What My Students Taught Me: How the South Used Gun Control to Maintain White Supremacy

As part of my Campus Honors Program course (“Immigration and Race: Inequality in Labor”), students had end-of-semester presentations. I learned much from “How the South Used Gun Control to Maintain White Supremacy.”

Here are “highlights”:

Nat Turner Rebellion 1831: Virginia, Maryland made it completely illegal for Black people to own guns; Tennessee passed a constitutional amendment: “That the free white men of this State have a right to keep and to bear arms for their common defense.”

Cooper v. Mayor of Savannah (Georgia State Supreme Court): “free persons of color have never been recognized here as citizens; they are not entitled to bear arms.”

Dred Scott case: Denial of citizenship to all blacks because “it would give them full liberty […] to keep and carry arms wherever they went (i.e., blacks would have Second Amendment rights).”

Post-Civil War: Southern states prohibited blacks from possessing weapons. Violators were jailed. Their guns were turned over to the Ku Klux Klan.

***

Selected Works:

Cornell, S. (2006). The Early American Origins of the Modern Gun Control Debate: The Right to Bear Arms, Firearms Regulations, and the Lessons of History. Stan. L. & Pol'y Rev., 17, 571.

Cramer, C. E. (1994). The racist roots of gun control. Kan. JL & Pub. Pol'y, 4, 17.

Radiolab (2017, Oct. 12). The Gun Show. National Public Radio. Retrieved from: https://www.listennotes.com/podcasts/radiolab-presents/the-gun-show-a07VKgH1deC/#transcript

Tahmassebi, S. B. (1991). Gun control and racism. Geo. Mason UCRLJ, 2, 67.

Can Trauma Pass On Genetically? Yes. What My Students Taught Me

Yesterday, students in my course (Immigration and Race: Inequality in Labor) presented their research projects. I am summarizing a stunning project by two psychology students who also work in the UIUC Brain and Cognitive Development Lab.

“Mental Illness Within the Slave Population: Early History to Present Day” showed that slaves in the early 1800s were “treated” for mental illness. Manifestations of illness included slaves talking back to masters all the way up to engaging in rebellious behaviors. 

The shocking part was medicine’s role.

One school of scientific thought believed that black people have less oxygen in their blood than whites—and this caused some degree of mental infirmity. 

Psychiatrists of the time also thought the best way to treat these “mentally ill” slaves was whipping.

The students then turned to studies of Holocaust survivors. 

Almost all exhibited PTSD, not only behaviorally, but hormonally. A stress hormone created in the amygdala (inner core of the bran) was more than normal: the amygdala also remained in “overdrive.”

The real stunner is evidence that an abnormal number of descendants of Holocaust survivors have high stress hormones that come from their amygdala. Researchers believe that this is evidence of—and here, I use my students’ words— “multi-generational oppression.”

They concluded that the higher rates of mental illnesses among African-Americans are quite possibly a genetic legacy of several generations of slavery (called by Swiss researchers Post Traumatic Slave Disorder).

Secret Workplace Recordings Are More Common: Beware

I recently had an out-of-state arbitration case involving an employee who was secretly recording conversations at her workplace. The office had a toxic atmosphere: she wanted to get her colleagues in trouble. She was fired. She faced criminal charges, which were dropped. I upheld the termination.

Meanwhile, an Urbana School District official was caught trying to secretly record a closed-door meeting of the school board. He was fired. He is facing criminal charges.

What can we learn from this?

First, employees have access to cell-phone and related technology that is spy-craft quality. Pens are a common device (costing about $120).

Second, it seems that people tape others to set up some type of reporting or enforcement activity. Back to this point in a second.

Third—and here is the reason for the post— this activity is a crime in all 50 states (it is also a federal crime).

There are two types of secret recording laws. The most common is the one-party consent law. A recording is legal only if one party who is being recorded consents. Other people whose voices are captured do not have to consent. 38 states have this law.

The other 12 have all-party consent.

A recent law review article breaks this down—and it is readable for a general audience.

Rauvin Johl notes:

The rise of smartphones, smart technology, and the internet of things has pushed society incrementally closer to the camera-laden dystopia described in George Orwell’s 1984. But rather than a surveillance network orchestrated by Big Brother, today’s recordings are made by private citizens as well as the government. . . . These devices have placed immense power in the hands of the public, allowing us to record and share everyday miracles, nuisances, and tragedies….

[C]onsent laws were intended to protect privacy and preserve social bonds (emphasis added)….

Johl makes the point that more states are adopting multi-party consent laws. There is a big downside. Consider how witnesses to police brutality record events and make them public. That could be a crime in an all-party consent state. In a one-party consent state, I can ask a bystander for permission to record—that opens the door to capturing not only police brutality but co-workers or supervisors who sexually or racially harass others.

There is no easy way to think about this, except: Be careful about how you record events and conversations. Think, too, about what this means for developing workplace policies and training for employees.

For more, see Rauvin Johl, Reassessing Wiretap and Eavesdropping States: Making One-Party Consent the Default, 12 Harv. L. & Pol’y Rev. 177, 178 (2018), available at http://harvardlpr.com/wp-content/uploads/2018/03/Johl.pdf.

