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.

—–

See this original post on Medium.

Advertisements

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 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.

—–

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.

Why Love Won

#LoveWins

Not every day do the worlds of law and pop culture collide so tremendously as they did today. Then again, not every day do you have Supreme Court decisions like Obergefell v. Hodges. Undoubtedly you have read close to 525,600 Facebook statuses, tweets, and news clippings about this landmark victory for gay rights. You may be rejoicing. You may be livid. Let’s put those emotions aside for a moment to assess the Obergefell opinion and figure out why love won.

First, a brief history…

Obergefell is certainly a revolutionary decision. But for those following the Court (and political trends) over the past fifteen years, it is hardly a surprise. Prior to the 2000s, a number of states had passed laws criminalizing certain homosexual acts. In Lawrence v. Texas (2003), Justice Anthony Kennedy, writing for the Court, held that such laws discriminated on the basis of sexual orientation and thus violated the Fourteenth Amendment to the U.S. Constitution.

This was a huge step forward for gay rights, but there still remained the matter of gay marriage. In 1996, Congress had passed the Defense of Marriage Act (DOMA), which defined marriage for all federal law purposes as “only a legal union between one man and one woman as husband and wife.” However, in the ten years after Lawrence v. Texas, several states granted marriage rights to same-sex couples, either through judicial or legislative processes. Still, DOMA remained alive-and-well.

Then, in 2013, the Court held in United States v. Windsor (2013) that DOMA was invalid to the extent that it barred the federal government from treating same-sex marriages as valid even when they were lawful in the state where they were licensed. Again, a massive victory for gay rights. (And again, Justice Kennedy authored the opinion.) But what did this mean? It meant that, for example (and as was the case in Windsor), the surviving spouse of a same-sex couple could claim a spousal deduction from the federal estate tax. While this was another huge leap forward, it still did not legalize gay marriage. But by overturning DOMA, it did clear the way for other courts to do so.

Now to today’s opinion…

In the two years since Windsor, many same-sex marriage cases have reached federal courts of appeals, and gay marriage has been legalized in many jurisdictions. But there was still a major problem: A same-sex couple married in one state (where gay marriage was legal) could travel to another state (where gay marriage was not legal) and be denied the benefits of marriage. This meant gay couples could not take advantage of certain spousal tax benefits; evidentiary privileges; adoption rights; medical decision making authority; and so on.

Finally, however, some of these cases reached the Supreme Court in the form of Obergefell v. Hodges (2015), which is actually a combination of several similarly situated cases. In this case, the Court was confronted with the question of whether or not gay marriage is a constitutionally protected right. The issue could be avoided no longer.

As you now know, the Court’s opinion (once again authored by, you guessed it: Justice Kennedy) held that a “fundamental right to marry” can no longer be denied because the partners are of the same sex. Gay marriage–nationwide–is now not only legal, but constitutionally protected. The Court interpreted the two central provisions of the Fourteenth Amendment (the Due Process Clause and the Equal Protection Clause) to mean that same-sex and opposite-sex marriages are equal under the law.

The opinion itself is beautiful in its simplicity. Much of it is devoted to the judicial history summarized above (although to get a full view of that history, you should definitely read the opinion) as well as cultural and political developments spanning the entirety of human civilization. But the meat of the opinion, the real holding (a legal term meaning the binding law of the case), was this: The right to marriage is a right enjoyed equally by all people, gay or straight. This, the Court explained, is firmly rooted in our nation’s history: From past Supreme Court decisions affirming the equality of interracial marriage, to decisions affirming the autonomy of individuals to make of their lives what they will. The issue is not, as some people have framed it, whether there is a constitutional right to gay marriage, but instead whether there is a constitutional right to marriage period. The Highest Court of the Land has now firmly stated that there is such a right.

