Nel's New Day

December 9, 2015

Scalia’s Affirmative Action Quote of the Week

 

Media pundits have concentrated on Donald Trump’s outrageous statement that he would keep all Muslims from entering the United States. Last month, Justice Antonin Scalia made a connection between LGBT people, pedophiles, and child abusers in a speech to first-year law students at Georgetown. Today he made outrageous—and dangerous—statements during arguments before the Supreme Court. Scalia is much worse than Trump–Scalia’s in control, Trump isn’t.

Supreme Court Justice Antonin Scalia is interviewed by The Associated Press, Thursday, July 26, 2012, at the Supreme Court in Washington. (AP Photo/Haraz N. Ghanbari)

Antonin Scalia (AP Photo/Haraz N. Ghanbari)

In an affirmative action case out of Texas, the high court listened to lawyers debate the use of race in college admissions. Scalia’s statement:

“There are – there are those who contend that it does not benefit African Americans to ­­ to get them into the University of Texas where they do not do well, as opposed to having them go to a less­-advanced school, a less – a slower-track school where they do well.

“One of – one of the briefs pointed out that – that most of the – most of the black scientists in this country don’t come from schools like the University of Texas. They come from lesser schools where they do not feel that they’re – that they’re being pushed ahead in – in classes that are too ­­ too fast for them.”

Talking about black students accepted under affirmative action programs, he said, “They’re being pushed into schools that are too advanced for them.” He added that black students benefit from a “slower track” because “it does not benefit African-Americans” who don’t succeed academically in schools that accepted them under affirmative action policies. He at least started a statement with “there are those who contend.” Nowhere in his statements, however, did he disagree with those contenders.

To summarize Scalia’s responses to today’s case, affirmative action is bad for black students because they’re not smart enough to succeed in good schools.

Fisher v. Texas comes from Abigail Fisher, who complained that she was denied admission to the University of Texas because she is white. A lower court found that she wouldn’t have been admitted under any circumstances, but the case has plowed its way up through the courts to the top deciders. The court sent the case back to the 5th Circuit Court of Appeals last year in 2013, finding that the case needed to be re-examined under “strict scrutiny.” The lower court again found in the university’s favor, and, like a zombie, the case is back.

The university lets in the top ten percent of all high school graduating classes for 75 percent of the accepted students and then uses a process considering race and several other attributes such as socioeconomic status instead of only class rank for the remaining 25 percent. Hopwood v. Texas forbade the consideration of race in admissions in 1997 so the policy of accepting the top ten percent attempted to create racial diversity. Only class rank, however, could exclude a National Merit semifinalist who attended a high-achieving high school—thus the reason for a more holistic approach for part of the students accepted. Race was considered as one attribute after 2003 when the Supreme Court upheld affirmative action as constitutional. Race was added to add “minorities with unique talents and higher test scores to add diversity … to the student body,” according to the 5th Circuit decision.

Today conservatives argued that Texas cannot put race into the mix for a holistic decision. Justice Ruth Bader Ginsburg used the same argument as she did two years ago, that the supposedly “race-neutral” process of admitting the top 10 percent isn’t race-neutral because it makes virtue out of a long history of school and housing segregation and discrimination. Justice Sonia Sotomayor fiercely challenged Fisher’s attorneys.

Justice Elena Kagan was silent: she recused herself because she worked on the case as solicitor general. That brings the number of deciders down to eight—four dedicated conservatives, three progressives, and Justice Anthony Kennedy who has become the swing vote. Meanwhile, three of the conservatives already decided in opposing affirmative action, and Justice Samuel Alito argued that advocates for affirmative action are making racist or condescending judgment. Chief Justice John Roberts kept asking when racial discrimination remedies would no longer be necessary. (He was one of the judges who opened the door letting states discriminate against minorities in their constitutional right to vote by claiming that the Voting Rights Act, which would have celebrated its 50th anniversary this year, wasn’t necessary.) Roberts asked, “What unique perspective does a minority student bring to a physics class?”

The effects of a Supreme Court decision in Fisher will be long-reaching, affecting every university in the nation. There may not be a definitive ruling at this time either. Kennedy asked lawyers if the trial court should collect more evidence although he may have changed his mind later on. As he said, however, “We’re just arguing the same case [as in 2013]. It’s as if nothing had happened.”

