Bridging the Empathy Gap

By Lester Asamoah

black-and-white-american-flag2


2016, in some ways, has been a rough year in America. Racial tensions seem to be at least as high they were in 1992 after the Los Angeles riots. Some older civil rights activists even claim that tensions are close to as bad as they were during the civil rights movement. Race relations haven’t been the only divisive issue by any means – LGBTQ+ and Muslim issues also have had major dividing points. Needless to say, 2016 is a year in particular where it’s worth discussing these issues. Even if it means repeating certain issues or points. I’ve largely abstained from writing about these issues, but I want to return to them.

On Twitter, I’ve said that when I see certain politicians talk, I feel like I live in a different America than them. To be clear, there’s nothing inherently wrong about having a different experience than someone else in the same country. I’m sure that someone living in San Francisco, CA has a fundamentally different experience than someone that lives in Savannah, GA. However, there seems to be major gaps in how some of the fundamental problems America faces is approached. We have different problems and perspectives. Again, not inherently bad. But some of the problems faced by certain Americans goes largely ignored. This election cycle along with other major events in the [US] country have revealed our capacities to misunderstand each other.

This isn’t the part where I say we should all get along and end the post. I wish it were that easy. This is actually the part where I try to tease out of some of what I think can help develop basic understanding between our different experiences.

Listen and Share the Load

If you’re at all interested in what people are marginalized in America are going through, you should start by listening. I say this time and time again. But, ironically enough, people don’t seem to listen. Or they need to be reminded multiple times. I also suggest listening to things from people of the particular affected group. It makes no sense to hear a congressman pontificate about how bad the shooting was in Orlando – especially if they don’t mention LGBT people (many people did not) and if they’re not LGBT themselves. This isn’t to say that people of the out-group can’t have opinions, but it seems asinine to build your opinions and advocacy from the words of those not in the marginalized group. A certain presidential candidate addressed the black community in a city and crowd that is overwhelmingly white. What good does that do?

If you’re a good listener, then you won’t have to ask the same questions over and over again. As Toni Morrison and many others point out – a part of oppression is having the marginalized consistently have to prove themselves and help others understand what they’re going through. Unless you’re asking a real simple question or are willing to start an honest conversation about a social issue, don’t keep asking basic questions. Google is a hell of an invention. Don’t waste people’s time forcing them tell you about racism, sexism, ableism, Islamophobia, homophobia, etc. when you have the resources to learn about these issues. And if you don’t have the resources, then make that clear. And make no mistake, if you’re intentional people will be receptive. But just know that when you see injustice and you keep saying “I didn’t know, I didn’t know,” it really does no good for anyone. It also does no good to call someone/group of people stupid for what they believe in. Even if you think they are, constantly sharing articles about how inferior a group of people are to you and your cadre of friends isn’t ingratiating. Oh, and let’s stop with the damn “devil’s advocate” please, unless you like patronizing people. We don’t need anymore devil’s advocates.

Changing from Within

Do you believe that people can change? Well, to some extent, people have to change for there to be less tension in the US. As alluded to previously, people have to change the way they take in information about others. But internalizing it is just as important – how many times have you sat in front of a TV or a lecture and not remembered anything that was said in the last 5 minutes?

It’s incumbent of us, as Americans, to get to know the other side. Of course, this shouldn’t be done if the other side is hateful or harmful to our health. I strongly take the stance that I shouldn’t need to empathize with the arguments behind racism, homophobia, and Islamophobia. Thinking people are inferior based on race, gender, religion, etc. isn’t okay, and we shouldn’t be interested in entertaining those beliefs. But where can we as individuals help others move on how they view the world? Can we help people move on these issues? I’ll be honest – I don’t have a great answer because I believe in spending energy on keeping oneself healthy and prosperous; battling with someone who sees you or others as less than a fully valuable human goes against that. Alternatively, what are we doing within our in-groups on these issues? The black community has pressing issues of misogyny and homophobia to deal with. As do many other communities of color. Intersectionality is something that has to be practiced by everyone.

To put this bluntly: for there to be change, the people that are in the dominant group have to change. For systemic racism to end, white people have to change. For misogyny to end, men have to change. For Islamophobia to end, people who are non-Muslim have to change. For homophobia to change, straight people have to change. You likely get the point now. This is where intersectionality is critical because a lot of us in some way belong to a dominant group. It’s not enough to say only white people or black people should change. And it’s definitely not enough, if not pretty offensive, to say that someone in the marginalized group should change – i.e. lesbians should “act straight,” blacks should “commit less crime.” Just for the record: lesbians should act however they please and we shouldn’t assume blacks are prone to committing crime. Rinse and repeat these principles.

Free Expression

So if a problem is that we’re bad at listening and internalizing important things about those different than us, we should expect people to get mad sometimes. Of course, it does no good to endlessly scream at someone about an issue. But anger is a legitimate response to being called rapist by a certain political candidate based on arriving from a certain country, or seeing people that look like you getting shot down in a Florida nightclub or in the streets of Milwaukee. For some reason we just have a hard time in America with understanding the emotional responses of others. We need to get over that. We need to understand the varying expressions of those around us. White working class people in Indiana who feel betrayed by the economy have a right to feel mad. Black students who are tokenised for 3 years of school at a predominately white institution [PWI] have a right to be reserved. LGBTQ+ people have a right to be annoyed at straight people constantly disregarding their rights (we do it way too often, fellow straight people).

Expression is an important point because when you press people in some way, they will eventually express how they feel. The inability to listen and learn means we have routinely misunderstood these expressions. And make no mistake, we as a nation will continue to misunderstand these issues if we don’t listen and learn.

…Is that all?

I promise I’m not trying to insult your intelligence and be elementary by suggesting we should simply “listen and learn.” However, that is that solution and we are bad at it. Quite frankly, it’s much easier to put off the problem for a number of reasons: we have our own things going on, we have a friend of a marginalized group that doing well so things are fine, or we just worry that we’ll never know enough to do anything. Those are things that I’ve faced, and things that I imagine most readers face. We have to be honest with ourselves. It’s easy to write Facebook statues and call it a day. It’s easy to let that guy we know say the n-word. It’s easy to let a sexist joke slide. But it’s difficult to confront ourselves and these small battles. And sometimes these battles are more harmful than good. Sometimes we lose friends. Sometimes we need breaks. But if we’re concerned about bridging the gaps that have made America feel so divided, we have to do the work and that’s where the work is. Don’t say I never warned you.

Lester Asamoah is a graduate student at American University.

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How Much Will You Pay for Better Schools?

By David Postic

Oklahoma Education

 


Oklahoma does not value education. Our spending shows it. Our outcomes show it. The number of teachers flocking to other states for better pay and better schools (or, in Oklahoma, leaving the profession entirely) show it. Each year, it seems like the Legislature keeps cutting and cutting and cutting the education budget as our classroom size keeps growing and growing and growing. Each year, we complain that the Legislature needs to get their act together, that it needs to better fund our schools. And each year, we are absolutely right. But it’s also easy to complain; it’s tougher to conceptualize. What would better education look like in Oklahoma? What would it cost?

The Problem

First things first: let’s go ahead and admit that we are not funding our schools like we should. Because we aren’t. Over the past 10 years, Common Education funding in Oklahoma has increased a mere $78,680,179, not adjusted for inflation ($2,348,041,255 in FY 2007 compared with $2,426,721,434 in FY 2017). That might sound like a lot of money, but just wait. Adjusting for inflation (because we can), annual spending on Common Ed has actually decreased to the tune of $389,722,187 (or ~14%). To put that in comparison, the amount of money the Legislature has cut from Common Ed (let’s not even get into the amount it’s cut from Higher Ed) could pay the entire Thunder payroll (pre-salary cap increase) for 5 years. It could pay the Red Sox payroll for 2 years. Or it could buy 121,550 of these super nice toilets to symbolize where the Legislature is throwing our education funding. It’s that much money.

But to be fair, a decrease in funding, by itself, is not necessarily bad. If we have fewer students, then per-pupil funding stays the same, right? Theoretically, yes, dear reader, you would be right. Only that’s not the case. Because we don’t have fewer students. We have more students. We have many more students. To be precise, as of April 2016, Oklahoma is home to 692,670 students, which is a 50,999 student (or ~8%) increase from 2007. (We don’t have enrollment totals for FY 2017, so the comparison of enrollment to funding is a bit off, but it’s close enough.) Funding has gone down; enrollment has gone up. Uh oh.

What this means is that our per-pupil, inflation-adjusted state funding for Common Ed has decreased by $1,761 over the last 10 years ($5,264 in 2007 to $3,503 in 2017), or about 33%. Keep in mind that state funding is only about 45% of total funding for public education; another 45% is local funding from property taxes, bonds, etc.; and 10% comes from the federal government (these numbers are slightly different in Oklahoma, but you get the idea). So at first blush, a decrease in spending may seem like it has a silver lining, what with all the tax money we don’t have to pay and whatnot (more on this later). But because a decrease in state funding means that local funding has to pick up the slack, you will end up paying about the same amount in taxes—and some people will even have to pay more—if we are to maintain constant levels of funding.

