Are We All Created Equal?

Our society and laws are built upon the premise that all people are created equal. Thomas Jefferson said so back in 1776, even if he meant it only aspirationally. It is upon this assumption that the guarantee of equal rights to all Americans is based. Without it – in a world where society and law hold that some of us are more equal than others – we enter the realm of Orwellian fantasy.

American and world history are marred by examples of individuals and movements attempting to disprove the “all created equal” theory to support an agenda of discrimination, enslavement, or extermination. After all, these people imply, since we are not created equal, what’s the logical basis for respecting equal rights?

In this, the DNA age, this debate has led to studies on the correlation of IQ and genetic continental origin (i.e., race). That debate leapt to the public consciousness earlier this year when Dr. James Watson, who won a Nobel prize for discovering the double helix structure of DNA, suggested that he was “inherently gloomy” about the future of Africa because “all our social policies are based on the fact that their intelligence is the same as ours – whereas all the testing says not really.” In the wake of these comments, Dr. Watson was quickly eased into retirement and then bizarrely learned that 16% of his own genes were of African origin.

What has followed has been a more public debate between hereditarians who think intelligence is genetically determined and environmentalists who think intelligence is affected substantially by environment about who is right and what the implications of that answer are. For instance, if intelligence is genetic and there is a racial disparity that is intractable, then what good does a policy based on fictional equality do? This is what Dr. Watson seemed to be alluding to. On the other hand, if intelligence can be affected by environment, then what can be done to isolate the particular environmental causes in order to shrink racial disparities and lift intelligence across races. (For links that discuss the way-over-my-head science involved, see below)

I do not have Dr. Watson’s genetic pedigree, but after having combed through some of the research, I find myself leaning on the side of the environmentalists. Here’s why:

I am skeptical of the existence of a predetermined, measurable, and static “intelligence.” I am willing to concede that there are genetic capacities for every individual, but I have seen enough examples of people either exceeding or failing to meet their potential to know that there are many factors that determine whether that capacity will be reached. Intellectual capacities cannot be reached without nourishment – mental and physical. If an individual’s “intelligence” depends on whether or not she was fed properly as an infant, then how can their be a measurable number that represents her intelligence?

I am also skeptical of any test that purports to measure intelligence across societies and continents. How useful is a test conceived, designed, and administered by westerners to test the “intelligence” of people who have no contact with or understanding of the western world?

Further, if it is true that the black-white IQ gap shrunk substantially in the mid-1900’s (as studies show), then how can IQ be static? If IQ were static and genetically determined, then there is no proper explanation for such a dramatic decrease in “intelligence” disparity across races.

Finally, I am troubled by the way the debate speaks in such broad racial terms of the intelligence of “Africans,” “Europeans,” or “Asians,” because it is such generalizations that lead to the most trifling of stereotypes and the most egregious of crimes. Even assuming that the studies are accurately measuring “intelligence” and showing genetic differences, that research says nothing about the African, European, or Asian standing in front of me. Averages may be a necessary evil in studies, but they are incapable of evaluating any given individual and I am especially troubled when averages may be used to support agendas of discrimination based on stereotypes.

Perhaps I, myself, am genetically predisposed to side with the environmentalists because I am optimistic that changes in circumstances can affect life outcomes. Although it is troubling for me to believe that all people are not created equal, I am fully cognizant that all people are not born into equal environments. So long as “intelligence” is not static, then improvements to those environments can also improve intelligence. That is certainly what I want to believe and I am sufficiently skeptical of the hereditarians’ science to be comfortable that my conclusion, and Jefferson’s as well, is more than mere wishful thinking.

LINKS for pleasure reading:
Profile of Dr. Watson in Times of London – the article that started the discussion

4-part Review of Scientific Literature by William Saleton (don’t miss the 4th part for an interesting correction/retraction)

Op-Ed by Richard Nisbett of Univ. of Michigan

Malcolm Gladwell reviews James Flynn’s book, What is Intelligence?

“James Watson tells an Inconvenient Truth”

Vaguely related article on Jewish genes and intelligence

There is much much more out there if you are interested and have many spare hours.....

The Trouble with Diversty - Book Review

I have written several times (here, here and here) about the Supreme Court case in which the Court considered the constitutionality of school assignment plans in Louisville and Seattle that used race as a factor in maintaining diverse student populations in public schools. I criticized the Court for ignoring the almost-inevitable consequence of rejecting these plans – the resegregation of schools. However, in a book I’ve recently finished – The Trouble with Diversity, by Walter Benn Michaels – I found myself wondering about that resegregation: so what?

The Trouble with Diversity makes the argument that the focus on diversity as a goal has served as a distraction from increasing inequality in our society. Michaels is not so much against diversity – he is simply troubled by the way in which a room full of millionaires who happen to be of different races is praised as a diverse gathering. The fact that there are millionaires of all races, Michaels argues, makes it difficult to see that there are many more Americans of all races living in poverty with long odds of improving their lot. (Of course, the fact that a disproportionate number of those in poverty are African American only further complicates the balance between diversity and equality)

Michaels makes a compelling case that the focus on ethnic diversity in everything from university admissions to corporate boards has only hidden a system that favors the already-wealthy (regardless of race) at every turn. The danger is that it is hidden in a way that makes us (and by “us,” he means the educated and relatively well off who may be able to do something about the situation) feel better about ourselves: “A world of people who are different from us looks a lot more appealing than a world of people who are poorer than us.”

There is much to admire in The Trouble with Diversity – Michaels’ clarity of thought and writing, and his obsession with a society that is truly (as opposed to merely rhetorically) one of equal opportunity. However, in dismissing the quest for diversity as almost an intentional distraction from the quest for equality, Michaels goes too far.

The quest for diversity does not seek diversity for diversity’s sake. Rather, it is a direct response to discrimination. If personal biases are preventing otherwise qualified individuals from moving forward, then the clamor for more diversity can help take those personal biases out of the equation. Where Michaels fails is in minimizing the degree to which race still does matter to even the African American millionaire. Perhaps diversity proponents have gone too far, but that should not obscure the fact that racial and ethnic discrimination persists.

Ultimately, the debate Michaels weighs in on is a chicken-and-the-egg question. Michaels believes that if we can get to equal opportunity, then diversity will follow, whereas diversity proponents argue that if we have more diversity in our schools and professions, equality will follow. Which brings us back to the resegregating effects of the Supreme Court’s decision: Michaels would not be bothered by schools that are all-black or all-white so long as those schools provided equal educational opportunities (separate, but really, truly equal). Michaels would even go on to say that the litigation about the race-conscious assignment policies may in fact distract from and pull resources away from ever achieving schools that offer equal educational opportunities. In Michaels’ world, there is no inherent problem with the resegregation of schools.

And maybe there is no inherent problem with it. However, Michaels is no less guilty of ignoring reality than the Supreme Court. In our society, there is an unfortunate correlation between a school’s quality and its racial makeup. That correlation is not going to disappear as a result of abandoning effects at diversity – the more likely result is that the correlation with only strengthen. The race-conscious assignment plans that the Supreme Court rejected were designed to offer better educational opportunities (not to mention the social benefits of an ethnically diverse group of peers) to students who would otherwise be learning in racially-isolated schools subject to that unfortunate correlation.

So I have not totally converted to the conclusion that resegregation does not matter. But thanks to this book, I will be careful to keep the underlying goal of diverse schools or workplaces or neighborhoods in mind – opportunity that is not determined by the color of skin.

The Civil Rights Story of the Fall

This fall, a lot of attention has found its way to Jena, Louisiana, where civil rights activists and advocates have descended to condemn a grim reminder of the progress to be made in American race relations. The Jena story exposed the stubborn presence of private racism and disproportionate law enforcement by local officials. That story, however, overshadowed another troubling civil rights story that suggests that the problems in Jena continue to exist even at the upper echelons of the federal government.

John Tanner is the head of the voting rights section in the Civil Rights Division of the U.S. Department of Justice. This job, head of a section created by the Voting Rights Act of 1965, was specifically designed to protect the voting rights of African American citizens who were being denied registration. As part of his job, Tanner reviews the conclusions of his subordinates regarding questions including whether voter ID requirements discriminate against African American voters. When his subordinates recommended that a particular Georgia voter ID law did so discriminate, Tanner overruled them. Just for the record, the Georgia law has been ruled unconstitutional twice by a federal judge who likened it to a poll tax – a method, it is worth noting, that the Voting Rights Act was specifically enacted to eliminate. In October, we got a glimpse of exactly what Tanner was thinking when making that decision.

In a attempt to make the point that the voter ID law actually discriminated against elderly, and not African American voters (as though that is a testament to the goodness of the law), Tanner explained that “our society is such that minorities don’t become elderly the way white people do.” Inserting his foot further, he said, “They die first.” The argument, then, is that the law does discriminate against the elderly; the elderly are more likely to be white; and therefore, the law does not discriminate against African Americans. Bulletproof logic.