Kennedy might have found it useful that 168 black and Latino students with grades as good or better than Fisher’s were also denied entry into the university that year. Fisher also turned down an offer to attend the university starting her sophomore year if she earned a 3.2 GPA at another Texas university school her first year.

The year that Fisher applied to UT, 92 percent of the students were admitted from the top ten percent of the in-state spots. She wasn’t one of them. Her grade point was average and her SAT scores not great. Fisher was represented pro bono in the lawsuit by Project on Fair Representation, funded by conservatives who want to do away with any affirmative action. The group also took the case to the Supreme Court that eradicated vital portions of the Voting Rights Act of 1965.

Fisher has already graduated from Louisiana State University, her second choice, and works in finance at an Austin firm. Her only harm, according to a news reporter who asked, is her inability to tap into the UT’s alumni network and perhaps missing out on a better first job. She seeks only the return of her application fee and housing deposit–$100 in damages. On the other hand, the organization representing her wants to use Fisher to attack the equal protection clause of the 14th Amendment. During the past 150 years, there has been no ban on laws and government programs that consider race. Project on Fair Representation wants to change that.

In a 1971 ruling, the Supreme Court ruled that government could not mandate colorblindness when doing so would defeat the integration requirement of Brown v. Board of Education. In another case, Justice Harry Blackmun wrote, “In order to get beyond racism, we must first take race into account. There is no other way.” An increasingly conservative court has been involved in so-called reverse discrimination cases.

By now, the conservative portion of the court supports Roberts when he said, “The way to stop discriminating on the basis of race, is to stop discriminating on the basis of race.” Scalia called the Voting Rights Act a “racial entitlement.” Basically, the Supreme Court may return to the 1956 Southern Manifesto by Strom Thurmond and Richard Brevard Russell to resist overturning school segregation with the equal protection clause.

Either the current Supreme Court rules in favor of the equal protection clause, or the Project on Fair Representation will go trolling for another self-proclaimed white victim to re-address the issue.

June 16, 2015

Jeb for President? Part II

king bushJeb Bush’s plan for the half of 2015: raise tens of millions of dollars, separate himself from his brother’s presidency, win conservatives, and become the Republican who will win the GOP nomination. Thus far, he’s raised the money. Asked about his brother, he waffles between supporting him and trying to find a way to please people who disagree with George W. Bush’s Iraq War. Conservatives still don’t like him, and he has appeared incompetent through answers to questions and consistent flip-flopping.

Last week he changed his campaign manager to the more negative and conservative Danny Diaz, meaning that Bush may have reconsidered whether he’ll still campaign “joyfully.” Diaz’s participation in Bush II’s campaign is another connection between Jeb and Dubya. One Bush ally said that Diaz will signal that “the culture of the Bush operation will now be a Pickett’s Charge engagement campaign with his main opponents.” Pickett’s Charge on the third day of Gettysburg lost most of its soldiers and contributed to the loss of the Civil War for the South.

The Bush name lacks the gleam it once had. Sen. John McCain (R-AZ) said, “He just hasn’t met the expectation level of what we expected of a Bush.” Sixteen years ago, Bush’s brother had over half the House GOP caucus—114 Republicans—on board with endorsements. The House has more GOP members in 2015, but Bush has only two dozen committed to him and no senators. Bush’s flip-flopping doesn’t seem to bother GOP congressional members, however, as much as his seemingly moderate views on immigration and education.

Bush may be sued for his fund-raising style.  He waited seven months after forming  a leadership political action committee in lieu of an “exploratory” committee to declare his candidacy while he’s acted like a presidential candidate. Without officially declaring as a candidate, he could send “anonymous donations” into his Super PACS, both named Right to Rise.

According to the New York Times, “federal law makes anyone who raises or spends $5,000 in an effort to become president a candidate and thus subject to the spending and disclosure restrictions.” Technically, Bush sidestepped that law, but unethical behavior has never bothered him. As Florida governor, he engineered a vast voter fraud and intimidation program to tip the scales in favor of his brother George W. Jeb, and Jeb is back gaming the system to make more money from corporate interests.

