W. Kamau Bell solves racism.Or at least makes some progress....

My wife and I were privileged last night to see W. Kamau Bell speak at the Zeiterion Theatre in New Bedford, the show part of the New Bedford Lyceum.  (Also in the audience: our friends, colleague Professor Justine Dunlap and UMass Law alumni City Councilman Hugh Dunn and attorney and radio host Marcus Ferro.)  Bell is a comedian, but at the same time, most definitely a social activist, performing through multiple media, including television, podcasts, and books.  He is most familiar to me from his Emmy-winning show on CNN, United Shades of America, which returns to the small screen with its season 4 premiere, about megachurches, on April 28 (cordcutters pay per episode).

Tongue in cheek, Bell titled his show at the Zeiterion, "The W. Kamau Bell Curve: Ending Racism in About an Hour," a play on the title of the controversial 1994 book, The Bell Curve, by Richard J. Herrnstein and Charles Murray.  Bell's essential thesis is that race is a construct, but, nevertheless, one we have to pay attention to.  Bell aims "to dismantle racism," but not race, which he believes can be turned into a constructive concept for the good of society as a whole.  Any effort on my part to summarize Bell's approach beyond that point would be inevitably inadequate.  Suffice to say, he works toward his mission with a brilliant combination of observational hilarity, multimedia presentation, and sharing

Outside 'the Z'

about his own life and family.  He does not ask that everyone agree with him on every point, he admonishes.  Rather, he has accomplished enough if people are moved to engage in meaningful dialog about race and social justice, which surely they must be.

The Zeiterion Theatre, or "the Z," is a classic building in old, cobblestoned New Bedford, Massachusetts, opened in 1923 to host vaudeville acts.  Its fortunes have waxed and waned with the history of working-class New Bedford.  The New Bedford Lyceum is a community cultural organization that dates to the city's whaling heyday.  Founded in 1828, Lyceum lectures and events aimed for “the improvement of its members in useful knowledge and the advancement of popular education.”  The Lyceum was disbanded in 1905, but revitalized by New Bedford leaders in 2016.

Bell was a smart choice to fulfill the Lyceum's public-educational mission.  New Bedford has an unusually (for not-Boston, Massachusetts) diverse population in terms of race and economic class, leading inevitably in our trying times to social tension and painfully obvious stratification.  City leaders—such as Councilman Dunn and UMass Law alumna Mali Lim, city coordinator for community education—work mightily to keep the peace, and, moreover, turn tension and diversity into productive community identity.  Bell's lecture at the Z was preceded by four public screenings and discussions in New Bedford and the surrounding area, one at UMass Dartmouth, each reflecting on a theme from Bell's CNN work.

Civil rights suit claims a right to education.The problem might be bigger.

My UMass Dartmouth colleague in history, Professor Mark Santow, also a member of the Providence, R.I., School Board, is part of litigation filed Wednesday, November 28, against the State of Rhode Island, claiming that the government is violating civil rights by failing to provide adequate education to youth in the public school system.

The complaint in Cook v. Raimondo, in federal district court in Rhode Island, where I reside, is available online from WPRO.  The suit was ably contextualized by Alia Wong for The Atlantic and covered by The New York Times.  Wong's piece, along with its sidebars and links, recounts the troubled history of claims to education rights under the U.S. Constitution and the unique if stubborn position of the United States in the world in refusing to add children's education to our pantheon of civil rights.

Personally I worry about the overuse of human rights language to enshrine the mundane as sacred and thereby downgrade basic human needs to aspirational wish lists—witness the dilapidated state of South African townships while the courts struggle to engineer economic rights into reality.  But I also readily admit that our 1789 Constitution, in part owing to its excessively burdensome Article V amendment process, has fallen behind the times on some omissions that, with the benefit of hindsight, seem to be no-brainers—such as sexual equality, the right to privacy, the freedom of information (a.k.a. right to access to information), and quite well arguably, rights to breathable air and basic education.

The Cook complaint smacks of activist litigation, aimed as much at media and policymakers as at the courts.  It gets around to its legal claims in number 121 of its 133 paragraphs.  Nevertheless, the claims are clever and worth pondering.  In five counts, the complaint neatly alleges violation of (1) the equal protection clause (mostly "fundamental interest," though there's a strong thread of "diversity" too), (2) the due process clause, (3) the privileges-and-immunities clause, and then—here's where things get spicy—(4) the Sixth and Seventh Amendments, and (5) the republican guarantee clause.