Let’s leave aside the question of whether it is factually accurate to say that black Americans on average die earlier than white Americans – the truth of that statement is irrelevant to what makes Tanner’s comments so reprehensible. Assuming that it is true, it is worrisome that Mr. Tanner found this fact to be an acceptable response to counter the suggestion that voter ID requirements disproportionately disenfranchise minority voters. It is a short step away from advocating early death for African Americans in order to ensure that the voter ID requirement will not discriminate against them.

Now, Tanner certainly is not advocating for this, but he is using a racial disparity in life expectancy and health outcomes as justification for his position, and thus, implicitly arguing that such a racial disparity is acceptable. In a country in which all are created equal and where every citizen is entitled to equal protection, a racial disparity in life expectancy is not acceptable and should not be acceptable to any American.

The only way such a disparate outcome would be acceptable is if one disregards the “all men are created equal” ideal upon which our society supposedly rests. If, for instance, African Americans are not equal to whites, than there really is no problem – African Americans die first because they are inferior. Isn’t this what Tanner is really suggesting when he cited the fact in his answer? And if so, isn’t it a problem that the head of the agency charged with protecting voter rights and making determinations about whether policies like voter ID laws are discriminatory even appears to think this way?

As Representative Artur Davis of Alabama scolded Tanner in a hearing that was unfortunately a distraction from the important and real debate about the wisdom, necessity, and constitutionality of voter ID laws, “If you are basing your conclusions on stereotypes rather than facts, then it suggests to some of us that someone else can do this job better than you can.”

Today, John Tanner remains the head of the voting rights section of the Civil Rights Division of the U.S. Department of Justice. What does that say about the progress of race relations in this country?

Long Live the Health Care Market

The government does not do everything right.

The preceding sentence was perhaps the least contestable sentence in the history of column writing. But now for the heresy some would like to ignore: sometimes, the government does do things right.

If you are an American who is paying attention (and just by the fact that you are reading this column, you are presumably the latter), you are aware that the current system of health care in this country is floundering. The costs of employer-based health insurance are crippling American businesses, even putting them at a competitive disadvantage in a globalized market. In addition, 47 million Americans do not have health insurance at all, most because it is too expensive and/or their employers are not or cannot help pay for it. This means that there are American families who are one medical situation away from both bankrupting themselves and shifting their health costs onto taxpayers or doctors.

Even those that have health insurance are not thrilled with what they’ve got. Premiums and deductibles seem too high, choice feels restricted, and there is the haunting knowledge that insurance companies have every financial incentive to cover as little as it can get away with.

In sum, the system is disabling employers that pay for health care, leaving those with coverage unsatisfied, and failing to cover millions. All of this may be acceptable if Americans were receiving superior health treatment with better outcomes that people living under other health systems. Largely, however, Americans are not as measured in terms of criteria like life expectancy and infant mortality.

Amidst this wreck are a few programs that do better than the system of private insurers now dominant in our system. Those programs, including Medicare, health care for veterans, and health coverage for poor children, are run by the government. And, at least as compared to the private insurers, the government is doing it right.

Yet this week, as President Bush was presented with an expansion of the popular and successful state children’s health insurance program, or S-CHIP, he found an opportunity to use the fourth veto of his administration. S-CHIP was originally envisioned to cover children in poor families. The program has been successful and as it came up for reauthorization, a bipartisan coalition in Congress agreed on a significant expansion so that it could reach even more of the 9 million American children living without health insurance. Members of Congress are now scrambling to gather the votes needed to override the President’s veto and salvage S-CHIP.

Why is the President so adamantly opposed to the expansion of S-CHIP, an expansion many in his own party support? It presumably is not because he thinks poor children should not be insured. It also is not because he thinks S-CHIP is ineffective. The President proposed his own expansion of the program, albeit a much smaller expansion than what Congress agreed to. The motivation for the veto was in fact precisely the opposite – S-CHIP is very effective. It is so effective and satisfying – like Medicare – that it makes it look as though health care can be successful even without private insurers. It looks as though the government is doing something right.

The President sees S-CHIP expansion as a step along the way toward government-funded health insurance for all Americans. In this, he is correct: the expansion does provide government coverage to more Americans. Where the President is wrong is that this is a bad thing.

In the private market, when one entity does something better than another, it is rewarded with market share. The same should be true where, as here, the government is doing a better job at covering Americans and providing them with coverage for quality health care than is private insurance. S-CHIP is targeted at covering those that private insurers have overlooked or refused to cover. If, based on its effectiveness, it picks up a few families who drop their own private insurance, that is simply the market’s way of punishing private insurers.

The fact is that even if President Bush’s veto is overridden, the United States is not converting to single-payer health insurance anytime soon. None of the major presidential candidates have proposed a plan that goes so far. Where the United States is going it toward a more effective system of coverage by expanding a program that works. Effectiveness is precisely what the market ought to reward, even where it is the government that is doing something right.

Unity Strategy Requires Persuasion

The first time I came across a bumper sticker with the campaign slogan for mayoral candidate Herman Morris, I was impressed at the simple yet meaningful message: Together. For a change. There are two potential meanings, both appropriate for this moment in Memphis history: "We will do things together for a change," or "We will work for a change, together."

Fellow contender Carol Chumney is also sloganeering for change. Her campaign mantra (For the People, For a Change) seeks to tap into the same appetite for a new direction in city leadership, while the slogan on Mayor Willie Herenton's billboards and Web site (Continuing Progress) promises to build on the accomplishments of his previous terms. This election season, it has been the mayor's unofficial slogan (Shake the Haters Off) that has gotten the most attention, but it is Morris' theme of togetherness that I find most intriguing.

This column is not meant as an endorsement or rejection of any candidate -- there is far more to judge all three of these hopefuls on than their slogans. Instead, with the election just over two weeks away, I wonder whether a campaign based on togetherness, as Morris' campaign is, can succeed in Memphis.

Memphis has a history of electing candidates whose campaigns divide, rather than unite, the community, and much of that dividing occurs along racial lines. In 1967, Henry Loeb was elected with virtually no African-American support, a strategy that did not serve him well as the city encountered the sanitation workers' strike of 1968. More recently, Herenton was first elected in 1991 with little white support over incumbent Dick Hackett by a mere 142 votes.

In a book studying the 1991 election, "Racial Politics at the Crossroads," Rhodes College professors Marcus Pohlmann and Michael Kirby wrote that Memphis had reached a "point of racial reflexivity," where any crossover support for one candidate would dampen enthusiasm (and with it, potential voter turnout) in the candidate's own racial community. For candidate Herenton, therefore, any impression of white support was likely to diminish the crusade-like enthusiasm in the African-American community that ultimately made it possible for Memphis to elect its first black mayor. Indeed, Herenton received approximately 3 percent of the white vote, while Hackett received only 1 percent of the African-American vote in 1991.

If Herenton is to win a fifth term on Oct. 4, it appears that it will be won, just as his first election was, without substantial white support. In a July poll commissioned by The Commercial Appeal, only 4 percent of white respondents thought the mayor should be re-elected. In that sense, 2007 looks a lot like 1991.

Based on his slogan, Herman Morris is betting that Memphis has pulled back from the 1991 level of racial reflexivity and that an interracial coalition can sweep him into the mayor's office. His co-campaign manager John Ryder recently stated that Morris can win by getting 40 percent of the white vote along with 40 percent of the African-American vote. Whether Morris can garner that percentage in either community remains to be seen, but 16 years removed from the incredibly divided 1991 election, there is some evidence that a unifying candidate can succeed, regardless of that candidate's race.

Most significantly, Shelby County Mayor A C Wharton, former U.S. representative Harold Ford Jr. and Ford's successor, Rep. Steve Cohen, have enjoyed significant crossover voting, although in Cohen's case, his support in the African-American community was hard won and appears to be even harder kept. For his part, even Herenton has previously enjoyed substantial white support in rolling to his landslide elections in 1995, 1999 and 2003.

If Morris, or any candidate, is going to follow these examples of interracial coalitions, he will have to convince voters in diverse segments of the community that togetherness can and must work for Memphis to thrive going forward. As Herenton himself said after his historic first election in 1991: "As your new mayor, not just for a few, but for all Memphians, I envision a great and vital metropolis rushing excitedly towards the 21st century, a century which will feature a Memphis that proudly boasts equal opportunity and access, racial justice and peace, cultural unity and harmony -- for all."

That kind of interracial togetherness would be some progress worth continuing.

Ruling Can Light Way to Better Schools

When U.S. Dist. Judge Bernice Donald concluded last month that the Shelby County Schools district has not yet overcome the relics of segregation, the stunned reaction from school officials was unequivocal.

"Certainly we are disappointed by the ruling," said school board chairman David Pickler.

"It could have some very dramatic negative effects on the children of Shelby County," school attorney Rick Winchester added. Winchester went on to suggest that Donald's ruling could mean that education dollars would be diverted to busing and moving children to schools farther from their neighborhoods.

This practice of crying "bus" is a disservice to those the county schools serve and a distraction from what ought to be the goal of all parties involved -- providing the highest quality education to all Shelby County students. Compliance with Donald's ruling is -- forgive me -- not so black and white as the school officials seem to suggest.