The majority encountered staunch opposition from the other justices. In fact, each of the justices in the minority (Chief Justice John Roberts, Justice Antonin Scalia, Justice Clarence Thomas, and Justice Samuel Alito) wrote a separate dissenting opinion. These dissents are of varying degrees of ire and outrage. Yet the one argument that you will most likely hear disparaging Obergefell is that the Court today engaged in “judicial activism.” Chief Justice Roberts encapsulated this argument when he criticized the majority, reciting the ages-old aphorism that, under the Constitution, judges have power to say what the law is–not what it should be.

As with all age-old sayings, I encourage you to take this one with a grain of salt. (But certainly I am not saying you are wrong if you agree with Chief Justice Roberts). Because the line between what the law is and what it should be is a very thin one and is entirely a matter of perspective. The Court’s opinion today affirms a strong heritage of individual autonomy when it comes to the most private and intimate decisions in life. In a separate string of cases (see Loving v. Virginia and Turner v. Safley), the Supreme Court has consistently held that the right to marriage is a right enjoyed by all. The Court’s decision today simply affirmed that sentiment, regardless of sexual orientation. That is what the majority believed the law is. This is what they believed Court precedent compelled them to do. You may agree or disagree (you would be in good company with 4 of the 9 justices on the Supreme Court), but the law is what it is.

So what does this mean for me?

You now have permission to unpack those emotions we put aside at the beginning of this article. This is an opinion that invites a lot of passion from both sides, and rightly so. Even the Supreme Court itself was sharply divided in this close 5-4 decision. You will hear people rejoicing in the spirit of equality. You will hear people decrying the opinion as an affront to Christianity or other religious and moral beliefs. The vehemence of these opinions will not fade quickly. But I am sure that, eventually, it will fade.

From a legal perspective, I loved the decision of Obergefell v. Hodges. In my opinion it got the law exactly right. People may disagree because gay marriage does not fit into their religion; yet the First Amendment prohibits the government from establishing or favoring a religion, so it cannot prohibit gay marriage on those grounds. People may say that gay marriage is not supported by the history and tradition of our country (echoing, in some ways, that same religious argument); yet there is a dearth of case law proving otherwise; and moreover, just because we have always done something does not mean we should continue to do it (e.g., slavery, subjugation of women). People may say that they hate this opinion because, honestly, they just hate gay people. I wish those people did not exist in our society, but they do. And unfortunately, there is no logical or constitutional argument that can persuade people out of their hatred.

Apart from the legality of it all, though, I think it is quite definitely the most beautifully written opinion I have ever read (and as a law student I have, regrettably, read thousands of opinions). It is simple, artful, and bold in ways that causes one to pause and realize that you are indeed witnessing history unfolding before you. There are not many 28-page opinions I enjoy reading, but Justice Kennedy wrote so wonderfully that it sang. It was in many ways a masterpiece. You should really take time to read it (and form your own opinions).

Personally, I am so incredibly happy today for all my gay friends, that you have had your love recognized as a constitutional right that is now the law of the land. Today must feel like a dream come true, and I am truly, truly glad for you. And to all those who are disappointed with today’s ruling, I want to remind you of this: You can disapprove of the Court’s decision but still be happy for the millions of people who are today reveling in love. You can oppose the law without opposing the people affected by the law. You can fight for change without fighting one another. That is the difference between opposition and prejudice. And that is how we can make sure that love really does win.

*****

An Assortment of Favorite Passages From the Opinion

The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a character protecting the right of all persons to enjoy liberty as we learn its meaning.

*****

The dynamic of our constitutional system is that individuals need not await legislative action before asserting a fundamental right. The Nation’s courts are open to injured individuals who come to them to vindicate their own direct, personal stake in our basic charter. An individual can invoke a right to constitutional protection when he or she is harmed, even if the broader public disagrees and even if the legislature refuses to act. The idea of the Constitution was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.

*****

The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality. This is true for all persons, whatever their sexual orientation.

*****

From their beginning to their most recent page, the annals of human history reveal the transcendent importance of marriage. The lifelong union of a man and a woman always has promised nobility and dignity to all persons, without regard to their station in life. Marriage is sacred to those who live by their religions and offers unique fulfillment to those who find meaning in the secular realm. Its dynamic allows two people to find a life that could not be found alone, for a marriage becomes greater than just the two persons. Rising from the most basic human needs, marriage is essential to our most profound hopes and aspirations.

