Supreme Court Notebook - Snyder v. Louisiana

In 1879, the Supreme Court heard a case regarding the murder trial of a former slave. The jury for that trial was, predictably and by law, made up entirely of white men. The defendant was convicted and sentenced to death. The Supreme Court was charged with interpreting the constitutional amendments adopted in the wake of the Civil War to determine whether American citizens, including emancipated slaves, had a right to a trial with a jury untainted by racial discrimination.

Justice William Strong answered with a rhetorical question: “How can it be maintained that compelling a colored man to submit to a trial for his life by a jury drawn from a panel from which the State has expressly excluded every man of his race, because of color alone, however well qualified in other respects, is not a denial to him of equal protection?”

On the grounds that the state had impermissibly excluded black citizens from serving on juries, the Court vacated the defendant’s conviction and remanded the case.

Fast forward nearly 130 years from that step forward for civil rights – a time period that has included many steps forward in American race relations. Last week, the Supreme Court offered up evidence that steps forward in American race relations are small and often followed by steps back. See if this sounds familiar.

In 2008, the Supreme Court heard a case regarding the murder trial of an AfricanAmerican. The jury for that trial – in Louisiana, a state that is more than 30% African American – did not include any African Americans, the prosecutor having eliminated through peremptory challenge all African Americans in the final jury pool. The defendant was convicted and sentenced to death. The Supreme Court was charged with determining whether the prosecutor’s conduct showed impermissible discriminatory intent.

Obviously, the two cases are different – one is a challenge to a deliberately discriminatory state law, the other a challenge to an arguably discriminatory state prosecutor – but there were sufficient echoes in the contemporary case to give even today’s conservative Supreme Court pause.

Writing for a 7-2 majority, Justice Samuel Alito described the prosecutor’s allegedly non-racial reasons for dismissing one of the potential African American jurors as “suspicious.” The prosecutor’s non-racial explanation for the dismissal of that juror, a college student concerned about missing too much school, was that he looked nervous and might be eager to end the deliberations quickly by pushing for the defendant’s acquittal or conviction for a lesser crime so that he could back to school. To ease the prosecutor’s – and the juror’s – concern, the trial court contacted the juror’s dean who assured them that if the student were away only a week – as anticipated by the prosecutor himself – then jury service would not be a problem. The prosecutor was unconvinced and struck the juror.

What made this conduct “suspicious” to Justice Alito was that the prosecutor did not show similar concern for potential white jurors who likewise expressed the desire to avoid prolonged absence from employment or other responsibilities. The prosecutor’s “pretextual explanation naturally gives rise to an inference of discriminatory intent,” Alito wrote, concluding that the trial court committed a clear error in allowing the student to be dismissed.

Comparing these two cases, there are signs both of the significant progress that has been made on the race front and of the often subtle ways the race problem continues to manifest itself today. No longer are there state laws that exclude entire classes of citizens from the full benefits of citizenship, yet there remain juries without black members that convict black defendants. No longer must the Supreme Court deem obviously discriminatory conduct to be against the Constitution, yet the Court continues to confront cases of less blatant, though no less pernicious, discrimination.

In 2008, no less so than in 1879, courts and citizens alike continue the project of, as Justice Strong wrote in the 19^th century, “securing to a race recently emancipated, a race that through many generations had been held in slavery, all the civil rights that the superior race enjoy.”

Don't take my word for it - read the cases yourself.....

Strauder v. West Virginia – 100 U.S. 303 (1879)

Snyder v. Louisiana – 552 U.S. ___ (2008)

In the Words of Dr. King

Although commemorations can be wonderful, there is no better way in my mind to celebrate the life and teachings of Dr. Martin Luther King, Jr. than to look back at the words of Dr. King, himself. This year, on the 40^th anniversary of the sanitation worker strike that led to Dr. King’s fatal visit to Memphis, I’ve selected passages from Dr. King’s final speech, delivered in Memphis on April 3, 1968, the night before his death. The speech was entirely extemporaneous and came while a thunderstorm raged outside. Many people know of the prophetic conclusion to this speech, but the entire speech is valuable. Dr. King invokes the concept of “dangerous unselfishness,” in which people will put the plight of others above their own, taking action rather than being “compassionate by proxy.” Here are some of the portions of the speech I found important. I encourage all of you to spend a few minutes finding your own favorite Dr. King passages (a couple of sites with MLK speeches are here and here).

“Something is happening in our world. The masses of people are rising up. And wherever they are assembled today, whether they are in Johannesburg, South Africa; Nairobi, Kenya; Accra, Ghana; New York City; Atlanta, Georgia; Jackson, Mississippi; or Memphis, Tennessee – the cry is always the same – ‘We want to be free...We’ve got to give ourselves to this struggle until the end. Nothing would be more tragic than to stop at this point, in Memphis. We’ve got to see it through. And when we have our march, you need to be there. Be concerned about your brother. You may not be on strike. But either we go up together, or we go down together.”

