Proposition 8 Gets Kicked Up a Notch

A quick recap. In May 2008, the California Supreme Court ruled that the California Constitution requires that same-sex couples are entitled to “marriage” just as much as heterosexual couples. Soon thereafter, opponents of the ruling began the process of placing a proposed constitutional amendment on the November ballot, which would explicitly prohibit same-sex marriage. The ballot initiative was placed on the ballot as Proposition 8 and passed by a disturbing margin. Same-sex marriage proponents went to court in an attempt to argue that the initiative marked such a fundamental change in civil rights protections in California that it should be considered a revision, not an amendment. The California Supreme Court disagreed.

And now we’ve reached U.S. District Court for the Northern District of California, the Honorable Judge Vaughn Walker presiding. Judge Walker is a fan of the law, not of politics. He has shown that he has no qualms about ruling against the Bush administration when it comes to warrantless wiretapping; however, once Congress passed a law granting the administration immunity from prosecution, Judge Walker was forced to dismiss the case. Whatchagonnado, eh? (Michelle Malkin has unsurprisingly called Judge Walker a “liberal activist judge” despite his being a Republican. You stay classy, Michelle.)

Judge Walker heard oral arguments this morning in Perry v. Schwarzenegger, in which Judge Walker will decide whether or not Proposition 8 violates the federal Constitution’s Fourteenth Amendment guarantee of equal protection and Fifth Amendment guarantee of due process. A motley crew of litigants will appear before Judge Walker, including former U.S. Solicitor General Theodore B. Olson, a George W. Bush appointee, who will be arguing against Proposition 8.

Judge Walker wanted the trial broadcast on YouTube, but the U.S. Supreme Court, which has ultimate jurisdiction over all federal courts, blocked the coverage.

The trial is a very big deal for civil rights advocates. If the case were to make it to the U.S. Supreme Court (which it will no matter what; neither side would fail to appeal if it lost), every state statute and constitutional amendment forbidding same-sex marriage would hang in the balance, as would the federal Defense of Marriage Act, which prohibits the federal government from granting the rights of heterosexual marriage to same-sex couples.

Highlights from the oral arguments include Judge Walker wondering why the state even needs to be in the business of regulating who can marry whom, and how anti-miscegenation laws were once believed to be just as valid as anti-same-sex marriage laws are today.

Charles Cooper, speaking on behalf of Proposition 8, framed the defense this way: the voters approved it, so it’s the law now. And same-sex couples have California’s domestic partner statute, which explicitly states that no right given to married couples by the state can be denied to domestic partners. Cooper also argued that same-sex marriage laws are different from miscegenation laws because the former are designed to preserve “traditional marriage.” Cooper then raised the spectre of marriage being “pro-child,” but curiously does not address why, if that is true, the state does not require fertility testing as a condition of obtaining a marriage license. Clearly, if one of the state’s reasons for regulating marriage were to promote mating, then it would not permit infertile couples to marry. This issue is often not addressed by proponents of the marriage-is-for-children argument.

How could this end up? Lots of ways. Assuming that marrying someone of the same sex is a right (and, indeed, assuming that marriage is a right at all), the amendment is unconstitutional on its face. It denies “equal protection of the laws” to same-sex couples and denies them “liberty” without “due process of law.” The appropriate avenue for this to be legally supported would be the same way that anti-miscegenation laws were struck down.

The court could rule a different way; namely, that same-sex marriage is not a right. This would be difficult to support, given the fact that sexuality — like skin color, gender, or ethnicity — is clearly not a choice. It should also be disturbing to Judge Walker that the California Constitution allows a simple majority to deprive a minority of “life, liberty, or property” without “due process of law.”

The trial continues.

Review of Freedom’s Orator

Freedom’s Orator: Mario Savio and the Radical Legacy of the 1960s.

by Robert Cohen Oxford University Press, 532 pages, $34.95

It probably wasn’t until seven years after his death that a Mario Savio speech would reach its largest audience – albeit in altered form.  Anyone of a certain age who detected an echo of Savio’s 1964 “gears of the machine” speech in the 2003 season finale of Battlestar Galactica was not having one of those legendary acid flashbacks.  The show’s producer had been looking at a copy of the speech hanging on his wall for five years and it was with the permission Savio’s widow that the character known as “The Chief” delivered a paraphrase of the words that led into the famous Free Speech Movement (FSM) sit-in at the University of California, Berkeley’s Sproul Hall.

Probably more of Savio’s peers saw the clip of his original speech in another television show, though, Martin Scorsese’s 2005 Bob Dylan documentary, “No Direction Home.”  Only fitting in that, as FSM principal Jack Weinberg told Robert Cohen, author of the Savio biography, “Freedom’s Orator,” back then “If you named … young people who were famous, all the rest were rock musicians … [the] Beatles and Bob Dylan–and Mario Savio was a celebrity of that caliber.” Since it was Weinberg’s arrest that set off the thirty-two hour blockade of a police car that created FSM, he may lack sufficient distance to make such a judgement, but then it is a fact that, upon finishing his speech that day, Savio turned the mike over to Joan Baez for a rendition of her friend Bob Dylan’s “The Times They Are A Changin.”

When Mario Savio enrolled at UC Berkeley in 1963, it was his third college in three years.  Berkeley already had a free thinking reputation when he arrived.  That fact was the better part of why he was there: There was a serious student political party of several years standing called SLATE; Cal students had participated in major San Francisco demonstrations in 1960 at a House Un-American Activities Committee hearing at City Hall and outside the 1964 Republican National Convention at the Cow Palace; and the Civil Rights movement was a campus presence – Savio would be one of 167 arrested at a sit-in protesting the discriminatory hiring policies of the San Francisco Sheraton Palace hotel.  By the time Savio left, the campus had a free speech reputation as well – the man and the institution each having become a nationwide symbol of a new wave of student activism.

A ban on political advocacy on the Berkeley campus dated back to the 1930s, apparently a result of a West Coast Red scare that followed the San Francisco general strike.  There was, however, a twenty-six-foot-strip of sidewalk on Bancroft and Telegraph Avenues where such activity went on because it was believed to be city, not university property.  But in September of 1964, university administrators decided otherwise and shut the free speech area down.  A couple of brief sit-ins protesting the ban at administration offices followed over the next few days.  Then, at a Sproul Plaza rally called in defiance of the ban, administrators decided to arrest the above mentioned Jack Weinberg because he was not currently a Cal student, having dropped out of graduate math studies to concentrate on civil rights activities through a campus chapter of the Congress of Racial Equality.

Cohen writes: “The method used to arrest Weinberg could not have been more provocative … he had been dragged into a police car in the center of Sproul Plaza.  It was the most crowded spot on campus and shortly before noon, the busiest time of day.” A “fairly major level of stupidity,” Savio later observed.  At that moment, the Berkeley sit-in moved to a new level: “Before the officer could start his engine students were sitting in around the car.” Savio, who had already emerged as the leader of protests against the free speech ban, had been sitting on the car’s hood and, he recalled, later, “Sometimes you’re just … gripped by the moment and you have a feel for what’s poetically right.” Then “I took my shoes off.  I didn’t want to hurt the car,” (although he would later bite a cop’s leg – and subsequently apologize profusely), stepped up into history and gave the first speech of the protest that would block the police car for the next day.

The American campus had never seen anything like this before.  And it grew – 6,000 came to a December 2 protest at which Savio gave “the speech” about blocking the machine with your body that swelled the numbers ultimately deciding to sit in at the Administration office building to over a thousand.  Jackie Goldberg, later an LA City Councilor and member of the California Assembly, remembered the people “who walked into that building who had come to the rally not intending to sit in,” but did “because Mario had given that speech that just lifted us four or five inches off the ground.”

