Deterrence and Democracy: Election Law After Preclearance

By Asma Husain
Associate Editor, Vol. 22

In 2013, Chief Justice Roberts delivered the Court’s opinion in Shelby County v. Holder, which struck down key provisions of the Voting Rights Act. Considered the crown jewel of the Civil Rights Movement, the Voting Rights Act had, until that decision, required covered jurisdictions to preclear changes to their election laws through either the Department of Justice or the District Court for the District of Columbia. The Court’s decision in Shelby County held that the preclearance formula was unconstitutional, and preclearance itself became a moot point. Almost immediately thereafter, several states implemented new election laws. Without the deterrent effect of Section 5 of the Voting Rights Act, 860 polling places in previously covered jurisdictions were closed within three years and new voter ID requirements proliferated. These changes, which would have had to be pre-approved under the VRA’s preclearance regime, could now be implemented without impediment. Although no reliable data yet exists comparing voter turnout and ballot accessibility in pre- and post-Shelby County presidential elections, what is clear is the message that striking down portions of the VRA sent.

What the majority and dissenters of the Shelby County court could not agree on was one central issue: was the Voting Rights Act still necessary in 2013 and beyond? Chief Justice Roberts stood firmly against the idea, stating that the coverage formula kept “the focus on decades-old data relevant to decades-old problems, rather than current data reflecting current needs.” Justice Ginsburg, in dissent, argued for the continued relevance of the preclearance formula. She boldly stated: “Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”

The opposing sides of the Court came at the question of Shelby County from two inconsistent viewpoints. The preclearance formula, which covered jurisdictions that had a documented history of race-based voting discrimination, scrutinized changes to those jurisdictions’ voting laws under the assumption that there was a danger of further discrimination going forward. The majority truncated the context of the issue to the present, and stated that because the VRA had effectively corrected for the egregious race-based disenfranchisement of the Jim Crow South, it had served its purpose. The dissent, on the other hand, took a long view of history and saw the preclearance formula as a deterrent against future efforts to suppress or dilute minority voting strength, providing a check on future discriminatory laws before they could go into practice. Ultimately, Chief Justice Roberts’ viewpoint prevailed, and the formula was declared unconstitutional. The message sent to the states and to voters was that jurisdictions that had historically engaged in race-based voter suppression no longer needed to be kept under the watchful eye of the federal government. That portion of the Voting Rights Act was no longer necessary.

However, just seven years earlier, the Senate had reaffirmed its belief that the Voting Rights Act was necessary. In 2006, by a vote of 98 to 0, the Senate reauthorized the Voting Rights Act in its entirety for a further twenty-five years. In fact, Congress had continually reauthorized the Voting Rights Act since its initial passage in 1965, renewing its provisions in 1970, 1975, and 1982. Although the Shelby County majority declared that the preclearance regime was no longer necessary, Congress, at least up until 2006, had vehemently disagreed.

Laws function to control behavior in a variety of ways, the least of which is not through their expressive function. By “making statements,” laws can shape what is deemed acceptable by society at large. The preclearance regime of the Voting Rights Act acted in a such a way, standing for the proposition that voting is a fundamental right, and denying it to others on the basis of race is simply unacceptable.

The loss of that simple declaration was felt almost immediately. Within a year of the Shelby County decision, “most of the feared consequences [had] come to pass – including attempts to: revive voting changes that were blocked as discriminatory, move forward with voting changes previously deterred, and implement new discriminatory voting restrictions.” Many states enacted more restrictive voting laws after 2013, including most jurisdictions that had previously been covered by the preclearance regime.

Would these new laws have been enacted had the preclearance regime remained in place? Perhaps. Some might well have survived federal scrutiny, although other changes may not have passed through state legislatures while preclearance stood as an obstacle. Certainly, the number of proposed election laws proliferated in the years after Shelby County. And while some of those changes have served to make voting more efficient, others have specifically targeted impoverished and minority voters.

When the Supreme Court looked at the preclearance regime and questioned its continued relevance, the majority asked whether the preclearance regime was actually serving to block discriminatory voting laws. They questioned the preclearance formula’s focus on historically discriminatory jurisdictions, and found that that section of the VRA had become disconnected from its historical raison d’être. But the action the preclearance regime was meant to stall returned in force immediately after it was struck down. The problem, which had begun to seem like a historical relic, is now revived. Shelby County, rather than declaring the decisive end of discriminatory election law, has given such discrimination new life.

In his 1975 testimony before Congress,  Modest Rodriquez said, “Democracy does not come easily and we are asking for your help in this matter.” Rodriguez sought to impress upon Congress the need for expanding the Voting Rights Act, and he was ultimately successful. But his cause was one of many steps, additions and amendments and ratifications that bolstered the VRA through its history. Although the Act still stands, its central deterrent effect no longer does, and once again democracy proves that it does not come easily.

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Betsy DeVos, School Choice, and the Resegregation of American Public Schools

By Laura Page
Associate Editor, Vol. 22

The Senate confirmation hearing of Betsy DeVos, the President’s nominee for Secretary of Education, was one of the most contentious and heated in recent history.[1]  Critics contend that the billionaire Republican donor has no experience in public education—neither she nor her children attended public schools or borrowed a federal student loan, and she has no experience in education management.[2]  Proponents respond that her lack of experience and position as an outsider of the education establishment are precisely why she will be an effective Secretary of Education.[3]

Despite her lack of formal experience, DeVos has been an outspoken advocate of “school choice,” a controversial federal program providing private school vouchers and charter school access to parents whose children attend low-performing schools.[4]  DeVos said that if confirmed, she will be a “strong advocate for great public schools.”[5]  But when public schools are “troubled, or unsafe, or not a good fit for a child,” she said, parents should have a “right to enroll their child in a high-quality alternative.”[6]

School choice has been heralded as a defense of parents’ rights to define their children’s education, but critics of the policy raise significant fears around educational inequity—specifically, that allowing parents the opportunity to “shop” for schools will lead to increased class and racial segregation in public schools.[7]  The fear that such freedom-of-choice plans facilitate racial segregation is not new, however. [8]  Since the landmark decision in Brown v. Board [9] mandating the integration of public schools, the American education system has struggled to make the ideal of educational equity a reality, considering options like school choice and other reforms as possible solutions to school segregation.[10]  As recently as 2016, the Government Accountability Office issued a report highlighting the increasing segregation in public schools.  The report noted that:

