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Black Kos, Week In Review- For Most of Our History Courts Haven't Been Black People's Ally [1]
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Date: 2023-06-30
Commentary: The history of US laws, courts, and anti-blackness.
By dopper0189, Black Kos Managing Editor
The recent Supreme Court decision dismantling Affirmative Action, has many American reeling. There are a lot of discussion of the Roberts’ Court as “very conservative” or “right-wing”. These commentaries are written as if the Roberts court is a departure from the norms of American jurisprudence. Because many in Hollywood came of age during the Warren Court the idea of the little guy going the court and challenge racial discrimination and winning has been ingrained in American popular culture. But a look back at over 330 years of American jurisprudence would show the exact opposite. For most of American history the courts have not been Black people's ally, and for most our history they actually been black people’s oppressor.
Warren Court
American jurisprudence and laws have profoundly shaped and constrained the lives of Black people for over 350 years. Racial inequality has deep roots in American society beginning with the first known case marking the legal difference between Africans and Europeans in 1640 in Virginia. Americas Constitution, laws, court cases, and regulations not only bear witness to racial inequality, but are often the source of it.
My family’s history give a glimpse on how even black immigrants (like family) were profoundly impacted by America’s racial laws and how Affirmative Action is important even to black immigrants (there has been this recent conservative propaganda on how the majority of the black students at Harvard aren’t African American). One of my grandfather's was a British colonial administrator in Jamaica. He had a British passport. When my uncle was of age to go to college in 1948 he applied to the University of Florida. They assumed he was white, he was not. When he arrived at the University they threatened to lynch him if he set foot in the dorm. Luckily a Jewish professor their put him up, until he could return to Jamaica. My uncle instead went to Cambridge in the UK, became a successful judge in Jamaica. He never set foot in America again. I bring this up because when I applied for college in a less racist America I would have been a U of F alumni. My uncle was good enough to graduate near the top of his class from Cambridge (when he defended his thesis the news went worldwide on the BBC), so in a less racist America he would have been accepted to Columbia, or Yale, or Harvard and I would have had “legacy” rights at those schools. My own father would have been permitted to travel to the US for college, instead of taking correspondence classes from the US.
The story above is why I consider “legacies” to actually just be the modern day “grandfather clause”. At the University of Michigan during the mid-90’s anyone who presumed to asked if black Students “only got admitted” due to affirmative action, and how did that make me feel? I would reply “oh I just assumed all white students only got in due to grandfather clause legacies, how does that make you feel?” So yes, Affirmative Action is important for even black immigrants who were denied the chance to be legacies.
But less return to my main thesis, courts in the US have historically been one of the main forces oppressing black people in the USA. In the first documented case involving slavery in the then colony of Virginia, John Punch, an African servant along with two other white servant ran away from their masters. The General Court sentenced the two white servants to longer periods of servitude while sentencing Punch to slavery for life . This case marked the beginning of the creation of legal differences between Africans and Europeans.