But as a speaker at the Sproul Hall memorial service following Savio’s death recalled, it wasn’t just that speech, but the fact that so many students had already heard Savio many times articulate their growing sense that right was on their side over the preceding months.  Literary critic Wendy Lesser considered him “the only political figure of my era for whom language truly mattered … the last American perhaps who believed that civil, expressive, precisely worded, emotionally truthful exhortation could bring about significant change … The sentences he spoke were complicated and detailed, with clauses and metaphors and little byways of digression that together added up to a coherent grammatical whole.” Well, maybe there were a few more besides Savio, but he was definitely a carryover from a pre-sound bite era of detailed argument.

At least a bit of his style can be traced back to Savio’s experience a few months earlier with the Student Nonviolent Coordinating Committee (SNCC) in Freedom Summer which he considered “the event which more than any other created the white student movement” by bringing together “privileged upper- and middle-class youths from northern campuses with the disenfranchised black community of Mississippi.” As Cohen writes, “Having defied the Klan in Mississippi, he was not going to be intimidated by campus officials in Berkeley.” And if there is another figure that Savio resembles, both in his plain spoken but powerful speaking style and his reticence regarding the limelight, it would likely be Robert Moses of SNCC.

The Berkeley free speech advocates ultimately carried the day, although not before Savio was hauled off stage by campus police in front of a crowd of 15,000 at Berkeley’s Greek Theater, another disastrous episode in a series of administration blunders.  His arch adversary, UC Chancellor Clark Kerr later acknowledged that he “was obviously a genius at understanding crowds, appealing to them, and handling situations like that – quite beyond the capacity of any of us in the administration.”

There was a down side to all this, Cohen notes – the “rift between the Left and liberalism [that] would benefit the Right and contribute to the rise of Ronald Reagan” who would win the governorship two years later promising to “clean up the mess” in Berkeley.  Savio was expelled from the university for his actions and would not complete his undergraduate degree for nearly two decades.  In the immediate aftermath of the FSM he was a sought after speaker, participating in the 36-hour 1966 Berkeley Vietnam War teach-in but, as he would say many years later, “ I had trouble during the anti-Vietnam days because it was hard for me to talk about something I had not seen.” He ran a desultory 1968 state Senate campaign as a Peace and Freedom Party candidate, but never showed any inclination to stay in the limelight just because he could.  On the balance celebrity was a burden to him and he retired from public view (although FBI files show that the agency followed his activities for the next decade.)

Jackie Goldberg certainly surprised a few of us at the memorial service who did not personally know Savio with her mention that he was “a very troubled person.” Cohen tells us that he was hospitalized for depression in 1971 and that his eloquence was all the more striking to those who knew him, as he suffered from a severe stutter that he did not shed until the Free Speech Movement.

When he finally returned to college in the 1970s, he was again brilliant, this time in physics, to the point where a professor later included “Savio’s Theorem” in his text book Analytical Mechanics for Relativity and Quantum Mechanics.   When opponents of 1980s US Central America policy pined for a movement to rival that of the Vietnam era, it just came naturally to seek out Savio, whose subsequent seclusion had left his place in the annals of 1960s student activism untarnished.

Savio responded with speeches on a number of campuses that were every bit as thoughtful as before, particularly on the difficulties of mounting efforts against American foreign policy.  Recognizing that the anti-Vietnam War movement did not carry with it the physical dangers that pushing for civil rights did in many locations, he nonetheless defended it as, in some ways, the more difficult effort.  Compared to arguing for constitutional rights, the antiwar case was “less sweet.  I mean there is no way it could be otherwise.  It is an attack rather than a defense,” but “That’s what was needed because the war had to be stopped.” He thought “There was no way to have a decade to catch up so you could educate people so you could talk to them about these things.  In fact what was necessary was what the country got.  It got the best it could, given the time pressure.” Likewise, he thought opposing US Central America policy more difficult that opposing apartheid in South Africa.

In producing his definitive biography, Cohen has included nearly a hundred pages of Savio’s speeches and writings, starting with his 1960 valedictory speech at Martin Van Buren High School in Queens, New York, apparently delivered without hint of his then severe stammer, and ending with a pamphlet co-authored with his son Nadav, “In Defense of Affirmative Action: The Case Against Proposition 209.”   (Some of his speeches are also available at www.savio.org.)

When Savio died of a heart condition at age 53, he was heavily involved in a fight against a tuition increase at Sonoma State University where he lectured in math.   One colleague found his method of continuing to bring student voices to the fore “really wonderful.” He would get journalists to the campus “because it was Mario Savio calling,” but “he would not be there when the reporters came” – so they spoke with student activists instead.

Review of Embedded With Organized Labor

Embedded With Organized Labor: Journalistic Reflections on the Class War at Home, by Steve Early
Monthly Review Press, 288 pages, $16.95

Ed Sadlowski; Jay, Maine; Pittstown Coal, Tony Mazzochi, the Charlestown Five; Ron Carey – as the names float by on the pages of “Embedded With Organized Labor: Journalistic Reflections on the Class War at Home,” it sometimes seems that Steve Early’s new collection of articles must encompass every person, place, or corporation of significance to the labor movement over the past four decades.  Not quite, but actually the volume’s thirty nine essays – most of them book reviews – cover even more ground than that.  For instance, there’s stories of labor journalists from the deep past of whom you’ve likely never heard.  But the topic most of interest to Early, recently retired from the Communications Workers of America but preferring to think of himself as “redeployed,” is the future of the American labor movement.

There was a time when leftists of a certain age asked themselves how they could love a labor movement that didn’t seem to want to love them back. Certainly the welcome mat wasn’t out on that day Early recalls “In May of 1970, [when] hundreds of flag-waving New York City construction workers … attacked a crowd of antiwar demonstrators on Wall Street.”  The breach between labor and the left would actually broaden two years later when the AFL-CIO refused to back George McGovern against Richard Nixon.  The South Dakota Senator would come closer to espousing the politics of the leftists of the day than any other Democratic nominee in their life time, but for AFL-CIO President George Meany he was too antiwar, too radical. Some see payback in McGovern’s current opposition to the Employee Free Choice Act.  But ironically, the individual he cites for past opposition to the concept of binding arbitration that constitutes one of the bill’s components is none other than Meany.

Still some, like Early, persisted.  A few unions like the United Electrical Workers (UE), which to this day maintains the egalitarian tradition of paying no official a salary higher than the highest you can earn under a UE union contract, actually worked with and encouraged student radicals – such as this writer.  (Early drops the sobering fact that this honorable organization – which had half a million members before leaving the CIO in 1949 rather than submit to the government-driven purge of Communist Party members going on in other unions – has now shrunken to 17,000 members.)

Acceptance came much harder in most other unions, though, but ultimately those who didn’t see the labor movement as a collection of “real-life Archie Bunkers who railed against a whole generation of spoiled ‘meathead’ college kids,” would even prevail, to a degree, and by “the fall of 1999,” Early notes, “steelworkers and radical students were seen marching side by side (or at least on the same side) in street protests against the World Trade Organization.”

The signal change of those intervening years was John Sweeney’s 1995 election as AFL-CIO president.  Although a book that Early reviews on that subject bears the tile, “Not Your Father’s Union Movement,” his election did represent a return to the past in the sense that afterward the labor movement would again more or less openly welcome the left as it generally had before the Cold War.  Of course, with Joseph Stalin now more than forty years dead and the Soviet Union itself gone for a decade, this thaw came none too quickly.

Sweeney comes in for his share of criticism in Early’s book, yet it seems fair to say that he did pretty much try to do what he said he would  –  reverse the long term decline of labor that Early notes in the book’s first paragraph: “When I first got involved the labor movement in the early 1970s, unions still represented almost a quarter of the country’s workforce.  Now, unionization is down to 12.4 percent overall and only 7.6 percent in private industry.”  Sweeney had assumed the Federation’s leadership largely on the strength of the fact that his own Service Employees International Union (SEIU) had been an exception to the general downward trend, largely due to the fact that much of its constituency was public employees, more than a third of whom are now unionized.

