Whether the issues debated involved political equity, institutional accessibility, or fairness and equality within the criminal justice system, the month of June, 2013 will almost certainly be remembered as one of the worst in recent history for the cause of achieving racial justice in America. State legislatures, with a giant Seal of Approval from the United States Supreme Court, have been working overtime dismantling some of the most important gains and protections that were the crowning achievements of the American Civil Rights Movement in the 20th century. Meanwhile the state of North Carolina repealed its Racial Justice Act, Texas executed its 500th person within only a generation, and the trial of Trayvon Martin’s killer at long last began in Florida. The mainstream news outlets might have you believing the most important events in the struggle against racial inequality have been taking place primarily in Paula Deen’s kitchen, when in fact they’ve been occurring in courtrooms across the nation.
Rulings in a series of cases that were of great national significance were handed down one after another by the Supreme Court beginning on June 24. Most devastating of all was the ruling in the case of Shelby County v. Holder, in a decision split 5 (Chief Justice John Roberts in addition to Justices Samuel Alito, Antonin Scalia, Clarence Thomas and Anthony Kennedy) to 4 (Justices Ruth Bader Ginsburg, Sonia Sotomayor, Stephen Breyer and Elena Kagan). The decision, like so many that have come during the tenor of the Chief Justice Roberts, was purely along ideological lines, with the 5 most conservative Justices voting in the majority and the 4 more liberal voting in the minority. The ruling in effect gutted the Voting Rights Act of 1965 by dismantling a key provision of the Act – section 4 – which held that states and jurisdictions with a historical record of using racially-discriminatory tactics must first get preclearance from the federal government before making any changes to their voting processes, including the process of redistricting. Justice Roberts, writing for the majority, cited as the basis for the Court’s ruling its belief that when Congress reauthorized the Voting Rights Act in 2006, as they had done on numerous occasions before, they did so on based on “outdated” logic using “obsolete” metrics “having no logical relation to the present day.” This he says, in spite of the fact that both houses of congress came to the conclusion of virtual unanimous passage after first sitting through hours-worth of hearings at which over 15,000 pages of evidence documenting voter suppression tactics were presented. (The U.S. Senate, which can’t agree on much of anything, even reauthorized the Act with a vote of 98 to 0!)
Despite the majority’s opinion, however, Roberts did acknowledge that “the Act has proven immensely successful at preventing racial discrimination and integrating the voting process.” He gave the impression that the ball was now in congress’s court once again, but acknowledged that given the current political climate next to nothing is likely to happen. Justice Ruth Bader Ginsburg, voicing the opinion of the minority, pointed out the many contradictions and inconsistencies that lay in the Court’s argument, stating, “the sad irony of today’s decision lies in its utter failure to grasp why the Voting Rights Act has proven effective. The Court appears to believe that the Voting Rights Act’s success in eliminating the specific devices extant in 1965 means that preclearance is no longer needed. The record for the 2006 reauthorization makes abundantly clear second generation barriers to minority voting rights have emerged in the covered jurisdictions as attempted substitutes for the first-generation barriers that originally triggered preclearance in those jurisdictions.” By “second generation barriers”, she is referring not only to various attempts at suppressing the votes of minorities during the past four decades, but to ones that have popped up all over the place during the last four years in particular, many of them in the South. Sections 4 and 5 of the VRA served as one of the most reliable safeguards against voter suppression tactics and regional redistricting (i.e. political gerrymandering). Within hours of the Supreme Court’s verdict, the state of Texas and later on Mississippi announced their incredibly burdensome “voter I.D.” laws were going into effect immediately, along with new redistricting maps. The potentially discriminatory tactics they used will no longer be subject to federal approval. Among other states formerly covered under the VRA which now are not are South Carolina, Alabama, Georgia, Florida, Arizona, Louisiana, Virginia, and certain areas and districts in North Carolina, Florida, California, Pennsylvania and New York – nearly all of which have passed similar laws as Texas and Mississippi in the past few years. Some of the other tactics legislatures (all of them Republican-led) have attempted as of late to restrict the number of voters participating in the electoral process include the elimination of early voting – even though in Florida during the 2012 election many people, especially Black people, had to wait in long lines for hours just so they could cast their votes – as well as punishing parents of college students who vote while on campus, as North Carolina recently proposed.
