chose to feature in 2009. Five or six media conglomerates control the majority of newspapers in the United States. Editorial decisions, thus, tend to accumulate and spread with this kind of centralization. Most of the end-of-year reviews of the deceased were simply replicated by each newspaper in the chain. Recent research confirms this disturbing reality.
The Project for Excellence in Journalism and the Pew Hispanic Center reported recently that in one six-month sample period only “2.9% of the news content studied contained substantial references to Hispanics.” Most of that coverage was focused on the nomination of Sonia Sotomayor to the Supreme Court. Otherwise, the media attention focused on Latinos only in the context of discussing issues like immigration and the recession. Clearly, a population that is now almost 16 percent of the population deserves more widespread and direct media attention focused on Latino lives and accomplishments.
The complaint here is not just about recognition and publicity. It is, to a great extent, also about power. Nothing happens simply because any one group or person has taken action. The world does not function so linearly. The success of health care reform or the results of the 2008 elections have many contributors. A group that is either not seen or that draws little interest will find its contributions minimized or dismissed. But this is about power in an even more important way.
I believe that any success at influencing or changing how others think, behave or feel depends directly on our ability to offer something that others value. Those who attribute power to objects like money or weapons can’t easily explain why these things sometimes fail to deliver power. The rich don’t always get what they want and, historically, much poorer-equipped opponents have often defeated the largest and best-equipped armies. Vietnam for the U.S. and Afghanistan for the U.S.S.R. are the best examples of the latter. The “War against Terrorism” may, eventually, prove to be another.
Power is a transaction, an exchange between parties in which each side has input. This is true no matter the situation. A mugger can get me to turn over my valuables only because my health and life mean so much more to me than my watch and money. The key here is that the threat of assault gets victims to move only because I, like the vast majority of us, fear getting hurt or killed. When that is not the case, when I am reckless or suicidal, for instance, the mugger’s threat often falls flat. The mugger’s attempt to extract valuables from me then gets stalled, jeopardized, and, possibly, defeated. I may get killed but the mugger will have failed to influence my behavior.
I cannot teach my students or change the way they think unless they want knowledge or grades or something else from me. I cannot influence how an elected official decides policy issues unless I can provide the votes, money or information they need. The ability to influence becomes extremely difficult, however, if the others around me do not see me or have no interest in me when they do. The exclusion of Latinos from the list of notable deaths reflects a community whose life remains lived apart from the main cultural, economic, and political currents of this society.
Latinos lag behind other groups in voting rates, average age, high school graduation, college attendance, employment rates, corporate and professional employment, income, housing conditions, two parent families, and residential integration. These conditions not only produce deprivations and obstacles to individual mobility. They also produce a community that still lives, despite all the progress, largely apart from the rest of society. This life apart results in very limited opportunities for Latinos to develop power with and influence other sectors U.S. society.
The neglect of Latinos in death is, thus, a reflection not just of how much Latinos are neglected in life but also of how few opportunities they have for power while alive. The Times is, thus, justified to omit any Latinos from its annual “How They Lived” magazine compilation. After all, it would be hypocritical to pay attention in death to a group that they and society have mostly ignored, overlooked, dismissed, and brushed off in life.
José Ramon Sánchez is Associate Professor of Politics and Chair of Urban Studies at Long Island University – Brooklyn; he is also Chair of the Board of the National Institute for Latino Policy, Inc. He is the author of “Boricua Power: A Political History of Puerto Ricans in the U.S.” (2007) and co-author of “The Iraq Papers” (2010). He can be reached at jose.sanchez@liu.edu.
EJS Co-Presents Unconscious Bias Panel at Writers Guild in LA, Introduction by Norman Lear
The Equal Justice Society will co-present in late-September a thought-provoking discussion on unconscious bias offering insights that will challenge and inspire new ideas in developing and producing programming that reflects the true diversity of our rapidly changing society.
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.
Thomas A. Saenz, Counsel to Los Angeles Mayor, Named MALDEF President and General Counsel
The Mexican American Legal Defense and Educational Fund (MALDEF) today announced Thomas A. Saenz, Counsel to Los Angeles Mayor Antonio Villaraigosa, as its new President and General Counsel. Saenz will join MALDEF in mid-August.
