A DC Observer

On July 19, 2007, Robin Carnahan, Missouri’s Secretary of State, set the ballot title for Missouri’s version of the American Civil Rights Institute’s ballot initiative (ACRI’s affiliate group in Missouri for the purpose of the ballot initiative is the Missouri Civil Rights Initiative Committee (MoCRI)).

The official ballot title as set by Secretary Carnahan is below:

Shall the Missouri Constitution be amended to:

• ban affirmative action programs designed to eliminate discrimination against, and improve opportunities for, women and minorities in public contracting, employment and education; and
• allow preferential treatment based on race, sex, color, ethnicity, or national origin to meet federal program funds eligibility standards as well as preferential treatment for bona fide qualifications based on sex?

The total cost or savings to state and local governmental entities is unknown. Most state governmental entities estimate no costs or savings, however, costs or savings related to future contracts are unknown. Some local governments estimate no costs or savings, but prohibition of certain municipal policies may result in unknown costs.

ACRI’s ballot initiative, if it receives sufficient votes to prevail, would amend the Missouri Constitution to prohibit discrimination against and the granting of preferential treatment to persons on the basis of basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting. ACRI’s language is similar to the ACRI’s proposal to amend Colorado’s constitution (click the affirmative action link in the TAGS box in the sidebar on the right to see my posts on ACRI’s campaign in Colorado).
The executive director of the MoCRI, Tim Asher, objects to the ballot title set by Secretary Carnahan. Asher believes the ballot title should be:

Shall the Missouri Constitution be amended to prohibit any form of discrimination as an act of the state by declaring:

The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity or national origin in the operation of public employment, public education or public contracting.

Disagreeing with Secretary Carnahan’s ballot title summary language, Asher, for MoCRI, filed a lawsuit (case number: 07AC-CC00648) in Missouri’s Cole County Circuit Court.

Court case: Missouri Against Human Cloning v. Robin Carnahan

There is a 2006 Missouri Court of Appeals decision that is close to Asher’s ballot title challenge (Author’s Note: Asher nor Secretary Carnahan have not issued their arguments for the case yet (on the date of this post)).

In Missourians Against Human Cloning, et al., Appellants v. Robin Carnahan, WD66495 & WD66496, (3/28/2006), the authors of an initiative on human cloning, appealing the Cole County’s Circuit Court’s approval of Secretary Carnahan’s ballot title, challenged the ballot title set by Secretary Carnahan, stating that the summary statement of the ballot title was “insufficient or unfair”. The initiative authors challenged the summary’s statement that the initiative would ban human cloning or attempted cloning. The authors asked the court to amend the statement with language provided by the initiative authors.

The Missouri Court of Appeals stated that courts are cautious about entering into pre-election debates on initiative proposals. The Missouri Court of Appeals also stated that the burden falls on the challengers of the ballot title to prove that the ballot title is “insufficient or unfair.” The Missouri Court of Appeals explained that the purpose of the ballot title is to notify interested persons of the subject of the initiative.

Our role is not to act as a political arbiter between opposing viewpoints in the initiative process:

When courts are called upon to intervene in the initiative process, they must act with restraint, trepidation . . . .. . . .Courts are understandably reluctant to become involved in pre-election debates over initiative proposals. Courts do not sit in judgment on the wisdom or folly of proposals.

Missourians to Protect the Initiative Process v. Blunt, 799 S.W.2d 824, 827 (Mo. banc 1990). “Before the people vote on an initiative, courts may consider only those threshold issues that affect the integrity of the election itself, and that are so clear as to constitute a matter of form.” United Gamefowl Breeders Ass’n of Mo. v. Nixon, 19 S.W.3d 137, 139 (Mo. banc 2000).

The burden is on the opponents of a summary statement to show that the language is “insufficient and unfair.” Hancock[v. Sec'y of State, 885 S.W.2d 42 (Mo. App. W.D. 1994)], 885 S.W.2d at 49. We have previously defined “insufficient or unfair”:

Insufficient means “inadequate; especially lacking adequate power, capacity, or competence.” The word “unfair” means to be “marked by injustice, partiality, or deception.” Thus, the words insufficient and unfair . . . mean to inadequately and with bias, prejudice, deception and/or favoritism state the [consequences of the initiative].

