Federal Lawsuit Against Company For Not Hiring Based on "Bad Credit History"

The Equal Employment Opportunity Commission announced yesterday that it is suing test prep-giant, Kaplan, for systemically denying blacks jobs due to their bad credit history. The Title VII (Civil Rights Act of 1964) disparate impact case alleges that Kaplan has rejected applicants so often, for reasons that were not job-related, that their conduct amounted to an unlawful pattern or practice under federal law.

Employee says to manager, "We couldn't hire Jamar because, you know, of his bad credit" (wink & nod).

This is an important lawsuit in the so-called age of colorblindness. If the allegations are true, Kaplan would have used credit history as a proxy for race to deny jobs to qualified candidates. How is this possible? It's pure math.

Blacks possess a fraction of the nation's prosperity in wealth compared to whites, and the gap is actually growing despite the Obamas and the few other well-to-do black families that are in the public eye. A legacy and continued patterns of property denial/predatory access to credit, inferior education, limited job opportunities and advancement, lower earnings, among other barriers connected to past and present racism, bring in and trap Blacks into generational cycles of debt. TMA applauds the EEOC for taking on this issue, even with expected backlash from colorblind proponents.

And for a brilliant illustration of how these systemic forces severely limit individuals' choices and debt-escaping opportunities, check out this post, "If America were a monopoly game."

We couldn't have explained it better ourselves.

Progressive Legal News: Local Community Radio, Second-Parent Adoption Ruling, Lawsuit Challenging the Use of Mace Against Schoolchildren, and Consumer Rights' Case Analysis

Today we came across a number of news stories that should be of interest:

Local Community Radio Act. Timothy Karr of the Huffington Post wrote a nice summary on the passage of this little-known bill-now-law, which will open up the radio airwaves to thousands of local independent radio stations. Great news for people who enjoy a variety of news and media sources.

North Carolina Strikes Down Second-Parent Adoption. This heap of bad news is delivered via a wonderful blog, Beyond (Straight and Gay) Marriage, run by WCL's own, Professor Nancy Polikoff. Not only did the Court rule that second-parent adoption (most often the only means by which same-sex couples can adopt) is not available in the state, but the ruling invalidates all previous adoptions. Professor Polikoff is particularly angry at the biological parent of the former lesbian couple who brought this claim at the expense of North Carolina families. There are just so many reasons to be outraged--so many reasons.

Southern Poverty Law Center Says "You Can't Mace School Children." It's hard to believe that this issue has to be litigated but apparently Alabama has not received the memo that macing school children, as a form of school discipline, is not only wrong, but unconstitutional. SPLC announced that it is filing suit against the Birmingham school officials who refused to address the issue after it had been brought to their attention that armed school guards were macing children, and apparently taunting the students after the fact. Yuck. If this issue is of interest, TMA is featuring in its soon-to-be released fall issue, an essay about the transition of schools into young people prisons, by Lizbet Simmons.

Understanding a Major Consumer Rights Case, AT&T Mobility v. Concepcion. The National Campaign to Restore Civil Rights (NCRCR) Interview Series continues this week with Catholic University's Suzette Malveaux who breaks down a California arbitration class action lawsuit that may have a big ripple effect on consumer protection and the public's access to justice against corporations.

We Always Gotta Choose: Don't Ask, Don't Tell Repeal & The Dead DREAM (Act)

It was a big political weekend for justice-seeking people this weekend. With big votes on the military's Don't Ask, Don't Tell policy and the DREAM Act taking place on Saturday, analysts are still making sense of the not-so-lame-duck session. But, in the meantime, The New York Times offered perspective on the likely impact of the DREAM Act's failure on President Obama's immigration reform agenda, and MetroWeekly shared a concise, helpful history of DADT.


The Modern American is celebrating the repeal of DADT, which we've tracked in recent months, here and here, but we hope that the political season is not so virulently anti-immigrant that some positive legislation can pass next term.  

The Reverse Passing Conversation

Attention race sociologist geeks (or those interested in racial politics):

Our friends at The Root recently posted three articles, seemingly in conversation with one another, about a recently-coined phenomenon discussed in a new study called "reverse passing." It's arguably a new name for the one-drop rule, however, unlike the one-drop rule, it's individuals themselves, not the U.S. government, identifying people as Black despite White ancestry.

First among these articles, "Reverse Passing? Kidding...Right?", obviously takes a certain position; then, a few minutes later appeared a post titled, "Why Biracial Means Black," only to be followed shortly thereafter by "Passing for Black?" Each article begins by mentioning Barack Obama and delves into the history of racial politics around black identification.

