Affirmative Action and the Fourteenth Amendment

      Supreme Court justices were hopelessly divided after the first round of arguments in the landmark school desegregation case Brown v. Board of Education (1954). To gather more information — and buy some time — they asked opposing attorneys for a new round of briefs and arguments on what the authors of the post-Civil War Fourteenth Amendment thought about the issue.
      Despite the extensive research and argument, Chief Justice Earl Warren wrote in the eventual opinion that the history was “inconclusive” on the issue before the justices. So Warren went on to analyze the constitutionality of “separate but equal” in the context of public education in the United States in the mid-twentieth century.
      The 21st century Court is now preparing to hear a new case in October on the issue of race-conscious affirmative action policies in higher education (Fisher v. University of Texas). The justices have been presented stacks and stacks of friend-of-the-court briefs addressing the issues from every possible perspective, including historical. Once again, the history is ambiguous and to some extent inconclusive. But those justices – think Antonin Scalia and Clarence Thomas – who view original meaning as the touchstone of constitutional interpretation will be hard pressed to find a complete prohibition on governmental use of racial preferences in the history of the Fourteenth Amendment.
      Inconveniently for Scalia’s and Thomas’s declared opposition to racial preferences, the same Congress that approved the Fourteenth Amendment in June 1866 also voted one month later to extend the life of a government agency set up to provide special aid to newly freed slaves. The Freedmen’s Bureau provided clothing, food, and other necessities to former slaves as well as to white Union sympathizers who had fled the South during the Civil War.
      Congress originally created the bureau in March 1865 with Abraham Lincoln in the White House and the Civil War about to end. As set out in a brief filed by lawyers with the Constitutional Accountability Project, a progressive Washington advocacy group, the law directed the bureau to provide open-ended assistance to the former slaves but aid to “loyal refugees” only to the extent “necessary to enable them . . . to become self-supporting citizens.” The law also authorized the agency to acquire property abandoned in the South for schools for the former slaves.
      Congress originally established the Freedmen’s Bureau for one year. In 1866, with the former southerner Andrew Johnson in the White House, Congress voted to extend the bureau’s life for two years. Johnson vetoed the measure, but Congress overrode the veto in July 1866 by votes of 104-33 in the House and 33-12 in the Senate — substantially more than the two-thirds majority needed.
      Opponents in Congress specifically criticized the preferential treatment for the freed slaves. One member said the law treated the freedmen not as equal but superior, “in opposition to the plain spirit of the Constitution.” In vetoing the bill, Johnson criticized it as “class legislation.” Supporters in Congress answered the criticism by saying the preferential aid was needed to “break down discrimination between whites and blacks.”
      The bureau was hampered by opposition by unreconstructed southerners and was eventually allowed to fade out of existence after 1871 as northerners’ support for reconstruction faded. Opponents of affirmative action today can cite that history to argue that the bureau was viewed as a temporary measure that would no longer be needed once former slaves got on their feet.
      Even at the time, however, some supporters recognized the need for longer term measures. “The effects of ages of slavery are not to be removed in a day, by a mere legislative vote,” the Rev. William Weston Patton, a white abolitionist, said in a speech in 1877 at Howard University, the historically black college established by the Freedmen’s Bureau and named for its first commissioner, Army general Oliver Howard.
      Supporters of Reconstruction could not have imagined the new roadblocks that the country would erect to true equality for African Americans. The federal government turned a blind eye as legal, political, and social barriers went up, in the North as well as in the South. The Supreme Court played its ignominious part by striking down the law prohibiting racial discrimination in public accommodations and upholding racial segregation in public education on the legal fiction of separate but equal.
      The march toward real racial equality resumed with Brown and continued with civil rights legislation in the 1960s and with the growth of affirmative action policies in the 1970s aimed at improving African Americans’ opportunities in higher education.
      Those admissions policies met resistance immediately. Twice, the court has narrowly approved limited consideration of race by state universities: Regents v. Bakke (1978); Grutter v. Bollinger (2003). In casting the decisive vote in Grutter, however, Justice Sandra Day O’Connor voiced the expectation that racial preferences would no longer be needed in another 25 years.
      Impatience is no basis for constitutional adjudication, however. The Roberts Court should carefully consider the role of elite public colleges and universities in the United States today and the actual impact of race-conscious admissions on opportunities for racial and ethnic minorities and on the legitimate goal of student diversity. In weighing that evidence, the justices should recognize that the constitutional insistence on equal protection was not written to prevent the government from enacting policies to break down the barriers to actual equality.