But Sweeney has not been particularly successful in reversing the overall trend, although SEIU has continued growing to the point where it is has become the nation’s largest union.  And in 2005, Andy Stern, Sweeney’s successor at SEIU, led unions comprising about a third of the AFL-CIO’s membership into a rival Change to Win federation dedicated to doing what Sweeney could not.  About the best thing that can be said about the split to this point is that it has not damaged the labor movement nearly as badly as some had feared.  The overall national percentage of union membership has even risen for the past two years, although it remains lower than before the split.

Not one to see easy fixes for labor’s decline, Early is skeptical that even the Employee Free Choice Act (EFCA) currently pending in Congress will represent the cure-all some hope for.  He cites a Canadian labor relations scholar’s findings that “union density and bargaining coverage are falling even in provinces such as Saskatchewan and Quebec that have card check and first-arbitration clauses” – precisely the EFCA items that its advocates hope will save union representation drives from the often debilitating process of National Labor Relations Board elections and management refusal to bargain.  The measures he thinks are really needed – repeal of “Taft-Hartley Act restrictions on real union solidarity and the Supreme Court’s seventy-year old sanctioning of the use of striker replacement” are not part of political discourse today – “except in the speeches of Ralph Nader.”

And as SEIU has dominated the labor movement of recent years, so it dominates Early’s book, with Stern coming in for fairly severe criticism.  “Since 1996,” he writes, “when Stern replaced Sweeney, 40 SEIU locals – or 14 percent of its 275 affiliates – have been put under trusteeship to implant new officers.”  While he grants that “[S]ome of those ousted ran old-guard fiefdoms,” others just didn’t want to go along with what he views as questionable programs coming from the top, and perhaps the “air of arrogance and exclusivity” emanating from some SEIU staffers or an “attitudinal style … closer … to Silicon Valley entrepreneurs than to veteran staffers of the trade union movement” that one reviewed author describes.

(The largest of these trusteeship battles is currently playing out with the leadership of the newly formed National Union of Healthcare Workers claiming to have filed decertification petitions aimed at taking back close to 2/3 of the 150,000 members it formerly led in SEIU’s now trusteed California-based United Healthcare Workers West.)

The fact that book reviews constitute the core of Early’s book naturally constrains him largely to topics that other writers have chosen and many of the more interesting matters are raised only peripherally.  There is the fairly central question of just what a labor radical is to do.  At the one end are the “colonizers” like Wellesley graduate Elly Leary, interviewed in Staughton and Alice Lynd’s “The New Rank and File,” who spent twelve years building cars at the Framingham, Massachusetts General Motors plant.  Jobs like this were hard enough, Early notes, “without the additional task of proselytizing.” The group of radicals that Leary eventually became part of was just about learning its ass from its elbow on how to proceed sensibly when the plant closed in 1989 and they were deindustrialized out of the working class.

At the other end there is “SEIU’s ‘best and brightest’” who come in for Early’s criticism because “most have never been a janitor, security guard, nursing home worker, home health care aide or public employee.”  Of course, Early himself came in for that very criticism back in the mid-1970s as he recounts in the book’s first piece: when he was interviewing coal miners for the United Mine Workers Journal, one obviously wary miner politely shook hands with him, then “looked me in the eye and said knowingly, ‘Ah, pencil hands.’”

And then there’s the question of why the labor radicals do what they do.  I don’t think I’m going too far out on a limb in saying that most of the people we encounter in these pages saw themselves as socialists, if not by that name precisely then by some synonym they thought more appropriate to the time and place.  They weren’t motivated just by the hope of a better labor movement, but of a better country, a better world – and they saw the labor movement as the best means to that end.  For that sort of thing we will have to wait for Early’s next book, though – he is currently writing his history of the sixties radicals and the labor movement.  But the current book will give you plenty to chew on for the moment.  And, oh yes, it comes with an excellent index, unusual in an essay collection, but extremely useful because this book is dense – and I mean that as a complement.

Review of West of the West: Dreamers, Believers, Builders, and Killers in the Golden State

West of the West: Dreamers, Believers, Builders, and Killers in the Golden State
by Mark Arax
Public Affairs: 350 pp., $26.95

It’s coming to America first, the cradle of the best and of the worst.

“Democracy,” Leonard Cohen

As America is to the world, so is California to America. If you’re looking for the greatest opportunities and the biggest dreams – along with the biggest absurdities and the greatest atrocities – well, you go to the U.S. of A. And if you’re already there, in one of the other forty-nine states, why then, you go west. Or, more precisely, as author Mark Arax notes, you go west of the West which is where Teddy Roosevelt said he felt he was when he was in California. You might say that California is America to the next degree – America squared.

Much of the rest of the country’s knowledge of the Golden State is limited to the Pacific Coast from San Francisco down to Los Angeles or maybe San Diego. Not that this doesn’t encompass a lot – this 550 mile stretch includes the country’s largest county, Los Angeles (whose nearly ten million population almost doubles that of runner-up Cook County, Illinois) along with four of America’s thirteen most populous cities. Arax wrote for the Los Angeles Times for twenty-seven years, so his new collection of essays, “West of the West” does cover this well known California, but ultimately he is not of it and his writing on it is not his best work.

“Eyre of the Storm,” for instance, is a bit of stereotyped mockery of the “far out” Bay Area that covers “Naked Day” in Berkeley, a convention of conspiracy theorists, and an old family friend in Berkeley who is “a believer in UFOs and past lives,” including her own past life as Mary Magdalene. Arax ends the piece lamenting the decline of meaningful political activism and “[t]he social transformation of San Francisco and Berkeley, its iconic foot bath and organic tampon self-absorption, [and] the inexhaustible consumption made possible by the ascent of the silicon chip.”

Unfortunately he appears not to have examined much past his preconceptions, otherwise he would have found a left wing majority on the San Francisco Board of Supervisors actively involved in creating programs like a municipal minimum wage, maintaining rent control, and generally grappling with the problem of ensuring that the city’s working class and poor population is not swept away by the waves of wealth washing up from Silicon Valley. And quality aromatherapy is not high on their agenda.

Arax himself originally hails from Fresno, whose population of nearly half a million makes it California’s largest city not bordering on the Pacific Ocean — in other words, California’s largest unknown city. “If you want to see concentrated poverty,” he writes, “unlike any other city – Fresno number one, New Orleans number two – or witness the nation’s highest per capita IV drug use, come to our inner city.”
And it is in his reporting on the unknown California that Arax shines. As the state’s banks repossessed $100 billion worth of houses over a two-year period – 1,300 houses emptying each business day – he tells us that no area was hit harder than the Central Valley where Kern County had become so pro-growth that it abolished its planning commission, helping to make “Bakersfield, the most sprawled city in the West.”

Leading up to the crash, “[f]or every dollar the boom was generating,” he writes, “cities were spending roughly two dollars to provide streets and sewers and cops to serve the new suburbs. … When the city’s [Fresno’s] own economic impact studies began showing that each housing tract was putting Fresno deeper in the red, Mayor Jim Patterson stepped in. The city, he said, could no longer afford to do economic analysis.”

But the best parts of “West of the West” concern California agriculture – and its amazing extremes. “The Summer of the Death of Hilario Guzman” is a story of migrant farmworkers. Now, most of America thinks it already knows that one; after all, United Farm Workers founder Cesar Chavez has even had his own postage stamp. But these are not Cesar Chavez’s farmworkers. Today one out of every five farmworkers in the Valley – 75,000 – are Mixtec Indians who have left behind villages in Oaxaca, Guerrero, and Puebla now largely depleted of working-age men. Their children often struggle in California schools not just because they don’t speak English, but because they don’t speak Spanish either, but rather Mixtec languages such as Triqui.

