How “Shout” Came to America

Teaching an immigration course is a great learning experience! Sharing new information is a joy.

The word shout is likely derived from “saut.” This is a West African word of Arabic origin that describes an Islamic religious movement performed to exhaustion.

African slaves who were brought to the coast of Georgia and South Carolina preserved their language and customs, as much as masters allowed.

Slaves held religious meetings in “praise houses.” This provided a spiritual outlet for enslaved Africans on plantations, where fast-paced rhythmic hand clapping accompanied ring shout (spiritual) songs.

Anthologists have discovered that these services often included the ring shout, in which rhythmic hand clapping and counterclockwise dancing were performed to spirituals.

These customs barely survive today. One group that keeps the flame burning is in Georgia, known as the McIntosh County Shouters. If you want to see and hear this, click on this link (8:30 is the start of the song, clap, dance, and shout): https://www.youtube.com/watch?v=uxPU5517u8c.

Abuse of Pardons? A Prohibition-Era Precedent

The president’s pardon of Joe Arpaio has a precedent—sort of. 

Phillip Grossman sold liquor in 1920, in violation of the National Prohibition Act. Like Arpaio, he was enjoined by a court to stop breaking the law. He continued. The court, then, fined and imprisoned him for criminal contempt—i.e., violating the court’s order. President Calvin Coolidge pardoned Grossman.

Sounds like Arpaio’s case—but there are differences. Grossman had to admit guilt. Arpaio does not. Grossman paid a $1,000 fine. Arpaio has been fundraising for his book and next political campaign.

The feds re-arrested Grossman to finish serving his prison sentence. The Supreme Court ruled that Grossman’s pardon did not violate the Constitution, and therefore, he could not serve more time.

Here is the interesting part that relates to the possibility that President Trump might pardon everyone connected to the Mueller investigation—Flynn, Manafort, Donald Jr. and others. The Supreme Court said in its 1925 decision:

If it be said that the President, by successive pardons of constantly recurring contempts in particular litigation, might deprive a court of power to enforce its orders in a recalcitrant neighborhood, it is enough to observe that such a course is so improbable as to furnish but little basis for argument. Exceptional cases like this, if to be imagined at all, would suggest a resort to impeachment, rather than to a narrow and strained construction of the general powers of the President.

This has two clear meaning. 

First, the Supreme Court in 1925 could not imagine a president with the constitutional audacity of Donald Trump (“it is enough to observe that such a course is so improbable as to furnish but little basis for argument”). 

Second, as if anticipating Donald Trump, the Court said, nonetheless, that courts cannot stop this behavior. Only Congress can, via impeachment.

Want Hope? LINK (Liberty in North Korea), a Student Group at UIUC

These students are in LINK, a UIUC student group (and beyond) that raises money, awareness, and hope for refugees from North Korea. They dream really big … and I am grateful that they’ve opened my eyes to something I wouldn’t imagine is possible.

Here is a brief example of what they do:

Ji Yeon escaped from North Korea several times, but she was always sent back to face harsh punishments. Since her rescue, she has finally reached safety and no longer has to live in fear. It costs $3,000 to rescue one refugee and empower them in their new life.

If you want to help, visit https://www.facebook.com/LiNKUIUC/.

Menstruation Discrimination

A woman has been fired for a bleeding through her clothing at work. Alisha Coleman, Georgia a mother of three, had a common symptom of pre-menopause: sudden-onset, heavy periods. My wife alerted me to this and asked about her prospects of winning her lawsuit.

In a nutshell, this looks like a textbook case of “disparate treatment” (intentional discrimination), and therefore, her odds of prevailing look very good.

But in my cursory search for precedent on this, I found nothing.

I found two recent law review articles on more general treatment of menstruation, and recommend them. I have excerpted very brief “teasers” from these articles (quoting below):

“Reconstructing Pregnancy,” SMU Law Review (2016), by Saru M. Matambanadzo, Tulane Law School:

Discrimination by employers on the basis of menstruation both is and is not prohibited discrimination under Title VII, as amended by the PDA (Pregnancy Discrimination Act). Policies requiring that women have a regular menstrual cycle before returning to work have been viewed by some courts as violating Title VII’s prohibitions against pregnancy discrimination. However, in other cases, courts have held that menstrual cramps are not a medical condition related to childbirth or pregnancy for the purpose of the PDA and therefore disparate treatment on the basis of menstrual cramps is not sex discrimination. (Click here for the article: http://scholar.smu.edu/cgi/viewcontent.cgi?article=1085&context=smulr)

“Tampon Taxes, Discrimination, and Human Rights,” Wisconsin Law Review, by Prof. Birdget Crawford, Univ. of Penn Law School and Prof. Carla Spivack is the Oxford Research Professor of Law at Oklahoma City University School of Law (2017) (Click here for the article: http://wisconsinlawreview.org/wp-content/uploads/2017/05/Crawford-Spivack-Final.pdf).

In finding for the taxpayers in Geary, the Illinois Supreme Court also held that the City of Chicago should interpret its taxing ordinance to include menstrual hygiene products in the definition of “medical appliances,” and thus exempt them from taxation. In fact, the Illinois Department of Revenue and its Chicago counterpart were working with virtually identical statutes, but the State of Illinois adopted a regulation under which it interpreted the phrase “medical appliances” in its sales tax statute to include menstrual hygiene products (thus exempting tampons and sanitary napkins from taxation), but the City of Chicago did not interpret the phrase the same way. The Geary court ruled that the Chicago City Council had a policy of administering and enforcing municipal tax statutes in a manner that was consistent with the State of Illinois' interpretation of state tax statutes. Thus, for purposes of the Chicago city sales tax, tampons and sanitary napkins should be classified as “medical appliances” and were exempt from taxation.

Build a Wall! ... No, a Moat! … Oh, Never Mind

Texas faces a devastating flood. Perhaps building a moat would be cheaper than building a wall.

The point of this post is that neither a wall nor a moat will prevent illegal immigration.