Jeb Bush has declared that brother, George W, is his senior advisor. That’s the Bush with a foundation accepting undisclosed donations from millionaires while he was president. One big donor, Dallas oilman and major SMU supporter Edwin L. Cox, had his son pardoned by former President George H.W. Bush. Other donations to the Bush Foundation come from foreign governments such as the United Arab Emirates and Kuwait. With assets of $47 million and another $3 million a year from undisclosed donations, the George Bush Presidential Library can funnel campaign and influence money—even illegal donations from foreign governments—to Jeb Bush with no record or transparency.

Jeb’s past shows the same sort of dodgy dealings in politics:

1989: Bush successfully lobbied his father, then president, for the release of Cuban terrorist Orlando Bosch, who allegedly orchestrated the bombing of a Cuban airliner that killed 73 people in 1976 as well as other terrorist attacks. In a federal prison on an immigration violation and dubbed an “unrepentant terrorist” by then-Attorney General Dick Thornburgh, Bosch was a cause célèbre for Miami’s influential Cuban population—a voting bloc that Jeb used to launch his political career.

1994: Despite Bush’s strident advocacy to keep people in a vegetative state alive and prevent abortion, his first campaign for Florida government promoted the acceleration of the death penalty enforcement in the state by limiting death row inmates to only one appeal.

1996: Bush pushed for charter schools in Florida. Providing money to religious schools was later ruled unconstitutional, but after he was elected governor, he made sure that public money went to developers to build schools, free of public oversight and collective-bargaining agreements, that drained money from public schools. Despite a law that charter schools had to be operated by non-profit groups, for-profit companies were managing three-quarters of the state’s newly approved charter schools by 2002. The next year he signed a bill that removed any cap on the number of charter schools. Although Bush claims to have no profit from these schools, his allies do. Bush sticks to Common Core because it makes money for his friends.

1999: In his first year as Florida governor, Bush signed an executive order to end affirmative action in education and business after calling these policies “stupid and destructive.” Since then, Black enrollment in universities has dropped by almost half in some of the schools while the Black population in the state remains stable at 20 percent.

1999: Bush signed a law making Florida the first state to fund anti-choice initiatives through the sale of “Choose Life” license plates. He also supported “crisis pregnancy centers” (CPCs) that provide women with medically inaccurate information—for example, abortion makes people go insane—and fail to tell women about the full range of their reproductive health options.

2000: During the recount for the presidential election, Bush made 95 calls to the George W. Bush campaign while his secretary of state and George W.’s campaign co-chair, Katherine Harris, lost or spoiled ballots from hundreds of thousands of Black voters.

2001: Bush gave Bsafe Online, an American Family Association subsidiary, $600,000 of tax money to block Internet users from information about LGBT identities. Yet he invested $1.3 million in state pension fund money in Movie Gallery, a video rental company with a wide selection of pornographic films.

2003: Thirteen years and many court cases after Terri Schiavo went into a vegetative state, Bush was instrumental in passing “Terri’s Law,” demanding that her feeding tube be reinserted.  It was another two years before she was allowed to physically die.

2003: Bush initiated the dumping of tons of toxic waste by the Koch brothers company, Georgia-Pacific, into the Florida St. Johns River after he and his cabinet, over the objection of then Attorney General Charlie Crist, gave a preliminary approval to the GP pipeline from its Palatka paper mill to the river. Within the next two years, GP moved forward without a constitutionally-required notice and fair warning for a wetlands permit and an easement. Law required that the public Trustees carefully consider the costs and benefits and the money savings by GP from the river dumping, but it was never done. No compensation has been made for the areas covered with toxic waste and the diminished swimming and fishing use in the affected area. GP got its easement in 2009 with no notice to citizens and environmental groups. After citizens sued and a Bush-supported court rubber stamped Bush’s actions, the case went to the 1st District Court of Appeals.

2003: Bush asked a court to appoint a guardian for the fetus of a developmentally disabled rape victim despite an earlier decision by the Florida Department of Children and Families to ask the court to appoint a guardian for the baby only after the woman gives birth.

2005: Bush is responsible for Florida’s Stand Your Ground law through his support of corporate-controlled ALEC. The media described it as a license to hunt and kill.

