Tag Archives: Supreme Court

Will California Voters Bring Back Affirmative Action?

Will California voters pass Proposition 16 and bring back Affirmative Action?

In California today, African American and Latino students make up 60% of high school seniors in public schools statewide, and, yet they represent only 29% of undergraduates of the UC system at all campuses.

That statistic is “a measure of the dramatic disparities that we continue to see in the state of California that we are not able to address aggressively because of Proposition 209, enacted in1996,” said Thomas Saenz,  Chair of the Mexican American Legal Defense and Educational Fund (MALDEF), at an EMS telebriefing on September 18.

Saenz called the divisive measure which banned the use of Affirmative Action techniques in public education, a ‘misleadingly labelled California Civil Rights Initiative.”

Twenty four years after voters banned race and gender preferences in admissions to public universities in California, Proposition 209 is on the chopping block. In its stead, Proposition 16 is on the ballot to restore Affirmative Action in the upcoming November election.

The wrangling over race-based college admissions is part of an ongoing nationwide debate over Affirmative Action, which is under siege as it battles legal challenges by opponents in the Supreme Court. Last month, the Washington Post reported that the Department of Justice accused Yale University of illegal admissions discrimination against white and Asian American students.

In California which is already grappling with pandemic-driven economic and health crises, as well as blistering protests against racial injustices, overturning Prop. 209 is proving to be contentious for Affirmative Action advocates.

At the briefing, proponents of YES on Proposition16 sought to explain why they are seeking to repeal Prop. 29 on the November ballot. These civil rights leaders support Affirmative Action as an effective tool for bridging racial inequities in higher education and the workplace.

Over the last six months, the pandemic has exposed systemic inequities and disparities experienced by people of color, said Saenz.  A crippling economic recession, restrictive public health measures, and the police brutality that triggered the Black Lives Matter (BLM) movement, have forced the nation to acknowledge that communities of color face the brunt of systemic injustice and discrimination.

The pandemic has shown that higher rates of infection and death occur among communities of color, stated Saenz, while the economic recession has particularly hit African Americans, Latinos and Asian Americans, who have endured severe job loss and reduction in wages.

But, the BLM demonstrations which invigorated a necessary discussion on reforming law enforcement practices in the country, clearly frames why passing Prop 16 is vital.

Impact of Prop. 209

Prop. 209 is responsible for the shortage of qualified officers and sheriffs deputies in California, stated Saenz. Counties and cities in the state “could not engage in targeted hiring of Black, Latino or Asian American officers,” solely because of Prop. 209.

“What Prop. 209 did was to add a paragraph to the state Constitution, prohibiting the use of Affirmative Action techniques – race conscious, gender conscious techniques in public education, public employment and public contracting,” he commented.

It posed curbs on K-12 public education and higher education, that culminated in a dramatic drop in the number of African American and Latino students on University of California campuses, noted Saenz, adding that, “most notoriously, the University of California Law School at Berkeley ended up with just one African American student in the first class selected after Prop. 209.”

Proposition 209 passed in 1996 with 55% of the California vote, but, an LA Times exit poll reported that a super majority of voters opposed Prop 209 with 79%  Latino, 74% African American, 61 % of Asian Americans and 52 % of women of all races voting NO on the measure.

Twenty four years later the impact of Prop. 209 is still evident. But as demographics of voters have changed in California, said Saenz, he racially divisive measure would have had a totally different outcome if the percentages of “super majorities’ among voters of color in opposition to Prop 209 apply today. Now voters of color form almost 42% of registered voters in California, a substantially higher figure than those that went to the polls than1996.

The Supreme Court & Affirmative Action

Another change is that the US Supreme Court has considerably narrowed the circumstances under which any public entity can employ race or gender-based Affirmative Action, restrictions which will apply in California even if Prop 16 passes. It has has weighed in on Affirmative Action programs since 1996, said Saenz, citing cases from the University of Michigan and University of Texas as evidence. The upshot is that the Supreme Court has become much more ‘descriptive’ about what is permitted and what is required in pursuing Affirmative Action.

Since 1978, the Supreme Court has prohibited the use of quotas or ‘set asides’ based on race or gender in the public realm. It also has mandated that any public entity considering Affirmative Action must first undergo a ‘rigorous analysis’ of disparities and consideration of policy changes before they put in place a narrowly tailored program to consider race or gender. That would involve for example, examining disparities in the percentages of 12 graders versus undergraduates, identifying the causes of those disparities, and considering race or gender-neutral approaches to address them, before implementing Affirmative Action measures.

This could result in positive effects for all races and genders created as a result of Prop.16, noted Saenz. However, despite the Supreme Court requirement that predates Prop. 209, the UC system has prevented the rigorous examination of such disparities.  Prop. 209 unfortunately, has prevented state policymakers from engaging in the careful consideration of policy approaches that could help resolve the problem.