(Tom has been an extraordinary ally and supporter of EJS for many years. We congratulate him and wish him much success in returning to MALDEF.)
Since August 2005, Saenz has served as Counsel to Mayor Villaraigosa and as a member of the Mayor’s four-person Executive team. Saenz has helped to lead the Mayor’s legislative effort to change the governance of Los Angeles Unified School District (LAUSD) in order to secure a quality education for all students in Los Angeles and has recently served as the Mayor’s lead liaison on labor negotiations as the City strives in partnership with workers to address its serious financial situation.
“We could not ask for a better civil rights leader than Thomas Saenz to take the helm of MALDEF at this critical time,” said Patricia A. Madrid, Chairman of the MALDEF Board of Directors and former New Mexico Attorney General. “The Latino community is currently facing a drastic rise in hate crimes and witnessing an explosive rebirth of extremist anti-immigrant rhetoric and measures that adversely affect all Latinos. A highly respected attorney and community leader, Thomas brings a wealth of legal expertise and dedication to civil rights causes that fundamentally define the future of Latinos. We are looking forward to a great future under his leadership as we work together to advance the mission of MALDEF,” Madrid added.
“Tom Saenz has been a trusted advisor who understands the importance of public service and working on behalf of those in need,” said Los Angeles Mayor Antonio Villaraigosa. “His zealous leadership, legal prowess and counsel have helped diversify our body of City commissioners, provide living wages for our City’s workers, and demand a quality education for every child in Los Angeles. I thank Tom for his devoted service to the City of Los Angeles and wish him all the best in his new endeavor. MALDEF is not only inheriting a brilliant legal mind, but also a passionate and committed champion of civil rights.”
Saenz had previously served as MALDEF’s lead counsel for 12 years. During that time he successfully challenged California’s unconstitutional Proposition 187 and led numerous civil rights cases in the areas of immigrants’ rights, education, employment, and voting rights. Saenz achieved several victories against ordinances unlawfully restricting the rights of day laborers, served as lead counsel in the 2001 challenge to California’s congressional redistricting, and initiated the employment discrimination lawsuit resulting in a $50 million settlement with Abercrombie and Fitch. Saenz was also the lead drafter of the Amicus brief on behalf of Latino organizations supporting affirmative action in the Supreme Court case, Grutter v. Bollinger.
Saenz said he is looking forward to the new challenges and opportunities. “Throughout its 40-year history, MALDEF has been a national leader on all legal and policy issues affecting the Latino community. I look forward to leading a very strong MALDEF staff in successfully addressing the next set of challenges facing what is now the largest minority group in this country, a group whose progress is essential to our nation’s success,” Saenz stated.
Prior to joining MALDEF early in his legal career, Saenz clerked at both the federal district court and the U.S. Court of Appeals for the Ninth Circuit after graduating summa cum laude from Yale University and receiving his Juris Doctor from Yale Law School.
“Tom Saenz is an outstanding choice, he represents an extensive and celebrated record as a champion for civil rights and social justice. Throughout his career as Chief Counsel to Mayor Villaraigosa and as legal counsel for MALDEF, Saenz has proven to be a cornerstone for legal activism in our country,” stated Wade Henderson, President and CEO, Leadership Conference on Civil Rights (LCCR). “I can think of no better leader to take on the challenge of continuing the Mexican American Legal Defense and Educational Fund’s nationwide movement for equality and justice.”
“MALDEF’s work is now more important than ever before. Tom has spent his professional life serving as a champion for civil rights and social justice. His legal career has been devoted to protecting the people’s civil and constitutional rights. His lawsuits overturned local ordinances banning day laborers from seeking employment and he will lead the fight to ensure that the promises of justice and equality are a reality for all Americans,” stated Dolores Huerta, Co-founder of United Farm Workers of America and President of the Dolores Huerta Foundation.
Saenz has an extensive and celebrated background.
