Purpose Sentencing, 18 Lewis & Clark L. Rev. 96, 123 (2014). For the purposes of this discussion of racial discrimination in the legal profession, the effect is to extract these persons from the college population through collateral consequences such as ineligibility for student loans because of the conviction, and raise burdens for their admission to law school and entry in the legal profession. Similar to what happened during slavery and American apartheid, the intersection has recently been noted between academia, the private prison industry, governance of education, and financial strategies of premier American institutions in what has been termed a “youth control complex” in five links: 1. Investing in private prisons, 2. College applications, 3. Boards of Trustees, 4. Campus Security, and 5. Funding University Research. See Hannah K. Gold, 5 Links Between Higher Education and the Prison Industry: The worlds of academia and incarceration are closer than you may think, Rolling Stone, June 18, 2014, available at http://www.rollingstone.com/politics/news/5-links-between-higher-education-and-the-prison-industry-20140618#ixzz35wXkUko5
88 Michelle Alexander, The New Jim Crow, Mass Incarceration in the Age of Color Blindness, 153-56 (The New Press 2010).
89 Some encouraging progress in the improvement in graduation rates was recently noted in Robert Balfanz, John M. Bridgeland, Mary Bruce, and Joanna Hornig Fox, Building a Grad Nation: Progress and Challenge in Ending the High School Dropout Epidemic: 2013 Annual Update 5 (2013), available at http://www.civicenterprises.net/MediaLibrary/Docs/Building-A-Grad-Nation-Report-2013_Full_v1.pdf. Yet in noting that progress, the authors go on to say “While progress is encouraging, a deeper look at the data reveals that gains in graduation rates and declines in dropout factory high schools occurred unevenly across states and subgroups of students (e.g., economically disadvantaged, African American, Hispanic, students with disabilities, and students with limited English proficiency). As a result, large “graduation gaps” remain in many states among students of different races, ethnicities, family incomes, disabilities and limited English proficiencies.” Id. at 5. Even with higher graduation rates, the problem of differential quality of schools dependent on differential local financing remains. The consequence of housing segregation and voter suppression of minorities is the relative inferiority of the college preparedness of those minorities in poorer neighborhoods – and thus their ultimate preparedness for legal education and the legal profession.
90 Suzanne Mettler, Degrees of Inequality: How the Politics of Higher Education Sabotaged the American Dream, 10 (Basic Books 2014) (“Mettler”). Changes to the Pell grant program have particularly hurt historically black college and universities (HBCU’s) that play a key role in providing post-secondary education for minorities. See Ry Rivard, Fighting for Survival, Inside Higher Education, June 24, 2014, (“Other obstacles are wholly new. In 2011, the federal government limited the ability of students to use Pell Grants to a total of 12 semesters. Before, Pell had covered up to 18 semesters of college. The change was significant for HBCU students, who take longer on average to finish, and, in turn, HBCUs themselves, which lost tuition revenue because the students couldn’t afford to keep attending. About 85 percent of HBCU students receive Pell Grants, and only about a third of HBCU students graduate within six years, said Marybeth Gasman, a professor of higher education at the University of Pennsylvania who studies colleges that educate minorities. The federal government has also tightened eligibility for Parent PLUS loans, which were used by many HBCU students’ families to pay for college. HBCU leaders have called the changes, also made in 2011, a “crisis” that limits students' access to higher education. Other accountability measures by states and the federal government could punish HBCUs that have low graduation rates or have students who do poorly after they graduate. While it may be too soon to tell, HBCU watchers warn the effects could be disastrous.”) available at http://www.insidehighered.com/news/2014/06/24/public-hbcus-facing-tests-many-fronts-fight-survival#sthash.0qPdvN8S.dpbs
91 Mettler, supra note 90 at 11.
92 Id. at 12.
93 Danielle Douglas, Elizabeth Warren’s bill to refinance student loans dies in the Senate. Now what? Washington Post, June 11, 2014, available at http://www.washingtonpost.com/blogs/wonkblog/wp/2014/06/11/elizabeth-warrens-bill-to-refinance-student-loans-dies-in-senate-now-what/.