On the choice each of us faces when we find injustice...
“Let us develop a kind of dangerous unselfishness…[Jesus] talked about a certain man, who fell among thieves. You remember that a Levite and a priest passed by on the other side. They didn’t stop to help him. And finally a man of another race came by. He got down from his beast, decided not to be compassionate by proxy. But with him, administered first aid, and helped the man in need. Jesus ended up saying this was the good man, this was the great man, because he had the capacity to project “I” into the “thou” and to be concerned about his brother.
We use our imagination a great deal to try to determine why the priest and the Levite didn’t stop. At times we say they were busy going to church meetings…and they had to get on down to Jerusalem so they wouldn’t be late for their meeting….But I’m going to tell you what my imagination tells me. It’s possible these men were afraid. You see, the Jericho road is a dangerous road…It’s a winding, meandering road. It’s really conducive for ambushing…And you know, it’s possible that the priest and the Levite looked over that man on the ground and wondered if the robbers were still around. Or it’s possible that they felt that the man on the ground was merely faking. And he was acting like he had been robbed and hurt, in order to seize them over there, lure them there for quick and easy seizure. And so the first question that the Levite asked was, “If I stop to help this man, what will happen to me?” But then the Good Samaritan came by and he reversed the question: “If I do not help this man, what will happen to him?”
That’s the question before you tonight. Not, “If I stop to help the sanitation workers, what will happen to all of the hours that I usually spend in my office every day and every week?” The question is not, “If I stop to help this man in need, what will happen to me?”
“If I do not stop to help the sanitation workers, what will happen to them?” That’s the question.”

The prophetic conclusion...
"Well, I don’t know what will happen now. We’ve got some difficult days ahead. But it doesn’t matter with me now. Because I’ve been to the mountaintop. And I don’t mind. Like anybody, I would like to live a long life. Longevity has its place. But I’m not concerned about that now. I just want to do Gd’s will. And He’s allowed me to go up to the mountain. And I’ve looked over. And I’ve seen the promised land. I my not get there with you. But I want you to know tonight, that we, as a people will get to the promised land. And I’m happy tonight. I’m not worried about anything. I’m not fearing any man. Mine eyes have seen the glory of the coming of the Lord.”

Previous MLK Day posts: 2006 and 2007.

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?

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.

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.

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.

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.”

New Year, Old News

There are only so many different ways that you can write: Genocide is happening!!! We must do something!!!

In contrast, there are an endless number of ways to put off doing something. If you are a country – let’s say the most powerful country in the world – you might be distracted while your resources are monopolized by other wars or you might find it inconvenient to confront an emerging global rival (China) who effectively nips all diplomatic efforts in the bud.

If you are the president of that most powerful country, you might be unwilling to spend any amount of your dwindling political capital on engaging in a crisis only a small, if noisy, constituency would recognize – especially when that noisy constituency would then simply push for you to do more.

Most of us are not a powerful country or its president, but we are capable of coming up with plenty of wonderful excuses of our own. “I don’t have time” is a favorite. “I don’t really know what’s going on” works just as well. There is that most tempting “There are lots of other problems closer to home – crime, poverty, etc. – that more directly impact my life.”

But perhaps most usefully, there is “I know what’s going on and I’m not happy about it, but what difference can I really make?” It is this excuse, the excuse of paralysis due to the magnitude of the problem that explains why a country filled with people who are sickened by genocide cannot muster the will to effectively stop one as it unfolds.

If you have read my column before, you know about Darfur. Here is what is going on there now – seven months after a “peace agreement” was signed by many of the parties involved. Jan Egeland, the recently-resigned UN humanitarian chief was expelled from Sudan and has described the expansion of the conflict and humanitarian suffering into neighboring Chad and Central African Republic as a “free fall.” Meanwhile, as fighting has reintensified, humanitarian operations are being scaled back and the UN has pulled many workers out of the region. On the peacekeeping front, the UN has approved the deployment of a peacekeeping force, but that deployment has been held up indefinitely due to an unwillingness on the part of the Sudanese government to accept them. In this bizarro world, it appears that the perpetrators of genocide get to decide for themselves when they will be confronted.

As this African tragedy drags on into a fresh new year, it is time to dust the confetti off our shoulders and re-deliver an important message to anyone who can hear: Genocide is happening!! We must do something!! The message is not new, but it is as critical as ever to deliver it again and again as global leaders wait for Darfur to slip back off the radar.

Today, you can contact members of the spanking new Congress and tell them to put Darfur high on the agenda by pushing for a NATO-enforced no-fly zone over Sudan. (you can check how your representatives score on Darfur by visiting http://www.darfurscores.org/) You can contact local and national media to tell them it is as much their responsibility to keep the public informed about unfolding genocide as it is to sensationalize the information that passes for news on many stations. You can contact your friends, keep them informed, and encourage them to contact their own representatives. You can sign up to receive updates from anti-genocide advocacy groups, like www.savedarfur.org and www.genocideintervention.net, to help them build a larger lobbying constituency.

These actions may seem feeble and insignificant in the face of the depths of suffering in Darfur, but they are the small acts upon which bigger acts must be built. No single call will end the genocide. Even a million calls may not press our government to act. But each call builds momentum toward action and action must be taken.

After all, Genocide is happening!! We must do something!!

Leaving Brown Behind - Part II

[NOTE: This is a follow up to last week's column]

During the Supreme Court hearing on the voluntary school integration cases heard last Monday, I was struck by a question posed by Justice Antonin Scalia. For the past week, I have grappled with the question and its implication, struggling to figure out how I might have answered it.

Frank Mellen, the attorney representing the Jefferson County (Kentucky) Public Schools, was attempting to make a distinction between the use of race confronted in Brown v. Board of Education in 1954 and the use of race by the JCPS plan aimed at maintaining a racial balance in schools of between 15 and 50 percent African American students. Brown was different, Mr. Mellen argued, because there existed two entirely distinct school systems, one white and one black. “That stigmatized the black children. It sent the message that the white race was dominant and superior and that the black race was inferior.”

