The topic of transracial adoption is one I am intimately familiar with. Two of my white father’s adopted siblings are black. My father often spoke about the identity issues they faced by having been adopted into a white family. While my unique perspective helps me understand the arguments of those against TRA, I often wonder – is there some middle ground in this debate, or will children adopted by parents of a different race always struggle to find some form of cultural identity? And further, considering our country’s foster care crisis, is it better for a child to languish in the foster care system rather than be placed with parents of a different race? The question is essentially this – do the benefits of TRA outweigh its disadvantages?

One important factor in the TRA debate is the foster care crisis in the United States. According to the Adoption and Foster Care Analysis and Reporting System, of the estimated 408,425 children in foster care in 2010, 29% were black, while 41% were white. While these numbers may not seem troubling at first glance,  it is important to note that the number of black children exiting the foster care system was much lower than that of white children. Of the total children who exited the foster care system in 2010, 43% were white while only 27% were black. These statistics show that while the percentages of white and black children in foster care may appear to be comparable, on the whole, black children languish in the foster care system longer than white children. Between 2000 and 2010, the number of black children in foster care generally decreased by about 10%. While this is certainly a positive change, the percentage of children in foster care from other minorities increased. Thus, there is a serious need for placement among children of all races, and TRA can be seen as a positive force in addressing this need.

In 1948, the first documented transracial adoption took place when a white family from Minnesota adopted a black child. Historically, TRA was banned due to racial bias, as was as any other type of interracial practice prior to desegregation, such as interracial marriage. However, two major factors led to a rise in acceptance of TRA. First, a large number of Asian-American children were in the United States after the Korean and Vietnam wars. The children were the offspring of serviceman deployed in those countries during the wars. Second, the civil rights movement brought about an increase in racial tolerance and awareness of the need for racial equality.

Though it has become somewhat more commonplace in recent years, TRA has nonetheless been met with opposition since the 1970s. In 1972, the National Association of Black Social Workers (“NABSW”), the group who has been most vocal in opposing TRA, published a “Position Paper” condemning transracial adoption. This paper argued that TRA prevents black children from developing a strong racial identity because they are deprived of black role models. The NABSW argued that a black child could only develop skills necessary to survive in a racist society with the guidance of a black parent. Thus, the NABSW claimed TRA causes a form of “cultural genocide,” whereby children are “stolen” from the black community and are never able to truly integrate into the white community. While the NABSW has removed the “genocide” reference from its policy statement in 1994, it still opposes transracial adoption in favor of same-race placement.

The Multiethnic Placement Act of 1994 (“MEPA”) was a major force for change in TRA practices. Prior to the MEPA, no federal law restricted the ability of a state to consider race in determining where to place a child for adoption. States regularly engaged in “race matching,” a practice by which adoptive children are placed only with families of the same race. Critics claimed that race matching exacerbated the disproportionate number of black children waiting to be adopted. Congress responded to this issue by enacting the MEPA, which prohibited officials from delaying or denying the placement of a child “solely on the basis of race.” However, the statute ironically promoted race matching because its language explicitly permitted race to be taken into consideration in the adoption process, merely stating that it could not be the sole reason for rejecting adoptive parents. In response to public outcry, in 1996 Congress amended the MEPA by enacting the Removal of Barriers of Interethnic Adoption Act, which deleted the “solely” language. Currently, the statute provides that no agency receiving federal funds may “(A) deny to any person the opportunity to become an adoptive or a foster parent, on the basis of the race, color, or national origin of the person, or of the child, involved; or (B) delay or deny the placement of a child for adoption or into foster care, on the basis of the race, color, or national origin of the adoptive or foster parent, or the child, involved.”

Despite its amendment, the MEPA remains controversial among those who oppose the practice of TRA, as they believe it does not allow for a consideration of the best interests of the child, the predominant inquiry in most family law matters. Opponents take issue with the fact that, since the statute explicitly removed race as a factor in choosing an adoptive family, it permits racially insensitive white parents to adopt black children. Critics also argue that the statute allows otherwise unfit white parents to adopt black children, pointing out the fact that many potential black adoptive families are disqualified because of social service agencies’ use of criteria requiring a more upper-class income level and lifestyle, which favors white families.

Another area of particular concern in the TRA debate is adoption of Native American children. In 1978, Congress enacted the Indian Child Welfare Act (“ICWA”), which was meant to address the aforementioned “cultural genocide,” in which minority children are placed with white families, arguably robbing them of their ethnic identity. This problem was especially prevalent among Native American children, where a massive number of Native American children were removed from their biological parents and 80-90% of these children were placed with white adoptive families.

The stated purpose of the ICWA is “to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families.” The statute stipulates that, unless good cause is shown to the contrary, Native American children must be placed in foster care with either (1) a member of the Indian child’s extended family; (2) a foster home (either Indian or non-Indian) licensed by the Indian child’s tribe; or (3) a tribe-approved children’s institution.

The first case involving the ICWA came before the United States Supreme Court in 1989. In Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30 (1989), a non-Indian couple appealed a decision that required the couple to surrender their adopted Native American twins to the jurisdiction of the tribe. The Court affirmed this decision under the ICWA. Justice Scalia has been quoted as saying that while the decision was clearly correct under the statute, it was the most difficult decision he has taken part in during his career.

The ICWA has again come before the Supreme Court, this time involving a South Carolina couple that was ordered to turn over a 27-month old girl they had cared for since birth to her biological father, whom the girl had never met. In that case, Adoptive Couple v. Baby Girl, No. 12-399, the biological father is seeking custody of his Native American daughter and the adoptive parents are contesting various portions of the ICWA.

How do we resolve the various conflicts surrounding TRA? There are valid arguments to be made on either side of the debate. Those in favor of TRA point to the above mentioned foster care statistics and the disproportionate number of white children that are adopted compared to the number of children from other races that remain in foster care. Further, proponents claim there is no evidence that TRA harms children – to the contrary, it is argued that, on the whole, transracial adoptions have been successful. Finally, it is argued that white adoptive parents are fully capable of meeting, if not exceeding, the identity needs of their black children. On the other hand, it is crucial for a child to understand and be familiar with their cultural identity, and being adopted by a family of another race may make this difficult.