The Casual Killing Act of 1669, passed by the Virginia General Assembly, declared that if a slave died while resisting his master, the master would be deemed not to have acted with malice. The law effectively made it legal for masters to kill their slaves at will in the process of inflicting punishment. When the USA gained independence fearing that anti-slavery sentiment would spread across the United States, Southern slave owners sought to restrict the migration of Black freemen. The 1803 act prohibited the importation of “any negro, mulatto, or other person of colour, not being a native, a citizen, or a registered seaman, of the United States, or seamen, natives of countries beyond the Cape of Good Hope.” As polarization over the issue of slavery grew, Congress passed the Fugitive Slave Act of 1850 as part of a compromise between Southern slave-holding and Northern free states. The law required all escaped slaves to be returned to their masters, including those who ran away to free states. Amid increasing political division, Dred Scott, a slave, had been transported from the slave-holding state of Missouri to free areas where slavery was illegal. Scott sued for his freedom, claiming he had been freed when he was taken into free U.S. territory. In a landmark decision, the Supreme Court held that Scott and other Black people, whether enslaved or free, were not citizens of the United States and could not enjoy the rights and privileges of the Constitution, including the right to sue. After the Civil War, former slave-holding states passed laws to restrict the rights of Black laborers and to formalize racial hierarchy. Known as Black Codes, the truly Orwellian named Mississippi’s Act to Confer Civil Rights on Freedman was the first. Congress tried to intervene to protect black citizens. As a condition of being readmitted to the United States, former Confederate states had to ratify the 14th Amendment to the Constitution. The 14th Amendment granted citizenship to all persons born and naturalized in the United States, including formerly enslaved people, and guaranteed all citizens equal protection under the laws. The last of the Reconstruction Amendments, the 15th Amendment to the Constitution prohibits government from denying citizens the right to vote based on “race, color, or previous condition of servitude.” The Supreme Court’s first interpretation of the 14th Amendment involved local butchers in Louisiana in the The Slaughter-House Cases who challenged a state law granting a monopoly to another livestock company. The Court upheld the law, finding the “privileges and immunities” of citizenship extended only to those specified in the Constitution, and did not include other rights given by individual states. The practical effect of the ruling was that the 14th Amendment was interpreted as protecting economic liberties and not the civil rights of African Americans. In response to increasing acts of violence and civil rights violations against Blacks, Congress passed the Civil Rights Act of 1875 to “protect all citizens in their civil and legal rights.” Although the act provided for equal treatment in public accommodations and public transportation, it did not provide measures to suppress election-related violence and again was not widely enforced by courts. Following a disputed gubernatorial election in Louisiana that led to the massacre of dozens of African Americans by white supremacists, federal charges were brought against several whites who had conspired to deprive citizens of their First and Second Amendment rights. In a decision that undercut much of the progress made under the 14th Amendment, in United States v. Cruikshank the Supreme Court held that the Bill of Rights did not apply to private actors or state governments, reversing the criminal convictions of the white supremacists who had aided in murdering African Americans. The case severely weakened efforts to protect African Americans' civil rights and left them at the mercy of state governments. The Supreme Court consolidated five cases concerning the Civil Rights Act of 1875, in the Civil Rights Cases they ultimately declaring the law unconstitutional. Stating that the national government is powerless to outlaw private acts of discrimination, the Court struck down a critical discrimination provision, thereby spurring state laws that codified racial segregation. Homer Plessy, a person who was seven-eighths white and one-eighth Black, argued that a Louisiana law prohibiting him from sitting in a whites only train car was unconstitutional. In a landmark decision Plessy v. Ferguson, the Supreme Court upheld the law, legitimatizing racial segregation in public facilities so long as such facilities were “separate but equal.” In the Norris v. Alabama nine African American teenagers in Alabama were accused of raping two white women. In a case now considered a miscarriage of justice in the nation’s legal system, the rushed trial included an all-white jury and disruptive lynch mobs in a state that had long disenfranchised Blacks. All but two of the teenagers served prison sentences, even though one of the alleged victims later admitted fabricating the rape story. Even today the over-representation of Blacks in America’s justice system is well documented. Black men comprise approximately 13% of the male population, but about 35% of those incarcerated. One in three Black men can expect to be incarcerated in their lifetime, compared to one in six Latino men and one in 17 White men. Black women are similarly impacted: one in 18 Black women are likely to be incarcerated sometime in her life, compared to 1 in 111 white women. The underlying reasons for this dis-proportionate representation are not only rooted in the history of the United States but are perpetuated by current practices within the nation’s justice system. Even after Constitutional Amendments and Civil Rights Laws discrimination continues today in often less overt ways,including through disparity in the enforcement of seemingly race-neutral laws. For example, while rates of drug use are similar across racial and ethnic groups, black people are arrested and sentenced on drug charges at much higher rates than white people. Bias by decision makers at all stages of the judicial system is disadvantages to black people. Studies have found that they are more likely to be stopped by the police, detained pretrial, charged with more serious crimes, and sentenced more harshly than white people. But the same Supreme Court that is quick to say race can’t be a factor in college admissions doesn’t stop law enforcement from over enforcing blacks in the criminal system. Statistic are OK to show Asians are less likely to be admitted to college for the same grades, but statistics aren’t good enough to sue police departments and DA’s for the same behavior in criminal cases. The hypocrisy makes my head hurt. The 2016 election was a historic missed opportunity to get a modern day Warren Court. With that missed opportunity (which I won’t rehash because I’m still angry) we who care about Civil Rights and Equal Opportunity will have to consider the judicial system hostile to those causes going forward. Any legislative strategy has to consider the courts will restrict and strike down any form of law aimed at equity. For most of America’s history that has been the case, and we have returned to that America. Our only hope is for liberals, progressive, and leftists to treat the Supreme Court like it’s THE issue. I’ve become a single issue Supreme Court voters, and I advice anyone who cares about issues of racial justice, woman’s reproductive rights, the environment, gun regulations, or corporate influence peddling to join this cause. I’m a single issue Supreme Court voter, and you should be too.