At the word “stigmatized,” Justice Scalia piped up. He wondered whether the assumption underlying the JCPS plan was not itself stigmatizing. The JCPS plan, Justice Scalia said, was “based on the notion that a school that is predominantly black or overwhelmingly black cannot be as good as a school that is predominantly white or overwhelmingly white.” The potentially stigmatizing message sent by that assumption, Justice Scalia asserts, is similar to the message in Brown – that the white race is superior and the black race is inferior.

What Justice Scalia’s question exposes is that the JCPS plan to provide a quality education to all of its students is based upon the assumption that quality educational may not be available for students in a mostly-minority school. That assumption, Justice Scalia suggests and I agree, is potentially stigmatizing.

But the assumption Justice Scalia is so concerned about is not really an assumption at all, but a statistically-verified fact. Students in the typical mostly-minority schools do not receive the same quality educational opportunities as students in mostly-white schools or racially-balanced schools. This is measured in terms of teacher experience, teacher qualification, access to honors courses, diversity of curriculum, and many other ways.

So, after a week of wondering what made Justice Scalia wrong, I’ve concluded that he is actually right. Yes, it is stigmatizing to assume that black schools will not be as good as white schools. But, it is also stigmatizing – and far more damaging, in my opinion – to ignore the fact that mostly-minority schools typically are not as good as white schools and then confine black students to those mostly-minority schools.

In an ideal world, plans like that in JCPS would not have to exist to ensure that the most students receive a quality education. But we do not live in an ideal world. In the world we live in, Justice Scalia is likely to vote to strike down the JCPS plan. He will do so knowing that the effect will likely be an increase in the number of minority students attending mostly-minority schools. And he will do so knowing that mostly-minority schools in the United States in 2006 (the real world) do not typically provide equal educational opportunities to their students. In effect, his vote will be to send more minority students to schools providing fewer educational opportunities.

Justice Scalia would probably respond to such a charge that as a Supreme Court justice, it is not his job to consider the consequences of his decisions, but rather to interpret the Constitution. In other words, it is the world that must change, not his interpretation of the Constitution, if this unfortunate result for minority students is to be avoided.

This is precisely what makes Justice Scalia’s interpretation so dangerous. The fictional world for which he interprets law – a colorblind and ideal world – is appealing. It just is not the world in which the effect of this decision will be felt. But though Justice Scalia’s intepretation can wear the clothes of colorblindness and loyalty to the Constitution, it will achieve the exact same real world result as Jim Crow school segregation: separate and unequal schools with minority children being left behind.

Leaving Brown Behind - Part I

Today, the public schools of Jefferson County, Kentucky will take the national stage as the Supreme Court grapples with whether JCPS’s student assignment plan, a plan that takes race into consideration, passes constitutional muster. As an outsider who has studied the unsuccessful path to integration in Memphis, I hope that the Court recognizes the wisdom of taking action, as JCPS has, to achieve the goals set in motion by the Brown v. Board of Education decision more than a half century ago.

The Brown decision in 1954 famously put an end to the practice of “separate but equal” schooling. In addition to declaring state-imposed segregation unconstitutional, the Court recognized the importance of education in preparing the next generation of Americans. “Education,” Chief Justice Earl Warren wrote, “is the very foundation of good citizenship.” The Court recognized not only the necessity of outlawing legally-sanctioned segregation, but also the value of integrated schools in helping students adjust to the multiracial communities beyond the school’s walls.

Many cities, crippled by white flight from inner city school districts, have long since given up on integrated schools. Memphis is one such city. When Memphis was faced with court-ordered desegregation in the 1970s, the community essentially fractured into a black city school system, a white county school system, and a very white private school system. In the three decades since, those divisions have become seemingly permanent. Not only are the students largely separated by race, but, as is the case across the country, schools with the highest concentrations of minority students tend to perform the most poorly.

In Jefferson County, however, the community has embraced the values the Supreme Court identified in Brown. Since 1984, when JCPS began tinkering with its own court-ordered desegregation decree in order to make the schools more attractive to more families, enrollment – but more impressively, white enrollment – stabilized.

When the desegregation decree was lifted in 2000, rather than allowing its schools to resegregate as occurred elsewhere, JCPS enacted the student assignment plan that is the subject of the lawsuit to be heard today. The stated goals of the plan are to provide a competitive and attractive public school system, to maintain community support for JCPS, and to prepare students for life in a democratic and racially diverse society. The courts below found the plan constitutionally acceptable, holding that the JCPS policy of integrated schools is “both important and valid.”

Social science has shown just how important integrated schools can be to communities and, more importantly, to students. Integrated schools have been shown to produce increased levels of tolerance among students of all races. Surveys of Jefferson County students have shown high levels of tolerance – more than 92% of students reported that they were “comfortable” or “very comfortable” working with students from different racial and ethnic backgrounds.

In addition, African American students tend to perform better and attain better educational outcomes coming from integrated schools. These benefits are especially pronounced in systems, such as JCPS, where integration is voluntary and begins at an early age. Indeed, the black-white achievement gap is shrinking in Jefferson County even as it persists elsewhere.

Many other cities, including my home town of Memphis, have proven unable to meet the aspirations of Brown. In contrast, Jefferson County keeps trying. With its student assignment plan and its continued commitment to integration, Jefferson County has sought to create a system that is largely integrated and equal, while other cities have regressed to a state of separate and unequal. The Supreme Court has the opportunity to embrace, as it did fifty years ago, the ideals embodied by the JCPS plan. For the sake of Jefferson County and its students, we should all hope it does.