In determining how to reconcile the competing viewpoints on TRA, it is important to remember that the key inquiry for any legal proceeding involving a minor should be the best interests of the child. This is also the proper inquiry when dealing with TRA. This inquiry will often be fact-specific and depend on the circumstances of each case. While children need to preserve and celebrate their cultural identity, this can be achieved by placing the child in an adoptive home where the parents are sensitive to this need and will provide the child with resources necessary to explore their ethnic background. Further, social services agencies can prepare transracial adoptive families by offering counseling services and courses related to parenting a child of a different race. Some agencies already do this, but it should be a requirement for all.

While race cannot and should not be determinative of where a child is placed, it should not be completely ignored, either. In certain cases, race may be an important factor for a social services agency to consider when evaluating a potential adoptive home. If two similarly situated families are being considered, and one family is of the same race as the adoptive child, that family should take precedence. Finally, if he or she is old enough to articulate their desires, the child’s preference should be considered, as well.

While the problems surrounding TRA are difficult and nuanced, it is important to avoid taking an absolute position on the practice. No one solution will be right for every family, and the principal concern should be on placing a child in a loving home where they will thrive and have a bright future.

Ms. Hebshi recalled those events in detail in an article that she posted on her blog the following day.  As Flight 623 landed that afternoon, all had been going according to plan during Ms. Hebshi’s travels.  She had cleared airport security at San Francisco International Airport without any issues, and boarded her Frontier Airlines flight destined for Denver, Colorado.  After arriving in Denver, Ms. Hebshi boarded her connecting flight to Detroit, without ever leaving the airport or security zone.  Shortly after hitting the tarmac in Detroit, the Captain announced on the loudspeaker that the plane was being diverted to another area of the airport, and warned that there would be consequences if any passengers were to leave their seats.   Shortly thereafter, Ms. Hebshi noticed a squadron of police cars with their lights and sirens on following alongside the plane.  She turned to her neighbor, an Indian man, and wondered whether there was a fugitive on the plane that the police were coming for.  Neither passenger foresaw that it was, in fact, them who the authorities were coming after.

Several minutes later, heavily armed agents boarded the plane and proceeded to forcibly remove Ms. Hebshi in handcuffs, along with the two men that she was seated next to.  Once outside the plane, officers pushed Ms. Hebshi up against a police car, asked her if she was wearing any explosives, had her spread her legs and conducted a pat search on her.  Ms. Hebshi was then brought to a detention facility at the airport and placed in a six by ten foot cell for several hours, during which she was interrogated by several officers and subjected to a strip search, requiring Ms. Hebshi to strip naked, bend over and cough in front of an officer.  In her blog post, she described feeling “frightened and humiliated” throughout the ordeal.  Sufficiently convinced that Ms. Hebshi in fact posed no threat, federal authorities released her approximately four hours after being arrested, and apologized for the inconvenience.  The FBI has since publically stated that Ms. Hebshi was not involved in any suspicious activity.

On January 22, 2013, the American Civil Liberties Union (ACLU) filed a lawsuit on behalf of Shoshana Hebshi against the Detroit Metro Airport, Frontier Airlines and federal authorities.  The complaint, filed in the United States Court for the Eastern District of Michigan, alleges that Ms. Hebshi was targeted by authorities without any articulable facts connecting her to criminal activity or providing probable cause.  Rather, she was arrested because she has an Arab last name and was seated next to two men of South Asian origin who each allegedly got up from their seat to use the bathroom for ten to twenty minutes during the flight.  Despite the fact that Ms. Hebshi did not know the men that she was assigned to sit next to and did not so much as speak with them or leave her seat, the Frontier Airlines crew provided Ms. Hebshi’s name to federal and state authorities in describing the allegedly suspicious activity of the two men seated next to her.  The complaint adds that none of the passengers or flight attendants either observed or reported that there was anything suspicious about Hebshi or her conduct during or after the flight.

As the authorities acted based only on their knowledge of Ms. Hebshi’s seat assignment and that she was of middle eastern descent, the complaint asserts that Ms. Hebshi was arrested, detained and strip-searched without probable cause for her arrest and in violation of her rights under the 4^th and 14^th Amendments to the United States Constitution.  Assuming the facts alleged in the complaint to be true, the government’s actions represent a clear disregard for the law governing search and seizures under the Constitution.  Even the most staunch supporter of racial profiling as an effective and efficient law enforcement technique would not likely attempt to justify the treatment of Ms. Hebshi – a young, mother of two children that appears to have engaged in no suspicious activity whatsoever.  Even if Ms. Hebshi were found to have done something to warrant suspicion, there is little doubt as to whether her subsequent treatment by authorities was even within the realm of being reasonable.

It may then be tempting to characterize her ordeal as an isolated incident; one that the law clearly cannot protect against precisely because the law under the Fourth Amendment is intended to protect against exactly the type of conduct that the complaint objects to.  However, a more thorough consideration of the incident’s implications would not warrant such a dismissal.  While the law may not expressly condone such behavior by authorities, that behavior nonetheless appears to be a reflection of a willingness to accept racial profiling and the associated sacrifice of the civil liberties of a few because they are done in the interest of public safety or national security.