Of course, that’s the problem: we aren’t maintaining constant levels of funding to Common Ed. We are siphoning it off to pay for tax breaks to corporations and the wealthy. That’s a judgment call our state Legislature has made. And it’s wrong. Their judgment is wrong. They have decided that it is more politically expedient to sacrifice the potential of us students than to make the difficult call to halt tax breaks or—God forbid—raise taxes. They have decided that our students don’t deserve better. That our teachers don’t deserve better. That our state doesn’t deserve better. And they are absolutely 100% wrong.

The Solution

But I digress. I’m not just here to complain (although I’m definitely here to do that); I’m here to offer some solutions. Mostly, though, I want to quantify (in very brief and simple terms) what it will take to better our public schools. As a result, my focus is on revenue and does not cover qualitative improvements to Oklahoma education.

Let’s start with the obvious: Oklahoma hates taxes. Like, a lot. Like OU hates Texas. Like Donald Trump hates facts. Like everyone hates Ramsay Bolton. That much. As a result, we cut taxes a lot. How much do these tax breaks cost, you ask? Great question.

Exceedingly low tax rates for horizontal drilling will cost us in the neighborhood of $379 million in 2016 (and that’s just horizontal drilling tax breaks, not to mention other tax breaks for the oil and gas industry), while wind power credits are expected to cost another $133 million. I point out these two tax breaks for special treatment because—as every Oklahoma knows—oil and wind are two things that this state does not have in short supply. So it begs the question why we need such high tax breaks at all? Of course, a little incentive is fine. But our tax rate on horizontal drilling, for instance, is well below other states, and it’s not like oil companies are going to stop coming to Oklahoma—we have all the oils. As State Secretary of Finance Preston Doerflinger has said, a fiscally responsible policymaker “needs to seriously consider at what level government should incentivize something that is now standard practice.” Even walking back these two tax breaks a tiny bit could bring in tens of millions of dollars in new revenue. Phasing them out entirely (which, for horizontal drilling, would merely return to the ordinary 7% gross-production rate) would be half a billion dollars in the bank.

But these corporate tax breaks (and many more) pale in comparison to the lost revenue from cuts to the state income tax rate. Since the top rate (which applies to income above $7,200; the first $7,200 is taxed at rates between 1/2% to 4%) has been cut from 6.65% in 2004 to 5% in 2016, Oklahoma’s annual revenue loss is $1.022 billion. Annual. Billion. Is. What was that really big thing we had this year? A budget deficit? And how much was it? $1.3 billion? An extra billion dollars really would have helped with that. Too bad.

Now, tax cuts are nice. I like money. Money is good. Money buys me things like Netflix subscriptions and raisins and trips to Harry Potter World. But how much money did these tax cuts actually give us? And are they really even worth the cost? As of 2016, about 72% of the benefit from these cuts (about $735 million in 2016) goes to the wealthiest 20% of households (those making $246,000 a year). The wealthiest 5% of households ($568,000 a year) get 43% of the benefits. And the wealthiest 1% receive about the same benefit as the bottom 80%. The Oklahoma Policy Institute put this disparity in dollar terms:

The median Oklahoma household with annual income of $49,800 has seen its taxes reduced by $228, compared to a $15,519 cut for the average household in the top 1 percent (income of $476,600 and above). Households making less than $21,700 — the bottom 20 percent of households — have received an average of just $4 per year from cutting the top rate, since little or none of their income is taxed at the top tax brackets.

But wait, the inequity gets even bigger. When looking at the share of income paid in taxes, the Institute on Tax and Economic Policy has calculated that, in 2015, the poorest 20% of Oklahomans paid 10.5% of their income in state and local taxes compared to just 4.3% paid by the wealthiest 1%, or about 2.4 times as much. The middle 60% paid, on average, 9.3% of their income in taxes, 2.2 times as much as the top 1 percent. In policy terms, this is called a regressive tax system, as it places a larger burden on low-income households than on high-income households.

A billion dollars of lost revenue. Very little money in my pocket. And I pay more of my income than do wealthy people (who, coincidentally, benefit much more than I do from these tax breaks). Remind me why these tax cuts are good again? Oh yeah, because they foster growth and improve the economy. Only there is no evidence to support this. The nonpartisan Center on Budget and Policy Priorities looked at 40 years of data and studies on state taxes and economic performance:

The large majority of these studies find that interstate differences in tax levels, including differences in personal income taxes, have little if any effect on relative rates of state economic growth. Of the 15 major studies published in academic journals since 2000 that examined the broad economic effect of state personal income tax levels, 11 found no significant effects and one of the others produced internally inconsistent results.

In fact, four of the five states that have enacted the largest personal income tax cuts in the last five years — Maine, Kansas, Ohio and Wisconsin — have experienced total job growth and personal income growth below the national average since the tax cuts took effect. A recent study by the Urban Institute and Brookings Institution found “neither tax revenues nor top marginal income tax rates bear any stable relation to economic growth rates across states and over time.” Yet Oklahoma continues to cut its tax rates despite the fact that we cannot afford to do so. And education has suffered because of it.

So how are we to proceed? What could we do with the money even if we had it? This is where qualitative analysis comes in, and to a certain extent a mere increase in funding won’t necessarily improve outcomes. And outcomes are, to a large degree, what are most important. But money helps. And it’s easy to imagine what would be possible with an extra billion or two in funds available for education.

With an extra billion dollars, we could give our 46,571 (FTE) teachers a $21,000 raise (or at least give them the $3,338 raise they need to meet the regional average). We could roll back the 30% cut to school lunch matching programs. We could replace the $38 million cut from support for public school activities. Or we could actually buy textbooks for students. We could do so much to address the problems we have and to make Oklahoma a better place for both students and teachers. With an extra billion dollars, we could spend $1,443 more per student than we currently do, which would move us from 47th in the nation for per-pupil spending all the way up to 33rd. Those are good things. Those are things we could do. If only we had the money…

Conclusion

And we do have the money, at least in theory. There was a time when we weren’t losing a billion dollars a year in income tax cuts; there was a time we weren’t giving half a billion dollars away to energy companies. And guess what? We survived. Not cutting taxes did not kill us. Don’t get me wrong: I don’t like paying taxes. And if the Legislature eliminated all of the tax cuts mentioned above, my taxes would go up. Yours would to. But the Legislature can craft policies that minimize the impact on Oklahoma citizens while still providing the revenue we as a state need to function properly. It’s possible.

The politics of crafting those solutions is what seems impossible. Oklahoma is not a place that believes in things raising taxes or making tough political decisions. Politicians need votes to stay in office, and it will be much more difficult to get those votes if they tell their constituents that taxes are going to go up. You might feel less inclined to vote for someone who tells you that. Hell, that would give me pause. But consider this: is there anything we do as a state that is more valuable than education? Is there anything that gives our state’s future more promise? Is there anything that you would say to a child to justify taking away their free or reduced lunch, their textbooks, their teachers, their classrooms, or the educational opportunities?

It will cost us all to make education better in Oklahoma. It will cost us a lot. But our schools will be better for it; our students will be better for it; our future will be better for it. How much am I willing to pay for better schools? As much as it takes.

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See this original post on Medium.

Dissecting Fisher v. University of Texas at Austin (Part Two)

By Lester Asamoah

U.S. Supreme Court


As you know, we collectively decided on a two-part analysis of Fisher v. University of Texas at Austin here at Thirty-Eight Minutes. David and Jacob argued dissenting opinions on Friday, and if you haven’t read them yet, I encourage you to check out the primer and their arguments before continuing in this post. David and Jacob are incredibly hard acts to follow, but I’ll give it the old college try. I’ll jump right into my argument trusting that you’ve read the primer.

It only makes sense to frame this in the way the court analyzes the question, as David did previously. Which leads us to ask the same two questions: (1) Does the state actor have a compelling interest supporting its action? (2) And is the action narrowly tailored to achieve that interest? Also, as you’ll recall, the burden of proof falls on the state actor. In this case, the burden of proof is on the University of Texas at Austin. And this burden of proof, as established in Regents of Univ. of California v. Bakke by Justice Powell, should be under strict judicial scrutiny. Given that race is a social construct and quite fluid, scrutinizing cases involving race makes sense.