Protecting Our Most Vulnerable

In the twelve months since last Thanksgiving, I've added one very small (but growing every day) thing to be thankful about. For almost ten months now, I've been the proud dad of a beautiful baby girl. So far, my wife and I have been extremely lucky -- our daughter is a great and easy kid and she has been healthy and happy thus far. It is this that I am most thankful for this year.

But even as lucky as we have been, raising a child is difficult work. For those of you who are parents, I'm not telling you anything you don't already know. For those who are not parents, the difficulty and incredible sense of responsibility of child rearing cannot be fully understood until you are staring down at a tiny, helpless human being and you know that it is now your job to turn her into an independent person. The process is filled with joy, but it requires patience, sacrifice, and careful attention to the details through which babies send us signals about their health, hunger, and happiness.

This week, my thankfulness stretches even deeper as I realize I live in the city with the highest infant mortality rate among the sixty largest American cities. In Memphis, 14 of 1,000 infants die before they reach their first birthday. That's more than double the national average. More human beings die in Memphis as infants than from homicides. In some of the poorest areas of Memphis, the rate is four times the national average. Even though these children live in the most medically-sophisticated country in the world, a child born in these areas has about the same chance of reaching its first birthday as the average child born in several third world countries.

While infant mortality is often viewed as a medical statistic, it is more properly understood as a symptom of deeper social failures. The U.S. has more neonatologists and neonatal intensive care beds per capita than Australia, Canada, and Great Britain, but has a higher infant mortality rate than these countries. The problem is not that we lack the doctors or facilities. Infant mortality risks begin well before a pregnant mother reaches a hospital. They begin the moment a woman becomes pregnant and the U.S. -- Memphis, in particular -- has done a poor job of delivering information and services to the pregnant women whose children are most at risk.

The characteristics most highly correlated with an increased risk of infant mortality are poverty, lack of education, lack of access to health care, and a mother's use of alcohol, tobacco or other drugs while pregnant. Many mothers do not see a doctor during the entire term of their pregnancy until they enter the hospital for labor. They neglect a visit to the doctor because they do not have health insurance or they dont know that regular visits during pregnancy are important or they cannot get time off from their employer or a thousand other reasons. Even if our health care system removes these barriers in theory, many women are still paralyzed by them in reality. This lack of early and regular prenatal care puts infants at a disadvantage even before they enter the world.

As a society, we should be alarmed that in a country where we are capable of achieving medical miracles, so many of our fellow citizens do not have access to the information or health care needed to give their children the best opportunity to survive. Even in the best of circumstances, raising a healthy child is a difficult task. To avoid making it even more difficult, we must do better at getting information to pregnant women that will allow them to have safer pregnancies and births, and we must remove barriers these women feel toward seeing physicians early and often during their pregnancies and during a child's earliest months. We will not reach every pregnant woman and we'll never eliminate the tragedy of infant mortality, but we must do better at protecting our most vulnerable.

This Race Matters

One hundred fifty years ago, the South, including Tennessee, seceded from the United States in order to protect its right to maintain slavery.

Forty years ago, individuals seeking to register African Americans to vote in the South were abused, beaten, and killed.

The South’s racial history is well documented and not something to be proud of, to put it generously. Tomorrow, however, for the first time since Reconstruction, Southerners – in this case, Tennesseeans – have the opportunity to send an African American to the United States Senate. Even if it is a long overdue milestone, the potential election of Harold Ford, Jr., would be historic.

Ford is not a typical African American politician, nor is he a typical Democrat. He has run a center right campaign that has angered many on the left, but has brought him to election day in a winnable race. He has outworked and outperformed his opponent throughout the campaign and would be a dynamic leader for all Tennesseans.

Until recently, Harold Ford’s race would have been considered a major obstacle for his campaign to overcome. This campaign, however, has been less about race than one would have expected in the South. The one exception of course is the now infamous ad produced by the Republican Senatorial Campaign Committee showing a bare-shouldered white playmate mouthing “Harold, call me,” in an allusion to traditional white Southern fears of interracial intimacy. Thought it would be naïve to believe the ad did not intentionally appeal to a racist sentiment, its impact has been largely overstated by a national media keen on making news, particularly news that makes the South look like a bunch of racists. Any Tennessean who would have been swayed to vote against Ford by the ad’s racial allusion would be unlikely to vote for an African American candidate in the first place.

“I’ve never thought about race,” Ford has said. “Don’t believe for one moment just because we’re in the South that we can’t look for what’s in our best interest, and look for the person who will best serve and represent us.” Southerners, Ford seems to be saying, aren’t as backward as you’d like to think.

Whether Tennesseans will elect Ford is a tossup,.but he is the better candidate for all Tennesseans regardless of party affiliation. He is by far the more passionate, energetic, and talented politician of the two candidates. In the dealmaking and publicity-seeking that makes a successful Senator, Ford will excel. Through Bill Frist’s ascendancy to Senate majority leader, Tennesseans have learned the local, on the ground benefits to be gained by having a visible and successful Senator. Where Ford’s energy and passion will make him stand out, his opponent will likely blend right in with the other older white males in the Washington.

For the independent, moderate voter, Harold Ford is an ideal candidate. He is a pragmatic politician who seeks consensus and moderation rather than division and ideology. He is unafraid of reaching across party lines to find sensible solutions, unlike his opponent, who is less likely to vote independent of his party.

Strangely, the loudest criticism of Ford often comes from the left. Even if Ford’s policies are more conservative than some Democrats are comfortable with (and I include myself in this group), he could be part of a larger Democratic Senate takeover that would help push the national agenda. Some of the greatest progressive legislation of the twentieth century was passed with a coalition of northern and western liberals and southern moderates. Ford’s election could help create a modern revival of that coalition.