Ironically, critics of the Voting Rights Act’s constitutionality often cite the election, and now reelection, of President Barack Obama to America’s highest political office in 2008 and 2012 as being a central piece of evidence supporting their claim that racism no longer plays a significant role in the lives of millions of Americans. This line of argument has acted as an essential talking-point in their relentless attacks on Voting Rights, Affirmative Action, ethnic studies courses, and all types of cultural diversity programs. In fact since the Obama-era began, these conservative groups have been working tirelessly to declare that racism is, for all intents and purposes, dead, buried and gone, despite the fact that we live in what is arguably the most racist nation the world has ever known. Now the Supreme Court has handed them a giant Seal of Approval. J. Gerald Hebert of the Campaign Legal Center, lamenting the Court’s decision, aptly put it when he said, “The Court today declared racism dead in this country despite mountains of evidence to the contrary.” Meanwhile, the current Attorney General of the state where George Wallace governed less than half a century ago hailed the Court’s decision as a triumph and “a victory for Alabama.” (*)
A separate ruling regarding Affirmative Action, Fisher v. University of Texas, while not as devastating as the Voting Rights decision, spells that an unfavorable decision is likely to come in the Supreme Court’s very near future. This case began last year when a white female Texan named Abigail Fisher was rejected from the University of Texas in Austin. Without having the least amount of evidence to support her case, she asserted that the University’s admissions policy, which seeks to promote diversity (by possibly taking into consideration one’s economic background, race, gender, culture or religion as just one factor among many other things, not the determining factor), was to blame for her rejection. Opponents of diversity have found in Affirmative Action a highly convenient scapegoat ever since its first inception half a century ago. What is truly ironic, however, is the fact that the overwhelming majority of Affirmative Action beneficiaries have been white women, of which Ms. Fisher is one. Both sides in the case claimed victory when the court, in a 7-1 ruling (Justice Ginsburg the lone dissenter), kicked the can down the road, basically declaring a non-decision. Tucked away in the ruling though is the fact that the Court has shifted the burden of proof away from any potential student alleging they were rejected because of a University’s admissions policy which seeks to promote diversity, and places it instead on Universities to “prove” their admissions policy can achieve diversity without disqualifying others (again, neglecting to take into account that Ms. Fisher would likely only benefit from Affirmative Action policies). Unfortunately, the words of one Justice in the majority in particular, Justice Clarence Thomas, were particularly inflammatory and ridiculous. Of the Texas University’s diverse admissions policy he said, “The arguments advanced by the University in defense of discrimination are the same as those advanced by the segregationists.” Yes, of course – everyone knows that a need for greater diversity was always what Southern segregationists proclaimed as their ultimate goal. (Smh.)
Two other cases that received significantly less attention last week were Vance v. Ball State University and Nassar v. University of Texas Southwestern Medical School, both of which dealt with employment discrimination. The prior of the two was a case in which an African American woman brought suit against Ball State University in Muncie, Indiana where she worked, claiming she had endured racial harassment from her supervisor. The latter involved a male physician of ‘Middle Eastern’ (West Asian) heritage who, after complaining about the religious and ethnic discrimination he received from his supervisor, was allegedly denied a promotion in retaliation for his having made a complaint. Both decisions came down to a 5-4 vote, and neither came down in the plaintiff’s favor. In Vance, Justice Samuel Alito Jr. voiced the majority view that the supervisor in question wasn’t a supervisor at all, but merely a ‘coworker’. He lambasted the definition of supervisor as defined by Equal Employment Opportunity Commission, which holds that a supervisor is someone who “has the ability to direct another employee’s task.” As a result of this ruling, the burden of proof will now be shifted onto any employee who claims they are victims of discrimination to prove that their employers didn’t handle the situation properly; whereas before, the burden of proof was on the employer to demonstrate they had taken swift and immediate action to resolve any harassment complaints. Justice Ginsburg voiced the viewpoint of the minority once again, and charged that her colleagues were “blind to the realities of the workplace.” She went on to explain how “an employee who confronts her harassing supervisor risks, for example, receiving an undesirable or unsafe work assignment or an unwanted transfer.” And in Nassar, the Court ruled (in a 5-4 split once again) that when a plaintiff claims they were denied a promotion as retaliation for filing a complaint of discrimination, the burden of proof falls directly on the plaintiff himself to show that a desire for retaliation was the sole motivating factor behind the supervisor’s decision. In other words, it’s okay if retaliation played a factor in being denied a promotion, as long as it was not the only factor.
Earlier in the month North Carolina’s Republican-led state legislature decided the time was ripe to eliminate the state’s Racial Justice Act, which stood as a landmark piece of legislation unique to the state. The motivating factor behind repealing the legislation was to hasten the executions of the more the 150 people currently on North Carolina’s death rows. The law existed so that those who are condemned to death, possibly as a result of racial prejudices held by the Judge or Jury in their case, would have a means of challenging their death sentence. It allowed for them to introduce statistical evidence to demonstrate disproportionality in the way the capital punishment is meted out in regards to race, in effect challenging their sentence on the grounds of the 14th amendment’s equal justice clause. Two judges since the Racial Justice Act went into effect 4 years ago found the law as grounds for vacating several death sentences, citing evidence from the years 1990-2010 that showed prosecutors systematically removed eligible Black jurors from murder-trial cases at a rate more than twice that of eligible whites.
