Volume 21, Number 6
Mississippi’s SB 2988
Bruce k. Gagnon
A War on Communities
Z magazine Readers
Sean Bell Verdict
Damming the Flood
Triumph of Lunacy
Dr. Wall Street
Colombia Trade Deal
NOTE: Z Magazine subscribers and sustainers have access to all Z Magazine articles here and in the archive. The latest Z Magazine articles available to everyone are listed in the Free Articles box at the top of the table of contents, and are starred in the list below. Questions? e-mail Z Magazine Online.
The Return of Legalized Profiling...
Recently, the U.S. Court of Appeals for the First Circuit issued a series of decisions mimicking an odd dance. The end result? The first jury verdict in favor of the plaintiff in a post-9/11 airline racial profiling case against a company that was overturned. The outcome is devastating to all people who suffer discrimination and seek a remedy in court. However, the process by which this decision was reached may be even more disturbing than the outcome.
In a decision issued on January 10, 2008, the three-judge panel that heard the appeal stated: "Race or ethnic origin of a passenger may, depending on context, be relevant information in the total mix of information raising concerns that transport of a passenger ‘might be' inimical to safety." This statement indicates that these three judges find it acceptable to consider a passenger's race in determining if he or she may travel on an airplane. This is a frightening legal ruling with enormous implications.
Claims of racial discrimination are notoriously tough cases to win. Whether in a workplace, restaurant, or jury selection, a person in power who discriminates based on race can usually concoct a non-race-based reason to justify an otherwise racially discriminatory action. As Justice Thurgood Marshall wrote in a concurring opinion to the Supreme Court's most important decision concerning racial discrimination in jury selection: "Any prosecutor can easily assert facially [race] neutral reasons for striking a juror, and trial courts are ill equipped to second-guess those reasons."
Plaintiffs bringing discrimination cases therefore face an uphill battle to convince a jury to look deep into the mind of the decision-maker and determine that the true reason, the motivating factor for the decision—be it firing, exclusion from a public place, or dismissing a juror—was race.
After 9/11, public frenzy, fueled by media and the government, gave rise to widespread suspicions of people of Arab descent. As early as one week after the attacks, a New York Times commentator wrote that prior to 9/11, the idea that racial profiling was wrong was "so universally accepted that it had become the received wisdom." In the aftermath, the question became whether it was acceptable to "stereotype." The answer appeared to be yes, at least from reported experiences. Since then, "flying while Muslim" has become one description for post- 9/11 racial profiling on airlines, a play on the "driving while Black" description of police targeting African Americans for traffic stops.
In this context post-9/11 racial discrimination claims, especially those pertaining to airlines, have seemed so daunting that few plaintiffs and plaintiffs' attorneys have chosen to litigate these cases. Because of the high security risk associated with airlines, instances of racial profiling—even when blatant—have seemed sure losers and were, indeed, frequently lost even before trial.
Finally, lawyers at Public Citizen Litigation Group brought the case of Cerqueira v. American Airlines. The plaintiff, a man of Portuguese descent, suffered serious financial and emotional injury when, mistaken for "Middle Eastern," he was removed by the pilot from an American Airlines flight. An American Airlines administrator subsequently refused to rebook Cerqueira on a later flight. After a Boston jury awarded Cer- queira a six-figure verdict, civil liberties lawyers and racial profiling activists were given hope that anti-discrimination laws still had teeth to rectify the injustices perpetrated in the name of national security.
Sadly, the victory did not last. In an appeal to the First Circuit, American Airlines attacked all aspects of the trial, including the jury's decision. The airline must have understood that it had far more at stake than this one verdict against it as reports of similar incidents had emerged all over the country and any indication that profiled individuals could successfully sue might subject American and others to extensive liability for violating their passengers' rights.
American Airline's efforts were rewarded. As noted above, the First Circuit panel not only overturned the jury verdict, but took the unusual step of entering a final judgment in favor of American Airlines, rather than sending the case back for a new trial. It ruled that not only did the trial judge give an erroneous jury instruction that rendered the verdict invalid, but also that under the correct standard, no reasonable jury could find that either the pilot who kicked Cerqueira off the plane or the agent who denied him rebooking was motivated by race.