Busing is not the only way for a school district to become unitary, and among the potential solutions, busing is probably the least appealing. Rather than frightening parents by alluding to the possibility of busing, school officials would do well to think outside of the busing box for creative ways to increase both the diversity and the educational quality in the Shelby County Schools. Where Winchester sees in the ruling the possibility of "dramatic negative effects," I see an unprecedented opportunity for Shelby County Schools to become a national model for equity and excellence in education.

Donald wrote that the true goal of any school desegregation plan is to provide equal educational opportunity to all students by eliminating racial isolation. For decades, as districts across the country were forced to comply with the mandate of Brown v. Board of Education, the focus was on the elimination of racial isolation. Educational considerations were too often only secondary considerations.

In the 1960s and '70s, eliminating legally sanctioned racial separation was very important. But in 2007, with the benefit of a half-century of hindsight, districts like Shelby County have the opportunity to move beyond simplistic solutions such as busing and implement desegregation plans that embrace both the educational and the social ideals of Brown.

Using a combination of neighborhood schools with carefully drawn attendance zones, magnet schools that provide a variety of educational choices for parents, and lenient transfer policies combined with racial targets similar to those in Donald's ruling, districts across the country have achieved increased diversity by lifting the quality of all schools. In some instances, transportation is necessary, but it is far easier to convince a parent to accept busing when his or her child will be bused voluntarily to an exceptional school than when the child will be bused across town to a school no better, or worse, than the neighborhood school.

There is no reason to think the county schools cannot come up with a similar plan tailored to Shelby County in response to Donald's ruling. Devising such a plan is far more difficult than simply imposing busing, but county school officials need look no further than the Memphis City Schools to see the devastating effects busing can have on a district. The challenge is for school officials to resist the temptation to defensively use the threat of busing to criticize Donald's ruling and instead to develop a thoughtful, multifaceted desegregation plan that creates a world-class school district.

"In those instances where the Board adopted the Court's goal as its own," Donald wrote, "it has progressed with remarkable speed." The district should not miss this opportunity to adopt the goal of improving education across the system while eliminating instances of racial isolation. The initial signs of such adoption are not positive -- the board has already said it will appeal Donald's ruling -- but if the district does embrace the spirit of the ruling, there is no reason it should not progress with remarkable speed.

What Can Brown Do For Us Now?

After the U.S. Supreme Court's recent rejection of school assignment plans in Louisville, Ky., and Seattle that were aimed at maintaining racial integration in schools, a variety of pundits and scholars trashed the court for sticking a fork in the most revered decision of the 20th century, Brown v. Board of Education. However, the ideals of Brown -- providing students with equal educational opportunities regardless of race or background -- are far from dead. What has been missing from much of the criticism of the June 28 decision is an analysis of what exactly makes integrated schooling so beneficial, and what advocates for equity in education can do within this new legal landscape to recapture those benefits.

The court's decision is potentially calamitous because it handcuffs districts that are working to achieve racial diversity, thus threatening to eliminate the proven benefits of integrated classrooms. Numerous studies have shown that students who attended racially integrated schools -- such as the students in Louisville and Seattle -- show higher levels of tolerance toward individuals of different ethnic backgrounds and an increased sense of civic engagement, when compared with peers who attended more racially isolated schools. Academically, the benefits for African-American students are immense, with studies showing higher graduation rates, larger enrollments in advanced courses, and even higher post-schooling salaries for African-American students who learned in racially integrated schools. Preliminary studies show similar benefits for Latino students. Meanwhile, the racial composition of schools has proven to have no effect on the academic achievement of white students.

Recognizing these benefits, school officials in Louisville and Seattle enacted plans aimed at maintaining racial diversity, in certain circumstances considering a student's race in making school assignments. It was this minimal use of race to achieve the districts' goals that troubled the court (or at least its majority in the 5-4 decision). In a line from the ruling that is already famous, Chief Justice John Roberts wrote, "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race." Unfortunately, it's not quite that simple. Brown itself actually ended discrimination on the basis of race in making school assignments. Something more than just ending discrimination has been needed to achieve Brown's ideal of providing equal educational opportunities to students of all races. Now that the court has ruled that the "something more" can no longer include consideration of race to ensure integrated schools, the question education advocates must confront is how to recapture the benefits of integrated education within the new limits of the law. One avenue that offers a particularly hopeful outlook is a shift in focus away from racial integration and toward socioeconomic integration.

The disadvantages that characterize many racially isolated schools -- inequitable resources, higher teacher turnover, fewer advanced classes -- and the lower average outcomes for students attending those schools -- higher dropout rates, lower graduation rates -- are even more pronounced in schools with high concentrations of poor students. The same educational benefits that flow to African-American and Latino students in racially integrated schools will flow to poor students of all races in schools integrated by socioeconomics.

One district that already uses this model is Wake County (Raleigh), N.C. In Wake County, where socioeconomic integration has been in practice since 2000, low-income students perform better than similarly situated students in other North Carolina districts. In addition, Wake County's minority students outperform the minority students in similar districts throughout the state. And the improved outcomes are not limited to low-income and minority students. In 2003, Wake County had the second highest graduation rate among the nation's 50 largest school districts. In addition, the cultural benefits of racially integrated schools, such as higher levels of tolerance among students, can also be captured by socioeconomically integrated schools. Unfortunately, there is a high correlation between income and race, such that creating schools with children from differing income levels is likely to have the effect of also creating schools with children from different races. Wake County, for example, has maintained much of its previous racial integration since switching from a racial to a socioeconomic integration plan in 2000. Income-based assignment plans also have the legal benefit of not triggering the strict judicial scrutiny that follows whenever a decision is made based on a student's race, making them less vulnerable to challenge.

With all due respect to Chief Justice Roberts, the way to end discrimination on the basis of race is to create a world where the playing field for individuals of all backgrounds is as level as possible. That leveling begins in our schools. Although the Supreme Court removed a critical tool in achieving opportunities that are equal for students of all races, other tools remain. It is now up to advocates of equity in education to find new ways to pursue Brown's ideals with the tools we have left. They are ideals -- with proven cultural and academic benefits -- worth fighting for.

Supreme Court Notebook - Ledbetter

How much do you know about the salaries of your coworkers? Talking among peers about compensation is always a little awkward and one-third of private employers actually prohibit such discussions of wages. The odds are that unless you are in charge, in the payroll department, or downright nosy, you probably don't know much about the compensation of your coworkers. This would make it nearly impossible for you to discover -- especially within 180 days of the time your pay is set -- that you are a victim of pay discrimination. Yet last week, the Supreme Court ruled that pay discrimination claims not brought within 180 days of setting the discriminatory salary are time barred. Unless you are nosy, you're out of luck.

The case, Ledbetter v. Goodyear Tire and Rubber Company, was brought by the only female supervisor at a Goodyear tire plant in Alabama. Ms. Ledbetter discovered late into her twenty year career at Goodyear that the salaries of males in the same position as her were higher -- the lowest paid man was paid $4,286 a month while Ms. Ledbetter earned only $3,727. In the trial court, Ms. Ledbetter was awarded $360,000 in back pay and compensatory and punitive damages, but that award was erased on appeal. Last week, the Supreme Court agreed with the appeals court, holding that Ms. Ledbetter brought her claim too late.

The law states that in order to bring an employment discrimination claim, the plaintiff must show that she suffered an "unlawful employment practice" in the 180 days prior to filing her complaint. Until last week's ruling, the Equal Employment Opportunity Commission operated under the theory that each paycheck distribution that reflected the discriminatory pay constituted a new "unlawful employment practice" that retriggered the 180 day clock. The Supreme Court, voting 5-4, disagreed.

Justice Ginsburg, notably the only woman on the Supreme Court (and someone who is paid the same amount as her male colleagues), read a blistering dissent from the bench. Justice Ginsburg wrote that even though Ms. Ledbetter had established that discrimination (as opposed to performance inadequacies) accounted for the pay differential, the Court's ruling "grandfathered" such discrimination in. "The unlawful practice," she wrote, "is the current payment of salaries infected by gender-based discrimination -- a practice that occurs whenever a paycheck delivers less to a woman than to a similarly-situated man."

I am not the first to criticize this decision and Senator Hillary Clinton has already pledged to introduce legislation that would render the decision moot. But it is disturbing that five members of the Supreme Court, including President Bush's two appointees, could be this out of touch with the purpose of discrimination laws. The world the Ledbetter opinion would create is one in which it is illegal to discriminate in pay based on gender, but only for the first 180 days after that pay is set. If an employer avoids a complaint during those first six months, the employer is free to discriminate for the rest of an employee's career.

The Supreme Court would dispute this characterization. They would argue that this is not so much a case about pay discrimination as it is about statutory construction. A theme of the more conservative members of the court -- including Justice Alito in this case -- is that it is not the Supreme Court's job to set public policy, but to interpret the law by strictly adhering to legislative text. The Bush Administration, however, who weighed in against the EEOC's interpretation, was singularly concerned with setting policy and the Supreme Court delivered precisely the policy the Administration sought. Even if the message the Supreme Court claims to have sent is "draft clearer legislation," the message they actually sent is "employers are free to discriminate if they are not caught in the first 180 days."

