JWW ON CRITICAL RACE THEORY PART I

LET’S AT LEAST GET THE DEFINITION RIGHT

Like a raging wildfire, angst about critical race theory (CRT) has swept across the American political landscape in 2021.  Everybody’s

talking about something most just heard of recently. Nationally syndicated columnist Leonard Pitts, who contends he’s “forgotten more about race than most people have ever

known” noted he first heard of CRT in January.  He surveyed other African-American journalists who frequently write about race. Only one had heard of CRT before this year.

So, what’s going on?  Why the phobia among state legislators, school board members, U.S. Senators, and ordinary citizens?  WHAT IS CRT?  We’ve studied it, read books and articles about it, and discussed it with academics and other professionals interested in the subject. We also understand the cynical exploitation of an obscure academic concept for political gain. In this and our next post, we’ll unpack the definition of CRT and how it’s been misused.

 

The History Lesson

CRT didn’t magically appear from thin air. It originated in the mid-1980s. It’s a way

academics, most of them law professors, talk to each other about race and its interface with law and culture. It’s not the language of the streets or even the kitchen table. Right wing politicians and others with an agenda use it as if it were.

In the words of one of its founders, CRT is “a body of legal scholarship… [developed by theorists] ideologically committed to the struggle against racism, particularly as institutionalized in and by law.” Derrick Bell (1930 - 2011) offered that in a 1995 University of Illinois Law Review article titled “Who’s Afraid of Critical Race Theory?”  Professor Bell identified himself and four others (Richard Delgado, Charles Lawrence, Mari Matsuda, and Patricia Williams) as CRT’s “founding members.”

We believe it appropriate that we look to Professor Bell’s article and other works by those founding members in defining CRT. We’ve discovered that even we disagree about the proper interpretation of their definitions.  This post explores our differences.  We agree, however, about how the right has misused CRT in sparking fear and mistrust among Americans, most of them white, for political gain. We’ll explore that next time.

 

The Definitional Disagreement

University of Alabama law professor Richard Delgado and Jean Stefancic, who now teaches law at the University of Pittsburg,

collaborated in 2017 on Critical Race Theory: An Introduction,  3rd ed. They defined CRT as a movement by “a collection of activists and scholars engaged in studying and transforming the relationship among race, racism, and power.” This sounds like Professor Bell’s 1995 definition. Delgado and Stefanic added, however, that CRT “questions the very foundation of the liberal order, including equality theory, legal reasoning, Enlightenment rationalism, and neutral principles of constitutional law.”

In discussing CRT, Rob and Henry, for slightly different reasons, have vigorously supported the idea the Delgado/Stefancic addition constitutes an indispensable element in CRT’s definition. Rob asserts that his review of Professor Bell’s work, particularly his books

And We Are Not Saved: The Elusive Quest for Racial Justice and Faces at the Bottom of the Well: The Permanence of Racism, provide graphic  examples of the kind of explorations of racially-tinged legal issues encompassed in the Delgado/Stefancic addition. Henry, relying on his judicial experience, sees their formulation as essential to any practical application of CRT in the legal process.

Woodson notes, however, that Professor Bell didn’t include the Delgado/Stefancic addition in that seminal Illinois Law Review article. Because of his prominence in developing CRT, Woodson thinks if he’d wanted to include that, he would  have. As importantly, Woodson seesopportunities for mischief in the Delgado/Stefancic addition. To the uninitiated, arguably vague terms like “Enlightenment rationalism” and “neutral principles of constitutional law” leave running room for misguided claims about CRT that have emerged in the current debate.

Right wing commentators like Fox News host Tucker Carlson have, for example, claimed

CRT represents a “poison” that could destroy American civilization. Mark Levin, an assertive proponent of laws that keep CRT out of classrooms, has argued it could “destroy the

existing society.” No basis exists for such ideas, but definitions matter. Good reasons abound for being careful about those that open the door for disinformation.

