Who’s Really Being Mugged?

by Witold Walczak, Legal Director, ACLU of Pennsylvania

While recently browsing books on the Black History Month display at the local library, I stumbled across Ann Coulter's 2012 book Mugged, subtitled Racial Demagoguery from the Seventies to Obama.  I had never read Ms. Coulter or, frankly, paid attention to anything she said on TV.  But now intrigued, I read the first chapter.  

Ms. Coulter's theory is that “there had been a real fight over civil rights for a century .... but by the end of the sixties, it was over. Segregated violence was gone, and all public places integrated.” Wow, who knew? She then excoriates “liberals” for a “ritualistic reenactment of the struggle for civil rights - long after it had any relevance to what was happening in the world.”  In essence, she claims race discrimination ended decades ago, and that ever since, liberals have been simply demagoguing on civil rights for electoral gain. 

My favorite example of Ms. Coulter’s claim about how “phony” the civil rights struggle has been relates to New York City, where she says “there was never any public segregation” and there were no “whites only” water fountains or lunch counters.  So there’s no racial discrimination in NYC.  Huh.  Again, who knew?  Certainly not the young black and Latino men who are disproportionately stopped and frisked by NYC police. Though they account for only 4.7 per cent of the city’s population, black and Latino males between the ages of 14 and 24 accounted for 41.6 per cent of stops in 2011. Ninety per cent of the men stopped were innocent.

What Ms. Coulter doesn't get, or acknowledge, is the distinction between de jure and de facto discrimination.  As a lawyer from a top law school, she should understand this distinction because it is Con Law 101.  De jure, according to Black’s Law Dictionary, means “anything that exists in law or formal, legitimate, moral, or rightful effect.”  Slavery and Jim Crow laws were forms of de jure discrimination, and such discrimination in this country is largely a historical relic. De facto is the opposite of de jure.  It means “in fact, in deed, actually.”  Such discrimination may be harder to identify, but it is no less damaging.  For instance, applying a different standard to stop and frisk individuals based on skin color is illegal everywhere, including in New York City.  Yet the grossly disproportionate stopping and frisking of blacks (and Latinos) by the NYPD is a form of racial (and ethnic) discrimination, whether Coulter admits it or not.

                                                           

As I was reading (and seething), I wondered what Ms. Coulter would say to James Foster and Mike Sharp, two plaintiffs in Foster v. City of Pittsburgh, our lawsuit alleging race discrimination in hiring by the Pittsburgh Bureau of Police (PBP).  James is a mental-health professional on the verge of a master's degree, a father and a black man who grew up in Pittsburgh.  Mike is a graduate of Indiana University of Pennsylvania’s prestigious Police Training Academy, has been a police officer in suburban Pittsburgh departments for over five years, and also grew up in Pittsburgh.  They are nice, smart, physically fit black men who want to perform a dangerous public service but who were rejected, without reason, for police officer positions in the PBP.  And they are not alone.

Back to Ms. Coulter’s hypothesis, the city doesn’t have a rule or policy institutionalizing race discrimination.  And publicly, they profess frustration at not being able to find more “qualified blacks.”  So, according to Ms. Coulter, there must not be race discrimination.  Or any problem.  This is just the ACLU demagoguing for ... hmmm.  What could we possibly get out of this?  Maybe justice and fairness?  Let’s look at some Pittsburgh police hiring facts.

Despite race-neutral policies, it’s impossible to explain the city’s hiring rate over the past dozen years as anything other than discriminatory. Since 2001, only 15 of the 406 officers hired by the city are African-American, which is less than 3.7 per cent of the total.  It’s worse if you look only at the figures since 2007; six out of 226 hires are African-American, which is under 2.7 per cent.  

Whether this is illegal discrimination will be decided by the court in Foster v. City of Pittsburgh, but some basic facts begin to show why the city’s claim that they aren’t discriminating rings hollow.  The city’s most recent decennial census shows that African-Americans make up about 27 per cent of Pittsburgh’s population.  A more refined measure, calculated by federal agencies, based on education and other factors, shows that the percentage of Pittsburgh’s African-American labor force qualified for “sworn protective service” employment, a.k.a., police, is about 20 per cent.   The city’s response to the disparity has been the same for many years - blacks are just not applying in high enough numbers or we can’t find “qualified” black applicants.  

Using data obtained through public records requests, the ACLU-PA learned that the applicant pool in 2009 for police included about 20 per cent African-American candidates.  When we looked more closely at each step of the city’s selection process, a disproportionate number of blacks were rejected at every stage.  The ACLU’s investigation found irregularities, deviations from practice, gamesmanship and simply inexplicable (and unexplained) decision-making at each stage.  African-Americans, as well as Latinos and women – two other groups that historically have suffered discrimination – seemed to be excluded, suspiciously in almost every instance.