Bush 41 and His "Little Brown Ones": "Family Fairness” President Who Pioneered DACA

Say hello to George P. Bush--one of President George H.W. Bush's three grandchildren born of American and Mexican ancestry (giving rise to the president's famous if awkward love for his "little brown ones"). Grandson Bush is the elected land commissioner of Texas.

****

It’s understandable that we tend to associate DACA as President Obama’s edict that allows temporarily the presence of roughly two million young migrants who came here as children (700,000 are registered).

But it followed a blueprint set forth by President George H.W. Bush and his INS Commissioner, Gene McNary. The Bush I administration expanded this family-unification policy by deferring deportation for unlawfully present spouses and children of legalized aliens. Later, the INS issued a policy to authorize the employment of these deferral recipients. 

The “D” in DACA stands for “deferred.”

A president cannot legalize the presence of an illegal alien. But a president can put certain individuals at the back of the enforcement line.

President Bush announced a family deferral policy in 1989. He did so because many families could not legalize their presence after a controversial “amnesty” bill was passed in 1986. President Bush’s choice: (1) Deport more than a million young children and one of their parents [the other parent qualified for amnesty], or (2) create a DACA policy.

In 2014, after Tea Party Republicans tried to overturn DACA, the House debated deferral policy. Rep. Zoe Lofgren recalled President Bush:

“There is strong historical precedent for the President’s (Obama’s) actions. Prior Presidents were not met with such obstructionism. President Ronald Reagan created the family fairness program. Once expanded by President George H.W. Bush, that program is expected to protect 1.5 million people. The reason was to keep families together, one of the key motivations for the President’s (Obama’s) actions last month.”

George P. Bush, 41's Grandson

“Migrant Health Concerns” Is Fox News Category: Old Way to Demonize Immigrants

Go ahead, check out Fox News online. Toward the top-left, you’ll see a specific category called “Migrant Health Concerns.” See the photo from a story that is running today.

Now, take a brief second to click on this link to the Immigration Act of 1891 (http://library.uwb.edu/Static/USimmigration/26%20stat%201084.pdf). In the first few lines of Chap. 551 (near top), you’ll see that in addition to excluding all “Chinese laborers” the law also excluded “persons suffering from a loathsome or a dangerous disease.”

This vague disease criterion was carried forward through 1965.

Fox News is not alone in equating disease with aliens. 

U.S. Gave Up Climate Accord: Gained 10,000 Mining Jobs

Remember 2016 when news stories concentrated on job losses in the mining industry?

ProfLERoy visited the Bureau of Labor Statistics website to update this story. The ugly graph above provides a current snapshot.

Sure enough, President Trump’s massive deregulation of air quality and mining standards have added jobs: 10,000 new jobs since he took office—up from 180,000 in 2016 to 190,000 in August 2018.

The gain is small.

Even smaller are the number of mining jobs relative to 145 million jobs in the U.S. economy. Basically, U.S. policy favors these 1 in 1,000 jobs so much that the nation is willing to accept massive climate change effects that result from pumping more carbons in the air.

The data can be verified here: https://data.bls.gov/timeseries/CES1021200001?amp%253bdata_tool=XGtable&output_view=data&include_graphs=true

The President’s Immigration Powers: Migratory Labor and Racial Animus

Here is a sneak preview (only 274 words). I welcome feedback. Is this clear? If not, what needs clarification? Is the tone too neutral, too subjective, too slanted—or okay? What impression does the summary leave with you? Post to FB or send to mhl@illinois.edu. Thanks in advance!

Since the nation’s founding, presidents have been motivated by racial animus while using executive powers over migratory labor. Early presidents enforced the Constitution’s fugitive slave provision. They explored diplomacy to deport free blacks to Africa. From the 1880s through 1940s, presidents acted on the racial animus of workers by restricting laborers from China and Japan, and later, Europe. FDR’s internment order resulted in the coerced labor of Japanese Americans. 

Against this backdrop, I examine President Donald Trump’s immigration orders that affect employment relationships. Eighteen lawsuits have been filed: They challenge the travel ban; rescission of DACA (Deferred Action for Childhood Arrivals), DAPA (Deferred Action for Parents of Americans), and TPS (Temporary Protected Status); covert vetting for citizenship petitions (Controlled Application Review and Resolution Program, or CARRP), and presidential obstruction of MAVNI (Military Accessions Vital to the National Interest), a program for foreigners in the military to gain citizenship.

I quantified results for 33 first-level and subsequent rulings: (1) More than 70% involved the Administrative Procedure Act and Fifth Amendment’s Due Process Clause. (2) Jurisdiction was found in 76% of the cases. (3) In 80% of the cases involving a request for an injunction, courts granted some form of relief. (4) Overall, plaintiffs won all or part of 93% of the rulings.

I conclude that President Trump’s approach to migratory labor follows numerous presidents; however, his predecessors acted before the Immigration and Nationality Act of 1965 and development of due process rights for aliens. His orders and actions are so numerous and sweeping that the Supreme Court is unlikely to hear many cases. President Trump’s apparent overreach suggests that he is eroding executive powers over immigration.