Racism plays a primary role in the way which capital punishment is handed down not just in North Carolina, but in every state that still practices ritual executions in the 21st century. On June 26, the notoriously ruthless state of Texas carried out its 500th execution in a thirty-year time-span. Despite having a terrible record of imprisoning and executing people only to later find them exonerated by DNA evidence, the Lone Star State shows no sign of doing away with its gluttonous appetite for blood. (**) The latest victim of the genocidal machinery of death that is capital punishment is 52-year old African American woman and former resident of Huntsville, Texas, Kimberly McCarthy. McCarthy was sentenced to execution in 1997 for allegedly murdering her 71-year old neighbor, a white woman, with a butcher knife. After it was later discovered that her confession had been coerced out of her by police, however, she was granted a retrial in 2002. Not surprisingly though, the 12-person jury that convicted her was exclusively made up of white people, and four nonwhite potential jurors were disqualified by the prosecutor’s use of peremptory strikes. The second trial once again resulted in a sentence of death. This is unfortunately proving to be a regular occurrence in Dallas County, Texas. A study conducted by the Dallas County News as late as 2005 concluded that eligible Black jurors were regularly excluded from jury pools at a rate more than double that of whites, especially in cases involving Black defendants. Elsewhere in the nation, the administration of the death penalty in regards to race isn’t much better. Consider the data that was compiled during two landmark Supreme Court cases in Georgia, Stephens v. Georgia in 1995 and McCleskey v Kemp in 1987. Among the findings brought forth during the Stephens case was the documented evidence compiled by the Georgia Board of Pardon & Paroles, demonstrating that of all the prisoners serving life-without-parole sentences for drug convictions in the entire state, 98.4% were Black. Equally astounding was the fact that in the very county the defendant was convicted in, 100% of the prisoners serving life-without-parole sentences were Black, despite Black people only being 10% of that county’s entire population!  In the case of McCleskey, the landmark Baldus Study was used to demonstrate with overwhelming clarity that among all murder cases in the state of Georgia, “prosecutors sought the death penalty in 70% of the cases involving black defendants and white victims; 32% of the cases involving white defendants and white victims; 15% of the cases involving black defendants and black victims; and 19% of the cases involving white defendants and black victims.”  Amazingly, even though the Supreme Court found the evidence to be “statistically valid”, in both cases the gross disparities were not enough to “prove that racial considerations actually enter into any sentencing decisions in Georgia.”  In effect, the majority in both cases set the bar of “proving” racial discrimination in capital punishment cases so high that it’s virtually impossible to do so, short of a judge or jury-member showing up to court dawning white robes and a hood.
Lastly, the trial of George Zimmerman, the slayer of 14-year old Trayvon Martin, got underway June 20th, and there seems to be little concern being outwardly expressed at the make-up of the 6-person jury. While it is indeed true that an all-female jury was selected, that shouldn’t overshadow the fact that in a case largely centered on race and racial hostility, not a single member of the jury is Black. Furthermore 5 out of the 6 jurors are white, as are all 4 of the alternate jurors. I’m sure there are many people who would say this shouldn’t matter in our “post-racial” society, but I disagree. To say that majority-white juries have an absolutely terrible record of meting out “justice” in cases dealing with either a Black defendant or a Black victim would be a profound understatement. And it isn’t even necessary to reach all the way back to the murder of Emmett Till for a perfect example of this. When it came time for justice to be meted out on behalves of Sean Bell, Amadou Diallo, Abner Louima, Oscar Grant or Rodney King, the white or nearly all-white juries failed to deliver on the crucial verdicts. (^) This may be a radical point of view to some, but I think history has shown that it is irrational to rely on a majority-white system to be fair and impartial in cases that involve people of color. I’d be surprised if the trial against George Zimmerman for the murder of Trayvon Martin should turn out any differently.
Only time will tell us for certain what ramifications these events will bear with them, but if history is any guide things will only get worse before they can get better. After the Civil War, during the period of Reconstruction, there was a brief moment when it appeared America was coming closer to committing itself to full equality for all of its citizens. Many Black Americans were voting and holding political office for the first times in their lives. Within a few short decades or so, these gains were almost completely wiped out by a wave of white violence and repression all across the South. Meanwhile the federal government simply looked the other way, claiming there was nothing it could do.
A great man once said that “the arc of the moral universe is long, but it bends toward justice.” But in order for this to become a reality, the people are going to have to demand it, and be willing to sacrifice and form a truly dedicated Resistance Movement to injustice. These are problems that cannot be solved by simply electing people to powerful positions in a corrupt system of government. As Mumia Abu Jamal once said, “The system isn’t broken; it’s rotten” – to the very core.
- Ogletree Jr., Charles and Sarat, Austin. (2006). From Lynch Mobs to the Killing State: race and the death penalty in America. Page 86.
- Ogletree; Sarat. Page 87.
- Ogletree, Sarat. Page 63.
* In addition to the Alabama Attorney General’s (Luther Strange III) statements is Louisiana Secretary of State, Tom Schedler’s, that it was “the right thing to do.”
** A person is put to death in Texas on average once every 3 weeks.
^ I would add to that cases which involve Black defendants and all-white juries, such as the cases of Assata Shakur, the Jena 6, and Darryl Hunt.