The proportion of schools segregated by race and class—where more than 75 percent of children receive free or reduced-price lunch and more than 75 percent are black or Hispanic—climbed from 9 percent to 16 percent of schools between 2001 and 2014. The number of the most intensively segregated schools—with more than 90 percent of low-income students and students of color—more than doubled over that period.[11]

Though it is not the only factor at play, critics worry that expanded parent choice and the availability of private school vouchers will lead to further class stratification and increased racial segregation.[12]

The governance structure of such freedom-of-choice plans is partly to blame, as higher discretion afforded to both parents and schools leads to unequal outcomes in the admissions process.[13]  School choice relies on the market system of educational management, in which parents choose the schools which appeal to their tastes, and schools select which students will attend.[14]  “Research shows that free-market school choice, without diversity as a stated goal of a program, tends to exacerbate segregation and inequality in schools,” notes Halley Potter, a former charter school teacher and co-author of A Smarter Charter: Finding What Works for Charter Schools and Public Education.[15] “The expansion of vouchers is particularly worrisome because of many private schools’ ability to pick and choose students based on academics, behavior, or even religion or sexuality.”[16] The influence of this wide discretion is striking.  As the UCLA Civil Rights Project reported in 2010:

While segregation for blacks among all public schools has been increasing for nearly two decades, black students in charter schools are far more likely than their traditional public school counterparts to be educated in intensely segregated settings.  At the national level, seventy percent of black charter school students attend intensely segregated minority charter schools (which enroll 90-100% of students from under-represented minority backgrounds), or twice as many as the share of intensely segregated black students in traditional public schools. Some charter schools enrolled populations where 99% of the students were from under-represented minority backgrounds. Forty-three percent of black charter school students attended these extremely segregated minority schools, a percentage which was, by far, the highest of any other racial group, and nearly three times as high as black students in traditional public schools.[17]

It is this free-market structure allowing wide discretion for both schools and parents that critics worry will increase racial and class stratification; while school choice may improve the quality of education in some individual schools, it does so at the expense of educational equity for all students.

In addition to the possibility of discrimination in parent and school discretion, critics posit that the free-market system may not be as “free” as it appears.  Eve Ewing, a sociologist of race and education at the University of Chicago School of Social Service Administration, articulates the criticism in terms of equity: “The notion of [school] ‘choice’ suggests that all options are on the table for all parents, but when resources like transportation, childcare, and information access are unequally distributed, the choices on the table are in fact very constrained.”[18]  Thus, while school choice allows some parents the ability to “shop” for the school that best fits their child’s needs, the parent who lacks the time and resources to seek out such information—and in turn, her child—is not afforded an equal opportunity to evaluate educational options and select the best school for her child.

Whether DeVos will prioritize an expansion of school choice policies as Secretary of Education remains to be seen.  If confirmed, she will have substantial power to shape the focus of the Department of Education, and if her confirmation hearing is any indication, America’s public classrooms may look much less diverse in the coming years.


[1] Education Secretary Confirmation Hearing, C-Span, (Jan. 17, 2017), https://www.c-span.org/video/?421224-1/education-secretary-nominee-betsy-devos-testifies-confirmation-hearing.

[2] Warren Challenges DeVos on Personal Experience, CNN Politics (Jan. 20, 2017), http://www.cnn.com/videos/politics/2017/01/18/betsy-devos-elizabeth-warren-confirmation-hearing-sot.cnn.

[3] Cory Turner, At DeVos’ Senate Hearing, Questions of Choice, Charters, Other Options,’ NPR (Jan. 17, 2017, 4:53 PM), http://www.npr.org/sections/ed/2017/01/17/510274817/watch-live-betsy-devos-secretary-of-education-confirmation-hearing.

[4] Nat’l Conference of State Legislatures, School Vouchers, http://www.ncsl.org/research/education/school-choice-vouchers.aspx.

[5] Emma Brown, Moriah Balingit & Ed O’Keefe, Betsy DeVos, Trump’s Education Pick, Lauded as Bold Reformer, Called Unfit for Job, Wash. Post, (Jan. 17, 2017), https://www.washingtonpost.com/local/education/senators-to-scrutinize-betsy-devos-trumps-pick-for-education-secretary/2017/01/17/3a0e6168-da8f-11e6-9a36-1d296534b31e_story.html.

[6] Id.

[7] UCLA, The Civil Rights Project (2010), Choice Without Equity: Charter School Segregation and the Need for Civil Rights Standards, https://www.civilrightsproject.ucla.edu/research/k-12-education/integration-and-diversity/choice-without-equity-2009-report.

[8] See generally Green v. Cty. Sch. Bd., 391 U.S. 430 (1968) (freedom-of-choice desegregation plans unconstitutionally preserve segregated conditions).

[9] Brown v. Bd. Of Educ. of Topeka, 347 U.S. 483 (1954).

[10] Emma Brown, On the Anniversary of Brown v. Board, New Evidence that U.S. Schools are Resegregating, Wash. Post (May 17, 2016), https://www.washingtonpost.com/news/education/wp/2016/05/17/on-the-anniversary-of-brown-v-board-new-evidence-that-u-s-schools-are-resegregating/?utm_term=.84c0b2fb8e6a.

[11] Id.

[12] James S. Liebman, Voice, Not Choice, 101 Yale L.J. 259, 280 (1991-1992) (reviewing John E. Chubb & Terry M. Moe, Politics, Markets, and America’s Schools (1990)).

[13] Id.

[14] Id. at 284.

[15] George Joseph, What Betsy DeVos Didn’t Say About School Choice, The Atlantic: Citylab, (Jan. 19, 2017), http://www.citylab.com/politics/2017/01/what-betsy-devos-didnt-say-about-school-choice/513269/.

[16] Id.

[17] UCLA, The Civil Rights Project, supra note 7.

[18] Joseph, supra note 15.