And for those concerned with making history and reaching long overdue milestones, Harold Ford just might do that too.

What Will Our Children Think

In 1967, interracial marriage was prohibited in sixteen states and polls showed that as many as 72% of the American public opposed legalizing interracial marriage. During that year, the Supreme Court ignored that public sentiment in the case Loving v. Virginia, ruling that under our Constitution, “the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the state.”

We are only one generation removed from that era, but to a child of the 1980s, raised after the opening of society to women and members of different races, the ban on interracial marriage seems almost medieval. I cannot conceive people being denied marriage licenses based upon the color of their chosen mate’s skin and I think the fact that such a ban is mind-boggling to me represents progress.

I wonder what my children will think a generation from now when I have to explain the presence on tomorrow’s ballot of a constitutional amendment banning marriage of homosexuals.

I’m willing to concede that same sex marriage and interracial marriage do not raise precisely the same set of issues. Yet, the opposition to each is remarkably similar and I suspect that just as the opposition to interracial marriage has disappeared as society has become more accepting, so will the current hostility toward same sex relationships eventually subside.

The trial court that initially convicted the interracial couple of violating Virginia’s interracial marriage ban cloaked its decision in religious references, declaring that “but for the interference with [Gd’s] arrangement, there would be no cause for [interracial] marriages.” The sentiment was that interracial marriage was a sin that could create a “mongrel breed of citizens” and would deny Virginia the ability “to preserve the racial integrity of its citizens.” Yet, this visceral opposition has slowly faded away.

Opposition to same sex marriage is similarly based largely on religion as opponents seek to impose religious norms onto civil relationships. What gay individuals seek, however, is not permission from these religions to participate in relationships – after all, they are well aware of those religions that condemn homosexuality. Instead, gay individuals seek a recognition by the government of the same rights and privileges afforded to others living in loving, committed relationships and a recognition by society that they are just as worthy of marriage as any other person.

The ballot initiative here in Tennessee, like others throughout the country, seeks to prevent these relationships from receiving equal recognition by enshrining a gay marriage ban into the state constitution. The effort is not only duplicative – state statutes already ban gay marriage – but is also an attempt to deny one class of citizens the rights and benefits enjoyed by all other citizens based solely on sexual orientation. That, my friends, is discrimination and a tarnishing of our constitution.

However, just as interracial marriage has slowly become acceptable, so to will same sex marriage it seems. According to multiple polls, significant majorities of 18-29 year-olds favor some sort of recognition of equal rights for gay couples. Going even younger, three quarters of high school seniors favor legal recognition of same sex relationships.

With numbers like these, I suspect that my children – or at least my grandchildren – will look back at this era of constitutional amendments to ban same sex marriage as outdated and closed minded, which is exactly what it is.

Collateral Damage in Iraq

Six hundred thousand is a lot of people. There are just under 600,000 people living within the District of Columbia city limits and just over 600,000 people living in the state of Vermont. Six hundred thousand people could fill the Rose Bowl more than six times or Madison Square Garden more than twenty times.

And according to a recently-published study done by the Johns Hopkins Bloomberg School of Public Health, 600,000 also represents the approximate number of Iraqis who have died violent deaths since the American invasion in March 2003.

Six hundred thousand is a lot of people.

The official finding of the study is that over 600,000 more Iraqis have died since the invasion than “would have been expected in a non-conflict situation.” The Johns Hopkins figure, reached by studying the mortality rate of a broad cross-section of the Iraq community rather than relying on reporting from morgues, hospitals, or governments, is significantly higher than previous estimates from the U.S. military, the U.N. and various human rights organizations. The standard of error puts the number anywhere from 426,369 to 793,663.

President Bush, who has avoided talking much about the number of Iraqis dead, has publicly acknowledged that as many as 50,000 Iraqis may have died since the American invasion. When told of the 600,000 figure, the President said of the report that “the methodology is pretty well discredited.”

The same, of course, could be said of the President’s various rationales for beginning the war in the first place. The alleged terrorism connection and the threat of WMDs have been disproved. Even democracy promotion is taking a back seat after Hamas’s electoral victory in the Palestinian territories. The Iraq war is increasingly only justifiable as a humanitarian war – an effort to rid Iraq of the Hussein dictatorship and allow Iraqis to determine their own futures. Even assuming that the 600,000 figure is too high, even one fourth of that number of deaths seems terribly un-humanitarian. One hundred and fifty thousand, after all, is a lot of people.

Even though the root cause of the massive Iraqi chaos and suffering is the continued and destructive presence of elements desperate to spread violence and fear, the loss of Iraqi life is in part an American responsibility. The American failure to adequately plan for the protection of the very civilians its war was ostensibly waged to benefit reveals how low a priority Iraqi life was given in the run-up to the war. The result of that failure is tragic. Whatever the precise number, scores of thousands of human beings are no longer alive as a result of a life-or-death decision made in Washington.

So long as the American calculus discounts or ignores the collateral damage caused by American actions, we will continue to isolate ourselves and sow resentment around the world. It is difficult to believe a government that claims it is engaged in a humanitarian activity when the human toll of that activity is so high.

American credibility is just one more casualty of the Iraq war.

In Defense of Habeas Corpus

You have probably never heard of the Uighur population in northwestern China. Uighurs (pronounced wee-gur) are Muslim-Chinese more closely aligned, ethnically and geographically, to the Afghans and other Muslim communities in Central Asia than to their traditional Chinese countrymen. In the grand scheme of world politics, Uighurs are small-time players, known mostly for being persecuted and systematically transplanted from their resource-rich homes by ethnic Chinese.