Arax rides a farmworker bus headed to the raisin fields filled with speakers of six indigenous languages. “They had left villages of slash-and-burn farming for the most technologically advanced agriculture in the world,” he writes, and yet “the work could not have been more primitive.” He found the fastest pickers earning between $10 and $12 an hour; they might make $10,000-12,000 in a summer. The slowest “were not even making $30 a day – somewhere between $2 and $3 an hour.” He concludes that “[w]e are more than happy to buy a bag of plums for the same $5 we paid in the 1990s but give no thought as to how that trickles down to the farmer and his field hand.”

“Highlands of Humboldt” covers the other end of California agriculture – geographically and economically. Arax visits a plot where no one earns “less than $40 an hour, likely the highest piece rate in all of American agriculture.” These farmworkers harvest marijuana, “the biggest single cash crop in all of California, dwarfing the $10 billion a year agricultural bounty of Fresno and Kern – the number one and two farm counties in the country.” In the geographic top of California – 7,081 square miles, 215,000 people, 85 percent of them white – “nearly every standing thing in a two-hundred-mile stretch from Ukiah to McKinleyville … was almost wholly reliant on the unfettered cultivation of marijuana.”

Although the marijuana-growing “Emerald Triangle” pre-existed it, the 1996 passage of Proposition 215, the state’s medical marijuana law, took the industry to a whole other level as it made it quasi-legal. That is to say, legal – with certain restrictions – under state law, but still illegal under federal law. And about once a decade the feds will attempt to assert themselves as they did on June 24, 2008 “when residents awoke to a convoy of 450 federal, state, and local police – cars, trucks, all-terrain vehicles, three-wheelers, a mobile communications center, portable toilets – roaring up the hillside” to raid the fields and grow houses.

Meanwhile, the Emerald Triangle has become home to a cultural divide that few outsiders would conceive of. Arax attends a community meeting, complete with a professional facilitator, called to discuss the problems of “diesel dope” in the Humboldt County town of Garberville. As a grower from Mendocino County to the south had told him, “Weed is a spiritual experience here. We grow it in a sustainable way. We grow it in the backyards using the sun. [In Humboldt t]hey build these huge indoor grow houses and use diesel generators to keep the lights burning.” With the estimated seventy-five gallons of fuel needed to produce one pound of indoor pot being about what an average car burns in a trip from California to Texas, bumper stickers have begun to appear that read: “Diesel Dope: Pollution Pot.”

The Humboldt “rasta rednecks,” as Arax dubs them, are “hill people, the sons and daughters of the old lumbermen and fishermen” whose industries have died out. And he notes that some chapters of the county’s history are of the sort that the nation prefers to speed read through; In 1854, four years after California’s admission to the Union, the Sinkyone, Yurok, and Karok Indians of Humboldt had not seen a white man; ten years later their societies had been destroyed by them. An early edition of the Humboldt Times describes “the red-skin scourge that has long been preying upon their [the colonists’] lives and property.” Arax describes a massacre of three hundred natives, driven by “the calculus that for every white man killed by an Indian, 150 Indians needed to die in return.” (A cynic might note a similarity to the nation’s post-9/11 policy in regard to Muslim nations.)

Where California goes from here is an ever-fascinating question. Just the other day a University of Southern California study reported that for the first time in its history, a majority of the state’s residents were born and raised there. Meanwhile, renewed efforts to cover farmworkers under federal labor law and to legalize and tax marijuana for general use have surfaced. For now, if you want to catch up on a few developments in the state that so often seems home to what is best and what is worst in America, Arax’s book is a good place to start.

California Supreme Court Upholds Prop 8; Rules Against Same-Sex Marriage

Well, it could be worse.

The California Supreme Court ruled today that Proposition 8, last November’s ballot initiative amending the California Constitution to forbid same-sex marriage, is legal. It also affirmed that marriages conducted between May 2008 (when the same court ruled that same-sex marriage was constitutional) and November were legal. Supporters of Prop. 8 had hoped for a one-two punch that included invalidation of the 18,000 so-called Rainbow Window marriages.

Prop. 8 opponents rested on the argument that Prop. 8’s stripping of extant rights from a “protected class” of people was such a gross alteration to the state Constitution that it constituted a revision, not an amendment, to the Constitution. Revisions require a completely separate process to be passed.

Does the “fundamental right” of the people to go to the polls and enact law by referendum supersede the “fundamental right” of a protected class to marry? Does the right of the people permit a majority of the electorate to remove rights from a minority? The ruling today suggests that, yes, a majority of the people can remove or limit the rights of a minority group. More on this later.

Let’s be clear: this is not a normal ballot initiative. The ballot measures we voted on last week? Those were standard-issue: permit the legislature to save more money; permit the legislature to redirect money. Prop. 8 was unlike any ballot initiative that California had seen before. It allowed a majority of voters to strip a minority of a right that majority already had. With today’s ruling, a dangerous precedent has been created: the referendum process and the right of the majority to make law through the ballot is officially more important than the rights of the minorities that the majority would seek to take away using the initiative process.

The court’s ruling is 185 pages long. Here’s a summary:

• The scope of the decision is limited to the question of whether or not Proposition 8 was an “amendment” or “revision” of California’s Constitution. The court did not rule on the legal legitimacy of same-sex marriage; that issue was decided last May.
• The marriages that occurred between last May and last November are still valid, since retroactively invalidating a lawfully-performed marriage would require due process and not merely the approval of voters.
• What is at stake here is not the fundamental rights of same-sex couples; the court affirmed that the rights are the same, but under Prop. 8, same-sex couples cannot have the word “marriage.”

That minority had better have a lot of money, because in order to get their rights back, they’ll have to mount a campaign to get another proposition on the ballot amending the Constitution to remove the previous amendment. Fortunately, that’s what they plan to do: Prop. 8 opponents plan to have another initiative on the ballot in 2010, this time repealing the amendment banning same-sex marriage.

Let’s be equally clear what the California Supreme Court is not saying. The court is not suggesting that same-sex marriage itself is inherently unconstitutional; it also is not suggesting that same-sex marriage itself is inherently constitutional. (Interestingly, the May 2008 decision already ruled that the language contained in Prop. 8 is discriminatory under the law; the statute in question contained exactly the same language found in Prop. 8, and back then, when it wasn’t an amendment, it was unconstitutional.) The court has merely adjudicated two issues: does Prop. 8 constitute an amendment, and does Prop. 8 apply retroactively? The majority opinion concluded by noting that, if Prop. 8 opponents are unhappy with today’s ruling, “if there is to be a change to the state constitutional rule embodied in that measure, it must ‘find its expression at the ballot box.’” The court has certainly not suggested that same-sex marriage can never be the law. In finding that Prop. 8 was an amendment, the court has said that the only proper way to invalidate an amendment is with another amendment; i.e., another ballot measure repealing the Prop. 8 amendment.

Only one judge dissented from the opinion. Judge Moreno expressed concern that a simple majority vote could unilaterally strip a minority group of its rights:

The rule the majority crafts today not only allows same-sex couples to be stripped of the right to marry that this court recognized in the Marriage Cases, it places at risk the state constitutional rights of all disfavored minorities. It weakens the status of our state Constitution as a bulwark of fundamental rights for minorities protected from the will of the majority.

Judge Moreno calls the Equal Protection Clause “inherently countermajoritarian,” meaning that its purpose is not to accede to the will of the majority, but rather to ensure that anything the majority does allows for the protection of minority groups. The Clause prevents what John Stuart Mill called “the tyranny of the majority,” one of the dangers inherent in democracy. Under a democratic system, the majority — by its sheer size — is presumed to be correct. As we have seen with Prop. 8, the fact that a majority believes something does not necessarily make that thing true.