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Reflecting on Race Relations: Thanks Obama

By Marcus Baldori
Associate Editor, Vol. 22

In 2008, it was an open question of how race relations would unfold under America’s first Black president. Eight years later, polling shows that 54% of Americans think race relations between Whites and Blacks have gotten worse; it is hard to recall the sense of optimism of when Obama stepped into office. In part due to his status as an African American, and in part due to the economic and social events that have created mounting racial tensions during his presidency, it is intuitive that the subject of race relations will be one of the most talked about when it comes to Obama’s legacy.  It seems that the media as well as the public have been quick to identify the Obama years as either unproductive or harmful to race relations.

Polls conducted in 2016 show a significant downward trend in perception of race relations from polls taken in 2009. The New York Times/ CBS News Poll and The Washington Post-ABC News Poll reached similar results; when people were asked what they thought of race relations between Whites and Blacks generally, six out of ten Americans said relations were bad. This reflected a shift from over 60% thinking race relations were generally good in 2008 to below 35% in 2016. Affirming the sentiment implied by this data, a recent CNN poll (asking “do you think race relations between blacks and whites in the U.S. have gotten better, gotten worse, or stayed the same since Obama became president”) shows that 54% of Americans think that race relations have gotten worse since Obama became president. The Pew Research Center poll directed its study at whether people thought Obama directly made race relations worse, and indicates that more than half of adults think that Obama either had no impact on race relations or made them worse. This sentiment is a classic correlation versus causation misunderstanding.

Unsurprisingly, these polls have been used by journalists and researchers to understand Obama’s impact on race relations. More often, they have been used by (mostly) conservative advocates as key evidence that Obama, himself, caused this perceived decline in race relations. A quick sampling of article titles include ‘Why Race Relations Have Gotten Worse Under Barack Obama,’ ‘60% Say Race Relations Have Gotten Worse Since Obama’s Election,’ and ‘Racial relations reach all-time low under Obama: poll.’

Attack articles argue that Obama has unnecessarily enflamed race relations by prematurely highlighting and characterizing police conduct as discriminatory in situations where ultimately the police were not prosecuted (Michael Brown; Trayvon Martin). In other words, the argument is that he incorrectly victimizes Blacks, and doesn’t address the greater problem of Black on Black violence.

The exact opposite argument has been used by Democrats who have faulted Obama for not siding more with Black activist groups—there was an initial backlash because he didn’t use the words “police brutality” when talking about Ferguson. When it comes to deeply divisive scenarios, any statement would enflame one side or the other, and it seems like Obama’s best option has been to appear relatively neutral. In regard to Ferguson, Obama’s statement that “there’s a big chunk of our fellow citizenry that feels as if because of the color of their skin, they are not being treated the same” is undeniably true, and doesn’t undermine the concerns of Black voters.

Not only would Obama limit divisiveness surrounding hot-button racial events through restrained language, but he would later respond with backing narrowly tailored laws and programs to prevent similar events. The ‘Blue Alert’ law requires instant nationwide system for notifying police of threats (in response to the racially motivated 2015 shooting of two New York police officers). $23.2 million in grants were awarded for law enforcement agencies to purchase police body-worn cameras (in response to Michael Brown’s death in 2014).

On hot-button racial events, Obama had a limited ability to pacify one side without upsetting the other, and these events appeared with increasing frequency. A contributing factor is undoubtedly the increasing nation-wide exposure to racially charged situations through advancements in technology and social media. It seems possible that newly elevated race-related tension is the result of an abundance of new information and communication methods available to the public. Optimistically, this new information will lead to mobilization around nuanced issues like police education, police oversight agencies, state governance/funding in minority communities, gun control, harsh drug sentences, and others. The smartphone era simply coincided with Obama’s time in office, and it is entirely possible that the developments of high profile, racially divisive events have far more to do with the that than with Obama.

These high profile events have overshadowed Obama’s efforts to ease racial tensions through addressing unattended grievances and raising the quality of life of minorities. In 2010, for example, Obama oversaw a $1.2 billion settlement awarded to Black farmers based on discriminatory loan practices. In 2012, the Labor Department reformed the Fair Labor Standards Act to extend minimum wage and overtime protections to home care workers—a growing profession that is comprised of 56% minorities. Another measure in 2012 was Obama’s executive order to stop deporting certain illegal immigrants who entered the United States as children; although this was contested by Republicans, the general consensus was that these were not individuals that the immigration removal process was designed to target.

Race relations were undeniably tumultuous from 2008 to 2016; but as time allows for reflection, Obama’s approach should be regarded as prudent. He has limited further divisiveness by commenting little on hot-button media topics while keeping his eye on target when it comes to elevating the quality of life for minorities.

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Am I My Client? Revisited: The Role of Race in Intra-Race Legal Representation 

When: Monday, January 23rd at 11:50am
Where: SH 1225
Please join the Michigan Journal of Race & Law and the Michigan Access Program in welcoming Professor Julie Lawton of the DePaul University College of Law. Professor Lawton will be discussing her article, Am I My Client? Revisited: The Role of Race in Intra-Race Legal Representation.
 
Co-sponsored by BLSA
Belly Deli will be provided to the first 50 students.
Posted in Announcements

Presidential Election 2016: Why Democrats’ Frustration with Shelby County May Be Misdirected

By Ali Boyd
Associate Editor, Vol. 22

In the midst of a nationwide battle for civil rights, President Lyndon B. Johnson called on Congress to create one of the most expansive protections of voting rights ever seen.  The result, the Voting Rights Act of 1965 (VRA), sought to protect against racialized voter disenfranchisement.  One of the Act’s most important elements—a preclearance requirement—could be found in Section 5.  Preclearance required certain jurisdictions to refrain from implementing any new provisions affecting voting until either the Attorney General or the United States District Court for the District of Columbia determined that the change did not have a discriminatory purpose or effect. However, not all jurisdictions would be subject to the preclearance requirement.  Section 4(b) of the VRA laid out a formula to determine which U.S. jurisdictions would be covered by the Act.  The only jurisdictions required to submit to Section 5 preclearance were those that, at the time of the November 1972 election, 1) maintained a prohibited test or device as a condition of registering to vote or voting and 2) had a voting-age population of which less than 50% either were registered to vote or actually voted in that year’s presidential election.  The purpose of the formula was clear: to get at the worst historic offenders of voting discrimination.