In answering the first question of compelling state interest, I truly believe that there is a compelling state interest behind affirmative action programs. I have many wider beliefs behind that, but I will stick closely to the legal arguments here. In the aforementioned Regents of Univ. of California v. Bakke, the University of California Medical School at Davis [UC Davis Medical School] failed to prove that Mr. Allan Bakke would not have gotten into the UC Davis Medical School because he was more qualified than the candidates who were accepted by the quota system that UC Davis established during the two years he sought acceptance into the school. The Supreme Court ruled in favor of Mr. Bakke. Where things get interesting, however, is that the majority opinion was split. While there was an overwhelming 8-1 ruling for Bakke, the majority of that majority opinion did confirm a compelling state interest in increasing racial diversity in the medical field. This idea of racial diversity as a compelling state interest has survived legally, notably in Gratz v. Bollinger and Grutter v. Bollinger despite schools’ failures to narrowly tailor their policies.

The University of Texas at Austin argued they specified their compelling interest for racial diversity in their “Proposal to Consider Race and Ethnicity in Admissions” by “’the promot[ion of] cross racial understanding,’” the preparation of a student body “‘for an increasingly diverse workforce and society,’” and the “’cultivat[ion of] a set of leaders with legitimacy in the eyes of the citizenry.’” The proposal was a result of a year-long study where they concluded that a race-neutral applications process was not meeting this goal. In following the logic of why the University of California at Davis solidified a compelling state interest by diversifying the medical field, there is similar logic present in the university’s case. Skipping to the second part of the proposal, preparing the student body for an increasingly diverse workforce and society is in line with a compelling interest and quite demonstrable. Cross-racial understanding is a compelling interest for the university. Phi Gamma Delta Fraternity at the university hosted a “border patrol” themed party in 2015. And if that doesn’t demonstrate enough of a lack of cross-racial understanding: in 2013 an African-American student was pelted with a bleach-filled balloon. I have to concede that the addition of minority students by no means will prevent things like this from happening. But, the university can clearly demonstrate some flaws of cross-racial understanding. I hate to make multiple concessions, but I admit I find the having as set of leaders with legitimacy pretty dubious in their justification of diversity. How does one measure what leaders have legitimacy? And how would diversity support that in any way? One could argue that leaders who have faced a diverse array of ideas are likely better than leaders who haven’t been exposed to new ideas. I digress.

The University of California at Davis [UC Davis] as a whole admittedly was easier to justify because it’s addressing a single field. But, in Gratz v. Bollinger the compelling state interest of diversity survived when put to the test of the University of Michigan undergraduate program, despite the ruling that the policy was not narrowly tailored. My opinion is that diversity is critical for the success of our nation, and that a way to achieve this is by higher education. I know that the effects of having a diverse workforce is not as apparent as the compelling interest of public health and national security. But diversity does impact both of those fields: in public health, as hinted at with UC Davis, we need doctors that are from diverse backgrounds. Language skills, public health programming, and patient-doctor relationships are critical for public health; diversity plays an important role in advancing public health. On national security, we’ve made terrible policy mistakes by having a small cadre of like-minded people making regrettable decisions. The coups that the United States have played a hand in throughout Latin America and Iran are examples. Much less the ineptitude of the FBI in years past in their terrorizing minority communities from a complete lack of understanding with those communities. Yes, diversity is hard to quantify and measure. But it is highly valuable.

I wouldn’t do justice (pun intended) to David and Jacob if I didn’t dive deeper into the narrow tailoring issue. In Grutter v. Bollinger the hallmarks of a narrowly tailored program are defined as: (1) admissions that do not insulate each category of applicants with certain desired qualifications from competition with all other applicants, (2) places candidates on the same footing for consideration, (3) exhausts alternative options for increasing diversity, and (4) proving that the actions taken are contributing directly to the attainment of that compelling state interest. I agree with David and Jacob in that the University of Texas at Austin did not meet the burden of proving their admissions program to be narrowly tailored to meet their objectives.

To be clear, the admissions program in place at the University of Texas at Austin is in line with the first two hallmarks of a narrowly tailored program. The combination of their Academic Index and Personal Achievement Index is flexible, considers diversity factors other than race, and does not preclude anyone or establish reserved admissions of any kind. As for the third hallmark, the university is unique in that it has a law which gives admission to anyone in the top 10 percent of their high school in Texas. And this admission process is responsible for around 75 percent of their freshman class admits. Justice Alto, in his dissent, brings up two important points: (1) why did the university walk back the argument of not attracting the “right” kind of minority students through the top 10 percent program? And (2) what is a “critical mass” of Hispanic and African-American students? It’s alarming to think that any argument was ever made for attracting the “right” kind of student – the university and state should be working to improve these schools that may be struggling to prepare their top ten percent for the university. With the fourth hallmark, there were also some holes in the university’s argument behind their methods for measuring a critical mass of minority students. Unlike Grutter v. Bollinger, the university did not seem to make it incredibly clear as to how it is getting underrepresented students in spaces where they, well…are underrepresented. Overall, solutions for ameliorating the lack of diversity in universities will take exhaustive work before the admissions process happens. Also, how do we know when we have enough minority students? Quotas have clearly been ruled out of the process. The use of affirmative action is positive, but how can we measure it? Do we need to measure it?

The letter of the law should never be moved by personal beliefs. I believe in affirmative action, but in a legal analysis, the University of Texas at Austin should have lost this case. But, I also believe that there is an established compelling state interest for diversity. Training our future business and public leaders requires more cross-cultural competency than ever before. We’ve seen the impact of not having diversity and not sharing ideas. The University of Texas is a fine institution, but it always finds a way to crush my hopes (i.e. the OU/Texas football rivalry game). The burden of proof was not met, but they had the resources to meet that burden. I can’t in good judgement say they should have won. However, I can in good judgement say that I believe that they absolutely had the tools necessary to comply with the letter of the law.

This is a good wake up call for the apostates of affirmative action – rightly or wrongly, there is a greater demand for quantifiable results and we have to find creative solutions to meet scrutiny or to somehow improve diversity in universities outside of the admissions process.

Dissecting Fisher v. University of Texas at Austin (Part One)

By David Postic and Jacob Daniel

U.S. Supreme Court


Yesterday was a day of excitement for law nerds and other people of the Supreme Court-watching persuasion: we were glued to our SCOTUSblog-filled screens as the Court issued several controversial decisions having to do with everything from immigration to affirmative action to the Fourth Amendment. There has already been a fair amount of analysis and commentary on these decisions (which have subsequently been overshadowed by #Brexit), and you will likely see more of it in the days and weeks to come. For now, though, we would like to focus on one case in particular: Fisher v. University of Texas.

This article is meant to provide a brief history of affirmative action jurisprudence and a breakdown of arguments against the majority opinion; you can find the response article here.

Brief Primer on Affirmative Action

Executive Action

Before we get to yesterday’s opinion, some background on affirmative action. The concept has its official American origins in John F. Kennedy’s Executive Order 10925, which required that government employers “not discriminate against any employee or applicant for employment because of race, creed, color, or national origin” and “take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin.” LBJ expanded affirmative action to cover government contractors, and to guard against gender discrimination. Soon, however, affirmative action expanded to address racial disparities in other areas, including education. Universities began including race in their admissions criteria, leading to constitutional concerns that resulted in substantial litigation.

Regents of the University of California v. Bakke (1978)

The first Supreme Court case to address affirmative action in the university admissions process was Regents of the University of California v. Bakke. (Fun fact: the case was originally filed in the Superior Court of California for Yolo County. Yolo. County.) The opinion—a plurality, meaning the analysis was unable to garner a majority of the court, i.e., it does not have precedential value—held that using racial quotas in college admission decisions violated the Equal Protection Clause of the Fourteenth Amendment to the Constitution, which affirms that “[n]o state…shall deny to any person within its jurisdiction the equal protection of the laws.” While Bakke eliminated racial quotas, it nevertheless allowed race to be considered as one of many factors in the admissions process. Such admissions systems, however, would be subject to strict scrutiny, meaning that the challenged program must be narrowly tailored to achieve a compelling state interest.

Over the next 25 years, federal appellate courts ruled on various affirmative action programs, but none of these cases reached the Supreme Court. But in 2003, the Court decided the landmark cases of Gratz v. Bollinger and Grutter v. Bollinger, both of which addressed affirmative action policies implemented by the University of Michigan.

Gratz v. Bollinger (2003)

Gratz concerned an applicant to the University of Michigan’s undergraduate program. Gratz claimed that she was denied admission based on her race (Caucasian)—namely, that the University unconstitutionally favored minorities in the admissions process. At the time, Michigan used a points-based admissions system—applicants were awarded points based on items such as race (20 points), athletic ability (20 points), depth of essay (up to 3 points), leadership and service (up to 5 points), and personal achievement (up to 5 points). Chief Justice Rehnquist, writing for the Courtstruck down this system as a violation of the Fourteenth Amendment. He reasoned that the points system, assigning points based on outward characteristics, treated applicants in a manner that prized their race over their individual accomplishments.