Cyber-Monday Reflection: Is Saks Fifth Avenue Too White?

The top photo shows Saks Fifth Avenue president, Marc Metrick, paired with Chief Merchant Tracy Margolies at the 2016 opening of a new store in Manhattan.

The bottom photo shows former employees of Saks who claim that the company engages in pervasive race discrimination.

Last Tuesday, they filed an employment discrimination lawsuit against Saks and its parent company, Hudson Bay Co.

“The Hudson's Bay Company has been in existence since 1670 and it is the oldest company in North America,” the men claim. “In the three hundred and forty-eight years that followed, Hudson's Bay has not been able to find a black or Hispanic person to fill any of its current leadership positions.”

They also allege specific discriminatory practices at Saks' Manhattan flagship store—for example, assigning them to the back of the store where traffic is lower than the front. This resulted in lower sales, missing sales targets, and missed promotions. Younger white workers were placed in high-traffic areas and easily scored new customers.

Their complaint alleges that young white males who missed sales targets were given a pass. The plaintiffs are prepared to prove that allegation—and also prove that when they missed sales targets, they were denied promotions or received unfavorable reviews.

Saks has not commented on the lawsuit.

Can “Wellness Program” Require You to Complete a “Health Risk Assessment”? Yes, But...

PhotoCredit: ImageZoo/Corbis & NPR

Employers pay for health insurance; so do employees.

To reduce medical risks related to poor physical fitness and diet, employers are increasingly requiring employees to complete a “health risk assessment” (called HRAs). If an employee smokes, they are charged a higher rate (if they lie and file a claim, they are denied payment). 

Our employment class will read and discuss an interesting new case under the Americans with Disabilities Act. (E.E.O.C. v. Orion Energy Systems, Inc., link here: https://hr.cch.com/ELD/EEOCOrion091916.pdf)

Orion Energy Systems offered a self-insured health plan (that means they paid directly on claims, cutting out the insurance companies).

Everyone qualified for health insurance BUT employees who refused to complete the HRA paid 100% of the premium ($1,130.83 per month for family coverage). The company paid part of the premium if an employee completed the HRA.

The HRA was a questionnaire on health history, body circumference, and a blood draw. 
Orion did not see an individual’s data. 
A hospital clinic collected the data. 
An outside lab analyzed the lab work. 
A third company aggregated the data and provided Orion with health risk factors for the employee group, e.g., your employees are prone to be diabetic.

The legal problem here is that the ADA prohibits medical exams of employees. 
The law makes an exception, however, for third-party insurance companies, HMOs, and similar (e.g., Aetna). They are allowed to collect medical information to assess their underwriting risk. They are also strictly prohibited from sharing data with the employer.
****

Enter Wendy Schobert, employed in Orion’s accounting department until she was fired. She opted out of the HRA and faced steep premiums. She raised questions about the new wellness initiative, including the HRA. Schobert questioned whether medical information collected in the HRA would remain confidential. She also questioned how the premium amount was calculated, and believed it was excessive in light of the service fee Orion was paying its third-party administrator, Auxiant. (She knew the amount of that fee because her job duties involved paying the firm’s invoices.)

The court split its ruling.

It upheld the employer’s 100% premium shifting for all employees who refuse to participate in the HRA.

The court said: “A corporation is not required to fully pay for an employee’s health insurance—indeed, it is not required to provide health insurance at all—and it is not unlawful to give an employee a choice regarding her health benefits provided the choices are among lawful alternatives.”

The court added: “Here, the wellness program was not used to underwrite, classify, or administer risk. Orion adopted the wellness program in 2009 separately from the terms of its health benefit plan and did not amend its health benefits summary plan to include the wellness initiative.”

In other words, the insurance plan was one document (and its own policy); and the health risk assessment was separate, according to the court.

The court ruled in favor of Schobert on her ADA retaliation claim: “Here, it is undisputed that Schobert expressed concern about the confidentiality of her medical information under the new wellness initiative. As that is a legitimate concern under the ADA, i.e., something the ADA actually does govern, her expression may have been protected.”    

Play the Black Friday Quiz! Pick Our Most Racist-Xenophobic President

Take a break from holiday shopping and contemplate these appalling statements from our presidents. Post your selection and thoughts to FB or send me your private (mhl@illinois.edu). 

***

First Entry: “Copy of a Letter from Thomas Jefferson, Late President of the United States,” First Annual Report of the American Society for Colonizing the Free People of Color of the United States, at 13, (1818), available here https://archive.org/stream/ASPC0001932500#page/n11/mode/2up.

I received, in the last year of the administration of the general government, a letter from the governor of Virginia, consulting me, at the request of the legislature of the state, on the means on procuring some such asylum to which these people might be occasionally sent. I suggested to him the establishment of Sierre Leone, in which a private company from England had already colonized a number of negroes, and particularly the fugitives from these states during the Revolutionary War; and at the same time suggested, if that could not be obtained, some of the Portuguese possessions in South America as most desirable.