The Fourteenth Amendment claims are built upon a compelling background that heralds the Framers' recognition of education's essentiality to democracy, followed by a depressing account of how public education in civic virtue lately gave way to a bottom-line-oriented mill of standardized test preparation, woefully inadequately equipped and devoid of vision or values.  The story is downright Orwellian, as the complaint describes the plodding production of glassy-eyed sheep to populate America, children robbed and broken of the knowledge, skill, or will to challenge the status quo.  One wonders that Ayn Rand herself would not be persuaded to the cause of public education.

Added to the conventional Fourteenth Amendment angle are those thought-provoking latter claims about jury service and republican governance.  Citation to the Sixth and Seventh Amendments, as well as the federal Jury Act, focuses on that vital and rare obligation of citizen direct participation in government to assert a denial of rights both to the jurors who are ill prepared for the job and, consequently, the litigants and criminal defendants who depend on an informed jury to vindicate their rights.  In the final count, the republican guarantee clause is cited with indirect reference to the First Amendment ("free speech and other constitutional rights"), suggesting that an ill informed electorate can neither vote nor participate in government sufficiently to maintain representative democracy.  I can't help but think of the seemingly insoluble dilemma of money in politics, evidenced by the fealty to corporate donors pledged by our paralyzed, gerrymandered, and hardly-any-longer representative Congress.

Cook brings readily to mind the Juliana climate change lawsuit (and the Dutch Urgenda decision), about which I wrote recently.  Juliana seems doomed in the U.S. Supreme Court, if ever it were to get that far, despite a curiously indulgent ruling by Judge Ann L. Aiken in federal district court in Oregon (and later), sending the case on to trial.  It's overwhelmingly probable that the Juliana plaintiffs do not expect to win.  Rather, they seek to make a point, and they're doing so well.  So in Cook, too, as in a similar case on appeal in Michigan, the litigants have opined publicly that they hope to draw the attention of lawmakers and to stimulate public discussion—even to educate student-plaintiffs through the process, something also happening in the Juliana case, in which students appears as plaintiffs, and Judge Aiken relies deliberately on the work of student externs.  Consonantly, these cases stir up amicus feeding frenzies; NGOs in Cook already are jockeying for position to get their say on the public record.  (I'm not above it.)

As something of a separation-of-powers formalist, I'm troubled by the use of the courts for policy-making activism.  The courts are not designed for policy-making, and judges are not hired to be activists.  The late Justice Scalia famously and aptly lamented the prospect of nine black-robed "moral philosophers" in Washington, D.C., with lifetime appointments, making policy decisions for a purportedly democratic nation.  When I see a complaint that is drafted for public consumption and political persuasion rather than for judicial interrogation and a search for truth, I fear the strategy undermines whatever remains of the bar's reputation for professional integrity and objective clarity.

At the same time, this rise in judicial activism is a sign and symptom of something very broken about our democracy.  People are resorting to the courts because the political branches are not responsive.  Much as the Cook plaintiffs suggest, our system of government is failing to represent its constituents.  The complaint asserts, "Most social studies classes in Rhode Island do not discuss social problems and controversial ideas ...."  The complaint concludes: "A positive civic ethos requires all students to feel that they have a stake in the society and in its political system, and that institutions can work for them and their families in the future, even if these institutions have not been fully responsive to their needs in the past."

Whether for the right to breathable air or a basic education, a frustrated youth is turning to the courts not as a first resort, but as a last resort.  If in the end, none of our three branches of government delivers on the American promise—not the dream per se, but the opportunity to attain it—where will complainants go next?

The Brookings Institution opined in 2011:

Education has played an important role in the uprisings in the Middle East and North Africa with many commentators noting that educated youth have been integral to what has come to be called the “Arab spring.” However, what they fail to mention is that spending many years in school has failed to give many Arab youth a good education. These revolutions were not propagated by well-educated youth; these uprisings were spurred by the needs and demands of poorly educated youth, whose knowledge and skills do not meet the demands of a rapidly-advancing world.... [Despite near universal access to education,] there has been very low return on investment in terms of meaningful educational outcomes. Education systems throughout the region are hindered by low quality, irrelevancy and inequity.

Next stop: American Spring?

New Kramer book tells tales of civil rights

My friend and colleague, and scholar extraordinaire, Professor Zachary Kramer has just published a new book on civil rights, Outsiders: Why Difference is the Future of Civil Rights.  Knowing Professor Kramer's ability to relate a compelling narrative, I expect this book is a great read, and I can't wait to get my hot little hands on it.  Here is the description from Oxford University Press.