Grutter v. Bollinger (2003)

Grutter was a slightly different case, this time involving the University of Michigan law school. Similar to Gratz, Grutter argued that the law school unconstitutionally discriminated against her by using race as a factor in the admissions process. Unlike the undergraduate admissions system, however, the law school did not assign a set number of “points” for race. Rather, it was one factor among many used to judge applicants. Justice O’Connor’s majority opinion upheld the law school’s affirmative action program, holding that the Constitution “does not prohibit the law school’s narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body.” The program was narrowly tailored, said O’Connor, because it was not designed to be permanent; it was merely being used to obtain a “critical mass” of minority students. O’Connor noted that she expected such programs would be unnecessary within 25 years.

Fisher v. University of Texas at Austin (2013), i.e., Fisher I

This brings us to Fisher. This is actually the second time the Court has addressed this case. In the wake of Gratz and Grutter, the Texas state legislature passed a law requiring that the University of Texas at Austin accept all students in the top 10% of each Texas high school’s graduating class, regardless of race. Applicants who, like Fisher, fail to graduate in the top 10% of their class can still gain admission by scoring highly under a “holistic review” that takes into account many factors, including race.

Fisher sued the University; both the district court and the Fifth Circuit Court of Appeals upheld the admissions system. On Supreme Court review in 2013, however, the Court reversed the Fifth Circuit on a largely procedural issue: the Fifth Circuit did not apply strict scrutiny to assess UT’s admissions program, essentially placing the burden on Fisher to prove the system was not constitutional, rather than on the University to prove that it was constitutional. On remand, the Fifth Circuit applied strict scrutiny and reached the same conclusion, upholding the admissions program. Fisher then appealed again to the Supreme Court, and that is how we got to the case that was decided yesterday. Isn’t law fun?

Fisher v. University of Texas at Austin (2015), i.e., Fisher II

Justice Kennedy, writing for the majority (which was actually only four members, since there is one vacancy on the Court and Justice Kagan recused herself from deliberations), upheld the Fifth Circuit’s decision and found UT’s admissions system constitutional. Specifically, he held that the University had a compelling interest in advancing diversity in the classroom. “Considerable deference,” he wrote, “is owed to a university in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission.” Fisher submitted several arguments claiming that there were ways to more narrowly tailor the program, but the Court rejected those proposals. Kennedy did, however, order the University to “to engage in constant deliberation and continued reflection regarding its admissions policies,” and he suggested that a similar system could fail strict scrutiny under different circumstances.

Justice Alito (joined by Justice Thomas and Chief Justice Roberts) wrote a 51-page dissent, arguing that the University’s justifications were neither compelling nor narrowly tailored. In particular, he believed that the University was defining diversity only in terms of numbers, ultimately equating to “racial balancing,” which the Bakke Court held is unconstitutional. “What is at stake is whether university administrators may justify systematic racial discrimination simply by asserting that such discrimination is necessary to achieve ‘the educational benefits of diversity,’” Alito wrote, “without explaining—much less proving—why the discrimination is needed or how the discriminatory plan is well crafted to serve its objectives.”

Those are the two sides of Fisher. Below we will address arguments against the majority opinion; tomorrow, we will offer a separate article in support of the majority opinion. Hopefully you will consider both sides before making your own decision. We invite you to read these articles (and to read the actual opinion) and to add your own views in the comments below.

David: The best way to understand any Court decision is to understand the framework through which the Court analyzes the question. Here, as explained above, the test is strict scrutiny, which involves two questions: (1) Does the state actor have a compelling interest supporting its action? (2) And is the action narrowly tailored to achieve that interest? This is the most rigorous test the Supreme Court applies, and for good reason: strict scrutiny is often used to review laws that impinge upon fundamental rights and that deny citizens equal protection of the laws. So it should come as no surprise that states often have a difficult time prevailing under this framework.

Also important to understand is the burden of proof. “Burden of proof” is a legal term that means what it says: Who has the burden to prove the issue before the court? When it comes to strict scrutiny, the burden of proof is on the state actor. In other words, the state actor—not the person challenging the law—must prove both a compelling interest and narrow tailoring. This is a burden of producing arguments and evidence to support those arguments.

In the majority opinion, Justice Kennedy gave substantial deference to the University in proving its compelling interest. Although Kennedy admitted that, under strict scrutiny, the state actor must demonstrate its interest “with clarity,” throughout briefing and oral arguments the University never really offered a clear and consistent interest that it sought to advance. At times, it was achieving a “critical mass” of minority students (without explaining what a “critical mass” was), the amorphous concept of “promotion of cross-racial understanding,” or the more specific (but still vague and certainly not compelling) “robust exchange of ideas.” Remember that the burden is on the University to prove not only its interest (let’s say “racial diversity”) but also that the interest is compelling. The Supreme Court has never offered a bright-line rule for what constitutes a “compelling” state interest, so perhaps the best way to understand what “compelling interest” means is by comparison. Interests the Court has judged “compelling” include national security, health and safety, and not violating explicit constitutional protections. It seems, then, that an interest is “compelling” if it is necessary or crucial to a functioning society, as opposed to merely being preferred.

Furthermore, a “compelling” interest sits atop a hierarchy of interests that the Court has defined. So far, we have spoken about only one framework used by the Court in analyzing constitutional issues: strict scrutiny. However, there are less-intensive levels of scrutiny, so-called intermediate scrutiny and rational-basis scrutiny. (There are arguably other levels, but that would require an entirely different article.) It is not important now to know when these levels of scrutiny apply; only to know what they mean. Under intermediate scrutiny, the state actor must prove that the measure being challenged is (1) substantially related to (2) an important government interest. Under rational-basis scrutiny, the burden is only the challenger to prove that the challenged measure is not (1) legitimately related to (2) a legitimate government interest. Again, it’s not important to know how these tests apply. I simply want to illustrate that the Court actually spoke quite specifically when it required, under strict scrutiny, state actors to show a compelling government interest.

Is racial diversity in the university setting a compelling interest? I think it’s close. I would certainly agree that it is important; I just don’t know if it is compelling to the same level as national security or public health. However, the Bakke Court (affirmed in Grutter) held that it was a compelling interest. So while I believe the University did not carry its burden well, I think that it scraped by enough to satisfy the first component of strict-scrutiny analysis. My problem with the majority opinion comes from the second part of the analysis: Is the admissions program narrowly tailored to achieve the interest of diversity? Once again, the burden is on the University to prove narrow tailoring—it is not on the challenger. And I believe the University failed to carry that burden.

Narrow tailoring is a quaint legal phrase, but you may see the Court use other phrases in cases dealing with strict scrutiny. Sometimes the Court says the measure being challenged must be “necessary” to achieve a compelling state interest; sometimes it says the measure must use the “least restrictive means” to achieve that interest. Again, it helps to compare to other levels of scrutiny. Under intermediate scrutiny, the measure must be substantially related to the interest; under rational basis, the measure must be rationally related to the interest. “Narrowly tailored,” then, speaks to a very precise “fit” between the means and the end: The measure must actually achieve the compelling interest; and the means chosen to achieve that interest must not be overly broad. “Narrow tailoring” is still a vague and subjective standard, but hopefully these principles can at least give you an idea of what the Court is looking for.

One of the reasons Fisher I was remanded back to the Fifth Circuit was so that the University could show how the admissions program was narrowly tailored to achieve its asserted interest; in other words, the University failed to carry that burden the first time. As the Court (by a majority of 7 to 1) stated in its opinion remanding the case, narrow tailoring requires “a careful judicial inquiry into whether a university could achieve sufficient diversity without using racial classifications.”

Comparing the Fisher II opinion to the arguments asserted in the briefs, it’s clear that Justice Kennedy failed to make such a “careful” inquiry and instead tried to make arguments for the University that the University itself could not make with sufficient clarity to carry its burden the second go-around. He assessed the efficacy of the program by citing strange statistics such as the percentage of classes with at least five students that have at least one African American enrolled in the class. He then compared those numbers to somewhat-tangential demographics such as the total number of African Americans enrolled in the student body. These are statistical apples and oranges. While he later made an apt comparison of minority students admitted under the “holistic” review in 2003 and in 2007, the fact that the University has achieved some gains in diversity says nothing about whether the program is narrowly tailored. Moreover, as Justice Alito points out in footnote 14, the marginal effect of those gains is miniscule. And as both the University and Justice Kennedy acknowledge, there may be other reasons for those gains: the University has greatly expanded its outreach to minorities and has added numerous scholarship opportunities directed at minorities.