In the years since 9/11, that willingness has been manifested through the use of racial profiling of individuals of Middle Eastern descent as part of counter-terrorism initiatives.  Despite publicly disparaging the use of such law enforcement techniques in guidelines promulgated by the Department of Justice in 2003, the Bush Administration carved out an exception to a general prohibition against the use of racial profiling “with respect to law enforcement activities and other efforts to defend and safeguard against threats to national security or the integrity of the Nation’s borders.”  The exception espouses the view that our strong interest in protecting national security in the war on terror justifies the adoption of law enforcement techniques that the President’s administration itself described in the introduction of the same guidelines as “not merely wrong, but also ineffective.”  A 2004 report by the ACLU outlines the ways in which that exception provided for the use of racial profiling as a part of official government policy.  That policy was implemented through the secret roundup and FBI questioning of Arab, Muslim and South Asian Men, as well as a special registration program, the National Security Entry-Exit Registration System (which was eliminated by the Department of Homeland Security in 2011).  Viewed in light of the history of profiling since 9/11, it seems difficult to characterize Ms. Hebshi’s experience as a mere isolated incident to be addressed by the courts, and undeserving of public concern.  Rather, that experience sheds important light on the importance of protecting individuals’ civil liberties, and the dangers that are manifested when we show a willingness to derogate them through the use of racial profiling, and on the basis of fear.

Racial profiling refers to the targeting of individuals for suspicion of crime based on the individual’s race, ethnicity, religion or national origin.  Proponents of racial profiling argue that the technique is a rational reaction to objective statistics regarding who is most likely to commit certain crimes.  Any civil liberty that may be sacrificed is thus considered to be a reasonable price to pay for the benefit of public safety and welfare.   Paul Sperry, of the Stanford University Hoover Institute, has likened racial profiling to an insurance company profiling policyholders based on probability of risk.  “That’s just smart business.  Likewise, profiling passengers based on proven security is just smart law enforcement,” Sperry wrote in a 2005 opinion-editorial for the New York Times.  Underlying such support in the context of counter-terrorism is the basic premise that if law enforcement dedicates more resources to investigating and searching members of a higher-offending group, they will inevitably increase the detection of terrorist activities.  For its proponents, racial profiling’s use is simply justified by an iron law of probabilities and the grave danger that it is intended to protect against.

Its critics argue against its use for two reasons.  First, many dispute its effectiveness, and argue that profiling results in sloppy police work because it detracts from officers’ focus on actually suspicious behavior.  The former head of counterterrorism at the CIA, Vincent Cannistano was quoted in a 2002 Newsweek article as stating that “profiling is too crude to be effective.”  It is, essentially, a method of fishing by casting too wide a net.  Rather than focusing on pre-attack behaviors, it redirects attention towards characteristics that are less predictive of true danger.  Bernard Harcourt, a Professor of Law at the University of Chicago, has argued that profiling is ineffective because it assumes that terrorists are not going to adapt to changing circumstances.  In his 2006 Law Review article, Professor Harcourt points out that “there is no reliable empirical evidence that racial profiling is an effective counterterrorism measure and no solid theoretical reason why it should be.”  Likewise, New York City Police Commissioner Raymond Kelly was quoted in a 2006 article in the New Yorker as criticizing the use of profiling.  In doing so, Commissioner Kelly stated, “Look at the 9/11 hijackers.  They came here.  They shaved.  They went to topless bars.  They wanted to blend in … I think profiling is just nuts.”

Apart from doubt as to profiling’s effectiveness, the tactic is criticized on the basis that it is in direct conflict with notions of equality and liberty that are fundamental to our democracy and system of criminal justice.  Whatever the merits of racial profiling may be in combatting crime, the issue at the center of the debate is whether our right to equal protection under the law is derogable.  That is, can a targeted group of individuals’ civil liberties be cast aside because doing so is arguably in the interest of public safety or national security?  In answering that question, we should consider what happened to Shoshana Hebshi, and ask ourselves not only whether such inefficient tactics will lead to the capture of those who really want to harm us, but whether it is consistent with the democratic society that we envision for ourselves and our loved ones.   So long as we accept the importance of balancing our interests in safety with the protection of the values and rights that are essential to our democratic society, Ms. Hebshi’s case appears to stand for the grave danger in condoning any policy that provides for the targeting of individuals for suspicion of crime based on their race or ethnicity.

Despite the pushback against the pipeline and zero tolerance policies from parents, students, communities and advocacy groups, there has been a notable absence of movement on the national and federal level in addressing this problem, possibly because of the tradition of schools being controlled locally. America needs to have a national conversation about the direction of school discipline in order to encourage reform efforts in school districts that are feeding the pipeline through continued use of zero tolerance policies. Two recent events have resulted in the school-to-prison-pipeline finally receiving some long overdue national attention. In October 2012, the Department of Justice (DOJ) filed a lawsuit against Meridian, Mississippi and its juvenile justice court system for violating children’s civil rights, and in December 2012, the school-to-prison-pipeline was the focal point of a Judiciary Committee meeting, marking the first time a Senate hearing addressed this pressing problem. Hopefully these events will open a national dialogue about ways to dismantle the school-to-prison-pipeline and put pressure on states, school districts, educators and communities to reform school discipline policies and procedures.

The DOJ’s complaint against Meridian, Mississippi levels harsh accusations, stating that Meridian’s practice has been to “systematically arrest and incarcerate children, including for minor school rule infractions, without even the most basic procedural safeguards.” Individual stories from students in Meridian corroborate the DOJ’s accusations. A teenage girl with a bladder disorder was arrested for leaving class and ignoring a teacher because of her urgent need to use the bathroom. According to another student, he was put on probation after a getting into a fight at school. After being put on probation he was heavily sanctioned for minor rule violations, such as wearing the wrong color socks. These minor infractions were counted as probation violations, causing him to be suspended and incarcerated in a juvenile detention center. A recent report by civil rights groups exposing Mississippi’s school discipline crisis noted that students on probation are routinely suspended and then automatically incarcerated for minor infractions such as using profanity.