We have a variety of our own views here at The Modern American, but we're interested in what you have to say? Do you "reverse pass"? Is this a misguided description? Throw in your two cents.

An Incisive Throw-Down On The Georgia Prison Protest

The insightful gang at the Crunk Feminist Collective has written an on-point commentary about the peaceful prisoner protest taking place at ten Georgia state prisons (if you haven't already heard). The prisoners have very basic demands for the state to preserve their humanity and dignity, including a living wage for their work, and decent healthcare. The protest is on the heels of TMA's recent blog posts--here, here, & here--on prison labor and the 13th Amendment. This is hardly academic stuff.

Update: Evidently the prison protest ended on Friday. The Root sums things up in a brief post.

Another Attack, Another Trans-Person, Another Cop, and Another Reason to Want Revolution

Please read the DC Transgender Coalition's Statement responding to the alleged anti-trans assault by an off-duty police officer of woman, Chloe Moore, that occurred last week here in Washington DC. If a modicum of the allegations is true, it's enough to make any justice-seeking person swell with anger and heartbreak, and enough to make other people wake up.

Two Queer Issues, One Critical Critique: Why Queer Left Community Groups Are Right About Hate Crimes, Anti-Bullying Laws

By Richael Faithful

                                               With friends at Dyke March, DC Pride, 2008

The Washington Blade, Washington D.C.'s nationally-syndicated, lesbian, gay, bisexual, and transgender (LGBT) newspaper, reported two stories this week of interest to people with leftist queer politics: latest developments in the murder of gay middle school principal, Brian Betts, and the D.C. City Council's anti-bullying legislative debate. On the surface they are routine stories covered by the LGBT paper, but these two stories illustrate the critiques of Left queer community groups on hate crimes and anti-bullying legislation, which often go unheard and unnoticed by gay liberals.

More of the Same
The first issue is hate crime penalty enhancements. In the very tragic story of Brian Betts, the gay D.C. middle school teacher was slain in his Silver Spring home this summer, allegedly by four teenagers who sought to rob him after one of the teens was invited to his home via a sex chat line. Betts was shot and killed when "the robbery went bad." The identified shooter, Alante Saunders, who is 19 years-old, plead to a felony murder charge, resulting in a 40-year prison sentence (20 year minimum). The second teenager, Sharif Lancaster, who is also 19 years-old, plead to robbery and use of a handgun during a commission of the felony, and he faces a maximum penalty of 35 years in prison. Plea negotiations are underway for the other two young men. Clearly, these young people are not "getting off easy," nor is there any sign that local prosecutorial misconduct.

Then, why is Gloria Allred, here?

Attorney for-the-stars, Gloria Allred, has been hired by the Betts family to "explore whether or not Brian’s murder should also be prosecuted under the new Matthew Shepard federal hate crimes law.” The Matthew Shepard Hate Crime and James Byrd Jr. Act, passed in 2009, added sexual orientation and gender identity to existing hate crimes protections that enables federal investigations and prosecutions of alleged crimes motivated by LGBT bias. Many LGBT activists applauded the passage of law, which in principle, humanized queer lives under the law as deserving of to be free from violence, and in practice, equipped federal authorities to intervene in cases where local prosecutors were not making a reasonable effort to investigate allegations, pursue charges, or prosecuting a case. But, the most well known and controversial provisions of the Matthew Shepard Act were the penalty enhancements--on both the Right and the Left.

In particular, New York queer community groups, representing queer people of color, including The Sylvia Rivera Project, Queers for Economic Justice, Audre Lorde Project, among others, challenged gay liberals by announcing their opposition to a comparable state hate crimes proposal that was being discussed while the Matthew Shepard Act was making its way through Congress. Their open letter explains:

Rather than serving as protection for oppressed people, the hate crimes portion of this law may expose our communities to more danger—from prejudiced institutions far more powerful and pervasive than individual bigots....Trans people, people of color, and other marginalized groups are disproportionately incarcerated to an overwhelming degree. Trans and gender non-conforming people, particularly trans women of color, are regularly profiled and falsely arrested for doing nothing more than walking down the street. Almost 95% of the people locked up on Riker’s Island are black or Latin@. Many of us have been arrested ourselves or seen our friends, members, clients, colleagues, and lovers arrested, often when they themselves were the victims of a violent attack.

