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Category: civil rights

Published on Leave a comment on Dark Clouds and Bathroom Bills

David Gergen, CNN senior political analyst and co-director of the Center for Public Leadership at Harvard's Kennedy School of Government, gave a commencement speech at Elon University this weekend. You can read about it and follow a link to watch it here. As a North Carolina native, he's reacting to what he perceives as the undoing of progress that his home state has made, particularly with respect to H.B. 2, the Bathroom Bill.

The whole speech is worth your attention, but I would like to focus on a few excerpts. The first one is this:

Then suddenly, without warning, dark clouds arrived. The moderation that characterized our state – the belief among Republicans and Democrats that we are all in this together – gave way to a new, angrier, extremist politics.

I think the first statement in this excerpt is almost always false. Dark clouds take a long time to arrive. The reasons that their arrival appears so suddenly to Gergen are that he's observing from afar, he is happy with the changes that he describes as progress, and the ruling coalition (of self-styled moderates) that is driving the changes appears to be stable. The second statement is closer to true -- the new politics are definitely angrier. Whether they are extreme often depends on where you are sitting.

Consider as well this excerpt from Gergen's admonition to the graduates to engage in public policy:

You will find that many will disagree with you, just as many here will have disagreed with me. But don't let your disagreements make them your enemies. Find common ground, work hard to respect the views of others.

I confess I wasn't following the evolution of transgender rights in North Carolina before this spring. But I suspect that many of the proponents of H.B. 2 would claim that this is exactly what did not happen in Charlotte when it passed Ordinance 7056. Judge for yourself about the public reaction to the people who disagreed with this ordinance or who support H.B. 2. Are the opponents of H.B. 2 not treating them like enemies? Are they working hard to respect the views of others? Empathy is very hard to come by here, on both sides of the issue.

Gergen's admonition is the right advice to us all. But I don't think it is clear from his statement that we can only heed his admonition if we work this out in the legislature -- not the executive branch (through, for example, the 2014 guidance from the Department of Education reinterpret Title IX to cover an issue like transgender rights) or the judicial branch, where the courts will now be called on to resolve this. 

For legislation, I think a good historical example is the Americans with Disabilities Act of 1990, and, in particular, Title III on Public Accommodations. The public remedy here is to have single-occupancy bathrooms, as they don't require an occupant to pick a gender in order to know which one to use. They would look like family restrooms you see in public facilities. I would suggest three different remedies. First, as with the ADA, new construction of public facilities should be required to have a requisite number of single-occupancy bathrooms. Second, existing facilities that are sufficiently large and sufficiently public (e.g. a large office building with multiple floors that each have multiple-occupancy, single-sex restrooms on each floor) is to convert some existing facilities to non-gender-specific restrooms. Third, existing facilities that are not large or not very public (e.g. a small inn) should have a much longer time to convert their facilities or more latitude in the ways that they comply.

But passing something like the Americans with Disabilities Act -- one of the last, solid, bipartisan pieces of legislation -- requires a lot of work, including years of education and deliberation to find ways to balance competing concerns. I hope we still have that in us as a democracy.

Published on Leave a comment on I Guess I Did See This One Coming

About two years ago, I noted that the Los Angeles Superior Court judge in the Vergara v. California case had overreached when he declared that tenure and other job protections for teachers in primary and secondary public schools are unconstitutional. The plaintiffs' logic was that since poor and minority students were more likely to be saddled with ineffective teachers protected by these provisions, there must be a violation of their civil rights. I predicted that this ruling would be overturned on appeal, and last week, that's just what happened.

Echoing the theme of my earlier post, the Appeals Court ruled:

The court’s job is merely to determine whether the statutes are constitutional, not if they are ‘a good idea,’ ... The evidence did not show that the challenged statutes inevitably cause this impact.

Education is like many public policy issues today -- we spend too much, get too little, and either don't yet know how to improve on those outcomes or don't have the leadership skills to implement what we do know.

Published on Leave a comment on The End of Tenure in California Public Schools?

Judge Rolf M. Treu of the Los Angeles Superior Court has ruled in Vergara v. California that tenure and other job protections for teachers in primary and secondary public schools are unconstitutional. I think this is a clear case of judicial overreach -- legislating from the bench.

