SCOTUS: Referring to a Black Man as a “Boy” is Not Racial Discrimination

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Two conservative Alabama juries made history by making a decision in a racial discrimination case in favor of African-American plaintiffs and rewarding them damages, only to see their efforts squashed by a U.S. Court of Appeals decision. Apparently, calling an African American man in the Deep South a “boy” is still acceptable and not cause for racial discrimination.

Two African-Americans — Ash and Hithon — filed a racial discrimination suit against Tyson Foods Inc. when the company promoted two lesser-qualified white males to fill shift manager positions. The Tyson plant manager who made the disputed hiring decision used to refer to Ash and Hithon each as “boy.”

Not only did the Court of Appeals decide that the use of “boy” in Deep South Alabama to refer to African-American men was not evidence of racial discrimination, but it also held that the pretext for racial discrimination can only be established if the disparity in qualifications “jump off the face and slap you in the face.”

“The usages were conversational,” the majority explained. Even if “somehow construed as racial … the comments were ambiguous stray remarks” that do not serve as proof of employment discrimination. Now that is indeed a slap in the face of a history where whites referred to grown black men as boys, in order to assert their own superiority (manhood).

“Boy” was not just used as an offensive and derogatory term in the racist South. It was used exclusively to refer to grown African-American men. Holding otherwise is just a blatant denial of history. The Court of Appeals holds that “boy” would need another identifier such as “white” or “black” to become a racial slur, but that hardly makes any sense.

There may be some home left in the rule of law though. The United States Supreme Court ruled on an appeal for the same case that the use of the word “boy” on its own is not enough evidence of racial animus, but that the word is also not benign. The meaning can depend on what context and tone is used by the speaker. Used in the workplace by an employer toward his employees, “boy” is no longer a benign word but becomes a degrading racial epithet. The Supreme Court also questioned the standard used by the Court of Appeals for determining pretext as “unhelpful and imprecise.”  So once again, the Court of Appeals may just receive a smack from the Supreme Court, if they take up the matter.

Photo Credit: dbking

Dissenting: On Cultural Elitism in the Law

Posted on by Prerna in Human Rights, Racism | Leave a comment

Drug Enforcement Agency agents, suspecting Juan Pineda-Moreno of growing marijuana, snuck onto his property in the middle of the night and planted a GPS device on the bottom of his Jeep. Pineda-Moreno admitted to the marijuana charges (lets not get into the merits of drug laws against cannabis growth and possession), but has challenged the government’s evidence obtained through GPS. The US Ninth Circuit Court of Appeals has now twice held that what the DEA did was perfectly fine.

To summarize, USA v.s Juan Pineda-Morena says that the government can step into your garage without a warrant, put a surveillance device on your car and in doing so, is not violating your privacy rights. The decision follows others where the once-liberal Ninth Circuit court effectively brutalized the Fourth Amendment.

The case begs the question of race and class. We know whose trailers and garages are so close to the public domain that agents can tread them without any real violation since neighbors do it all the time. We also know who lives in mansions and gated communities, and hence less susceptible to this particular encroachment of privacy.

I think Chief Judge Kozinski’s dissent is really important and makes a strongly-worded point made in few other judicial opinions:

There’s been much talk about diversity on the bench, but there’s one kind of diversity that doesn’t exist: No truly poor people are appointed as federal judges, or as state judges for that matter. Judges, regardless of race, ethnicity or sex, are selected from the class of people who don’t live in trailers or urban ghettos. The everyday problems of people who live in poverty are not close to our hearts and minds because that’s not how we and our friends live. Yet poor people are entitled to privacy, even if they can’t afford all the gadgets of the wealthy for ensuring it. Whatever else one may say about Pineda-Moreno, it’s perfectly clear that he did not expect—and certainly did not consent—to have strangers prowl his property in the middle of the night and attach electronic tracking devices to the underside of his car. No one does.

When you glide your BMW into your underground garage or behind an electric gate, you don’t need to worry that some-
body might attach a tracking device to it while you sleep. But the Constitution doesn’t prefer the rich over the poor; the man who parks his car next to his trailer is entitled to the same privacy and peace of mind as the man whose urban fortress is guarded by the Bel Air Patrol. The panel’s breezy opinion is troubling on a number of grounds, not least among them its unselfconscious cultural elitism.