There has been some talk of amending the state constitution to alter the amendment process. This would be a good step in the direction of eliminating the back-and-forth that we will see with ballot initiatives for the next few years. Here’s an idea: making a distinction between amendments that due mundane things like alter the budget process and amendments that alter the status of individual liberties.

Breaking News: A very odd couple — former U.S. Solicitor General Theodore Olson (who argued for Bush in 2000’s Bush v. Gore) and David Boies (who argued for Gore in Bush v. Gore) have agreed to join forces and take up a federal court case challenging Prop. 8 under the Fourteenth Amendment’s “equal protection” clause. What else is interesting about this? Any case that adjudicates this issue would necessarily adjudicate both any other state law banning same-sex marriage and the federal ban on same-sex marriage. (The U.S. government currently does not recognize same-sex marriage as “marriage” for federal purposes.)

I Changed My Mind on Employee Free Choice

Berkeley is filled with bumper-stickered cars. One of a Berkeleyite’s favorite hobbies is telling everyone what his socio-political opinions are by declaring them on the bumper of his car. That car is most likely either a Toyota Prius (with its increased gas mileage, it saves the planet) or the Subaru Outback (which not only gets good mileage, but every model has all-wheel drive: great for the Berkeleyite’s frequent trips out to nature).

One of my favorite bumper stickers is: “Unions: The folks who brought you the weekend.” And it’s true. In this country, we can thank labor unions for a lot of the things we take for granted today in our jobs. Before labor unions, there was no redress for employees who were working long days in unsafe conditions. Upton Sinclair’s 1906 novel The Jungle was supposed to be about the horrible working conditions that slaughterhouse employees had to endure, but as Sinclair famously said, “I aimed at the public’s heart, and by accident hit its stomach.” The Jungle is famous not for its exposure of deplorable working conditions, but for its graphic depiction of unsafe food preparation.

It wasn’t until 1935 that Congress passed the National Labor Relations Act, which affirmed government support of unions, collective bargaining, and placing restrictions on what employers could do. At the turn of the century, businesses viewed unions with a combination of suspicion and disgust. Unionizing was socialism, and socialism was antithetical to the United States and its tradition of capitalism. Eventually, though, the country grew up and realized that the employer-employee relationship was hideously skewed in favor of the employer. In an industrialized economy — that is, an economy where people work for others instead of themselves — employers have tremendous power to enhance or destroy the lives of employees by hiring or firing them. And because an employee is a single person, he has little recourse when faced with the considerable power of an entire company.

Enter the union, the job of which is to leverage the power of all the workers in a firm against the firm, should it become necessary. Unions today enter into legally-binding agreements with firms. These agreements specify things like benefits and wage rates. When a union agreement is about to expire, it needs to be renewed. At this time, the union and the management each tries to re-negotiate the contract to get the best deal. If the two sides don’t come to an agreement by the time the contract expires, then the union members go on strike. They will refuse to work without a contract specifying exactly what their benefits will be.

But you’ve got to have a union first. According to Robert Reich, formerly Secretary of Labor in the Clinton administration and now a professor of public policy at the University of California, Berkeley, 1/3 of working Americans belonged to a union in 1955. In 2009, only 8% of workers belong to a union. Part of this trend has to do with the loss of manufacturing jobs in the United States. But even this doesn’t entirely explain the decline in unionization: Toyota, the most profitable auto manufacturer in the world, is a non-union shop. Its workers are not unionized, but they have good wages and benefits. Toyota is a benevolent employer. Wal-Mart is quite the opposite. Its workers make a little above minimum wage and they largely have no benefits. Wal-Mart is famously and virulently opposed to unions, engaging in practices that, if pursued by the National Labor Relations Board (NLRB), would probably be prosecutable in court. Wal-Mart has closed entire stores rather than suffer the possibility of unionization. We cannot always rely on the benevolency of employers in order to get good wages and benefits — hence the existence of unions and a national framework that supports them.

I have written before about the current process of unionization, as have other Demockracy writers, and I will not go into it here. Again, we come around to the Employee Free Choice Act (EFCA), which would augment the current system of union creation. Again, I have before explained how it would work. In my previous pieces, I came out against EFCA because it does not have a secret ballot. How, I said, can we get an accurate assessment of whether or not people want to unionize without a secret ballot? I neglected another factor: employer pressure between the initial petition and the actual election. During this period, which usually lasts between 30 and 60 days, employers dramatically increase pressure on employers not to form a union. This pressure can vary from the benign (”workshops” in which union-busters explain to employees why unions are actually bad for them) to the criminal (openly threatening employees with termination if they join unions). Starbucks was found guility of the latter when it fired some employees at a Manhattan store who tried to unionize.

It is this pressure period that causes the disparity we see between the numbers in the initial petitions and the actual elections. An apocryphal 1989 AFL-CIO organizing document declares that, according to its statistics, 75% of employees at a firm need to sign the intitial petition in order to get 51% in the final election. There has not been a study (that I have access to!) that examines the causality of this phenomenon. It could be attributed to peer pressure; that is, when employees’ names are visible, employees will say they want to unionize, even when they don’t. In the privacy of the secret ballot, they are free to vote against the union. But there is another possibility: that employees really do want to unionize, but after two months of propaganda and open threats, employees decide that they don’t want to unionize, after all, due to the possibility of losing their jobs. We have no way of knowing what employees truly want, since there is no test we have that is free from bias, whether from the employer or other employees.

Even though it’s illegal for an employer to fire — or even threaten to fire — an employee for unionizing, it happens routinely. As is pointed out in this sourcebook on EFCA from the UC Berkeley Center for Labor Research and Education, employers treat NLRB fines (the punishment for violating labor law) as just another operating cost. They will gladly fire employees and then pay the fines, since, in the long-term, paying the fines is cheaper than dealing with a union. Fortunately, one of EFCA’s provisions is to increase the penalties for violating labor law, but even then, the fines are still not so large that the world’s large anti-union companies — Wal-Mart, Starbucks, and Whole Foods among them — cannot write those fines off as operating costs and call it a day.

The only way to forestall those threats is to allow union creation immediately, which is the point of EFCA. It assumes that the initial petition is the gold standard for union desirability and declares that, if a majority of employees state on the petition that they want to unionize, then a union is immediately formed. This way, employer interference in the unionizing process is minimized.

Contrary to anti-EFCA propaganda, the legislation does not “eliminate” the secret ballot. If a union petition garners greater than 30% but less than 50% of employees’ approval, then the secret ballot process is initiated. EFCA does only what makes sense: namely, if at least half of the employees in a firm support a union, then the union is created. The in-between time is often useful only for anti-union employers, who will use the time either to persuade or to threaten.

So, I’ve totally changed my opinion of EFCA. All else equal, making union formation easier is not a bad thing.

A Discussion on “Rights”

With both Iowa and Vermont, in essence, legalizing same-sex marriage in their respective states within a week, I think back to California’s Prop 8 and other recent same-sex debates and ask again the same questions: Is same-sex marriage a rights issue? Is it a moral issue? And simply put, who should be able to decide who can be married?

First of all, it’s important to remember the assumed “proper order” of things in most monotheistic cultures. God created man; man created government; government created laws. And even if you don’t believe in God, man created government and government created laws. Either way, it is an essential assumption that the creation can never be greater than the creator. Morals, laws, statutes, etc. always come from the top down in such societies, not the other way around. A government cannot have a power that is not initially held by the people it governs (or people have power that is not held by God).

For instance, I – as an individual – do not have the right, power, or authority to take (steal) your money, even if it is for a noble cause – like to give it to someone less fortunate. And because government gets their power from the people and the people do not have the authority to steal money, then the government doesn’t have authority to steal money either.