2006: Bush asked the Florida GOP legislature to put a constitutional amendment on the ballot repealing a constitutional provision separating church and state. The legislature refused.

2009: Bush declared himself Hispanic on his 2009 voter registration. In 2012, Republicans accused Sen. Elizabeth Warren (D-MA) of misrepresenting herself as Native American.

2010: Bush and his education reform organization, the Foundation for Excellence in Education, created a group of school superintendents and other high-ranking officials called “Chiefs for Change” to advance the Florida model of education, which emphasizes accountability and emphasized giving schools letter grades based on performance, especially standardized test scores. One of the original eight chiefs was accused of inflating the grade of a lackluster charter school funded by a Republican donor. The office of another was caught manipulating test score data.

In October, a New Mexico advocacy group filed a complaint with the IRS alleging that Bush’s Foundation for Excellence in Education failed to disclose thousands of dollars it paid to bring public school superintendents, education officials, and lawmakers to the group’s events, where they had private “VIP” meetings with the foundation’s for-profit ed-tech company sponsors. The complaint alleges that Bush’s foundation disguised travel payments as “scholarships” to hide the fact that the nonprofit was facilitating lobbying between big corporations and public officials.

2015: Bush’s first fundraiser for his PAC was hosted by Charles Davis who held a top job at an insurance brokerage sued by the state of Florida for swindling clients while Bush was governor.

2015: One of Bush’s emails reveals that he closely coordinated with the Florida legislature to schedule Florida’s 2016 presidential primary in a way most favorable for himself.

2015: Bush’s hire for his PAC’s chief technology officer, Ethan Czahor, tweeted about women being “sluts” and joked about being ogled by gay men at the gym. Jeb solved the problem by having the tweets deleted.

Bush promises to deliver a four percent annual economic growth. He has no method; he said that 4 is “a nice round number.” He cited his record as governor—the one that ended just as the housing bubble popped and wiped out 900,000 of Jeb’s 1.3 million jobs created while he was in office. The bubble filled state coffers, Jeb took credit and left office before the disaster, and now the candidate wants to be viewed as an economic genius.

There’s much more here. The last part of the Jeb Bush iceberg tomorrow.

June 24, 2013

SCOTUS Decisions, Immigration Reform Amendment, Texas Anti-Abortion Continue

Although the Supreme Court did not deliver its rulings about marriage equality and the Voting Rights Act of 1965 today, they did divulge other decisions. SCOTUS did deliver a non-ruling on affirmative action in Fisher v. University of Texas. In the question of whether a white student suffered racial discrimination at the University of Texas, SCOTUS rejected a lower court’s approval of the school’s affirmative action plan but said that it will have to evaluate it again.

The constitutionality of race in university admissions, however, survived with the ruling that race may be considered as a factor as long as the policy is “narrowly tailored.” If “‘a nonracial approach . . . could promote the substantial interest about as well and at tolerable administrative expense,’” then the university may not consider race.

When states have banned affirmative action, the number of minority has drastically dropped. Today’s ruling allows universities to continue implementing diversity plans, but it does not preclude these state bans. In its next term, SCOTUS will review a Michigan ban that the 6th Circuit Court of Appeals has struck down.

In his opinion, Justice Clarence Thomas compared any affirmative action to slavery. He has also said that he would vote to overturn the case next year upholding the University of Michigan Law School’s affirmative action policy. That means he doesn’t need to listen to arguments next year because he’s already made up his mind.

Courtesy seems to have disappeared in SCOTUS. Justice Ruth Bader Ginsburg dissented to the racial discrimination ruling, asserting that the lower court ruling should have been upheld. She also read a dissent to the case (below) which makes racial and sexual discrimination easier by raising the level of proof to establish retaliation for complaining about discrimination.

Part of Ginsburg’s dissent was a “hypothetical” (meaning drawn from a real case) when a female worker on a road crew was subjected to humiliations by the “lead worker” and who now has no remedy because of the court ruling. According to Garrett Epps, Justice Samuel Alito pursed his lips, rolled his eyes to the ceiling, and shook his head “no.” There are no cameras to show the incident, but Epps reported that the audience made audible gasps.