According to a May 2017 report from the Department of Homeland Security, more than 50 million foreigners entered the U.S. legally in 2016 by flying, driving or arriving by ship at a port.

Of that immense group, 1.47 percent— or 739,478 people— stayed in the country past the length of their visa. Immigration law refers to that not as illegal immigration but as “accruing an unlawful presence.” But practically speaking, it's no different than walking across a desert opening (called, by statute, "making an unlawful entry").

I just checked on a one-way fare on Southwest from Mexico City to Dallas for September 20, 2017: $162. Pretty cheap. And it's cheaper and safer than paying "mules" to transport people in the back of a packed trailer.

Unless the U.S. expands its travel ban to Mexico and other nations where people of color live (and are therefore objectionable to an administration that wants to promote a white nation), the so-called problem of “illegal immigration” will not be stopped. It will simply occur in the quiet spaces of our airports.

Grubhub “Gig Work” Case Set for Trial: Why It’s a Big Deal

Uber, Lyft, Homejoy, Grubhub, Snagajob, CityHour—they are versions of “gig work.” That term means that a person performs work, usually through an internet intermediary, and is paid “piece rate” or by the task. 

Upside: Flexibility. 

Downside: No wage-and-hour protections (minimum wage, overtime), no insurance for vehicles, liability, or personal health, no pension contribution, etc.

Many of these “gigs” run afoul of federal and state wage and hour laws, which have very broad definitions of employment. The definition of “employ” is this: “to suffer or permit to work.” Gosh, that sounds like doing dishes after dinner!

Lawson v. Grubhub might be the first gig work case to actually go to trial. Most settle; a few are dismissed. 

A judge has set trial for September 5^th in San Francisco. Grubhub drivers are seeking to be treated as employees under a very worker-friendly California law that requires employers to reimburse workers for travel expenses incurred in the course of doing business.

FedEx lost a major case along these lines about 15 years ago—but that wasn’t gig work. This is “app-driven” work. The implications are huge.

Publication Announcement: “Targeting White Supremacy in the Workplace”

Stanford Law and Policy Review will publish my article by this title.

Why does it matter? The article develops a new theory under the Ku Klux Klan Act of 1871 for suing hate groups (formal and informal) that deprive blacks, other people of color, and immigrants of rights equal to whites. The 1871 statute uses the phrase "white citizens" as a baseline for ensuring that nonwhites have the same rights.

Can you give me an example? Sure. At a large Pennsylvania steel mill a few years ago, the grand dragon of the state’s Ku Klux Klan showed a recruitment video to workers on break. The plant had numerous nooses, swastikas, and so on. The termination rate for blacks was 30%; for whites, less than 1%. The company was held liable under Title VII, an employment discrimination law. The Pennsylvania Klan has not been held responsible. My article shows lawyers how to use this 1871 law to sue leaders and “conspirators” (using the law’s terminology) who create unequal conditions between blacks and whites (again, using the law’s terminology). They can be sued for monetary damages and court orders to stop hate tactics.

What’s the goal of the paper? If the paper is used in just one case similar to the one above— these are extreme cases, not garden variety racial harassment— and if a court adopts my theory that current forms of racial intimidation are re-segregating workplaces (as in Jim Crow times), this will be a success. In other words, if a few white supremacists have to pay damages, my hope is that some racial hate groups will be deterred. 
If the article is published and ignored, it will be a failure. Time will tell.

Most Awesome Two Minutes? Not Totality

This post is especially for friends who missed totality (and are very disappointed). I found totality powerful, emotional, and awesome in the true sense that G-d is partially revealed in the moment.

But since totality is usually a once-in-a-lifetime experience, it makes you think about how short life is in the grand scheme.

My personal totality was watching the birth of my twins, and my last child (the seventh-- and last-chance in-vitro transfer-- after six heartbreaking disappointments). All three were miracles in a statistical sense—but anyone who is part of the birth of her or his child will likely say it’s the greatest moment in one’s life.

I hope I see the next total eclipse in 2024— maybe I won’t.

But I had my totality long before yesterday—and if you think about the most intensely spiritual and awesome two minutes of your life, it’s probably not a total solar eclipse. No special glasses are needed for the most awesome two minutes of our lives.

How Do We Feel About Racial Identity Groups? Click Image

This post is short. It pulls out data from an NPR/Marist poll conducted on August 17^th, after Charlottesville.

Two brief comments:

The poll doesn’t show if support for white supremacy fell (it varies from 2%-4%), rose, or stayed about the same. My hunch is that support didn’t change one way or the other.

Did you notice that President Trump’s approval rebounded sharply this past week? It did.

August 14: 37.4% composite approval; August 18, 39%.

August 14: 57.4% composite disapproval; August 18, 55.1%.

No commentary is provided—I simply pass this along to readers who are interested.

10 Ways to Fight Hate

This important to-do list is from the Southern Poverty Law Center. I have simply summarized key points. For more, https://www.splcenter.org/20170814/ten-ways-fight-hate-community-response-guide.

1. Act: Do something. In the face of hatred, apathy will be interpreted as acceptance by the perpetrators, the public and — worse — the victims. Community members must take action; if we don’t, hate persists.

2. Join Forces: Reach out to allies from churches, schools, clubs, and other civic groups. Create a diverse coalition. Include children, police, and the media. Gather ideas from everyone, and get everyone involved.

3. Support the Victims: Hate crime victims are especially vulnerable.

4. Speak Up: Hate must be exposed and denounced. Help news organizations achieve balance and depth.

5. Educate Yourself: An informed campaign improves its effectiveness. Determine if a hate group is involved, and research its symbols and agenda. Understand the difference between a hate crime and a bias incident.

6. Create An Alternative: Do not attend a hate rally. As much as you might like to physically show your opposition to hate, confrontations serve only the perpetrators. Every act of hatred should be met with an act of love and unity.