*****

No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.

—–

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

Rethinking Peace and Violence in America

By Lester Asamoah

Peace


After the Charleston tragedy, among other tragedies foreign and domestic, the common notion is to call or pray for peace. But, in our universal desire for peace, do we recognize what peace is? Generally, peace is understood as an absence of violence. That is not a wrong definition. But, to fathom the nature of peace, we must discern the dimensions of violence.

The founder of the Peace Studies discipline, Dr. Johan Galtung, tackles this in his article Violence, Peace, and Peace Studies. (The idea of the Six Dimensions of Violence are all from Dr. Galtung, I attribute all of these ideas to him) My primary aims are to summarize a small portion of his analysis of violence in a digestible way, then apply them to contemporary situations.

The Six Dimensions of Violence

Taking the general idea that peace is the absence of violence is the starting point; if we can understand the dimensions of violence, we can prevent the obstruction of peace. Violence is usually thought of as physical and emotional violence. Again, that is not wrong, but a richer explanation of violence is critical to understand varying levels of violence occurring.

Before analyzing what Galtung refers to as the six dimensions of violence, he makes an important point about violence by explaining the potential versus the actual. Acts of violence are avoidable, and they minimize human potential. I will list the dimensions of violence and apply them to contemporary situations below:

  • Physical and Emotional violence: Physical violence includes the obvious physical harm of a person, however, it also includes restricting mobility. By keeping someone in chains, or keeping them from traveling far distances is a form of physical violence because one is being physically restricted from their potential realization.

Physical and emotional violence, as I stated before, is pretty well understood. So I want to focus on the restriction of mobility. A strong and tragic example of violence by restricting mobility is the story of Kalief Browder. Browder was held at Rikers Island for three years without a trial and eventually committed suicide once freed. The detention of Browder is tragic, but not entirely uncommon. Many people are held without trial or are held for disproportionate times to their crimes. This is violent. The act of detention, especially against the innocent is violent.

  • Negative and Positive Influence: (Influence always assumed as negative towards the subject’s potential) Whenever an influencer inflicts punishment for what they think is wrong OR rewards their subject for what they believe is right.

Negative influence happens all of the time. When individuals are punished for their religious or political views, this is violent. Especially when it results in a loss of employment. Also, when someone is positively influenced to become less they can be, that is violent. Here is an excerpt from The Autobiography of Malcolm X, when Malcolm’s junior high teacher tries to guide him, illustrating positive influence:

“’Malcolm, one of life’s first needs is for us to be realistic. Don’t misunderstand me, now. We all here like you, you know that. But you’ve got to be realistic as a n—-r. A lawyer—that’s no thing you can be. You need to think about something you can be. You’re good with your hands—making things. Everybody admires your carpentry shop work….’”

Note the teacher is trying to reward Malcolm’s work, and is generally being positive for the time, but is clearly obstructing Malcolm’s potential.

  • Objects: In response to the question, “when biological objects aren’t hurt, is there violence?” Galtung notes that violence can occur when the destruction of a non-human object forebodes the destruction of a physical or biological object.

Galtung makes an example in saying that nuclear tests are violent because they are used to forebode the destruction of biological objects (and often the tests destroy biological objects). Another example, many would argue, is the Israeli policy of destroying homes in Palestine. While nobody (usually) dies from the policy of destroying homes, it is usually used as a deterrent to terrorism.

  • Subjects: When there is no human subject that acts, can violence occur? Yes. Systemic violence occurs when people are restricted from obtaining resources needed for their potential. This situation, of course, assumes that this restriction is avoidable.

Systemic violence is growing into a larger discussion. There are many ways systemic violence is increasingly being unearthed. Of course, the quick example is the ethic-name resume. A National Bureau for Economic Research [NBER] study proves that people with ethnic names on their resumes get significantly less callbacks. However, the examples I prefer to look at are racist housing policies and the disenfranchisement of voters.