Important in all of this is to remember that the burden is on the University to prove that the program is narrowly tailored—not on the Petitioner to prove that it is not narrowly tailored. Justice Kennedy flipped the burden on its head (as is especially clear on pages 11–19 of his opinion). Even so, he also dismissed the fact that the Petitioner did offer a less-restrictive alternative: race-blind holistic review. While stating that the University had tried that method and had failed, neither he nor the University offered any support for that claim. I will say it one last time: the burden is on the University, and the University failed to carry its burden.

All of this is not to say that affirmative action is always unconstitutional. I believe there are compelling benefits to having a diverse student body. And perhaps there are other, more compelling interests that the University could have asserted. (Keep in mind, though, that the Court has held multiple times that affirmative action is not justified based on remedying past racial injustices.) But the law is not about what “could have” been; it is about what is. And in this case, the fact is that the majority opinion failed to properly apply strict scrutiny.

—–

JacobAs preface, I want to clarify that what follows is not an argument over merits of affirmative action as a policy; it is a legal analysis of this particular case. Good ideas do not necessarily translate into constitutionally justifiable policy. And in this instance, the policy at issue was not constitutionally justifiable. I agree with David that the majority misapplied the narrowly tailored requirement of strict scrutiny; better stated, the University did not carry its burden to prove that its admissions policy was narrowly tailored. But I believe the University did not even satisfy the first step in strict-scrutiny analysis—asserting a compelling interest—which means there is no need to each reach a narrow-tailoring analysis.

In the Equal Protection context, any law that utilizes race-based classifications receives strict-scrutiny review from courts. As David mentioned, this means that the burden is on the state actor to prove that (1) a compelling interest exists to justify the race-based policy, and that (2) the law is narrowly tailored to effectuate that interest. In this case, the University argued several interests, with the main one being the “educational benefits of diversity.” Setting aside for a moment the question of whether that interest is compelling, the University never gave concrete reasons to clarify that interest with enough specificity to move on to narrow tailoring. Furthermore, to judge whether this interest is being achieved, the University said that it would know the policy is working “when it ‘see[s] the educational benefits happening.’” Such a vague definition of the ends renders any court incapable of determining whether the narrow tailoring factor is met. This essentially hands all the power to university administrators: if the interest and goals of the policy are subject to change or are difficult to ascertain, it is nearly impossible for a court to identify when they have been met and whether the program passes constitutional muster. Critically, if the interest is broad and amorphous, it is impossible for the policy to be narrowly tailored as required by strict scrutiny; there is no limiting principle. What the University’s argument boils down to is saying “trust us, we know what we’re doing.” That has never been sufficient to survive strict scrutiny.

If this were any other, non-race-based policy, the interest asserted might be acceptable. But this not another policy; this is a race-based classification. As Justice Alito mentioned in his dissent, “[R]acial classifications are permitted only as a ‘last resort’ when all else has failed.” In a prior case, Justice Kennedy wrote that “racial and ethnic distinctions of any sort are inherently suspect and thus call for the most exacting judicial examination.” The University in this case is trying to justify discrimination on the basis of race with ambiguous notions of racial diversity. But even if it could have proved a concrete goal behind the diversity interest, it would not be sufficient to pass strict scrutiny. As noted above, there are three tiers of review in Equal Protection analysis: rational basis, intermediate scrutiny, and strict scrutiny. The details of the tests are not important, but which test applies in any given situation often determines the outcome of the case. For instance, if the Court applies rational basis, the government wins 99% of the time. If intermediate scrutiny applies, the government often loses. And if strict scrutiny applies, the government loses 99% of the time. This should give you some indication of how difficult it is for a state action to survive strict scrutiny.

So is racial diversity in education is a compelling interest? I am not saying it is not important as a social goal, nor commenting on the merits of reverse discrimination as a social construct. I am talking about “compelling” within the framework of the most demanding constitutional review that exists. I believe that there has not yet been an interest presented to the Court that is compelling enough to justify a race-based law, allowing the government to treat citizens differently under the law based on race. I agree with Justice Thomas (yes, you heard me: I agree with Justice Thomas) when he wrote, “The Constitution abhors classifications based on race because every time the government places citizens on racial registers and makes race relevant to the provision of burdens and benefits, it demeans us all.” Justice Kennedy has even gone so far as to state that “judicial review must begin from the position that ‘any official action that treats a person differently on account of his race or ethnic origin is inherently suspect.’”

As a final note, compare racial diversity in education to some compelling interests that have been accepted by the Court: national security, public health, public safety and security, etc. Still convinced that diversity in education is an interest compelling enough to overcome a history of striking down racially based laws? I’m not convinced. The University’s policy confers benefits and burdens disproportionally based on a person’s race, even if it does so to promote diversity in education. That interest not compelling enough to justify intentional racial discrimination by the government and conflicts with the Court’s history of rendering race-based laws unconstitutional. For that reason alone, the majority reached the wrong conclusion.

Click here for Part Two of our series covering Fisher v. University of Texas.

Dear Oklahomans Who Want to Leave…

By David Postic

Young Oklahomans Want to Leave


I love Oklahoma.

There is something about this state that holds a special place in my heart, aside from it being my home. Anyone who has looked out across the endless plains knows what I mean. The flatness of it all is intoxicating. But even more than the geography, it is the people that makes this place special. Oklahomans themselves are incredibly caring individuals, true salt-of-the-earth, born and bred on an ethic of hard work and on a faith so pervasive that it guides every part of their lives. Ours is a state with an enormous potential for diversity, prosperity, and opportunity.

But we have not lived up to that potential.

The actions of some of our governmental officers and representatives have shown that we, as a state, have either misplaced or misprioritized our values. And it’s something we need to fix. Rather than open our arms to diversity and tolerance, we have passed laws to discourage it. Rather than create opportunity, we have stolen it away from the most vulnerable in our society. Rather than look to the future — both in terms of our budget and our children — we have chosen instead to repeat the mistakes of the past. Whatever a properly functioning government looks like, this isn’t it.

This goes beyond the (embarrassing, in my opinion) events of the past few days (e.g., the continued assault on transgender rights, the admittedly unconstitutional abortion bill, the dishonest and inhumane decisions of the governor’s office vis-à-vis execution drugs). It goes to the heart of who we are as a people. Because although it is our elected officials who have caused these events to pass, it is we who elected them and continue to re-elect them. (I note here that there are more than a few courageous officials who have taken a stand against the rising tide of hatred and irresponsible government, and as a result they are not the subject of this complaint.) That’s on us. Authority without accountability breeds tyranny, and that is precisely what we are beginning to see.

But it is not only the particular representatives of our government that we need to hold accountable; we must hold accountable our system of government itself. Our system is based on politics and politicking, and as entertaining as it is to watch (and as necessary as it may be to some extent), it has become destructive. Politics — in my ideal vision of the concept — is simply a dream of (and a means to) establishing good government. At its heart, and what it most seeks to promote, is the body politic: the people. That is the basis of our democratic republic.

Today, however, politics has become divorced from the good of the people. Politics is no longer concerned with the body politic; it no longer cares. Not about you, not about me. It no longer cares about anything except winning and legacy and airtime and money. I am even convinced that politics writ large does not actually care about making the world a better place. Politics is no longer a solution; it is not a cure. It is a virus that spreads and infects everything and everyone it comes into contact with. Politics is no longer synonymous with statecraft or diplomacy or improvement. It is about maneuvering and brinkmanship and ultimatums. Politics today is more about grandstanding and fearmongering and fundraising and celebritizing than fixing and building and moving forward and helping people.

Why has this “new politics” become the mainstay? How did we get here? More than a little of the blame falls on us, the people. By and large, we do not want politicians to compromise — not on gun control, abortion, immigration, climate change, the budget, or anything else. All we want is for our guy to win, our side to win. Because for some reason, we have created a binary world where there is only right and wrong, winning and losing. There is no room for shades of gray, no room for discussion. And so it is that we as a society have come to view compromise as the antithesis of winning, something we wish to avoid at all costs. The media (and we, the consumers of media) have perpetuated this culture by buying into the hateful rhetoric and by accepting at face value the “facts” we are given. We do not verify, we do not seek the truth. We do not listen to people anymore. We hear them, and we speak to them, but we do not listen to them. There is no dialogue, and consequently there is no understanding. And that is a serious problem. Because if we ever want to work out our differences, we need to listen to each other. We need to understand. We need to care.

I am of the perhaps hopelessly optimistic opinion that our differences are not so great, political or otherwise, that we cannot overcome them. I do not believe that we are forever condemned to this destructive breed of “new politics.” I believe that Oklahoma — and the nation — can do better, and it starts with us. It starts with informed, passionate, caring people taking notice of the injustices and prejudices and wrongs that exist in our society and committing themselves to doing better, and electing representatives that are committed to doing better. We cannot fall victim to apathy, that old friend of oppression. We must do something.