The advice to Americans is clear. For those beginning new jobs in the future, it would be wise on the first day to shake your coworkers' hands with the question, "And how much are you paid?" This will not only make you popular around the office, but if you do otherwise, the Supreme Court has ruled, you may simply be out of luck down the road.

Voting for Present and Future Memphis

(NOTE: This column appeared in the Commercial Appeal)


City government plays two distinct roles in the life of a city. First, it must deal with the issues of today, delivering services and providing a safe environment in which citizens can pursue their day-to-day business. Performing this role requires competence in management and administration as well as a commitment to serving a city's residents.


Second, government must dream of what a city will look like tomorrow. Elected leaders set priorities and policies that can affect the direction of a city well beyond the term of any elected official. Such dreaming requires both vision for the future and the ability to enact policies that point the city toward that vision.


With four months until the most important city election since 1991, it is time for Memphians to start thinking about which candidates provide the right combination of competence and vision to steer Memphis into the next decade and beyond. Too often, coverage of the elections focuses on the issues of today with little attention paid to the candidates' vision for tomorrow. Although the short-term tasks of government -- including, most importantly, confronting crime -- are what keep a city's wheels spinning, it is the forward-thinking vision that gets a city moving ahead.


So what are the issues Memphians ought to be quizzing the City Council and mayoral candidates about to get a sense of what they see in tomorrow's Memphis?


At the top of the list is education. If Memphis is to move forward, it will have to be on the shoulders of a new generation of citizens with the skills and learning abilities to support the 21st-century economy. Too often, this newspaper reports a story about a business that was considering a move to Memphis, but decided not to relocate here due in part to the "education level" of the workforce. Raising that level for Memphis students -- whether they attend city, county or private schools -- must be a priority.


Another top priority is how each candidate sees Memphis thriving economically in the future, as a vibrant business community can provide the jobs that will allow thousands of Memphians to flourish. The city government has several tasks in the area of economic development, beginning with support for existing businesses to help them prosper. In addition, leaders can sell the city's benefits to businesses considering a move to or growth in Memphis. Finally, and perhaps most critically, city government can strategically revitalize areas of the city best placed to attract the type of business growth that can lift an entire city.


Memphis is already well placed to become the nation's 21st century distribution hub if it can intelligently develop its "aerotropolis," or the distribution center built around the multibillion-dollar global air shipping industry. Candidates should present ideas to keep Memphis ahead of this curve and seek other areas in which the city can push ahead of the competition.


Finally, in this election, coming as it does during what feels like a turning point in local politics, the candidates should step forward to change the tone of pessimism and divisiveness that afflicts Memphis. For too long, Memphis has divided itself into factions -- racially, geographically, economically, politically -- that have stunted city prosperity. As factions grapple amongst themselves over municipal power, the larger community is left with the status quo.


For Memphis to truly move forward, city leaders must search for common ground, take risks that do not serve only the interests of their own political group, and be willing to consider opposing viewpoints with respect. Changing the self-identity of Memphis is not a task that can be accomplished in one term in office, but it is a challenge candidates must be willing to confront if Memphis is to reach its potential over the next decade.


It is up to all Memphis voters to ask the questions that push this year's candidates to present their ideas and priorities for the future. Only then will voters be able to reward those candidates who are thinking seriously about where our city could be in 2017 while still addressing the problems of 2007.

America's Next Generation

What will the United States look like in 2030? How different will the face of the nation be in a quarter century? And how will that difference affect the country?

A recent Census report breaking down the nation’s demographics by age group suggests that the United States of 2030 will be one with a much higher percentage of minorities of voting age. As an aging white population is gradually replaced with a more diverse next generation, the country’s priorities are likely to shift to reflect the changing demographics.

In 2006, the American minority population topped 100 million for the first time. Today, nearly one in three Americans is Hispanic, African American, Asian, or from another minority group. However, for those under 19, minorities represent 42% of the country. Compare that to the 80% of Americans over the age of 60 who are white and it is clear that there is a racial generation gap that affects both the America we are and the America we will become.

Today, the older white population exercises a great deal of power and influence in both voting and setting the nation’s policy agenda. As Dr. Mark Mather of the Population Reference Bureau explains it, “There’s a fairly large homogenous population 60 and older that may not be sympathetic to the needs of a diverse, youthful population.” This disproportionate power of the homogenous older population can impact policy decisions for social programs and education, areas that impact more heterogeneous younger Americans more directly.

While the racial generation gap gives a great deal of power to the older, white population today, that will change as the percentage of minorities in America continues to grow over the next several decades. The result will be an electorate more attuned to issues that affect minority communities and minority voting blocks with greater power to pursue their own agendas. Even the next generation of white Americans, having been raised in a more heterogeneous environment, will draw from a more diverse perspective in making voting and policy decisions.

I think the generational shift that is on its way will help the country domestically and abroad. At home, greater attention should be paid to the social problems that disproportionately impact minorities – lack of health insurance, disparities in health care, gaps in educational achievement, crime. These are problems that chip away at the nation’s foundation and must be seriously addressed. With the increase in influence from the minority electorate, these problems should receive the attention they deserve.

Meanwhile, in the shrinking global community, this wealth of diversity will be an advantage for the United States. As is more apparent by the day, the ability for the United States to impact global affairs without international support is limited. The shifting demographics within American borders will only better prepare the nation to consider the perspectives of nations beyond those borders. A more humble and sensitive foreign policy, supported by a strong military, will better allow the United States to achieve the goals of security and economic growth.

Since its birth, the United States has successfully incorporated and gained strength from many different ethnic groups. As the next generation of Americans, the most ethnically diverse in history, rises in influence, it will add a new chapter to this history.

Moving Forward in Memphis

(NOTE: This article appeared as part of a compilation of comments from the Commercial Appeal's "citizen members" of the editorial board on May 13, 2007)

The law of inertia tells us that things tend to move in the direction they are going unless they are acted upon by an outside force. For years, Memphis politics have seemed to move in ways where the interests of individual politicians have taken higher priority than delivering effective governance to Memphians. Not all of our leaders are guilty of this, but enough are to have spawned a community often skeptical of its own leaders. This spring, however, it feels like the force that could alter this status quo may be arriving. That force is accountability.

Whether in the courtroom, through the media, or at the ballot box, Mid-South leaders are beginning to be held accountable by a public that is demanding an end to “politics as usual.” John Ford’s conviction and the weakening of the Ford grip are part of this larger shift. As Memphians become more engaged and willing to assert their democratic power, politicians will be left to rely on the strength of their records – as opposed to the strength of their political organization – to deliver votes.

This moment of change offers an opportunity to reshape Memphis politics. My hope is that a more engaged community will give Memphians with new and diverse perspectives opportunities to serve the greater community and to offer innovative solutions to the problems we confront. In order for the Mid-South to reach its potential, our government and its leaders must be willing and able to provide a measure of stability through thoughtful policies that keep the entire community in mind. If voters demand this from public servants, I do not doubt that there are leaders in this town who can deliver.

However gradually, accountability is beginning to force a change in Memphis politics. It is time for a new generation of Memphis leaders – and voters – to seize this opportunity to redefine Memphis politics, and with it, Memphis itself.

Pulling Together for Equal Education

(NOTE: This article appeared in the Commercial Appeal on May 6, 2007)

In a New York town best known for hosting the Sing Sing state prison, school leaders have made it their mission to eradicate the achievement gap that separates white and black students. Since 2005, the school district in Ossining, New York, a small suburban district with approximately 4,000 students, has initiated a variety of programs specifically targeting black males, a group whose grades and test scores consistently lagged behind those of other students.

The Ossining programs read like a dream list of ways to raise the achievement of at-risk students. The voluntary programs begin in kindergarten and continue through high school graduation. High school students may receive one-on-one guidance from black mentor teachers, while elementary school students' progress can be tracked by a team of teachers. Parents of students as young as sixth grade are able to attend college planning workshops that explain the practical obstacles college can present to families while at the same time putting college on a student's radar at an early age. These multipronged efforts seek to deliver academic support, shift the norm of what is achievable for black male students and build a community environment that helps push students to succeed.

Although in a district vastly different from the Memphis City Schools, the Ossining programs are exactly the type of comprehensive efforts that would complement the Memphis City Schools' mission of "Every Child. Every Day. College Bound." That campaign seeks to elevate the expectations and outcomes of all Memphis City Schools students, 85 percent of whom are black, and Supt. Carol Johnson is committed to ensuring that "College Bound" is more than just a slogan.

In Ossining, although it is too early to see any impact on test scores, school officials report that behavioral incidents are down and enrollment in college-level courses is up for black students. With such trends, it seems that those who champion equal educational opportunities would hail Ossining's efforts as a welcomed attempt to tackle the black-white achievement gap. Although some have offered such praise, other would-be allies are highly critical of the district's singling out black male students for special attention.

"I think this is a form of racial profiling in the public school system," Michael Meyers, executive director of the New York Civil Rights Coalition, a group that plans to file a formal complaint regarding Ossining with the state education department, said in a New York Times article last month. Kati Haycock, president of Education Trust, a group that advocates for disadvantaged children, told the Times, "You do have to worry whether you're creating a stereotype that is as damaging as the one you're trying to replace."