I don't think it is a hard case to make that the implementation of employment protections in many public school systems is bad policy. However, bad implementation of the policy does not mean that the policy is unconstitutional. The ruling pays lip service to this distinction, but that seems to be all. The key excerpt from the ruling in this case is:

Substantial evidence presented makes it clear to this court that the challenged statutes disproportionately affect poor and/or minority students.

Any policy under the purview of the public sector in which the benefits and costs fall unevenly by race would be deemed to violate the civil rights of the disadvantaged group. It is interesting to me that almost all of the tentative decision focuses on how bad the Challenged Statutes are at their worst, only two paragraphs focus on the effect on low-income and minority students in particular, and none of it discusses potential advantages of the job protections in the Challenged Statutes.

Even if those two paragraphs are the essential part of the ruling, the remedy is to ensure that the policy is implemented better, not necessarily to declare the policy unconstitutional. For example, based on what is presented in the ruling, consider a system in which:

  1. The Permanent Employment Statute had a 3-5 year evaluation period (as a defense witness suggested and as is found in most other states), 
  2. The Dismissal Statute had protections only at the level described in the Skelly v. State Personnel Board case cited in the ruling, 
  3. The "Last In, First Out" Statute were relaxed to having seniority considered as one among many factors rather than the only factor (as the ruling notes is the case in 20 other states), and
  4. The State could establish that there was no correlation between a school's incidence of low-income or minority students and the presence of ineffective teachers (where the latter was measured based on performance facing a standardized classroom).

This system would appear to violate no principle identified in the ruling. I don't expect this ruling to survive on appeal. I expect a higher court to require the State to implement a system like what I have outlined here.

Published on Leave a comment on Happy MLK Day

Listening to the radio this morning, I heard a quote from Martin Luther King Jr. that I think captures his legacy very well, particularly for students and young people observing the day:

Our lives begin to end the day we become silent about things that matter.

More quotes here. Dartmouth's schedule of events here.

Published on Leave a comment on Race and Performance in the NBA

The New York Times article this week about the study of racial bias in NBA officiating by Joseph Price and Justin Wolfers generated quite a bit of commentary. What is amazing is how little people understand, or are willing to understand, about statistics. Here's what the authors claim in the abstract of the study:

We find that--even conditioning on player and referee fixed effects (and specific game fixed effects)--that more personal fouls are awarded against players when they are officiated by an opposite-race officiating crew than when officiated by an own-race refereeing crew.

Much of the reaction among sportswriters has been to take the authors to task for calling the refs racist. (See Mike Wise in his column in Thursday's Washington Post and Kevin Hench at FoxSports.) Having taken a look at the study myself, I am surprised that those who make a living based on the sport would be so dismissive of the result. The main result of the paper is that the foul rate (fouls called per 48 minutes played) increases for black players when the racial composition of the three-person crew of referees goes from black to white. (See Table 4 and the discussion on page 8.) Any honest sportswriter should hold the NBA accountable for the result--why are the outcomes for fouls different across different racial configurations of refs and players?

It is very difficult to posit an explanation for these results that would attribute them to something other than race. First, no one disputes the NBA's claim that it does not assign referees to games based on their race or the racial composition of the two teams. (See page 4 and Table 1 of the study for discussion and evidence.) With (conditionally) random assignment, and the fact that the explanatory variables are fixed characteristics of people (i.e., race), we have the conditions for a clinical trial here, where "controlling" for possibly confounding factors is not likely to be important. Second, the authors do in fact control for a number of "fixed effects," exploiting the fact that their dataset is a panel consisting of a limited number of individuals observed in numerous interactions. This includes characteristics of the player and the refs that don't change over time. As the authors note, the most comprehensive results "are identified only off the differential propensity of teammates to earn extra fouls when the refereeing crew is of the opposite race."

Having said that, I think the authors soft-pedal one possible explanation of the results that would exonerate the refs. The following passage appears on pages 12-13:

The fourth point speaks to a relatively subtle interpretation issue: while we document a correlation between a player’s foul rate and the race of the referee, this may reflect the players responding to the race of the referees, rather than the referees policing opposite-race players more aggressively. Strategic responses by players would lead to an attenuation bias: expecting to receive more fouls for a given style of play, the players may play less aggressively, minimizing the impact of referee discrimination on realized fouls. This suggests that our results understate the amount of discrimination. Alternatively, if players exhibit oppositional responses, they may play more aggressively when policed by the opposite race. Importantly, such oppositional responses suggest that our findings are driven by changes in player behavior, rather than referee behavior. Yet if this were driving our results, one might expect to see effects not just on the number of fouls earned, but on the likelihood of fouling out, as well as other indicators of aggression, including blocks and steals. Instead, we find that blocks and steals actually decline under opposite-race referees.

