Barack and Hillary: Once Upon a Time in America

Bill Clinton once seemingly dismissed Barack Obama’s phenomenal appeal to the electorate as part of a fairy tale. As we wind down to what looks like victory for Barack Obama in obtaining the Democratic nomination for president, it seems that maybe Bill Clinton was right: it is a fairy tale.

The tale goes something like this:

Once upon a time there was a proud and haughty queen who possessed a magical mirror. Whenever she looked in and asked

“Mirror, mirror on the wall,
Who in this land is the fairest of all?"

The mirror answered,

"Thou, o queen, art the fairest of all."

Then she was satisfied, for she knew that the mirror spoke the truth.

But a child was growing up who grew more and more beautiful, and one day the child was as beautiful as the day, and more beautiful than the queen herself. And once when the queen asked her looking-glass,

“Mirror, mirror, on the wall,
Who in this land is the fairest of all?"

It answered,

“You, my queen, are fair; it is true.
But the child is still
A thousand times fairer than you.”

Then the queen was shocked, and turned yellow and green with envy. From that hour, whenever she looked at the child, her heart heaved in her breast, she hated the child so much. And envy and pride grew higher and higher in her heart like a weed, so that she had no peace day or night.

Sound familiar? It should—it’s the traditional rendition of Snow White and the Seven Dwarfs. Most of us know how this tale ends. Snow While doesn’t die, despite numerous attempts on her life by the queen. She lives happily with seven little men who sustain her as she grows in strength and beauty, all while retaining her open, trusting nature. Her lack of guile almost undoes her on several occasions as she accepts toxic gifts from the disguised queen. Just when it looks as if Snow White is truly done for after the bite of a poisonous apple, she is rescued by a handsome prince. They live happily even after. The evil queen smashes her mirror in a fit of rage.

Barack Obama, having started out as a little known freshman senator quickly gained momentum as he attracted a larger and larger following with his message of change. Though first tolerated by the Democratic establishment as a youthful comer who could make little headway, toleration turned to disdain to outright enmity as the spotlight shifted from the presumptive nominee Hilary Clinton. Barack Obama deftly avoided political death after being branded an elitist and later a closet radical. Having coughed up the poisonous apple fragments from his association with the Reverend Wright, he survived and was once again victorious. The magical mirror of the media is not broken, but has lost perhaps some of its prophetic sheen.

Real life isn’t usually that easily and neatly resolved nor do real people neatly conform to the motifs and archetypes found in fairy tales. Barack Obama no doubt has many obstacles yet to overcome. He has not yet, after all, been selected as the Democratic nominee for president. This doesn’t mean, however, that fairy tales have no place in the real world of politics, law, or society. While fairy tales are often centered on magic, they address some basic concerns of their audience. Fairy tales depict normative behavior and promote adherence to norms but they do so within a framework of overcoming norms and laws—laws of nature, laws of politics, laws of society. According to Tolkien, fairy tales, while offering fantasy, do so while giving fantasy the inner consistency of reality and freeing us from the domination of observed "fact". Fairy tales suggest alternate narratives and, even once the initial euphoria is over, allow us to see things more clearly outside of the business as usual mode of our existence.

Fairy tales exist to remind us that maybe, just maybe, change can happen, even in the face of tremendous odds.

[Want to comment? Please do so! Note that comments are moderated and so may not appear immediately.]

Victim Victorious: Does Change of Face Mean Change of Pace in the American Presidential Race?

Happy New Year.

It’s February 5, 2008, and having been on hiatus from this blog during the last few months teaching and writing (see e.g. “A ‘Ho New World...” in my SSRN file), I now return, sticking my head up into the world of comparative racism and the law in Canada and the United States.

What’s been happening? A lot. Take a look at the U.S. There, the news that dominates the airwaves is the primaries and caucuses leading up to the selection of the Democratic and Republican candidates for president. Today is, in fact, Super Tuesday, the day when voters in some 22 states make their candidate selections. Much of America (and the world) is consumed by two historic firsts: in the Democratic contest , the first potential woman nominee, Hillary Rodham Clinton, and the first potential African American nominee, Barack Obama, are within striking distance of one another. Obama’s progress comes as a surprise to many. As a United States senator in his first term in office, many felt that his relative lack of experience and name recognition would cause him to be far outdistanced by Hillary Clinton, a senator in her second term and a former first lady whose husband is still much beloved throughout United States. Not surprisingly, these two historic firsts have caused many to argue whether gender discrimination or racial discrimination is the biggest burden in the United States in 2008. Is a vote for Barack a vote for business as usual, male political hegemony, or is a vote for Hillary a vote for business as usual, white political hegemony? Putting it differently, whose history of oppression cries out most for political redress? As between Hillary and Barack, who can better claim “It’s our turn now?”