 

The Big Six

Beyond the definitional debate, we think CRT

offers useful ideas for exploring and understanding racism and its impact on legal norms.  We need creative ways of studying racial issues. No matter how the right twists itself into a pretzel in distorting CRT, its basic tenets remain useful for an important endeavor America still must undertake:

 

·    Racism is ordinary, not aberrational;

·    white over color serves important psychic and material purposes for the dominant group;

·    as a matter of social construction, race and races are products of social thought and relations;

·    how a dominant society racializes minority groups differs and depends on shifting needs, such as labor markets;

·    in terms of intersectionality and anti-essentialism, each race has its own origins and ever evolving history; and

·    the voice of color exists because it’s unlikely whites can convey the history and experiences of people of color.

                 

Hardly any elementary or secondary schools now teach CRT. No reason exists for fears about school children being indoctrinated to “hate America,” as some have claimed. Misuse of CRT, as columnist Pitts suggested, developed from those who “fear nothing quite so much as the loss of whiteness and its privileges.”

What if students explored America’s racial past guided, in part, by CRT’s six ideas? Would the world end if pupils studied slavery, Jim Crow, income inequality, and criminal justice inequity with these principles in mind? Of course not!

We  think it more likely all ethnic groups would come to grips with the negative effects of racism on American laws and norms, resulting in a more sensitive, just, and egalitarian society.

MOVING AHEAD WITH A JANUARY 6 SELECT COMMITTEE PROBE

DEMOCRATS TAKE THE HIGH ROAD AND

DO WHAT NEEDS DOING

                                                

House Speaker Nancy Pelosi (D-Ca.) has moved ahead with plans for a select committee that will investigate the January 6 insurrection at the U.S.

Capitol. Pelosi named eight committee members and designated Mississippi Congressman Bennie Thompson the chair. She  took the action following a June 30 House vote, mainly along party lines, favoring establishment of such a panel. That, in

turn, followed Senate rejection of a bipartisan, 9/11-style commission that would have investigated the events of January 6. Five people died as a result of the riot, including a police officer.  The dangerousness and brutality of the insurrectionists become more evident with each Justice Department release of new January 6 video.

Despite our preference for a bipartisan commission, we say Democrats have taken the only reasonable course Republicans left to them. It was a step they had no choice but to take. Congress had to fulfil its obligation to investigate what happened and decide who’s ultimately responsible.

A fierce urgency demands that  Congress find out who bears responsibility for the January 6 insurrection. In a democracy, not moving forward with an investigation of a matter like this would have been a dereliction of duty.

After Senate Republicans nixed the bipartisan commission option, only the select committee approach remained.  Republicans can complain all they want about the “partisan” nature of a select committee inquiry, but they could have prevented this circumstance. They declined the bipartisan commission under pressure from former President 

Donald Trump, who wants  nothing that might pin the blame on the person likely most responsible -- him. Republican fidelity to Trump’s wishes eviscerates the party’s viability as a defender of democracy and the nation’s most cherished ideals.       

 

The Urgency

Anyone who looks at the video or reads the published accounts of January 6 can only conclude that what occurred was an insurrection in the classic sense of the term – an effort at overthrowing the democratically expressed will of the people. We contend those who won’t recognize the events of January 6 as such now stand as opponents of democracy and are at war with the United States. A functioning democracy seeks out and holds accountable people who did what the insurrectionists did.

Fidelity to core American values requires that both

the general public and elected officials pursue full accountability for those who orchestrated and participated in what happened.  The public should, through social media, blogging, letters to the editor, and every other legal means, promote the need for that full accountability.

Meanwhile, elected officials owe a duty because of an oath they must uphold. That oath obligates them to protect and defend the United States Constitution. Those who won’t do that should resign their offices.