I'm not persuaded by this reasoning. The player response needn't take the form of aggression--it merely needs to be a general decline in player performance in the presence of opposite-race referees. What if, for example, players find it more difficult to concentrate on their tasks when the refs are of opposite race? Elsewhere in the paper, the authors write, "Player-performance appears to deteriorate at every margin when officiated by a larger fraction of opposite-race referees." So why assume that it's the refs not the players? And why make a statement, "Basically, it suggests that if you spray-painted one of your starters white, you’d win a few more games," even under the possible coaxing of a reporter?

The interpretation of the results that it's the players, not the refs, may also reconcile the results of NBA's internal studies that claim that, on a call-by-call basis, there is no evidence of racial bias. (The NBA has not released the results of these studies, much less the data.) If the players are changing their game based on the racial composition of the refereeing crew, then it is possible that every call or non-call is legitimate, and both studies can be accurate.

Published on Leave a comment on Reading and Listening

Yesterday, when I got to my office, I thought this econoblog was going to be the best thing I'd read all day. It's Brad DeLong and Arnold Kling having a pretty contentious and articulate debate about the legacy of the New Deal. Read the whole thing.

But then, realizing that I would have to introduce Neal Katyal at his public lecture last evening, I started reading this article forthcoming in Vanity Fair. And maybe I haven't been keeping up with current events, but I found parts of it truly shocking. The public lecture was fantastic (read about it here), on a par with Katyal's appearance on the Colbert Report.

Published on Leave a comment on On MLK Day

I remember a trip to Atlanta about twelve years ago during which I visited The King Center. I remember the visit each year particularly on this day, as it was a moving experience and a stark reminder that people like Martin Luther King, Jr. emerge in this world far too infrequently and that his work is still so far from finished.

I consider many of the current celebrities who claim to have succeeded him in his cause to be charlatans at their very best. In light of that, it is important to keep his legacy alive, in as honest a manner as possible. Please consider a donation to the King Center, or a similar gesture, as a way to help in that capacity. Its mission is:

  • To develop and disseminate programs that teach the world about Dr. King's philosophy of nonviolence and interracial cooperation through network organizations
  • To build a national and international network of organizations that, through sanctioned programs, raise awareness and understanding of Dr. King's legacy and continue his teachings
  • To monitor and report on the impact of Dr. King's legacy on the world
  • To maintain visitor services for the Freedom Hall complex in Atlanta; with over 630,000 visitors annually, the King Center is the most visited cultural and tourist attraction in the Southeast United States
  • To provide historical reference resources on the life and work of Dr. Martin Luther King, Jr. and the modern civil rights movement through the King Library and Archives

Published on Leave a comment on SCOTUS and Diversity

The Supreme Court heard two cases this week related to policies in Seattle and Louisville to promote racial diversity in public schools. (Links are to the oral arguments.)

Findlaw has an overview of the relevant Supreme Court cases for education deriving from the 14th Amendment. One past decision that caught my eye was the Swann (1971) case, described as follows:

Because current attendance patterns may be attributable to past discriminatory actions in site selection and location of school buildings, the Court in Swann determined that it is permissible, and may be required, to resort to altering of attendance boundaries and grouping or pairing schools in noncontiguous fashion in order to promote desegregation and undo past official action; in this remedial process, conscious assignment of students and drawing of boundaries on the basis of race is permissible. Transportation of students--busing--is a permissible tool of educational and desegregation policy, inasmuch as a neighborhood attendance policy may be inadequate due to past discrimination. The soundness of any busing plan must be weighed on the basis of many factors, including the age of the students; when the time or distance of travel is so great as to risk the health of children or significantly impinge on the educational process, the weight shifts.

The Court here was analyzing remedies for past discrimination by school district officials. But what if there has been no past discrimination in the location, quality, and attendance of public schools?

From the descriptions of the case and my quick skimming of the arguments, it seems that some students are denied opportunities available to others solely based on their race. I do not see how this can be reconciled with the Equal Protection Clause as it has developed through the two University of Michigan cases. In the undergraduate case, a majority of the Court ruled that the admissions system (a point system that awarded extra points for members of minority groups) was too "mechanistic." It seems that these two systems are even more mechanistic. I'm guessing this will be 5-4 to strike down both systems.