False Speech Does Not a Hate Group Make

      The Supreme Court invoked the spirit of James Madison in 1964 when it established constitutional limits on libel suits in the landmark decision New York Times v. Sullivan. “Some degree of abuse is inseparable from the proper use of everything,” Madison wrote. Citing Madison, the court went on to observe that “erroneous statement is inevitable in free debate” and must be protected if freedom of expression is to have the “breathing space” it needs to survive.
      The court’s bow to false speech bears on the debate last week over the designation of the anti-gay Family Research Council (FRC) as a “hate group” by the self-appointed monitor of hate groups, the Southern Poverty Law Center (SPLC). The Montgomery, Ala.-based legal advocacy group first listed the FRC as a hate group in December 2010. Gay rights advocates have been quick ever since to cite the listing to discredit the FRC’s various anti-gay stands.
      The listing became a topic of national debate last week after a Virginia man who had volunteered at the Washington, D.C., LGBT community center was charged with shooting the security guard at the FRC’s headquarters in downtown Washington [Aug. 15]. Floyd Lee Corkins allegedly shouted, “I don’t like your politics,” immediately before firing at the guard, Leonardo Johnson. Corkins is facing a charge of assault with intent to commit murder; Johnson, wounded once in the arm, is reported to be recovering well.
      Gay rights organizations quickly denounced the shooting. But the next day the council’s president, Tony Perkins, moved to take advantage of the incident by calling a news conference to blame the shooting on the SPLC’s designation of the council as a hate group. “I believe the Southern Poverty Law Center should be held accountable for their reckless use of terminology,” Perkins told reporters.
      The center responded by defending its listing of the council as a hate group based on what senior fellow Mark Potok called the FRC’s “false and denigrating propaganda about LGBT people.” Blaming the center for the shooting was “outrageous,” Potok said. “The FRC and its allies on the religious right are saying, in effect, that offering legitimate and fact-based criticism in a democratic society is tantamount to suggesting that the objects of criticism should be the targets of criminal violence,” he wrote.
      The FRC was one of 13 anti-gay organizations designated as hate groups by the SPLC in an “intelligence report” published in December 2010. The center said the designation was based on the groups’ “propagation of known falsehoods . . . and repeated, groundless name-calling,” not on religious objections to homosexuality. Five anti-gay groups studied were not included in the designation. The designation was controversial from the outset. The FRC responded with a newspaper ad criticizing the listing co-signed by 22 members of Congress, including the then House Speaker-designate John Boehner.
      More broadly, the SPLC’s hate-group monitoring has itself been controversial for many years even as news organizations routinely use it as a source and treat the center’s periodic reports as reliable barometers of hate group activity. One leading critic is Ken Silverstein, Washington editor of Harper’s magazine. Silverstein wrote a stinging critique in 2000 that depicted the hate-group monitoring mainly as “a relentless fund-raising campaign.”
      In a panel discussion a decade later, Silverstein repeated his criticism. The center “has a habit of casually labeling organizations as ‘hate groups,’” Silverstein said in a panel in March 2010 convened by the Center for Immigration Studies after the anti-immigrant group had come under SPLC’s microscope as a hate group. “In doing so,” Silverstein continued, “the SPLC shuts down debate, stifles free speech, and, most of all, raises a pile of money, very little of which is used on behalf of poor people.”
      Today, the SPLC lists 1,018 hate groups active in the United States, identified by name on an interactive map with a short description of the group’s ideology (“racist,” “skinhead,” “black separatist,” “anti-gay,” etc.). For the casual reader or listener, the designation may conjure up pictures of violence and intimidation: cross burnings or worse. But the center’s fine-print definition cautions otherwise: “Listing here does not imply a group advocates or engages in violence or other criminal activity.”
      In fact, the intelligence report on the FRC in December 2010 includes no suggestion that the council advocates or engages in any violence or criminal activity. The 800-word entry says the council has been “a font of anti-gay propaganda” since its founding in 1983. The pastiche of evidence includes what the entry labels as “false accusations linking gay men to pedophilia” made by “senior research fellows” Tim Dailey and Peter Spring in various forums over the years. Also noted were Sprigg’s recent statements that he favored criminalizing homosexual behavior and that the repeal of “don’t ask, don’t tell” would likely result in assaults by gay service members on straights.
      LGBT groups and their straight allies have good reason to find these views offensive. And the center rightly notes that the research claimed to support the anti-gay statements has been discounted or contradicted by mainstream scientific organizations. But the SPLC’s designation of the FRC as a “hate group” does more than register disapproval or disagreement. It seeks to completely delegitimize the organization and exclude it from public debates. In those debates, the Supreme Court tells us, even false speech has a place if freedom of expression is to be preserved.