No one should believe the forces unleashed that day will just disappear. Trials of some of the 500 people already charged may tell us something

about the continuing threat posed by the right wing, white supremacist groups believed at the center of the January 6 riot. Trials, however, with their focus on the guilt or innocence of individuals, can never reveal the whole story of something like January 6.  That limitation makes the work of the select committee essential. It must find out who bears responsibility and let the nation know. Then, the country and its government can take steps that would prevent a repeat.

 

Committee Membership

Pelosi’s selection of Republican Representative Liz Chaney of Wyoming generated the most attention

among the members named. Republicans kicked Cheney out of her leadership role in their caucus because she voted in favor of Trump’s impeachment. She was one of two Republicans who backed a select committee

investigation (Adam Kinzinger of Illinois was the other). Chaney’s been adamant that Congress should get to the bottom of the January 6 incident.

In addition to Chairman Thompson, Pelosi put three Californians, Zoe Lofgren, Adam Schiff, and Pete Aguilar on the panel. Florida’s Stephanie Murphy, Jamie Raskin of Maryland, and Elaine Luria of Virginia round out the group.

That left the question of who, if anyone, House Minority Leader Kevin McCarthy would name.

McCarthy led the Republican complaints about “partisanship” in the process. His whining sounded hollow, given the fact he rejected the bipartisan commission, despite having gotten everything Republicans asked for in talks that led up to the vote on the measure that would have created a commission.

Thompson indicated the select committee won’t waste time getting to work. Its first hearings could come before the end of July. We’d welcome that. We believe those unwilling to find out what really happened now stand in opposition to democracy. The sooner Congress and the public can call out

exactly who falls into that category, the better. Are we or are we not a democracy? Congress bears the responsibility, starting with the work of this select committee, of providing us with an answer to that central question.

CRUNCH TIME ON BI-PARTISAN INFRASTRUCTURE: CHALLENGE AND OPPORTUNITY FOR JOE BIDEN

The American people need an infrastructure program because the roads and bridges they use every day are crumbling around them and

because the country needs it to remain competitive with the world’s other industrialized nations. President Biden needs an infrastructure bill that keeps his

administration’s positive momentum and shows ordinary citizens government can work for them. Congressional Democrats need infrastructure

legislation as a signature accomplishment they can run on in 2022. Moderate Republicans need infrastructure legislation so they can show their voters the virtue of being something other than the party of “no.”

So, with so many divergent groups needing something done on infrastructure, why has it become one of the heaviest legislative lifts in recent times? The answer lies in the complex web of political alliances that have put the president in a precarious position. The dilemma illustrates the difficulty America faces in getting things done in an era of extreme partisanship.

A Deal – Maybe

After weeks of talking, the president and a group of senators from both parties announced agreement on a $1 trillion infrastructure package that supposedly has the backing of 11 Republican senators (Burr, Cassidy, Collins, Murkowski, Portman, Romney, Rounds, Graham, Young, Tillis, and Moran) and two key Democratic moderates, Joe Manchin of West Virginia and Kyrsten Sinema of Arizona. The unspoken reality was that Democrats would still try to pass the rest of Biden’s original $2.3 trillion package through budget reconciliation, meaning no need for Republican votes in the

Senate.  Biden first said he would veto the smaller bill if he didn’t get both. The 11 Republicans who were on record as supporting the bill balked and the president walked back that statement. The dust up showed the political peril that infests the whole infrastructure issue.

                                

           

With Manchin and Sinema (and maybe some other Democratic senators) apparently caring more about the appearance of bipartisanship

than the substance of an infrastructure package,  Biden now finds himself trying to thread a needle that can sew together waring elements in his own party with Republicans who might agree to pass something.

Progressive Democrats, particularly in the House, have begun expressing exasperation

with the whole idea of a bipartisan deal. A few, like Pramila Jayapal of Washington, chair of the Congressional Progressive  Caucus, think the whole bipartisan

effort has been “wasted.” A few in the group have hinted they won’t vote for the kind of narrow bill worked out with Senate Republicans. Given the slim Democratic majority in the House, Biden can’t lose many Democratic votes in the lower chamber, since it’s not clear any Republicans will vote “yes.”