94 Report and Recommendations American Bar Association Task Force on the Future of Legal Education, 12 (Jan. 2014), available at http://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/report
Of course there are the diversity efforts in high schools, colleges, universities and law schools whether public or private. See, e.g., Society of American Law Teachers, BA to JD Pipeline available at http://www.saltlaw.org/salt-at-work/ba-to-jd-pipeline-resources/; American Bar Association Center for Racial and Ethnic Diversity, http://www.americanbar.org/groups/diversity.html. The American Bar Association has set as one of its goals: to “Eliminate Bias and Enhance Diversity,” to achieve which it aims to: “1. Promote full and equal participation in the association, our profession, and the justice system by all persons” and “2. Eliminate bias in the legal profession and the justice system.” See ABA Mission and Goals, available at http://www.americanbar.org/about_the_aba/aba-mission-goals.html (focused on expanding the presence and inclusion of lawyers who are women, minorities, LGBTQ diverse sexual orientation, and with disabilities). The national bars of color also work in this area. See, e.g., American Bar Association Commission on Hispanic Legal Rights and Responsibilities, Report on Latinos in the United States: Overcoming Legal Obstacles, Engaging in Civic Life (2013), available at http://www.americanbar.org/content/dam/aba/images/commissiononhispaniclegalrightsresponsibilities/hispanicreportnew.pdf (detailing the challenges the Latino community face in employment, housing, education, health status and access to quality health care, criminal justice, voting rights, media and Latino Images, underrepresentation in the legal profession, and workplaces tainted by bias and stereotype).
See San Antonio Independent School District et al v. Rodriguez et al., 411 U.S. 1 (1973).
Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701 (2007); Fisher v. University of Texas, 570 U.S. __ (Slip Op. June 24, 2013); Schuette v. Coalition to Defend Affirmative Action 572 U.S. __ (Slip Op. April 22, 2014).
Stacy Hawkins, Diversity, Democracy & Pluralism: Confronting the Reality of Our Inequality (October 7, 2013) Mercer L. Rev (forthcoming 2014), available at SSRN: http://ssrn.com/abstract=2336994 or http://dx.doi.org/10.2139/ssrn.2336994 (PowerPoint on file with the Society of American Law Teachers).
Oral argument of Shanta Driver on behalf of Respondent, Schuette v. BAMN, October 15, 2013, full transcript available at http://www.oyez.org/cases/2010-2019/2013/2013_12_682.
In her dissent to Schuette, Justice Sotomayor eloquently described the long history of political machinations with the goal of disenfranchising minority voters. Schuette v. BAMN, 572 U.S. —, 1-16 (2014) (Sotomayor, J., dissenting). In her dissents in Shelby County v. Holder and Fisher v. University of Texas, Justice Ginsburg eloquently describes the long history and devastating wrong-headedness of those decisions for racial justice. Shelby County, supra note 64, at 1-37 (Ginsburg, J., Breyer, J., & Kagan, J., dissenting) (Slip Opinion pages 1-37); Fisher, supra note 97, at 1-4 (Ginsburg, J., dissenting).
The historical links between U.S. civil rights struggles on the federal, state and local levels are extensive. It should be noted that the late C. Clyde Ferguson, Jr. - a former Dean of Howard Law School second African-American tenured law professor at Harvard Law School, and a former President of the American Society of International Law - helped draft key provisions of the ICERD in his capacity as a diplomat. See Howard University, About Clarence Clyde Ferguson Jr. http://www.law.howard.edu/1184; Harvard University Library, Ferguson, Clarence Clyde. Photographs, 1949-1984: Finding Aid, available at http://oasis.lib.harvard.edu/oasis/deliver/
~law00062; Clarence Clyde Ferguson, Jr., Civil Rights Legislation 1964: A Study of Constitutional Resources, 24 Fed. B.J. 102, 104-105 (1964).