The Southern Poverty Law Center (SPLC) and the NAACP identified Meridian as a problem area in 2008, when they discovered that 67% of young people in Meridian’s juvenile detention centers came directly from Meridian’s school system. The trend in Meridian’s schools has been to target African-American students, with Jody Owens, the managing attorney for SPLC’s juvenile justice initiative stating, “there was never once a white kid that was suspended for the same offense that kids of color were suspended for.” The recent civil rights report, Handcuffs on Success, reveals that these egregious, discriminatory practices are occurring all over Mississippi and have been happening for decades. In 2000, five black high school students were arrested for felony assault because they were throwing peanuts, one of which hit the school bus driver. The bus driver called the police, who directed the driver to bring the students to the police station, rather than to the school. This outrageous practice of schools using police as disciplinarians for students needs to be stopped immediately. Police are not trained to deal with students, police are trained to deal with criminals. While there may be some rare situations where it is necessary to involve police in school disciplinary issues, it should be the exception and not the rule. Schools must be held accountable and forced to stop outsourcing an important part of their job to police departments. Instead of creating stronger ties between schools and police departments, educators, administrators, parents, students and communities should discuss ways to reframe disciplinary practices within the context of schools. A student who uses profanity in the classroom should be punished, but after-school detention or additional homework is a much more appropriate punishment than incarceration.

The December 2012 Senate hearing addressing the school-to-prison-pipeline allowed the Judiciary Committee to hear testimony from federal government officials, leaders in criminal justice, reform advocates from organizations such as the Advancement Project and Edward Ward, a former student who grew up in the Chicago public school system. Mr. Ward provided compelling testimony about the devastating impact of the oppressive policies and police presence in his school, noting that the students felt like they were “under siege” and had to be on “a constant state of alert” in the school environment.

The solutions proposed by the witnesses at the Senate hearing focused on behavioral interventions and restorative justice as possible alternatives to the current methods, where students are suspended from school and incarcerated when they misbehave. Senator Dick Durbin (D.-Ill.), the man responsible for organizing the meeting, introduced the topic by referencing the statistics released by the U.S. Department of Education, Office for Civil Rights in March 2012. The statistics demonstrate the disproportionate impact that zero tolerance policies are having on black, Latino, LGBT and disabled students. Although black students make up 18% of the student population, statistics from 2009-2010 showed that they were 3.5 times more likely to be expelled than white students. This is just one of many disturbing statistics that were cited during the meeting.

The DOJ’s lawsuit and the Senate meeting are encouraging steps, but the national conversation needs to continue and put pressure on states and local school districts to reform their disciplinary practices. The zero tolerance policies responsible for creating the school-to-prison-pipeline exist in many states besides Mississippi, such as New York, California, Florida, Tennessee, Louisiana and Alabama. Whether the answer to dismantling the pipeline lies in federal legislation, local initiatives or a combination of the two, it is important that the momentum created by this national attention leads to concrete action in order to keep more students from being pushed out of the educational arena and into the criminal justice system.

On November 9, 2012, just days after the reelection of President Barack Obama, broadcaster Tavis Smiley and professor and activist Dr. Cornel West joined Democracy Now! for an interview discussing poverty in America; specifically, the lack of dialogue on the issue, both in the media and from President Obama. Host Amy Goodman asked Dr. West who currently is ahead regarding poverty in America, and who is not. After expressing his disappointment in how much campaign money was spent without any serious discussion of poverty in America, Dr. West had some choice words to share regarding his feelings towards President Obama:

CORNEL WEST: So it’s very sad. I mean, I’m glad there was not a right-wing takeover, but we end up with a Republican, a Rockefeller Republican in blackface, with Barack Obama, so that our struggle with regard to poverty intensifies.

AMY GOODMAN: That’s a pretty rough assessment of President Obama.

CORNEL WEST: Oh, that’s what we have. That’s what we have. Richard Nixon is to the left of him on healthcare. Richard Nixon is to the left of him on guaranteed income. And the same policies in terms of imperial foreign policy is at work…

As the discussion transitioned to the topic of the political left pressing President Obama for change, Ms. Goodman brought up a clip from a debate held in September with author/MSNBC analyst/professor Michael Eric Dyson. In the clip, Mr. Dyson argued, “Obama is as progressive a figure who has the chance of being elected in America. Friedrich Engels is not going to be the secretary of labor, and Marx will not be the secretary of treasury, bottom line,” and says “he’s the most progressive president…since FDR.” When Ms. Goodman requested a response from Mr. Smiley and Mr. West, they responded thusly:

TAVIS SMILEY: It is so disappointing… to hear Michael, Professor Dyson, advance that kind of argument. He comes out of a black prophetic tradition that is rooted in speaking truth to power—and, I might add, to the powerless. But to somehow try to suggest in any way that this president has been progressive or is the best example of progressivism that we could put forth in this country is just inaccurate. […]

And so, what I hear in Professor Dyson’s critique is that there is some excuse to be made or that we have to settle for this as the best example of progressivism that we can find. And Doc and I just don’t believe in settling. We don’t believe in making excuses. We believe that if he is not pushed, he’s going to be a transactional president and not a transformational president. And we believe that the time is now for action and no longer accommodation. But that doesn’t happen unless you’re pushed.

CORNEL WEST: And Brother Tavis is being very kind, because he’s right. I love Brother Mike Dyson, too, but we’re living in a society where everybody is up for sale. Everything is up for sale. And he and Brother [Reverend Al] Sharpton and Sister Melissa [Harris-Perry] and others, they have sold their souls for a mess of Obama pottage. And we invite them back to the black prophetic tradition after Obama leaves. But at the moment, they want insider access, and they want to tell those kind of lies. They want to turn their back to poor and working people. […]  And it’s a sad thing to see them as apologists for the Obama administration in that way, given the kind of critical background that all of them have had at some point.

Al Sharpton, Michael Eric Dyson, and Melissa Harris-Perry all work for MSNBC. In recent years, MSNBC has been widely recognized as the liberal foil to FOXNews, where both hosts and guests are labeled Obama apologists. Some of Dr. West’s targeted criticism of these commentators is fueled by ongoing personal feuds. However, there is evidence that justifies Dr. West’s claims of commentators compromising their journalistic integrity in exchange for political favors. Take this transcript excerpt from a 60 Minutes interview with Al Sharpton and Lesley Stahl:

[Stahl narrating:] Sharpton told us that having a black president is a challenge: if he finds fault with Mr. Obama, he’d be aiding those who want to destroy him. So he has decided not to criticize the president about anything – even about black unemployment, which is twice the national rate.