  • Intent: Violence can take place even with no conscious intent by the actor. Any act, intentional or unintentional, that robs potential in any avoidable situation, is a violent act.

Drunk driving is a simple way to understand intent. When someone is driving while drinking, their intent isn’t to hit another car. Yet… it still happens. Accidents will always happen in today’s world, but that does not mean they are exempt from being violent acts. The previous sentence is important because many times accidents and “unintentional” acts are deemed non-violent.

  • Manifest/Latent: Violence, as most are familiar with, is manifest, or obvious and physically visible acts of violence. However, Galtung is also concerned with the latent, or an unstable situation where any small act can trigger a manifest act of violence. I.E. daily acts that destabilize a situation leading to when a small act that can trigger a large act of violence.

Manifest violence is something visible like someone getting shot. But latent violence is most easily explained by the phenomena of microaggressions. Small, even as the name suggests, micro levels of day-to-day violence and disenfranchisement can build up and become largely violent acts. Rutgers student Tyler Clementi committed suicide in 2012 after discovering his sexual acts were secretly recorded by his roommate. The recording was the act that triggered the self-violent response of suicide.

Moving Forward

Now that we have a better understanding of the dimensions of violence, we can move toward a more peaceful America. Of course, the examples were highly limited and just designed to give a basic understanding. But putting this knowledge to use will explain many phenomena of violence against Native Americans, African-Americans, impoverished and homeless Americans, and even violence occurring against other cultures overseas. In the 21st century, we have to realize that violence is far beyond emotional and physical violence. And we can overcome this violence if we make genuine efforts to do so.

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

The Problem with the ‘Black on Black Crime’ Argument

By Ernest Ezeugo

Photo by Scott Olsen/Getty Images


In recent months, several tragic instances of police practicing excessive (sometimes fatal) force against black men and women have awakened a nationwide discussion about police brutality and how the justice system impacts the black community. This discussion has made a lot of people angry and defensive, and those emotions have led to some virulent responses and justifications.

Of all the empathy-void, compassion-less rebuttals to higher rates of police brutality against black men and women I’ve seen, “oh yeah? well what about black-on-black crime” is my favorite perhaps the most egregious. I have a few ideas on why people who can’t/don’t want to understand the plight of communities concerned by recent events turn to this defense, but below are my thoughts on why citing black-on-black crime is not an acceptable counterargument for police brutality.

Black on black crime and police brutality against black people are not mutually exclusive.
It is entirely reasonable to care about black on black crime and talk about how police brutality and the black community are related. It’s similar to how you can be a fan of waffles and still want pizza for dinner: black-on-black crime and police brutality are two entirely different conversations that don’t need to happen at the same time.

It’s a practice in the politics of changing the subject.
Ta-Nehisi Coates does a lot of writing about the politics of changing the subject that is very much worth taking a look at. Simply put, the black on black crime defense–kin to the “don’t wear seductive clothing” defense and the “don’t dress like a thug” defense–is a form of respectability politics that irrationally turns the blame for the death and mistreatment of black men and women at the hands of the law back onto the community. At its most general, it transforms a necessary conversation about race and justice into a condescending, often blithering discourse on the state of the black community. This is a problem for many reasons that I’ll get into, but essentially at the top of those: it’s a scapegoat that prevents us from taking part in the tough but restorative conversations about race that America has needed to engage in since the Civil War.

It’s a false equivalency.
As this interview with David Rudovsky explains, an inherent conflict of interest arises when an officer takes a life while on duty, immediately disqualifying the notion that police brutality can even be considered in the same league as any level of citizen crime, black-on-black crime in particular. Police officers serve as defenders of the people, so when a police officer is responsible for the death of any civilian, several cogs move into place to assure that trust is maintained between law enforcement and the community. This phenomenon is the reason why we know how many officers were killed in the line of duty this year, but have no accurate measurement of how many civilians were killed at the hands of police. And, begrudgingly, I understand the intent behind it. It isn’t so much shadiness as it is a means of securing trust, and therefore peace, in a society. …But at the end of the day, it doesn’t make it right. And it means that black-on-black crime and police brutality against black people, by their very definitions, are an equivalency that has no merit.