The answer isn’t that simple. In the matter of dueling victimhoods, I’m afraid that both women and blacks (or, getting beyond the black/white binary, racialized others) can hold their own, with enough past and continuing slights, mistreatment and outright absolute abuse to fill volumes. The problem is that this isn’t really what’s being measured in assessing these candidates. Despite all of the calls for picking a different kind of candidate who will, as a result of his or her difference, be a change agent, in choosing between Barack and Hillary we’re not choosing them because of their victimhood, we’re choosing them for their triumph over victimhood. The irony here is that when one of them succeeds in being chosen, it signifies that he or she will have convinced a sizable percentage of the electorate that despite any differentness, they are regular enough to do the job of president. Either will owe a large part of his or her success to the fact that he or she has “street cred” of a whole other kind—Wall Street cred, the type of credibility that buoys not just American spirits but American markets. Regardless of the extent to which they may represent communities who have suffered and who continue to suffer hard times, both Barack and Hillary are still, at the end of the day, members of the most august governing body in the United States and Ivy League educated lawyers married to Ivy League educated lawyer spouses. After all, the presidency is no job for the too outcast or the too outraged. A cynical take on this would be to see it all as an elaborate iterative process that fosters regression towards the political mean.

Does this mean that we shouldn’t celebrate the ascension of Hillary and Barack? Of course not. But we do need to keep in mind that while the victor of this contest may take the spoils they are little likely, at least at first, to roil—too much change could be hazardous to their political health.

[Want to comment? Please do so! Note that comments are moderated and so may not appear immediately.]

Northward Leading, Still Proceeding: Mexican Migrants and the Lure of Canadian Asylum

Follow the North Star to freedom.

That was the mantra of escaped African ancestored American slaves more than one hundred and fifty years ago as they struggled to reach first northern states and later, especially after the Fugitive Slave Act of 1850 took hold, Canada in search of freedom.

Now a similar drama is being played out as undocumented Mexican migrants travel to Canada from the United States in search of a place where they may work and live without fear of deportation. Most such travelers are fueled by the belief that Canada will grant them political asylum. According to a New York Times article, the move northward began a few weeks ago when just a few Mexican families began traveling by car to Windsor, Ontario, and to other land crossings between the United States and Canada and by plane to Toronto. According to many, the journey was suggested by a Florida immigrants’ advocacy group whose core constituency consists of Haitians. In recent weeks, however, the organization has attracted a number of Mexican immigrants.

In order to obtain political asylum in Canada, applicants must show, as they must also show in the United States, that they are unable to return to their home countries due to a well-founded fear of persecution based on one or more of several enumerated grounds, such as political belief, religion, or race. While a large number of Haitians have been granted political asylum in Canada over the years, far fewer Mexicans have succeeded in such applications. Even where Haitians have failed in their claims, they have very often been granted stays of deportation from Canada because of the social, political and economic chaos that has endured in Haiti. (Side note: finally, Haitians catch a break somewhere! Haitians in the United States have long decried the differential treatment of Haitian and Cuban political asylum seekers, with Cubans being given far more favorable treatment than Haitians. Many argue that the difference has to do with race. In the case of Haitians and Mexicans in Canada, the relatively favorable treatment received by Haitians likely has most to do with the large Haitian exile community in Montreal and with Canadian friendliness to fellow francophones in need. ) This has not been the case for Mexicans. Mexican applicants are further hindered by the fact that many persons who proceed to Canada from the United States seeking political asylum may be barred from doing so notwithstanding the merits of their cases because of the operation of safe third country rules which require asylum seekers in most cases to apply for asylum in the first “safe country” which they enter. In short, for Mexicans traveling to Canada in search of freedom via political asylum, the trip is more likely to be bust than boom.

The idea that Canada offers a safer haven than the United States for Latin migrants is not a new one. A documentary by filmmaker Arturo Perez Torres titled Wetback: The Undocumented Documentary, chronicles the journey of five people from Central America and Mexico who seek to travel over multiple national borders in order to reach Canada. Although the typically profiled undocumented alien in North America enters the United States and remains there, the post 9/11 climate in the United States has made the United States even more hostile than it had previously been to such entrants. Canada, in contrast, is often viewed as a bastion of racial tolerance, and is perceived as having a greater number of jobs. Canada has thus become a destination of choice for many persons from various Latin countries. However, such notions are all too often not supported by reality.