I affirm.

Race in America

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I almost forgot to mention that I have also started blogging for the new blog at – Race in America, with a lot of other awesome writers from many walks of life. I’m pretty excited about it. You’d notice I mostly focus on criminal justice, Hollywood white-washing, and immigration, along with the occasional piece on terrorism, but I hope to cover a lot more ground soon.

Also, given the recent spate of hate and fear-mongering, I’m often quite confused whether to put a post under the Immigrant Rights section or the Race one so what I do nowadays is that if a post has racial analysis, it gets sent to Race in America rather than Immigrant Rights.

Some recent pieces of interest:

Criminal Justice




“But I’m Not Racist; I Have Black Friends” – An Answer

Posted on by Prerna in Racism | Leave a comment

I bet you’ve heard someone use that statement as a defense, at least once in your lifetime. Heck, “I have black friends” even made the Urban Dictionary as a phrase used to qualify racist words and behavior.

When it comes to playing the race card, there is little doubt that “I have black friends” is right up there with the Joker and a sibling to “I’m not racist but…” on most days. But ultimately, there’s been a failure on our part to communicate that racism is not merely about relationships, words or emotions. These are merely elements or tools used to entrench racism. Having racial and ethnic minority friends does not excuse racist words and behavior. Someone who uses the “I have black friends” card is misinformed and misunderstands racism as just individual acts.

In fact, racism is not merely prejudice or bigotry. It is not merely a belief or a doctrine that can be corrected by having friends who have a slightly darker skin color. Racism is discrimination backed by institutionalized power. It is systemic. Racism is an ongoing inter-related set of social processes, backed by actions and discourses, that favors a dominant group over other legally constructed minority groups.

I wonder if a racial minority accused of racism can get away with saying “I’m not racist, I have white friends!” Probably not.

So what do we do about the tea-bagger who has a black friend? We must confront individuals about their offensive words and acts in a way that forces us to also confront the system. It is probably more strategic to say “I think what you said or did was racist” rather than “you are racist.” The former focuses on actions whereas the latter targets the actor. If s/he says “I’m not racist, I have black friends,” it is easier to counter that you aren’t talking about her or his interpersonal relationships with racial and ethnic minorities. You are talking about how her or his words and actions perpetuate racism.

Photo Credit: the Italian Voice

The Case for Race-Based Jury Nullification

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Should a juror be allowed to return a non-guilty verdict even if s/he is convinced that the defendant is guilty of the crime in question?

Such a move is called jury nullification. It may be a misleading term for it implies a nullification of the law. Not quite. The Fourteenth Amendment guarantees all persons due process and equal protection of the laws, and this has been applied to also mean that any person charged with a crime is afforded a jury of her or his peers.

George Washington Law professor Paul Butler argues that in some cases, the race of a black defendant is a “legally and morally appropriate factor for jurors to consider in reaching a verdict of not guilty or for an individual juror to consider in refusing to vote for conviction.” He reached this conclusion while working at the U.S. Attorney’s office, and recounted a particular experience in his book, Let’s Get Free: A Hip-Hop Theory of Justice, where Butler admits that he was arrested, charged, and went to trial for simple assault in D.C. Superior Court, and how a D.C. cop took the stand and lied. Thankfully, the jury acquitted him of charges. That’s how Butler observed that sometimes, a black juror would not send another black man to jail even when the “evidence” was stacked against the defendant.

It’s certainly a controversial opinion that has many critics, especially those who claim that such an approach is disrespectful to the letter of the law. But laws are not made and applied in isolation of human experience and conscience. If all the jury had to do was apply the rule of law based on the facts, then criminal justice could be done through computers with input and outputs to fulfill the function of a “fair and impartial” jury. The framers of the Constitution considered jury nullification by law to be one of the defenses against government encroachment on individual liberty. By a logical extension, there is nothing wrong with allowing African-American and Latino communities to adjudicate matters according to their own standards especially when the traditional criminal justice system has certainly done them disproportionate dis-service.

Of course, there are limitations to race-based jury nullification. It doesn’t tell us what to do when the perpetrator is white and the victim black, as in the case of the controversial Oscar Grant trial. It also assumes that just because someone is a member of a minority group, s/he is more than likely to deliver an acquittal based on race, which is not necessarily true. There’s also a danger in entrenching identity politics into our sense of justice, but the system already privileges one race over another.