“Have you told other blacks not to criticize him publically?” Stahl asked.

“What I’ve told them is to be genuine about it. There are some blacks that say he needs to go with a black agenda. He needs to do this. He said when he was running he wasn’t gonna do that. Duh. Surprise,” Sharpton said.

“But just because he didn’t campaign on improving unemployment in black areas, why aren’t you out there saying, ‘We need more done?’” Stahl asked.

“What I don’t want to see is because he’s black that we act like he’s not the real president. ‘He ought to be leading the black cause or the labor cause,’ He’s the president. To minimize who he is, I think is an insult to the achievement of having him there,” Sharpton said.

[Stahl narrating:] Given his loyalty and his change from confrontational to accommodating, the administration is rewarding him with access and assignments, like making him a spokesman for their education policy and sending him on the road with Newt Gingrich, of all people, to build support for hiring better teachers.

The existence of cable news commentators lacking political objectivity is not a new phenomenon. Every cable news channel has its own media personalities, and each of those personalities carries its own political biases. Conservative commentators on FOXNews are far more favorable to conservatives who fall in line with the rest of the party, and individuals who do not fall in line are ostracized and demonized by the conservative community. Even MSNBC, with their progressive “Lean Forward” campaign, pushes for progressive candidates and policies with their own line of commentators. Commentators from each side of the political spectrum make sure that their own candidates are protected from scrutiny in order to champion their political interests.

However, it is a new phenomenon for news commentators to protect political figures based on race. Rev. Sharpton is right to point out that President Obama is not simply the leader of the black cause, and his importance should not be minimized just because of the color of his skin. However, it is completely indefensible for Sharpton to publicly say that he will not criticize the President about anything. His justification for not criticizing the President is not based on policy grounds, nor is it based on party affiliation. While Rev. Sharpton says the President’s role shouldn’t be minimized because he is black, Sharpton’s justification for not criticizing the President about anything seems to be because he is the first black President. As a result, Sharpton protects the President because of his race while simultaneously ignoring critical issues that affect the black community. To then be rewarded by the administration with assignments and access for being “accommodating” is even more damning, and makes Dr. West’s criticism of Rev. Sharpton look entirely appropriate.

In defense of Ms. Harris-Perry, she takes a more reasoned approach to handling issues involving President Obama. Discussing Dr. West’s criticism of President Obama, she recognizes that Dr. West and herself are tenured professors, and thus “are not meaningfully accountable,” as opposed to President Obama who is accountable by the voters. This is true- it’s what gives Dr. West the license to criticize the President on legitimate policy issues while using language as inflammatory as calling the President“a Rockefeller Republican in blackface” without any real repercussions. However, it does not explain Dr. West’s criticisms of Ms. Harris-Perry and other black commentators as being unwilling to provide a voice for issues in black America during the Obama presidency.

As a result, we’re stuck with two vastly different approaches to dealing with the President and issues concerning the black community, neither of which are particularly helpful in advancing the public discourse in this nation on these issues. On the one hand, Dr. West’s rhetoric presents an incredibly inflammatory approach in an attempt to illuminate issues that concern the black community. On the other hand, we have Rev. Sharpton’s approach: protect President Obama from criticism at all costs, even if that means sacrificing the political dialogue needed to illuminate serious problems in this nation, including those concerning black communities.

With that in mind, which approach is more damaging to the public in the long run? More importantly, which approach is more damaging to the black community in the long run? Surely, the President does not shoulder all of the blame when it comes to critical issues pertaining to black communities in America. Similarly, it is not incumbent on all black commentators in America to speak exclusively on issues of race, particularly issues concerning the black community. That being said, to be silent on these issues is to imply that the President bears no responsibility at all. As a result, this diminishes the responsibility and accountability of the President. It also fails to fully represent the problems these communities face, and ultimately undermines any potential solutions for these issues.  While Dr. West’s words might catch some of the public’s attention for its sheer shock-value, the inflammatory language he uses diminishes whatever legitimate substantive policy issues he tries to raise. However, Dr. West’s approach can also be viewed as a desperate response to people like Rev. Sharpton, who refuses to acknowledge that a real problem exists. When the host of a news and commentary program grants an administration complete immunity from criticism and is subsequently rewarded for his silence, it appears to be a fundamental betrayal of one’s responsibility to deliver truth and honesty to an audience. Dr. West’s words are harsh, inflammatory, and some may say completely inappropriate, but his words also created a conversation. The public deserves a conversation, not silence.

The Court’s approach to racial discrimination claims brought under the Equal Protection Clause has made it increasingly difficult to succeed in such a claim. The Court has long been known for its problematic philosophy of colorblindness, which equates exclusionary and inclusionary consideration of race, such that any recognition of race is dubbed discriminatory. This type of thinking is epitomized by Chief Justice Robert’s notorious proclamation in Parents Involved, a case that struck down a school district’s voluntary adoption of a school desegregation plan, that “[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Parents Involved in Community Schools v Seattle School Dist. No. 1, 551 U.S. 701 (2007).

The Court has also adopted what Alan Freeman termed, ‘the perpetrator perspective’ in his article Legitimizing Racial Discrimination Through Antidiscrimination Law (Critical Race Theory, 29 Kimberlé Crenshaw, et al. eds., 1995). “The perpetrator perspective sees racial discrimination not as conditions but as actions, or series of actions, inflicted on the victim by the perpetrator. The focus is more on what particular perpetrators have done or are doing to some victims than on the overall life situation of the victim class.” This perspective cannot account for the modern reality of institutionalized racism, which reproduces racial injustice even without the consciously discriminatory actions of individuals.