Contemporary discrimination has changed in important ways from the forms it took in the 1960s, the era in which our civil rights law system originated. Previously, the primary targets of discrimination were groups: African Americans, women, and Latinos, among others. The goal of the Civil Rights Act of 1964 was to integrate marginalized groups into civic life, shatter ceilings, and break down barriers. The law sought to make us better people and America a more equal nation.

And it has. Discrimination against groups still occurs, but affected groups can marshal the rights regime to target and eliminate discriminatory policies. The challenge today, however, is to protect the individual, and our civil rights laws struggle with this. The people most likely to face discrimination today are those who do not or cannot conform to the whims of society. They are the freaks, geeks, weirdos, and oddballs among us. They do and wear strange things, have strange opinions, and need strange accommodations.

Outsiders is filled with stories that demand attention, stories of people whose search for identity has cast them to the margins. Their stories reveal that we have entered a new phase of civil rights and need to refresh our vision. Instead of dealing in protected traits, civil rights law should take its cue from religious discrimination law and provide a right to personality. Outsiders seeks to change the way we think about identity, equality, and discrimination, positing that difference, not sameness, is the feature of our age and arguing for a civil rights movement for everyone.

Professor Kramer is associate dean of faculty, professor of law, and Willard H. Pedrick Distinguished Research Scholar at the Sandra Day O'Connor College of Law at Arizona State University.

Money in soccer, money in higher ed: Lazio will never be Juventus; will the UMasses ever be ‘UMass’?

This morning I was reminded of this observation about football (soccer) from The Blizzard (#25, June 2017), spoken by Swedish football manager Sven-Göran Eriksson, now coaching in China, in an interview by football writer Vladimir Novak (@VNovak13):

Well, whether you like it or not, to make a winning team you need money. One could argue that Leicester has won the Premier League title even though they invested far less money than, for example, Manchester United or other clubs, but that was an exception. Fact is, in the long run, if you want to be a big club, you need money. Bayern Munich is Bayern Munich, Barcelona is Barcelona, Real Madrid is Real Madrid and so on. You cannot build a great team without money. I think you have a good example with Lazio. When I was at Lazio, Sergio Cragnotti was the chairman and owner of the club, and he invested a lot of money. And then, after he left, all changed. Lazio are still a big club. Maybe they have the chance to win the Serie A title now and then, but they are not Juventus.

The statement reminds me of why I stopped being a baseball fan many years ago.  The Baltimore Orioles were my Lazio.  They would never be the Red Sox or Yankees.

It struck me that this almost self-evident assertion is true of more than football and baseball—indeed, is true of higher education.  And in higher education, disparate resources play an out-sized role in perpetuating socio-economic disparity and widening the gap of opportunity and wealth that afflicts the United States.

In Arkansas, where I started in academics, the public higher ed system was loosely and unofficially divided in just this way.  The well-resourced University of Arkansas—the top tier never needs a geographic locator (Fayetteville)—served the state’s elite.  The slimly resourced University of Arkansas at Little Rock served an urban working class.  And the resource-starved University of Arkansas at Pine Bluff served the rural and poor—disproportionately African American.  The same dynamic described the state’s law schools in Fayetteville and Little Rock (with few graduate options in Pine Bluff).  Incentivized by monied interests, as usual in politics, the state legislature perennially resisted calls to level the playing field.  The schools themselves were complicit in maintaining the status quo.

I thought Massachusetts would take a more progressive approach with its first and only public law school in Dartmouth.  It hasn’t, at least not yet.  Boston’s many private schools fill in the top-tier options in Massachusetts, while the law school, affiliated with UMass Dartmouth, fits in at the Little Rock-like mid-level, focusing on the working-class South Coast.  The otherwise elite “UMass” (Amherst), the state flagship, has legal research resources—for that matter, research resources in any field—superior to UMass Dartmouth’s, even with no law school there.  UMass Boston might be the state’s Pine Bluff.  Each campus knows its place and stays in its socio-economic lane.

 

There is limited revenue sharing to level the playing field in European soccer and in American baseball.  Those measures resulted when, and only insofar as, the un-level playing field was recognized as a threat to the survival of the sport business model.  That’s OK; sport is business.

Higher education isn’t business.  Higher education is supposed to be about opportunity for all those who merit it.  To be clear, this is a libertarian ideal.  Higher education is about teaching people to fish, not giving fish away.  It’s potentially the best social welfare program ever conceived.