7. Pressure Leaders: Elected officials and other community leaders can be important allies.

8. Stay Engaged: Promote acceptance and address bias before another hate crime can occur.

9. Teach Acceptance: Bias is learned early, often at home. Schools can offer lessons of tolerance and acceptance.

10. Dig Deeper: Look inside yourself for biases and stereotypes.
...
Thanks to friends and friends-to-meet-in-the future for already taking these actions.

Do Republicans Have a Conscience?

Of course, most do. But there are two disturbing legal stories today that call for serious discussion about the soul of the Republican Party.

Arkansas— a red state that is controlled by Republican politicians— reported that its Department of Correction paid $250 in cash to buy enough midazolam for use in two executions. A heavily redacted hand-written receipt shows the material was picked up in person on Aug. 4. Pharmacies refuse to sell execution drugs to states, period. No worries for this heavily evangelical state—they apparently bought it off the street. Just my thought— they gave defense lawyers for Arkansas’s death row plenty of legal ammunition to make an Eighth Amendment “cruel and unusual punishment” argument. And now there's a new argument: Can a state use unlawful means to execute a prisoner? That's a Due Process argument under the 14th Amendment. But nobody asked me. Anyway, Arkansas’s conscience is not getting in the way of killing people like unwanted stray dogs at the shelter.

Run-Over Liberal Protester Laws: Black Lives Matter and other liberals groups have tied up streets, and even interstates, with protests that lack a permit. I’m not defending this—just saying it’s nonviolent civil disobedience. Now, a series of red states have various bills that would exempt drivers who hit protesters from liability (states include Florida, Texas, North Carolina, North Dakota, and Rhode Island (blue state)). Yep, it'll be okay for drivers to hit protesters who don't get out of the way. This is cruel, stupid, unconstitutional, and insulting to responsible Republicans.  

Several months ago, I reported on a Michigan bill that would subject union street protests— incredibly rare events these days, even if you count Fight for 15— to jail terms. Well, at least they won't be killed. Thank you, Michigan GOP.

Republicans in the mold of Mitt Romney, Susan Collins, Jeff Flake, John McCain, Lindsay Graham, Jeb Bush, Bob Corker—you get it— would find these developments revolting. But rational Republicans seem to be on the run. 

For these mostly evangelical lawmakers: What would Jesus say to killing people like animals and okaying car drivers to run over other human beings? 

Who Would Weep for a Statue? "Great Leaders" Who Killed Themselves

 

This post is not a wish; it is a worry. Hearing Donald Trump’s ghost author for The Art of the Deal predict that the president will follow his past behavior—resign and declare victory-- I was struck by his account of Trump’s psyche. In sum, Trump doubles down and eventually loses; doubles down on his losses, and loses more and more and more. Eventually, his partners abandon him, and he quits while declaring victory.

That is unusual behavior but not so unique. Many of us have an Uncle Joe who follows a similar course, without making so many billions and so many enemies.

But filtering this analysis through two more lenses.

First, Uncle Joe does not perpetually attack people; but our president cannot go more than 36 hours without using Twitter to viciously attack someone. His attacks are indiscriminate, and increasingly target his allies. That is alarming.

The second piece is the president’s elegy for statues. Politics aside, how can a man mourn a statue and not have real feelings for people, other than disdain, mistrust, and vengeance?

Here are three “great leaders” who took their own lives. I hope my comparison is wrong. But my gut says it’s possible. As for me, I see parallels in these cases— personalities with grandiosity and delusion, a lust for power, abandonment, and betrayal,  followed by “closing in” from political enemies, ending in self-martyrdom.

Adolf Hitler

Hitler realized by late 1944 that he could lose the war. By the next April he concluded Germany’s military failures meant it had forfeited its right to survive as a nation. He ordered the destruction of all German industrial infrastructure before it could fall into Allied hands. His minister, Albert Speer, secretly disobeyed the order.

According to U.S. Armed Forces newspaper, Stars and Stripes, Hitler met with his inner circle for the last time on April 22^nd. He launched into a tirade against the treachery and incompetence of his commanders, culminating in his declaration—for the first time—that “everything was lost.” Several days later, Hitler was informed that Mussolini was captured and hung. Within hours, Hitler shot and killed himself.

Marcus Junius Brutus the Younger (Brutus)

Julius Caesar acquired dictatorial powers, enraging Roman senators who plotted to kill him. Brutus was recruited to the conspiracy. On the Ides of March, Brutus led an all-out assault that killed Caesar in the hallowed halls of the Senate. 

The Senate granted the assassins amnesty, but ordinary Romans were outraged. Brutus fled to Crete. Two years later, his world was a fast-closing circle, with his protecting legions fleeing from his consul. Knowing his army had been defeated and that he would be captured, Brutus committed suicide by running into his own sword being held by two of his own men.

Hannibal

This iconic Carthaginian general battled a much bigger and stronger Rome. But over time, the Roman strategy of attrition was too much for Hannibal’s strategic prowess. Roman generals avoided direct battle with Hannibal— instead, they fought guerilla wars that slowly dissipated Hannibal’s power. Facing defeat, Hannibal drank poison that he carried in a ring. Before dying, he left behind a letter declaring, "Let us relieve the Romans from the anxiety they have so long experienced, since they think it tries their patience too much to wait for an old man’s death.”

That sounds like uncomfortably like President Trump-- trying to turn the psychological tables on an enemy in the context of a tragic and lost battle.

What Ex-Klansmen from 1871 Want to Tell You

My research paper delves into testimony for the Ku Klux Klan Act of 1871. About 125 witnesses came before Congress. Most were former Confederate soldiers. Some had joined the KKK voluntarily; others were coerced. Some quit because their wives or ministers insisted. Now, that’s a thought for today.

I have taken the following excerpt from my paper— if you read these brief quotes, you will form your own connections from the past to the present. [In that time, Democrats were pro-states rights/pro-slavery; Republicans were today’s version of liberals.]

The Ku Klux Klan created an integrated terror system, using economic segregation and exclusion to achieve its political objectives. Seven more witnesses came before the House of Representatives to testify about the Klan’s labor segregation practices.