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News round up by dopper0189, Black Kos Managing Editor
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It is easy to think of the Supreme Court’s decision invalidating Harvard and UNC-Chapel Hill’s affirmative action programs as the end of a long road.
A court with a Republican-appointed majority has been chipping away at the legality of using race to allocate state benefits since the Reagan administration. And a young lawyer in Reagan’s White House by the name of John Roberts candidly condemned state affirmative action measures in blunt terms as “highly objectionable.” Now, after Roberts’ opinion Thursday, “objectionable” has become “unconstitutional” thanks simply to the changing composition of the court.
Even if this week’s decision is the final flourish of a conservative legal project that has been in the works since the 1980s, it may also signal the opening of a new chapter in the history of American struggles over race. A conservative majority of the Supreme Court could well build on this ruling to undermine further efforts by the government and firms to identify and address harms that fall distinctively on racial and ethnic minorities.
There are two important ways in which this week’s decision may be the beginning, and not merely the closing of a chapter, for the court. The first would move the law in a meaningfully more conservative direction. The second, if fully realized, would have destabilizing legal and political consequences on par, or greater, than last year’s decision to throw out Roe v. Wade. The first, and the most likely, “next shoe to drop” after this week’s ruling is a decision invalidating what are called “disparate impact” rules. The idea behind disparate impact is simple: Often, people who act for bad reasons don’t wear their racist motives on their sleeves or are simply negligent about the way their actions entrench past, race-based disadvantage. So disparate-impact laws allow a plaintiff to prove they encountered discrimination by pointing to large and unexplained racial disparities. ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Biden slams Supreme Court ruling on affirmative action. CNBC: Biden slams Supreme Court affirmative action ruling, says it cannot be ‘the last word’
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President Joe Biden hammered the Supreme Court over its Thursday ruling striking down the use of affirmative action in college admissions, saying the decision “walked away from decades of precedent.”
But he urged schools not to stop considering racial adversity for applicants altogether.
“We cannot let this decision be the last word,” Biden said in a White House address. “The court can render a decision but it cannot change what America stands for.”
Speaking on MSNBC’s “Deadline: White House” later Thursday, Biden said the current Supreme Court has “done more to unravel basic rights and basic decisions than any court in recent history.”
“I think that some on the court are beginning to realize that their legitimacy is being questioned in ways that it hasn’t been questioned in the past,” Biden said.
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A white Mississippi district attorney has resigned after more than 30 years on the job, during which he prosecuted a Black man six times in the shooting deaths of four people and excluded Black people from juries in a practice that led the U.S. Supreme Court to overturn the man’s conviction and death sentence.
Doug Evans is stepping down Friday, six months before his term ends. He did not immediately return a phone call Thursday seeking comment.
He unsuccessfully ran for a judgeship in 2022 and was not seeking reelection as district attorney this year in a north-central Mississippi district that covers seven counties.
Evans has been in office since 1992, and his jury selection tactics were scrutinized for years. His exclusion of Black jurors caused the Supreme Court to overturn the final conviction of Curtis Flowers in June 2019, with Justice Brett Kavanaugh citing a “relentless, determined effort to rid the jury of Black individuals.”
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The group is unlikely to pack its bags. But African states may rethink Russia’s reliability The Economist: What next for Wagner’s African empire?