The rejected applicants we've met seem particularly worthy of a Pittsburgh police badge.  Like James and Mike, they are educated, some with advanced degrees, engaged in community service, who have lived solid lives.  They have strong work histories and several are already police officers in suburban departments.  It is hard to fathom why these folks, all members of minority groups, cannot get a job with the Pittsburgh police when so many white candidates with questionable records are getting in, and then failing out of the police academy or being fired for misconduct on the job. 

If groups like the ACLU did not allege discrimination and take legal measures to stop it, the practices would continue.  The discriminatory police-hiring in Pittsburgh has continued for more than a decade.  The harm to victims, like James, Mike and others, is not different because it’s the more subtle de facto discrimination than the in-your-face de jure discrimination.  Either way, they aren't getting hired or getting a job that, based on merit, they deserve.  The harm and the pain are the same.

I don’t know how Ms. Coulter would respond to my musings.  She’d probably find reasons why these applicants weren't worthy, which is how the city is expected to defend the case.  Or she might say it’s the free market.  Or because there is no purposeful discrimination – it just happens – too bad, life is unfair.  But to harken back to her book title, if you get mugged, the pain and injury are the same whether the mugging was part of a carefully planned operation or done on a whim by some punk.  You've still been mugged.  The same is true for James and Mike and many other people of color. They have unfairly been mugged based on an immutable physical characteristic by systems that have not, unfortunately, been purged of bias and discrimination. 

This post is part of a series honoring Black History Month.

The ACLU's Long Battle for Racial Justice

by ACLU-PA Executive Director Reggie Shuford

Last Sunday, I attended a 50^th anniversary celebration of the landmark Supreme Court case, Abington v. Schempp, which established that students cannot be required to read the Bible in public schools. Schempp was brought by the Philadelphia Chapter of the ACLU, what would eventually become the ACLU of Pennsylvania.

The ACLU is well known for its work to protect First Amendment rights like the religious liberty principles at issue in Schempp. It’s likewise known for protecting the First Amendment’s guarantee of free speech. Last week, for example, the ACLU-PA was in court arguing on behalf of middle school students’ right to wear a bracelet supporting breast cancer awareness, which reads:  “I [Heart] Boobies. Keep A Breast.”

Back in the mid-1990s, when I announced that I had accepted a job with the national ACLU and was moving from North Carolina to New York City, a few good friends jokingly said: “Don't get up there and start defending the Ku Klux Klan!” Their reaction is not unique. People are quite familiar with the ACLU’s history of taking controversial First Amendment cases.

Perhaps less well known is that, since its founding in 1920, the ACLU has been engaged in the fight for civil rights and racial equality. In 1931, it took up the case of the Scottsboro Boys – nine African-American teenagers wrongly accused of raping two white women.  That same year, the ACLU published “Black Justice,” a comprehensive survey outlining institutionalized racism in America. In 1942, Roger Baldwin, a founder of the ACLU, established the national Committee Against Racial Discrimination.

Over the course of the next few decades, the ACLU became involved in some of the most important racial justices cases ever to reach the Supreme Court, including cases that: invalidated white-only primaries (1944); outlawed racially restrictive covenants requiring white homeowners to sell their homes to other whites (1947); established the “one person, one vote” rule (1964); found it unconstitutional to exclude women and African-Americans from juries (1966, 1967); and declared illegal racial segregation in state prisons and jails (1968). The ACLU also was involved in Brown v. Board Education, the 1954 case that famously struck down the “separate but equal” doctrine, and Loving v. Virginia, which ended bans on interracial marriage in 1967.

In 1964, the ACLU established a Southern Regional Office, which launched a number of lawsuits challenging racial discrimination and institutionalized segregation in the South. The Southern Regional Office eventually became the ACLU Voting Rights Project, which played an integral role in the passage of the Voting Rights Act of 1965. Since then, the ACLU has been involved in every effort to reauthorize and protect the gains resulting from the Voting Rights Act. Just yesterday, the ACLU and allies from the Legal Defense Fund were back before the Supreme Court in Shelby County v. Holder, in an effort to preserve Section 5 of the VRA. Roger Baldwin was right when he said, “No fight for civil liberties ever stays won.” 

In recent years, the ACLU has led the fight against racial profiling, to preserve affirmative action, and to end the school-to-prison pipeline. In Pennsylvania, we recently sued the Pittsburgh Police Department for its racially discriminatory hiring practices.  A few years ago, we sued the Philadelphia Police Department for targeting African-Americans and Latinos with its stop-and-frisk practices and continue to monitor those activities.

A current priority of the ACLU is criminal justice reform. The criminal justice system disproportionately targets and imprisons African-Americans. One in every nine black men between the ages of 20 and 34 is incarcerated, and one in three black men will spend some part of his life in prison. Today, there are more African-Americans under correctional control (3.5 million) than were enslaved (3.2 million) in 1850. Mass incarceration, also known as the New Jim Crow, is largely the result of the War on Drugs and the growth of the prison industrial complex. It’s had a devastating impact on the lives of those convicted of crime, their families and communities. 