This decision was, in part, rooted in the court's surprising conclusion that the customary test for determining if discrimination caused a plaintiff's injury—known as the McDon- nell Douglas burden-shifting analysis —doesn't apply in the airline context. Rather, a higher, even tougher standard for the plaintiff is at play, essentially requiring that plaintiffs present direct evidence of discriminatory animus; inferences and circumstantial evidence no longer have value. It is a rare case where direct evidence can be found.
As if that was not bad enough, the three-judge panel went on to suggest that even if race had been a factor in the pilot's decision to remove Cerqueira, it could have been permissible. It was a gratuitous comment, unnecessary to support their decision. Indeed, Public Citizen, barred from retrying the case by the First Circuit's decision, filed a petition for rehearing by the entire court. "The panel's conclusion that racial profiling is a legitimate security measure is unprecedented," Public Citizen argued in its petition. On February 29, the full court denied the petition to rehear the case.
The unusual nature of the case was exacerbated by two additional maneuvers. First, two of the five active judges on the court dissented from the decision to deny rehearing—a relatively rare occurrence. The dissenters were critical of the court's failure to review the three-judge panel's decision and of some particular aspects of the decision itself, but did not touch the single most objectionable comment—that using race as a factor to deny airline service to a passenger is permissible.
Second, and most likely related, the original panel issued an "errata" to its opinion. Rather than correct a simple typographical or citation error, the court's "errata" eliminated the entire paragraph in which the panel included its offensive legalization of racial profiling. Though we can only speculate about the court's reason for issuing the errata—for instance, would there have been one more vote for rehearing had the paragraph stayed in the opinion?—we do know that this stealth move has two practical consequences.
First, it puts this egregious throwback to legalized racism out of reach of legal challenges. Second, it effectively denies that the three-judge panel ever legalized racial profiling so explicitly. Because the change was issued in the form of an errata and not an amendment to the decision, no researcher looking for the case in its official published report will ever know that it was so altered.
Though the court's errata was rescinded after for six weeks when it legalized racial profiling, the extremity of the three-judge panel's original statement cannot be ignored. The panel's remarks regarding the per- missibility of considering race as a factor in the airlines' safety calculus is reminiscent of the Supreme Court's statements upholding the constitutionality of Japanese internment during World War II. In the infamous 1944 decision, Korematsu v. United States, the Supreme Court explained that, "All legal restrictions which curtail the civil rights of a single racial group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny. Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can."
Though Korematsu has long been condemned by legal scholars and courts alike, it has never actually been overruled. Thus, even today, the Supreme Court's decision to uphold the exclusion order that drove Korematsu from his home and to an "assembly center" remains the law, ruling that, "When under conditions of modern warfare our shores are threatened by hostile forces, the power to protect must be commensurate with the threatened danger."
In their original decision last month, three judges of the First Circuit managed to align themselves, if only temporarily, with one of the most shameful moments in U.S. legal history. They made a bold and unnecessary statement ostensibly permitting race to be considered when determining if a passenger is "inimical" to airline safety. Although that statement was ultimately struck, there can be no doubt that it was not made accidentally. We can only conclude, therefore, that we find ourselves in a dangerous judicial climate, where such a ruling is only a vote or two away from becoming law.
And yet, the First Circuit comforts us with its assurance that "[t]his case does not involve any claim of constitutional right on the part of the plaintiff...[r]ather, the case involves only the intersection of various statutes, which articulate competing policy concerns."
Apparently, as it is merely the issue of interpreting two statutes, we should not concern ourselves that we are losing legal protection against institutionalized racism.
Margaret Kwoka, an attorney, is currently a law clerk at the Massachusetts Appeals Court.
Z Magazine Archive
AnnouncementsLABOR - May 1 is May Day. Workers of the world will celebrate the 124th anniversary of International Worker’s Day. Born out of a call for an 8-hour workday in the United States, this day is an opportunity for all workers to show their solidarity with one another, as well as to renew the call for labor rights.
FARM CONFERENCE - The Farm Conference on Community and Sustainability will be held May 24-26 in Summertown, TN, in partnership with the Fellowship of Intentional Communities. Tour green homes, see sustainable food production, learn about solar installations, alternative education, midwifery, and more.
Contact: Douglas@thefarmcommunity.com; http://www.thefarmcommunity.com/.
PALESTINE - The Conference of the Palestinian Shatat in North American will be held June 3-5 in Vancouver. The conference will examine the future of the Palestinian liberation movement.
