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Scholar Says Race-Neutral Approach Needed for Affirmative Action

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By Freddie Allen
NNPA Senior Washington Correspondent

WASHINGTON (NNPA) – In the wake of unrelenting law suits seeking to abolish affirmative action coupled with nearly half of all universities dropping consideration of race as a factor in college admissions, it is time to shift gears and devise a less objectionable race-neutral approach that will diversify higher education, says a noted Black law professor.

During a recent discussion on affirmative action at the Economic Policy Institute in Washington, D.C. Sheryll Cashin, a professor of law at Georgetown University and author of Place, Not Race: A New Vision of Opportunity in America, said that as long as race-conscious affirmative action remains a factor in college admission, there will always be White students challenging affirmative action.

Cashin, who clerked for U.S. Supreme Court Justice Thurgood Marshall, said “that law or politics will render race-based affirmative action extinct” and argued that it makes “sense to get started on race-neutral reforms that have the potential to create diversity and more social cohesion.”

She said that the percentage of four-year colleges that consider racial, ethnic or gender status in admissions has fallen from about 60 percent to 35 percent.

Others, however, do not favor a switch to de-emphasizing race and point to race-neutral affirmative programs in Texas and California that have not achieved the same results as previous race-conscious approaches. Even Texas’ 10 Percent Plan that guarantees the top 10 percent of each high school graduating class in Texas will be accepted at the University of Texas, the flagship campus, was challenged by a White applicant who had been rejected.

Backed by the Edward Blum’s Project for Fair Representation, a nonprofit group that wants to ban race-, gender- and ethnic-conscious affirmative action, Abigail Fisher a White woman, alleged that the University of Texas at Austin refused to accept her, because she was White, while Black and Latino students that she outperformed were admitted

Admission officials look at factors in addition to grade to determine the composition of an incoming class, not just grades.

In its “Brief of Opposition,” the university said: “The undisputed evidence demonstrated that Fisher would not have been offered fall admission in 2008 even if she had scored a perfect ‘6’ on her PAI – the portion of the admissions process where race is considered as ‘a factor of a factor of a factor.’”

Investigating Fisher’s claims, Pro Publica reported that 42 White students with less impressive grades than Fisher got in compared to just five Black and Latino students with similar academic achievement. Meanwhile, almost 170 Black and Latino students with the same or better grades as Fisher were also turned away.

In the 2012 term, the Supreme Court punted in Fisher v. University of Texas, sending the case back to the lower court for reconsideration. Justice Anthony Kennedy, writing for the 7-1 majority, said: “…Strict scrutiny imposes on the university the ultimate burden of demonstrating before turning to racial classifications, that available, workable race-neutral alternatives do not suffice.”

In other words, the university had the burden of showing that show that gender- ethnicity- and race-conscious affirmative action admission policies are the only way to effectively achieve diversity on campus.

After the case was remanded, U.S. Court of Appeals for the 5th Circuit again ruled in favor of the University of Texas.

In 2003, the Supreme Court issued a pair of rulings involving University of Michigan that many thought had settled the issue.

By a vote of 6-3, the justices outlawed an undergraduate admissions process that, among other things, automatically awarded 20 points to people of color. But on a 5-4, the Supreme Court ruled that race could still be a factor in admissions as long as it is not given too much weight.

However, led by anti-affirmative action foe Ward Connerly, in 2006, Michigan voters banned the use of race in public education and employment, a state constitutional amendment that was later upheld by the Supreme Court.

In the May/June 2014 issue of the Poverty and Race Research Action Council (PRRAC) journal, Cashin, who is also a PRRAC board member, wrote that “place rather than race in diversity programming will better approximate the structural disadvantages many children of color actually endure, while enhancing the possibility that we might one day move past the racial resentment affirmative action engenders.”

Cashin said that when college graduates sequester themselves it can lead to a phenomenon known as “opportunity hoarding,” when a well-resourced, educated ingroup sanctions practices that exclude outgroups.

“And the exclusion does not have to be intentional,” said Cashin.

Cashin said that place, or where you live, locks in advantages and disadvantages that are reinforced over time.

“What has happened increasingly is the affluent and the highly educated are separated from everyone else and that often determines who has access to high quality elementary and secondary education,” said Cashin.

“And when you have geographic concentration of highly educated affluent people in direct horizontal competition with people from lower-income impoverished settings for finite public resources you get savage inequality in the allocation of public resources,” said Cashin. “College-bound students from middle- and low-income environments, particularly African Americans students, disproportionately attend segregated schools and they have to be superhuman to overcome the structural disadvantages of place.”

