Archive for February, 2005

Race in Prisons and Elsewhere

Monday, February 28th, 2005

I’ve been thinking about last week’s Supreme Court decision in Johnson v. California, which held that state prisons can’t segregate new inmates by race (ostensibly for the purpose of reducing gang violence) unless that classification satisfies the strict scrutiny test. (The Court remanded to the lower court for that analysis, but I have little doubt the state will lose under strict scrutiny.) Here’s a nice summary from Lyle Denniston at SCOTUSBlog.

I’ll admit that I have merely browsed the opinions, and haven’t given them strict scrutiny myself. And it’s been a long time since I did any serious thinking about equal protection analysis. But when I read them, especially Justice O’Connor’s opinion for the majority, I had a question: What is the injury? I didn’t see it clearly spelled out, and I had to ponder over it a while. The Court cited to Brown v. Board of Education for the notion that separation is inherently wrong, but in that case the injury was obvious. There, the segregation had the effect of sticking black kids in inferior schools. And even if the resources were exactly equal — which of course they weren’t — the social interaction in a desegregated school was enough of a benefit that going without it was an injury. But in the California prisons, as far as I know, the cells were the same, and everyone is treated the same, except that people of different races and ethnic groups went through different doors. I don’t think this is even as bad as having two identical water fountains right next to each other, one marked “white” and one marked “colored,” even though the facilities aren’t any different. This is more like having one water fountain, and telling the thirsty to line up in white/black/white/black order. So, because, from everything I can tell, every prisoner was treated the same, the injury had to be the mere fact of classification by race. After reading Prof. Balkin’s take on it, I guess I could rephrase it to say that the injury is the loss of dignity and the stigmatization of being reduced to a check-a-box racial identity. (However, I didn’t see anything to indicate that the state would rather use the race proxy if it had evidence of actual gang membership, if, say, two members of the same race were in opposing gangs — surely the prison would separate them for that reason rather than rely merely on race and keep them together.)

But anyway, it’s not as if the black or Hispanic prisoners were sent to inferior cells or given less access to certain benefits than white inmates. I don’t mean to denigrate that dignitary harm — which I’m sure could be bad in cases, even if it doesn’t rise to the level of stigmatization black schoolchildren felt before Brown — but I can see why Justice O’Connor might evade the issue. If the mere classification by race, in a prison system with lots of racial gangs, and when prisoners don’t seem to suffer unduly because of it, is unconstitutional, then why wouldn’t the same be true in the law school admissions setting? Justice O’Connor thought racial classifications were okay in Grutter, even when they had the effect of causing some kids not to be admitted to a college or graduate school they were otherwise qualified for — which is certainly more of an injury than being housed in one cell versus another identical one. If someone who had never heard of these cases read them together, he or she might reasonably wonder what case in the interim overruled one of them. Tom Smith at The Right Coast puts it a little more cuttingly, but Justice O’Connor’s opinion and “reasoning” are a joke.

For what it’s worth, I think a more reasonable course is to subject benign classifications in prisons (that is, where there is absolutely no evidence of disparate treatment) to Turner‘s less-stringent review, which is more deferential to prison officials. I would have agreed with Justice Stevens, however, that this system fails even that test, simply because there’s so little reason for it, and it could end up promoting gang violence as much as thwarting it. It is often said that strict scrutiny review is “strict in theory, fatal in fact.” Turner review could accurately be called “deferential in theory, rubber-stamp in fact,” but that’s true of rational-basis review generally. But every once in a while some state action is found to be irrational. Yes, perhaps I am overlooking something in the opinion about the harm suffered by these classified inmates. But at least applying Turner saves one the embarrassment of trying to reconcile Johnson with Grutter. And it would have the added effect of giving Turner some teeth, which may be what Justice O’Conner (who wrote Turner) wanted to avoid in the first place.

UPDATE: I should have linked to posts I overlooked last week from Will Baude and Donald, who made the same point I did about Turner.

"King of the Hill" Quote of the Day

Monday, February 21st, 2005

Bobby: “Dad, guess what? I joined a team!”
Hank: “A sports team?”
Bobby: “Uh-huh, wrestling. It’s the best sport ever, Dad! There’s no running!”
Hank: “Way to go, boy! Wrestling’s a damn fine sport. Hell, it’s an Olympic sport! And this is offered through the school, isn’t it? Not some guy in a van with a camcorder?”

Hank: “I thought you were busy teaching girls to blow up basketballs. When did this turn into a desire to ruin wrestling?”
Peggy: “Oh, give me a break. I don’t see how having a girl on the team would ruin it. Did a woman judge ruin the Supreme Court?”
Hank: “Yes, and that woman’s name was Earl Warren.”


Monday, February 14th, 2005

I know I’ve used that title before, but I like it. I’m just clearing the decks of some topics that aren’t good enough for their own posts, so bear with me.

1. For everyone coming to BTQ because they’re searching for information on Old Crow Medicine Show because they were on “A Prairie Home Companion” this weekend, here is my review of their debut album, “O.C.M.S.,” complete with the story of, and links to the lyrics and chords for, the song “Wagon Wheel.” That review causes us to show up on a lot of searches for the Medicine Show. And yes, I’m shameless enough to point out that if you buy the album after clicking through from the Barnes & Noble link on the right side of the page, we get a little kickback. Oh, and the PHC broadcast should be available here by Monday morning.