William L. Rogers, a South Carolina merchant, explained that he left the Democratic party because “they passed a resolution declaring that they would give no work to any man, white or black, who voted the Republican ticket, nor permit him to live upon their lands, nor sell him provisions, but would starve him out.” 

A South Carolina Confederate veteran, John R. Cochran, repeated this theme: “Democratic clubs were organized throughout the county, and it was generally understood, and I was so told by many members of the clubs, that resolutions were passed in the clubs that no man should employ colored men who voted the Republican ticket, and there was a general system of intimidation and violence in many portions of the county.” 

Thomas C. Scott explained how the Klan tied its campaign of political terror to employment for freed blacks: “I heard Gabriel Cannon, state canvasser, say, in addressing the colored people, that if they voted the radical ticket, they would lose their friends and wonder about like Indians; get their length, two by six, and their bones would whiten the hills, as they were dependent upon us for everything— bread, employment, and sustenance.” 

Thomas Hill, whose residence was not disclosed, testified to being economically coerced to join a Klan-supported Democratic club: “Being a poor man, and in order to save my life, I was compelled to sail under false colors.” 

Jed P. Porter, Union County South Carolina, testified about a threat made to a former slave:

A short time before the election a freedman who lived in my neighborhood informed me that a coffin had been left in the shop where he worked, with a notice that if he did not leave the country at once he would be killed for being a Radical. I am satisfied it was true, and the freedman left at once for Columbia.

Wilson Cook, a resident of Greenville County, South Carolina for more than 30 years, elaborated on his observation of political intimidation: “Threats that if they voted the Republican ticket they would be turned away from the homes which they occupied as employés.”

Testimony of Johnson Wright, a 38 year-old carpenter, demonstrated that the white supremacist toolkit of threats included complete banishment from all economic relationships—in effect, a racial boycott: “There were threats made against persons of Republicans, and also against threats that every man who voted the Republican ticket would be turned off and left to starve.”

Anti-Semitic Intellectuals: They Aren't Who We Thought They Were

Anti-Semitism comes from the same cauldron of blind hate as racism, xenophobia, Islamophobia, homophobia, and related social pathologies.

But it is important to point out that behind every group of brainless thugs we saw in Charlottesville, there is a “thinker” sitting in his office, cranking out hate that masquerades as learned scholarship.

And now I have the displeasure of introducing a renowned anti-Semite, Prof. Kevin MacDonald, retired Professor of Psychology at California State University–Long Beach (formally censured by his university and faculty colleagues in 2008).

He is currently the editor of the Occidental Observer, which he says covers “white identity, white interests, and the culture of the West.” The Anti-Defamation League says that the Occidental Observer has “become a primary voice for anti-Semitism from far-right intellectuals.”

If you want a flavor of this high-minded racism, stated so glibly that you might miss its hate-messaging, try this out from his Occidental Observer mission statement: “Societies in Europe, North America, Australia, and New Zealand that have been controlled by whites for hundreds of years are the only ones to accept their own demise as a moral imperative.” That’s where the thugs in Charlottesville come in handy—this “stand-your-white-ground” rally gives force to the white racial mission that McDonald spells out.

Here is a sample of his poisonous work:

A People that Shall Dwell Alone: Judaism as a Group (1994). That book is interesting to square with the two Jewish leaders at President Trump’s side yesterday during his elevation of white supremacy—Steve Mnuchin and Gary Cohn. They have taken assimilation so far they cannot separate themselves from Trump’s hate messaging. And note: Jews stand united with many other broad social groups that condemn the white supremacists at Charlottesville. The only people causing us to stand alone are McDonald’s thugs.

Here is another publication: Stalin’s Willing Executioners: Jews as a Hostile Elite in the USSR. That sounds like a way to update the blood libel that Jewish people drank Christian blood instead of wine (or used the blood of a Christian child to bake matzo) to celebrate Passover. That was a medieval libel; McDonald gives us the genocidal version from Stalin’s regime in the 1940s.

I conclude with McDonald’s book, Separation and Its Discontents: Toward an Evolutionary Theory of Anti-Semitism. What makes this title arresting is how it rips off Sigmund Freud’s iconic 1929 book, Civilization and Its Discontents. Anti-Semitism advances the stereotype of Jews as a parasitic and predatory people whose success depends on stealing from others. Without a revealing a trace of irony, McDonald has tried to cash in on Freud’s classic book title (Freud was Jewish).

....

What’s the point here? We cannot dismiss white supremacy as a group of uneducated yokels. They are more sophisticated and dangerous than we care to admit.

Boy Scouts of America: It’s Time to Denounce KKK, Nazis

Dear Boy Scouts of America,

A few short weeks ago, you lent a national stage to President Trump in the sincere belief that he would give our future leaders a non-partisan, idealistic speech. You were duped. Nonetheless, many of your Scouts hooped and hollered support for President Trump’s partisan and divisive speech.

At Charlottesville, we saw legions of testosterone-fueled young men who have fallen under the psychotic spell of white supremacy. Look at the Vanguard of America, Mr. Fields’ group, and you will see clean-cut young men in white polo shirts that could rival Boy Scouts of America for its wholesome outward appeal.

I know, you don’t want to be political. You lost that pretense when you welcomed President Trump to a national stage that you set for him. 

I also know that you are slow to call out hate and bigotry. It took several high-stakes lawsuits for you to welcome gay Scouts and leaders.

So, let’s live up to the ideals I learned as a Boy Scout. Call out hate and bigotry. Keep it short and simple: “The Boy Scouts of America denounces the KKK, Nazis, and related white supremacist groups.” If you remain silent, you will have taken a side.

Michael H. LeRoy

Eagle Scout & Order of the Arrow (1971)

Troop 287

Barrington, IL

Daily Stormer Knocked Off-Line: Huge Win for Removing Hate Speech

This is real progress. The Daily Stormer has been a vile hate site since its inception in 2013. It especially trained its hatred on Jews, but also organized hate speech forums against immigrants, African Americans, other minorities, and women. It was booted from its host, GoDaddy; and for now, it is out of commission.