SCOTUS gave sexual and racial harassment a boost up in the workplace through today’s 5-4 ruling in Vance v. Ball State University. Thanks to five Supreme Court justices, a “supervisor” is defined as having the power to make a “significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.”

The definition eliminates all the people who still maintain power over employers through reporting their actions to employers—excuse me “supervisors.” One of these “non-supervisors” is a senior truck driver who coerced a female subordinate into having unwanted sex with him. Justice Elena Kagan also described the secretary whose boss “subjects that secretary to living hell, complete hostile work environment on the basis of sex.” That person is not a “supervisor” because it’s the “Head of Secretarial Services” who would fire her.

In University of Texas Southwestern Medical Center v. Nassar, the five conservative justices also allowed employers a greater right to retaliate against victims of discrimination who report that they have suffered discrimination.

The Senate is working hard to discriminate against immigrants through its reform bill. In a desperate attempt to pass the bill, the Senate passed a motion to debate an amendment by 67-27 with 15 GOP “yes” votes that would ostensibly make the bill more palatable to conservatives. It’s a Christmas gift to Halliburton, as  Sen. Patrick Leahy (D-VT) said, because of the requirement for another 700 miles of fencing. Another piece of the amendment was doubling the number of border patrol agents to 40,000—one for each 1,000 feet of the southern border of the United States. The party that wants less government and spending cuts now helps support a bill that would cost an additional $46 billion.

Most of the publicity for the amendment came from the border security, but Sens. Orrin Hatch (R-UT) and Marco Rubio (R-FL) managed other offensive provisions. One prohibits undocumented workers from counting past wages toward Social Security eligibility, and another prevents the government from providing welfare to immigrants until they become citizens. The provisions also called for an additional five-year ban on federal health subsidies under Obamacare for unauthorized immigrants who get a green card and tried to ensure these immigrants pay back taxes and penalties on any wages they earned while in the country illegally.

There may be more news about what’s buried in the 1,200-page amendment before the vote on Thursday or Friday.

Meanwhile, Texas GOP members are using a special legislative session to push through more restrictive anti-abortion regulations. (What happened to their love for small government?!) The proposed law would criminalize abortions after 20 weeks and shut down health clinics, leaving no place in western Texas—a very large area—to obtain an abortion. Women would have to travel at least 600 miles to get an abortion for any reason.

In a peculiar quirk, the bill’s sponsor, Jody Laubenberg (R) refused to support an exemption for rape because—ready for this?—she thinks that the rape kit, used to collect forensic data on the rapist for a prosecution, causes abortions. She said, “In the emergency room they have what’s called rape kits where a woman can get cleaned out.” Laubenberg has displayed an even greater ignorance then Congressional legislators.

Someone needs to explain to Laubenberg that this is the procedures for use of the rape kit. A victim enters the hospital; staff collect bodily fluid, residue under the victim’s nails, and any relevant blood or hair samples for an investigation. Nobody gets “cleaned out.” States with abstinence-only sex education, such as Texas, have highly uneducated people, even elected legislators.

A survey found that 63 percent of registered voters don’t want any more anti-abortion laws, and 71 percent think that the legislature should worry about the economy and jobs instead of policing women’s reproductive rights. Almost three-fourths think that personal medical decisions about abortions should be made by a woman and her doctor, not by politicians. Also, 57 percent said that they don’t trust the governor or the legislature to make choices about women’s health care. Eighty percent think that anti-abortion should not be legislated in special session. And this opposition is from both parties and the independents.

The Texas Assembly passed the bill at 10:40 am today. Legislative rules require a 24-hour wait until the Senate can bring it up. The Texas legislature has until tomorrow night to get the bill passed.

This last weekend, dozens of people stood in line in Atlanta to buy exclusive LeBron James sneakers. When a man carrying a gun harassed them, a man in line pulled his gun and fatally shot him. The shooter then got back in line to wait for his sneakers. Some of the people thought that he wanted to rob them. A witness said about the dead man, “Sounds like he brought it on himself.”

Nobody said anything the man being dangerous, just that it was okay to kill him. Police have said they will not be charging the shooter because it was “self defense.” No need to wound him or feel any remorse—just kill him. This is the gun culture of the United States. 

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