Second Entry: Theodore Roosevelt, Twisted Eugenics, 106 Outlook 30, 32 (1914), stating the case for “race survival” of whites, referring to “the vital problem of the perpetuation of the best race elements . . . I wish very much that the wrong people could be prevented entirely from breeding.”

Third Entry: President Woodrow Wilson, Third Annual Message (December 7, 1915):

There are citizens of the United States, I blush to admit, born under other flags but welcomed under our generous naturalization laws to the full freedom and opportunity of America, who have poured the poison of disloyalty into the very arteries of our national life; who have sought to … debase our politics to the uses of foreign intrigue.

Fourth Entry: President Calvin Coolidge, First Annual Address (Dec. 6, 1923), available in http://www.presidency.ucsb.edu/ws/index.php?pid=29564: “New arrivals should be limited to our capacity to absorb them into the ranks of good citizenship. America must be kept American. For this purpose, it is necessary to continue a policy of restricted immigration.”

Fifth Entry: Judges must not Legislate Security... Safety at the Border, or anywhere else. They know nothing about it and are making our Country unsafe. Our great Law Enforcement professionals MUST BE ALLOWED TO DO THEIR JOB! If not there will be only bedlam, chaos, injury and death. We want the Constitution as written!

@realDonaldTrump (Nov. 22, 2018, at 6:21 a.m.)

Why Kris Kobach Makes (Bad) Sense to Be the Next Secretary of Homeland Security

You may recall that Kris Kobach lost his race to be governor of Kansas. 

Along the way, as secretary of state he required Kansas voters to provide proof of citizenship to vote. 

He lost that effort when the ACLU sued. 

He refused to obey the court’s order—and was held in contempt and ordered to pay the ACLU $26,000 in legal fees.

Kobach is well-known in immigration circles for his unconstitutional policy ideas. In a nationally significant case, he was counsel to the city of Farmers Branch, Texas. The city enacted an ordinance to require landlords to rent only to citizens and legal visa-holders. The right-leaning Fifth Circuit Court of Appeals decided mostly against the city. Meanwhile the city paid $850,000 to defend two voting rights lawsuits.

Kobach is known for drafting harshly anti-immigrant laws that cities and states have enacted or proposed. 

He has proposed a Muslim registry. 

He exaggerates voter fraud so much that he was named by President Trump to co-chair the failed presidential commission that was supposed to advance the narrative of three million fraudulent votes for Hillary Clinton.

The commission— which went by the Orwellian name, Presidential Advisory Commission on Election Integrity, came up about 2,999,986 cases shorts (14 cases of voter fraud have been prosecuted from 2016).

A prominent professor nurtured this politician’s anti-immigrant identity. Harvard Prof. Samuel P. Huntington, Kobach’s advisor from 1984-1988, believed that Hispanic immigration would be the downfall of “American identity.” (Not all professors are "leftists.").

I hope I am wrong. 

If I am right, I hope the Senate rejects him. 

And I hope, as well, that Trump doesn’t use the same method of appointment for Homeland Security as he has for Attorney General.

Can Companies Legally Capture Your Biodata (Fingerprints, Iris Scan, Facial Image)?

Illinois has one of the strongest biodata laws in the U.S. An individual must consent to the collection of personal biodata (fingerprint, voice sample or retina scan, and more). Collection and storage of biodata without consent can result in criminal liability and civil damages ($1,000 fine for each negligent violation, or actual damages or a $5,000 fine for each reckless violation). The law is called Illinois Biometric Information Privacy Act, or BIPA.

Biodata collection is common in workplaces: Many employers use palm or fingerprints to clock employees in and out work. If an employee consents, it’s not an issue. (A new employment trend is collection of Fitbit data and similar.)

The test case involves—of all places—an amusement park.

Six Flags required Stacy Rosenbach’s 16 year-old son to scan his thumbprint to access a season pass. She alleged she neither consented to nor received information about Six Flags' collection and storage of her son's data, and would have never purchased a pass if she had known the full extent of the company's conduct.

A main issue in a case heading to the Illinois Supreme Court is: What is injury under the law? Rosenbach argues that injury occurs when the fingerprinting occurs without consent. 

Six Flags argues that there is no liability without proof of actual injury.

The one apparent fact they agree on is that consent was not given in this case.

The high court’s ruling could frame the privacy law so broadly that many casual interactions—getting cash from an ATM, scanning your eye for entry to a secured workplace, as examples— will bog down with consent forms (many of which people just check-off without reading), and create liability for companies.

The high court could frame the privacy law so narrowly that its intent to protect people from unknowing data collection is mostly lost. For example, you might consent to collection of Fitbit data-- say, tracking of steps-- but the data collection could go broader (heart rate data) without an employee knowing.

Whether you are an employer or employee, consumer, patient, or simply walking on a public street where a company might be collecting your facial image, the implications are significant.

Google Ends Mandatory Arbitration— A Practice That Reflects the Low Status of Employment Law in HR Organizations

Employment law is an elective in the handful of Master’s degree programs in the U.S.  It’s no surprise, therefore, that wage-and-hour violations are so common. And it’s no surprise, either, that senior HR VPs (and similar) began to implement mandatory arbitration programs in the 1990s.