No law could be passed or enforced that would have greater impact than this development.

The picture below is an example of Daily Stormer’s hate messaging—and now, it’s gone.

Looking for Hope and Perspective after Charlottesville?

In 1952, Prof. Gene Gressman authored an extremely insightful article on what we today call white supremacy. He pointed out the failure of civil rights laws. His Michigan Law Review article ended with these words (quoted from President Truman’s Commission on Civil Rights).

If I receive enough replies on FB or m-leroy@illinois.edu, I’ll post them (with or without names, up to you).

And in the present political climate [the early 1950s] it seems doubtful that any new congressional legislation will soon be forthcoming, especially along the effective lines recommended by the President's Committee on Civil Rights. But as that Committee pointed out:

"The adoption of specific legislation, the implementation of laws or the development of new administrative policies and procedures cannot alone bring us all the way to full civil rights. The strong arm of government can cope with individual acts of discrimination, injustice, and violence. But in one sense, the actual infringements of civil rights by public or private persons are only symptoms. They reflect the imperfections of our social order, and the ignorance and moral weaknesses of some of our people.

"There are social and psychological conditions which foster civil rights; there are others which imperil them. In a world forever tottering on the brink of war, civil rights will be precarious at best. In a nation wracked by depression and widespread economic insecurity, the inclination to consider civil rights a luxury will be more easily accepted. We need peace and prosperity for their own sake; we need them to secure our civil rights as well. We must make constructive efforts to create an appropriate national outlook— a climate of public opinion which will outlaw individual abridgments of personal freedom, a climate of opinion as free from prejudice as we can make it.”

Is Your Area Richer or Poorer? Your Data Is Now Served!

While revising a course on immigration, I came across a fascinating study by the Pew Foundation (it’s not fake news, I promise): “America’s Shrinking Middle Class: A Close Look at Changes Within Metropolitan Areas.” I combed the data for areas that correspond to ProfLERoy readers—if I missed your area, and you want the info, drop me a note at m-leroy@illinois.edu.

The study takes two snapshots, one in 2000 and one in 2014. 
It divides area populations by low-medium-high. 
It then computes a composite score (see red number). 
A positive value means your community grew wealthier; negative means… well, you get it.

In this teeny-tiny subset, Pittsburgh and Seattle are "wealth winners."  My home area of Champaign-Urbana is the biggest loser. Just guessing it's picking up the sharp decline in Rantoul, with a major base closure.

Here are selected cities [APOLOGIES ... THE TEXT DOESN'T IMPORT WELL INTO BLOGGER]:             

Distribution of adults by income tier (%)

2000                                2014                       NET CHANGE

Austin-Round Rock, TX  23.2        55.1        21.8       23.4        52.5    4.1       2.1

Champaign-Urbana, IL   28.6        53.5        17.9       35.9        44.4    19.7     -5.6

Chicago-Naper-Elg, IL    23.6        56.3        20.2        27.4        51.1    21.5      -2.6

Colorado Springs, CO     20.6        61.2        18.2        23.5        54.8    21.7       0.6

Denver-Aur.-Lake., CO  18.8        57.7        23.6         22.4        53.0     24.6       -2.7

Indy-Carmel-And., IN    19.9        58.9        21.2         24.4        54.8     20.8       -5.0

Palm B.-Mel.-Titus., FL  26.1        58.7        15.2         27.1        56.3     16.6       0.4

Pittsburgh, PA                   25.6        57.3        17.1        23.6        54.6   21.9        6.8

Seattle-Tac.-Bell., WA   20.1        59.4        20.5            21.3        52.6        26.2        4.6

For more, visit: http://www.pewsocialtrends.org/2016/05/11/americas-shrinking-middle-class-a-close-look-at-changes-within-metropolitan-areas/

“Thank God for Dead Soldiers”: Update on Hate Speech Case

You might recall this case from 2011. The Westboro Baptist Church is rabidly anti-gay. Members go to funerals of gay soldiers. In October 2011, they disrupted a funeral for a highly decorated Navy SEAL killed in Afghanistan by an improvised explosive device. In God’s name, they picketed the funeral with signs such as “Thank God for Dead Soldiers” and “Soldiers Die 4 Fag Marriage.”

Nebraska passed a law requiring a 500 feet perimeter around a burial site that picketers cannot intrude (“Nebraska Funeral Picketing Law”).

For perspective, a football field, with both end zones, is 360 feet.

Westboro Baptist Church filed suit, claiming that the perimeter violated their right of free speech.

On Friday, a federal appeals court upheld the perimeter as a reasonable “time-manner-place” limitation on free speech. The 8th U.S. Circuit Court of Appeals ruled Friday that it wasn’t unreasonable to limit the time and location of picketing because of “vulnerable physical and emotional conditions” of funeral mourners.

The church will appeal to the U.S. Supreme Court.

Translation (for now): Free speech isn’t absolute or unlimited—the government can place reasonable limits on it.

Does this have implications for other hate speech—for example, by white supremacy? That is a good question for all of us to ponder. 

Dred Scott in 30 Seconds

Dred Scott was a slave who sued for his freedom—and for his wife and daughters. His owner brought Scott and family to Illinois and Wisconsin, where they lived for four years.

The Supreme Court, voting 7-2, said that slaves have no rights as citizens. Slaves are property, citing Roman law and a long line of civilized peoples owning slaves.

The ruling in 1857 deeply polarized the nation and helped to fuel the Civil War three years later.

…

White supremacists have a range of views. No one advocates openly for slavery. But the idea that the “Nordic” [white] race is superior follows the logic of the ill-fated Dred Scott decision— blacks are not equal to whites. Then-- and today-- everyone must make a stark, yes-or-no judgment: Accept or reject the idea of human equality.  

Travel Ban for White Terrorists?