After all, flexibility and crime nullification is already afforded to the most privileged in our society, ranging from the architects of torture memos to the finance crooks at Lehman Brothers and AIG to the environmentally-destructive BP. These people should face criminal charges for destroying so many lives, but they have a certain privileging. In the meantime, another black teenager will go to prison for marijuana possession and along with other imprisoned marijuana users, cost taxpayers $1 billion per year.

I certainly don’t want non-violent drug offenders and prostitutes in prison. I am astounded by the fact that one in every 100 Americans has been incarcerated. And I cannot wrap my head around the increasing criminalization of immigrants and asylum seekers.

It essentially boils down to what sort of criminal justice system we want in this country. Do we want a criminal justice system based on punishing every violation of the law, even when the law does not make much sense? Or do we want a system that is flexible and affords a jury of peers some right to change the outcome of a trial based on what seems fair to their community?

Instead of arguing for race-based jury nullification, what we want is a more fair application of laws when it comes to minority groups. That’s the least we can do to put the aspect of justice back into our system of criminal justice.

What if a Muslim Had Taken Hostages at Discovery Channel?

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When white men like Joseph Stack run their plans into federal buildings, they are insane and suicidal. When Timothy McVeigh blew up a  federal building in Oklahoma City, no one dared to say that his actions reflected the collective thought and behavior of all Caucasians. But Allah forbid, a Muslim male takes over a building. All hell would break lose against everyone perceived as a Muslim in America.

Interestingly, an Asian-American male taking hostages in a building does not spark the same irrational collective fear and hatred in the hearts of Americans as a Muslim army officer would for opening fire on some troops. This is not to say that the media is treating the Discovery Channel gunman James Lee in the same way it would a white male like Joseph Stack.

No, James Lee was acting out of a hysterical radical environment agenda that had nothing to do with his ethnicity or religion. His individual actions and manifesto will be used as a weapon against pro-environmental groups to discredit their claims. Watch out Al Gore! But we won’t view all Asian-Americans with the same contempt and suspicion that is faced by Arab-Americans and South Asians in America.

If a Muslim of Arab or Asian descent committed such an act, the entire community would be held responsible. They hate us. They also hate our animals. They shall not have a mosque (rather, a cultural center) anywhere near a wildlife refuge. They must be put into internment camps. And insert other moralistic oversimplifications here.

Mainstream media reports and blogs mostly refer to Discovery gunmen James Lee as “wacko” and “crazy” instead of extending the culpability of his actions to all Asian-Americans. He acted alone and irrationally. There is no rationality in his actions, and hence no blame is extended to any particular ethnic group or religion. But is there a connection based on mental health issues between the actions of James Lee and that of Seung-Hui Cho, the Virginia Tech gunman who killed over thirty college students in 2007?

Angry Asian Man would decry any such connection. Reappropriate draws a comparison that goes beyond ethnicity to draw out attention to how themes like alienation and oppression resonated with both gunmen. Of course, there is little chance that a happy-go-lucky person who is mentally healthy would take anyone hostage. James Lee had death-wish of sorts, and our job is to make sure that seeking help is not a stigma.

Machete — The First Latino Action Hero?

Posted on by Prerna in Movie Reviews, Racism | Leave a comment

“There are laws. And then there’s what is right,” says Jessica Alba in Machete, the new Roberto Rodriguez flick that hit the cinemas this past weekend amidst much controversy.

As Roberto Rodriguez movies go, Machete is intentionally over the top, edgy, sharp (no pun intended), violent, gory and certainly not easy on the eyes. It’s probably not for the likes of Arizona Governor Jan Brewer who is already paranoid about beheadings in the desert.

Earlier this year, a leaked script pointed toward a race-based war theme in the movie, supposedly vilifying whites and promoting Latino mob violence against them. Machete is not so much about race, as it is about class. The crooks are the capitalists who want to benefit from cheap Mexican labor and denigrate undocumented immigrants to win elections, and they happen to be mostly white. Sorry Roberto Rodriguez, but didn’t you get the memo that a B-grade slasher flick is only appropriate when a white guy or girl goes around killing others? See The American, Kill Bill and so many other Hollywood A-grade flicks.

