The Systemic Systems Of Racism Are Alive and Well
Minneapolis proves systemic racism is still a problem after all
A large part of what I do by way of content creation deals with discussing topics of interest relating to issues of constitutional law, legal theory & politics and calling bullshit when necessary. And I try to hold people and groups I otherwise agree with accountable, just as much as those I otherwise disagree with.
Calling spades spades in spades.
In furtherance of this mission tonight I will be looking at a topic that I must admit I have been entirely wrong about up until this point. That is the existence of systemic racism. Just to be perfectly clear I don’t mean any and all racism. Racism has been, is now and sadly, will likely always be a peculiar feature of the human condition that will always exist in some form amongst some people.
I also do not mean to imply systemic racism has never been real. Of course it has and recently enough that they are people who are alive today that can bear witness to the very real existence of systemic racism here in the United States. such as Jim Crowe laws. including my main top of focus. Constitutional law.
There are 3 cases that have properly been resigned to the body of anti-canonical case law that instituted systemic racist policies.
Dred Scott v. Sandford, 60 U.S. 393 (1856) held, in the appalling words of Chief Justice Roger Taney “A black man has no rights a white man is bound to respect”…
Plessy v. Ferguson, 163 U.S. 537 (1896) the Supreme Court upheld the doctrine of “Separate but equal” as perfectly acceptable in spite of the 14th amendment’s equal protection clause.
Korematsu v. United States, 323 U.S. 214 (1944) the court affirmed the executive decision made by FDR in 1941 to exclude all American citizens from their homes in certain military zones on the west coast, if the American citizens in question happened to be of Japanese descent
I would also add one case that is not considered anti-canonical that, in my opinion should be. That’s 1841’s Prigg v Pennsylvania which upheld the Fugitive Slave Act…
My point in all this being that while there are still some policies we find in effect today in which people may claim are the result of systemic racism playing vague role. But you don’t really find systemic racism plainly and openly admitted to as policies which no one questions are racially discriminatory.
But yet again, just when I thought our wise overlords in government here in my home town of Minneapolis could not possibly stoop to a new low, this city dares to dream that impossible dream and to implement outright, undeniable, clearly systemically racist policies.
They have instituted policies regarding the teachers union to settle a two week teacher strike that had been going on recently. So let’s talk about this very racist, very unconstitutional change in policies regarding the teachers union
The Minneapolis Public Schools have adopted a race-based layoff provision that violates the Constitution and Title VII of the Civil Rights Act. "A Minneapolis teacher’s union contract stipulates that white teachers will be laid off or reassigned before "educators of color" in the event Minneapolis Public Schools (MPS) needs to reduce staff,"
According to an article by Eugene Volokh on Reason.com after the Minneapolis Federation of Teachers (MFT) and MPS struck a deal on March 25 to end a 14-day teacher strike, the two sides drew up and ratified a new collective bargaining agreement complete with various proposals.
One of the proposals dealt with "educators of color protections." The agreement states that if a non-white teacher is subject to excess, MPS must excess a white teacher with the "next least" seniority.
"Starting with the spring 2023 Budget Tie-Out Cycle, if excessing a teacher who is a member of a population underrepresented among licensed teachers in the site, the District shall excess the next least senior teacher, who is not a member of an underrepresented population," the agreement reads.
This violates a well-known Supreme Court decision overturning the race-based layoff of a white teacher, and contradicts a well-known federal appeals court decision, which ruled that race-based layoffs of white teachers violate Title VII of the Civil Rights Act.
It is illegal under Title VII of the Civil Rights Act. When it comes to termination (as opposed to hiring or promotion under an affirmative-action plan), an employer can't racially discriminate even against whites. The Third Circuit Court of Appeals ruled in 1996 that an school district can't consider race even as a tie-breaker, in deciding who to lay off, even to promote diversity, because that (a) unduly trammels the white teacher's rights — even affirmative action plans are supposed to be mild and not unduly trammel someone's rights, and getting fired as opposed to being denied a promotion unduly trammels someone's rights — and (b) putting that aside, the school district couldn't consider race to promote diversity when black people weren't seriously underrepresented in its workforce as a whole. That ruling was Taxman v. Board of Education of Piscataway, 91 F.3d 1547 (3d Cir. 1996).