It is no secret that making a better future will not be easy, and I am not going to try to make it seem easier than it is. Balancing budgets and funding schools and fixing bridges and providing health care and helping the poor and reducing violence will not be easy. It will be hard. It will be very, very, very, frustratingly, miserably hard. It will require sacrifice. It will demand our money, our comfort, our passions, our pride, our attention, our differences, and our egos. It will take everything we have.

Facing these large problems, and seeing discrimination and injustice perpetrated by the very government sworn to protect the liberties of its citizens, many young Oklahomans have given up. Oklahoma is beyond repair, they say. It’s a backwards state. They are embarrassed to be from here. They no longer see a future for this state and decide instead to leave it. The politics and politicians of Oklahoma are inspiring a mass exodus of young, talented individuals. This is more than just brain drain. It is passion drainand potential drain. And it is entirely unnecessary. This state has lost many of my friends, exasperated at the seemingly fixed order of things and the insurmountable obstacles ingrained into the very fabric of our government. I try to convince them to stay, to help fix things, but the politics and prejudices of Oklahoma are making my argument increasingly difficult.

But still, I must make it. Because the only hope for a brighter future in this state is a new generation of Oklahomans standing up for what is right and responsible when it comes to government. So to all young Oklahomans considering leaving this state: stay. The problems are big, but so are the possibilities. The path is not easy, but the reward will be worthwhile. Stay, and we can fight to bring this state back from the brink of self-destruction. Stay, and we can find solutions, make progress, and create a better Oklahoma, a better home for us all. We cannot do it without you. The people of this state deserve better. They don’t deserve irresponsible government and bigotry and the kind of politics that doesn’t care about them. Stay, and help give the people of this state the government they deserve. Isn’t that worth something?

Oklahoma is a special place, but it is in dire need of help. Its people are in dire need of help. So what can you do? You can stay. You can care about Oklahomans and about what happens to them. It will take time and patience — ungodly amounts of patience — but a better future is possible. We can make it happen if we work together.

Oklahoma is my home, and I plan to stay here and make it better. I hope you do too.

—–

See this original post on Medium.

How Rotten Schools Can Become a National Security Issue

 

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Staff members at Brussels airport and rescuers stand outside the terminal for a ceremony March 23, 2016. (REUTERS/Geert Vanden… © POOL New / Reuters)

 

Once again, the heart of Europe is under attack by religious extremist; by terrorists; by citizens. It was not a matter of if, but when. Europe, along with its allies, is fighting what seems to be an impossible war against ISIS. Some argue for a full military intervention, some argue for diplomacy. Some argue higher security, some argue that our lives should go on as usual and let the terrorists know they will not win by attacking our democracies and values.

What is different this time, is that it is the same cell in which carried out the Paris bombings that attacked Brussels. How can a cell; hunted for months by Belgian and French police, still be able to carry this out? Even after, only four days prior, the man behind the Paris bombings, Salah Abdesalam, was captured? The Belgian police will have a lot to answer for in the coming days.

The Norwegian correspondent Frank Rossavik writes about parallel communities that exists in more or less every country. There are known areas in nearly every big city around Europe with communities living completely separate from the rest. No-go areas, where police literally (unofficially) have no power, areas controlled by it’s own “juristically systems” and their own interpretations of right and wrong, have existed for decades. This is not an Islamic issue alone, far from it, but it is a great problem authorities need to take seriously and start figuring out as it is in environments like these extremism and negative attitudes can be nurtured and continued.

Nevertheless, it is not only in these environments we see terrorist cells pop up and kids being recruited. There is no formula for who can or will be recruited; we see middleclass teenagers from the West leave their friends and families, without any strong religious beliefs prior to the joining of ISIS. There are the people from the no-go areas, and then there are young adults from poor, rural areas, where their only option is join – or get killed. Many people, especially in Syria today, only join ISIS because they earn a salary and thus can take care of their family.

The common denominator for all the groups of recruits, no matter the background or social status, is based on two things; lack of opportunity and lack of education. Authorities need to acknowledge the link between, and the possibility it produces, a better education system and national security. A system where schools in low-income areas are being prioritized, where as much attention are given upgrading schools, the education level, and last but not least; social services at the schools in all parts of the society, will have enormous benefits. Not only is this important on an individual level and for the country’s future when producing educated citizens; it also serves as a counter-violent extremism measure.

If children and youth have access to both good educational systems and schools that are not rotten and low-funded only because of the area they live in, as well as psychosocial security networks of advisors, optional vocational training, job- and application training, along with all sorts of other resources to make sure everyone are at their best, one will have come a long way in countering violent extremist behavior. Although we can never “save” everyone, this would be just as justifiable as spending years and years and trillions of dollars on military operations and traditional national security measures.

It is when people feel like they have no opportunities, are not being seen or heard, or feel like their religion is being stamped on, that it is easy to get caught in a web of lies, manipulation and false promises. This goes for the kid down the street you automatically think has the same possibilities and base as you do, as much as the poor people in war-torn countries deprived of everything. We need to make sure we invite everyone along the way to democracy, an open society and to share our inclusive values. We have to stop only saying that we do; we need to start doing it.

 

Kaja Wold is a first-year graduate student studying Development Management at

American University, School of International Service

Zootopia, an Animal Movie About Humans

By Aaron Bumgarner

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It wasn’t surprising to see Disney Animation’s new movie, Zootopia, top the box office during its opening weekend. The biggest competition was London Has Fallen, the sequel to the underwhelming Olympus Has Fallen from 2013. It was still almost expected when Zootopia was number one again the following weekend, since the only other new opener with a chance was niche thriller 10 Cloverfield Lane. But this past weekend, when Zootopia bested the third Divergent movie, making it the number one movie three weeks in a row, it was time to pay attention.

You honestly already should have been paying attention to Zootopia, for its quality if not for the quantity of dollars it’s bringing Disney. Again, even in the area of quality, Zootopia wasn’t really a surprise. Disney Animation (separate from but friendly with Pixar, both of which are under John Lasseter’s management) has released great movie after great movie, starting in 2010 with Tangled, then Wreck-It Ralph in 2012, Frozen in 2013, and the Marvel collaboration Big Hero 6 in 2014. With this track record, quality was to be expected. But what was wholly unexpected was the kind of movie Disney ended up making. Zootopia is not only an exciting, zippy piece of children’s entertainment but also an insightful and timely plea for human decency.

Of course, it takes a movie about animals to demonstrate our need for human decency. Zootopia follows Judy Hopps (Ginnifer Goodwin), a rabbit from the country who wants nothing more in life than to make the world a better place by becoming a police officer in the great metropolis of (you guessed it- congratulations!) Zootopia. Zootopia is filled with animals of all kinds, both prey and predators, but Judy would be the world’s first bunny cop. We see a montage of Judy working hard at the police academy, and then a scene of her being badged in which we learn Judy is the first officer instated under the mayor’s new “mammal inclusion program”. That phrase alone should give you an idea of which side of this movie’s bread is buttered.

And yet it goes in a completely different direction. You’d think this might be a harmless movie that uses Judy’s story of succeeding against prejudices within the police force as a paean to both hard work and inclusion. And the movie does explore that angle to great effect. But Zootopia goes further, giving Judy an assignment to find a missing otter with the help of an untrustworthy fox (Jason Bateman) and finding ways therein to comment on police violence, identity politics, and fearmongering politicians. What starts as a “you can be anything you want to be” fable becomes a kind of social commentary unprecedented from Disney.

I feel comfortable designating Zootopia a liberal movie because of the ways that it comes down on a lot of these issues. But ending my description there (as I often have over the past few weeks when describing the movie to friends) has seemed incomplete in retrospect, especially after a conversation with a few of my good friends last weekend. We talked at length about the concepts of privilege and diversity and what the costs and benefits are of a culture that uses such demarcations. We disagreed on a lot and agreed on some, but by the end it was clear that we were all seeking solutions to the same problems: disunity and disharmony. Zootopia, while being decidedly in favor of liberal ideals, is far more in favor of unity and harmony, and the movie recognizes that achieving those goals in the real world is complicated.

And that’s why Zootopia is such a special movie. Some have gone so far as to call it anti-Trump- that’s probably a stretch, since it went into production before our country’s Trump situation had reached peak Trump. But I suppose it’s inherently anti-Trump just by virtue of being pro-human decency. More than anything- more than a celebration of diversity or an ode to hard work or an argument for inclusive government programs- Zootopia is a movie that values harmony above all. And in the midst of this divisive political campaign, harmony seems to be what we need most.

Aaron Bumgarner is a speech-language pathologist for Oklahoma City Public Schools, but he’s mulling over a move to Zootopia.