In other words, queer groups feared that hate crimes penalty enhancements would not be administered blindly-- they would be used to further punish queer victims who were of color and/or simply put more young people of color away into the Prison Industrial Complex without providing meaningful opportunities for rehabilitation. One's imagination need not go too far back into history to envision the former scenario; the New Jersey 4, black lesbians acting in self-defense but later prosecuted themselves, is a sad reality faced by some queer folks of color. As for the other scenario, we can just look at the Betts case.

Betts was a white professional gay man and each of the four teenagers arrested for his murder are of color. Two of the teens will be in prison for more time than they have been alive, and the same is projected for the other two. It difficult to see the purpose penalty enhancements in this case--adding on 2 or 3 levels (several years depending on the person's offense, history, etc.)--serves any system of justice. These young people will be stored in prisons for decades. Worse, by incapacitating them for years, we only give them more incentive to hate queer people when they are released (notwithstanding the complicated, sexual politics of prison). Gloria Allred is professing a popular position behind hate crime laws but this position doesn't account for the real issues raised by people most affected by the law, and ironically, people most at risk for anti-queer violence.

Too Much Libertarian, Too Little Justice
The second issue is anti-bullying protection for LGBT students. Needless to say this issue is in response to media attention on LGBT-bullying. America has woken up to learn that young queer people (real or perceived) are subject to abuse and violence by fellow students (at least as much older people abuse, taunt, harass, and inflict violence on queer people, generally). The always-progressive D.C. Council has taken up the Bullying Prevention Act, and the Harassment and Intimidation Act, which are measures that would require all DC schools, including charter schools, and the University of D.C., to implement anti-bullying policies at least as strong as the District's model policy created by the proposed laws. Given the rash of suicides and murders, who would have reservations about the legislation? 

Well...liberal champions, like the D.C. ACLU.

Apparently the D.C. ACLU supports anti-bullying legislation in theory, but doesn't believe that bill's language of the bill "tightly" defines bullying in its current form. In the Blade article, Arthur Spitzer who is the chapter's local director, rhetorically asks, "What does it mean by harming a student? Does that mean hurting a student's feelings?" Of course, the bill provides a number of definitions, and sub-definitions, all of which complement Supreme Court case law (Tinker and Bethel, for example) that further define the threshold for an act to substantially disrupt a learning environment. While I understand the ACLU's inclination to be concerned about free speech (I'm a long-time member myself), sometimes, the organization can be too liberty-focused, and not enough justice-focused.

Here it is. In 2009, nearly 9 out of every 10 LGBT students experienced school harassment alone, according to the leading LGBT student advocacy organization, GLSEN. And, most local activists or organizers can tell you that technical legal squabbles related to language are usually worked out by the governing body's legal counsel, whom often will invite stakeholders like the ACLU to the table for revisions. The queer Left has long-advocated that isolation kills, and that queer young people experience their own school-to-prison pipeline as they are forced out of school at high rates due to un-addressed bullying. Frankly, the D.C. ACLU needs to get it together--make suggestions to the language of the bill--and get behind it. The ideological liberals' predilections really can miss the big picture of saving lives.

A message to my gay liberal friends: listen a little more and a little more carefully, and you may learn something from your Left-radical friends. We may not be working toward the same goals, but we have more in common than not.

The Politics of "Sex by Surprise" in the Assange Case

WikiLeaks' publication of diplomatic cables and the string of events that it has set off is no doubt incredibly interesting from a critical perspective. For a solid legal discussion on this topic, listen to WCL's own Stephen Vladeck's contributions on The Diane Rehm Show roundtable today. 

While the blogosphere has been set on fire by the controversy, a new debate is emerging around the rape and sexual assault charges pending against WikiLeaks founder, Julian Assange, in Sweden. Feministe has a great entry on the politics of rape, misogyny, and the law (both U.S. & Sweden) that puts proper perspective on the allegations and the public's reaction to them. 

Relatedly, Dissenting Justice has written an unequivocal post calling out some progressive's antiquated sexual politics in their rush to defend Assange. 

These critiques will be sharpened once more is known about the allegations and more legal analysis surfaces about Swedish rape law. Nonetheless, it's a very interesting story of which to keep track. 

Guns, Knives, and Words: Student Safety Goes Beyond a Metal Detector

By: Alexandra Manrique

When I was young my father used to tell me stories about his childhood; days where kids attended school to learn and have fun. School was not associated with harm or harassment, but with education and sports. Nowadays, things are a little different; schools are still associated with education but also violence, drugs, and bullying. Yes, there are metal detectors to detect weapons, police to stop fights, and dogs to sniff for drugs, but what stops poisonous words and harassment? Students are dying, not only from real weapons and harmful substances but from hurtful words and extreme teasing, and school officials must address this situation and fast.