Bond v. United States, 572 U. S. ____ (June 2, 2014). See Benjamin G. Davis, Bond Thoughts: Federalism Aggression on Human Rights, SALTLAW/BLOG (June 2, 2014) available at http://www.blog.saltlaw.org/bond-thoughts-federalism-aggression-on-human-rights/. An example of the negative attitude toward human rights treaties of scholars is presented in Julian Ku & John Yoo, The Supreme Court Misses Its Chance To Limit The Treaty Power, Forbes.com (June12, 2014) available at http://www.forbes.com/
sites/realspin/2014/06/12/the-supreme-court-misses-its-chance-to-limit-the-treaty-power/. This negative attitude is not limited to scholars as we note in our “A short primer on U.S. federalism and the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) prepared at the request of the US Human Rights Network” attached as Annex A. Even in the 1970’s the direct presence of human rights in our constitutional structure, let alone based on treaty, was noted. ) See Jordan Paust., Human Rights and the Ninth Amendment: A New Form of Guarantee (1975). 60 Cornell L. Rev. 231 (1975); U of Houston Law Center No. 2014-A-34. Available at SSRN: http://ssrn.com/abstract=2448447 (“The new form of human value guarantee considered here is not really new at all. It has suffered, however, as to its nature and purpose. The alternative basis for the protection of fundamental human values is the ninth amendment-one of the shortest, but perhaps one of the most important, declarations in the United States Constitution. It states that “[t]he enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people.” Its utility lies not in asking how internationally recognized rights can be “implemented” into our domestic law through new legislative acts, but in recognizing that basic human rights are already a viable part of the constitutionally guaranteed rights of Americans.” Id. at 234)
Julianne Hing, Wanted: Disgruntled Asian-Americans to Attack Affirmative Action, Color Lines (Apr. 25, 2014 available at http://colorlines.com/archives/2014/04/wanted_disgruntled_asain_americans_to_attack_affirmative
105 “While African Americans and Hispanics are overrepresented among the poor, whites still constitute the majority of families . . . .” Accordingly, low-income minority students still would have to be chosen disproportionately from the pool of low socioeconomic status students in order to achieve a critical mass” Amicus Brief of SALT to the Supreme Court in Schuette v. Coalition to Defend Affirmative Action, 22 (citing Anthony P. Carnevale & Stephen J. Rose, Socioeconomic Status, Race/Ethnicity, and Selective College Admissions 153, in America’s Untapped Resource: Low-Income Students in Higher Education (Richard D. Kahlenberg ed., 2004), available at http://tcf.org/assets/downloads/tcf-carnrose.pdf; Nikole Hannah-Jones, A Challenge to the Idea That Income Can Integrate America’s Campuses, The Atlantic Wire, June 24, 2013, http://www.theatlanticwire.com/politics/2013/06/supreme-courtaffirmative- action-class-income/66541/ (“[C]olleges would have to recruit seven to eight poor white students to get one black or Latino student.”).
106 A point precisely made by Justice Ginsburg. See Fisher v. University of Texas 570 U.S. ___, 1-4 (Slip Op. June 25, 2013) (Ginsburg, J., dissenting).
107 Professor Vinay Harpalani makes a strong case for how universities can use the diversity rationale to defend their race-conscious admissions policies by “1. Emphasizing the educational benefits of diversity within racial groups and intragroup support among minority students; and 2. Highlighting the educational benefits of diversity that occur within race-conscious campus spaces, such as ethnic studies departments, cultural centers, and residence halls devoted to African American experiences, in addition to benefits of classroom diversity. More broadly, this Article calls upon universities to embrace race-consciousness — not only in their admissions policies but also in their educational missions. By doing so, universities can more readily illustrate how race-conscious policies and programs are tangibly related to the educational benefits of diversity.” Vinay Harplani, See Narrowly Tailored but Broadly Compelling: Defending Race-Conscious Admissions after Fisher, 45 Seton Hall L. Rev._, (forthcoming 2014), available at SSRN: http://ssrn.com/abstract=2416838.
108 Affirmative Action: State Action April 2014, National Conference of State Legislatures, available at http://www.ncsl.org/research/education/affirmative-action-state-action.aspx.
109 See Jordan Paust, Race Based Affirmative Action and International Law, 18 Mich. J. of Int’l L.659, 665 (Summer 1997). This article provides an excellent overview of the interaction between Articles 1(4), 2(2) and 5 as well as the U.S. Reservations, Understandings, and Declarations regarding the ICERD, the International Covenant on Civil and Political Rights, and the U.S. Constitutional structure. See Gay J. McDougall, Racial Discrimination as a Violation of International Law: International Standards and Mechanisms, Beyond Racism 439-40 (Charles V. Hamilton, et al., Eds., 2001).
110 Paust, supra note 109, at 671 (emphasis added and footnotes omitted).
111 Id. at 673
113 Id. at 674. The author goes onto examine words from the Constitution such as “equal” and “protection” in light of these treaties in a manner that is completely absent from the Supreme Court analysis. Id. at 675.
114 See, e.g., Brief of Amici Curiae Human Rights Advocates, et al., in Support of Respondents, Fisher v. Texas, August 10, 2012; Brief of Amicus Curiae the Society of American Law Teachers, August 13, 2012; http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/11-345.htm.; Brief of Amicus Curiae the Society of American Law Teachers in Support of Respondents dated August 30, 2013, available at http://www.saltlaw.org/
Brief of Amici Curiae Human Rights Advocates, et al., in Support of Respondents, Fisher v. Texas, August 10, 2012, supra note 114, at 2.
Id. at 9-14.
Id. at 14-23.
Marjorie M. Shultz & Sheldon Zedeck, Development and Validation of Predictors for Successful Lawyering, 2009 (identifying twenty-six factors for effective lawyers and testing tools that supplement the LSAT and are race neutral); Achieving Diversity, supra note 5.