White supremacists have clearly established constitutional rights to speech and assembly—no less than anyone else. And, they have a right to attend these assemblies with weapons.

But they do not have a constitutional right to drive cars or other vehicles.

If we want to think of a travel ban for white terrorists, the map (above) is a place to start our national conversation. Let these terrorists walk to their marches.

Targeting White Supremacy in the Workplace

I have just completed a research paper, "Targeting White Supremacy in the Workplace." Here is the paper's abstract. 

I welcome comments. If you want a copy of the draft paper, please contact me at m-leroy@illinois.edu. Here is a summary.

Targeting White Supremacy in the Workplace

 Michael H. LeRoy 

Resurgent white supremacy is leading to segregation in some workplaces and local labor markets, long after Title VII and executive orders dismantled Jim Crow. My research conceptualizes a new way to apply the Ku Klux Klan Act of 1871. Much of the law— passed to combat a white terror campaign to deny blacks and their political supporters rights equal to those of white citizens— has been struck down by court rulings. The surviving part, codified in 42 U.S.C. § 1985(3), is limited by its narrow text, applying to two or more people who go in disguise on a highway to commit racial depredations. Using extensive legislative history, I show that Congress heard testimony from ex-Klan members about the group’s strategy to boycott black workers and segregate them in a caste system that approximated slavery. A major floor speech by Rep. Luke Poland emphasized congressional intent to interdict this economic segregation. I show the relevance of this history by analyzing four current and recent cases involving white supremacist planning and commission of acts to drive blacks, Mexicans, a Jew, and a Navajo from their workplace or a specific labor market. I demonstrate how these cases fit the demanding textual requirements to state a claim under Section 1985(3). In response to a growing number of conspiracies in a work setting to attack minorities, this study provides victims, lawyers, and courts a new way to confront today’s resurgent and aggressive white supremacy movement. 

Google and Free Speech at Work

Did James Damore have a legal right to publish a manifesto stating that women are biologically unsuited for employment as engineers?

The legal path is muddled.

Generally, a private sector employee has no speech rights in the workplace. 

For example, in Dixon v. Coburg Dairy, Inc., a court upheld the firing of a worker who was terminated for failing to remove his lunch box, which displayed the Confederate flag. Dixon argued this was his right to express his “heritage,” and sued under a state law that protects political speech. The court said that political speech is protected in public settings—not in a private employer’s lunch room.

In Cotto v. United Technologies Corp., the employer—a defense contractor— ordered every employee to display a small American flag at his or her work station. Cotto lost his case-- the court said the employer had a right to compel the flying of the flag on its private property.

But Damore has filed a complaint that takes a different path. His case is based on the National Labor Relations Act. Yes, that’s odd—there is no union issue here. But that law protects employee speech very broadly. 

Lawyers have made clever uses of the law in nonunion settings, in effect stretching it far beyond the original intent to protect workers who protest in a “labor” context.

Damore's lawsuit-- filed this week-- argues that he was discriminated for view point discrimination—discrimination against a white person, a male, or a conservative.

My best guess? At some point, courts look at legislative intent. The National Labor Relations Act was not enacted to protect Damore’s kind of speech. If that were the case, private businesses would be forced to put up with any and all speech that the employer finds disagreeable, disruptive, or offensive. 

Could Trump Postpone 2020 Elections? Not Alone. Here’s Why

Let’s assume we avoid nuclear war and are ready for elections in 2020. A survey commissioned by the Washington Post shows that  52 percent of Republicans would support postponing the 2020 election. This is purely hypothetical but in this age of polling, would it give Trump a green light to expand his fraudulent election commission of overblown concerns of voter fraud?

I’m attaching a link to a congressional sub-committee featuring my constitutional law professor, Gene Gressman. His testimony is at the 2 hour, 32 minute, 30 second mark. You can get there easily by forwarding the cursor. Visit: https://www.c-span.org/video/?126297-1/presidential-primaries-election-issues. Give it one minute of your time—he gets right to the point.

Here is the bottom line, as explained by Prof. Gressman. There are two provisions in the Constitution that require uniformity in time for national elections (Art. I, Section 4 [Congress can regulate time, place and manner of elections for HR and Senate]) plus Art II, Section 1 [each state shall appoint electors, Congress may determine time of choosing electors]).

Okay, that’s pretty dry stuff. Fast forward to today, Congress has acted pursuant to these constitutional provisions by setting Tuesday after the first Monday in November for national elections. The very important point for now is that Congress could change this. And since Republicans are in control of all branches of government, this cannot be dismissed as a null possibility.

Take a moment to reflect on this. Is the poll nonsense? Is it ominous? Something else? Feel free to share your post on this crucial topic. All civil replies are welcome. 
PS: Prof. Gressman was testifying about a different concern. Some states were "gaming" the national political scene by moving their primaries forward, giving them more attention from candidates. That's what we have today, but it skews the process toward very small, conservative states. This hearing dealt with the power of Congress to take that date-setting power away from states by establishing a uniform primary date. 

Calling You Mentally Ill: A Sign that You Live in an Authoritarian State

Communist China and the Soviet Union successfully labeled political dissent as mental illness. As recently as the times of Leonid Brezhnev, psychiatry was used to disable and remove from society political opponents. The Soviets had a name for this “mental illness”—  “philosophical intoxication.” Treatment was offered in Siberian labor camps, facilitated by grueling labor.

Now comes this: Sen. Ron Johnson is suggesting that Sen. John McCain’s pivotal vote on health care was the product of a mental disorder brought on by his brain cancer. Let’s just call Sen. Johnson for what he is—a worthy heir to the cruelest political regimes that labeled disagreement as a form of mental illness.

I encountered similar treatment at the hands of a Breitbart reader who took exception to my interview in the Chicago Tribune on illegal immigration.