This perspective is embodied in the Court’s application of an intent requirement to school desegregation cases. The Court searches for a clearly culpable phantom, rather than recognize how systems of inequality are woven into the social fabric of society over time and perpetuated without intent, if gone unchallenged. It’s a sad day in dodge when our nation’s children can’t look to the constitution’s Equal Protection Clause to redress the wrongs of public school segregation and unequal access to educational opportunity. We’ve been living in that sad day for a long time now. Fortunately there are other branches of government.

The complaint filed by LDF was brought under Title VI of the Civil Rights Act of 1964 and its implementing regulations. Because the New York City and State Departments of Education are recipients of federal funding, they fall within the statute’s purview. The use of Title VI is promising because it has yielded positive results in cases challenging racially disparate school disciplinary measures, such as Ross v. Saltmarsh, 500 F. Supp. 935 (S.D.N.Y. 1980). Title VI has also been successfully used to challenge racially disparate assignments to special education, based on non-validated I.Q. tests, in Larry P. v. Riles, 793 F.2d 969 (9th Cir. 1984). Claims under Title VI avoid many problems implicit in the perpetrator perspective because Title VI allows for actions based on disparate impact. Thus the reality of exclusion and racial isolation at New York City’s elite public high schools can be challenged without proving a discriminatory animus for adopting the challenged admissions practices.

A prima facie claim of disparate impact under Title VI is made out by showing that a recipient of federal funds uses selection criteria that has the effect of disproportionate exclusion of an identifiable racial or ethnic group. LDF’s complaint includes a slew of statistical analysis and numerical assessments which clearly establish that the singular use of the Specialized High School Admissions Test (SHSAT), as mandated by New York State Education Law, as the sole determinant of admission to the specialized high schools has an extreme disparate impact on Black and Latino students. Moreover, the general pattern reveals increasing rates of exclusion of Blacks and Latinos over time.

Once a prima facie case has been alleged, respondents can rebut the claim by demonstrating that the selection criteria are required by educational necessity. LDF’s complaint forestalls the success of such a rebuttal by showing that the singular use of the SHSAT violates best practices in education and testing, is not aligned with the public middle school curriculum, and has never been validated as an accurate predictor of academic performance. In fact, the City and State Departments of Education have never conducted any validity studies showing a correlation between test performance and future school performance. Finally, “quirks” in the scoring methodology render the annually derived cut-off distinctions arbitrary.

Even if the Departments could demonstrate educational necessity, a policy with disparate exclusionary impact may still violate Title VI where there are less-discriminatory alternatives available. LDF’s complaint elaborates four such alternatives, including two endorsed by Federal Policy Guidance issued on Title VI, and another that is an existing statutory program which the schools have abandoned, despite showings that it actually reduced racial isolation (the Discovery Program).

On November 11, 2012 the Office of Civil Rights launched its investigation into the SHSAT in response to the complaint. In the past, such investigations have yielded consent decrees and other agreements in which school districts have taken action to comply with Title VI. It is my hope that, in the face of this pervasive and growing problem, New York’s school system will enter into a meaningful agreement with the Office of Civil Rights. If not, the litigation will be brought before federal courts and may wind up before the Supreme Court. At least here the burden of that litigation will be borne by the federal government, rather than placed on the shoulders of individual high school students and their families.

Congressman Lewis is recognized as one of the “Big Six” leaders of the Civil Rights Movement, along with Dr. King, Whitney Young, A. Phillip Randolph, James Farmer and Roy Wilkins. He was one of the planners and keynote speakers at the March on Washington in August 1963.

On March 7, 1965, Congressman Lewis led one of the most dramatic protests of the Civil Rights Movement. The day came to be known as “Bloody Sunday.” That day Congressman Lewis led protestors over the Edmund Pettus Bridge in Selma, Alabama. At the end of the bridge, they were met by Alabama State Troopers. When the marchers stopped to pray, the police discharged tear gas and mounted troopers charged the demonstrators, beating them with night sticks. Congressman Lewis was severely beaten and his skull was fractured. Today, political historians and constitutional scholars acknowledge that Bloody Sunday was the main impetus for President Lyndon Johnson submitting the Voting Rights Act of 1965 to Congress on March 15, 1965.

The Racial Justice Project’s brief attests to the high price many paid for the enactment of the Voting Rights Act and discusses the mechanisms that continue to suppress, dilute, and infringe upon minorities’ constitutional right to vote. To read the brief, click here.

On September 27, 2012, CAMY released a study putting some concrete data findings behind their concerns of marketing to Black youth.  The focus of the CAMY study was to: (1) analyze exposure of alcohol advertising by type and brand among Black youth ages 12-20 in comparison to all youth ages 12-20; and (2) assess the exposure of Black youth ages 12-20 to alcohol advertising relative to Black adults and all adults, and accordingly the extent to which Black youth were exposed to more alcohol advertising relative to adults in magazines, on radio, and on television.

The bottom line: African Americans ages 12 to 20, generally consuming more media than other non-African American youth, are exposed to far more alcohol advertisements on TV and in magazines than youth in general.

As demonstrated by the CAMY study, African American youth were exposed to 32 percent more alcohol advertising in magazines than all non-African American youth.  Specifically, Black youth were exposed to 22 percent more beer advertising, 38 percent more distilled spirits advertising, 92 percent more alcopops (cheap, sweet, fizzy alcohol drinks that are of particular concern to advocates because they appeal to youth) advertising, and 9 percent less wine advertising than all non-African American youth.  The study shows that the alcohol advertising in magazines has decreased however, in keeping with a trend shifting advertising from magazines to cable television.

Based on the amount of alcohol advertisements displayed, five publications–Jet, Essence, Ebony, Black Enterprise, and Vibe magazines–generated at least twice as much exposure to Black youth compared to all non-Black youth.  These five publications accounted for 20 percent of all Black youth exposure to alcohol advertisements.