Their reasoning? The Supreme Court is allowing it. We control the process. We avoid court. We avoid bad publicity. We avoid class actions. We avoid costly damages. We suffer very few consequences for sexual harassment. 

Mandatory arbitration is so one-sided, it’s become a good place to hide sexual assault.

It’s also kept women from seeking justice.
When you look at the MeToo movement, most of those published accounts involve some aspect of the workplace (Harvey Weinstein's "casting" arrangements; Les Moonves, Matt Laurer, Steve Wynn, Prof. Lawrence Krauss, Corey Coleman (HR Director of FEMA), Judge Alex Kozinski ... and many more.

The recent walkout at Google over that firm’s cover-ups of sexual harassment and assaults embarrassed Google. It exposed the hypocrisy that progressive HR firms care about their employees.

How does this relate to the teaching of employment law in HR programs? 

Simple: When your HR organization can sweep its legal controversies—not only harassment, but wage-and-hour, disability, FMLA, and most other employment practices— under the rug, there is no reason to pay attention to employment law.

Allowing employees the basic right to sue in a court of law offers some hope for change— and for starters, real consequences for harassers and predators in the workplace.

…

Here are key findings on mandatory arbitration from a liberal think tank, the Economic Policy Institute:

More than half—53.9 percent—of nonunion private-sector employers have mandatory arbitration procedures. Among companies with 1,000 or more employees, 65.1 percent have mandatory arbitration procedures.

Extrapolating to the overall workforce, 60.1 million American workers no longer have access to the courts to protect their legal employment rights and instead must go to arbitration.

Of the employers who require mandatory arbitration, 30.1 percent also include class action waivers in their procedures—meaning that in addition to losing their right to file a lawsuit on their own behalf, employees also lose the right to address widespread rights violations through collective legal action.

Mandatory arbitration is more common in low-wage workplaces. It is also more common in industries that are disproportionately composed of women workers and in industries that are disproportionately composed of African American workers.

Counter to Trump's Plan to End Birthright Citizenship? Allow Naturalized Citizens to Be President

As we have come to learn in the past few weeks, the 14^th Amendment creates birthright citizenship for “all persons.” Liberals and many conservatives—for example, George Conway— have been pushing back on President Trump’s idea to limit birthright citizenship.

What if liberals and moderates went on the offensive by suggesting broader immigration rights?

The following is an excerpt from my research paper… the part in red deals with the idea that the Constitution currently limits the office of president to people born in the U.S. Talented public figures, ranging from Alexander Hamilton, Henry Kissinger, and Arnold Schwarzenegger to Madeleine Albright and Ariana Huffington, have been constitutionally barred from office.

…

The Constitution has shaped the presidency along racial lines. This effect is more subtle today but was exploited when President Trump spent years as a private citizen falsely suggesting that President Obama was born in Kenya. Twenty million naturalized citizens—mostly nonwhite—are ineligible to be president because they were born outside the U.S. The fact that twelve of the first eighteen presidents were slave-owners is evidence that the Three-Fifths Compromise skewed elections for the nation’s highest office to favor slave-holding interests. The Constitution’s regulation of the “Migration or Importation” of slaves is a conflicted expression of the nation’s first immigration policy: the nation allowed the more benign form of slave “migration” that was common with French settlers and the brutalizing “importation” of chattel slavery. The Constitution drafted in 1787 set the course for a presidency that—for most of the next 230 years— was institutionally inclined to translate the racial animus of white Americans, particularly white workers, into restrictive immigration actions. In this context, President Trump’s racially-tinged immigration campaign messages, closely tied to restrictive immigration policies, should not come as a surprise: He is a culmination of a flawed Constitution.

Walmart’s Holiday Message? It’s Costly to Cheat Workers Out of Pay

On Wednesday, a California federal jury found that Walmart intentionally failed to pay truck drivers for time spent on work-related on-duty tasks, awarding class members more than $54 million in damages.

The issue involves “compensable time.” Walmart took the position— a position we strongly counsel against in our employment law course— that “compensable time” does not include pre-shift safety inspections.

The Department of Labor regulations are crystal clear: When work is “preliminary” or “postliminary” and is “integrally related” to the “principal activity,” it counts toward time that the employer owes.

Truck drivers don’t do safety inspections because these activities are recreational, restful, or optional.

There is more. 

Walmart also failed to pay drivers for time spent washing trucks, fueling, weighing the trucks’ load, waiting at vendor and store locations, performing adjustments, complying with U.S. Department of Transportation inspections, and meeting with driver coordinators.

In a separate wage lawsuit, a different judge certified a class of 50,000 Walmart employees who allege they were required to work through lunch and rest periods—they had their pay deducted, did not get lunch or rest, and did not get paid.

Always the low price might be due to systemic wage theft.

Some U.S. Troops at U.S.-Mexico Border May Be Deported

The U.S. has a program to beef-up military enlistments. It’s called MAVNI (Military Accessions Vital to the National Interest). It allows non-citizens to enlist. As an inducement, it provides an expedited path to U.S. citizenship. The path is not automatic—there are specific requirements.
(In exchange for enlisting in the military for a total of 8 years' service, DOD promised MAVNI enlistees the right to apply for an expedited path to citizenship.)