Written by Paul D. Talbott, President of TCI, Inc., the email stated: “Mike, Tens of millions of us in this country are fed up with liberal jackasses like you. People who enter this country illegally are illegal aliens. Seek help. Liberalism is a mental disorder. ”

Denigrating science, the media, judges, the Congressional Budget Office, professors-- it all fits the pattern: slash and burn institutions that do not advance your agenda. If you can't win on the facts, bury the evidence, and label your opponents mentally ill. 

Judicial Ethics Matter

Suppose two justices on the Illinois Supreme Court accepted a gift of stock from a person whose case they were deciding. What would you think? This happened in the late 1960s, and led to the resignations of Roy J. Solfisburg, Jr. and Ray Klingbiel. It also severely damaged the Illinois judicial system—so badly, in fact, that Illinois restructured its courts and enacted a stricter judicial code to regulate the conduct of judges.

Today, that code has not been updated as frequently as similar codes in other states. The main problem with our current code is that it deals inadequately with the millions of dollars that are pouring in to fund judicial elections.

There is another serious problem. The Judicial Inquiry Board, the agency that hears complaints about judges, magnifies the Code’s deficiencies. An audit of that agency’s disciplinary system found the board operated for 811 days and 1,360 days without filling two constitutionally required positions for non-lawyers. At the time of the audit, it had four vacancies in thirteen positions. The board had 311 pending complaints, some for judicial misconduct and mental incapacity.  From 2012-2014, the board operated with two investigators, and one person who doubled as its executive director and general counsel. 

Another analysis showed that the board’s budget fell 15%, from $785,000 in 2009 to $680,000 in 2015.  Before its budget was cut, this tiny agency had six or seven employees to investigate complaints against judges. Now, it imposes discipline in less than one percent of complaints.

What are we to make of a judge who solicits money from police agencies and health care organizations? That is a matter for the Judicial Inquiry Board to consider. But the case shows a major problem with our code. Most states model their rules after the American Bar Association’s suggested code. Rule 1.2, Canon 2 is titled “Promoting Confidence in the Judiciary.” It says: “A judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety (emphasis added).”

Now look at the milder version we have in Illinois—and note that it avoids mentioning shall, and replaces it with should. Our Rule 62, Canon 2 states: “A Judge Should Avoid Impropriety and the Appearance of Impropriety in All of the Judge’s Activities.” Part A continues: “A judge should respect and comply with the law and should conduct himself or herself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary (emphasis added).”

In sum, many states require judges to avoid impropriety, but Illinois only suggests it in order to maintain the public’s confidence.

So, maybe it’s okay if an Illinois judge solicits and accepts money from groups in exchange for giving lectures. After all, politicians—such as Hillary Clinton— take money for giving speeches. And since our judges are not only elected, but must declare a party affiliation, perhaps our judges should be held to the same ethical standards as Hillary Clinton. But the Chief Justice of the U.S. Supreme Court would probably disagree with that idea. In a recent decision involving a Florida judge who was disciplined for soliciting campaign donations, Chief Justice John Roberts explained that “the role of judges differs from the role of politicians.” He said that judges must strive “to be perfectly and completely independent.” But Florida has a stricter code—so, a judge who takes money while giving lectures might be just right for Illinois’s political culture.

Federal Scientists: Brave New World

This dull picture comes from a federal scientist who is working on a project to prevent the Asian carp from invading—and essentially, destroying— the Great Lakes. It’s thankless work, hanging out on barges to measure river currents and the like. But if federal and state governments are going to succeed in interdicting this destructive fish, good science is required.

My daughter-in-law, Jess Zinger LeRoy, is spending much of August on the industrialized waterways near Chicago so that we—and future generations—can enjoy Lake Michigan in its natural state, free of flying and species-destroying carp.

I recall coffee with Jess when she started in her Ph.D. program. Like any scientist, she is intensely curious. That’s why she—and legions of scientists— put up with working conditions that most of us would run from. Not to mention the tedium of crunching data.

There is a bigger picture. Jess is part of an immense network of federal scientists who study our land, waterways and rivers, oceans, climate, atmosphere and so on.

Today, that’s a dangerous job because of the Trump administration’s active and aggressive hostility to science as a human pursuit, and federal scientists as employees.

Thank you, Jess. Thank you, scientists who leaked the climate study to “MSM” outlets. Our survival depends on your work.

What My Dad Did After He Failed an English Test

For many men drafted to serve in the U.S. Army, being rejected would be welcome news. Not so for Otto Lefkowitz, who failed an English test at the induction center. He arrived in America three years earlier, on a small freighter that left Hamburg. On the other side of the Atlantic, his heart leaped at the sight of the Statue of Liberty. At Ellis Island, he presented false papers. By the time he was successfully processed and released to a relative in New York City, Otto Lefkovitz had a new identity: Robert LeRoy. The new immigrant found his way to the Catskills, where he worked as a baker’s assistant at a resort that was New York’s version of Mar-a-Lago.

This illegal immigrant wouldn’t take no from the U.S. Army. He dictated a letter to send to President Truman demanding a second chance. Someone responded to the immigrant’s letter. He was told to report for a second test. He passed and served in an intelligence unit, where his knowledge of Eastern European languages was of value to the Army in the emerging Cold War.

Mr. LeRoy eventually left with an honorable discharge and started a construction company in Chicago, a city where he knew no one. By the time he died in 2005, Mr. LeRoy was a wealthy man who had employed hundreds of construction workers, and many other employees on his sprawling farm in the northwest suburbs.

That’s my Dad. At an early age, I knew he was different from everyone else in my life because my Dad spoke in a thick, Hungarian accent.

My Dad was also different because every day, starting when I was about eight years-old, he wrote a list of chores for me. This came naturally to my Dad because at our long breakfast table he made out work lists for his construction crews. School or summer vacation, the lists were as constant as his kisses to my cheeks. My Dad’s lists would fail an English test; and his spelling proficiency never improved in the next ten years that I would be dispatched to these mind numbing chores. If I couldn’t figure out an item on the list, I asked my Mom for help because I knew that my Dad was sensitive about his poor spelling.