Contact: firstname.lastname@example.org; http://www.palestinianconference.org/.
LABOR - The Pacific Northwest Labor History Association’s 45th annual conference will be held May 3-5, in Portland, OR. This year’s theme is Labor Under Attack: Learning from the Past and Preparing for the Future. A call for presentations, workshops and papers is currently underway.
Contact: PNLHA, 27920 68th Ave. East, Graham, WA 98338; 206-406-2604; PNLHA1@aol.com; http://www3.telus.net.
MARIJUANA - On the first Saturday of May marijuana legalization activists will hold informational and educational events, rallies and marches in over 300 cities around the world.
ECONOMICS - The Union For Radical Political Economics will hold its 39th annual conference May 9-11 in New York City.
RECLAIM THE DREAM - The 2013 Poor People’s Campaign & March from Baltimore to Washington D.C. will be May 11. Communities, schools and unions interested in participating are encouraged to contact the Baltimore People’s Assembly.
Contact: 410-500-2168; 410-218-4835; BaltimorePeoplesAssembly@gmail.com; Southern Christian Leadership Conference of Baltimore and the Baltimore Peoples Power Assembly, 2011 N. Charles St., Baltimore, MD 21218.
MOTHER’S DAY - The 17th Annual Mother’s Day Walk For Peace will be May 12th, in Dorchester, MA. The walk began in 1996 for families who had lost children to violence. The day has become a way for thousands of people to financially support the work of the Louis Brown Peace Institute.
Contact: http://www.ldbpeaceinstitute.org/; http://mothersdaywalk4peace.org/.
NATO 5 - An International Week of Solidarity with the NATO 5 has been called for May 16-21. Supports call on supporters to raise awareness of the NATO 5 and support funds for the defendants on the one-year anniversary of their preemptive arrests.
Contact: email@example.com; https://nato5support.wordpress.com.
MOUNTAINTOP - The 2013 Mountain Justice Summer Activist Training Camp will be held May 19-27 in Damascus, VA. It will be a week of workshops, field trips to view Mountain Top Removal coal mines, direct actions, and service project.
FEMINIST SCI-FI - The feminist science fiction convention WisCon 37 is scheduled for May 24-27 in Madison, WI.
Contact: WisCon, ? SF3, PO Box 1624, Madison, WI 53701; firstname.lastname@example.org; http://www.wiscon.info/.
ANARCHY FEST - A month-long Festival of Anarchy is scheduled for May in Montreal. The festival includes The Montreal Anarchist Bookfair (May 19-20).
Contact: http://www.anarchistbookfair.ca/; http://www.radicalmontreal.com/.
LABOR - The International Labor Rights Forum will present: Down the Supply Chain, Driving Corporate Accountability, on May 22 in Washington, DC. The Labor Rights Awards Ceremony and Reception will honor pioneers in supply chain worker organizing, working solidarity and international labor rights policy.
MULTICULTURE - The 26th annual National Conference on Race & Ethnicity in American Higher Education (NCORE) will take place May 28-June 1, in New Orleans.
Contact: SWCHRS, 3200 Marshall Avenue, Suite 290, Norman, OK 73072; 405-325-3694; email@example.com; www.ncore.ou.edu.
MEDIA - The 2013 Alliance for Community Media Annual Conference will be held May 29-31, in San Francisco, CA. Participants will include educators, community leaders, media professionals, journalists, nonprofit leaders, policymakers and students.
RADIO - The 38th Annual Community Radio Conference is schedule for May 29-June 1, in San Francisco, CA, with discussions and workshops.
Contact: 1101 Pennsylvania Ave. NW, Suite 600, Washington, DC 20004; 202-756-2268; firstname.lastname@example.org; http://www.nfcb.org/.
BRADLEY MANNING - On June 1, a rally will be held at Fort Meade in support of Bradley Manning.
BIKES - Bikes Not Bombs is holding its 24th annual Bike-A-Thon and Green Roots Festival in Boston, MA on June 3, with several bike rides scheduled, music, exhibitors and more.
Contact: Bikes Not Bombs, 284 Amory St., Jamaica Plain, MA 02130; 617-522-0222; email@example.com; www.bikesnotbombs.org.
LEFT FORUM - The 2013 Left Forum will be held June 7-9, at Pace University in New York City.