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Until the events of the past week it seemed that the Wagner Group’s next outpost was more likely to be Burkina Faso than Belarus. But on June 27th Yevgeny Prigozhin arrived in the latter, as part of a deal between the mutinous leader of the paramilitary network and Vladimir Putin. From there Mr Prigozhin hopes to run the brutal African operations that have become crucial not just to his empire but to the Kremlin’s approach to the continent.
Wagner has carried out “a huge number of tasks in the interests of the Russian Federation” in African and Arab countries, Mr Prigozhin complained in a Telegram message on June 26th. The mercenary group has sent fighters to five African states, including the Central African Republic (car) and Mali, where its operations will continue, insisted Sergey Lavrov, Russia’s foreign minister. Wagner has also had some sort of presence in at least another seven countries on the continent (as well as Syria).
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William O’Neill says ‘survival of a nation’ is at stake and also calls for deployment of an international force. The Guardian: UN expert calls for arms embargo on Haiti amid gang violence
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A UN official has called for an immediate arms embargo for Haiti and an intervention force to combat endemic gang violence in the Caribbean state, after the killings of more than 200 gang members in recent months.
William O’Neill, who was appointed in April as an expert on human rights in Haiti, added his voice to growing calls for an international intervention in the country, which has descended into crime-fuelled anarchy since the murder of President Jovenel Moïse in 2021.
Speaking at a press conference at the end of a 10-day trip, during which he met civil society leaders, government officials and victims of gang violence, O’Neill described “a country bruised by violence, misery, fear and suffering”. He said: “It is urgent to take action. The survival of an entire nation is at stake.”
O’Neill said the absence of government was palpable and was affecting people’s access to water, food, health, education and housing. While Haitian authorities faced “immense challenges”, he said, the government had a duty to respond within its limited capabilities.
“Entire neighbourhoods are left to their fate, without access to any public service,” he said.
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The justices ruled in two cases challenging President Joe Biden’s authority to forgive federal student loans under a 2003 law called the HEROES Act. NBC NEWS: Supreme Court kills Biden student loan relief plan
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The Supreme Court on Friday invalidated President Joe Biden’s student loan debt relief plan, meaning the long-delayed proposal intended to implement a campaign trail promise will not go into effect.
The justices, divided 6-3 on ideological lines, ruled in one of two cases that the program was an unlawful exercise of presidential power because it had not been explicitly approved by Congress.
The court rejected the Biden administration's arguments that the plan was lawful under a 2003 law called the Higher Education Relief Opportunities for Students Act, or HEROES Act. The law says the government can provide relief to recipients of student loans when there is a “national emergency,” allowing it to act to ensure people are not in “a worse position financially” as a result of the emergency.
Chief Justice John Roberts said the HEROES Act language was not specific enough, writing that the court's precedent "requires that Congress speak clearly before a department secretary can unilaterally alter large sections of the American economy."
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The Supreme Court just effectively ended colleges’ ability to consider race in admissions. Here’s what could happen next. VOX: Can college diversity survive the end of affirmative action?
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Affirmative action as we know it is gone. In a 6-3 ruling today in the case of Students for Fair Admissions v. Harvard and a companion lawsuit against the University of North Carolina at Chapel Hill, the conservative majority on the Supreme Court discarded decades of legal precedent by ruling that colleges may no longer consider race when admitting students.
The Court was unmoved by the near-unanimous belief among people who run colleges that student diversity is essential for education, or by the many barriers that continue to stand between students of color and college degrees. Because nearly all private colleges, including Harvard, receive federal funding, they are now subject to the court’s brand-new interpretation of the 14th Amendment’s ban on racial discrimination.
That creates an enormous challenge for college leaders and admissions staff. The higher education institutions affected by this ruling will almost certainly not relent on their stated commitment to recruiting a diverse student body. But they’ll need to find new ways of making good on that commitment with methods that (they hope) won’t run afoul of the Supreme Court.
History suggests it will be difficult to fully replace the strategies that the Court just declared illegal, particularly at first. That’s especially true given that many forms of affirmative action for the white and wealthy still stand: The Ivy League crew team recruit with mediocre grades won’t be touched by this decision.
A diverse higher ed landscape is still possible after SFFA v. Harvard, but will colleges, especially of the elite variety, be willing to upend the old ways of doing things and commit to new investments to achieve it?
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