John Nussbaumer & E. Christopher Johnson, The Door to Law School, in Institute for Inclusion in the Legal Profession, IILP Review 2012: The State of Diversity and Inclusion in the Legal Profession 46, 47 (2012), available athttp://www.theiilp.com/Resources/Documents/IILPReview2012.pdf.
Brown, supra note 50.
Achieving Diversity, supra note 5.
Letter of 635 Law Professors to the ABA Section on Legal Education and Admissions to the Bar dated October 8, 2013, available at http://www.americanbar.org/content/dam/aba/administrative/legal_education_and
American Bar Association Commission on Racial and Ethnic Diversity in the Profession, Miles to Go 2000: Progress of Minorities in the Legal Profession (2005)..
See http://www2.law.columbia.edu/civilrights/ (using data from the Law School Admissions Council).
Achieving Diversity, supra note 5.
Id. at 6 (data current as of 2012).
For state judges see, Diversity of the Bench, State Judges, American Judicature Society (2009) available at http://www.judicialselection.us/judicial_selection/bench_diversity/index.cfm?state=;.
For federal judges see, Table 1, Composition of the Judiciary, The Changing Face of the Federal Judiciary, Brookings Institution (August 2009) available at http://www.brookings.edu/~/media/research/files/papers/2009/8/federal%20judiciary%20wheeler/08_federal_judiciary_wheeler.pdf.
See Letter of the National Lawyers Guild, SALT and other legal and human rights organizations to Senator Coons with regard to the Senate vote against Mr. Debo Adegbile’s confirmation as Assistant Attorney General for Civil Rights (March 13, 2014) available at http://www.saltlaw.org/wp-content/uploads/2013/07/ADEGBILE-FINAL-Letter-MAR-2014.pdf.
This dearth is particularly severe in the field of international law where the American Society of International Law is examining how to increase the inclusion of minorities in international law and scholarship by minorities in the American Journal of International Law.
Meera E. Deo, Looking Forward to Diversity in Legal Academia (June 12, 2014). Berkeley Journal of Gender, Law & Justice, Vol. 29, No. 2, p. 352, 2014; Thomas Jefferson School of Law Research Paper No. 2449850. Available at SSRN: http://ssrn.com/abstract=2449850; Achieving Diversity, supra note 5.. The particular burdens of women of color in academia at the intersection of race, gender and class are presented in Gabriella Gutiérrez y Muhs, Yolanda Flores Niemann, Carmen G. González, Angela P. Harris , ed., Presumed Incompetent: The Intersections of Race and Class for Women in Academia (Utah State University Press 2012).
See generally http://reducingstereotypethreat.org/definition.html.
Yellow Paper Series, Written in Black & White Exploring Confirmation Bias in Racialized Perceptions of Writing Skills, Nextion, 2014 0404, available at http://www.nextions.com/wpcontent/files_mf/
Katherine L. Milkman, Modupe Akinola& Dolly Chugh,, What Happens Before? A Field Experiment Exploring How Pay and Representation Differentially Shape Bias on the Pathway into Organizations (April 23, 2014), available at http://ssrn.com/abstract=2063742 or http://dx.doi.org/10.2139/ssrn.2063742.
Victor D. Quintanilla, Critical Race Empiricism: A New Means to Measure Civil Procedure, 3 Irvine L. Rev. 187 (2013) (“Over time, critical race empiricists may reframe the debate, shifting onto those who laud Iqbal the burden to justify the existence of a legal rule that opens the courthouse door to implicit bias while closing the courthouse door to stereotyped-group members harmed by modern prejudice.”); Victor D. Quintanilla, Beyond Common Sense: A Social Psychological Study of Iqbal's Effect on Claims of Race Discrimination, 17 Mich. J. Race & L. 1 (2011). (“Scholars warned that Twombly and Iqbal would move the pivotal point at which courts screen cases earlier in time from summary judgment to the motion to dismiss, and that this move would be pronounced in employment discrimination cases. The motion to dismiss would, in effect, become the new summary judgment motion. The present research demonstrates that these concerns are well founded. For Black plaintiffs' claims of race discrimination, many courts are rigorously applying 1qbal as if the Court called for a heightened pleading bar. Iqbalhas resulted in elastic pleading standards that are difficult to apply consistently. In short, Iqbal has created legal uncertainty, which is especially pronounced when adjudicating claims of race discrimination in the
workplace.”) Id. at 43.