Id. (citations omitted). The purpose of the ballot title “is to give interested persons notice of the subject of a proposed [law] to prevent deception through use of misleading titles. If the title gives adequate notice, the requirement is satisfied.” Union Elec. Co. v. Kirkpatrick, 606 S.W.2d 658, 660 (Mo. banc 1980).

The Missouri Court of Appeals affirmed the Cole County Circuit Court’s decision to approve Secretary Carnahan’s ballot title’s summary statement. The Missouri Court of Appeals stated that the test for appropriate ballot title summary language is not whether the Secretary of State’s language is the best language but rather “whether the language fairly and impartially summarizes the purposes of the [initiative.]” Bergman[v. Mills, 988 S.W.2d 84(Mo. App. W.D. 1999)], 988 S.W.2d at 92. Within the confines of the 100-word limit, the summary “need not set out the details of the proposal.” United Gamefowl Breeders Ass’n of Mo., 19 S.W.3d at 141.”

Possible effect on Asher’s Challenge

My review is cursory because Asher’s argument has not been presented, but based on this case, Secretary Carnahan has a good chance to survive Asher’s ballot title challenge. The ballot title that Asher proposes is the first clause of his group’s proposed amendment to Missouri’s Constitution. Asher’s ballot title summary language is vague and does not describe what MoCRI’s initiative would do if approved by the voters.

The purpose of MoCRI’s initiative is really what Secretary Carnahan’s ballot title summary language stated.

The Asher v Carnahan case is an interesting. I hope to see the arguments of the parties and the decision of the court.

In Parents Involved in Community Schools v. Seattle School District No. 1, the plurality opinion (authored and signed by Chief Justice John Roberts, and signed by Justices Alito, Scalia and Thomas) concluded, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

I am not as confident as the plurality opinion concerning the issue of race (particularly the Black-White paradigm) in the United States. Race has been, is, and will continue to be an issue simply as a result of demographic reality and the unresolved history concerning the Black people placed into slavery and their descendants suffering the persistent legacy of the slavery institution.

United States (population: 281,421,906 (2000 Census)

Chief Justice Roberts’s words ring hollow once one studies how pervasive the practice of discrimination is in the U.S. society (while progress has been made, there is much work left to be done). For example, in Seattle, the location of the Supreme Court case, was once a segregated city, with the widespread use of racial restrictive covenants in real estate deeds, among other practices.

The University of Washington’s Seattle Civil Rights & Labor History Project has extensive information on the history of segregated Seattle here.

[Note: I have written a related post about the Rhee's transition team here .]

The Washington, DC Examiner published the salaries for Chancellor Michelle Rhee’s top staff.

Ximena Hartsock, Transition Assistant: $115,000

Billy Kearney, Transition Assistant: $120,000

Anthony de Guzman, Transition Assistant: $125,000

John Davis, Transition Assistant: $125,000

Richard Nyankori, Special Assistant to the Chancellor: $140,000

Jenny Abramson, Transition Team Leader: $140,000

Jesus Aguirre, Transition Assistant: $150,000

Kaya Henderson, Deputy Chancellor: $200,000

Lisa Ruda, Chief of Staff: $200,000

[Update 12/15/07: For more information about judicial pay legislation pending in the House of Representatives (H.R. 3753), click here.]

A provision for judicial base pay increase, sought by Chief Justice John Roberts (see background, below, for more information), is not in the appropriations for the 2008 fiscal year.

The U.S. House Appropriations Committee has issued its report for the appropriations bill (H.R. 2829) for fiscal year 2008. The U.S. Senate Appropriations Committee has issued its report for H.R. 2829. I cite relevant portions of the House and Senate reports below.

House report 110-207:

TITLE III–THE JUDICIARY

The funds recommended by the Committee in title III of the accompanying bill are for the operation and maintenance of United States Courts and include the salaries of judges, magistrates, probation and pretrial services officers, and supporting personnel and other expenses of the Federal Judiciary.

In addition to direct appropriations, the Judiciary collects fees and has various carryover authorities. The Judiciary uses these non-appropriated funds to offset its direct appropriation requirements. Consistent with prior year practices, the Committee expects the Judiciary to submit a financial plan, allocating all sources of available funds including appropriations, fee collections, and carryover balances. The Judiciary should consider this financial plan to be the baseline for determining if reprogramming notification is required. The Committee expects the plan to be submitted within 90 days after enactment of this Act.