The goal of these civil rights advocates is presumably the same as the goal professed by the Ossining school district: to educate all black males to the highest of high standards. Yet these critics would halt extra attention being provided on a voluntary basis for fear of creating new stereotypes, or as Meyers put it in the Times article, "making (students) feel inferior or different simply because of their race and gender." Although there is a fundamental difference between assigning students to inferior schools based on their race and offering extra attention to students in a racial group that lags statistically in educational outcomes, there is validity to the critics' concern. In a perfect world, black students would not need any more attention to reach the same outcomes as other students. In fact, even in our own imperfect world, many black students excel without such attention. However, the reality -- especially in our own community -- is that many black students, particularly black males, are not achieving equal educational outcomes. For these students, the system is not working and it is incumbent on those who desire to solve this problem to offer creative solutions that work.

There are already enough challenges to elevating the educational opportunities of at-risk students, regardless of race. It is discouraging when those who seem to share the goal of eradicating the racial achievement gap construct additional roadblocks in the way of that goal. Students will be better served when racial politics, such as those surfacing in Ossining, do not derail programs that effectively tackle what some have dubbed the civil rights issue of our generation.

Build Up the Walls

As a boy, I spent many afternoons and evenings shooting baskets at the end of my driveway. Invariably, these shootarounds would at some point result in the ball bouncing over my neighbor’s fence (a result I attribute more to the layout of my driveway than to the waywardness of my jumpshot). To continue my game, I would sometimes alert the neighbors and ask them to retrieve my ball. More often, I would climb over the fence, but most often, I would kick a board out and climb through the fence. Now, as a homeowner (and fence owner), I can see that this practice of kicking out the fence was a nuisance for my neighbors who, on more than one occasion, had the demolished boards replaced.

My family’s relationship with these neighbors was cool at best. At no point did they confront me about the missing boards or discuss with my family ways that we could work together to salvage their fence and my basketball game. Ultimately, and without notice, my neighbors constructed a taller fence with wiring specifically designed to keep my ball on my driveway. This was their final attempt to solve the problem – let’s learn to live together by allowing ourselves to live apart.

Throughout history, fences have been used to solve problems in the most rudimentary of ways – by placing physical barriers that could limit interactions with the world beyond the walls. The most famous wall, the Great Wall of China, prevented raiders from escaping with much more than their own lives. In modern times, the Berlin Wall prevented East Germans from escaping the oppressive regime by which they were governed. In Berlin, walls were necessary because East German ideas were losers – if you can’t convince others that your view is correct, simply prevent them from leaving.

The reason walls are on my mind these days is that the United States seems to have gotten itself into the international wall-building business. On the American border with Mexico and in the violence-ridden streets of Baghdad, we are resorting to the wall, the most rudimentary of problem solving tools.

Last month, having exhausted quite a few military strategies to quell sectarian violence in Baghdad, American soldiers began construction of a 12-foot-high, 3-mile-long wall separating a historic Sunni enclave from Shiite neighborhoods. I am not qualified to say whether the wall is a good idea for policing a civil war (and the plans are reportedly on hold after complaints from the Iraqi prime minister), but it is certainly telling that four years after declaring “Mission Accomplished,” so heavy-handed a strategy is necessary.

Meanwhile, in our own country, rather than coming up with a real strategy to address the issue of immigration that led to the mass immigrant demonstrations of last spring, the best the government has come up with is a massive wall along the border with Mexico. Again, I cannot comment on the law enforcement wisdom of erecting this wall, but I am saddened that this is the best policy we can imagine for dealing with immigration.

Walls may be useful for law enforcement, but they are generally a symptom of a failure (or perhaps a lack of attempt) of other methods of solving problems. When my neighbors built a higher fence to contain my errant jumpers, they were taking unilateral action to protect their own property without regard for confronting the root of the problem, namely, me. Rather than doing the delicate work of asking me to refrain from destroying their fence, they simply raised their fence and figured the problem would go away.

Similarly, building walls as public policy foregoes the difficult work of immigration reform or inter-religious mediation, replacing it with a blunt and impenetrable impediment. Typically, complex public problems require thoughtfulness, vision, and compromise that can lead to complex solutions. Unfortunately, our country, like my neighbors, seems to be out of the thoughtfulness business and into the wall-building business.

Two Cents About VT

In the wake of the Virginia Tech tragedy, I have been stirred by a few thoughts. I hesitated to write something because I was not directly affected by this event and thought adding my own voice to the incessant media noise that descended on Blacksburg would be of little value. But I’ve decided to go ahead and write because I do find myself thinking and feeling deeply about the tragedy and its aftermath (and I humblyrealize that my voice is only reaching my friends and family anyway). So here are my two cents….

Cent One
As a person who believes in the fundamental goodness of human beings and is constantly looking for external factors to explain how some people go sour, incidents like Virginia Tech remind me that there really are people in this world who will stop at nothing to do evil things. And they may be on a college campus near me or in my neighborhood or walking past me on the street. What makes Virginia Tech so devastating is that this did not occur in Baghdad (where, tragically, deaths of innocents of this magnitude are occurring every day) or Sudan (where, unbelievably, deaths of innocents of this magnitude have been occurring for decades), but on a college campus in classrooms not dissimilar from those many of us were once in. It is this familiarity with environment that has caused the Virginia Tech tragedy to have such an impact on me and drive home the fundamental fact that evil does exist in this world.

I hate writing the words “evil does exist” because it is such a simple explanation for this incident. It is almost lazy to dismiss the killer as one bad apple and not focus on the societal forces that worked to put him in possession of a gun, a sense of loneliness, and a desire to do harm to himself and others. That is my typical response – if I am robbed, it is not the individual I initially condemn, but the society that has kept him in poverty and convinced him of the need to obtain money or material things by any means necessary. Of course, ultimately, it is the robber who should primarily be held responsible. There are millions of others who are impoverished and need things but do not rob me. Despite the societal influences that impact all of our lives, it is ultimately the robber who has made the decision to do something wrong.

No matter what was going on in his life or what flaws there were in campus security or state gun control laws, it was ultimately the act of one bad apple that killed so many people. The work that is to be done now is to fix the things we can fix – security protocol, gun control, background checks – but with the sad understanding that external factors can’t always stop some human beings from going sour and impacting other lives in the process. I weep for the victims and their families’ shattered lives, but I am equally saddened to be reminded yet again that there are people who just are not fundamentally good and they can devastate society so easily.

Cent Two
Beyond the sadness I feel after this tragedy, the next most prominent emotion I’ve found has been revulsion at the media. Every time a crisis/incident/tragedy like this unfolds, I always find myself being turned off by the circus of media coverage that envelops those involved. In these moments, should victims’ families have to worry about issuing press releases?

Obviously, this is a story the media has to cover. And obviously, viewers/readers should be interested in the causes and details. But as I saw a campus filled with news trucks and microphones in the background of the coverage from every single channel, it struck me that the media had become vultures and I began to question the motivations for their being there. Were they there to cover the story and bring the rest of the country the news? Or were they there out of their own self-interest, searching for the most sensational angle to drive up their ratings? The NBC News release of the killer’s manifesto is the most glaring example of this, but the overall tone of the reporting was only a slight step up from the coverage that passes for news on my local evening news.

The truth is somewhere in the middle – there are some journalists who are there for the noble purpose of the profession, seeking and reporting facts, giving their audience a new perspective on a difficult event, and there are others who are there because they are supposed to be there and must be in order to selfishly maintain ratings/readers/viewers. As a pseudo member of the media, I wish we lived in a world where all journalists were in it for the noble cause just as as a pseudo member of the legal world, I wish all lawyers were in it to help people. But that isn't the world we live in, and besides, if I got my wish, neither journalists nor lawyers would ever get paid. I am certainly being too hard on the media because this is an important story that must be covered, but I know how the victims of Hurricane Katrina have been largely forgotten after a month of blanket coverage and I have little doubt that the circus will move on from Blacksburg as well.

Justice Being Served?

In American mythology, the part of Justice is often played by a blindfolded woman weighing competing evidence dispassionately. She is to reach her just conclusions without regard to the way an individual looks or what that individual thinks or which party that individual votes for.

At the Department of Justice, the blindfold has apparently been removed.

The recent firing of eight US Attorneys for what appear to be partisan purposes has led to an outright Washington scandal, complete with hearings and testimony and subpoenas. However, the US Attorney firings were merely a continuation of the practice of politicizing the Department of Justice that began the moment the Bush Administration – and with it, Attorney General John Ashcroft – took office.

DOJ is headed by political appointees, like Ashcroft, who serve at the pleasure of the President. These individuals set larger policies to ensure that the DOJ functions as part of the larger presidential administration but typically do not direct the thousands of cases being pursued by DOJ at any time. That task is left to the roughly 300 career attorneys who serve in DOJ regardless of who is in the White House. Through Republican and Democratic administrations past, there has been a mutual respect, if not always agreement, between the political appointees and the career attorneys.