At its core, Affirmative Action is intended to correct socio-economic equities that go back generations. Together with the Supreme Court requirement for scrutiny, Prop. 16 will help eliminate biased criterion from hiring practices or university admissions in the public arena. For example, it could remove discriminatory standardized tests from the university admissions process, since they do not co-relate to student performance after their freshman year, and it would put pressure on policy makers to engage in the rigorous analysis of disparities.

Given the fallout of the pandemic on people of color, passing Prop. 16 is critical to the future of equal opportunity for people of color in California, reiterated Saenz.

The term Affirmative Action may have worn out its political welcome, but will California voters see Prop. 16 leveling the playing field or simply as a zero sum game?

Meera Kymal is a contributing editor at India Currents

Photo by Matteo Paganelli on Unsplash

Are Workplace Rights Equal For All?

The struggle at the core of every movement for equality is a right. The right to vote. The right to marry. The right to not be killed. At the core of each is a struggle for respect, to be treated like a human being and to exist without prejudice or discrimination.

Legalizing gay marriage is considered a huge step in favor of LGBTQ+ rights in American history. But people often dismiss the post-legalization discrimination that occurs by assuming that gay people are “equal” now. However, the decision of nine supreme court justices cannot change a longstanding culture of internalized homophobia and discrimination.

On June 15, the Supreme Court of the US made a milestone decision: firing people on the basis of being LGBTQ+ is unconstitutional. This  case Bostock v Clayton County, clarified  the stipulations of Title VII of the Civil Rights Act, becoming the first national bill to do so. Though it advocates for gender and sexuality rights and ensuring people get the rights they deserve, the bill  does not cover all people and situations, which could let discrimination continue.

Bostock v Clayton County began because the Trump administration questioned whether or not Title VII extends the protection of people based on sex to protecting people based on gender identity and sexuality. Title VII, passed in the Civil Rights Act of 1964 prohibits “employment discrimination based on race, color, religion, sex, and national origin”. In other words, people cannot be fired on the basis of things they cannot control.

While the prohibition only mentions “sex”, the interpretation is that it also bans employment discrimination on the basis of sexual orientation and gender identity, but that was not confirmed until the SCOTUS decision in June.

The Bostock v Clayton County decision is as important as the Obergefell v Hodges decision of 2015 which legalized gay marriage. Before this, the LGBTQ+ community had to rely on a “patchwork of state nondiscrimination laws,” and in 25 of the 50 states, there was no protection at all. 

Another important aspect of the decision is the grouping together of gender identity and sexual identity rights which will allow future decisions applicable to the entire LGBTQ+community. One issue, however, is how Title VII is applied. By definition, LGBTQ+ people in workplaces of less than fifteen can still be discriminated against and can still be fired.

The Religious Freedom Act of 1993 (RFRA)  may call this decision into question. RFRA prohibits the government “substantially burdening a person’s exercise of religion”, which means that those who are religious could theoretically say that their religion does not allow them to hire LGBTQ+ people. RFRA actually supersedes Title VII, operating as a “super statute” according to Supreme Court Justice Neil Gorsuch. But it is unclear as to how much the RFRA interacts with Title VII because that only applies when governments attack religious freedom, such as banning crosses.

The major conflict between the LGBTQ+ community and the government is how religious freedom interacts with human rights because many religions claim that their religious tenets allow discrimination against LGBTQ+ folk. It will be the focus of Fulton v the city of Philadelphia, a case that will examine whether religious (childrens) organizations can reject those ( LGBTQ+ parents for example), who in their view are not aligned with their doctrine. 

The case is essentially about whether gay couples can adopt children. Religious rights are constitutionally protected  in the Bill of Rights,  so what’s at stake is whether religious institutions can manipulate that right to discriminate against others.

But shouldn’t the basic right  to exist as a human being be upheld above religious rights?

Religion cannot be used as an excuse to discriminate against entire communities, especially those who are so marginalized.  Currently, the Trump administration is trying to roll back medical care for the LGBTQ+ community, which could cost lives, depending on how states respond. Which is why cases like this matter so much. Last year nine Republicans introduced the Fairness for All Act, which prohibits discrimination except when religious groups find it against their doctrine. While it is marketed as a compromise, it could possibly greenlight LGBTQ+ discrimination, making it dangerous.

The government has to explicitly give the community these rights, so people’s livelihoods and lives are not at risk. 

A government that risks its people’s lives is a government that has failed its people. 

Congress will be the next battleground for LGBTQ+ rights. The Equality Act passed in the House last year but has not come closer to becoming law. It bans discrimination on the basis of sexual orientation/identity in employment, housing, credit, education, public spaces and services, federally funded programs, and jury service. The bill’s sponsor, Rhode Island Democrat Representative David Cicilline is hopeful, as five years ago, such a bill wouldn’t have been heard on the floor, let alone pass the House. Sadly, the bill never made it to the Senate floor. 