The days when teasing meant that the teaser had a crush on the teased are long gone. Now, teasing and bullying must be taken seriously. Bullying affects all students, from elementary school children to college students, recall the tragic death of Rutgers University freshman Tyler Clementi. Teasing, harassment, and bullying all have an adverse, and possibly deadly, effect on the victim. The reasons for bullying vary, but some reasons students are bullied are race, religion, and sexual orientation.

Recently, due to the suicides of many gay students, there has been a campaign to raise awareness on bullying. Many influential actors, politicians, including the President himself, and ordinary citizens have videotaped an “It Gets Better” message. These short films assure the viewers that being gay and out will become easier. It is a positive and hopeful message and a good show of support for victims. However, more must be done. 

The Department of Education did distribute a letter to schools across the country stressing the importance of anti-bullying measures, and highlighting federal anti-discrimination laws that may be violated due to bullying. However, I still think more should be done; Schools should follow the example set by the school district in Helena, Montana. The school district in Helena, Mont. set new guidelines for teaching tolerance to students. Although these guidelines received criticism for appearing to promote a “homosexual agenda” and changes were made, the school board eventually worked out a curriculum to teach acceptance and respect to students. 

The actions of students can be dangerous. School officials must make sure that every student is protected from harm while in the school’s care. Guns, knives, and drugs are forbidden. Likewise, bullying should be forbidden as well. Bullying is just as harmful to students as the presence of guns, knives, and drugs in a school environment.

Closing Reflections - Series on Disability Rights

By: Gary C. Norman, L.L.M. Candidate 2011 & Vice President of the American Association of Visually Impaired Attorneys

During the previous twenty years, the United States has bludgeoned the walls of exclusion of people with disabilities downward.  As far as the employment rate of people with disabilities, including law students and attorneys with disabilities, is disproportionately low when compared to the able-bodied populous. These walls, once the height of the Berlin Wall, continue to have a noticeable presence in society.

Because of the commitment of people with and without disabilities trained in the law, progress is positively achieved all the time.  For instance, the positive legislation addressing accessibility to technology that the FCC will implement in coming months as well as the affirmative mandates of the Executive Order issued by President Obama may result in more of these walls of social and economic exclusion to crumble, leading to a richer, a compassionate, and a better society.  These remaining walls will not erode into dust should the legal profession, as a leading force in civic society, not behold itself to a high standard of affirmative inclusion.

In furtherance of this call for progress, the issues that the legal profession must address, include but are not limited to, reasonable accommodations to the LSAT and to the bar exam, reasonable accommodations at work, inclusive of, for instance, assistance dog issues (near to my own life), and the sensitivity of members of the field.  The cost of assistive technology as well as the access to fruitful training of assistive technology is an important issue on which I have perhaps not rote on a sufficient enough basis.

The lack of the LSAC to constitute a reasonable partner in providing reasonable accommodations to the LSAT is an example where progress through action is needed.  The simplest solution to the LSAT would be – to the pleasure of all pre-law students - disbanding this superfluous gatekeeper to law school.  The bar examiners in California would evidently appear to constitute another example where good faith collaboration would not impede the entrance of other law students to the field and would clearly inure to the fair opportunity of people with disabilities to be legal professionals.

The case of a woman with a sight disability, recognized as a leader in the disability civil rights arena, will shortly be before in the Ninth Circuit Court of Appeals to redress the position of the bar examiners in California that a reasonable accommodation will not be furnished.  As you combat against the tyrants of regression, all of us should provide a salute to you in urging that civic society take notice of its ethical, moral, and legal obligations. 

As opportunities are increasingly robust or as opportunities become increasingly robust to me as a blind person, I hope that I will continue to be in the service of my fellow citizens, including but not limited to, campaigning for public office in the future.

In conclusion, my desire is not for emoluments, if any, that might inure to me from penning these entries; rather, I hope that readers will have learned of, the challenges obstructing the inclusion of, but also the opportunities, like no other epoch in history, that are increasingly present to, students and attorneys with disabilities.  This is to note that as a person with a sight disability and also as an attorney and civil rights Commissioner, I have been pleased with the professional like conduct and the kindness of myriad students at WCL with whom I have interacted.  The legal field could acquire lessons from our fellow students.

Links

http://www.abajournal.com/news/article/blind_students_bar_exam_battle_isnt_over_test_firm_seeks_emergency_ban/