Machete, played by Danny Trejo, will drive the tea baggers crazy. He is an undocumented immigrant who cannot be deported. He crossed the border; the border did not cross him. He not only steals jobs that Americans want to do but gets the hot girls that should be reserved for American citizens. And heralded as the first Latino action super-hero, he shall never die. Move over Terminator. It’s the ultimate nativist nightmare.

Of course, far scarier than Machete are the white nationalists protesting the movie with their very real machetes. A movie uprising about  undocumented Latinos is so scary.

Machete does pose interesting questions about media representation. The movie ultimately falls into the same trap of Mexploitation that it sets out to criticize. Why are Latinos only depicted as “illegal” immigrants, pregnant teenage girls and welfare mothers, criminals and gangsters in Hollywood movies, and mostly always somehow pose a threat to the dominant culture? With Machete, Rodriguez does not change this picture, even though his approach is a parody on white fear-mongering. But there is some reconciliation in the fact that he does attempt to change the dominant narrative with a successful commercial movie about Latinos with Latino actors in the lead that has crossover appeal.

There are good movies. And then there are ones that should be watched for entertainment value. Machete falls in the latter.

American Taliban 1, USA 0

Posted on by Prerna in Politics, Racism | Leave a comment

Having dark skin makes one a Muslim in tea-bagger land.

A new poll shows that 1 in 5 Americans think that President Barack Obama is a Muslim. A Puerto Rican man cannot walk through a crowd of anti-mosque protesters without people questioning his religion and place in society. Much like the President of the United States, he is also automatically castigated as a foreigner due to the color of his skin.

The “mosque” on “Ground Zero” controversy is another round of theatrics from the tea-baggers, and like all their theatrics, this one is also full of exaggerations. Simply put, they are protesting a proposal that aims to build a cultural center designed to promote interfaith relations a few minutes away from the site of the 9-11 tragedy. But from the loud bellowing of protesters, one would think that a gigantic mosque the size of the Empire State building is being built on the graves of 9-11 victims from taxpayer money. No, the issue is rather dull and blown out of proportion.

Critics say that the debate over the building of a mosque is a distraction from the more important 9-11 First Responders health care bill that was killed by the GOP. But the issue is not a distraction. The hatred displayed by the anti-Muslim protesters stems from the same conditions that allow a majority of Americans to support racial profiling in Arizona and compels the GOP to use the issue of birthright citizenship as an electoral device: a fear of the Other.

America is undergoing a period of great recession and present unstable conditions allow demagogues to exploit socially divisive issues for political means. African-Americans, Latinos and Muslims are some of the chosen bogeymen “Others” during this era of hate. In the “Ground Zero mosque” narrative, the mosque represents a provocation much like the hijab: it stands for “global Islamic terrorism” and it need not make any sense. On one hand, bigotry on full display in broad daylight is both painful and scary for many people. On the other hand, it tells us that a post-racial America is a fictional entity and we have a long way to go when it comes to matters of race.

For the sake of argument, if the perpetrators of 9-11 did indeed hate us for our freedoms as has been purported time and again, then we are losing a war supposedly waged to preserve those very freedoms? We are losing the freedoms enshrined in the United States constitution and the winner is not a foreign enemy combatant. The winner is the American Taliban.

America Flunks At Teaching Black Males

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Here’s an alarming statistic for “post-racial” America: Only 47 percent of African-American men graduated from high school in the 2007-2008 school year. In fact, African-American men are far more likely to do time in the criminal justice system than graduate from college.

According to a new report, Yes We Can: The Schott 50 State Report on Public Education and Black Males 2010, American public schools are failing a majority of black males. New York City, the district with the nation’s highest enrollment of Black students, only graduates 28 percent of its Black male students with Regents diplomas on time. This is a national education crisis but it also presents a crisis for the criminal justice system.

During my visit to the District of Columbia county jail last week as part of the George Washington Law public interest program, I discovered that the correctional facility was intricately linked to the  public high schools in Southeast DC, which comprises mostly African-Americans. A significant number of indigent African-American students who attend the school district are likely to drop out of school and end up in the district jail at one time or another. Indeed, reports indicate that crime and poverty are linked in the District of Columbia.