By many accounts, that respect disappeared when the Bush Administration began shaping its Department of Justice, most significantly in the DOJ’s Civil Rights Division. The mandate of the Civil Rights Division is to enforce the nation’s civil rights laws, whether by suing an employer for a pattern or practice of employment discrimination or enforcing voting rights laws against a state that is disenfranchising minority voters. Through changes in the procedures for hiring new attorneys and shifts in the types of cases it undertakes, the Bush/Ashcroft/Gonzales DOJ has transformed the Civil Rights Division into a partisan tool.

Prior to 2001, job applicants would be hired by career attorneys subject to approval from the political appointees. Under Ashcroft, this practice was abolished in 2003 as career attorneys were removed from the hiring process completely. The results were predictable. According to the Boston Globe, only 42% of the career attorneys hired in the two years after 2003 had civil rights litigation experience, compared to 77% in the two years prior. In addition, of those 42% who had civil rights experience, half had gained it by defending employers against discrimination or arguing against affirmative action policies.

Similarly, the perspective of the career attorneys has been minimized in selecting the cases and positions taken by the Department. Despite career attorneys’ recommendations to the contrary, the DOJ has come out in favor of redistricting efforts in Mississippi and Texas that have benefited Republican candidates and recommended approval of a Georgia voter identification law that the career attorneys concluded would disenfranchise minority voters. The number of enforcement actions being brought for employment and voting discrimination is down, while the number of cases brought on the theory of “viewpoint discrimination” (i.e., cases claiming discrimination on the basis of religious beliefs) is up.

Career attorneys have been resigning in protest of these policy shifts throughout the Bush reign, but are only now gaining an audience in Congress. Last month, a House Judiciary subcommittee held hearings on the Civil Rights Division. At the hearing, Joe Rich, a 37-year veteran and a former chief of the Voting Rights Section in the Civil Rights Division who left in protest in 2005 testified that “the political decision-making process that led to the questionable dismissal of eight United States Attorneys was standard practice in the Civil Rights Division years before these recent revelations.”

In this context, the firing of US Attorneys who were reluctant to pursue a partisan agenda makes perfect sense. This Administration has never made it the goal of the DOJ to pursue justice, but has used the Department as part of a larger effort to create a permanent Republican majority. Only time will tell if it has succeeded in permanently removing the blindfold from DOJ.

Help More Celebrate First Birthdays

NOTE: This column appeared in the April 1 edition of The Commercial Appeal.

Several weeks ago, a dozen babies gathered in our living room to celebrate my daughter's first birthday. It was a joyful afternoon of bubbles and balloons, singing and snacks -- the kinds of things all 1-year-olds should enjoy. Yet I know that in the Mid-South, many infants -- children who could have been my daughter's peers -- never make it to their first birthday.

What makes this sad fact more distressing is that we know what it takes to give children the best opportunity to survive -- proper vitamins and diet for the mother during pregnancy, prenatal health care, regular pediatric visits after birth, and careful attention to the tiny details through which babies send us signals about their health, hunger and happiness. Yet we do not do an adequate job of delivering the necessary information and services to the pregnant women whose children are most at risk.

The tragically high infant mortality rate in and around Memphis has been well documented. In 2005, Memphis had the highest infant mortality rate among the 60 largest American cities, a rate of 14 infant deaths per 1,000 births, twice the national average. In some of the poorest pockets of our community, the infant mortality rates are on par with those of several Third World countries. Statewide, Tennessee ranks 48th and the rates in Hardeman, Shelby, Tipton and Haywood counties are the worst in the state. Last month, this newspaper reported that the infant mortality rate in Mississippi, already the worst in the country, is rising, particularly in the Delta communities along U.S. 61. In the Mid-South, more human beings die each year before their first birthday than from homicides, even though we know the tools necessary to bring infant mortality rates down.

As a result of the notoriety born of such intolerable statistics, local and state leaders have pushed to make reducing infant mortality a top priority. Last spring, Tennessee Gov. Phil Bredesen and Shelby County Mayor A C Wharton convened a workshop aimed at decreasing infant mortality. The Tennessee Department of Health has set a goal of bringing the state infant mortality rate down to the national average by 2010. In addition, local and national organizations with experience in infant health are converging on Memphis. In March, the founder of the Birthing Project, a program that matches pregnant black teenagers with women trained to guide them through pregnancy and a child's first year, was in Memphis meeting with potential volunteers.

These initiatives are a start, but more must be done. Too many women do not see a doctor during their pregnancy until they enter the hospital for labor. They neglect to visit the doctor because they do not have health insurance or because they cannot get time off from work or because they do not know that regular doctor visits during pregnancy drastically reduce the risk of infant mortality.

Among pregnant women in Tennessee who received no prenatal care, the infant mortality rate is astronomical -- 46 infant deaths per 1,000 births. In 2005, infants born to mothers who first received prenatal care in the seventh month of pregnancy or later were twice as likely to die as those born to mothers who received care during the first trimester.

To give our community's most vulnerable the chance to survive their first year, we must remove all barriers to pregnant women receiving prenatal care early and often. This means providing health care coverage to all pregnant women and infants, a goal addressed by Bredesen's CoverKids program, slated to take effect today.

But coverage is only the first step -- all efforts must be made to ensure that covered individuals actually enroll in the new program and that sufficient numbers of doctors and health care facilities serve those in the highest-risk areas.

We know not only that these steps can lower the risk of infant mortality, but also which women need attention the most. In addition to behavioral activities like smoking or drinking while pregnant, increased risk of infant mortality is highly correlated to a pregnant mother's social traits, including poverty and lack of education. Unfortunately, infant mortality breaks along racial lines as well. In Tennessee in 2004, the infant mortality rate for African-American mothers was more than two and a half times higher than that of white mothers.

So we know the mothers whose babies are most at risk for infant mortality and we know what it takes to lower that risk. It is a matter of delivering the proper information and care to the right women at the right time. As a community, we must embrace maternal health and work to ensure that the information and services necessary to give women the best opportunity to give birth to a healthy child reach those women most at risk early in their pregnancies. We will not eliminate the tragedy of infant mortality, but we must do better at protecting our most vulnerable.

Cinderella Nation Revisited

NOTE: This column references last year's NCAA Tournament column, available here.

Can we be a Cinderalla nation without a Cinderella?

That is the question I’m left pondering after a weekend of college basketball without a major upset. Last year, I wrote that the NCAA tournament gives us the most quintessential American tale – the Cinderella story – year after year. With the apparently level playing field in the tournament, any team could wear a glass slipper for a few weeks in March.

The results on the court bore out my theory – a quarter of the teams that won their first round games were double-digit seeds. Two double-digit seeds and five teams seeded worse than 6 survived the first weekend into the Sweet Sixteen. And the George Mason Patriots, an 11 seed from the unheard-of Colonial Athletic Association, knocked off three Goliaths on their way to the most improbable Final Four berth ever.

Last year’s results were so surprising that even as they underscored the first half of my theory – anything can happen – they cast doubt on the second half – but it usually doesn’t. The tournament, like the American dream it mimics, is not as fair as it seems, I wrote. But after George Mason, I began to wonder if maybe the playing field of the tournament was level after all.

Last year’s madness seemed to usher in the postmodern era for college basketball where conference affiliation, star players, and Hall of Fame coaches no longer mattered. Parity was the buzz word and an avalanche of upsets was predicted for this year’s tournament.

In short, the avalanche hasn’t happened. Of the forty-eight games played so far in this year’s tournament, only four qualify as genuine upsets. Only two-double digit seeds got through the first round and both were bounced in the second. Only two of the Sweet Sixteen is seeded 6 or worse. All four #1s, three #2s, and three #3s are still in.

All of which leaves us without a true Cinderella. The lowest seed remaining, #7 UNLV, has a championship banner from 1990. The two teams from so-called mid-major conferences, Butler and Southern Illinois, spent the majority of the season in the top 25 and earned good seeds. Like it or not, teams like Butler, Southern Illinois, and Gonzaga are becoming Goliaths of their own, albeit leaner ones.

Ironically, the Cinderella story from this year’s tournament may be predictability itself. Over the years, the tournament has captured our national attention by being unpredictable. In the wake of George Mason’s bracket-busting run last year, the only thing no one expected this year was exactly what we got – top seed domination. In the context of March Madness, what’s more unpredictable than predictability?

This development should be welcomed by all who love college basketball. We seemed headed to an era where anything really could happen, rendering the label of underdog irrelevant. How much of a fairy tale is it if Cinderella gets the prince every year?

This year’s tournament has restored order to the college basketball universe. At least until next year when it can be turned on its head once again. See you in March 2008.

Leadership Across the Color Line

It has been nearly a century and a half since the peculiar institution that was slavery was outlawed in the United States, yet the legacy of racial issues born by slavery continues to affect modern politics and leadership. Just last week, we learned that the ancestors of a preeminent African American leader (Al Sharpton) were at one point owned by the ancestors of a preeminent segregationist politician (Strom Thurmond), and it turns out that ancestors of Barack Obama’s white mother once owned slaves.