So what are school systems supposed to do to ensure Equal Protection? In a degenerate way, having only one school in each district would do it, as would having completely random assignments if there are multiple schools. Beyond that, we could start with a system of schools constructed and staffed as similarly as possible and allow choice, requiring that every school accept all applicants. As long as those two requirements were maintained--identical offerings and a requirement to take all applicants--then there should be the presumption that everyone has the same opportunities. But this would do nothing to ensure "diversity" as it is being used in this context.

Published on Leave a comment on Should Religious Groups Ever Be Exempt from Civil Rights Laws?

This was the question posed by Professor Martha Minow to an audience at the Rockefeller Center last evening. Her dilemma in trying to find an answer, as recorded in The Dartmouth:

"To answer yes puts in jeopardy the civil rights laws and elevates religious groups above others."

"To say no infringes on the free exercise of religion and will just lead to religious organizations suing."

There seem to be two prominent examples. The first is when a religious organization wants to act as an employer in a way that removes some job protections established through civil rights laws. An example is a church that wants to fire an employee who becomes pregnant out of wedlock if that event or continuing to work after the child is born is proscribed by church doctrines.

The second is when a religious organization receives government funding for some of its services but does not want to make those services equally available to all groups. An example is when the religious group is paid for providing adoption services, but it will not place adoptees in the homes of same-sex couples because of doctrine prohibiting such arrangements, despite state laws requiring equal access.

It was a provocative lecture. I came to the following conclusions:

1) In the case of employment discrimination, this seems like it could be reasonably handled through the employment contract. For it to be valid, the contract would have to be signed in advance and the proscribed activity linked to established religious principles. As employers, religious organizations are quite small relative to just about every labor market in which they are active. There also seems to be little to complain about if the infringement on civil liberties is done with informed consent and in advance.

2) In the case of service discrimination, I think the state or federal entity should be required to find a different provider if the religious organization would violate civil rights laws in the performance of the service. Professor Minow had some examples of possible compromises, but I was not persuaded--civil rights laws mean civil rights for all.

3) In the case of #2, the immediate consequence is that we will lose some expertise in providing some social services. High-need adoptees won't get placed, for example. Well, that doesn't have to be true over any longer time period. It will only be true if the people who argue so forcefully in favor of civil rights laws are not willing to develop (or pay someone to develop) the expertise that will be lost when the religious organization leaves the state-sponsored market. So I regard that process as unfinished business in the Civil Rights movement.

For more of Professor Minow's scholarship, read Not Only for Myself or any of her other books.

Published on Leave a comment on Andrew Young, We Hardly Knew You

I'm guessing his invitations for MLK speaking engagements will taper off in 2007. This outburst is just hard to figure:

The civil rights leader Andrew Young, who was hired by Wal-Mart to improve its public image, resigned from that post last night after telling an African-American newspaper that Jewish, Arab and Korean shop owners had “ripped off” urban communities for years, “selling us stale bread, and bad meat and wilted vegetables.”

In the interview, published yesterday in The Los Angeles Sentinel, a weekly, Mr. Young said that Wal-Mart “should” displace mom-and-pop stores in urban neighborhoods.

“You see those are the people who have been overcharging us,” he said of the owners of the small stores, “and they sold out and moved to Florida. I think they’ve ripped off our communities enough. First it was Jews, then it was Koreans and now it’s Arabs.”

Mr. Young, 74, a former mayor of Atlanta and a former United States representative to the United Nations, apologized for the comments and retracted them in an interview last night. Less than an hour later, he resigned as chairman of Working Families for Wal-Mart, a group created and financed by the company to trumpet its accomplishments.

“It’s against everything I ever thought in my life,” Mr. Young said. “It never should have been said. I was speaking in the context of Atlanta, and that does not work in New York or Los Angeles.”

He was on to a legitimate idea--that a company like Wal-Mart with a single-minded focus on low cost production doesn't permit discriminatory practices against consumers by competing stores. And then he soiled himself, badly.

Can anyone figure out if he really apologized, if he concludes his statement by implying that his depiction of Jewish, Arab, and Korean shop owners is valid for Atlanta, though not for New York or Los Angeles?