“Taken together, the numbers in the Schott Foundation for Public Education’s report form a nightmarish picture ? one that is all the more frightening for being both true and long-standing,” said Geoffrey Canada, President and CEO of the Harlem Children’s Zone, who provided the foreword in the report. “These boys are failing, but I believe that it is the responsibility of the adults around them to turn these trajectories around. All of us must ensure that we level the playing field for the hundreds of thousands of children who are at risk of continuing the cycle of generational poverty. The key to success is education.”

High school graduation is a key indicator to success but that is unlikely without financial resources, consistent parental involvement, discipline and stability in family life. Combined with the high incarceration rates of African-American males due to mostly non-violent drug offenses, the criminal justice system is doing no favors to younger African-American minds. Visiting parents in prison sends the wrong message to young people: that they are likely to end up in prison just like their parents. Without the necessary financial and familial support, students are more likely to lack discipline, drop-out of high school, commit crimes and end up in a correctional facility much like their parents, thereby continuing the cycle of poverty and violence.

Other conditions for failure include watered-down curricula, inadequate and over-crowded facilities and lack of quality instruction, all of which could be fixed by increased investment in education.

The report does give us various policy recommendations with respect to a state like New Jersey, which has a high percentage of African-American graduation rates at 65 percent. What makes New Jersey special? According to Diverse the higher graduation rate is likely due to greater per pupil spending and instructional time that was a result of the 1981 Abbot v. Burke lawsuit, which enforced reforms to address inadequate education to students in poor urban communities across New Jersey.

Statistics play a powerful role in shaping perceptions and defining policies. Instead of dismissing the low graduation rates of black males and playing into the hands of those who buy into stereotypes on the inherent criminality of African-American men, we have to use the data to make corrective systemic changes. Following the lead of New Jersey, investing in quality education is one of the fixes that states can take to improve African-American graduation rates, which should in turn reduce their incarceration rates. Reforming the criminal justice system to reduce sentencing disparities and treat drug abuse as a medical rather than criminal problem is another way to make a positive impact.

The grim rates of high school graduation tell us that there is still substantial progress to be made in order to correct systemic racial disparities in an America that is nowhere near post-racial.

Here’s the good news: there’s currently more black men in college than in our criminal justice system.

Photo Credit: rappaportcenter

The Truth About the Asian-American Model Minority

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The jury’s still out on the fabled Asian-American success story.

Sure, the statistics might tell you otherwise. Once again this year, Asian-American men topped the charts in the latest U.S. Bureau of Labor Statistics on earnings for the 2nd quarter of 2010, making $901 in median weekly earnings. Asian women were second at $854, followed by white men at $838. Not surprisingly, those with advanced degrees, who were working in the financial or business sectors, had the highest salaries.

Yet the image of Asian-Americans as a homogeneous group of high achievers ignores the diversity of Asian-American experiences. Statistics like those above mostly help to perpetuate the model minority myth, when in fact there are as many Asian-Americans above the curve as there are below it. While some South Asians and Northeast Asians are doing particularly well, the same is not true for the vast majority of Southeast Asians, including the Hmong or Cambodians.

Let’s break down the demographics further. For example, a quick peek at the stats shows that Asian Indians have the highest level of educational attainment with 64% holding bachelor’s degrees. Conversely, Laotians, Cambodians and Hmong have the lowest rates of high school completion. The same disparities hold for family and personal median incomes. Lumping together all Asian groups into one category masks the poverty and ignores the academic difficulties of certain subgroups.

The success of more established Asian-American communities also disguises the struggles of recent immigrants. Currently, Asian Americans and Pacific Islanders make up close to 5% of the U.S. population, but comprise 12% (1.5 million) of the undocumented immigrant population. Asian Americans are not only the fastest-growing minority population in many states, but an estimated 40-50% of the population has only limited English-language proficiency. Yet thanks to the model minority myth, they lack the benefit of policy initiatives such as targeted bilingual education programs.

The Bureau of Labor Statistics also obscure the fact that return on investments is, overall, substantially lower for Asian Americans than for white men. Those who possess only an undergraduate degree tend to have higher unemployment rates than whites with the same level of education. In fact, Asian Americans need more years and higher quality of education to attain the same wages that a white male earns.

So there’s nothing to worry about here — white males aren’t falling behind in the rat race. But let’s remember: the relative success of some individuals doesn’t mean we should ignore those who fail to fit our stereotypes.

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