Canada will, very likely, staunch the flow of Mexican migrants seeking political asylum, at least for the short term. But the larger problem, that of the very real human rights implications of forbidding our neighbors to the south from accessing jobs, health care and other basic human needs, remains unsolved. If, as W.E.B. Du Bois stated, the problem of the twentieth century was the problem of the color line, then the problem of the twenty-first century is the problem of the borderline[1], or rather, of multiple borders.

[Want to comment? Please do so! Note that comments are moderated and so may not appear immediately.]

---

[1] Lolita Buckner Inniss, Dutch Uncle Sam: Immigration Reform And Notions Of Family, 36 Brandeis J. Fam. L. 177 (1998), citing W.E.B. Du Bois, The Souls of Black Folk 54 (photo. reprint 1969) (1903).

Vote with Your Face: The Canadian Voter Identity Conundrum

When I was younger and experiencing seemingly insurmountable problems within institutions or organizations my mother always said to me: don’t whine, work, and when you get the chance, vote with your feet.

Sound advice, and advice often given to and taken by legions of people of color, women, and migrants of every type. Vote with your feet is a metaphor for addressing problems in a system wherein one has no voice, and where the only option for effecting change is to leave.

So what does it mean to vote with your face?

Canadian Prime Minister Harper would likely say that it means uncovering your face at polling places in order to vote. Harper believes that this is what is required under the changes made to the Canada Elections Act in summer 2007. Bill C-31 amended the Canada Elections Act to require proof of identity at the polls. It requires, among other things, that voters provide one original piece of identification issued by any level of Canadian government or an agency of that government that contains the voter's photograph, name and residential address. In the absence of photo identification, a voter must provide two original pieces of identification from a list authorized by the Chief Electoral Officer of Canada. Both alternate forms of identification must contain the name of the voter and one must also contain the voter's residential address. In the absence of any of these forms of identification, a voter may be vouched for by another voter whose name appears on the roster of voters in the same polling place who possesses acceptable forms of identification. In the latter case, both voters must make a sworn statement. Does the principal reliance on photo identification mean showing one’s face at the polling place? Harper says yes, and decries a decision by the Chief Electoral Officer to allow women who are veiled, presumably for religious reasons, to vote without lifting their veils.

It is true that a requirement to provide a photo identification would seem to come with the implicit assumption that authorities will compare it with the face of the voter who proffers it. However, as many have noted, Canadian law both before and after the recent amendment allows for voting by mail, where there is no way of knowing if the person casting the vote is the same as the person who registered. Moreover, one of the principal concerns of legislators in drafting the new identity provisions of Bill C-31 was to address the complete absence of any preliminary requirement that a voter prove his or her identity. Under prior law, voters needed only to state their names and be found listed among the registered voters. Identity became an issue only if the voter was challenged by an election official, a candidate or a representative of a candidate. Even then, there was no clear statement of what constituted satisfactory proof of identity. For example, the Standing Committee on Procedure and House Affairs heard anecdotal evidence that in some polling stations, magazine subscription labels were accepted as satisfactory proof of identity and address. This was detailed in the Committee’s report Improving the Integrity of the Election Process, a document which was one of the bases of Parliament’s decision to amend the Election Act. It would thus appear that potential fraud by veiled women was not part of Parliament’s concern in its deliberations to enact Bill C-31 and that accordingly the bill is (I can’t resist) facially neutral in this regard. This is the interpretation adopted by Marc Mayrand, the Chief Electoral Officer of Canada. Mayrand will allow veiled women to vote without showing their faces. Though veiled women will be requested to remove their veils at the polls, they will not be required to do so and may vote using the alternate non-photographic forms of identification permitted under the recent amendments.

It is indeed ironic that veiled women, most of whom are covered for religious reasons, would become the focus of a debate on voting, one of the liberties most crucial to maintaining a free, just, and inclusive society. A number of veiled women have already voted with their feet, seeking refuge in Canada away from places of political, social and economic upheaval. These women should now have the right to expect to vote in elections without their faces becoming an issue.

[Want to comment? Please do so! Note that comments are moderated and so may not appear immediately.]

How Now, Brown? Parents Involved in Community Schools and the Triumph of Color Blind Ideology

In the wake of the 1954 ruling in Brown vs. Board of Education and in the subsequent creation and later dismantling of mandatory integration plans, a question has remained unanswered: What can the government do when the last vestiges of state-sponsored segregation are erased (or have never existed) and schools nevertheless remain racially isolated because of housing patterns and societal discrimination? On Thursday, June 28, 2007 the United States Supreme Court said clearly what the government can’t do in Parents Involved in Community Schools v. Seattle School Dist. No. 1. There, in a 5-4 decision, the Court struck down voluntary integration plans in the public schools of Seattle, Washington and Louisville, Kentucky. Chief Justice John G. Roberts, Jr. wrote the majority opinion in the combined cases. On the two school plans, the majority found that the districts had "failed to provide the necessary support for the proposition that there is no other way than individual racial classifications to avoid racial isolation in their school districts."