Contact: 365 Fifth Avenue, CUNY Graduated Center, ? Sociology Dept., New York, NY 10016; http://www.leftforum.org/.
VEGAN FEST - Mad City Vegan Fest will be held in Madison, WI, June 8. The annual event features food, speakers, and exhibitors.
Contact: 122 State Street, Suite 405 B, Madison, WI 53701; firstname.lastname@example.org; http://veganfest.org/.
ADC CONFERENCE - The American-Arab Anti-Discrimination Committee (ADC) holds its annual conference June 13-16, in Washington, DC, with panel discussions and workshops on civil rights, media and other topics.
Contact: 1990 M Street, Suite 610, Washington, DC, 20036; 202-244-2990; email@example.com http://convention.adc.org/.
CUBA/SOCIALISM - A Cuban-North American Dialog on Socialist Renewal and Global Capitalist Crisis will be held in Havana, Cuba, June 16-30. There will be a 5 day Seminar at University of Havana, plus visits to a cooperative, urban garden, community development project, social research centers, and educational & medical institutions.
Contact: firstname.lastname@example.org; http://www.globaljusticecenter.org/.
NETROOTS - The 8th Annual Netroots Nation conference will take place June 20-23 in San Jose, CA. The event features panels, trainings, networking, screenings, and keynotes.
Contact: 164 Robles Way, #276, Vallejo, CA 94591; email@example.com; http://www.netrootsnation.org/.
MEDIA - The 15th annual Allied Media Conference will be held June 20-23, in Detroit.
Contact: 4126 Third Street, Detroit, MI 48201; http://alliedmedia.org/.
GRASSROOTS - The United We Stand Festival will be hosted by Free & Equal, June 22 in Little Rock, Arkansas. The festival aims to reform the electoral process throughout the U.S.
SOCIALISM - The Socialism 2013 Conference is scheduled for June 27-30 in Chicago, featuring talks and panel discussions.
Contact: firstname.lastname@example.org; http://www.socialismconference.org.
LITERACY - The National Association for Media Literacy Education (NAMLE) will hold its conference July 12-13 in Los Angeles under the heading, Intersections: Teaching and Learning Across Media.
Contact: 10 Laurel Hill Drive, Cherry Hill, NJ 08003; http://namle.net/conference/.
IWW - The North American Work People’s College will take place July 12-16 at Mesaba Co-op Park in northern Minnesota. The event will bring together Wobblies from branches across the continent to learn new skills and build One Big Union.
PEACESTOCK - On July 13th, the 11th Annual Peacestock: A Gathering for Peace, will take place at Windbeam Farm in Hager City, WI. The event is a mixture of music, speakers and community for peace. Sponsored by Veterans for Peace.
Contact: Bill Habedank, 1913 Grandview Ave., Red Wing, MN 55066; 651-388-7733; email@example.com; http://www.peacestockvfp.org.
CHILDREN’S DEFENSE - July 15-19, join clergy, seminarians, Christian educators, young adult leaders and other faith-based advocates for children at CDF Haley Farm in Clinton, Tennessee, for five days of spiritual renewal, networking, movement building workshops, and continuing education about the urgent needs of children at the 19th annual Proctor Institute for Child Advocacy Ministry.
Contact: firstname.lastname@example.org; http://www.childrensdefense.org.
ACTIVIST CAMP - Youth Empowered Action (YEA) Camp will have sessions in July and August in Ben Lomond, CA; Portland, OR; Charlton, MA. YEA Camp is designed for activists 12-17 years old who want to make a difference in the world.
Contact: email@example.com; http://yeacamp.org/.
LA RAZA - The annual National Council of La Raza (NCLR) Conference is scheduled for July 18-19 in New Orleans, with workshops, presentations and panel discussions.
Contact: NCLR Headquarters Office, Raul Yzaguirre Building, 1126 16th Street, NW, Washington, DC 20036; 202-785-1670; www.nclr.org.
LABOR - The Eastern Conference For Workplace Democracy: Growing Our Cooperatives, Growing Our Communities, will be held at Drexel University in Philadelphia, PA, July 26-28.
Contact: firstname.lastname@example.org; http://east.usworker.coop/.