In regards to television advertisements, Black youth ages 12 to 20 were exposed to 17 percent more alcohol advertising than all non Black youth ages 12 to 20, including 16 percent more exposure to beer advertising, 20 percent more exposure to distilled spirits advertising, 12 percent more exposure to advertising for alcopops, and 17 percent more exposure to wine advertising.

Twenty networks, including TV One and BET accounted for 50 percent of all Black youth exposure and generated at least 20 percent more Black youth exposure compared to all other youth.

In regards to radio advertisements, studies show that while Black youth heard 26 percent less radio advertisements for alcohol than all youth in general, they heard 32 percent more advertising for distilled spirits.  The study also found that Black youth are significantly more exposed to alcohol advertising in comparison to other youth in Urban and Urban Adult Contemporary radio stations.

The results are clear: Black youth receive substantially more exposure to alcohol advertising in magazines and on television, and more exposure to distilled spirits ads on the radio, than non-Black youth in general.  CAMY researchers attribute these results to two phenomena: 1) Many alcohol ads specifically target African Americans and 2) African American youth consume more media than youth overall.  However, despite the disproportionate advertisements that the Black youth are exposed to, CAMY researchers report that young Blacks actually drink less than youth of other racial and ethnic groups.  Some representatives of the alcohol industry argue that the higher rates of exposure, yet lower rates of alcohol use by Black youth plainly disprove any link between the amount of exposure to alcohol advertisements youth receive and the actual alcohol use of youths.. CAMY counters by offering some reasoning, stating that  media effects are complex.  CAMY attributes the overexposure to Black youth but less actual consumption of alcohol by Black youth to other factors such as poverty, social norms, and religion.

Here’s the dilemma faced: Given the higher levels of media usage among African-Americans, do alcohol marketers have an obligation to avoid overexposure or to more reasonably monitor the way in which advertising is performed?

David Jernigan, director of CAMY, would answer in the affirmative.  He maintains there’s a reason to be so careful.  Alcohol consumption links to three leading causes of death among African American youth–homicide, suicide, and accidental injury.  As well, Black youth who drink more seem to suffer more serious consequences than non-Black youth who drink, which Jernigan relates to their access to health care and substance abuse treatments, living in poorer neighborhoods, and the fact that young Blacks are incarcerated more frequently than other non-Black youth.

If, like David Jernigan, you believe that there needs to be some changes in alcohol advertisements and overexposure to the Black youth, the question is “How?”  How do we begin, or continue, enforcing standards? Where do we put the focus?  In our own neighborhoods?  In our own states?  National legislative enforcement?

As has previously been done in the 90’s, in order to reduce the alcohol ad exposure, local ordinances could be passed to limit the advertising of alcohol.  However, without strict monitoring and enforcement of compliance, these efforts may be of little to no use in helping limit exposure.

Currently, members of the beer, wine, and distilled spirits trade association “self regulate.”  For example, they have agreed to avoid placing alcohol advertisements during TV programs consisting of audiences made up of 28.4 percent or more people under the age of 21.  Since Black youth consume much more television than other youth, minor changes like this–not advertising to an audience under 21—are likely to make a huge impact on the Black youth. However, advocates argue that these self-regulated standards are poorly enforced and some advocates, such as Alcohol Justice’s Livingston, would even like to see government regulations.

The National Research Council and Institute of Medicine as well as 24 attorney generals of various states have called on alcohol companies to adopt stronger self-regulatory standards to better shield youth from exposure to alcohol advertising.

This CAMY report, which clearly demonstrates that certain media outlets and specific brands deliver higher exposure to Black youth clearly shows the need for more stringent standards as well as other forms of self-control on behalf of alcohol advertisers.

For the full report: http://www.camy.org/research/Exposure_of_African_American_Youth_to_Alc_Advertising_08_09/AA_Report_08_09.pdf

News article: http://openchannel.nbcnews.com/_news/2012/09/27/14115096-black-youths-exposed-to-more-alcohol-advertising-study-finds?lite

Remembering the Dream, Renewing the Dream: Celebrating the 50th Anniversary of Dr. Martin Luther King, Jr.’s “I Have A Dream” Speech and the March on Washington

On the 50th Anniversary of Dr. Martin Luther King, Jr.’s “I Have A Dream” speech and the March on Washington, leaders of the civil rights movement will join prominent civil and human rights attorneys and legal scholars to reflect on the impact Dr. King’s speech and the March had on the civil rights movement, examine civil rights enforcement in the federal courts, and discuss the legacy of these events today and for the future.

For more information or to pre-register, visit the symposium website at www.nyls.edu/RememberingTheDream.

Sponsored by the Justice Action Center at New York Law School, the New York Law School Racial Justice Project, and the New York Law School Law Review. Selected papers presented at the symposium will be published in a future issue of the New York Law School Law Review.

State officials have defended the move by arguing that they are setting high expectations for black and Hispanic students in terms of the amount of progress expected, while also being realistic about the fact that some students are lagging behind others in academic achievement. The targets in the new plan reflect the achievement gap in Florida’s educational system. Current statistics indicate that white and Asian students are demonstrating math and reading proficiency at much higher levels than black and Hispanic students. Florida’s Commissioner of Education, Pam Stewart, and other supporters of the new plan argue that expectations are actually higher for black and Hispanic students because the rate of growth expected of these students is higher than that expected of white and Asian students. Under Florida’s new plan, there will need to be a 36% increase in the number of black students reading at grade level by 2018, and only a 19% increase in the number of white students reading at grade level in that same time frame.

Despite these justifications, educators, parents and community members have expressed concern about the message a plan with race-based standards sends. Both the Broward Schools Superintendent and a Broward school board member have criticized the plan as acting to perpetuate the current system, where an achievement gap exists between white and Asian students and black and Hispanic students. Palm Beach County’s executive director of the Hispanic Human Resources Council, Jorge Avellana, has expressed skepticism over the plan’s ability to close the achievement gap and reach its purported goal of bringing 100% of students to grade level proficiency by 2022. Parents have voiced concern that the race-based standards are sending the message that black and Hispanic students are “sub par” purely because of their race. Asian American community leader Winnie Tang, president of the Asian American Federation of Florida, also takes issue with Florida’s new plan, pointing out that there are many underperforming Asian American students that suffer from being labeled as overachievers because of their race.