This decision may be the death knell for the promises of Brown v. Board of Education. Brown has been hailed as a seminal event in American jurisprudential history. Numerous books, journal articles, and films have chronicled the case. The original case was brought by black parents in Topeka, Kansas to challenge the de jure racial segregation of schools that resulted in black children’s attendance at separate public schools. Brown is said to have settled the question of whether or not blacks and whites could receive an education integrated with or separate from each other, as Brown overturned the 1896 case of Plessy v. Ferguson, which established the doctrine of "separate but equal." However, in recent years, scholars have raised doubts as to whether the legacy of Brown is quite as rosy as first believed, and have chronicled the decisions narrowing its import and its impact. The decision in Parents Involved, if it didn’t kill what remained of the spirit of Brown, certainly seems to bring us much closer to the sad day of Brown’s complete demise.

What has perhaps most saddened me is the implicit assumption by the Court in Parents Involved that if blacks are racially segregated in their neighborhoods and ultimately in their schools in the absence of de jure segregation, it is because of the exercise of “private” decisions about where to live and attend school, and such choices cannot and should not be addressed by government. The reality is that housing "choice" may still be a long way off, even for financially able members of minority groups. For example, data compiled by the National Fair Housing Alliance indicates that racial “steering”—the practice by real estate professionals, sellers and other involved in real estate transactions of recommending or discouraging the purchase of homes or choice of school districts to potential home buyers based on their race or national origin—is alive and well. My own anecdotal experiences seem to support this conclusion. I've bought 6 properties in various states and towns in the course of my life, all in predominantly white neighborhoods. I've placed bids on several more. All of the properties were offered by real estate professionals who were highly experienced, well known and respected in local circles. I believe that I’ve experienced race-based discrimination in some aspect of the process in all but one of these transactions.

In my first transaction the selling agent told me that the sellers were “nervous” about taking my offer (why?) but it would allay their fears if I made a full priced offer and put over 30% down (huh?). In my next transaction the seller's agent told me that because of credit problems (What credit problems? She didn’t know me.) I had to have all cash to purchase the house (Whoever heard of that?), and she later refused to return calls placed by my agent. In another case the selling broker took my offer and sent it around to fellow agents in an effort to drum up competing bids while asking for extensions of time in which to accept my bid. Not surprisingly, I was ultimately outbid. I learned later through acquaintances of the sellers that they had no intention of considering my offer since they felt that my family didn’t “fit” into the neighborhood, but they were glad to get my offer in order to start the ball rolling (the house had sat with little activity for months.) I thus became an unwitting shill. In several cases the agents never conveyed my offer to the sellers and I was forced to contact the sellers and let them know about the offer I'd made. This doesn’t even begin to count the numerous times I appeared with my agent to view a property but was refused admission by a plainly visible seller who ignored the ringing doorbell or offered excuses to avoid a showing (“I know you have an appointment but this isn’t a good time,” “We’re not sure if we’re going to sell after all.”)

Gee, isn’t all of that stuff is illegal? Maybe. That’s the problem. There are in most places some combination of local, state and federal laws barring racial discrimination. There are also typically professional codes of conduct that hold real estate brokers and agents to certain standards. But trying to hold real estate professionals accountable for violating the law or professional standards (never mind holding the sellers accountable) in such cases is all too often a losing proposition. This is especially true in housing discrimination litigation, since there is a requirement of a clear showing of discriminatory intent. This means that an action which could somehow be construed as neutral on its face may not easily be the basis of liability. Given the time, money, headaches and heartaches of litigating, even a practicing lawyer or law professor may just move on to the next deal notwithstanding suspected racial discrimination.

The Chief Justice indicated in his oral announcement of the ruling that the Court was remaining faithful to Brown v. Board of Education in barring public school districts from assigning students on the basis of race. Roberts wrote: "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race." Seems like a no-brainer. If only it could work that way. Regrettably, the racial discrimination aimed at blacks and other racial minorities is often stealthy as well as stalwart. To assert that governmental use of race to remedy past and continuing discrimination against blacks and other racial minorities is the same as deeply entrenched, longstanding white racism seems a bizarre and disingenuous embrace of the color blind ideal. Such decisions, while purporting to disrupt racist practices, instead run the very real risk of legitimizing them. Perhaps we are doomed to return to the days before Brown.

[Want to comment? Please do so! Note that comments are moderated and so may not appear immediately.]