In the midst of fighting the war on terror, the United States came across several Uighurs in Afghanistan. By some accounts, the Uighurs were in Afghanistan to train to fight against the Chinese. By others, the Uighurs were seeking a way out of Chinese persecution into a friendlier environment so they could send money back to their families. By no account were these Uighurs involved in Al Qaeda or any anti-American terrorist training. Still, nearly twenty Uighurs ended up in American military custody in Guantanamo Bay, having been sold for ransom by locals to American forces.

American intelligence knew early on that the Uighurs, like many of those initially imprisoned at Guantanamo, were of little or no value in the war on terror. When it came time for prisoners to have their status reviewed, a number of the Uighurs were declared No Longer Enemy Combatant (NLEC) by the military (a more accurate designation probably would have been Never Enemy Combatant in the First Place, but let’s not get hung up on semantics). The Uighurs, however, were never told of this designation of innocence and, instead of being released, remained behind bars at Guantanamo.

Beginning in the summer of 2005, a group of lawyers assumed representation of several of Guantanamo’s Uighurs without knowing any of this history. The first step was to file a writ of habeas corpus in federal court, asking the government to declare the charges against the Uighurs or release them. The government delayed. And delayed. Ultimately, the lawyers discovered that their clients had already been designated NLEC and immediately opened up a relentless campaign for release. The campaign was complicated because the government, to its credit, refused to send the Uighurs back to China for fear that they would be tortured there. Meanwhile, the Uighurs remained in prison as the government refused all requests for temporary or supervised release of these innocent individuals. The search for a country to take the innocent Uighurs finally ended a few months ago and now there is a very small population of Uighurs in Albania.

The Uighurs’ story is one of the importance of habeas corpus. Without lawyers making noise regarding the unjustified imprisonment of these individuals, it is likely that the Uighurs would have remained in prison even longer than the nearly five years they already spent at Guantanamo. Without the power to demand charges be brought, the lawyers would have been handcuffed, unable to force the government to end an indefinite and unjustified detention.

Last week, Congress passed the Military Commissions Act of 2006, a law directly aimed at legalizing many of the actions undertaken by the Bush administration in handling so-called enemy combatants – actions declared unconstitutional earlier this year by the Supreme Court. The law is a mixed bag. Although it does require American personnel to treat detainees in accordance with the Geneva Convention (read: no torture), it does away with many of the traditional procedural safeguards meant to ensure a fair trial and prevent the executive from running amok. One such safeguard that is done away with is the writ of habeas corpus.

Passage of the Military Commissions Act is undoubtedly a victory for the Bush administration – with congressional authority, the President stands on much firmer constitutional ground than he did when these practices were first reviewed by the Supreme Court. The law, in effect, puts executive action in this arena beyond the review of the courts. However, as the experience of the Uighurs at Guantanamo shows, sometimes the executive gets it wrong. Without the courts and the protection of habeas corpus, where is there to turn next time?

Dallaire's New Mission

When Lt. Gen. Romeo Dallaire speaks of Rwanda, his voice quickens. His tone hardens. The room he is in becomes silent as his audience can feel the emotion barely hidden beneath the general’s tough exterior. He poses unanswerable questions about the decisions his soldiers confronted in Rwanda. He spares no party – including himself – in assessing how the world failed to act to stop the Rwandan genocide. On other topics, Dallaire can be charming, even humorous, but on Rwanda, there is only passion.

Underlying Dallaire’s persistent frustration, perhaps even shame, about the inaction of the global community is a belief that, as he puts it, “no human is any more human than any other.” He believes this despite the glaring contradictions in resources committed to confronting crises around the world. He believes it despite his own experience in Rwanda, where the slaughter of 800,000 was deemed unworthy of the risk of casualties from peacekeeping nations.

Dallaire tells of a young boy he encountered on a road in Rwanda amid huts filled with decomposing bodies. Fearful of a trap, Dallaire approached cautiously. Beyond the malnourished body and filthy rags, Dallaire recognized in the boy’s eyes the same thing he had seen in his own four-year-old son’s eyes when he had departed for Rwanda. They were the eyes of a human child. In the boy’s eyes and those of his son, Dallaire recognized a common humanity that sustains his belief that no human life is worth more or less than any other.

Today, Dallaire’s beliefs are being challenged, again in Africa. Although the global community has been more active in Darfur than it was in Rwanda, the results have been modest.

At the end of this month, the African Union force that has been monitoring the situation in Darfur, Sudan, will officially run out of funds and abandon the region. Although no one believes that the African Union force is adequate to fully stop the violence in Darfur, their removal would result in even greater lawlessness and suffering. The United Nations has approved the deployment of a mission in Darfur – a mission far short of the 44,000 peacekeepers Dallaire recommends – but that mission will not deploy without the consent of the Sudanese government. The Sudanese government, of course, has been complicit in the effort to displace or eliminate the African tribes suffering the most in Darfur, and the government has steadfastly refused to accept any non-African troops.

Witnessing the lack of will by the developed world to sustain the attention and pressure necessary to take effective action in Darfur, Dallaire recognizes the same double standard he encountered in Rwanda. Where, he wonders, is the rule that says it is OK to send 63,000 troops to the former Yugoslavia to contain suffering there, but it is completely unreasonable to send 44,000 troops to Darfur? Who makes the decision, he asks bluntly, that it is not worth a single soldier’s life to save thousands of lives just because of where those who will die live or what they look like?