Florida’s controversial plan and the claims of state officials about “realistic expectations” seem to be part of a larger national trend driven by the Obama administration’s system regarding state waivers for No Child Left Behind. Under this system, states are allowed to adopt different standards for different groups of students, with the caveat that the students who perform the lowest are required to demonstrate the highest growth rates. The District of Columbia recently implemented a plan similar to Florida’s, using race-based standards and requiring larger growth for black and Hispanic students in terms of percentage points over time. This plan sparked criticism similar to Florida’s plan, as many parents and community members questioned how lowering expectations would encourage students to improve their performance.

State officials and the U.S. Department of Education continue to insist that race-based standards are meant to foster achievement while “trying to be realistic about what’s achievable in a short time frame.” However, a vocal group of parents, community members and educators remain unconvinced that race-based standards are the answer to closing the achievement gap and are concerned that lowering expectations for black and Hispanic students will have the opposite effect, sending the discriminatory and disheartening message that black and Hispanic students are not capable of achieving academically at the same rates as white and Asian students.

New York State law requires that admissions to the city’s SHS’s (Stuyvesant High School, The Bronx High School of Science, and Brooklyn Technical High School) must be based “solely and exclusively” upon students’ rank-order scores on “a competitive, objective and scholastic achievement examination.” Before taking the SHSAT, students list the SHS that he or she wants to attend in order of preference. The exam itself is composed of a verbal and math section; for each section, the total number of correct answers is converted into a “scaled score.” This scaled score is created by a formula that varies from year to year, based both on the difficulty level of the questions and the relative performance of test-takers. These scaled scores for each section are added together to create a final “composite score.”  While there are no pre-established cut-off scores, in practice the lowest score for students admitted into one of the schools is treated as the cut-off score.

In its complaint, LDF lays out the acceptance rates for the past four years based on race, and the results are staggering.  According to the complaint, just 5% of African American students received admissions offers to the SHS’s, and just fewer than 7% of Latinos received admissions over those four years. In comparison, white students averaged about 32% of those who received admissions, and Asian students averaged 35% of the admissions. Even more alarming, the acceptance rates for Stuyvesant and Bronx Science for African American and Latino students just last year was 2% and 3.3% respectively.

Based on these statistics, the admissions process has a disparate impact on African American and Latino students. As a result, it perpetuates racial isolation of these students in New York City’s SHS’s, especially in Stuyvesant High School and Bronx High School of Science. LDF claims that this process also leads to increased racial tensions in these high schools. Finally, a lack of diverse learning environments leave all of these students less prepared to function in an increasingly diverse world.

The complaint also questions whether the exam criteria are “required by educational necessity,” as contemplated under Title VI. To meet this burden, a recipient of federal funds must show that a challenged practice bears a manifest relationship to an objective that is “legitimate, important, and integral to [its] educational mission.” Furthermore, if the challenged practice is an admissions exam, that exam must be used in a way that validly and reliably predicts an applicant’s performance on metrics that are vital to satisfactory participation in the educational program. The complaint cites acknowledgments from New York City officials that a study attempting to validate the SHSAT was never conducted. Furthermore, the NYCDOE never attempted to assure that the SHSAT had any relationship at all between the content of the exam and the curriculum of the SHS’s, nor any relationship between the scores on the SHSAT and the academic performance of students taking the exam.

Finally, the complaint asks whether there are alternative practices available that would be equally effective while having less of a racially disparate impact on students. The complaint suggests taking things like middle school grades, attendance, and teacher recommendations into consideration, to be considered along with the SHSAT as one of several factors determining acceptance to New York City’s SHS’s. Also, the abolition of the rank order, which LDF claims exacerbates the racial disparities in admissions, is another suggestion for an alternative practice readily available. Instead, scores on the verbal and math section can be considered separately rather than combined into a single score, and each section can be used as one of many other criteria previously mentioned to determine admissions. Finally, LDF suggests reserving seats for top students at middle schools across the city, in the hopes that this would help foster geographic diversity.

While these suggestions are all well-intentioned, it is important to note some of the logistical issues with implementing these alternative practices. In regards to taking middle school grades into consideration for the admissions process, how would those evaluating admissions weigh student grades? Do they take particular grades into account, such as Math and English grades, or would they focus solely on a student’s overall average? Also, how are grades from one school compared to grades from another school? It is clear that not every middle school in New York City is created equally, so the admissions process would have to decide whether or not to weigh grades differently depending on what middle school a student attended.

The suggestion for reserving seats for top students at middle schools across the city also creates a series of issues. According to last year’s admissions statistics, 11,446 students were admitted to the three SHS’s. Using this figure, how many of these seats would be reserved for top students at middle schools across the city?  Also, how would admissions decide which students would be reserved a seat for Stuyvesant, Bronx Science, or Brooklyn Tech? Will it be based on a random selection, or will grades for each of the top students in middle schools around the city be compared to one another? Perhaps these students will be individually interviewed to determine which top students are guaranteed a seat at Stuyvesant High School, and which will be demoted to a guaranteed seat at The Bronx High School of Science or Brooklyn Technical High School. These decisions would have to be made rather quickly, because students graduate from middle school in June and begin high school in September.

While LDF’s complaint does not provide answers for these concerns, it is clear that there is a serious problem with the SHS admissions process. This complaint represents the first step in bringing about a change to a flawed system. Advocates for the SHSAT will say that the exam and admissions process has lasted over 40 years and has produced the best results possible for the students that have been fortunate enough to attend these high schools. However, it is important that these opportunities become available to all students, regardless of their race or ethnicity. If changes are implemented to the SHS admissions process to provide more diversity within these storied institutions, generations of students and citizens will benefit.