High Court Looking at Failures of Indigent Defense

      Michael Coles was an overworked public defender in Columbia, Mo., in fall 2007 when he was assigned to represent Galin Frye, then a student at St. Louis Community College, on a charge of driving without a license. The Boone County prosecutor handling the case sent Coles a written offer on Nov. 15 to settle the case, Frye’s third offense, on a guilty plea with either a minimal jail term of 90 days or three years’ probation with 10 days in jail as “shock time.” The prosecutor said the offer would expire on Dec. 28.
      Coles logged the offer in the case file, but never told Frye about it – either by letter or phone call, even though Frye’s address and phone number were in the file. By the time the offer expired, Frye had been stopped again in a different county for the same offense. Eventually, Frye pleaded guilty before a Boone County judge, who sentenced him to three years in prison.
      Once Frye learned of the uncommunicated plea bargain, he filed a petition for postconviction relief based on a violation of his Sixth Amendment right to “effective assistance” of counsel. This year, the Supreme Court agreed that Coles’ representation was “deficient” and sent the case back for the local court to figure out how to remedy the constitutional violation.
      Frye’s case, Missouri v. Frye, was one of four criminal cases that the Supreme Court ordered reopened during the past term after finding “ineffective assistance of counsel” by court-appointed lawyers. In a companion case the same day (March 21), the court gave a Michigan man, Anthony Cooper, a chance to get out of a 15- to 30-year prison sentence for assault with intent to commit murder. Cooper went to trial, the court found, after rejecting a more lenient sentence based on his lawyer’s incorrect reading of state law that he could not be convicted of the most serious charge (Lafler v. Cooper).
      Those two rulings gained front-page attention as the Supreme Court’s first precedents for establishing a general right to effective assistance of counsel in the plea-bargaining process, which is the criminal justice system for most defendants. One day earlier, the court had ruled that an Arizona inmate, Luis Martinez, could raise an ineffective-assistance claim in a federal habeas corpus proceeding after his state court lawyer failed to pursue it (Martinez v. Ryan). And two months earlier the court revived a postconviction proceeding by an Alabama death row inmate, Cory Maples, after finding that his local attorneys and two Wall Street lawyers handling the case pro bono had effectively abandoned him (Maples v. Thomas).
      Together, these decisions provide heartening evidence that the Roberts Court is taking the Sixth Amendment right to counsel more seriously than in the past. But the right established nearly 50 years ago in Gideon v. Wainwright (1963) remains for many criminal defendants more an aspirational goal than actual reality. “Not only do you deserve to have a warm a body, but an effective body,” says Lisa Wayne, a Denver lawyer and immediate past president of the National Association of Criminal Defense Lawyers.
      The past year’s cases illustrate the various problems in indigent defense. Alabama is notorious for providing inadequate representation for indigents in capital cases. As Justice Ruth Bader Ginsburg pointed out in Maples’ case, court-appointed lawyers in capital cases in Alabama are not required to have any experience or special training in death penalty law and are paid a paltry $70 an hour. The legal blunder by the private lawyer in the Michigan case is the kind of mistake that can be seen in courthouses around the country by court-appointed attorneys. Many of these lawyers take on these cases precisely because they lack the training or skills to attract and retain paying clients.
      As for public defender offices, they are underfunded and understaffed in many jurisdictions, including Missouri. As the American Bar Association noted several years ago in its critical report Gideon’s Broken Promise (2004), high caseloads “make[ ] it impossible for even the most industrious of attorneys to deliver effective representation in all cases.”
      The Missouri state public defender’s office has struggled for several years with growing caseloads without corresponding increases in staffing. In the fall of 2008, the state’s Public Defender Commission took a step recommended by the state supreme court and announced that regional offices should decline to accept new cases if their caseloads exceeded recommended levels three months in a row.
      A judge in Springfield challenged the edict in 2010 by assigning the regional public defender a routine burglary case over the office’s objection. Eventually, the defendant pleaded guilty, but the Missouri Supreme Court ruled late last month (July 31) that the judge had exceeded his authority. In a 4-3 decision, the state justices said judges faced with public defender offices stretched beyond their capacity should “triage” their dockets — weeding out the less serious cases one way or another so that public defenders can devote adequate resources to the remaining cases.
      Coles has left the public defender’s office. To the system’s credit, another public defender, Emmett Queener, took over Frye’s case and successfully argued in Frye’s behalf before the Supreme Court. As with the other Supreme Court decisions, however, the result is a Band-Aid solution that leaves the fundamental problem of indigent criminal defense unsolved.