Why We Still Need Feminism

By Kaileen McGourty

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The feminist movement has never been unanimously popular – whether due to honest disapproval of gender equality, like that experienced by the Suffragettes, or a disbelief that feminism is still necessary today. And that’s why I’m writing this article, because of the recently blooming opinion that we don’t need feminism anymore. There are a significant number of people in this country, and possibly throughout the world, who believe that we ended sexism and gender discrimination (Yay! We did it apparently!) and therefore see feminism as redundant or even causing victim-hood among women. But that’s simply false. Discrimination based on sex is still very present in the US (and the rest of the world); those who do not see it either aren’t women or aren’t looking very hard. A good way to expose the ever-present sexism in our society is to examine dominant versus popular culture.

Dominant Culture

Let’s being with a definition. The dominant culture is made up of established societal aspects like language, rituals, or social customs. These aspects maintain dominance through institutions like the education system, law, politics, and business. This is the layer of society where first and second wave feminism focused – attacking where the most obvious and detrimental acts of gender discrimination existed at the time. The lack of women’s right to vote or own property, unjust pay, discriminatory educational practices, and workplace sexual harassment all were obstacles in the dominant culture. As a result of strong feminist efforts, we have seen great improvement in this sphere of society – this is what some are referencing when they claim that feminism is no longer necessary. Women won the right to vote and hold land. Laws punishing sexual harassment and encouraging workplace safety have come into effect. Title IX was created to insure educational institutions treat female students equally.

But have we really improved gender discrimination in the dominant culture as much as some may think? Let’s say we’re going to measure the presence of gender discrimination in dominant culture with wages. Over time, in the U.S. it is very clear that the average wage for women has moved closer and closer to that of men (see the graph below). However, we’ve yet to actually reach wage equality. As Harvard economist Claudia Goldin explains, if you calculate the average annual earnings of all full-time working women and divide that by the equivalent calculation for men the result would be around .77 – meaning, on average, women earn 77% of what men earn. So we can’t quite say there is gender equality in pay yet.

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But is this a fluke? Let’s try a different measure. How about the portion of political positions held by women? According to the World Bank data-bank, in 1990 women held a mere 6.6% of political seats in the U.S. and as of 2015 women held 19.4%. That is a huge improvement across time; however that number pales in comparison to the other one-hundred and eighty nine reporting countries in 2015. Ranking from highest percentage to lowest, the U.S. finds itself, just barely in the top 50%, at number 96 – below countries like Saudi Arabia, Iraq, Pakistan, Afghanistan, Sudan, South Sudan, Uganda, Kenya, nearly every “developed” country, and many more. So, sadly, we can’t claim political gender equality either.

Popular Culture

We have to accept that our country has not reached gender equity in dominant culture. That does not mean we’ll forget the huge improvements women have seen in our country’s history – something both genders should be proud of. But there seems to be a final obstacle preventing real equality and an end to gender discrimination. I believe that it’s the sexist foundations of popular culture standing in the way. Popular culture is more than the who’s who and what’s what. It’s defined as the sum of attitudes, beliefs, ideas, and values within the mainstream or dominant culture. It’s the culture of how we interact and what we believe. This is where those who believe sex discrimination has vanished lack an understanding or haven’t connected the dots, so to speak. Our popular culture is built upon the sexist cornerstone that women are not equal to men – this holds back gender parity in dominant culture and perpetuates potentially harmful attitudes. These attitudes account for things like street harassment and catcalling, “mansplaining”, and even rape culture. Let me give a few examples:

I asked twenty women I know, all of different ages, sizes, and locations, a question: how many days out of the week do you experiencing catcalling or other forms of street harassment? Accounting for how many days they actually walk on the street or use public transportation, on average they experienced some sort of harassment approximately 5 out of 7 days – and that’s not considering how many times it happened each day! And if you don’t believe me, ask the women in your life.

I am a huge hockey fan (go Blackhawks!), probably more knowledgeable on the topic than the average fan. But I cannot count with all my digits the number of times a man has tried to explain rules or aspects of hockey to me, based purely on the assumption that because I am a female I must not know about sports. Nor can I count the number of times someone, knowing my academic and professional experience, began explaining topics in my field of expertise because the intelligence of women is constantly challenged in our culture.

While those examples may seem harmless, and on the surface they mostly are, they are representative of a dangerous attitude – what women know, want, or say doesn’t really matter. And when that attitude gets applied to something more complicated than hockey knowledge, like sexual consent for example, heinous violations of women occur.

If you still aren’t sure that our popular culture is built on a foundation of gender discrimination I have a dare for you: in this awards season, watch all the red carpet (whatever color carpet) interviews. The presence of sex discrimination is thinly veiled at these events and is most apparent when comparing how male artists and female artists are interviewed. Compare the types of questions – are women being asked about their love life or beauty regime, while men are asked about their role preparation or inspiration behind a song? Of course, you already know the answer. This type of sexist interviewing goes undisguised in every sphere of pop culture, just watch how absurd the questions for female athletes are in this video by #CoverTheAthlete.

So What?

The reason I had to tell you all this? Gender discrimination is not done. Women are still fighting everyday to be treated with respect and equality. Our culture still does not truly value women’s intelligence, work, sexuality, or opinions. While our dominant culture has made great strides in the past towards gender equity and the fair treatment of women, society as a whole is being held back by the final obstacles – how we think, how we act, and what we value. To truly reach gender equality and an end to sex discrimination in our dominant culture and in all of society we cannot leave behind a popular culture built upon sexism. We need to rally around feminism and women. We need to examine how our individual participation in popular culture is impacting the existence of sexist attitudes. And we need to say “enough is enough pop culture, get it together!” I think it’s about time.

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Kaileen McGourty is a Graduate Student at American University’s School of International Service.

The 2016 Grammys and the Morning-After Anger

By Aaron Bumgarner

Kendrick's performance was riveting


You’ll be easily forgiven if you decided to skip watching last night’s 58th Grammy Awards. I’m not going to recap the entire awards show, because recapping something that lasted 810 hours sounds like a lot of work. Instead I’ll focus on the big moment, the one that had Twitter all aflame, the one that perhaps should have had me seething but instead just made me further resigned: Taylor Swift’s 1989 beat out Kendrick Lamar’s To Pimp a Butterfly for Album of the Year.

I saw a lot of angry people on Twitter afterwards; chances are, if you’re reading this, you were one of them. I’m not going to tell you how to feel, but allow me to provide a little context, first in favor of what happened and then in condemnation of it.

Taylor Won

The temptation in the face of Taylor Swift beating Kendrick Lamar one year after Beck beat Beyoncé is to lump last night’s show in with #OscarsSoWhite or to simply cry racism. That’s not wrong, but it also doesn’t tell the whole story. First of all, Morning Phase, the Beck album that beat Beyoncé’s self-titled statement album last year, is lightweight stuff. It won’t be remembered even as one of Beck’s best albums, let alone as one of the best albums of 2013-2014.

1989, on the other hand, is an industry monolith. For 2014-2015, Taylor Swift ruled the world with that album as her scepter. She was dominating the industry on Adele’s 21 levels. Did we really think that the industry as a whole wouldn’t vote for an album as successful as 1989? Swift’s Album of the Year victory isn’t questionable in the same way that Beck’s was.

And on top of that, the little thing that Swift mentioned in her acceptance speech (no, not that little thing) about being the first woman to win this award twice is no small matter. In the 58 years that award has been given out, 18 women have won it, and that’s including toss-ups like John Lennon & Yoko Ono, Fleetwood Mac, the O Brother, Where Art Thou soundtrack (which was probably actually given to T-Bone Burnett, but featured a lot of women), and Robert Plant & Alison Krauss. Maybe you noticed that everyone who came up onstage with Swift was a man. That’s very indicative of the music industry as a whole.

As much as Swift may feel like she’s a part of the establishment to you, she is one of few women in the industry who can truly take ownership of her business, and the fact that the Academy is recognizing her matters. We should celebrate that. There are multiple points of discrimination in the music industry, just like in the outside world, that need addressing. We can celebrate progress in one area without neglecting other areas.

Kendrick Lost

And yet I’m still shaking my head that an album like To Pimp a Butterfly was snubbed. I don’t want to jump to conclusions and claim institutional racism without knowing the facts first, so let’s look at Grammy history for a second. This isn’t like the Oscars; because the Grammys give so many awards and split those awards into different genres, you can’t just count the number of black nominees versus white nominees. But Album of the Year is the Academy’s premiere award, and… well, only 16 people of color have won it. Remember, this was the 58th Grammys.

The last person of color to win it was Herbie Hancock, which makes it sound like it happened in 1968, but don’t worry, it was 2008. There was actually a relatively rich 10-year period from 1999-2008 (it feels like forever ago, but it wasn’t that long!) in which 6 people of color won: Lauryn Hill, Santana, Norah Jones, OutKast, Ray Charles, and Herbie Hancock. Of course the last 8 straight have been white… but still.