 

Shortcomings

Make no mistake, the deal with Republicans

has major weaknesses.  First,  it’s paid for with gimmicks – smoke and mirrors ideas that placate Republican refusal to raise taxes on the  wealthy. Second,

it doesn’t address a number of real needs Biden’s original big bill took head on.

Paying for the smaller bill will come from a combination of things like unused unemployment benefits money and  increased tax collections generated by a bigger IRS

budget. We’re not keen on that idea in particular. Experience suggests the yield from such an effort often comes up short. Beyond that, the country must address income inequality and the fact the wealthy currently don’t pay their fair share in taxes.  Even without the country’s massive infrastructure need, those earning over $400,000 a year should pay more.

Most experts who’ve analyzed the infrastructure proposals think the bill Biden and the bipartisan group agreed on doesn’t really tackle climate change. With the recent heatcatastrophe in the Pacific Northwest and an already raging Atlantic hurricane season (more named storms earlier than ever), we can’t imagine anyone thinking we don’t face a real climate crisis. Other shortcomings in the bill agreed on concern not enough emphasis on high speed rail and not enough money for improving the nation’s electric grid. That’s especially needed if more electric vehicles and devices come online in transportation and other industries.

 

Who Do You Trust?

Part of the dilemma Biden now faces rests in the fact he must deal with both outright enemies in the other party and skeptics in his own. Most Republicans in both houses of Congress don’t want to do anything except

obstruct him. Some House Democrats now don’t trust him to follow through and fight for a bill based on reconciliation, so some now appear reluctant to give him the smaller bill as a start.

Biden may have to wait until after the 2022 mid-terms before he can complete this process. Democratic prospects don’t look bad now for picking up a seat or two in the Senate. For one thing Republicans must defend 20 seats, Democrats only 14. For another, Republican incumbents in swing states like Ohio, Pennsylvania, and North Carolina aren’t seeking re-election, potentially giving Democrats opportunities. That might diminish the importance of problem Democrats like Manchin and Sinema and pave the way for a doable reconciliation bill with tax increases and meaningful spending on pressing needs like climate change and electric grid development. But, Democrats are in real danger of losing the House in 2022 because of redistricting, Republican voter suppression, and the historical fact a president’s party usually loses seats in the mid-term elections right after that president takes office.

One irony in all this resides in the fact Biden’s original proposal enjoys 68% support among the people. Republicans in Congress apparently listen only to the 29% opposed.

Infrastructure provides Biden with a major test and a real opportunity. If he gets his two bills, he will have done his own party and the country a major service. Maybe he simply lives to fight another day with a new Congress. In today’s political circumstances, that can rank as a major accomplishment.

REQUIEM FOR THE NCAA: THE SUPREMES SPEAK ON COLLEGE ATHLETE COMPENSATION

College athletics as it’s been known in the

lifetime of every living American ended June 21, 2021. We acknowledge that’s a bold statement. As lawyers and sports fans, we’ll stand by it. The governing structure of college sports, as operated by the National Collegiate

Athletic Association (NCAA), will  change dramatically. The day all three of us have wanted, the day when college athletes receive some kind of pay, is in sight. That June 21 decision of the United States Supreme Court virtually guarantees it will happen. 

The subject matter of the case before the High Nine wasn’t remarkable. College athletes challenged limits the NCAA impose on educational benefits made available to collegiate players such as graduate and vocational scholarships. The case wasn’t

about  direct compensation for athletes. College players won’t get pay checks as a direct result of the court’s 9-0 holding that the NCAA rules at issue violate anti-trust law. 