In Cashin’s article on affirmative action published in the PRRAC journal, she concedes that, “Fewer African Americans may enter elite institutions under an affirmative action system based on structural disadvantage rather than under race-based affirmative action.” However, she argued that the social costs of racial-conscious programs outweigh any marginal benefits when race-neutral alternatives are available.

Lia Epperson, a law professor at the Washington College of Law at American University in Washington, D.C., said that addressing racial disparities is not about totally abandoning policies that use race. She said it’s about the robust enforcement of laws that bar discrimination and inequality, existing compliance reviews that have proven helpful at the elementary and secondary education levels and expanding the role of data collection and the dissemination of data.

“The reality is that we are in a time that is difficult, because we do have this societal indecision with respect to matters of race,” said Epperson, who formerly led the education law and policy group of the NAACP Legal Defense and Educational Fund. “The reality is also that we have a Constitution that supports remedying a history of slavery and Jim Crow. We have to expand our political imagination beyond the reality of the moment.”

Richard Rothstein, a research associate at the Economic Policy Institute said on the panel:

“There’s no doubt that we need to pretend to be colorblind in the current legal climate, but it’s also very important to realize that we have a separate challenge from the challenge of enhancing equity. And that is the challenge of increasing justice.”

Rothstein added, “We have a constitutional obligation to undue centuries of slavery, segregation and exploitation. As recent events have demonstrated to everybody, we have made very little progress in undoing that unconstitutional placement of African Americans in a caste system in this society.”

Health Enrollment Numbers Up For 2015

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By Stacy M. Brown
Special to the NNPA from The Washington Informer

The first detailed analysis of enrollment into the Affordable Care Act – or Obamacare – has yielded good news, particularly for those who may require financial assistance.

Officials at the Department of Health and Human Services in Southwest said 87 percent of those who selected 2015 plans through HealthCare.gov in the first month of open enrollment have received financial assistance to lower their monthly premiums.

“We’re pleased that nationwide, millions of people signed up for Marketplace coverage starting January 1. The vast majority were able to lower their costs even further by getting tax credits, making a difference in the bottom lines of so many families,” Department of Health and Human Services Secretary Sylvia M. Burwell said.

The 87 percent of individuals determined eligible for financial assistance to lower their monthly premiums counts as an improvement over the 80 percent of enrollees who selected plans during a similar period last year.

Additionally, more than 4 million people in both the state and federal Marketplaces signed up for the first time or re-enrolled in coverage for 2015 during the first month of open enrollment.

Burwell said the numbers include more than 3.4 million people who selected a plan in the 37 states that are using the HealthCare.gov platform for 2015 and more than 600,000 consumers who selected plans in the 14 states that are operating their own Marketplace platform for 2015.

The report also includes data for areas such as the District of Columbia, which use their own Marketplace platforms.

The report also revealed that the number of young adults signing up for coverage under the law remains low. Insurers rely on young people, who are generally healthier, to keep overall premiums low by offsetting the cost of older, sicker enrollees.

Last year, 23 percent of those who enrolled during the same time frame were adults age 18 to 34. This year during the first month, the number stands at 24 percent or “way below” where it needs to be, Robert Laszewski, president of Health Policy and Strategy Associates LLC, told the Wall Street Journal.

“We need to get the young invincibles showing up to this,” Laszewski said.

Almost 60 percent of those who enrolled in new health care coverage between Nov. 15 and Dec. 15 were women, which women’s groups greeted as promising news.

“For women, the Affordable Care Act means … greater peace of mind,” said Cecile Richards, president of Planned Parenthood Federation of America.

In total, from November 15 to December 26, nearly 6.5 million consumers selected a plan or were automatically re-enrolled in health plans under Obamacare.

When the new law was rolled out in 2013, many cited its effect on college students, self-employed workers, small businesses, veterans and individuals with pre-existing medical conditions.

Further, officials at the Department of Health and Human Services said, because of the new law, the 92 percent of Washington, D.C. residents who already had insurance would now have more choices and stronger coverage.

For the 8 percent who do not or for District families and small businesses who buy their coverage but aren’t happy with it, promises of new options had arrived.

Update: MO Black Caucus and OBS Meet to Discuss Policing Initiative Proposal

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By Bridjes O’Neil
Special to the NNPA from The St. Louis American

Members of the Missouri Legislative Black Caucus met with those from the Organization for Black Struggle on Friday at Greater St. Marks Family Church in Ferguson. They discussed legislative strategy for the upcoming session and ways to incorporate OBS’ Quality Policing Initiative into legislation at the state, county, and local levels.