I think what we’re seeing is a complicated kind of discrimination, and it appears rooted less in blatant dislike of a people and more of a resistance to a culture. It’s telling that the last African-Americans to win Album of the Year were Ray Charles and Herbie Hancock, both of whom were pioneers of their specific genres and had crossover success to the pop charts in spite of their blackness. When those men were young, I can imagine parents turning up their noses at their music and covering their kids’ ears in fear of what kind of effect their black music might have on them.

And yet over time Charles and Hancock became part of the good old boys’ club, and their music was celebrated. Our perspective on those artists reflects how much their work has permeated the industry since then and become part of what we think of when we think of the establishment. Hip-hop, as much as it dominates the charts, is just now beginning to seep into the foundation of the industry. I wonder if the Grammys don’t see hip-hop the way Bill Cosby did in the ‘80s and ‘90s: “Pull up your pants, boy!”

So Did We Lose or Win?

The Grammys’ awarding of Taylor over Kendrick isn’t a rejection of Kendrick but a continued rejection of hip-hop culture. No rap album has won since OutKast’s Speakerboxxx/The Love Below in 2004, which is fine, except that rap has been the dominant pop music medium since then. The lack of hip-hop winners is a resistance to admit that black culture has won.

The memes of audience members watching Kendrick’s outstanding performance of “The Blacker the Berry” and “Alright” highlight this nicely. The Academy appears to be holding onto the supposed whiteness of rock and pop and folk, even though you can trace much of those genres’ roots back to black artists. I wouldn’t be surprised if Grammy voters were shocked to find out last night that Brittany Howard of Alabama Shakes was black.

People are going to tell you that the Grammys don’t mean anything. And in a larger sense, in the bigger picture, maybe they’re right. In 25 years, we’re going to look back on the 2010s and remember Beyoncé and To Pimp a Butterfly (and good kid, and channel ORANGE…) as some of the most defining albums of the decade. It won’t matter that they didn’t win the big award at the Grammys, which will be remembered as out-of-touch and tone-deaf and white (and male!). But in the here and now, those of us who recognize that it is black culture that is producing the most vital and vibrant art of our time are tired of having to hang our heads the morning after.

How You Should Remember Antonin Scalia

By David Postic, Jacob Daniel, and Lester Asamoah

Justice Antonin Scalia death

 


The Supreme Court holds an interesting place in American pop culture: At once, it is one of the most highly visible and highly misunderstood parts of our government. And it is not only the Court that is misunderstood, but its members as well. By now, the entire world likely knows of the passing of Justice Antonin Scalia—the longest-serving member of the current Supreme Court and, perhaps, its most controversial member. In his thirty years on the bench, Justice Scalia emerged as the intellectual power behind conservative jurisprudence and became (in)famous for the stinging and colorful language of his opinions, particularly his dissents. His death has an immediate impact on the Court. For instance, any cases currently before the Court with votes that have not yet been made public are now void, and the justices must re-vote. And with only eight justices on the Court—four conservative and four liberal—ties are now a strong possibility, meaning that some of the more politically charged cases—including affirmative action, the President’s executive action on immigration, and voting rights—may not be completely resolved by the Court, for any tied opinion is not binding Supreme Court precedent, and the Circuit Court opinion stands as precedent for that Circuit.

As such a controversial (and political) figure, the news surrounding Justice Scalia’s death has focused almost exclusively on these quasi-political issues, as well as who will take his place on the Court. So that you will be an informed citizen in the following (what will surely be politically crazy) months, here is how the nomination process works:

  1. The United States Senate is charged with confirming the President’s nomination for filling Scalia’s seat, but the Senate conducts that process in several steps. First, the Senate Judiciary committee holds a hearing for the nominee.
  2. After the hearing, the committee votes to give a positive/negative recommendation or no recommendation for the nominee.
  3. After the Judiciary committee votes, the full Senate then conducts a hearing chaired again by the Senate Judiciary chairman.
  4. Once debate ends, the full Senate conducts a vote. If the nominee commands a simple majority, he/she is confirmed.

There are, however, ways that the Senate can hold up these proceedings before the final vote. Individual senators (or a group of senators) can filibuster endlessly the cloture rule, which requires 60 Senators to invoke, limits the debate to 30 hours. Typically the opposing party is reluctant to confirm a lifetime appointment during the last year of a lame-duck presidency. In fact, there is a name for this type of stonewalling: the Thurmond Rule, named for the late Senator Strom Thurmond (R-S.C.), who decreed that no judicial appointments would move in the last six months of a lame-duck presidency. While Majority Leader Mitch McConnell (R-K.Y.) has made headlines for saying he will not allow a confirmation for Scalia’s replacement, Senator Harry Reid (D-N.V.) made similar statements in 2008. So despite Republican senators making headlines for their “no confirmation” decrees, holding up a judicial nominee in this situation is not solely a Republican tactic.

Nevertheless, these issues will be covered heavily in the coming months (it could even stretch into next year), and hopefully you take time to understand all the political issues at play. It really is fascinating. But while these issues are interesting and, indeed, of great importance to our country, it seems that there has been far too little focus on the man that provoked these issues—Justice Scalia himself. As a result, and in honor of one of the most powerful men in the country, we would like to take a step back and examine the legacy that Scalia left behind.

Justice Scalia was appointed to the Supreme Court by Ronald Reagan in 1986 after spending most of his legal career working in the public sector. Amazingly, Scalia was confirmed by the Senate by a vote of 98-0—a result perhaps unthinkable in the current political climate. But such was the charm and intellectual prowess of Antonin Scalia.

Almost immediately he established himself as a unique voice on the Court, not afraid to go against the rest of the justices on any opinion that provoked his ire. In 1988, for example, he drafted a thirty-page dissent in Morrison v. Olson, writing so emotionally that Justice Harry Blackmun felt obliged to note, “[I]t could be cut down to ten pages if Scalia omitted the screaming.” But that passion was Scalia’s calling card, and his reputation for emotional dissents calls to mind the similarly stubborn Oliver Wendell Holmes: a man held by many to be one of the greatest justices to ever sit on the Court. And for all of their legal and philosophical differences, Oliver Wendell Holmes serves as perhaps the best modern comparison for what Justice Scalia meant to the Supreme Court.

Scalia was never afraid to make his opinions known—both in and out of the courtroom. He famously concurred in Bush v. Gore, the case that essentially decided the 2000 presidential election between George W. Bush and Al Gore. Years later, when Scalia was asked about the effect of that case on the American democracy, his reply was brief: “Get over it.” As Conor Clarke of Slate commented, “His writing style is best described as equal parts anger, confidence, and pageantry. Scalia has a taste for garish analogies and offbeat allusions—often very funny ones—and he speaks in no uncertain terms. He is highly accessible and tries not to get bogged down in abstruse legal jargon. But most of all, Scalia’s opinions read like they’re about to catch fire for pure outrage. He does not, in short, write like a happy man.”

But by all accounts, Justice Scalia was a happy man. His close friend (and near-ideological opposite) on the bench, Justice Ruth Bader Ginsburg, once said that Scalia was “an absolutely charming man, and he can make even the most sober judge laugh.” Indeed, a 2005 study showed that he brought the Court to laughter more than any of his colleagues. He brought a witty dynamism to the Court’s oral arguments, which he often used to spice up otherwise bland legal issues in his written opinions. For all you might disagree with how he voted on cases, I dare you to read one of Justice Scalia’s arguments and not feel a tug of doubt on your own convictions. That is the keen legal mind that was Antonin Scalia.

Justice Scalia was an originalist, a judicial philosophy that believes the Constitution should be interpreted accordingly to what the text meant at the time the document was ratified over two centuries ago. This view runs counter to the popular legal view of the Constitution as a “living document” that evolves as society evolves. But in Scalia’s originalism, the Constitution was not supposed to facilitate change: it was designed to prevent changes in the fundamental rights that the Founders fought so hard to secure. Scalia hated so-called “judicial activism” and believed that the legislature—as the representatives of the People—should be the true engine of legal change. It was these views that often prompted critics to accuse Scalia of letting his conservative political leanings compromise his legal judgment. But Justice Scalia was far from a rigid conservative, at least politically: He voted to uphold free speech in the Texas flag-burning case, and also struck down a prohibition on hate speech—liberal legal decisions by any measure. Disagree with him all you want, Scalia was his own man to the very end.

He was, as most great and controversial figures are, an extremely dynamic and likable individual. This is the Scalia that people should remember. Sure, remember his controversial philosophies, remember all his opinions that you disagreed with, remember his passion and his emotion and his anger. But also remember Justice Scalia for what he was: an intellectual powerhouse, a deeply thoughtful and philosophical legal mind, a man who adhered to his values and principles, and a legal titan of the twenty-first century.

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David Postic is a law student at the University of Oklahoma.

Jacob Daniel is a law student at the University of Oklahoma.

Lester Asamoah is a graduate student at American University.