Make no mistake though, college students will

get paid for playing sports. They will trace that compensation to the ruling in National Collegiate Athletic Association v. Alston.  After Alston, it’s just a matter of the details and the timing. What’s in the Court’s unanimous opinion, a stinging concurring opinion, and who wrote both likely sound the death knell for the NCAA as we know it.

 

Brothers and Sisters

We learned in law school judges on appellate courts often refer to other members of their court as “brother” or “sister” judges. In fact, Bob Woodward and Scott Armstrong wrote a 1979 book about the inner workings of the U.S.  Supreme Court titled The Brethren (there

were no women on the Court at the time). It’s a sign of respect and collegiality in places that breed division and intense disagreement. Indeed, we have a divided Supreme Court now, with six conservatives, appointed by Republican presidents, and three more progressive justices, appointed by Democrats.  If the NCAA thought that conservative tilt would work to its advantage in Alston, it found itself sorely disappointed.

The fact the decision went against the NCAA unanimously means a lot. Conservatives and

progressives saw this case the same way. Clarence Thomas, essentially a reactionary, and Sonya Sotomayor, perhaps the court’s most liberal

justice, both thought the NCAA’s aid limits violated anti-trust law and restrained trade.  They joined a tightly-reasoned, narrowly crafted opinion by their conservative brother, Neil

Gorsuch, that fell well within the mainstream of anti-trust jurisprudence. They rejected the NCAA’s contention that amateurism trumps laws against anti-competitive practices.

That reflects what’s going on in the country as a whole. State legislators and governors in both parties are approving measures that give college athletes the right to receive compensation for what’s called NIL – name, image, and likeness. The details vary in different states, but ultimately, the new laws all aim at giving athletes a way of getting paid for what they contribute in the sports marketplace.

Justice Kavanaugh’s Shot Across the NCAA’s Bow

From the NCAA’s perspective, the unanimous outcome against it in Alston was bad enough. Justice Brett Kavanaugh’s concurring opinion

amounted to a dagger in the NCAA’s heart. Kavanaugh, a Trump appointee, you’ll recall, made clear the NCAA should not expect a different legal approach if other cases involving more direct payments to athletes come before the Court. He wrote, “although the Court does not weigh in on the ultimate legality of the NCAA’s remaining compensation rules, the Court’s decision establishes how any such rules should be analyzed going forward.” 

That passage no doubt sent shivers down the backs of NCAA officials in Indianapolis. In

future  cases, the Court will apply what’s called “rule of reason” scrutiny to NCAA regulations. The Court will not give those rules more deference than it would give any other business accused of anti-competitive behavior.  The Court will define the relevant market, determine the effect of the rules at issue on competiveness in that market, and reject the rules unless the NCAA can provide “a legally valid procompetitive justification” for them. Kavanaugh expressed doubt the NCAA could supply such a justification.

If Justice Kavanaugh had left things there, the NCAA might have some optimism about future cases. But Kavanaugh said he believes the “NCAA’s business model would be flatly illegal in almost any other industry in America.”  He ended his opinion with another warning for the suits in the college sports hierarchy. “The NCAA is not above the law,” he wrote.

And it Means?

We think Justice Kavanaugh’s last flourish, coming on top of all else he said in the context of a unanimous decision, portends a death

sentence for the NCAA in its current form. No one knows how long it will take to get a case to the Court that directly challenges the NCAA’s basic don’t-pay-the-players rules. Gorsuch and Kavanaugh went to great pains in making clear those rules were not before the Court in Alston. The spate of NIL legislation making its way through the state legislatures may delay the reckoning. 

Still, the handwriting is on the wall. College

athletes will get paid for playing sports. As Kavanaugh noted, the industry will have to sort out things like differences in revenue and non-  revenue sports, Title IX compliance, and other details.

But the question now is how and when, not whether. What we know after Alston is that the Supreme Court, as constituted, isn’t buying the NCAA’s argument about the value of amateurism.  In some number of years, someone can say this isn’t your father’s college athletics.