The Committee encourages the Judiciary to explore ways to increase outreach to minority law students with the goal of increasing the number of minorities in clerkship positions.

Senate Report 110-129 (emphasis added below mine):

Established under Article III of the Constitution, the judicial branch of Government is a separate but equal branch. The Federal Judiciary consists of the Supreme Court, United States Courts of Appeals, District Courts, Bankruptcy Courts, Court of International Trade, Court of Federal Claims and several other entities and programs. The organization of the judiciary, the district and circuit boundaries, the places of holding court, and the number of Federal judges are legislated by the Congress and signed into law by the President.

The Committee’s recommended funding levels support the Federal judiciary’s role of providing equal justice under the law and include sufficient funds to support this critical mission. The recommended funding level includes the salaries of judges and support staff and the operation and security of our Nation’s courts.

The judicial branch is reminded that it, too, is subject to the same funding constraints facing the executive and legislative branches and continues to urge the Federal judiciary to devote its resources primarily to the retention of staff. Further, the judiciary is encouraged to contain controllable costs such as travel, construction, and other non-essential expenses.

In addition, the judiciary is reminded that section 705 of the accompanying act applies to the judicial as well as the executive branch.

Background

In the beginning of 2007, the Chief Justice of the United States, John Roberts, in his 2006 year end report for the judiciary, argued that the judges of the federal judiciary should receive a salary increase.

Author’s Note: There is a bill in the U.S. Senate, S.1638, which would provide for a substantial increase of the base pay of federal judges.

Judge Richard Posner of the Seventh Circuit Court of Appeals argued that a salary increase for judges is not necessary as other perquisites are not included in the base salary (the value of the federal pension, health insurance benefits, ability to earn outside income).

The most serious omission in Chief Justice Roberts’s report is the other compensation that judges receive besides their salaries. Most judges who want to can teach a course or a seminar at a law school and receive another $25,000 in pay (the ceiling on outside income, apart from investment income and royalties, and a very low ceiling given current law school salaries—which benefits judges, since they can teach less to reach their ceiling, as it is an ever-diminishing percentage of a professor’s salary). The federal judicial pension is extremely generous–a judge can retire at age 65 with only 15 years of judicial service (or at 70 with 10 years), and receive his full salary for life; nor does he make any contribution to funding the pension. The health benefits are also good. Above all, a judgeship confers very substantial nonpecuniary benefits. The job is less taxing than practicing law, more interesting (though this is partly a matter of taste), and highly prestigious. Judges exercise considerable power, not only over the litigants in the cases before them but also in shaping the law for the future, and power is a highly valued form of compensation for many people. Judges are public figures, even if only locally, to a degree that few even very successful lawyers are. And judges are not at the beck and call of impatient and demanding clients, as even the most successful lawyers are.

The portion of the House Appropriations subcommittee report concerning outreach for minority law clerks reflects testimony given by Justices Anthony Kennedy and Clarence Thomas to the House Appropriations subcommittee chair, Representative Jose Serrano (NY-16).

Additional work will have to be done for H.R. 2829, as the House and Senate versions contain different terms.

For more information on the U.S. federal budget process, click here.

The Washington Post reports that the DC Council has decided to delay action on the confirmation resolution for Victor Reinoso. (Note: The DC Council will act on the confirmation resolutions for Michelle Rhee and Allen Lew on July 10. For more information, click here.)

DC Council Chairman Vincent Gray told the Post that the DC Council did not have to vote on Reinoso for Reinoso to maintain his position as Deputy Mayor for Education.

Gray noted that Reinoso could continue as acting deputy mayor without a vote tomorrow, and technically, the council does not have to vote at all. Reinoso could be automatically appointed as deputy mayor with passive approval if the council does not vote by Nov. 22.

Passive approval by the DC Council is not a desirable action because it could function as a vote of no confidence, the Post article stated.

[7/11/07 Update: The DC Council has unanimously confirmed Michelle Rhee as Chancellor of DC Public Schools and Allen Lew as Executive Director of the Office of Public Education Facilities Modernization. For more information, click here.]