At the beginning of August 2005, Thomas A. Saenz became Counsel to the Mayor of the City of Los Angeles, where he serves as a member of Mayor Antonio Villaraigosa’s executive team and provides legal and policy advice to the mayor. Previously, Saenz practiced civil rights litigation at the Mexican American Legal Defense and Educational Fund (MALDEF), a national organization dedicated to securing and promoting the civil rights of Latinos in the United States, where he served as Vice President of Litigation. As Vice President, Saenz oversaw MALDEF’s efforts nationwide to pursue civil rights litigation in the areas of education, employment, political access, immigrants’ rights, and public resource equity.
Saenz was born and raised in southern California. He graduated summa cum laude from Yale University, and he received his law degree from Yale Law School. Saenz then served as a law clerk to the Honorable Harry L. Hupp of the U.S. District Court for the Central District of California, and to the Honorable Stephen Reinhardt of the U.S. Court of Appeals for the Ninth Circuit.
Saenz joined MALDEF as a staff attorney in 1993; he became Los Angeles Regional Counsel in 1996, National Senior Counsel in 2000, and Vice President of Litigation in 2001. At MALDEF, Saenz served as lead counsel in numerous civil rights cases, involving such issues as educational equity, employment discrimination, immigrants’ rights, day laborer rights, and voting rights. For example, he served as MALDEF’s lead counsel in successfully challenging California’s Proposition 187 in court; as such, he presented extensive written and oral arguments on numerous occasions in three different cases involving the anti-immigrant initiative. He was also MALDEF’s lead counsel in two court challenges to Proposition 227, the English-only education initiative that voters enacted in 1998, and he successfully challenged several ordinances barring day laborers from soliciting employment. Saenz also served as MALDEF’s lead counsel in challenging California’s congressional redistricting in 2001.
For eight years, Saenz taught “Civil Rights Litigation” in the spring semester as an adjunct lecturer at the U.S.C. Law School. Saenz currently serves on the Los Angeles County Board of Education, and he previously served on the Los Angeles County Commission on Human Relations.
Why Did the Obama Administration Renege on Its Offer to Tom Saenz?
All of us at EJS were ecstatic when we learned earlier this year that Tom Saenz was under consideration for Assistant Attorney General, Civil Rights Division, Department of Justice.
Tom would have brought to that position an extensive and celebrated background as a champion for civil rights, social justice and progressive values.
We were surprised to learn on Friday that President Obama appointed Maryland labor secretary Tom Perez to the post. The announcement was followed by reports that the administration offered the job to Tom Saenz and rescinded it because of “political considerations.”
At the same time that we congratulate Mr. Perez’s appointment to the position, we’re also mystified and incredibly disappointed by the administration’s seemingly unjustified change of heart about Tom Saenz.
Some say that the decision was based on the possibility that Tom’s progressive views on immigration would have fueled a nominations battle with Senate Republicans.
We hope there was a better reason.
As regional counsel for the Mexican American Legal Defense and Educational Fund, Tom served as lead counsel in civil rights cases involving such issues as educational equity, employment discrimination, immigrants’ rights, day laborer rights and voting rights.
He served as MALDEF’s lead counsel in successfully challenging California’s Proposition 187 in court, presenting extensive arguments on numerous occasions in three different cases involving the anti-immigrant initiative.
Tom clerked at both the federal district court and the U.S. Court of Appeals for the Ninth Circuit after graduating summa cum laude from Yale University and receiving his law degree from Yale Law School.
His qualifications for the Assistant Attorney General position were never in question.
Please contact the White House and ask for an explanation of why the administration reneged on Tom Saenz’s appointment. President Obama has asked us to hold him accountable. We should do so now.
http://www.whitehouse.gov/contact/
NCLR Expresses Profound Disappointment with Saenz Decision
Janet Murguía, President and CEO of the National Council of La Raza (NCLR), the largest national Hispanic civil rights and advocacy organization in the United States, today expressed profound disappointment today that distinguished civil rights attorney Thomas Saenz is no longer a candidate to head the Civil Rights Division of the U.S. Department of Justice.
(Also see EJS’s statement here.)
“Thomas Saenz was a great choice to oversee a department tasked with enforcing federal statutes to prohibit discrimination on the basis of race, sex, disability, religion, and national origin. He follows the law meticulously and is one of the best litigators our country has. He has dedicated his entire career to the fight for justice, equal opportunity, and dignity for those who have no voice,” said Murguía.