Nation Likely to Take Latest Mass Shooting in Stride

      Barely two weeks after James Holmes’s deadly rampage at the Aurora, Colorado, movie theater, the United States experienced another mass shooting on Sunday (Aug. 5): this one, at the unlikely site of a Sikh temple in a Milwaukee suburb. The casualty count: six victims killed, plus the presumed shooter, fatally wounded after he fired on police; three others were wounded.
      The shooter was identified on Monday as Wade Michael Page, an Army veteran reportedly with a decade-long history in white supremacist organizations. Page might have mistakenly directed hatred of Muslims toward the turban-wearing Sikhs, or he might have been an all-purpose racist. Whatever his motive, this much can be said with confidence: the shooting will have no appreciable effect, if any, on the regulation of firearms in the United States, nationally or at the state or local level.
      A political system capable of responding to current events certainly would have devoted more attention than it did to Holmes’s ghoulish July 20 attack on a post-midnight showing of the latest Batman movie, The Dark Knight Rises. Dressed in body armor and his hair dyed orange, the self-proclaimed “Joker” sprayed a crowded theater with gunfire from an assault rifle, killing 12 and wounding 58 others.
      Holmes used an AR-15 rifle outfitted with a high-capacity drum magazine in the shooting. The federal ban on assault weapons enacted in 1994 prohibited the manufacture of both items, but Congress allowed the law to “sunset” a decade later, in 2004. In the months before the shooting, Holmes also legally acquired other weapons, two pistols and a shotgun, and thousands of rounds of ammunition, according to police.
      Throughout the country, Americans reacted to the unspeakable tragedy with shock and grief — but not the country’s political leaders. White House press secretary Jay Carney initially brushed off any suggestion to reconsider federal gun laws. A few days later, President Obama went so far as to tell the Urban League on July 25 that he believes most gun owners would support a ban on private possession of assault weapons. But Obama stopped short of actually saying Congress should consider such a measure.
      Presumptive Republican presidential nominee Mitt Romney managed to be even less useful in furthering debate on the issues. Speaking on the same day as Obama, Romney dismissed the need for new gun control laws based on the mistaken understanding that Holmes had acquired the weapons illegally. “It was illegal for him to have many of those things already. But he had them," Romney told NBC News in an interview.
      Romney turned aside Brian Williams’ question whether he stood by his position as governor of Massachusetts in signing an assault weapons ban into law. Instead of new laws, Romney prescribed “changing the heart of the American people.”
      A few days later, Supreme Court Justice Antonin Scalia added a few comments to the discussion by recognizing, in an interview on Fox News Sunday, that the recently recognized individual right to possess firearms still permits “reasonable” limitations on gun ownership and carriage. But Scalia could not resist musing out loud whether the Second Amendment might allow hand-held rocket launchers as a weapon of self-defense.
      Once the 24/7 news cycle had digested Scalia’s remarks, the nation was ready to move on to other issues, chiefly the economy, and to other amusements: the Olympics and the political horse race. Admittedly, the political calendar is not conducive to serious legislating. Congress has just started a month-long recess for the political conventions, and the nation faces a potential cliffhanger of a presidential election in November.
      In addition, mass shootings, as much as they may seize the nation’s attention, are not ideal vehicles for changing public policy. “Mass killers are determined, deliberate and dead-set on murder,” James Alan Fox, a law professor at Northeastern University, wrote in a commentary on CNN.com after the Aurora shooting. Stronger gun control laws will not deter the mass killer, Fox said, even though he added in a postscript that he supports “certain reasonable gun restrictions.”
      The assault weapons ban would seem to pass this test. Military-style rifles equipped with high-capacity magazines seem ill suited for self-defense in the home or for sport at the shooting range or in field or forest. The Brady Campaign to Prevent Gun Violence has compiled a 90-page list of shootings since 2004 with confirmed or suspected use of assault weapons. Some ended with no or minimal injuries, and many perhaps would have been no more dangerous if less lethal weapons had been used. In many of the instances, however, the use of once-banned assault weapons added to the casualty count.
      Americans seemingly agree. In a Time poll in June 2011, 62 percent of those surveyed said they favored a ban on semiautomatic rifles except for the military and police compared to 35 percent who said instead that “more” should be done to protect rights of gun owners. In the same poll, a majority — 51 percent — said they favored making gun laws “stricter.” Only 7 percent wanted gun laws to be “less strict.” Surely, a quickie poll in the wake of Aurora would spike higher for stronger gun laws.
      The United States has the dubious position of leading industrialized countries in firearm deaths. A new ad by big-city mayors, aired during the Olympics on Sunday, warned that 48,000 Americans will be murdered by guns during the next president’s four-year term. But nothing in the two weeks since Aurora suggests that either of the presidential candidates is eager to address the issue.