Under President Trump’s direction, however, the Defense Department is no longer processing Form N-426. It certifies an enlistee’s military service and also checks boxes for MAVNI certification.

The administration cannot end MAVNI— it’s a creation of Congress. But effectively, Secretary of Defense Mattis has blocked the program. The Defense Department has added an extreme vetting element, patterned after the element that the Supreme Court eventually upheld in Trump v. Hawaii. To be clear, the Supreme Court found the “travel ban” constitutional only in its third version—a version that applied to people who had no contacts, past or present, to the U.S.

The MAVNI troops are serving the United States. It’s a big difference.

There is irony in this reneging of a promise to more than 10,000 foreign-born members of the U.S. armed forces: Some may be deployed on the U.S.-Mexico border to halt a caravan of migrants from entering the U.S.

For now, at least, a federal court has issued an injunction preventing any adverse treatment of MAVNI troops.

The court, in Kirwa v. Defense Department, noted: “Furthermore, every day of delay leaves plaintiffs in limbo and in fear of removal. Plaintiffs live in constant fear that they will lose their work or student visas, or be discharged, deported, and subject to harsh punishment in their country of origin for joining a foreign military.”

It is one thing to get tough on illegal immigration. It is another thing to restrict legal immigration. The treatment of MAVNI-eligible troops is a betrayal of a solemn promise made to men and women who are willing to make the ultimate sacrifice for American citizens in order, someday, to become American citizens. The court said the government failed to advance a single good reason for blocking the program.

A Blog Reader Suggested I "Take a Day Off From Bashing President Trump": Here is My Reply

A federal court recently ruled that a Jewish woman’s lawsuit can proceed against Andrew Anglin, editor of the Daily Stormer, a daily online journal for neo-Nazis and their ilk.

Thankfully, the judge didn’t take any days off when he read the extensive record in this case. The judge set this background:

"(Tanya) Gersh lives in Whitefish, Montana, and has a real estate practice there. She and her husband are Jewish, and have raised their two children in the Jewish faith. In late 2016, Gersh became involved in a real estate dispute with Sherry Spencer (“Spencer”), the owner of a mixed-used property in downtown Whitefish. Spencer’s son, Richard Spencer, is a white nationalist member of the far right who gained notoriety when a video of him stating “Hail Trump! Hail our people! Hail victory” during a gathering of white nationalists soon after President Donald Trump’s election went viral. Following the video’s release, some members of the Whitefish community who believed that Spencer had not disavowed her son’s racist views considered protesting in front of her mixed-use property."

Eventually, residents of Whitefish organized a boycott of Spencer’s mother’s business. The mother asked Gersh for advice. She said, in effect, “sell your property and renounce your son's views.” Anglin, Spencer's friend, set off a troll storm (see photo). Here is an excerpt of what happened, according to the court:

"Gersh contends she and her family were a captive audience to the several hundred cell phone calls, voicemails, text messages, emails, letters, and social media comments they received from Anglin’s readers, and asks the Court to hold that Anglin did not have a First Amendment right to force that offensive speech into her home. Gersh argues the traditional concept of “home” has expanded with the proliferation of cell phones, texting, emails, social media messages and other forms of electronic communication. She claims several courts have recognized as much, with one putting it this way: “[T]he substantial right of residents to find sanctuary in their homes, free from unwanted speech, is just as – if not more – vital today, where intrusions via the mail, the telephone and, now, email and the internet are ubiquitous.” National Coalition of Prayer, Inc. v. Carter, 455 F.3d 783, 795 (7th Cir. 2006) (Williams, J., concurring). Relying on this expansive view of home  and Montana’s traditional and time honored respect for residential privacy, Gersh argues the troll storm messages invaded her privacy interests in an essentially  intolerable manner."

And this:

The Complaint is replete with allegations that Anglin encouraged his readers to take action against Gersh, and caused them to inundate her and her family with hundreds of hateful and threatening anti-Semitic phone calls, text messages, emails, and other communications. Gersh claims that Anglin repeatedly published her and her family’s personal contact information on his website (see e.g. Doc. 1, ¶¶ 128, 130) and modeled the sort of vitriol he wanted them to use with his inflammatory anti-Semitic rhetoric and Nazi imagery – including images of Gersh and her son superimposed on a Nazi propaganda poster and a photo of the gates of Auschwitz. (Doc. 1, ¶¶ 28, 135). In addition, the Complaint alleges that Anglin “encouraged” his readers to: (1) call Gersh “and tell her what you think. And hey – if you’re in the area, maybe you should stop by and tell her in person what you think of her actions” (doc. 1, ¶ 84); (2) leave negative reviews of her business on line (doc. 1, ¶ 85); (3) take to Twitter and tell her 12 year old son “what you think of his whore mother’s vicious attack on the community of Whitefish” (doc. 1, ¶ 88); (4) give Gersh’s husband “a call or stop by his office and let him know what you think of his wife’s behavior, advise him to get a leash on that hoe” (doc 1, ¶ 89); (5) contact businesses and organizations associated with Gersh (doc. 1, ¶ 145) and; (6) “keep putting pressure on these Jews.” (Doc. 1, ¶ 130).”