WOMEN/LYNNE STEWART- Radical Women is asking for support letters and cards to be sent to Lynne Stewart. Stewart is a civil rights attorney and political prisoner who is currently in jail. She has breast cancer and authorities have denied her request for transfer from her Texas prison to the New York City hospital where she received medical attention during a prior bout of breast cancer. Send messages and cards to: Lynne Stewart 53504-054, Federal Medical Center Carswell, P.O. Box 27137, Fort Worth, TX 76127.
Contact: 747 Polk Street, San Francisco, CA 94109; 415-864-1278; RadicalWomenUS@gmail.com; http://lynnestewart.org/; http://www.radicalwomen.org/.
HAITI/WOMEN - Haiti’s government is considering a legal reform measure that would prohibit and punish all sexual assault, including marital rape. MADRE and the International Campaign to Stop Rape & Gender Violence in Conflict are launching a petition to raise international support for this push to address violence against women in Haiti.
Contact: 121 West 27th Street, #301, New York, NY 10001; 212-627-0444; email@example.com; http://www.madre.org.
SYRIA/MIDDLE EAST - The Middle East Children’s Alliance (MECA) is currently seeking funds to assist more than 200,000 refugees fleeing violence in Syria.
FOLK FESTIVAL - The Falcon Ridge Folk Festival will be held August 2-4, in the Berkshires, NY.
Contact: http://www.falconridgefolk.com/; firstname.lastname@example.org.
WAR RESISTERS - The War Resisters League will hold its 90th anniversary conference, Revolutionary Nonviolence: Building Bridges Across Generations and Communities, August 1-4, at Georgetown University. The event will focus on the U.S.’ long history of antimilitarism.
Contact: 339 Lafayette Street, New York, NY 10012; 212-228-0450; email@example.com; http://www.warresisters.org.
POPULAR ECONOMICS - The Center for Popular Economics is holding its 2013 Summer Institute August 4-9 at Hampshire College in Amherst, MA. No background in economics is needed for this intensive training. This year’s theme is, The Care Economy: Building a Just Economy with a Heart.
Contact: Center for Popular Economics, PO Box 785 Amherst, MA 01004; 413-545-0743; firstname.lastname@example.org; www.populareconomics.org.
VETERANS - Veterans for Peace is holding the 28th annual convention August 6-11 in Madison, WI. This year’s theme is, Power To The Peaceful.
DEMOCRACY - The Democracy Convention will take place August 7-11 in Madison, WI. The convention brings together nine conferences including topics such as media, education, defense, race, environment and others.
MEN - The 38th National Conference on Men & Masculinity: Forging Justice: Creating Safe, Equal and Accountable Communities, presented in partnership with HAVEN, will be held in Detroit, MI, August 8-10.
Contact: email@example.com; http://www.nomas.org/.
OCCUPY - An Occupy National Gathering will be held in Kalamazoo, MI, August 21-25.
Contact: firstname.lastname@example.org; http://occupynationalgathering.net/.
COMMUNITIES - The Communities Conference is a networking and learning opportunity for co-operative or communal lifestyles, with workshops, events and entertainment; scheduled for August 30-September 2 at the Twin Oaks Community in Louisa, Virginia.
LABOR DAY - The 29th annual Bread and Roses Festival, a celebration of the ethnic diversity and labor history of Lawrence, MA, will be held September 2, in honor of the 1912 Bread and Roses Strike. There will be music, dance, poetry, drama, ethnic food, historical demonstrations, walking & trolley tours.
Contact: PO Box 1137, Lawrence, MA 01842; 978-794-1655; http://www.breadandrosesheritage.org/.
OCCUPY WALL STREET - September 17 is the two-year anniversary of the Occupy Wall Street movement. Events are planned in New York City and worldwide.
TEACHERS - The 13th Annual Conference, “Teaching for Social Justice: The Politics of Pedagogy,” will be held October 12 in San Francisco, CA. The free event features workshops, resources, and free childcare.
Contact: 415-676-7844; email@example.com; http://www.t4sj.org/.
HAITI - International Action, which brings clean water and chlorinators to Haiti, seeks office space capable of housing up to six people and their office equipment.
Contact: Zach Bremer, Zbrehmer@haitiwater.org; 202-488-0735; http://www.haitiwater.org/.
MEDIA - The Union for Democratic Communications and Project Censored are sponsoring a joint conference on media democracy, media activism and social justice to be held November 1-3 at the University of San Francisco. Proposals for presentations, workshops and panels from activists and critical scholars are invited.