In America, there are exceptions. There are certain responsibilities and rights that we the people do not hold as individuals – we cannot declare war, make treaties, or levy tariffs. Likely, the Founding Fathers felt the general public either shouldn’t or couldn’t deal with these issues, so those responsibilities were reserved to the federal government. However, these few exceptions are explicitly defined in the Constitution; they’re not for the government to decide as they go (although there is a way to expand those federal rights within the Constitution by passing amendments). But as per the Tenth Amendment, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” So the people and the States are in charge of all issues not covered in the Constitution (like marriage).

So, as a Democratic Republic, we elect individuals who then represent us on the federal level – that’s the republic side of the American system. And this helps ensure democracy. In a dogmatic and usurping government, the governing body decides truth and then the people (and ultimately God) must change their minds and views in order to align with whatever nonsense has been created. This is not a good system of government.

So while it is undeniable that same-sex marriage is a moral issue for many people, to base legislation on the morality of an issue is ridiculous. For those who believe in God, morality is defined by Him (or Her–I will use the masculine throughout for simplicity). However, according to most monotheistic religions, He only defines and demands morality; He does not require everyone to follow it. He will, ultimately, punish those who don’t, but He does give them the option to choose. For those who say that morality is defined by the people, by society, by tradition, or by commonly-held beliefs, to then base laws upon that morality is to force personal convictions and arbitrary principles upon others – which could easily turn a country into a Fascist state.

So by these assumptions, whether defined by God or man, morality cannot and should not be the basis for legislation. This is not to say government should not be moral, that people should not strive to elect those who share their personal moral convictions, or that we should “divorce government from any formal recognition of God.” This is only to say that the government cannot enforce, define, or mandate morality and, therefore, cannot legislate based upon it. Government can, however, protect the natural rights and enforce the civil rights of individuals.

Without getting too deeply into the history of marriage, it began as a religious right and it wasn’t until later that government decided to get involved (so inheritance can be properly determined, so relationships can be verified and recorded, etc.) even though they had no right to do so. This is why, generally and traditionally, people accept marriages performed by any religious figure and assume there is a religious ceremony involved with any marriage. They will also assume there is some legal process involved, but that’s secondary. So if, hypothetically, someone was to get married without going through the legal process – only the religious ceremony – both parties, and outside observers, would probably all still agree on the validity of the marriage. And for an individual to say “You’re not married legally” is presumptuous at best. So for the government to do that is unconscionable.

So the question arises: Is marriage a natural right for the government to protect or a civil right for the government to enforce?

Natural rights are few, but important – life, liberty, property, pursuit of happiness, etc. And they’re preexisting, inalienable, free to all, innate – in other words, “natural” – rights. They can’t be defined or changed. They simply are. And the government should protect those rights by ensuring people aren’t killed, that their property isn’t stolen, etc.

Civil rights – at least according to what I believe the Founding Fathers intended – protect individuals, citizens, and peoples from their governments. So freedom of speech, freedom of the press, religious freedom, the right to vote, and the right to bear arms are all in place to prevent the government from becoming too powerful or oppressive. Civil rights aren’t defined by government; they’re defined by the people and enforced by the government.

So (again, I must make this distinction in order to be thorough) if we assume marriage is a natural right defined by God, then He is the one to decide who is and isn’t married. Some may say He has delegated that power to Pastors, Rabbis, Ministers, and other religious leaders, which is fine. But it’s likely He did not give it directly to the government. If we assume marriage is a natural right separate from God, then no one has the authority to decide who can or can’t be married – including government. So while government could protect those who were married, it could not decide if anyone – straight or gay – was or wasn’t married.

So, what if we decide that marriage is a civil right? Well, in order for marriage to be a civil right, it would first need to be something that protected us from our government; this is debatable. But even if we disregard that criterion, marriage would still need to be something that as a people, we had the right to decide. As I mentioned before, the way the United States Constitution is set up, authority flows from the people to the government. If the people don’t have the right to decide, then the government certainly doesn’t hold that right either; so for the government to allow or ban marriage in any of its forms is unconstitutional. But if the people do, in fact, have the right to decide who can and can’t be married, they have the opportunity to do so by voting on the issue in their respective States – that’s the Democratic side of the American system. And for a court or a legislator or an elected official to assume they have the right, authority, or power to decide who can or can’t be married is completely unfounded.

So the conclusion? It should be an all-or-nothing situation. Either the government should back away, stay out of the marriage debate, and let society, churches, and peoples do what they will; or it should, once again, overstep its bounds, ignore the Tenth Amendment, and become more oppressive, more controlling, and more irresponsible than ever before.  I believe that most would prefer the former.

Black Students in California: Asking the Big Questions

Many years of substitute teaching in two states, all grade levels, and more subjects than I can easily remember have left me with two dominant impressions. The first is of the difficulties black students face in the educational system. The second is of just how difficult it is to discuss their difficulties.  So when the California Board of Education created an “African American Advisory Committee” to tackle the question of why black students are not performing as well as others, I was pleased to see it take on perhaps the most vexing topic in education today, although not overly optimistic as to the progress it might make.

The new committee’s problems started before it even came into being, as an outside critic decried the implicit suggestion that this was a “black problem” and a Board member, former University of California regent Ward Connerly, criticized a “segregated approach to educating black kids” that was “goofy to be doing this at this point in American history.”  But still, even that noted affirmative action opponent felt obliged to concede that “we do have a problem” and support the motion which ultimately passed unanimously.

One obvious ground for pessimism about the committee’s prospects is the relative failure of past efforts. The ink wasn’t dry on the paperwork before people were talking about an infamous past attempt to grapple with the issue – the Oakland school district’s 1996 plan to garner the same assistance for its black students already available to foreign language-speaking students by declaring that African-Americans also spoke a separate language, which it called “Ebonics.”  While that fiasco is not likely to be repeated, a San Francisco Examiner story published shortly after the committee’s establishment serves as a reminder of other potential blind alleys still out there.

The Examiner reported that while blacks constituted but 12.5 percent of students in San Francisco’s public schools, “half the students who face disciplinary action belong to this ethnic group,” a phenomenon some School Board members attributed to “cultural incompetence” and “racial discrimination” on the part of school staff.  This issue has a history in the city.  In the past, some have called for school disciplinary measures to be applied equally across racial lines; in other words, the percentage of suspensions or expulsions should be the same for each racial/ethnic group.  No such drastic proposals emerged this time, though.  Instead one organizer suggested the “need to make their curriculum more engaging for students whose out-of-school reality involves poverty, violence and family crises” and a consultant to the superintendent reportedly thought “students simply need a challenge” and spoke of schools failing to give “them academic rigor.”

While you can hardly fault anyone for opposing racism or supporting academic rigor, these comments from individuals who probably have not spent much time in classrooms in recent years displayed book learning but little understanding of the nature of the difficulties today’s African-American students actually encounter.  Certainly San Francisco’s teachers’ union president Dennis Kelly was having none of it, arguing  that “to the degree that it’s racism, I think it’s subconscious racism.”  And given that 84 percent of the city’s voters recently supported an African-American for president and the city’s teachers are probably as liberal as the electorate as a whole, this seems a reasonable assertion.

But Kelly went further, suggesting that in actuality “some teachers avoid disciplining black or Hispanic students for fear that they would be accused of prejudice.”  And while these remarks would surely be deemed impolitic in some circles, statistics readily at hand suggest that not only does the reported discipline inequality in San Francisco’s schools reflect something larger going outside of school walls, but in fact it’s actually significantly worse out there: while blacks make up but 7 percent of the city’s total population, the Examiner reported that “60 percent of San Francisco Juvenile Hall inmates were black, according to the Juvenile Probation Department.”  (Nor is this a local problem.  While a remarkably high – by world standards – ratio of one of every 31 adult Americans is in prison, or on parole or probation, for African-Americans, the ratio is one in 11.)