Put succinctly: Black people who kill black people go to jail. Policemen that kill people often do not.

It implicitly suggests that black people are not a part of the State.
In perhaps the most atrocious attempt to relate black on black crime to police brutality of the year, former mayor Rudy Giuliani made some disparaging comments about the state of the black community in an interview with Georgetown professor Michael Eric Dyson. Chief among them was this thoughtless epitaph: “White police officers wouldn’t be (in your community) if you weren’t killing each other.”

Of the several things wrong with this comment, the most concerning is its implication. We know that police officers are meant to serve and protect all citizens. But when Giuliani asks Dyson what he is doing to heal his community, he proposes two dangerous and incorrect assumptions that many who conjure up the black-on-black crime defense similarly imply: that crime as it occurs in black communities occurs at the fault of the community rather than at the fault of the individual, and that black communities can do more to stop crime than they currently are, and for some reason choosing not to.

In the same way that crime in any other form of community is born, crime involving members of the black community is the product of an individual’s thoughts and desires. It’s for that reason that Giuliani’s assertion is so absurd. There is no superhuman connectivity between black people or paranormal mental Facebook that black people can log onto that allows us to control how often other black people commit crimes. And it’s not like black communities like crime, or aren’t working hard to stop it. We can only expect communities to do what they’ve already been doing.

All of this to say, it is not solely the black community’s responsibility to control crime among its people, just like it is not solely any other communities’ responsibility, because there is nothing that makes the black community different. Remember the police? It’s their responsibility. And consequently, it is their policies and procedures that have to be the first to called to question when the black community is jailed, sentenced, and killed at exponentially higher rates than any other community in the nation.

Talking about race is not easy. If it were, the discussion about race, justice, and law enforcement would have happened after Emmett Till, not at the end of 2014. If we’re going to get to the bottom of what it means to talk about and eventually resolve these issues, we have to be honest with ourselves about what a proper conversation looks like. It’s time to stop pretending that black-on-black crime has a place in the conversation.

—–

Ernest is  the founder of Thirty Eight Minutes.

Fixing the Ladder: You, Me, and Inequality

By Lester Asamoah

Income Equality, Changing Inequality, Political Systems, Inequality in the US


The United States is undoubtedly richer and more prosperous than it was twenty years ago. Technology is quickly advancing, and Americans have access to knowledge like never before. It’s a great picture to paint, right? The Americans with access to capital are prospering, and even the middle class citizens are experiencing microcosms of great prosperity. The sunny skies of happiness and growth, however, are deluded by clouds of concern for those with no access to capital. Aka, those that are in the lowest socio-economic classes.

Setting the Gini Free

One would think post World War II innovations would mean a decreasing gap in inequality. While many have prospered, few have suffered. The Gini Coefficient is a measure of income inequality where 0.00 represents complete equality (everyone making the exact same wages, etc) and 1.00 represents complete inequality (one person earning 99.9% of all wages, etc). Basically, the closer the Gini coefficient gets to 1, the more stratified the inequality. A study from the US Department of Commerce illustrates how the United States’ Gini has risen since the 1940s:

Gini

(taken from CBS’ News Article, How Do We Know Income Inequality is Getting Worse?)

Why do we care about this Gini that won’t grant our wishes? Because it means that the poorest Americans are increasingly reeling – income inequality is far beyond the simplicity of working hard and not working hard. It is the difference between access to capital, opportunity, education, and safety. The people at the very top are accumulating more and more access to these things, while the people at the very bottom are simultaneously losing access to these things.