On July 10, the DC Council has the Confirmation Resolutions for Michelle Rhee and Allen Lew on the agenda (along with other agenda items):

4. “Executive Director of the Office of Public Education Facilities Modernization Allen Lew Confirmation Resolution of 2007″, PR 17-0317. To confirm the Mayoral appointment of Mr. Allen Lew as the Executive Director of the Office of Public Education Facilities Modernization.

5. “Chancellor of the District of Columbia Public Schools Michelle Rhee Confirmation Resolution of 2007″, PR 17-0318. To confirm the Mayoral appointment of Ms. Michelle Rhee as Chancellor of the District of Columbia Public Schools.

The Washington Post reports that the DC Council will be voting on the resolution to confirm Rhee and Lew.

The meeting will be held at 10:00 AM in the DC Council Chamber, Room 500. The DC Council’s Chambers are located in the Wilson Building, located at 1350 Pennsylvania Avenue, NW.

Click here to go to the DC Council calendar for July 9-13, 2007.

According to the Washington Post, Mayor Adrian Fenty presented the D.C. Council with Michelle Rhee’s contract, which includes her compensation arrangement. According to the Post, Rhee will be the highest paid school leader in the close-in D.C. metropolitan area.

Michelle Rhee will receive:

• a salary of $275,000 annually with a $41,250 (one-time) signing bonus upon the D.C. Council confirming her to the position of Chancellor.
• a car and driver, paid by the District of Columbia government.

Rhee’s contract also provides for the following:

If Rhee is fired or quits for “good cause,” she will receive up to 24 weeks of pay, the contract states.

The contract stipulates that Rhee, who has two children, must live in the District.

Peter Nickels, Mayor Fenty’s general counsel, stated that Rhee’s signing bonus is to compensate her for having to sell her house in Colorado. Apparently, Rhee is looking for homes in a couple neighborhoods in the District of Columbia. Rhee said that she is planning to send her children to the D.C. Public School in her neighborhood.

The D.C. Public School system has a budget of $1 billion and a staff of 11,500.

Given the size of the D.C. Public School system and her responsibilities (click here to see my related post on the Chancellor’s statutory responsibilities), the pay seems appropriate.

On June 28, the Supreme Court, in Parents Involved in Community Schools v. Seattle School District, Docket number 05-908 (6/28/07), ruled the use of race for the purpose of determining school assignment, as done in the Seattle School District (SSD) and in the Jefferson County (Kentucky) Public Schools (JCPS) violated the 14th Amendment’s Equal Protection Clause.

Seattle School District

SSD operates 10 public high schools. Four of them (Ballard, Nathan Hale, Ingraham, and Roosevelt) are in predominately White north Seattle, Five of them (Rainier Beach, Cleveland, West Seattle, Chief Sealth, and Franklin) are in south Seattle (where persons of various races live). There in one high school in what is generally considered central Seattle (Garfield).

In Seattle, the plan (only in effect for 1999-2002) involved public high school assignment:

The plan allows incoming ninth graders to choose from among any of the district’s high schools, ranking however many schools they wish in order of preference.

Some schools are more popular than others. If too many students list the same school as their first choice, the district employs a series of “tiebreakers” to determine who will fill the open slots at the oversubscribed school. The first tiebreaker selects for admission students who have a sibling currently enrolled in the chosen school. The next tiebreaker depends upon the racial composition of the particular school and the race of the individual student. In the district’s public schools approximately 41 percent of enrolled students are white; the remaining 59 percent, comprising all other racial groups, are classified by Seattle for assignment purposes as nonwhite. If an oversubscribed school is not within 10 percentage points of the district’s overall white/nonwhite racial balance, it is what the district calls “integration positive,” and the district employs a tiebreaker that selects for assignment students whose race “will serve to bring the school into balance.” If it is still necessary to select students for the school after using the racial tiebreaker, the next tiebreaker is the geographic proximity of the school to the student’s residence.

A parent of a ninth grade student sought to enroll her son in a selective biotechnology program (to which he was accepted) at Ballard. Due to the use of a racial tiebreaker by SSD, her son was not assigned to Ballard. A lawsuit followed.