For almost fifty years, the preclearance requirement remained an effective way of increasing voter registration and participation among minority groups.  However, on June 25, 2013, the Supreme Court issued its ruling in Shelby County v. Holder, striking down the coverage formula of Section 4(b) of the VRA, and thereby effectively eliminating the preclearance requirement of Section 5.

2016 marked the first Presidential election in more than five decades without the full enforcement of the Voting Rights Act, and states seem to have taken full advantage of their newfound freedom.  The Brennan Center for Justice notes that during the 2016 election, 14 states enacted restrictive voting laws for the first time.  With the surprising results of the election, Democrats are left wondering whether these new restrictive voting laws may have had a determinative effect on the outcome.  Democrats are not crazy to think that they would be the party most likely burdened by these laws.  Studies show that when voting is restricted, it typically affects minority voters disproportionately and these groups historically vote Democratic.  The anger of many has been directed at the Shelby County decision itself.  However, this anger, at least as far as the Presidential election is concerned, may be misdirected.

It is unlikely that even a fully enforced version of the Voting Rights Act in its pre-Shelby County form would have altered the outcome of the Presidential Election.  Of the fourteen states that enacted new restrictive voting laws this election, only six previously fell under the coverage formula of Section 4(b) of the VRA – Virginia, South Carolina, Alabama, Mississippi, Texas, and Arizona. However, based on historical voting records, most of these states have voted strongly Republican in every Presidential election since 1980.  Virginia is the lone exception, which awarded its electors to Democratic candidate Hillary Clinton this election regardless.  The closest case is presented in Arizona, where tabulations at the time of this writing show Donald Trump winning the popular vote by four percentage points and around 85,000 votes.  While it may be impossible to tell how many Democratic voters would have turned out were it not for Arizona’s new restrictive voting laws, it is safe to say that even Arizona’s eleven electoral votes would not have been enough to tip the scales in Clinton’s favor.

Unfortunately, this trend of restrictive voting laws continues to spread across the nation, even in states that were not previously covered by Section 4(b) of the Voting Rights Act.  Across the country, nearly half of states have passed laws that make it harder to register to vote, cut back on early voting, and require strict forms of government-issued ID to cast a ballot that millions of otherwise-eligible voters don’t have.  In 2016, new laws resulted in 868 polling places being closed, forcing some voters to travel as far as 25 miles to vote.  As Rolling Stone pointed out, states with restrictive voting laws “comprise 189 electoral votes – nearly half of the Electoral College votes needed to win the presidency – and include crucial swing states like Ohio, Wisconsin and Virginia.”  These are the states that were far more likely to have impacted the results of the recent Presidential election.  For example, in Wisconsin, a state that proved crucial to Donald Trump’s upset victory, the 41,000 vote decline in turnout was greatest in areas where the lack of IDs was common.

As it is becoming more common for states across the nation to enact potentially discriminatory voting restrictions, a mere restoration of the coverage formula of Section 4(b) hardly seems like enough.  After all, the coverage formula struck down by Shelby County would not require preclearance for any of the recent laws passed in places like Wisconsin, Ohio, or Indiana.  However, voting rights activists are not left without options.  The Court’s biggest problem with the coverage formula considered in Shelby County was that it was based on data from 1972.  Therefore, an updated formula may just be enough to withstand the scrutiny of the Court. One solution would be to enact a new version of Section 4(b), such as that proposed by Jim Sensenbrenner, a Republican member of the U.S. House of Representatives from Wisconsin, in the Voting Rights Amendment Act of 2015.  This proposed coverage formula would extend the preclearance requirement to all jurisdictions nationwide, with the ability to be freed from coverage once their pattern of discrimination in voting ceases.  Though the legislation has more than 100 co-sponsors, Congress still has not acted on it, perhaps because many think this would be beyond Congress’s power as it could be considered disproportionate and not congruent to the problem.  Another solution would be to enact a new formula similar to that of Section 4(b), but updated to reflect modern data rather than using evidence of discrimination from the 1970s.  In an ideal world, it would encompass states such as Wisconsin, Ohio, and Indiana that have enacted new restrictive voting laws but were not previously required to submit to preclearance, while simultaneously meeting the Court’s requirements of congruence and proportionality.

In the absence of Congressional action, voting rights advocates will have to rely on individual litigation to fight back new restrictive voting rights laws as they pop up.  This can be done based on a variety of claims – Section 2 of the VRA, Equal Protection, the 15th Amendment, as well as the one-person, one-vote doctrine. However, individual litigation is unlikely to have as wide an impact as updated legislation.  While litigation certainly should not be abandoned, Democrats moving forward should focus their efforts on pushing an updated coverage formula to the VRA through Congress.  As Sensenbrenner puts it, “Without a modernized Voting Rights Act, there’s no such things as an honest election.”

 

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Sanctuary Cities Resist Donald Trump’s Plan to Withhold Federal Funding

By Anonymous
Associate Editor, Vol. 22

From the outset of his presidential campaign, President-elect Donald Trump[1] took extreme stances on immigration.[2] He spoke about heavier enforcement on the U.S.-Mexico border to prevent illegal crossings during his speech announcing his candidacy, claiming, “I will build a great, great wall on our southern border. And I will have Mexico pay for that wall.” He also laid out plans to hire 5,000 additional Border Patrol agents, despite the fact that federal spending on Border Patrol has nearly tripled over the past 15 years, while apprehensions have fallen 79 percent, indicating a significantly reduced number of crossings. Additionally, Mr. Trump says that under his administration, people who cross the border illegally will be detained[3] until they are deported, rather than released and monitored.

Mr. Trump takes a hardline stance on internal enforcement, too. In September, he revealed plans to triple the number of Immigration and Customs Enforcement (ICE) agents to create a “special deportation task force” designed to remove between 5 million and 6.5 million undocumented immigrants from the country. One component of his internal enforcement plan, step four of his “10 Point Plan to Put America First,” is to end sanctuary cities. This piece explores what potential effects this policy, if implemented, may have.

