Monday, June 18, 2018

A. The More Things Change the More They Stay the Same


In Brown v. Board of Education, the United States was still molding the contours of the "separate but equal doctrine" articulated in Plessy v. Ferguson.  While the case dealt with the question of whether separate but equal passed constitutional muster, the record indicates that in three of the four consolidated cases, the schools attended by African-American children were decidedly inferior. 


Students of racial or ethnic minorities still find that they still receive "separate but equal" education today. On May 17, 2000-the 46th anniversary of Brown v. Board of Education-the American Civil Liberties Union, Public Advocates, the Mexican American Legal Defense and Educational Fund, and other civil rights organizations, along with Morrison & Foerster LLP, filed a class-action lawsuit, styled Williams v. California, on behalf of public school students against the State of California.  The plaintiffs argued that the State and its agencies were denying thousands of California students their fundamental right to an education, as provided under the California Constitution,  by failing to provide them with the basic tools necessary for that education. The State operated thousands of classrooms without enough textbooks for students; provided school facilities that were overcrowded, in disrepair, and unhealthy for students; and employed many under-trained teachers. Indeed, most affected schools were located primarily in urban areas and were disproportionately attended by children who were members of racial or ethnic minorities.  The parallel to the consolidated cases in Brown v. Board of Education should not be overlooked.


This story has a moderately happy ending. On August 13, 2004, after more than four years of litigation, the parties announced a settlement agreement, embodying the central principles of the plaintiffs' case and included significant changes to California's education laws. Six weeks later, on September 29, 2004, then-Governor Schwarzenegger signed into law five bills implementing the legislative proposals set forth in the settlement agreement, and they took effect immediately.  While the settlement is complex, at its core is the idea that each and every student has a right to "sufficient textbooks," a school in "good repair," and a qualified teacher.  The improvements are in line with James Truslow Adams' initial iteration of the American Dream, "life should be better and richer and fuller for everyone, with opportunity for each according to ability or achievement,"  albeit more than fifty years after Brown v. Board of Education.


The creation of these legal rights, however, does not guarantee enforcement thereof. Indeed, "[a]lthough Brown banned racial segregation in public schools, it did not automatically lead to equal educational opportunities for [African-Americans]."  The same is likely to be true of Williams and other efforts to eradicate discrimination. There remains a long path to walk before we have a perfect union. While conditions have progressed, the evolution has been far shy of "dramatic." This can perhaps best be seen in gender and racial representation in the workplace.


Many believe we have achieved gender equality, and while there are glimmers of hope, the workplace lags far behind perception. Currently, the percentage of women in the U.S. labor force is 46.9 and the percentage of women in management, professional, and related occupations is 51.5.  Although these statistics show that there is equal opportunity for women to be employed in management, professional, and related occupations, persistent disparities remain. In 1979, the first year for which comparable earnings data were available, women earned about 62 percent as much as men.  Despite progress, in 2011 women were still earning around 82 percent as much as their male counterparts.  Improvement over the span of thirty years, however substantial, is not equality.


Continuing with this theme, according to the Department of Labor, in 2010, women were still only dominating fields and industries seen as traditionally "feminine."  For example, women tend to be secretaries (96.1%), nurses (91.1%), elementary and middle school teachers (81.8%), maids (89%), childcare workers (94.7%), and receptionists (92.7%).  While all are honorable pursuits, the high proportion of women who occupy each raises concerns that women are herded into these professions.


Though women and men now enter the business world in equal numbers, women have yet to be well represented in positions of power, making up only 14.4 percent of Fortune 500 corporate officers.  Worse yet, women account for only 8.1 percent of the top earners in Fortune 500 Companies and only 4.8 percent of Fortune 500 CEOs.  In fact, Corporate Board Member, a magazine distributed to the board members of public company boards, noted that the percentage of women sitting on board seats nationwide is on the order of 12 percent. 


The composition in the legal profession does not fare much better. While men and women have been graduating from the nation's law schools in nearly equal numbers over the last twenty years, women make up only 19.2 percent of partners in the nation's major firms.  Legal academia mirrors this sad ratio. In the 2008-2009 academic year, women deans led approximately 20.6% of American law schools. 


Racial and ethnic minorities fare worse than women. African-Americans hold less than 9.2 percent of Fortune 100 board positions, and Latinos hold only 4.3 percent.  Similarly, in the legal world, only 1.7 percent of law firm partners are African-American and only 1.9 percent are Latino. 


African-Americans and Latinos still disproportionately occupy the bottom half of the income distribution - and the trend only suggests an inauspicious future.  Our world remains one where whites are twice as likely as African-Americans to have an income of $100,000 and over.  Moreover, the median wealth of white households is twenty times that of African-American households and eighteen times that of Latino households.  As noted below, this disparity has ramifications.


Similarly, since 1992, there has been a significant income gap between Asian-Americans and their white counterparts. A 1992 report by the United States Commission on Civil Rights debunked the belief that Asian-Americans are treated fairly in this country.  This report stands in contradistinction to a 1991 Wall Street Journal poll that found that most Americans believed that Asian-Americans were not discriminated against. A more recent University of Kansas study confirms the 1992 report, finding that "native-born Asian-Americans--who were born in the U.S. and speak English perfectly" have an income level 8% less than Whites - "after controlling for their college majors, their places of residence and their level of education." 


Although race and ethnicity are the most common bases for discrimination, many are also treated differently based on their sexual or gender identity. Though members of the LGBT community may not be a "visible" (visible in the sense that a woman or an African-American is "visible") minority group, they still face significant discrimination.  The struggles they face, while still rooted in discrimination, are of a slightly different nature than "traditional" discrimination. The stigma of being a racist is much harsher than one who discriminates against someone who identifies as LGBT. This, of course, does not legitimize such discrimination, but does allow for much more "upfront" discrimination that perhaps does not manifest itself implicitly through subjugation in the workplace or incarceration, but rather through hate crimes.


The Federal Bureau of Investigation reported that in 2011, over 6,000 hate crimes were committed, with nearly 1,300, just slightly over 20 percent, committed because of bias against sexual orientation.  This is an increase from the number of hate crimes linked to sexual-orientation bias in 2009. 


According to a 2013 Gallup Poll, 59 percent of people find homosexual relations "acceptable."  Digging deeper, the Gallup Poll reports that 38 percent of Americans find gay relations "morally wrong," representing a record low number for the question in the last decade.  In another Gallup poll, the public was asked: "If your party nominated a generally well-qualified person for president who happened to be [homosexual], would you vote for that person?"  Thirty percent of respondents said they would not vote for that candidate based solely on the candidate's sexual orientation.  Perceptions have changed dramatically since 2011, when Gallup began tracking public opinion on LGBT issues, and there is some cause to believe that attitudes can change for the better over time. However, these statistics still indicate that true equality remains elusive.


I could go on and on, but the basic truth is obvious. It is frighteningly easy to find present-day indicators of a lack of progress, and this lack of progress on some fronts is exacerbated by the complexity of diversity today.

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