Perhaps Dallaire is being naïve. After all, it is self-interest that drives foreign policy, not some overriding altruistic concern for humanity. Yet, how could Dallaire be naïve after witnessing the most horrific consequences of strictly self-interested foreign policy, the most rapid genocide in human history? To Dallaire, these consequences are morally unacceptable and he has made it his mission to call the world out on its policies.

When Lt. Gen. Romeo Dallaire speaks, people listen. We listen because Dallaire refuses to remain in the comfortable world of pragmatic foreign policy, wading instead into the complex realm of morality. We listen because we all know that on a fundamental level, he is right – no human life is more valuable than any other. But mostly, we listen because although Dallaire has seen the very worst of humanity, he refuses to surrender hope of a peaceful future and offers us tools with which to get there.


Check out my article in the Memphis Commercial Appeal previewing Dallaire's visit.

Facing Horrors of Rwanda Offers Crucial History Lesson

(published in Memphis Commercial Appeal - September 14, 2006)

Twelve years after the Rwandan genocide, Romeo Dallaire is still on a mission, and tonight he will bring that mission to Memphis.

Rather than allowing himself and his traumatic experience as military head of the United Nations mission in Rwanda to fade into history, Dallaire insists on reminding us of the fastest genocide in human history, a three-month period in which 800,000 Rwandans were murdered. By refusing to let go of his horrific memories from Rwanda, Dallaire has embarked on a new mission: to force the global community to confront the reasons for and consequences of inaction in the face of unfolding genocide.

In 1993, Lt. Gen. Dallaire, a Canadian officer, was deployed as head of a multi-national United Nations force charged with enforcing a fragile peace in Rwanda, an obscure African country he could not locate on a map. In early 1994, Dallaire began to understand that rather than working to sustain that peace, some elements within Rwanda were instead plotting the "extermination" of the country's Tutsi population. Dallaire pleaded with his superiors for the authority to act early to impede this genocidal plot, only to be told that such action was beyond the scope of his mandate.

Several months later, as extremists ruthlessly executed the very plot of which Dallaire had been warned, Dallaire was constrained by limited supplies, manpower and authority to effectively confront the perpetrators. Despite the limitations imposed upon him by others, the result, 800,000 murdered Rwandans, weighs heavily on Dallaire's conscience.

After leaving Rwanda, Dallaire attempted to return to a normal life, but how could he return to the world he knew before, knowing that it was the global community who forced him to sit with his hands behind his back as 800,000 human beings were slaughtered in front of him?

The immediate effect upon Dallaire was a severe case of post traumatic stress disorder that ultimately led to a medical discharge from the Canadian military and even a desperate suicide attempt. Fortunately, Dallaire has emerged from this dark period with the energy to face the history of genocide in Rwanda and apply its lessons to crises of today.

When Dallaire speaks, it is not simply to recap the history of the Rwandan genocide, although he certainly has a unique perspective and unflinching willingness to discuss the horrors he witnessed there. Instead, Dallaire tells his stories from Rwanda to expose the flaws in the global response (or lack thereof) to urge his audience to act to address those flaws and prevent their repetition elsewhere, such as in Darfur, Sudan.

In this way, Dallaire is an embodiment of the mission of Facing History and Ourselves, an organization aimed at using events of history as a lens to examine problems confronting students and communities today. Through teacher training, student symposia and community events, such as the visit by Dallaire, Facing History encourages individuals to understand how human behavior and individual choice play a critical role in shaping history.

Facing History has even reached Rwanda itself, having been part of an effort to create a curriculum for teaching Rwandan history despite a moratorium on teaching that history imposed in the aftermath of the genocide. Facing History is now charged with training Rwandan teachers to instruct students on this most sensitive topic in a way that lays a foundation for a future generation that will not have to endure such crimes. Thus far, Facing History has trained an ethnically and geographically diverse group of more than 150 Rwandan teachers, demonstrating its understanding that while the world can learn a great deal from the genocide in Rwanda, it is Rwandans themselves that must most directly confront their own history.

In the case of Rwanda, Romeo Dallaire is at once the history we must face, having played a critical role in the Rwanda narrative, and a powerful, moral voice on how that history applies to today's world.

His continued refusal to fade away serves as a living, breathing testament to what can happen when the world sits idly by in the face of crimes against humanity. This is Dallaire's current mission and the world is fortunate that he remains strong enough to accept it.

Why Katrina Hurts

The past week has brought us countless stories on the state of New Orleans and the Gulf Coast one year after the most devastating natural disaster in American history. That superlative is not only appropriate based on the terrible loss of human life, displacement of entire communities and enormous damage to property, but also because with its blistering winds and unquenchable thirst for destruction, Hurricane Katrina bruised the American psyche in an unprecedented way.

Though certainly Katrina was a monster storm, it was not the first hurricane to bring extensive damage and death to American shores. The names Hugo and Andrew still make citizens in Charleston and Miami tremble. But Katrina and its aftermath cut deeper, affecting not only those along the Gulf Coast, but all Americans. Why does Katrina hurt so badly?

In one week, Hurricane Katrina exploded myths of American ingenuity and craftsmanship and exposed inequalities many of us willfully ignore, forcing us to confront the reality that we, as a country, are not exactly what we think ourselves to be.