These lists invariably put me in daily contact with my Dad’s immigrant workers. Like my Dad, they were not proficient in English—some knew no English. Most were from Poland and Mexico, one from Finland— a seemingly odd assortment unless you know Chicago neighborhoods like my Dad. At times, the men teased me because I knew English but no other language. They had a point.

At a recent White House event, President Trump threw his support behind the RAISE Act. It’s a bill that would require legal immigrants to pass an English test—not for citizenship, but simply to be admitted to the U.S. This law would have stopped my Dad at Ellis Island, or back in Hamburg. It would have stopped the Polish and Mexican workers who raised kids that are contributing members of our society. The RAISE Act also would have taken tens of millions of dollars every year out of the manufacturing sector that came from my Dad’s purchase orders for expensive windows and casings, steel and wood doors, insulation, siding, paint, shingles, lumber, steel, and concrete. Hopefully, we won’t pass the RAISE Act: It is certain to lower us. 

Bank President Imprisoned for Employing Lawfully Admitted Chinese

Undated photo, Chinese family portrait in early California, archived in Humboldt Library.

Imagine this headline: Bank President Imprisoned for Employing Lawfully Admitted Chinese. This situation arose in 1879, when the president of the Sulphur Bank Quicksilver Mining Company, a California corporation, was arrested for employing lawfully admitted Chinese. The Chinese were admitted after the U.S. and China signed the Burlingame Treaty. This bilateral agreement gave Chinese visa-holders the right to work in the U.S. and a reciprocal right to Americans. The Chinese came here for employment in mines, on railroads, and doing laundry; the Americans went to China as Christian missionaries.

Like our national climate today, a wave of anti-immigrant attitudes took hold in the 1870s. California was a hotbed of intolerance. The state’s constitution was amended to include a total bar against employing Chinese. One section forbade the direct or indirect employment of “any Chinese or Mongolians.” Another section declared: “The presence of foreigners ineligible to become citizens is declared to be dangerous to the well-being of this state, and the legislature shall discourage their immigration by all the means within its power.” A federal court freed the banker, finding that the state criminal code conflicted with a national treaty. But the nation followed California’s racist lead over the next 80 years. It passed and re-enacted the Chinese Exclusion Act; and when agricultural groups imported Japanese laborers, Congress answered with a broader “Asiatic Exclusion Zone.”

This law was furthered broadened in 1924, when Congress set a strict quota on worldwide immigration. Italians and Eastern Europeans, mainly Jews—many of whom had few skills, spoke no English, and were perceived to be something other than white— were blocked in their efforts to come to America.

These insular and overtly racist laws were rolled back eventually after World War II. By 1965, America’s current version of global immigration became law.

The Orwellian-named RAISE Act, proposed by Sen. David Perdue (R.-GA.) and Sen. Tom Cotton (R.-AR.), is a warmed-over version of the 1924 law, with its quota feature, and skills requirements. More subtly, it mimics the Asiatic exclusionary laws with its English-speaking requirement. Beneath its grandiose justification offered at the White House this past week, the bill signifies a return to white skin color as the primary criterion for the nation’s immigration laws.

The biggest difference between the insular immigration laws from the 1880s-1940s and now is that today’s economy is global. Starting now, other nations will use the RAISE Act to their raise their competitive advantage by welcoming the immigrants we shoo away. If enacted, the law will raise the age of our already older population, further straining our Social Security system and age-related benefits plans. Yes, the RAISE Act would admit merit-based applicants; but its very low numerical limits are certain to deprive the U.S. of younger talent. Enacted or not, the RAISE Act has already been successful by nurturing the racial grievances of a segment of our population. 

Scoop on Poop at Work: Protest, Medical, and Genetic-Testing Issues

During my labor arbitration conference with union leaders yesterday, several people related the following incident. An employee who cleans aircraft defecated in the cabin, and smeared the “deposit” (union rep’s apt-phrasing) on the cabin walls. No, the union isn’t aiming to get the person’s job back. Their concern is that the employer is ordering genetic testing for 16 employees who had access to the plane.

There is a “lead case” on genetic testing for fecal matching. Google Lowe v. Atlas Logistics for details. The employer operates a food warehouse (for human consumption). One or more employees were defecating in the aisles. The employer had to destroy some pallets of food.

The record doesn’t disclose if the defector was caught—but two employees who were required to give a cheek swap for genetic testing sued under GINA, the federal law that prohibits genetic testing of employees. The men were awarded $2.2 million.

The test is interesting. It doesn’t analyze chromosomes; it only measures gaps between genes. Everyone has a unique spacing sequence. The employer argued that it wasn’t acquiring any medical information. The court said that’s beside the point—Congress said—and Congress meant—to very broadly prohibit genetic testing in the employment relationship.

The Atlas and airline cases appears to be examples of anti-social people going to extreme lengths to protest working conditions.

But other defecation cases are entirely different. In Allen v. CH Energy Group, an employee who was undergoing cancer treatment was fired after a woman reported that the worker defecated on a sidewalk. 

The employer took the complaint at face value and did not investigate. By the way, the woman later retracted her first story, and said she observed wiping.

The employee admitted to wiping himself; but also said his termination for public defecation—circulated by the employer’s supervisor in a small town— defamed him.  A jury awarded the employee $250,000 against the employer for defamation.

***

I am trying to figure out what all this means. For now, these cases show two very different types of defecation at work, the anti-social variety and the medically-induced type. The two cases also show that other people are drawn into defecation disputes—some with genetic tests, some who circulate defamatory rumors. Both cases ended in large liability judgments for employers. In all, it’s an unsettled and unsettling picture.

Mining Jobs Down 3.6% in West Virginia

Today’s jobs report is excellent news. It does not show good news for coal miners where President Trump spoke last night. The chart below (lower right) comes from the U.S. Department of Labor. Showing data for West Virginia from May 2016-May 2017, “mining, logging, and construction” employment is down 3.8%; manufacturing is down 2.9%. Trump’s speech made no mention of this disappointing news.