What are sanctuary cities?

The sanctuary city movement grew out of the Catholic church beginning in the early 1980s in response to concerns about refugees fleeing violence in Central America and being denied asylum in the U.S. While there is no formal legal definition of a sanctuary city, and each sanctuary city takes a slightly different approach, generally, sanctuary cities issue executive orders or adopt laws, resolutions, and policies that limit the extent to which local law enforcement and government agencies can assist the federal government on immigration matters. The concept extends to some college campuses, counties, and states as well. Sanctuary jurisdictions often have policies against detaining people on the basis of their immigration status if they would otherwise qualify for release. This means that an undocumented immigrant will not be deported because they were apprehended in relation to a traffic stop or a misdemeanor. It also protects undocumented immigrants who are victims of or witnesses to a crime from being deported if they report the crime to the police. This is motivated by the idea that police are better able to advance public safety when they are not de facto immigration agents, and sanctuary cities are safer than non-sanctuary cities.

Examples of specific sanctuary policies include San Francisco’s City and County of Refuge Ordinance, issued in 1989, which prohibits city and county employees from helping ICE agents with immigration investigations or arrests unless a federal law, state law, or warrant requires them to provide assistance. The Ordinance also prohibits city and county employees from asking about a persons’ immigration status, disclosing information about a persons’ immigration status, or conditioning services on a persons’ immigration status. San Francisco strengthened its stance on protecting the rights of undocumented immigrants with the Due Process for All Ordinance in 2013. An executive order issued by Mayor Washington in 1985 and a City Ordinance passed under Mayor Emmanuel in 2012 lay out similar policies for Chicago.

Which U.S. states and cities are currently sanctuaries?

According to Sarah Saldana, the Director of ICE, there are over 200 sanctuary jurisdictions in the U.S. However, since the concept of a sanctuary jurisdiction remains legally undefined, it is difficult to compile a comprehensive list of cities, counties, and states that are sanctuaries. This source helps identify states that have adopted immigrant friendly policies with regard to access to identification, education, social services, employment, and policing. States commonly considered sanctuary states include California, Colorado, Connecticut, Maine, New Mexico, North Dakota, Oregon, and Rhode Island. Major cities with immigrant friendly policies include Boston, Chicago, Denver, Detroit, Los Angeles, Miami, Minneapolis, New Orleans, New York City, Philadelphia, Portland, Salt Lake City, San Francisco, Seattle, and Washington, D.C. These cities vary widely in the extent to which their policies protect undocumented immigrants from detention and deportation.

What is Mr. Trump’s plan for sanctuary cities?

Mr. Trump’s Contract with the American Voter includes a list of five actions to “restore security and the constitutional rule of law.” The third is to cancel federal funding to all sanctuary cities. Mr. Trump spoke about this plan on the campaign trail, saying he would “block funding for sanctuary cities. We block the funding. No more funding. Cities that refuse to cooperate with federal authorities will not receive taxpayer dollars.” However, Mr. Trump would need the express approval of Congress to withhold federal funds related to mandatory expenditure programs from local governments. Mr. Trump will have more control over the distribution of discretionary funding and grant money. When Mr. Trump appeared on CBS’s 60 Minutes in his first post-election television interview, he discussed immigration, but notably missing from his comments was any mention of ending sanctuary cities.

How are sanctuary cities responding?

Many sanctuary cities have responded to Mr. Trump’s election by declaring that, despite Mr. Trump’s proposed policy, they will continue to shelter undocumented immigrants from detention and deportation and provide opportunities for undocumented immigrants to access certain government services. New York City Mayor Bill de Blasio came to the defense of undocumented New Yorkers, saying “We are not going to sacrifice a half a million people who live among us, who are part of our community. We are not going to tear families apart.” He also said that he would not turn over a database containing identifying information of undocumented immigrants who have received IDNYC cards without a “real fight,” implying he may delete the database before providing it to the federal government.

Chicago Mayor Rahm Emanuel offered reassurance to his constituents: “To all those who are, after Tuesday’s election, very nervous and filled with anxiety . . . you are safe in Chicago, you are secure in Chicago and you are supported in Chicago. Chicago has in the past been a sanctuary city . . . It always will be a sanctuary city.” Mayor Emanuel expressed doubts about whether Mr. Trump would go through with his proposal to defund sanctuary cities, saying “I would say to the president-elect, that the idea that you’re going to penalize Boston, New York, Los Angeles, Chicago, San Francisco, Philadelphia—these are the economic, cultural, and intellectual energy of this country.” Mayors and mayors-elect in San Francisco, Washington, D.C., Boston, Portland, Seattle, Detroit, and Denver have also made statements standing behind sanctuary policies.

However, leaders in several cities have expressed more concern about how the policy could affect them. The Salt Lake City Mayor’s Office and Police Department issued statements asserting that they are a “welcoming city” rather than a sanctuary city. Miami-Dade Mayor Carlos Gimenez also denied that Miami is a sanctuary city. New Orleans Mayor Mitch Landrieu also resisted the label.

Locally, students at the University of Michigan in Ann Arbor are circulating a letter to University President Mark Schlissel and Provost Martha Pollack requesting that they put policies in place to make the University of Michigan a sanctuary campus. If you are a University of Michigan student, alumnus, faculty, or staff member and you would like to express your support for this proposal, you can sign the letter here.


For more on this topic, see Raina Bhatt’s note entitled “Pushing An End to Sanctuary Cities: Will it Happen?” in MJR&L’s upcoming Volume 22.1 publication.