The court has moved the matter on to the next phase for trial. The main point of the lawsuit is to financially impair Anglin’s Trump-enabled hate website.

To my objecting reader: This post is being made after 10:00 p.m. but before the day is over. That’s right: I’m not taking today off. I’m not taking today off from calling out a president and supporters who hate, or promote hatred, against Jews, Muslims, Mexicans, Central Americans, illegal immigrants, legal immigrants, women, transgender people, black football players, Democrats, principled Republicans, judges, prosecutors, mainstream media, fire fighters…  And I won’t take the weekend off, either.

Nor will my friends, many of whom are not targeted (for now) for hatred.

Can Children Be Granted Asylum to Escape Sexual Violence?

President Trump issued a Proclamation on November 9^th that temporarily suspends asylum for migrants entering from Mexico unless they present themselves to a port of entry. The proclamation appears to be drafted skillfully and thoughtfully, in contrast to other immigration restrictions. It cites prior presidential actions of this nature, and a Supreme Court decision that upheld President Bush’s suspension of asylum for Haitians (Sale v. Haitian Centers Council, Inc., 509 U.S. 155 (1993)).

The proclamation also correctly states the following:

“Members of family units pose particular challenges.  The Federal Government lacks sufficient facilities to house families together.  Virtually all members of family units who enter the United States through the southern border, unlawfully or without proper documentation, and that are found to have a credible fear of persecution, are thus released into the United States.  Against this backdrop of near-assurance of release, the number of such aliens traveling as family units who enter through the southern border and claim a credible fear of persecution has greatly increased.  And large numbers of family units decide to make the dangerous and unlawful border crossing with their children.”

The policy appears to be legal. But what is its human toll? 

Consider Osorio v. Attorney General of the United States, decided about two months ago. 

Mothers and their minor children fled “physical and sexual violence perpetrated by gangs in their home countries of Honduras and El Salvador.” 

To President Trump’s point, they were detained in Texas and later moved to Pennsylvania, still under detention. The mothers requested asylum. They were denied a court hearing because, according to the court, they had no connection to the U.S. other than crossing the border illegally.

But their children applied for “SIJ” status (“special immigrant juvenile”). This is a juvenile section of the immigration act. As the court explained: “Alien children may receive SIJ status only after satisfying a set of rigorous, congressionally defined eligibility criteria, including that a juvenile court find it would not be in the child’s best interest to return to her country of last habitual residence and that the child is dependent on the court or placed in the custody of the state or someone appointed by the state.”

This appeals court ruled in September that these children cannot be immediately deported, nor can their mothers (who were subject to immediate removal but were not deported by the Obama administration).

The president’s proclamation does not apply to their case. It appears to address the situation of mothers and minor children in the migrant caravan. They cannot enter; they cannot file motions to a court for asylum under the Immigration and Nationality Act of 1965; and if they step foot on U.S. soil, they can be removed immediately without a habeas corpus hearing.

In my opinion, this is legal. Some will say that the United States has no obligation to shelter these mothers and their children. I believe America is better than that. That is why Congress passed a law for “special immigrant juvenile(s).”

Can You Hear Me Now? About Dog Whistles

Tomorrow, our class on immigration and race is reading and discussing a fascinating research article that attempts to explain how politicians use “multi-vocal” speech to address a mainstream group in one way while at the same time signaling a much different message to a sub-group. 

I quote now from Bethany L. Albertson, “Dog-Whistle Politics: Multivocal Communication and Religious Appeals,” Political Behavior (2015):

President Bush’s use of religious appeals has been the subject of some media attention. As Bruce Lincoln writes in the Boston Globe, ‘‘aware that he must appeal to the center to secure reelection, he employs double-coded signals that veil much of his religious message from outsiders’’ (September 12, 2004). David Kuo, who worked for various prominent Republicans and served in the George W. Bush administration, wrote ‘‘we threw in a few obscure turns of phrase known clearly to any evangelical, yet unlikely to be noticed by anyone else, even Kemp (who he was writing for)’’ (p. 59). Multivocal communication, or ‘‘dog-whistle politics,’’ as it has been labeled is not specific to George W. Bush’s rhetoric, or even Republicans; Bill Clinton used the phrase ‘‘send me’’ to structure his endorsement for John Kerry at the 2004 Democratic National Convention. The phrase references a passage in the Bible (Isaiah 6:8). Ronald Reagan used language in his 1984 State of the Union address that closely paralleled another biblical passage: ‘‘Let us be sure that those who come after will say of us in our time, that in our time we did everything that could be done. We finished the race; we kept them free; we kept the faith.’’

Both are examples of language that has religious connotations for a subset of the population. Multivocal communication such as this might be particularly effective because it targets those predisposed to respond favorably to the message and goes over the heads of those who might be turned off by it.”