Jefferson County (Kentucky) Public Schools

Jefferson County Public Schools (JCPS) operates the public school system in metropolitan Louisville, Kentucky. JCPS had once been under a decree to desegregate its schools. JCPS was determined to have satisfied the decree in 2000 and the federal district court dissolved the decree.

After the court dissolved the decree, JCPS adopted a voluntary student assignment plan for its elementary schools:

At the elementary school level, based on his or her address, each student is designated a “resides” school to which students within a specific geographic area are assigned; elementary resides schools are “grouped into clusters in order to facilitate integration.” The district assigns students to nonmagnet schools in one of two ways: Parents of kindergartners, first-graders, and students new to the district may submit an application indicating a first and second choice among the schools within their cluster; students who do not submit such an application are assigned within the cluster by the district. “Decisions to assign students to schools within each cluster are based on available space within the schools and the racial guidelines in the District’s current student assignment plan.” If a school has reached the “extremes of the racial guidelines,” a student whose race would contribute to the school’s racial imbalance will not be assigned there. After assignment, students at all grade levels are permitted to apply to transfer between nonmagnet schools in the district. Transfers may be requested for any number of reasons, and may be denied because of lack of available space or on the basis of the racial guidelines.

In JCPS, approximately 34% of the JCPS’s 97,000 students are black; most of the remaining 66% are white. The plan requires all nonmagnet schools to maintain a minimum black enrollment of 15%, and a maximum black enrollment of 50%.

A parent sought to enroll her son in Kindergarten in a school a mile from their home (their “resides school”). As her “resides school” was full, JCPS assigned her son to a school ten miles away. The parent sought to enroll her son at another JCPS school (through an “intercluster transfer”) that was one mile away from their home. JCPS denied the transfer because the transfer would have an adverse effect on the desegregation compliance of her “resides school”. A lawsuit followed.

In ruling to view the school assignment plans of SSD and JCPS as violative of the 14th Amendment’s Equal Protection Clause, the Supreme Court’s (Court) majority opinion (joined by Chief Justice John Roberts, and Associate Justices Samuel Alito, Clarence Thomas, Antonin Scalia and Anthony Kennedy) reasoned that there are only two uses of race in the school assignment context that will satisfy “strict scrutiny”:

• to correct past intentional discrimination (segregation [Author's note: (of Blacks)]). The Court stated that once the court dissolved the desegregation decree, JCPS corrected its past discrimination. Thus, JCPS could no longer use the permissible use of race to correct past discrimination.
• diversity in higher education (post-secondary) alone. The Court explained that SSD’s race tiebreaker violated the Equal Protection Clause in the 14th Amendment because the race tiebreaker does not factor race along with other considerations. Also, the Court noted that SSD governed elementary and secondary schools, not institutions of higher education.

The Court also held that the use of race in both SSD and JCPS had minimal effect on the assignments of students. Thus, the Court had doubts on the use of race by SSD and JCPS. The Court determined that SSD and JCPS did not show that they considered factors other than explicit racial classifications to achieve their goals.

Justice Kennedy, however, wrote a concurring opinion that recognized a governmental interest in diversity (bringing students of different backgrounds and races together). Justice Kennedy provided several examples of permissible ways to accomplish the governmental interest in diversity:

• strategic site selection of new schools;
• drawing attendance zones with general recognition of the demographics of neighborhoods;
• allocating resources for special programs; recruiting students and faculty in a targeted fashion; and
• tracking enrollments, performance, and other statistics by race.

Justice Kennedy also recognized that race still matters in today’s society.

Commentary

This decision appears straightforward, but underlying it reveals a Supreme Court taking a narrow view of the effect of race in the United States (especially on Black people). In the United States, race, in general, has not been negatively used against all races, but specifically against those not in the White majority (particularly Blacks). Portions of the plurality opinion (parts of the opinion Kennedy did not join), parts of Justice Kennedy’s concurrence, and Justice Thomas’s concurring opinion, I believe led to the dissenting opinion (to be covered in a separate post).

The Court does not give consideration to the issue of societal power in its view on race. I believe this distorts the court’s decisions on racial issues. I will be covering this issue along with others in several posts. Keep the following census figures in mind.

United States (population: 281,421,906 (2000 Census))

Seattle, Washington (population: 563, 374 (2000 Census))

Louisville, Kentucky (population: 256,231 (2000 Census))