Despite overwhelming evidence to the contrary, Americans imagine our country to be one of boundless opportunity where everyone has the chance to hit the lottery. The gap between wealthy and poor, however, continues to expand and threatens to create a permanently impoverished and undereducated class of citizens with a very low ceiling on what they can achieve in the United States. Although most of the time, the elements of the community stuck in this rut are confined to certain parts of the city and heard from only on the local news when being interviewed regarding a neighborhood crime, after Katrina, all over the country Americans were forced to confront the poverty that our nation tolerates. For several weeks, the individuals our society does least to protect were brought out from the shadows and onto their rooftops with pleas for help.

The way Katrina's human toll cut along racial and economic lines exposed for all to see the second America that John Edwards so eloquently brought to life with his "Two Americas" speeches. During Katrina, the haves, the have-a-littles, and the have-a-whole-lots got a glimpse of the have-nots struggling to get by in this country. Katrina brought America face-to-face with its greatest vice, inequality, and many Americans were shocked and repulsed. In this land of supposedly boundless opportunity where anyone can make it through hard work, Katrina drove home the fact that some Americans have it a whole lot better than others.

In addition, the completely bungled response by all levels of government to the unfolding disaster exposed all that is wrong with a current leadership class that is focused more on elections than on governing, more on appearing to help than on actually helping. Such bogus leadership escapes unmasking until a moment of crisis comes along, at which point the empty heads and suits in leadership positions are reduced to impotent spectators. Katrina did a heckuva job of lifting the mask on all levels of government failure.

Add to the leadership vacuum Katrina exposed the extreme slowness and inability of the government to either protect or rescue citizens and you get a genuine national embarrassment. Here we were, the most powerful country on the planet, unable to reach our own citizens in a major city several days after the storm.

And then there was that group of citizens, themselves embarrassing the country by taking advantage of the anarchy of the times to rob, loot and threaten for their own pecuniary gain. They reflected a culture of selfish thuggery where crime is a badge of honor and laws and law-abiding citizens are inconveniences that would best be disposed of. They are not the majority of Americans, but they are part of the American underbelly exposed by Katrina.

Why does Katrina hurt? Because it slaps us in the face with the reality that we are not doing as well as a nation as we think we are. A year later, that reality still stings.

A Genocide By Any Other Name

During the 1994 genocide in Rwanda, officials in the Clinton administration went to great lengths to avoid calling the unfolding tragedy “genocide.” Rather, they chose the term “acts of genocide” apparently in order to avoid any legal obligation under the 1948 Genocide Convention to take action to stop any activity deemed “genocide.” When asked how many acts of genocide it takes to make genocide, a State Department spokeswoman answered meekly, “I’m just not in a position to answer that question.” The semantic effort was largely successful as the Clinton administration did virtually nothing to stop the murder of 800,000 Rwandans.

Human rights scholars took from this experience the lesson that language mattered – because the Clinton administration was so intent on not saying “genocide,” the scholars concluded that had the word been uttered, action would have followed.

The wisdom of that lesson has been put to the test as another tragedy unfolds in Africa, this time in Sudan. Applying the Rwanda lesson, activists pushed strenuously for the Bush administration to classify as genocide the killing and looting of African tribes in Darfur by government-backed militias. On July 22, 2004, the U.S. Congress declared that genocide was occurring in Darfur. Two months later, the Bush administration agreed, as Secretary of State Colin Powell declared “genocide has been committed….and genocide may still be occurring.” The human rights community celebrated these declarations with the hopes that significant action would follow.

Two years have now passed since the congressional declaration and although the Bush administration has taken action, far more action than did Clinton in Rwanda, dreadful and dangerous conditions persist in Darfur.

The top United Nations enjoy to Darfur, Jan Pronck, recently observed that two months after a May 5 peace agreement among many of the parties involved, the situation is bad as it had been two months before the agreement. The UN has had to halt humanitarian assistance in some parts of Darfur because aid workers have been killed, and the violence is spilling into neighboring Chad. The implementation of the peace agreement has been generally nonexistent and the African Union force deployed in the region is set to run out of funding this fall, leaving a several month gap before UN forces take over no earlier than January 2007.

In short, the experience of Darfur has proven the limitations of the lesson of Rwanda that language matters. (Apparently, the UN did not get this memo as they have resisted declaring Darfur a “genocide,” instead asserting in Clinton-esque fashion “in some instances individuals may commit acts with genocidal intent.” This statement, of course, begs the question – how many acts with genocidal intent make genocide?) Further, the failure of states to take action to stop what has been labeled “genocide” reinforces the fundamental weakness of all voluntary international agreements, such as the Genocide Convention – enforcement. Unless there are consequences for failing to abide by a legal obligation to act under the Genocide Convention, tempered action like that taken in Darfur is the likely outcome.

Not that the Bush administration’s declaration of “genocide” didn’t matter. To be sure, it represented a turning point in American engagement on the issue and put the U.S. at the forefront of the effort to rein in the killing. However, it was far from the trigger to prompt action sufficient to stop the genocide, as the Clinton administration feared.

It seems that each time a new genocide unfolds, the lessons of genocides past are rendered obsolete. The world apparently has no shortage of ways to avoid effective intervention. What then are the lessons of Darfur?

The most important lesson is that publicity and an active mobilization of a constituency against genocide can happen and can move lawmakers to act. Heroic work by human rights activist turned Darfur into a somewhat mainstream topic and paved the way for the action that has been taken. Second, Darfur has shown an enormous variety of ways that non-government actors can act. The lesson that governments cannot be relied upon to act in genocidal situations has been internalized as a large group of aid organizations and volunteers have pushed the Darfur agenda further than any government would be willing to. Finally, the world has learned that semantics that arguably create legal obligations do not stop genocides. It is action that stops “genocide,” “acts of genocide,” “acts with genocidal intent,” and all things in between.