Given the extreme sensitivity of the topic, let me make myself as clear as possible.  My point in raising these statistics is not to suggest that today’s black students have brought their problems on themselves but to suggest that they run much deeper than proposed solutions like greater “cultural competence” or a more “engaging curriculum” can reach.  Nor do I mean to imply that the history of racism in America is irrelevant.  Not only is it relevant, so is the history of American slavery, even though no one living today has ever experienced it.  But as Robert  Moses, a leader of the southern voting rights struggle of the 1960’s, put it in his 2001 book, Radical Equations: Math Literacy and Civil Rights, “what young people are up against today is less clear than the raw racism of segregation laws and the Ku Klux Klan.”  And the solutions are correspondingly more difficult to formulate and enact.

And as far as being out of touch with the realities of today’s schools, there’s no disgrace in that; it can happen to anyone.  Civil rights veteran Charles E. Cobb confessed that when Moses approached him to co-author Radical Equations with him, “I had not been involved with public schools for years and while visiting them … it seemed as if I had traveled to another world,” as he watched a mother attack a Chicago teacher in a hallway, and talked to one kid as “another kid walked up behind him and hit him in the head with a brick or something.”  But useful proposals are not likely to come from people who are out of touch.  If we were to mandate that the same percentage of “A”s and “F”s be given to each racial group, we obviously would have done nothing to eliminate any actual educational gaps, but some of the solutions floating around these days have about that much depth.

So if we’re serious about finding a solution to the problem, we probably shouldn’t just nod along when someone raises the racism of the teaching staff or the cultural irrelevance of the curriculum as prime barriers to Black students education in 2009, any more than we would if someone advanced the idea that if they’d just stop listening to gangsta rap they’d be on their way to academic success.  Anyone who’s seen the television series The Wire and considered its portrayal remotely realistic surely has a visual take on the statistics.  And if you want one in print, there’s Los Angeles Times reporter Miles Corwin’s And Still We Rise: The Trials and Triumphs of Twelve Gifted Inner-City High School Students.  The 2001 book provides a memorable and chilling view of the extraordinary challenges confronting black students even in one of the few all-minority “gifted” public high school programs in the country.  The best friend of one of the book’s students was killed in 9th grade.  Another, who discovered the body of her murdered brother when she was nine, drops out after having a baby.  A third left home at 13 after her mother cracked a broom handle across her back. A fourth has been sexually abused by her step-father.  And there’s more – and these are the kids who succeeded!

And even for many of those whose parents manage to get them into suburban schools, the problems will not necessarily end at the city line.  The late John Ogbu, a Nigerian-born U.C. Berkeley Anthropology Professor, wrote his 2003 Black American Students in an Affluent Suburb: A Study of Academic Disengagement as a result of a request to assess the reasons that the Grade Point Average of black public high school students in Shaker Heights, a relatively affluent Cleveland suburb with a school system considered one of the best in Ohio, lagged more than a full point (out of a possible four) behind that of white students.

Ogbu recognized that Shaker Heights blacks, whose wealth and income was higher than the average Ohio black family, was still was significantly lower than that of their white neighbors, but he felt that while this could explain a great deal of the grade gap, it did not explain it all.  So he turned to social characteristics, or “community forces,” as he describes them — “the ways minorities interpret and respond to schooling” to look for explanations, while making “no assumption that community forces are the only cause of, or play the most important role in, the academic gap.”  In taking that approach, not even his African birth would immunize him from criticisms of blaming the victim.

Over the course of thirty five years studying the public school education of minorities in the US, Ogbu had become persuaded of the importance of the distinction between “voluntary” and “involuntary” minorities within American society.  Voluntary minorities are immigrants who arrive in this country in search of a better life.  Involuntary minorities include Blacks brought here as slaves, Native Americans whose continent was taken from them, and Mexicans living in areas subsumed by the United States.  When the nineteenth century European ancestors of some Americans were arriving to seek the American Dream, the ancestors of today’s African-Americans were living the American nightmare of slavery and their descendants would live through another century of segregation.

Ogbu was not surprised, then, to discover a fundamental ambiguity in the attitudes of the parents he was studying who often struggled to get their kids into the school system, yet fundamentally still did not trust it.  He frequently found their belief in the value of education only “abstract,” because “many generations of a lack of connection between school success and success in adult life probably resulted in skepticism about the real value of schooling.”  As a student put it, “there were laws simply to oppress Black people” so “Black people came to believe that it was always good, you know, if you could find some way, just somethin’ small, you know, just to annoy society.”  Kids would tell him that doing well in school would be “acting white,” a phenomenon Ogbu had previously encountered in studies of sectors of the British working class.

And, of course, education theory being a field with a higher quotient of hooey than most any other, he ran up against notions like one scholar’s critique of the “protocols of attentiveness found in Eurocentric teaching styles,” leading him to mutter about theoreticians of a black culture in which “students are not expected to pay attention during class!”

Although critics who ought to know better have characterized him as conservative, Ogbu’s theories are actually considerably more radical and thoroughgoing than those who claim to treat the educational and social situation of African-Americans as a social phenomenon yet tend to look for individual culprits close at hand, such as teachers with low expectations or racist administrators.  After all, what does Ogbu’s concept of “involuntary minorities” lead us to when considering the case of contemporary black students’ difficulties but a recognition of the continuing importance of the manner in which their forbears arrived in this country, in other words the ongoing relevance of nineteenth century slavery to daily life in twenty-first century America.

Obviously, the California Board of Education’s new committee has its work cut out for it.  From personal experience I know all too well that the mere mention of some of the topics I’ve discussed here can set some people’s eyes to rolling, as can proposals of the level of effort needed to properly deal with the problem.  For instance, if I suggest that I’ve been in first and second grade classes where a five or six-to-one adult-to-student ratio is probably needed to keep all of the kids in the action, the immediate response is likely to be that something like that is not within the realm of possibility, so it’s simply not to the point to talk about it.   (And, by the way, I’m not talking teacher-to-student ratio; the adults might also be student teachers, aides, or even parents or other volunteers.)   Yet my contention is no more or less true whether or not there’s any likelihood of such a ratio being effected.  And the fact that a full employment economy and true universal health care may not appear to be on the horizon does not change the fact that policies of this magnitude are what are needed to adequately improve the life situations of many black students whose academic travails are under consideration.  They do, after all, spend most of their lives outside the classroom dependent upon the fortunes of the adults around them.  And the size of the problem cannot be whittled down simply to match the size of the cure deemed politically possible.

And, since this committee is convening in California, let’s note that as recently as Sept. 2000, Governor Gray Davis signed the UC Slavery Colloquium Bill, which promotes research and publicity on University of California campuses on the topic of reparations for slavery.  So while they may be about as remote a possibility as a program for a true full employment economy, the consideration of a program to direct adequate additional educational resources toward all of slavery’s descendants would hardly be off the point.  Because, although it may be all that we’re likely to get, a couple of more sensitivity training courses sure aren’t going to do the trick.

The Invisible Homeless

Last Sunday three thousand people packed the Jacob K. Javits Convention Center in New York City. A concert? A high profile speaker? A trade show? None of the above. Instead, it was a group of Tri-state residents eager to capitalize on the increasingly dismal housing market. Packing the convention center, they placed bids on foreclosed homes at prices 70 percent below their former values.

What made this auction so remarkable wasn’t the turnout, but who turned out. While these auctions have typically attracted house flippers, real estate investors, and the occasional curious buyer, this time it brought in a new demographic—the protester. With New York state home foreclosures up 64% in January from the previous month, buyers looking for affordable housing for themselves had to withstand the objections of recently evicted homeowners. “Evictions are a crime! It could be your house next!” they chanted as the auctioneers sold over a thousand properties, one by one.

With 1 in every 54 homes currently being foreclosed on in the U.S. (2008’s statistics are up 225% from 2006’s), there are certainly a lot of vacant properties that can go at great bargain rates. But what about the families who formerly lived in those homes? What happens to them? Where do they go?