OBS members hand-delivered the policy proposal to legislators in Jefferson City on Wednesday, January 7, along with an invite to attend Friday’s meeting. They had also disrupted the opening ceremony in the Senate chamber by chanting and dropping banners. One banner read, “You’ve got mail.”

“With the start of the year and a new legislative session,” the letter read,  “we, the people,  are committed to holding our elected officials accountable to us as  constituents.”

Signed by OBS Executive Director Montague Simmons, the letter went on to say that the “systematic lynching” of Black people at the hands of police has continued since the death of Michael Brown Jr. on Aug. 9 —and that the judicial system has failed to hold police to the same level of accountability. It warned that the community is dealing with a “structural problem” requiring a “structural solution.” That “structural solution” is the Quality Policing Initiative, a broad policy proposal that organizers demand lawmakers use as a blueprint to transform the state’s broken policing system.

Three months ago, back when protests were more frequent, state Rep. Michael Butler said he knew many of those same people would be in Jefferson City come January. From a list of 20 Caucus members invited to attend the meeting, Butler was among the handful that showed up. He was joined by state Reps. Courtney Curtis, Sharon Pace, Joe Adams, and Tommie Pierson. Pierson is also pastor of Greater St. Mark Family Church.  It seemed to be a disappointing number for OBS organizer Kayla Reed.

“When I think of where I live, I’m looking at my Representative right now,” Reed said. “When I think about who my Senator is and the fact that she’s not here is very concerning.”

Despite their absence, Senators Jamilah Nasheed and Maria Chappelle-Nadal have been outspoken throughout the protest movement. On Wednesday, Chappelle-Nadal filed a formal “remonstrance” against Governor Jay Nixon calling for his resignation or impeachment, citing “failed and incompetent leadership.” In December, she also introduced legislation governing police conduct.

Reed spoke of a shift in the protest movement – from identifying problems to finding solutions.

“Protesting is not a solution,” she said. “It’s a tactic to force a solution.”

Most at the meeting agreed that there should be a greater focus on accountability, which comprises a large portion of the Quality Policing Initiative. The proposal tackles five phases of policing authority: recruitment, training, deployment, accountability and advancement.

Parts of the proposal outlines the creation of “use of force” and “search and seizure” reports along with a media accountability system – in which body and dash camera data is controlled by a citizen’s review board.

With a pen in hand, Butler listened intently with an occasional head nod as he jotted down notes on the back of a piece of paper.

Legislators gave brief updates on sponsored bills, particularly those dealing with community policing.

“You already have changes to the racial profiling act, municipal reform, and some policing tweaks that we have tried in the past year. That I’m sure these guys will re-file this year,” Butler said.

Simmons said there’s no greater time than now to effect real change. Although he seemed a bit concerned with attempting to pass any legislation with a Republican super-majority in both the House and the Senate. All is not lost, according to Curtis.

“There are some good Republicans we can work with,” he said.

Haiti Revisited: Five Years After Earthquake

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By D. Kevin McNeir
Special to the NNPA from The Washington Informer

The actual number of those killed when an earthquake of cataclysmic proportion struck the Caribbean country of Haiti just after rush hour on Tuesday, Jan. 12, 2010, may never be known. Estimates range from a low of 200,000 dead to as high as 300,000. In the aftermath, two million people found themselves homeless. The majority of those impacted by the earthquake lived in or near Port-au-Prince, the nation’s capital, just 15 miles west of the quake’s epicenter.

Soon after the earthquake, Haiti faced an outbreak of cholera, resulting in the deaths of 8,173 men, women and children as of June 2013. Thousands of children faced life without their parents – orphaned and left on the streets to fend for themselves. Meanwhile, hunger gnawed at the stomachs of those young and old.

Now, as the five-year anniversary of this tragedy approaches, there will certainly be a plethora of discussions, exhibitions, silent vigils and commemorations honoring those who died as well as those who have since devoted their efforts to Haiti’s recovery. However, more work needs to be done in order to complete a full recovery.

One member of Congress, who represents a large number of Haitians, second only to New York City in population, has visited the country numerous times since the earthquake. In an earlier interview she spoke about the challenges still facing Haiti – the poorest country in the Americas.

“It is heartbreaking to experience any group of people who are suffering because you feel hopeless and helpless,” said Frederica Wilson (D-FL, 24th District), who has represented the citizens of Miami, Florida since 2001.

“One of the challenges was where to begin to rebuild. It took a lot of time and money to remove the rubble that remained following the earthquake and the aftershocks. But I can attest that things are slowly improving and change is happening. You can see it,” Wilson said.

Wilson added that internal issues have had a major impact on rebuilding efforts.