Against the backdrop of these revelations, a bill was recently introduced in Congress seeking an apology on behalf of the United States government for slavery and the Jim Crow segregation that followed it. Although the bill raises all sorts of interesting questions on its own, one of the more noteworthy aspects of it is that it was offered by a white congressman.

Specifically, the bill was introduced by Steve Cohen, a freshman representative and the first white congressman from majority-black Memphis in three decades. Cohen arrived in Washington only after defeating more than a half dozen African American candidates in a primary where some of his opponents suggested that he was unqualified to represent Memphis because of his race. The consensus is that Cohen is likely to face an African American candidate in 2008 with more unified support, giving him two years to prove to any suspicious black constituents that he can vigorously represent this district despite the color of his skin.

Ultimately, those two years will provide Cohen’s answer to the question of how a white person can effectively represent a majority-black district. This question, however, is really part of a larger question about leadership in America. Do Americans want a leader who simply looks like them or one who is able to understand their concerns regardless of what that leader looks like? Will Americans tolerate a leader who is not personally appealing if that leader proves capable of delivering good results? There is no question that Cohen’s record as a state senator has proven him to be strong on core African American issues – perhaps even stronger than his African American predecessor, Harold Ford, Jr. However, there is also no question that Cohen’s tactics and demeanor – and for some, his race – do not always endear him to the African American community. Cohen believes that if he can prove that he both understands African American concerns and work diligently to address them, his race ought not matter. But, fairly or not, Cohen’s race does matter.

Effective leadership requires a combination of many abilities – the ability to connect with constituents, the ability to empathize with those constituents’ concerns, and the ability to work toward effective solutions to those concerns. Even today, each of these abilities is significantly impacted by what a leader looks like. In his first months, Cohen needs to overcome hurdles an African American representative would not have encountered by working to make connections with the majority of his constituents who do not look like him. The apology measure, along with a well-attended community event featuring African American congressman John Conyers, are clearly efforts by Cohen to prove himself capable of understanding and addressing African American concerns.

In our increasingly diverse nation, it will be impossible to find leaders who share a perspective will all of their constituents. What we should seek from those who represent us is a willingness to listen to our concerns and a passion for finding solutions to them. Whether that leader’s ancestors were slaves or slaveholders ought to matter less than how that leader confronts today’s problems, many of which find their origins in the era of slavery. Cohen’s apology bill will not solve any of those problems, but it is a first step toward convincing his constituents that he is up to the task of representing them effectively and it is a step Cohen has to take.

Disconnected in DC

It is a long way from Washington, D.C., to Baghdad. Over 6200 miles to be exact. But watching the events of the last week, it would be possible to think that the two were ever further apart. On different planets, perhaps.

On Friday, the House of Representatives, after over 45 hours of debate spread over 5 days, passed a measure formally disapproving of President Bush’s plan to send an additional 20,000 combat troops to Iraq. Over the course of the debate, 392 House members took their 5 minutes to passionately defend their positions in front of a largely empty chamber, speaking only into the air that is the C-SPAN viewership. The bill that passed, however, was really only a “nonbinding resolution.” From a policy perspective, this nonbinding resolution has exactly zero effect on the future direction of Iraq other than lobbing some harsh words at the Administration. So much for sticks and stones, eh?

The House’s expression of public outrage may not have been much, but it still bested the performance of the Senate. In a startling display of Congressional impotence, the Senate failed to even get to a debate on the resolution passed by the House thanks to procedural rules. This failure means that, for now, Senators – many of whom are running for president – will not engage in debate, much less put themselves on record, regarding a crucial issue in our nation’s life.

Meanwhile, President Bush seems content to run out the clock on his term so that he will never have to admit a mistake and can pass his fiasco on to the next president.

This entire scene unfolds amid a backdrop of increasing American casualties and downed helicopters and bombs that kill scores of Iraqis even as security forces crack down. The contrast between real lives being lost and symbolic resolutions being debated – or not even debated in the case of the Senate – vividly drives home the disconnect between the powers that be in Washington and the events of the real world. It is no wonder that both congressional and presidential approval ratings are at historic lows – neither Congress nor the President is responding effectively to an immense national problem.

The sad fact is that the decision makers in Washington are not leaders, but politicians. Even as they debate crucial issues, they keep an eye on partisan strategy and the next election. Questions that may be asked when a vote must be cast could be, in this order: Is it good for me? Is it good for my party? Is it good for the country? These are the priorities of politicians. I have no doubt that many start in politics for all the right reasons – to serve the public and improve the country – but years within the Beltway have a tendency to warp perspectives to the point that nonbinding resolutions pass for bold action.

The real power of Congress when it comes to foreign policy – the power of the purse – was explicitly not on the table during last week’s debate and non-debate. Why? Because forcing politicians to take a stand on such a politically-charged issue may put politicians in politically-uncomfortable situations. The result of this reticence, unfortunately, is that American troops and an entire nation of Iraqis are put in truly uncomfortable, even deadly, situations every day.

Life and Death

I heard the news only hours after I left the courtroom following a hearing on whether my client, a death row inmate, could obtain DNA testing to corroborate his story of innocence. Tennessee Governor Phil Bredesen had issued a three-month moratorium on executions in Tennessee. I was at once relieved for my client, whose execution is now pushed back indefinitely, and pleased to see Tennessee join the growing number of states grappling to find the most appropriate way to impose the death penalty.

Although Governor Bredesen’s order offers hope for death penalty opponents, it certainly does not end the practice. In the very second sentence of his press conference announcing the moratorium, Bredesen proclaimed himself “a supporter of the death penalty” even as his executive order called into question the procedures for carrying it out. The executive order charges the Commissioner of Corrections with undertaking a comprehensive review of how the state carries out executions. Specifically, the review is to look at the actual administration of the death sentence – the lethal injection procedures and protocol – to ensure that Tennessee’s practice is consistent with moral and legal norms.

The action in Tennessee is part of what seems to be a quickly-expanding nationwide second look at the death penalty. In 1976, the US Supreme Court ruled that the death penalty was not cruel and unusual punishment, but in the last several years, several states have begun to reconsider whether that is the case. Both Florida and California are undergoing reviews of execution procedures similar to that ordered in Tennessee, but several other states have gone even further. In New York, the state’s highest court ruled the death penalty statute unconstitutional. In New Jersey, a commission recently recommended halting the practice, and the governor of Illinois commuted the sentences of all of that state’s death row inmates in 2003.

The driving force behind much of this review is the deeply felt need to get it right with the death penalty. In an age where DNA and other means have been used to exonerate several death row inmates, it is clear that the possibility of executing innocent individuals is very real. Governor Bredesen’s order is essentially an order to make sure Tennessee is getting it right when it comes to the actual administration of the death sentence.

However, there are numerous opportunities to go wrong before an inmate ever reaches the death chamber. Beginning with the collection of evidence at the crime scene, to the prosecution’s discretion to choose which defendants face the death penalty, to the competence of defense attorneys to confront the prosecution’s evidence, to complicated and often vague jury instructions, through post-trial appeals and into the science behind lethal injections, there are countless opportunities for the human beings involved in death penalty practice to make mistakes. And as humans are wont to do, mistakes are made. These mistakes don’t mean that every death row defendant is innocent. They simply mean that no death row inmate was sentenced without the potential for error.

Are there crimes for which the perpetrator deserves to be put to death? Absolutely. However, the death penalty does not serve either deterrence or economic goals. It may provide some comfort to victims’ families, but even that must be diminished when the death occurs a quarter-century after the crime, as is typical. Just because some crimes and criminals deserve a penalty of death does not mean that we, as a society, should overlook the inevitable flaws in our system to impose it.

Governor Bredesen’s impulse for review is laudable, but the review he has ordered does not go far enough. Rather than only focusing on what occurs in the death chamber, the state would be better served by reevaluating death penalty administration from start to finish. In my mind, there is no way to devise a system, administered by human beings, for taking human lives without creating the potential for grave errors. In these matters of life and death, there is no room for error.

The Audacity of Hype

There is a tendency in this country to over-inflate the importance or impressiveness of everything from movies to the latest diet fads. Thanks to the capitalist need to sell, sell, sell, we are a nation of hype. For the next two weeks, we will endure the – pardon the metaphor – super bowl of hype, as we learn more than we ever needed to know about the teams, players, coaches, fans, owners, trainers, etc. involved in the Super Bowl itself.

Most Super Bowls, and indeed most anything that receives such extreme promotion, cannot live up to the hype. Expectations are set so high that it is nearly impossible to meet them. So when an event or individual delivers to meet towering expectations, it is truly remarkable. Barack Obama is a truly remarkable individual.

If you are paying attention, you know Barack Obama because he is currently riding one of the most extreme waves of hype a politician has ever ridden. He has appeared on Oprah and Monday Night Football. He has a new book (The Audacity of Hope) that is #1 on the New York Times bestseller list, and an old book (Dreams from my Father) that is also doing very well, thank you (#5 for paperback nonfiction). And, oh yeah, last week, Obama took the first steps toward running for president.