Albertson offers this example from the left:
For example, Subaru ran advertisements in which the cars’ license plates read ‘‘XENA LVR’’ and ‘‘P TOWN.’’ The references were meant to appeal to gay and lesbians without alienating others who were unaware of the significance of the license plates (Kanner 2000). This advertising campaign, which also included the slogan ‘‘It’s not a choice. It’s the way we’re built’’ was intended to operate as multivocal communication; one of the campaign’s developers explains, ‘‘it’s apparent to gay people that we’re talking about being gay, but straight people don’t know what’s going on.’’

Albertson offers this background on the term “dog whistle”:

The phrase ‘‘dog-whistle politics,’’ draws upon the way that dog-whistles are perceptible to dogs but not to humans due to their high frequency. The term became popular during the 2005 election in the UK, where the exemplar of dog-whistle politics was the Conservative slogan, ‘‘Are you thinking what we’re thinking?’’ The slogan was said to appeal to those who opposed Labour’s stance on immigration. The term has its roots in Australia where it was associated with a political strategist, Lynton Crosby. Crosby ran Australian Prime Minister John Howard’s campaigns before consulting in British politics. The phrase reached William Safire’s ‘‘On Language’’ column in The New York Times in 2005. The 2005 campaign in the UK was arguably a failed attempt at dog-whistle politics, because the possible meanings of ‘‘Are you thinking what we’re thinking’’ became a topic of debate.
Questions I will pose to students: 

Should we fault politicians for this type of dual-messaging, or is this the essence of savvy political communication? 

Should campaign speech have censorship codes when it conveys hate toward an outcast group? 

Assuming that political censorship is out of the question, how should the public learn about coded-messages that are expressed in politics? 

A final question: whatever your political preferences, are there codes that speak to your interests but fly over the heads of people who are different from you?

What Do “Arabs, Jews, Germans and Italians” Have in Common?

In 1866, Congress passed a major civil rights law that has large impact today.

Example? In a case we cover tomorrow, an employee named Mamdouh El-Hakem objected to his boss, Greg Young, westernizing his name to “Manny.” He asked repeatedly to be called Mamdouh. Eventually, El-Hakem sued. He was awarded $90,000 for the hostile work environment caused by this simple but significant recurring insult.

The 1866 law said that all people shall enjoy the same rights as “white citizens.” A main legal issue was: Did Congress limit the 1866 law to blacks, or intend it for a much broader group? In other words, how did Congress define "white citizens" and the rest of people in the U.S. who were granted protection under the law?

This was open to interpretation until 1987 when the Supreme Court looked into the legislative history for the 1866 law. The Court identified “targets of race discrimination for purposes of Section 1981 [1866 law] include groups that today are considered merely different ethnic or national groups, such as Arabs, Jews, Germans and Italians.”

It is a testament to our nation’s progress that we do not think today as our nation did in the 1860s (and for decades after). But the question for us remains: Do white people enjoy privileges that nonwhites— Hispanics, many Muslims, Jews, Asians to name some groups— do not fully enjoy (for example, to work using our real names, such as Mamdouh)?

The photo shows Manny Zwerling. He served in a segregated Jewish infantry in WWI. He survived the war and later served in the NYPD. He is featured today in the New York Times. 
Thank you for your service, Manny. 
And to Mamdouh El-Hakem: Thank you for helping us understand that our names are so much of our identity that we shouldn’t allow others to take them from us.

Do Union Dues Matter? Unions Play Role in Protecting DACA Recipients

What do people get by paying dues to a labor union? Answers vary. Here is one: Unions sue to protect workers who are DACA-recipients.

On September 4, 2017, Attorney General Jeff Sessions issued a letter strongly criticizing the policy that protects 16-31 year-old immigrants who entered the country as children illegally with their parents. 

Under DACA, 689,800 people who have met age- and conduct-criteria enrolled for “deferred” status.

On September 5, 2017, Homeland Security acted on the Attorney General’s opinion letter and immediately rescinded DACA.

One effect was to end the work-authorization process for DACA recipients.

Here is a brief excerpt of the case that is in the news this week—the case where the Ninth Circuit Court of Appeals upheld a lower court order preventing the Trump administration from starting to deport DACA recipients. 
The main point of the post: Union dues are paying part of this lawsuit to protect people who cannot afford legal representation:

“SEIU [Service Employees Int’l Union] Local 521 has associational standing to bring its claims on behalf of its members who are DACA recipients. An association has standing to bring suit on behalf of its members when: (1) its members would otherwise have standing to sue in their own right; (2) the interests it seeks to protect are germane to the organization's purpose; and (3) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.

SEIU has established all three elements here. SEIU has members who are DACA recipients. Its constitution states that part of its mission is to provide its members with a voice in the larger community, and that its members should be treated equally with dignity regardless of immigration status or national origin. SEIU has also formed a Committee on Comprehensive Immigration Reform, a member-based committee that engages in organizing, advocacy, and education to help undocumented workers. Its members' interests in these actions are therefore germane to SEIU's stated purpose (App. 801–09). Furthermore, this action does not require the participation of SEIU's individual members.”

(Thanks to my wife for a conversation this morning on union dues. J)