“How can you tell who owns a parcel of land when the office that held such records has been destroyed?” she asked. “Who has the right to speak when you have so many different political parties vying for power? And what about those who live in the tent cities? At one point there was a push to remove people from them but the Congressional Black Caucus pushed for a slower and more humane evacuation process. The rebuilding will continue for many years.”

In Wilson’s district, Haitian-Americans make up over 15 percent of the population – approximately 44,000 people.

But accusations of continued Haitian government corruption and mismanagement persist. Following the earthquake, donors from the international community pledged $16 billion in funding thorough 2020. In the first two years, $9.5 billion was dispersed – three times the Haitian government’s revenue in that same period. But some say only a fraction actually ended up in Haitian hands.

Haiti’s president, Michel Martelly, 53, has continuously asked members of Parliament to work with him to build a new, vibrant, post-earthquake nation. But he and other government officials continue to face accusations that millions of dollars donated towards the country’s recovery have not been wisely spent. Meanwhile, internal strife has slowed noticeable actions of recovery to a snail’s pace.


Criminal Justice System Overhaul Needed, Say Analysts and Activists

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By Charlene Muhammad
Special to the NNPA from The Final Call

(FinalCall.com) – In 2014 Black America’s suffering increased at the hands of angry White men in black and blue, who are sworn to protect and serve. But responses to police killings and attacks must be stricter and stronger because police reforms have not worked, analysts say.

“The police represent the state. They are not there to serve the interest of the people, so we have to start with that concept,” said Elaine Brown, a former Black Panther leader. The long-time activist said she couldn’t point to any police reforms that have worked, but she offered some that wouldn’t be difficult to enact, starting with community policing and residency as a priority for qualifying officers.

Officers also need to get out of cars and walk streets, instead of patrolling all day and then jumping out on people and shooting, she added.

“Ain’t nobody going into Beverly Hills slapping nobody upside the head and shooting people because they ran out the store, but kids are stealing all day long in Beverly Hills. But the police are out there. They’re Officer Friendly. Everybody knows them,” Ms. Brown said.

“But in the case of the Black community, given our oppressed and depressed status, then we should have police that understand that community. So if they don’t live there, they should at least be walking the beat, so they know Mr. Jones is going to get drunk on Friday night, so there’s not a reason to kill him, or those boys are doing whatever it is they’re doing, but it’s a question of community control,” she said.

Part of community control can be reflected in simple reforms, but not cameras, she said. “We already know what that does: Nothing. Although that’s helpful at the end of the day if the camera’s turned on, if they’re not lying and fixing up stuff, acting like it didn’t work that day, and all of that other stuff they do,” Ms. Brown argued.

People need a police force that actually has a relationship in the community, but many forces are strikingly different, like Oakland, where at minimum 80 percent of the police are White and don’t live there, Ms. Brown told The Final Call.

In Ferguson, Mo., the epicenter for protests against police killings and brutality, Blacks make up more than 67 percent of Ferguson’s population, yet there are only three Blacks on its 53-man police force. “You’ve got racial divide. You’ve got White cops policing Black communities … and that’s not to say that the Blacks don’t often participate in this stuff; but generally speaking, if you live in the neighborhood, you ain’t going to be shooting Billy Bob like it ain’t nothing. You’ve got to go home. It’s just a practical question really,” Ms. Brown argued.

The irony, she said, is the recent spate of police killings didn’t occur in the South, but rather in places like New York. Then there was the non-indictment of officers in the Aug. 5 police killing of John Crawford in a Walmart in Dayton, Ohio, which has many feeling it’s “open season” on Blacks.

Between Michael Brown, Jr., the unarmed 18-year-old shot to death in Ferguson and John Crawford, killed in the toy gun aisle of a Wal-Mart, there were other Black and Latino men, youth and women slain by police.

Even the outgoing U.S. attorney general admits crime reduction is tied to public trust. In early December, Attorney General Eric Holder said President Barack Obama had instructed his team to draft an executive order creating a Task Force on 21st Century Policing. The task force will prepare a report and recommendations within 90 days of its creation.

President Obama has also proposed a three-year, $263 million investment in 50,000 body-worn cameras for police officer, expanded training for law enforcement agencies, and additional resources for police reform, including additional opportunities for the Department of Justice to facilitate community and local law enforcement engagement.

“Particularly in light of  recent incidents we’ve seen at the local level and the concerns about trust in the criminal justice process which so many have raised throughout the nation, it’s imperative that we take every possible action to institute sound, fair and strong policing practices,” Atty. Holder said.