Laura Beth Nielsen, Robert L. Nelson & Ryon Lancaster, Individual Justice or Collective LegalMobilization? Employment Discrimination Litigation in the Post Civil Rights United States, 7 J. Empirical Legal Studies 2, 175 (2010) (“Our analysis suggests that employment discrimination litigation maintains law’s jurisdiction over claims of workplace discrimination while not providing a significant remedy
or an authoritative resolution in most cases.”); See also Laura Beth Nielsen & Robert L. Nelson, Rights Realized? An Empirical Analysis of Employment Discrimination Litigation as a Claiming System, 2005 Wis. L. Rev. 663.
Domestic arbitration of racial discrimination claims or other claims in employment is a pervasive aspect of the civil justice system of the United States. Issues of the absence of diversity in the practitioners and arbitrators in this arena remain understudied. A recent study – granted for international arbitration in the US – and the experience of the ABA Section of Dispute Resolution suggest that underrepresentation remains a significant concern in the Alternative Dispute Resolution community as well as the judiciary. See Benjamin G. Davis, American Diversity in International Arbitration 2003-2013, ____Am. Rev. Int’l Arb.___(forthcoming 2014), available in pre-publication draft (December 13, 2013).at http://ssrn.com/abstract=2364967 or http://dx.doi.org/10.2139/ssrn.2364967
The transcripts of the hearings of the ABA Commission on Hispanic Legal Rights and Responsibilities (as one example) are replete with the kinds of difficulties this one of the several racial minorities confront in America. Transcripts available at Archives: http://www.americanbar.org/groups/diversity/commission_on_hispanic_legal_rights_responsibilities/HearingArchives.html (For example, “On the demand side, Hispanics experience conditions that make them unusually vulnerable to·discrimination and exploitation; while on the supply side, Latinos and others with the linguistic and cultural expertise often required to effectively represent these vulnerable populations are extremely limited,” Statement of Janet Murguia, Commissioner and ·President and CEO of the National Council of La Raza, Transcript of the Midwest Regional Hearing, November 12, 2010 at page 21available at http://www.americanbar.org/content/dam/aba/images/commission_on_hispanic_legal_rights_responsibilities/chicago.pdf.). For an example of the indignities Hispanics confront in daily life, see Judge dismisses part of DOJ case, sets the rest for trial, The Times News, Burlington, North Carolina, June 21, 2014, (“The U.S. Justice Department accused [Sheriff] Johnson of violating the constitutional rights of citizens and legal residents by detaining and arresting Latinos without probable cause. Among the government's claims is that Johnson ordered special roadblocks in neighborhoods where Latinos live, during which those with brown skin were stopped while whites were waved through.”) available at http://m.thetimesnews.com/news/top-news/judge-dismisses-part-of-doj-case-sets-the-rest-for-trial-1.336372 For an example of the horrific attacks on the human dignity of Hispanics in death that the public-private interaction can lead to is this case of Hispanic migrants not being treated with minimal dignity in death in being buried in mass graves. See Mark Collette, Mass Graves of Migrants Found in Texas, ABC15 Arizona, June 19, 2014, (“FALFURRIAS, TX - Unidentified migrants who died entering the United States were buried in mass graves in a South Texas cemetery, with remains found in trash bags, shopping bags, body bags, or no containers at all, researchers discovered.”) available at http://www.abc15.com/news/national/mass-graves-of-migrants-found-in-texas.
These types of cases are inconsistent with CERD Gen. Rec. No. XXX (Rights of Non-Citizens) which clarifies that non-citizens are due all the same basic human rights despite the state’s ability to control sovereign borders. This CERD General Recommendation clarifies that all states have the responsibility to treat all persons within their jurisdiction in accordance with human rights and fundamental freedoms even though they regulate cross-border migration. On the rights of non-citizens in the U.S., see, e.g., The Boston Principles on Economic, Social, and Cultural Rights of Non-Citizens, available for download at: http://www.northeastern.edu/law/academics/institutes/phrge/publications/boston-principles.html and Lewis, Hope and Rosenbloom, Rachel E., The Boston principles: an introduction (2011). School of Law Faculty Publications. Paper 26.http://hdl.handle.net/2047/d20001183. Latina/o and Asian-American law teachers and scholars have had significant influence in trying to move US immigration law and policy forward despite the racially-marked legacy of that law and policy. Lack of diversity in legal and other academia we discuss will mean a significant disservice to growing segments of the US population.”
Cliven Bundy: Are Black People “Better Off As Slaves” Than “Under Government Subsidy?”April 24, 2014, Huffington Post, http://www.huffingtonpost.com/2014/04/24/cliven-bundy-racist_n_5204821.html; Clippers Owner Donald Sterling to Girlfriend: Don't Bring Black People to My Games http://youtu.be/YhT6d5fMhzI.