A Broken Ladder

We know that inequality exists and is highly persistent in United States. Movements like Occupy Wall Street are ways Americans express frustration at the growing Gini. Now, this isn’t the point where I scream “socialism” and demand that the government purge the accounts of the 0.01%. In fact, I agree with The Economist’s article Inequality and the American Dream when they say “Inequality is not inherently wrong—as long as three conditions are met: first, society as a whole is getting richer; second, there is a safety net for the very poor; and third, everybody, regardless of class, race, creed or sex, has an opportunity to climb up through the system.” America actually seems to be doing well until we reach the third condition. But not meeting that third condition is grave for many opportunity-seeking Americans. In a previous post, The Mirage of Opportunity, I write about inequality on a racial level. Beyond that, however, we still have heated debate over opportunities for women (Equal Pay Bill in the US Senate) and impoverished Americans (Colleges perpetuating class divides) to climb the ladder. There’s no need to cry Socialism, but there is a need to scream equality of opportunity. If the American dream means climbing the ladder, we first must fix the ladder – it’s missing almost all of its rungs near the bottom.

Repairing a Ladder, Breaking Oppressive Systems

Repairing the ladder means fighting for equality of opportunity. Women must be paid the same wages, public education must make a strong comeback, and minorities must be given equal opportunity in the workplace, classroom, and society. Returning to the heart of Thirty-Eight Minutes and my previous posts, we must fight the corrupt and unequal systems in place now. Demanding equal rights for women, minorities, and the impoverished is critical. And doing so not just to be trendy, but because people’s lives are on the line. As the famous economist Dr. Joseph Stiglitz points out in his New York Times opinion article, Inequality is not Inevitable, Americans do not have to idly stand by and watch inequality grow. First and foremost, we must get the money out of politics. A daunting, but necessary task. Large farming receives subsidies while the impoverished suffer nutritionally, and big pharma is raking in billions but not everyone can get access to health care. These are only two of many instances where lobbying efforts are steering politics. I don’t have the precise knowledge on how to suck the money out of politics, but I do know awareness and speaking out is the first step in the journey. Next, we must fight for justice. The stratification of wealth also means the price tag for justice is rising – the wealthy can afford lawyers and steep bails, while the lower-income Americans have little judicial resources and no recourse against injustices. White-collar crime continues (and the victims are often blamed), while increasingly privatized jails fill up with lower-income, often minority, people.

We have to repair the American Dream and pursue a reasonable level of equality of opportunity. The American Dream is certainly not dead, but it is unreachable for many. Our nation’s mantra is “justice and liberty for all”. When will we stop pretending justice and liberty exists for all, and start securing justice and liberty for those that do not have it?

Lester Asamoah is an International Security Studies Senior at the University of Oklahoma.

Featured Partner: Bennett Foundation for Public Service

Check out our featured partner!

tem bennett foundation


The Bennett Foundation for Public Service

We’re pleased to be introducing one of our first and most important featured partners: The Bennett Foundation for Public Service. The Bennett Foundation and Thirty Eight Minutes share a number of core beliefs, the most important of which is a duty towards helping create engaged citizens, educating our community, and taking on the defining issues of our time. Find out more about them here.

Upcoming Event: PoliCon 2014

PoliCon-banner-

To promote the mission of creating educated leaders and tackling the issues of our time, The Bennett Foundation is hosting a policy conference on September 27th, 2014 in Oklahoma City, and you’re invited! You can purchase a ticket in advance here or pay at the door. To learn more, click the PoliCon2014 image or check out this excerpt from their site.

“PoliCon is a Bennett Foundation project in partnership with Oklahoma Student Leader Summit and 38Minutes.

The first-ever PoliCon will bring together young leaders from across the state to listen to policy experts discuss some of the most pressing challenges facing Oklahomans today. Leaders will be encouraged to gather information and consider public policy solutions to issues ranging from education to criminal justice reform. We’ll wrap the conference up with a “stump speech seminar” that will help attendees articulate their passion for public service in a way that will immediately grab the attention of prople or groups they go on to speak with.

Join us Saturday, Sept. 27th at the historic Paramount Theater in downtown OKC for a gathering of emerging leaders!

Tickets can be purchased here, and include breakfast and lunch.”