I remember the first time I heard of Barack Obama. In the summer of 2004, when Obama was just a law professor and Illinois state senator (I use “just” very respectfully), I read a magazine profile on him and thought to myself, “Wow! This guy, however you pronounce that name, says exactly what I would want a leader to say.” Several weeks later, even though I was taking the bar the next morning, I waited up to watch Obama’s speech to the Democratic National Convention. Honestly, I was expecting to be disappointed – there was no way he could deliver on the expectations I had for him after reading that article. Then I watched Obama deliver the most impressive and finely-presented speech I have ever seen live. Both the substance of what he said and the way in which he said it captured my precise feelings, a mixture of criticism of the present and hope for the future.

Over two years later, the hype that began the moment Obama finished that speech seems to know no bounds, yet Obama continues to deliver. Even as he seems to be everywhere, he has remained humble. Even as he works in a partisan Congress and has entered what will be a bruising campaign, he has remained convincingly positive and collegial. Even as the media compels sound bites over substance, he has remained thoughtful and rational. And even as his own previous performances demand consistently inspiring oration, he has consistently risen to the challenge.

For his own part, Obama has said he is “suspicious of hype.” (Of course, he said this at a press conference in New Hampshire where he was both promoting a book and feeding speculation about his presidential ambitions.) He explains his prolonged 15 minutes of fame as a result of Americans being “interested in being called to be part of something larger than the kind of small, petty, slash and burn politics that we’ve been seeing over the last several years. And to some degree, I think I’m a stand-in for that desire on the part of the country.” Thus, even as he feeds his own hype, Obama reminds himself and us that he is merely the vessel onto which many Americans have projected our hopes.

Barack Obama certainly will not be the most experienced candidate running for president. He is unlikely to be the best funded. At this point, it remains too early to tell if he is the best person for the job. But, more than any candidate I can remember, Obama has an opportunity to shift the way we do business in this country simply by having the audacity to be himself.

In the Words of Dr. King

Last year, I celebrated Martin Luther King Day by sharing words from Dr. King’s Letter from a Birmingham Jail. I still believe that no one captures the spirit of this day better than Dr. King himself. This year, I’ve chosen passages from a speech Dr. King delivered to a church conference in Nashville on December 27, 1962, as the country was still grappling with the 1954 Brown v. Board of Education decision. Since I’ve been writing on desegregation and integration a bit recently, I thought this speech, “The Ethical Demands for Integration” was appropriate. (for last year’s passages, click here)

On the difference between desegregation and integration…
“We must always be aware of the fact that our ultimate goal is integration, and that desegregation is only a first step on the road to the good society……Desegregation is eliminative and negative, for it simply removes legal and social prohibitions. Integration is creative, and is therefore more profound and far-reaching than desegregation. Integration is the positive acceptance of desegregation and the welcomed participation of Negroes in the total range of human activities. Integration is genuine intergroup, interpersonal doing. Desegregation then, rightly, is only a short-range goal. Integration is the ultimate goal of our national community. Thus, as American pursues the important task of respecting the “letter of the law,” i.e., compliance with desegregation decisions, she must be equally concerned with the “spirit of the law,” i.e., commitment to the democratic dream of integration.”

On the danger of desegregation without integration…
“We do not have to look very far to see the pernicious effects of a desegregated society that is not integrated. It leads to ‘physical proximity without spiritual affinity.’ It gives us a society where men are physically desegregated and spiritually segregated, where elbows are together and hearts are apart. It gives us special togetherness and spiritual apartness. It leaves us with a stagnant equality of sameness rather than a constructive equality of oneness.”

On the lack of freedom in a segregated society…
“A second ethical demand of integration is a recognition of the fact that a denial of freedom to an individual is a denial of life itself…The absence of freedom is the imposition of restraint on my deliberations as to what I shall do, where I shall live, how much I shall earn, the kind of tasks I shall pursue. I am robbed of the basic quality of man-ness. When I cannot choose what I shall do or where I shall live or how I shall survive, it means in fact that someone or some system has already made these a priori decisions for me, and I am reduced to an animal. I do not live; I merely exist…I cannot adequately assume responsibility as a person because I have been made a party to a decision in which I played no part in making.”

On the failure of American leaders to fully embrace the spirit of the Brown decision…
“It is sad that the moral dimension of integration has not been sounded by the leaders of government and the nation. They staunchly supported the principle of the Court’s decision but their rationale fell short of being prophetic. They sounded the note that has become the verse, chorus and refrain of the so-called calm and reasonable moderates – we must obey the law! The temper of acceptance might be far difference if only our leaders would say publicly to the nation – we must obey the mandate of the Court because it is right!”

On the difference between enforceable obligations, such as desegregation, and unenforceable obligations, such as integration…
“[U]nenforceable obligations are beyond the reach of the laws of society. They concern inner attitudes, genuine person-to-person relations, and expressions of compassion which law books cannot regulate and jails cannot rectify. Such obligations are met by one’s commitment to an inner law, written on the heart. Man-made laws assure justice, but a higher law produces love. No code of conduct ever compelled a father to love his children or a husband to show affection to his wife. The law court may force him to provide bread for the family, but it cannot make him provide the bread of love. A good father is obedient to the unenforceable.”

On the limited, but important role the law can play in achieving integration…
“Morality cannot be legislated, but behavior can be regulated. Judicial decrees may not change the heart, but they can restrain the heartless. The law cannot make an employer love an employee, but it can prevent him from refusing to hire me because of the color of my skin. The habits, if not the hearts of people, have been and are being altered everyday by legislative acts, judicial decisions and executive orders. Let us not be misled by those who argue that segregation cannot be ended by the force of law. But acknowledging this, we must admit that the ultimate solution to the race problem lies in the willingness of men to obey the unenforceable…A vigorous enforcement of civil rights laws will bring an end to segregated public facilities which are barriers to a truly desegregated society, but it cannot bring an end to fears, prejudice, pride, and irrationality, which are the barriers to a truly integrated society…True integration will be achieved by true neighbors who are willingly obedient to unenforceable obligations.”

Modest Hopes for the New Congress

The political world is abuzz that the Democratic takeover of Congress signals the coming of a significant shift in Washington. Although I’d like to be hopeful, I recognize the many barriers to entrenched politicians acting too quickly or boldly. Still, I have a few modest hopes for the Democratic-led 110th Congress.

Perhaps the least tangible thing I’d like to see is a shift in the way business is done in Washington. I’d like to see a city where the main business is governing rather than merely politics. This means less focus on winning elections and more on seeking workable and moderate solutions to the country’s problems.

- As far as specific policies go, I’d like to see a shift in the government’s apparent priorities toward helping those who need help rather than protecting those who do not. This means a commitment to lifting the less fortunate to a more stable place. In the six years of Republican-monopoly government, increases in wages have not kept pace (not even close, really) with increased productivity, rendering moot the maxim that harder work can lift an individual or family. Meanwhile, a combination of tax cuts and salary increases has put the wealthiest even further into the economic stratosphere. I don’t really have a problem with some people being obscenely rich. What I have a problem with is some people getting obscenely rich thanks in part to government policies while others get stuck in a cycle of debt or poverty while the government does little to help. On this issue, I’ll be looking for a push on the minimum wage and a tax program that allows the government to provide effective programs to those who need help.

- Health care: Why are 47 million Americans – almost all of whom are the least equipped to cover medical costs – left to fend for themselves when it comes to health care? Although universal coverage could be something I would support, I recognize that such a drastic change isn’t likely in the next two years. Instead, I’d modestly like to see steps toward increased coverage, beginning with universal coverage for the most vulnerable – children.

- Education: This year, Congress will have the opportunity to re-authorize the No Child Left Behind Act, President Bush’s signature education law. It has become somewhat fashionable to bash this law, but there are many good provisions within it and the law’s overall spirit – accountability for educational outcomes – is in the right place. I hope the Democrats on Capitol Hill will recognize the valuable parts of this law, such as measuring schools’ performance based on how each individual group (black, white, Hispanic, etc.) does, while adjusting the bad ones. This issue provides the greatest opportunity for bipartisan work toward a national goal. Both sides must seize it.

- Iraq: Even if continued chaos in Iraq may be good for Democrats, it is not good for the country. I hope the Democrats in Congress can find an appropriate balance between holding the Administration accountable for its mistakes and working with the Administration toward a resolution. Democrats must resist any temptation to exploit the current quagmire for political gain and engage in the type of intense problem solving Iraq requires. This means not dismissing outright Administration proposals simply because the Administration has made mistakes in the past, but also putting the Administration’s feet to the fire to come up with credible answers. I don’t think harping on the past few years’ errors (and there have been plenty to harp on) will be particularly useful. Rather, I’d like to see the Democrats use their newfound oversight and subpoena power to ensure that proposals for the future are well thought out, realistic, and effective.

The unifying theme of my modest hopes for this Congress is one of leadership for the nation rather than loyalty to a party. Unfortunately, such a strategy requires a willing partner from the other side of the aisle. If the Administration or congressional Republicans are unwilling to budge from their current agenda, it will be left to Democrats to assert their congressional power in a more partisan way. If that happens – and it is entirely possible, perhaps even likely – than it is unlikely any of my hopes for this new Congress will be realized.