2. Some friends are planning a vacation, and they told me that Universal Studios is having a Mardi Gras celebration every Saturday for a couple of months. So let me get this straight: Mardi Gras is traditionally the last hurrah of fun before the soul-searching, introspective, toned-down period of Lent. But instead of doing that, you’re saying that Lent doesn’t have to be a downer — let’s just keep Mardi Gras going right through Easter! Now there’s a religion I could get on board with! Why make any personal sacrifice to remind oneself of Jesus’s sacrifice when the parade is starting?! Oh, and I know it’s an occupational hazard, but the phrase “streets full of beads” sounds like a recipe for a personal injury suit. Lastly, it’s not really right to advertise having “the biggest bands” when your line-up includes Huey Lewis and the News and the Go-Gos. I guess I can let you slide on Lynyrd Skynyrd, since everyone will be yelling for them anyway. And if you never thought you’d be able to see a concert with both Michael Bolton and Twisted Sister, think again.

UPDATE: Welcome to those of you coming here from the Huey Lewis & The News Forum! I hope you have a good time if you go to their concert. Note that I’m not saying I don’t like HLN (or the Go-Gos), but it seems a bit of a stretch to call them one of the “biggest bands” these days. Anyway, welcome to BTQ. Check out this post for a little more info about us, and feel free to come back any time.

(As an aside, this reminds me of one of my favorite “Simpsons” lines, from the great episode where they go to the Itchy & Scratchy Land theme park. As they’re helicoptering in, Jurassic Park-style, the pilot reads the spiel: “We’re now approaching our final destination, Itchy & Scratchy Land: the amusement park of the future where nothing can possi-blye go wrong…uh, possibly go wrong. Huh, that’s the first thing that’s ever gone wrong.”)

3. I saw an ad for this new Vin Diesel movie, The Pacifier. Did they really think there was more territory to mine after Kindergarten Cop and Mr. Nanny? I will note, though, that it was written by a couple of the guys from “Reno 911,” for whatever that’s worth.

4. Eerily accurate: My Onion horoscope this week. Capricorn: You’re not fat, but your lack of motivation means that most anecdotes about you end with the phrase “around the house.”

5. I watched The Butterfly Effect last night. Apparently the version I saw was the studio-imposed theatrical release, and not the director’s cut, which ended much darker. Hmm. Anyway, I thought it was unnecessary to try to frame the whole story as higher-level philosophical theorizing when it would have been just as good if it had not taken itself as seriously and tried to be another Final Destination-style sci-fi yarn about how you shouldn’t mess with fate. And, don’t be hatin’ on Ashton. I know he’s a graduate of the Keanu School of Acting, but really, his role was a guy who gets headaches when he tries to read. I think he can pull that off.

6. A couple of thoughts about the Duke-Maryland game last night. First, I know Duke has to be expecting to get every team’s best shot. But I’ve never seen a team take that more seriously than Maryland does. If they could get every team they played to wear a Duke jersey, they’d be undefeated. I saw this Andy Katz story about Ekene Ibekwe of Maryland, the guy who elbowed Duke’s Daniel Ewing, but didn’t get called for a foul, leading Ewing, who admittedly should have held his tongue, to say something and get a technical, an injustice even to Kentucky fan Pat Forde. Ibekwe had a cracked rib, but vowed to play in the Duke game, because it was Duke. Coach Gary Williams asked why he didn’t feel so motivated about the pervious game, but the answer is that Gary and everyone else at Maryland cares more about the Duke game than anything else. (They don’t riot after beating anybody else!) I think in the long run it’s to their detriment, because they don’t care as much about games they could win but don’t. Maryland folks wonder why everyone supposedly hypes Duke so much, but they should look in the mirror for a great example of someone who never stops talking about how Duke is more important than any other team.

Taking the U out of RBUS*

Monday, February 7th, 2005

So, Soupie felt the need to comment on the recent lack of posts here. That’s cool. He’s right to call us out for it. It’s annoying and a waste of time to check BTQ a couple times a day and only see a King of the Hill quote. People expect some content. In the blog world, like academia, it’s “publish or perish.” From our traffic numbers it appeats that we’re quickly slipping into “perish” territory. Alas, there’s little I can do about that. I certainly cannot defend the lack of posts, but I can explain what is contributing to it on my end.

First, you’ll notice the time stamp on this post. That’s Eastern time. I’m in the Pacific time zone. And I’m at work. And I’ve been here for over an hour.

Second (really a corollary to the first point), I clocked 82 hours last week. And I’ve worked 18 this week already (our pay periods begin on Saturdays and end on Fridays).

Third, except for the kind requests made in response to our call for an all-request February, I’ve got jack to write about. There is nothing I can say about the topics of the day that hasn’t been said better by my betters. Plus, there is just not a lot out there that interests me right now. At least not much that interests me enough to write about it.

Fourth, I’ve got a lot of work-related material that I just can’t blog about. Funny stories, sad stories, sad sack co-workers, crazy clients, etc. But workplace rules and discretion dictate that I keep those to myself, at least for now.

So there’s my explanation for the radio silence. I’m as frustrated by the sad state of affairs here as anyone else. Trust me. But for the next 120 days, there’s very little I’ll be able to do about it. I promise that I’ll post a response to at least one request per day (send those requests via email, or leave them in the comments to our Groundhog Day post) Monday-Friday every week this month. The weekends, when I’m not working, are family time and that’ll be doubly true if this 80-hour week stuff continues. So bear with me, and remember the old Chinese proverb, “Be careful what you wish for.”

* per Soupie, RBUS stand for “Random Bout of Unexplained Silence”