The Justice for Mike Brown Leadership Coalition’s Five Point Plan of Action calls for creation of civilian review boards, use of cameras and cell phones to document encounters with police and creation of a national database to document charges of police harassment and brutality.

The National Urban League’s 10 recommendations include review and revision of police use of deadly force policies, widespread use of body and patrol car dashboard cameras, and appointment of special prosecutors to investigate police misconduct.

Many aren’t convinced such “reforms” will do much good. “Let’s just say they did work. The lapel cameras can show a police officer in the wrong, and, they go before a grand jury. We’ve still got to get past the grand jury level. We’ve still got to get past a district attorney who is going to prosecute that police officer … his best friend,” commented Cephus “Uncle Bobby” Johnson.

Despite reforms gained by his family and the Oakland community after former Bay Area Rapid Transit officer Johannes Mehserle fatally shot his unarmed nephew Oscar Grant, III. on a station platform on Jan. 1, 2008, not much has changed, said the activist.

If by chance people get past a prosecutor, they still have to deal with juries that are so overwhelmed with White supremacy that Blacks, Whites and Latinos tend to rule in favor of police, Mr. Johnson continued.

People can still be forced to peel away layers of the criminal justice system, only to be denied justice by a judge who overturns a just jury verdict, as did L.A. Judge Robert Perry in his nephew’s case, Mr. Johnson said.

“We’ve seen it over and over again … in reality, it’s no fairness. It’s just protection of police officers, so the simple reforms of a police officer does not take away the ill-effect of the criminal justice system. This whole system has to be revamped,” he told The Final Call.

The Justice for Oscar Grant movement was able to get lapel cameras for officers, additional training on handling mental health patients, a law allowing for an independent auditor that would report directly to the BART Board and investigate public complaints, an 11-man citizen review board to participate in disciplinary actions and 81 recommendations tied to police use of force, training, and community engagement. The suggestions came out of an independent review of BART by the National Organization of Black Law Enforcement Executives.

“Whether those reforms have done anything or actually helped, I’d have to say from what I’m seeing on a consistent basis, no,” Mr. Johnson said.

The oversight review board and the auditor were never adequately funded by BART and both are controlled by the police chief, who can deny any claim, he continued.  While people can appeal to the department’s general manager, normally, the general manager will side with the chief, so no real improvements have been made, Mr. Johnson said.

“In many respects, we still have no real ability to implement any kind of punishment or terminate a police officer when they’re actually in the wrong,” Mr. Johnson said. As for lapel cameras, officers still aren’t turning them on when needed, he said.

BART police are supposed to activate cameras before making contact with anyone, but in Dublin, Calif., where one officer was shot by another during a probation search, none of the officers present either wore or activated their cameras, he noted.

“These officers are turning them on and off at will to cover themselves when they know they’re in the wrong. Again, here we have another failure of some type of reform when it comes to cameras not working. Officers can’t be held accountable if the lapel cameras are not turned on, or, if they’re turned off during encounters, there has to be real harsh discipline, and that isn’t taking place,” he said.

In mid-April, activists pressed to no avail Los Angeles Police Chief Charlie Beck to find and discipline officers who broke antennas on police vehicles and interfered with audio recordings made while patrolling predominantly Black and Brown communities.

Officers removed 72 of approximately 160 antennas from cars that patrolled South L.A. the L.A. Times reported. Officials didn’t investigate who broke the antennas, nor did department officials, but they did issue warnings and put an antenna tracking plan in place for each shift.

In the midst of #BlackLivesMatter protests over the non-indictments in the Michael Brown, Jr. and Eric Garner killings, activists noted that police murders of Blacks have a long history and are not something that occurred overnight.

Calls for reform aren’t new either, activists note.

“First of all, they don’t need no reform. They already know the law,” insisted Amen Rahh, professor emeritus of Africana Studies at California State University-Long Beach. “It’s the whole criminal justice system, not just the police beating you and shooting you. It’s the justice system that lets them go when they do it.”

“They don’t need reform to treat White folks. Why they need reform to treat us? They just need to have a balance, and they must pay a price, a national price, whenever they hurt any African American anywhere.”

Prof. Rahh recommended using an independent Black political party to push legislation that punishes abusive cops and hold hearings on violations of law. Blacks also need a national economic policy and must pursue their own agenda to survive, he added.

“As long as we’re marching for peace, reform and policy change, they’ve been dealing with that for years. They don’t care about that, because they’ve been killing us all the time … but we must push our agenda, a Black national empowerment program, from the Honorable Elijah Muhammad’s teachings. He always taught us to be organized as a people and to develop unity,” Prof. Rahh said.

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