I was reminded of this sport-ed money analogy this morning when I received a text alert that the main library at UMass Dartmouth is closing because of an air conditioning failure—again.  I wonder how often the A/C fails at UMass (Amherst).  You cannot build a great library, law school, university, or team without money.

As a society, we have to come to grips with the role of money in higher education—especially the money managed by foundations that purport independence and entitlement to opacity despite being under the direct control of supposedly transparent public universities.

We have to decide whether higher ed will continue to be part of the wealth-and-opportunity gap problem or part of the solution.  The UMass campuses east of Amherst deserve more than an occasional title.  They should all be Juventus.

#MeToo much?

On Boston Public Radio yesterday, the usually staunchly civil rights-sensitive Jim Braude, a former union attorney, and media personality I admire greatly, said he's not so worried about due process where #MeToo condemnations are concerned.  Women have suffered oppressive exploitation for so long, historically, he reasoned, that if an accused suffers an inequity here or there today, it's a sacrifice he (or she) should be willing to make in the greater arc of justice.

I've been really upset about Braude's comment.  I haven't been able to let it go.   I've been off the blog a while, while fighting toward two Jan. 31 deadlines on different projects.  But I'm jumping on here to say my piece.

In fairness, I've taken Braude out of context.  He and co-host Margery Eagan were recalling an earlier discussion about the Aziz Ansari story.  Here's the initial essay at Babe.net that stirred the pot. It's concerning; I don't mean to take away from that.  But from Damon Linker at The New Republic, here's a good opinion in The Week that explains the longer view.  I'm sure Braude doesn't favor criminal prosecution, or even civil liability, without due process.  But there are painful and meaningful consequences that fall short of those penalties, and consequences may be warranted.  More than social and professional alienation is surely called for in countless cases, cited to Time by Linker.  From a legal standpoint, these cases sorely complicate the usual innocent-until-proven-guilty imperative because of our culture's tragic record of tolerating discrimination, exploitation, and silence, and now rapid evolution of norms.  Braude fairly raises the difficult question, if not formal due process, then what?

It especially raised my eyebrows to see Margaret Atwood on the "concerned" list in Linker's column.  Here's Atwood's piece in The Globe and Mail. Atwood told the story of a fired professor at the University of British Columbia.  Her recitation included this:

[A]fter an inquiry by a judge that went on for months, with multiple witnesses and interviews, the judge said there had been no sexual assault, according to a statement released by Mr. Galloway through his lawyer. The employee got fired anyway.

It happens that at this very moment, I have charges of gender discriminatory conduct pending against me--have had, since April 2017.  I've been admonished not to talk about it, and I will not say much.  What is salient, what #MeToo and Atwood's and Linker's columns compel me to report, is that I've been told that there is no evidence to support the allegations, but I have been recommended for punishment anyway.  That was months ago, and I still await my sentencing.

In my career, I have been falsely accused of racism, falsely accused of gender discrimination, and falsely accused of other serious charges.   I have suffered real loss and real hurt as a result.  So have my family and friends.

My question for Jim Braude and anyone who would forego due process for an accused: Will you step down from your career, give up your livelihood and support for your family, upon a false allegation, because that's just a sacrifice you're willing to make for the greater arc of justice?  If I lose my job and cannot keep my daughter in college, pursuing a career in which women have been and still are marginalized, is that a worthwhile sacrifice for the greater good for gender equality?  Am I being selfish?

The World Cup of Human Rights?

I prepared this map for the Inter-Disciplinary.Net conference, Sport: Sport Places, Money, and Politics, the 5th global meeting of the Sport Project: Probing the Boundaries, this week at Mansfield College, Oxford. The map shows the movement of the FIFA Men's World Cup since the United States in 1994, illustrating FIFA's deliberate campaign to globalize the tournament and the sport.

In my talk yesterday, I traced the marriage of FIFA and human rights from Football for Hope investments in World Cup 2010 South Africa, to World Cup 2014 Brazil; on to World Cup 2018 Russia and World Cup 2022 Qatar; and at last, to a World Cup 2026 that might embrace the U.N. Guiding Principles on Business and Human Rights in the manner proposed by Professor Ruggie.

Daunting challenges are presented with respect to international legal norms on housing, labor, sexual identity, racism and equality, due process and criminal punishment, and religious and expressive freedom. FIFA's extreme demands on host countries for infrastructure development, commercial protectionism, and security have made tournament hosting more easily the province of authoritarian regimes than of Western-style democracies, and that tendency works at cross-purposes with the incorporation of human rights norms in the Western legal tradition.