It is also unconstitutional, for more complicated reasons, under the Supreme Court's decision in Wygant v. Jackson Board of Education (1986). In that case, the Supreme Court overturned race-based layoffs by a 5-to-4 vote. Five justices said a school district can't lay off white teachers to remedy societal discrimination against blacks. Four of those five also said that the Constitution forbids laying off people based on race (as opposed to considering race in hiring and promotions) even to remedy a school district's own discrimination. (Justice Powell's opinion announcing the judgment of the court, and also Justice White's concurrence).
The fifth justice who voted to strike down the race-based layoff of a white teacher in that case (Justice O'Connor) seems not to have reached that issue because she said there was no reason for the school system in that case to consider race in anything (even hiring or promotion, much less layoffs), because the district didn't claim it was remedying its own discrimination, as opposed to societal discrimination (societal discrimination is never a valid reason to use race, according to the Supreme Court's decision in Richmond v. J.A. Croson Co. (1989)).
But Justice O'Connor also said the layoff provision was unconstitutional because it was tied to a hiring goal that has no relation to the remedying of employment discrimination, and thus was not "narrowly tailored." Minneapolis's race-based layoff provision is unconstitutional for similar reasons: It applies based on a yardstick unrelated to remedying employment discrimination — whether a group is "underrepresented among licensed teachers in the District." Underrepresentation does not prove discrimination: The Supreme Court ruled that the fact that blacks were severely underrepresented among city contractors did not prove discrimination against black people that would justify affirmative action in their favor, in its decision in Richmond v. J.A. Croson Co., 488 U.S. 469 (1989).
The provision also appears to be unconstitutional for yet another reason, because there does not appear to be a "strong basis in evidence" for the collective bargaining agreement's claim that there are "continuing effects of past discrimination by the District." The Supreme Court requires proponents of racial preferences to have a "strong basis in evidence" for the claim that blacks were subjected to discrimination by the institution giving them a preference, and that there are lingering effects of that discrimination. See, e.g., Shaw v. Hunt, 517 U.S. 899 (1996).
That means evidence of recent, widespread, intentional discrimination. (see Vitolo v. Guzman ([6th Cir.] 2021); Middleton v. City of Flint([6th Cir.] 1996); Hammon v. Barry ([D.C. Cir.] 1987)).
Since the teachers union supported the adoption of this discriminatory provision, it may also be liable for discrimination along with the school district. Unions are subject to liability for racial discrimination under Title VII and 42 U.S.C. 1981, see, e.g., Woods v. Graphic Communications(1991), and the Supreme Court has ruled that people who conspire with the government to discriminate can sometimes be sued along with it under the Constitution, see Adickes v. S.H. Kress & Co. (1971).
The race-based layoff provision also violates the law against racial discrimination in contracts, 42 U.S.C. 1981, for essentially the same reasons it violates the Constitution. See Gratz v. Bollinger, 539 U.S. 244, 276 n.23 (2003) (racial preference that violated the Constitution also violated 42 U.S.C. 1981).
You can also read the agreement itself, from a Mpls St Paul magazine story (Madison Bloomquist & Winter Keefer) about the contract in March.
The city council say they have no immediate plans to further fight systemic racism by giving minority groups a safe space, in the form of mandating racial segregation in all schools, courts, parks, buses and other public transit and government property. As well as protecting minority communities by making sure they are safe through a separation from all other communities. They maintain government protection through racial segregation is the surest way for the government to protect racial equality.
They remain optimistic these, and other, anti-racist measures will end racism by perpetuating a policy of racial discrimination against one particular race. Whom they tend to blame as somehow secretly being responsible for everything bad that happens to minorities. They are also hopeful about assuaging some of the guilt they have for past wrongs they did not commit. As well as their fervent belief that ending racism simply requires “doing something” even if its success rate is found to fall somewhere between entirely unhelpful and actively harmful.
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