[1] Mr. Trump is known for engaging in behavior and making comments that are racist (see his history of engaging in housing discrimination, his comments questioning the qualifications of a Hispanic judge on the basis of ethnicity, his history of associating with members of the KKK, and his birther conspiracy about President Obama), misogynistic (see his graphic comments bragging about sexual assault, the many allegations that he committed sexual assault, and his comments on pregnancy as an inconvenience to employers), homophobic (see his position on nationwide marriage equality and the vice president-elect’s history of homophobia), Islamophobic (see his accusations that Muslim-Americans ignore terror plots, his plan to ban Muslims from entering the country, his failure to respond to concerns about mounting Islamophobia, and his plans to profile Muslims), anti-Semitic (see his anti-Semitic tweet and campaign advertisement), xenophobic (see his descriptions of immigrants and scapegoating), and ableist (see him mocking a disabled reporter). His election has inspired a surge in hate crimes across the U.S. While this piece contemplates the potential effects of only one of Mr. Trump’s many problematic policy proposals, the author encourages readers to research his other policy proposals and consider which civil liberties they violate and what groups they threaten.

[2] Mr. Trump relies on racist and xenophobic rhetoric to justify his stance on immigration. He has repeatedly described immigrants, especially Mexican immigrants, as rapists, murderers, drug runners, and “criminal aliens freely roaming our streets.

[3] This is problematic not only because it deprives individuals of their liberty without due process, but also because conditions in immigration detention centers are inhumane and unsafe.

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Flint Residents Still Searching for Justice

By Rita Samaan
Associate Editor, Vol. 22

To this day, Flint residents cannot trust the water flowing from their taps. Why is it taking so long to get clean water for Flint’s residents? Does it inform our answer if we consider that the city’s majority population is African American and that Flint is one of the most impoverished cities in the country?

In March 2016, Governor Rick Snyder made a statement that he did not know if race was a factor in the Flint Water Crisis. However, the record shows how the concerns of minority and poor residents were dismissed by Snyder’s administration—concerns  that wouldn’t have been ignored had Flint been a rich white community.

“I’m sure that if the residents of a more affluent community in Michigan—in Ann Arbor or Bloomfield Hills—noticed that their water was brown and was causing rashes on their children’s skin, that the problem would have been addressed much more quickly. I say that without hesitation because those communities have more political power, more economic power and are more noticed by those who have political power and are more vocal,” said Michael Reisch, a professor of social justice at the University of Maryland.

Governor Snyder received warnings about Flint’s questionable water quality in February 2015. Governor Snyder received a memo on February 1 dismissing then Flint Mayor Dayne Walling’s plea for state assistance. The memo stated Walling had “seized on public panic . . . to ask the state for loan forgiveness and more money for infrastructure improvement.” The memo was among 274 pages of emails regarding the city’s water. Yet the memo went on to say, “[It is] clear that folks in Flint are concerned about other aspects of their water—taste, smell and color being among the top complaints [but the Safe Drinking Water Act] does not regulate aesthetic values of water.” The memo goes on to concede that there were high levels of total trihalomethanes, which can cause liver or kidney issues. However, these concerns were also dismissed because exposure wasn’t a “top health concern” unless it was long term.

When President Obama came to the city in May, Reverend Rigel Dawson expressed to the President, “It makes you feel like you don’t count. People sometimes feel that we don’t really matter. We’ve had to fight and wait, fight and wait, for things that should have happened but haven’t.”

And Flint’s residents continue to fight on. On October 26, 2016, Michigan Court of Appeals Judge Mark Boonstra (who presides over the Court of Claims) ruled that residents could sue state officials over the water crisis. Judge Boonstra said the residents had provided sufficient facts in their lawsuit and if they were proved, they would show the state’s actions were “so arbitrary in a constitutional sense, as to shock the conscience.” The residents sued Governor Rick Snyder, two former Flint emergency managers, and Michigan’s Departments of Environmental Quality and Health and Human Services for their respective parts in the water crisis. Flint residents alleged that state officials made false statements and concealed data about the water crisis in efforts to downplay the health dangers. They also alleged that property values have decreased because of the contamination.

On October 20, the Environmental Protection Agency’s (EPA) inspector general admitted that the EPA should have issued an emergency order to protect Flint residents seven months before it did. The EPA had “the authority and sufficient information” to compel state officials to fix Flint’s water issues in June 2015. Regardless, the EPA didn’t issue an emergency order until January 21—a very delayed response to an entire city’s exposure to high levels of lead. The inspector general said, “[t]hese situations should generate a greater sense of urgency. Federal law provides the EPA with the emergency authority to intervene when the safety of drinking water is compromised.”

Why didn’t an emergency order come through sooner? Time and again, poor and minority communities have suffered disproportionately from environmental degradation over the years. The aftermath of Hurricane Katrina exemplified how racism exists in the structure of political and economic inclusion and exclusion. Two years after the disaster, in efforts to accelerate recovery, Congress waived affirmative action rules resulting in only a small portion of federal aid reaching minority-owned businesses. Moreover, black evacuees faced discrimination in cities where they resettled at the hands of officers who were told to “make life unpleasant…so that they will relocate elsewhere.”

On November 10th, a federal judge ordered state and city officials “to deliver bottled water to all Flint homes, unless officials verify, on a regular basis, the home has a properly installed and functioning water filter, or the residents decline delivery.” While this represents a major victory for Flint residents, it is one small step toward permanent change. There are some residents still seeking clean water and facing difficulty in their search. Some do not even know water delivery service is available. The judge’s order “reinforces how far we still are from fully recovering,” said Senate Minority Leader Jim Ananich, D-Flint.

This trend of environmental racism has allowed polluters to victimize minority and poor communities, partly because of weak regulations. Flint’s Rep. Dan Kildee (D-Mich.) said, “There’s a philosophy of government that has been writing these places off—places like Flint get written off. And, to me, even though those people making those decisions might not see it this way, it’s hard for me to accept the fact that race is not the most significant factor.” Hillary Clinton also made a statement that the Flint Water Crisis would have been dealt with differently had it happened in a “white suburb outside of Detroit.”

The facts speak for themselves. The Flint Water Crisis began in April 2014. It has been about two and half years since the crisis began, yet the residents still do not have clean drinking water coming from their taps. In a powerful, first world country like America, it is hard to imagine that one of our cities is being denied a basic right to clean water.