While people in the Bay Area and other progressive parts of the country may assume that LGBTQ+ people have “equal for all” rights, that’s not the case on a federal level.  In the ideal world, LGBTQ+ people would unquestionably have equal rights and never would have needed additional legal protection. We cannot pretend otherwise. 

Kaavya Butaney is a sophomore at Los Altos High School in Los Altos, CA. She writes for her school newspaper, The Talon, and loves speech and debate and choir. Kaavya is an intern at India Currents.

Edited by Meera Kymal, contributing editor at India Currents.

Image by Wokandapix from Pixabay

Photo by Ian Taylor on Unsplash

 

Census Poses No Risk to DACA Holders, Experts Say, Encouraging Participation

Featured Image provided under licensing with no changes made

Today we continue with our occasional series meant to answer the most frequently asked questions regarding the census. If you have a question or doubt about the census, please write to pilarmarrero700@gmail.com and we will consult the experts to get the answers. These questions were gathered through social media. 

Question: “I am a citizen and I live with my boyfriend, who has DACA. If the Supreme Court approves ending DACA, should I include my boyfriend’s information in the census count of my household? I am afraid including him may have negative consequences for him.”

The DACA program, a deferred-action decision allowing temporary legal status to hundreds of thousands of immigrants who arrived in the United States as children, was put in place by President Barack Obama in 2012. In 2017, the Trump administration announced it would phase out the program, alleging that it was illegal from the very beginning.

Several lawsuits argued that Trump´s planned termination of DACA violates federal law requiring certain procedures before major rules are changed, as well as equal protection and due process guarantees.

Federal courts issued nationwide injunctions blocking the administration´s plans to end DACA and forcing the continuation of program renewals. The Supreme Court took up the cases before lower courts had fully heard them, an unusual step. A hearing was held in November in front of the Supreme Court, which could issue its ruling at any time before June.

That means the final decision on DACA could come in the middle of census field operations, which start in remote areas of Alaska in January and continue through several phases up until the end of July. 

More than 700,000 people in the United States have active DACA permits, and they often live in mixed-status families with others who have a variety of immigration situations or are native-born citizens. People may fear that they are putting family members in some kind of danger by naming them in the household´s census response. 

But that is not so, said Daniel Sharp, legal director for the Central American Resource Center in Los Angeles, a leading organization helping young immigrants with DACA become aware of their rights under terms of the policy. 

Sharp worries that DACA holders or their families won´t participate in the census due to the misconception that their name and other information could be disclosed to the Department of Homeland Security and used against them for potential immigration enforcement. 

“There´s a two-part answer to that question,” Sharp said. 

The first is that the Census Bureau has very strict laws about sharing personal information. “The confidential protection laws that apply to the census information are among the strongest that exist in our laws,” Sharp said. “The U.S. Census Bureau is prohibited from virtually all inter-agency information sharing.” 

That means the Census Bureau can´t disclose the person´s name, their immigration status or any other information. It can only share “aggregated data,” meaning  how many people are in a particular demographic group, for example, but cannot pass on any individual´s information to any other department of the government. “This is by law,” Sharp added. 

The second answer to that question is that adding the DACA holder to a particular household´s census answer does not give the government any additional information it does not already have due to the person´s having applied for DACA. 

“The federal government already has all this information,” the lawyer said. “Whatever risk of deportation the individual DACA holder has is independent of whether or not they participate in the census. They have given their information to the government when they applied and renewed their DACA. Even if they moved, the government could track their social security number and find where they work or live.” 

Furthermore, the information given to the government by DACA holders is protected under terms of the 2012 policy stipulating that the government may not use the information for immigration enforcement unless the person poses a national security risk. 

The issue itself is in litigation right now. The federal government is under a nationwide injunction to follow its original 2012 promise about not sharing or using DACA recipients’ private information for enforcement purposes against them or their family members unless certain circumstances exist, such as that the person poses a national security threat or has committed certain crimes.

Sharp says that adding DACA holders to the census responses in the household where they live is “desirable and encouraged. The information is safe, and it´s important to be counted.”

Sharp also recently emphasized that even in the case of an adverse Supreme Court decision on the DACA program, most of those affected would still have the right to defend themselves in court against a deportation order and are likely to be able to stay in the country for years, even in that worst-case scenario.

Activists and lawyers want to make sure that every DACA holder is counted in the census because even if they spend years battling to legalize their status in the long term, they have the right in the meantime to get the resources and services everyone else gets from the once-every-10-year population count. 

 

Legalizing Gay Sex in India Does Not Mean Getting Rid of Discrimination

This revolution was televised.
I watched on TV as friends of mine huddled together in a café in Kolkata as the verdict on Section 377 came out. They had come with rainbow flags and hope but until the last minute, there was an air of nervous expectation as if they were waiting for board examination results to come out.

 

Sandip Roy’s article first appeared on Firstpost.

This article was curated by Culture and Media Editor Geetika Pathania Jain.

Cover photo credit: Creative Commons Image by Vinayak Das