Last fall, in Adkins et al. v. Morgan Stanley, the ACLU, on behalf of black homeowners, sued Morgan Stanley for its predatory lending practices. While many families lost their homes in the recent foreclosure crisis, black and Latino families were especially hard hit. The case, the first of its kind, has been called perhaps the most important civil rights case in a generation.

Every year, during Black History Month, I am especially proud of the recognition of African-Americans, both famous and nameless, who dedicated or gave their lives to ensure that America live up to its founding ideals. I am also proud to be a part of an organization that continues to be engaged in the ongoing struggle for racial equality.

In America, black history is American history, and the ACLU is an important part of that history.

This post is part of a series honoring Black History Month.

Death race

A few weeks ago, I was sitting in the office of a state representative, and the topic of capital punishment came up in conversation. This particular representative, who is young and white, said that he turned into an abolitionist when he realized the impact of race on death sentencing, particularly the race of the victim. 

As he said that, his office suitemate, another young state representative who is black, walked into the office. The first representative asked, “Do you know that if someone kills me they are more likely to get the death penalty than if they kill you?” His colleague replied, “Yeah, because you’re white. No one cares if a black guy gets shot.”

The statistics bear them out. Since the Supreme Court reinstated the death penalty in 1976, after a four year national moratorium, 77 percent of the victims in cases that led to executions were white. But white people are the victims in 50 percent of homicides. (See the website of the Death Penalty Information Center. ) 

Juries’ penchant for using the death penalty disproportionately in response to the murder of white victims is an expression of America’s shadow side that has plagued us since the first settlers arrived on these shores. Too many Americans value the lives of the majority population far more than the lives of people of color.

When I got involved in anti-death penalty activism 13 years ago, I did it simply because I thought the idea of the government murdering people was wrong. But my opposition gained depth when I learned how dysfunctional the capital punishment system is.

Despite the attempts of supporters to explain away the problems, the death penalty is poor public policy. Since 2007, five states have repealed the death penalty, and Maryland may follow suit this year. It’s well past time for Pennsylvania to do the same.

---Andy Hoover, Legislative Director, ACLU of PA

The Founders’ Intent

by Ngani Ndimbie, ACLU-PA community organizer 

I’m just going to come out and say it: As a young activist in my late teens, it was very hard for me to get behind any friend or representative of the American Civil Liberties Union who used  “founders’ intent” jargon when discussing the rights of all. Or talking about the morality and wisdom of the men who wrote the Bill of Rights.

My thought as a black American always was, “Um. It was also the founders’ intent to keep black Americans enslaved forever. Or at least that’s what they wrote into the Constitution and failed to correct in the first 12 Amendments. So let’s not pretend that these men were infallible geniuses...”

My relationship with the Constitution and the early history of this country is fraught with mixed emotions. I wish I could imagine time-traveling back to 1790 to chat with Ben Franklin about the Patriot Act, PA’s Wiretap Act, and pre-conviction DNA testing, knowing that he would be pissed as hell and commiserate. I wish I could imagine having a long and rewarding discussion.

But as a black person I know that I’d barely be given enough time to get out of the Back-to-the Future-Delorean before being whisked away into slavery with the other black Americans.

Today I work for the ACLU of Pennsylvania as a community organizer defending the Constitution every day. And I love it. I have come to terms with the fact that the founders did not have the whole picture--but they understood an important part of it. The founders also included freedom and justice in the Constitution. And that cannot be overlooked.

When talking to people who dislike the ACLU, our legal director, Vic Walczak, often references the “liberty and justice for all” part of the Pledge of Allegiance, saying that the ACLU exists to secure that promise. Vic then questions the ACLU detractor, asking, “Do you have a problem with liberty?” “No,” they say. “Justice?” is Vic’s follow up. “No. I don’t have a problem with justice...”

It’s the “for all” part. A portion of our country’s leaders and citizens have always had trouble with the “for all” part. It’s our fellow Pennsylvanians who have commented on the articles announcing our Davila lawsuit  with terrible, ugly, and misguided thoughts. They aren’t bad people. In fact, I’d like to think that they are much like the founders.I trust that they really do believe in liberty and justice, but they’re still wrestling over that “for all” business (and are now thankfully required to by the 14th Amendment).

So while they work that out for themselves, the ACLU of Pennsylvania will continue to remind them of what America’s values really are.

We’ll nudge them with a lawsuit here, a petition there. We’ll block bills written by lawmakers who have chosen to ignore the Constitution. We’ll educate communities about their rights and mobilize people to take action.  

So in the end, the founders’ shortcomings have given me purpose. I consider myself lucky be part of such a wonderful team of staff, board members, community members, volunteers, and supporters gladly, tirelessly working for all.

This post is part of a series honoring Black History Month.