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CALL FOR SUBMISSIONS: MJR&L Seeks Scholarship Reflecting on the 2016 Election

UPDATE:  We are still accepting manuscripts for our themed publication, but we will consider all manuscripts regardless of whether they fit into our theme. If we extend an offer for publication, we will inform the author of which volume we believe the piece would be best suited for (i.e. either the themed Spring volume or the regular Winter volume).The MJR&L will transition boards at the end of the February, and authors are free to submit their pieces at this time. Please contact us if you have any questions or concerns.

In response to the 2016 United States presidential election and its potential impact on marginalized communities, the Michigan Journal of Race and Law will publish a themed volume. This volume is dedicated to legal scholarship that analyzes the democratic process, identity politics, and particular laws that influenced the national discourse during the presidential campaign. Additionally, the Journal seeks scholarship and individual reflections that analyze the anticipated legal and social implications of a Trump administration.

Please provide a brief statement of interest, in less than 200 words, that discusses the topic you wish to submit for publication by Sunday, December 4, 2016, by 11:59 p.m. Please submit your statement of interest here. The final manuscript is due by Sunday, January 15, 2017, by 11:59 p.m. On or before that date, kindly submit a cover letter, CV or resume, and manuscript via the Scholastica online submission system. You may still submit a draft for consideration by January 15th even if you do not submit a statement of interest on Sunday, December 4th.

 

Posted in Announcements

The 2016 Presidential Election: Quiet on Education Policy, Near Silent on K-12 Education Reform

By Madeleine McKay Jennings
Associate Editor, Vol. 22

I wrote this post in the week preceding the United States presidential election. On November 8, by about 10 p.m., the subject of this writing seemed immediately irrelevant. In my personal and academic lives, I’ve placed much importance around this issue but, on that Tuesday night, it was quickly swallowed by the gargantuan and indigestible circumstance of Donald Trump’s election. In the days following the election, I’ve tried, with difficulty, to remember – and believe in – the significance of issues like this one. These problems remain great, despite being dwarfed by something greater. So here is my pre-election writing on K-12 education in America, set against the backdrop of a silent, uncaring, and generally heartbreaking election cycle.


In the three 2016 presidential debates, no moderator and no spectator asked any question on education policy. In the three debates, the candidates spoke the words “school” and “education” nine and fifteen times, respectively. For Clinton, the words touched on universal preschool, college tuition, and her work with the Children’s Defense Fund in the 1970s; for Trump, the words populated sentences like “the education is a disaster” and “this [election cycle] has been an incredible education for me.”

Broadcasted discussions of the economy and foreign affairs garner higher ratings, and a recent Gallup poll found that only 3% of Americans consider education to be the most important issue facing our country today. This figure sits beside the 14% citing the economy, 11% citing unemployment, 6% citing immigration, and 5% citing terrorism. Fifty million children are enrolled in American public schools, but education, unfortunately, lacks political representation. Those fifty million are unable to vote, and K-12 education advocacy groups do not cohere at the national level.

Clinton took up educational issues during her time as First Lady of Arkansas but, because neither candidate had served as governor (one of the election’s many unusual qualities), there were no gubernatorial bread crumbs on education policy. Over the course of the election cycle, the Clinton campaign articulated the need for universal preschool, higher education loan reform, increased salaries for teachers, and school discipline reforms. The Trump campaign supported school choice, state control over education, and elimination of Common Core (though the states, not the president, have the power to do this). The Clinton campaign vowed to address the school-to-prison pipeline. The Trump campaign’s silence on that and related issues was unsurprising; more troubling was the media silence and the issue’s omission at each of the debates.

School re-segregation, lacking teacher diversity, police presence in schools, discipline disparities across races, and the criminalization of adolescent misconduct in schools were all issues largely missing from the national dialogue this election season. While the Clinton campaign addressed racial inequality in the criminal justice system, it failed to adequately address the fact and nature of its roots in our schools.

 Steadily since the 1990s, and with escalating fears around drugs, gangs, and school shootings, schools have relied increasingly on surveillance measures previously found only in airports and prisons: metal detectors, police officers (“school resource officers”), guards, and gates. Whether—and to what extent—a school employs these techniques correlates strongly and disturbingly with the percentage of minority students in the school. After controlling for variables like school crime, neighborhood crime, and school disorder, one study found that where minority student representation exceeds 50 percent, the school is two to eighteen times more likely to include these measures than are schools where the minority student population falls bellow 20 percent.

In fall 2015, the Shanker Institute published a study on minority teacher shortages, with a focus on nine cities: Boston, Chicago, Cleveland, Los Angeles, New Orleans, New York, Philadelphia, San Francisco, and Washington DC. In the study, sociologist Richard Ingersoll framed teacher diversity as an educational civil right for students. He posited that “[w]hile there is reason to believe that Black, Hispanic and American Indian students would be the greatest beneficiaries of a diverse teaching force, there is evidence that all students—and our democracy at large—would benefit from a teaching force that reflects the full diversity of the U.S. population.” Two studies in Tennessee and Florida, which found improvements in reading and math scores for students assigned to teachers of the same race, mirror the existing research supporting a diverse teacher force. But this knowledge has done little to affect this reality in our schools: As of 2012, 9 in 10 students in New Orleans public schools were Black or Hispanic, while only around 5 in 10 teachers were Black or Hispanic. That same year, in New York City public schools, there were three times as many White teachers as Black and Hispanic teachers, though Black and Hispanic students outnumbered their White counterparts by five times.

At this point, nearly half the states in our country have criminalized behavior that is otherwise benign and typical of children: yelling, shoving, cursing—burping, even. At least 22 states impose criminal penalties on students who disturb school. American children are charged with this crime more than 10,000 times each year, as in the heavily publicized case of Niya Kenny, a former high school student in South Carolina. In that case, the school resource officer arrested Niya after she recorded the officer’s violent treatment of her classmate who had violated state law by using a cellphone during class. Much attention was paid to the violent character of the recorded arrest, but it remains imperative to question the very fact of the arrest. Niya was nineteen years old at the time of her arrest, but children as young as seven have been charged with violations of the South Carolina law, which is punishable by up to 90 days in jail.

The disturbing school statutes in South Carolina and elsewhere were drafted in vague terms and are unsurprisingly applied and enforced asymmetrically. In the 2011-2012 school year, 92,000 students were subjected to school-related arrests. 31 percent of those students were Black, even though Black students account for only 16 percent of the students enrolled in our American public schools.