Although the housing crisis kick-started this economic crisis, the realities faced by these displaced Americans are only now coming to light. Some homeowners who are having trouble hanging onto their mortgages have resorted to renting to those who have already lost their homes. Still others plagued by the bad credit that bankruptcy brings or the financial woes of lost wages, are obliged to stay in shelters. However, in many cities shelters are at maximum capacity and families are forced to rent cheap motel rooms. On Tuesday, the New York Times reported that in California, one of the states hardest hit by the housing crisis, residents are packing motels just as fast as the state’s budget cuts are shutting down vital social services. In Anaheim, there are over a thousand families living in motels and, with nearly 24,000 foreclosures in California this February alone, there are certainly thousands of other homeless Californians looking for shelter at a cheap nightly rate.

At the same time, people who don’t have the means to spend several hundred (or even thousands) of dollars a month on a one-bedroom shelter have had to become more creative. In Miami, Max Rameau has founded Take Back the Land, a foundation that matches families with empty, foreclosed homes. Rameau pairs people with houses that they can squat in until the local government, bank, or police interferes. He defends his actions by asserting that, “It’s morally indefensible to have vacant homes sitting there, potentially for years, while you have human beings on the street.”

In Los Angeles and Sacramento, tent cities have become the norm. Forty miles outside of LA, local officials designated a patch of land last year for a handful of displaced families to set up temporary housing. Today, it boasts several hundred people. In Sacramento, there are 2,000 homeless, with 300 of those individuals setting up a tent city nearby. With people in the capital city losing their homes and jobs at an alarming pace, this shanty town has several dozen new people take up residence each day.

While the Obama administration has set forth a housing plan to help troubled owners, it hasn’t presented any solution to the escalating number of displaced Americans. While it is certainly important to lower rates and adjust payments for those struggling to pay their mortgages, there also needs to be a plan for the people who are jobless and homeless already. Hopefully, the stimulus’s infrastructure initiatives will employ people who have lost their jobs, help them get back on their feet, and eventually put them in a financial position neccessary to find a permanent residence. However, the federal government does not have the pulse of every town, city, and state’s particular problems, nor can they.

In order to stave off this crisis,  local governments must step in and confront homelessness not as fringe social problem but as a critical issue that directly or indirectly affects all their residents. States like California and New York cite budget shortfalls for their inability to do more, but even if they are strapped for cash, they must prioritize some funding to help those who have lost their homes. If they don’t, then they will inevitably bear the burden in a more indiscreet way: Schools will have to feed more hungry children on free-lunch programs, non-profit institutions that depend on local tax breaks will have to stretch their resources to house and clothe the needy, and hospitals and health care clinics will certainly see more people fill their emergency rooms with non-emergent health problems as these homeless individuals struggle to stay healthy in a stressful and sometimes unlivable environment. The federal stimulus money presents an opportunity for states and cities to provide temporary housing, food, and other benefits before this housing emergency completely debilitates communities. Local governments must find some way to institute comprehensive plans that offer shelter—and dignity—to those who have lost theirs.

Obama’s Use of State Secrets Is More of the Same

Throughout his administration, President Bush invoked a little-known and less-understood doctrine called the State Secrets Privilege. The privilege allows the Executive to suppress evidence in a court case if, in the Executive’s estimation, revealing that evidence in court would compromise national security. The use of the privilege is not unprecedented. Bush, however, didn’t merely use the privilege to get evidence thrown out. He tried to have whole cases dismissed. (Please read this article from Lewis & Clark Law Review for more information about the abuse of the State Secrets Privilege.)

In the arena of warrantless wiretapping, the administration argued that it could not provide documentation to plaintiffs that they were wiretapped, since even providing evidence of wiretapping would compromise national security. And, since the plaintiffs can’t prove they were ever wiretapped, they have no standing to bring a case, so the administration also requested that the case be dismissed. Thankfully, Judge Vaughn Walker of the U.S. District Court for the Northern District of California rejected the Bush administration’s assertions.

But now, the Obama administration is in town, and given his memorandum ordering more transparency in government, he’s going to reject the Bush administration’s assertion that entire cases can be thrown out due to the State Secrets Privilege.

Just kidding! In fact, Obama’s Justice Department has gone even further in asserting opacity when it comes to the State Secrets Privilege. On Friday, the Ninth Circuit Court of Appeals rejected the Obama administration’s arguments — which were a continuance of the Bush administration’s arguments — that the State Secrets Privilege can be used to dismiss entire cases.

Immediately following the ruling, Obama’s Justice Department filed a new brief in which it asserted that it will not comply with the Ninth Circuit Court’s ruling because — drumroll, please — no court has the authority to compel the Executive to release top secret information, for any reason whatsoever. In case you think I’m misinterpreting the brief, here you go:

In addition, the relevant Executive Branch official must determine that plaintiffs’ counsel have a “need to know” the information. In this case, the relevant official, the Director of the National Security Agency (“NSA”), has determined that counsel do not have a need to know. This decision is committed to the discretion of the Executive Branch, and is not subject to judicial review. Moreover, the Court does not have independent power, either under its supervisory authority, or under authority analogous to that granted by the Classified Information Procedures Act (“CIPA”), 18 U.S.C. App. 3, to order the Government to grant counsel access to classified information when the Executive Branch has denied them such access. Therefore, the Government respectfully suggests that the Court should not take further steps at this time that would result in plaintiffs’ counsel being granted access to the classified information at issue.

Any determination made by the Executive that information is top secret is final. It is not subject to judicial review. Ever. At all. Period. What the Executive says, goes. There is no other instance — none! — anywhere in this country where any body has ever asserted that its decisions are outside the scope of judicial review, save legislation passed by Congress restricting review. This is solely Congress’ power, and not the president’s, as articulated in Article III, § 2 of the Constitution:

In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.

There is nowhere to be found anywhere in the Constitution the assertion that the president can make decisions that are outside the scope of judicial review. Indeed, the existence of such a rule would be detrimental to our republic. Imagine: the president asserts the State Secrets Privilege for a malicious, disingenuous, non-secret reason, but because the president’s claims of privilege are non-reviewable by anyone, there is no one to appeal to in order to contest the legitimacy of the president’s assertion. If true, this doctrine would mark the first time in the history the United States that a single branch of government cannot be checked by any other branch. This is extremely dangerous.

What will the Obama apologists say now? I have famously complained that Obama’s policies are “more of the same,” whether they be continuances of Clinton-era policies, or Bush-era policies. Which wedge of the Obama Wheel of Apology does this action fall under? Shall we file unilateral executive authority under pragmatism? Or perhaps it is more akin to the I, Claudius explanation, in which Obama will one day pull his mask off and reveal himself to be a progressive socialist who has been working behind the scenes to undermine the system even as he pretends to uphold it? Can this be explained by team of rivals or bipartisanship? What other buzzword that is used to explain away the lack of significant change is appropriate here? Obama can do no wrong!

Okay, coyness aside. The Obama administration has made a bad decision. This is absolutely the wrong assertion to make. And I find it surprising, especially in light of the memorandum mentioned above, that Obama would claim such broad authority in this matter. Unless, of course, the Justice Department is working independently of Obama’s personal agenda, in which case, it’s time for someone to sit down and have a serious talk with Eric Holder about how the Constitution works.

But I seriously doubt this is the result of a rogue Justice Department. No, Obama has made a bad call, here. He is acting terribly like George W. Bush in his assertion of powers that are not his. It doesn’t matter if Obama is a great guy; no one person — not even a “benevolent dictator” — can be invested with such broad powers. It’s illegal, it’s unconstitutional, and given Obama’s background as a constitutional law scholar, he should know better. It’s shameful and he needs to stop it. This is not the change I voted for. (H/T Glenn Greenwald, of course.)

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