During the same school year, nearly 5,000 preschool students were suspended, 48 percent of whom were Black, despite the fact that Black preschool children account for only 18 percent of the children enrolled in public preschools. According to a report issued earlier this year by the U.S. Department of Education, Black K-12 students are 3.8 times as likely to receive one or more out-of-school suspensions as White students. This rings true even at the pre-school level, where Black children are 3.6 times as likely to receive one or more out-of-school suspensions as their White classmates. And this confounding gulf exists beside the fact that more than 60% of the instances of major school violence since the 1920s happened in schools that serve primarily White students.

That neither campaign honored these issues is unsurprising in an election cycle largely free of relevant, substantive issues. That we might continue to disregard this reality is an altogether different and unforgivable possibility. With regard to zero-tolerance, we must ask ourselves: What, exactly do we and don’t we tolerate? At present, we tolerate the suspension of an eight-year-old boy who carries his prescribed ADHD medicine in his pocket, the violent criminal arrest of a girl who checks her phone in class, and the five suspensions given to the three-year old boy who hits his teacher in the arm.

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Take a Knee: Athletes’ Newest Form of Protest and the Implications on the First Amendment

By Ali Boyd
Associate Editor, Vol. 22

Over the years, many American athletes have used their position of fame and influence to make political statements.  During the 1968 Mexico City Olympics, African-American sprinters Tommie Smith and John Carlos made headlines when they accepted their medals with raised fists in the air to represent black power.  In December 2014, five players of the St. Louis Rams walked onto the field with their hands raised above their heads, a reference to the “Hands Up Don’t Shoot!” symbol that had dominated protests and riots in nearby Ferguson in the aftermath of the police shooting of Michael Brown. (See Time’s article for further examples of athlete protests throughout history.)

In each of these instances, the athlete in question has faced severe backlash from both the public, as well as the athletic community. Though some Olympians praised the action of Smith and Carlos, the politicization of the international sporting event was condemned by the International Olympic Committee, resulting in their immediate suspension from the U.S. track and field team.  Similar backlash occurred in St. Louis, where the local Police Officer’s Association demanded that the Rams players involved in the demonstration be disciplined by the NFL.

Although the United States Constitution protects athletes’ right to make these statements without government intrusion, it does not protect them from public reaction. The First Amendment provides, in part, that “Congress shall make no law…abridging the freedom of speech.”[1]  This includes acts, such as raising a fist during the national anthem that represent symbolic speech.[2]  Thus, the government, state or local, cannot pass a law that prohibits that freedom.  However, the First Amendment has typically not been held to apply to private actors.  Because of this, private governing athletic organizations such as the U.S. Olympic Committee and the NFL are free to take whatever disciplinary steps they see fit in response to speech of which they disapprove.  No NFL fine or Olympic disqualification could ever run afoul of the First Amendment.

The latest wave of athletic protests, however, has sparked reaction that may toe the fateful state action line.  At the beginning of this NFL season, Colin Kaepernick, a quarterback for the San Francisco 49ers, chose to sit during the national anthem before the team’s preseason games.  As justification for his actions, Kaepernick stated, “I am not going to stand up to show pride in a flag for a country that oppresses black people and people of color.”  In an attempt to make a political statement while still showing respect for our troops and country, Kaepernick’s sitting transitioned into kneeling only a few games later. Though the quarterback was initially alone in his silent protest, countless others have since joined in his symbolic gesture.  In the two months since Kaepernick first made his statement, the practice of kneeling during the national anthem has become widespread as a way to show solidarity with the struggles of racial minorities in the United States, particularly African Americans and the Black Lives Matter movement.  (For a complete history of Kaepernick’s demonstration and those who have since joined him, see SB Nation’s timeline of the protests.)

Just as with previous instances of political statements by professional athletes, the movement has not come without its criticism.  Though the NFL has yet to reprimand any player for silently protesting during the national anthem, it is not uncommon for players who do so to be booed by fans.  U.S. Representative Steve King called Kaepernick’s activism “sympathetic to ISIS.”  In Beaumont, Texas, a youth football team was forced to disband entirely after several players quit in response to their teammates kneeling.

More disturbing, particularly in light of the First Amendment’s state action doctrine, are the reactions of certain law enforcement officers.  A local Sheriff’s union in Broward County, Florida, called for the suspension of details that protect the Miami Dolphins in response to players kneeling.  In Jefferson Parish, Louisiana, police officers refused to work a security detail for Bonnabel High School football games when players knelt during the national anthem.

This is where the First Amendment case becomes more tenuous. The Court has held that the First Amendment prohibits speech infringement by both government bodies and state actors—those  people who act on behalf of a governmental body, such as police officers.  Certainly, no protestor has yet to be arrested merely for kneeling during the national anthem, which would be a clear violation of their rights, as would an entire police force refusing protection to a person solely based on speech with which they disagree.  However, the cases above provide an interesting twist, as typically police officers volunteer to work protection detail for games.

The question for First Amendment purposes becomes where the line is to be drawn between a police officer acting as a private individual and as a state actor.  Though the Supreme Court has yet to rule on this exact question, several propositions may create a distinction in cases like this.  Police officers may be state actors only when they are mandated to provide protection rather than on a voluntary basis.  Under a broader view, police officers may be state actors any time they are acting in an official capacity.

Under any formulation it is hard to imagine a court finding a First Amendment violation where officers simply choose not to sign up for an extra duty, especially when enough officers remain to provide the service requested.  This was the case in Louisiana.  However, police forces should be careful as their refusal of protection moves closer to official force policy.  Such may be the case if the entire Broward County police force were to refuse protection to the Miami Dolphins while providing it to other teams.  It is in these cases where the argument that police were acting in a private capacity becomes much weaker.  As this protest and future protests like it continue on, police officers should be careful not to blur the distinction between their actions as private individuals and their actions as state officers who have a duty to protect the rights of all citizens.


[1] U.S. Const.,amend. I.

[2] Texas v. Johnson, 491 U.S. 397 (1989); Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969).

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