I will end my discussion on education policy today by pointing to the importance of knowing the big picture of public policy. All across the US and especially in Baltimore citizens are simply listening to what they are told----they are relying on a media that has been captured and provides only what people in power tell us. DO THE WORK----KNOW THESE POLICIES AND POLS AND EDUCATE EVERYONE IN YOUR COMMUNITIES.
As I showed, parents and students in Japan, China, and South Korea where these neo-liberal education policies have been installed since the wars have been shouting against them for decades----why would Americans allow them to be installed? I used the KIPP example because you can see the beginning of what this Wall Street for-profit charter chain will look. Imagine if they dismantle all of public schools and are free to take this autocratic education policy to its extreme as in these Asian nations.....KIPP will become all STICK and no CARROT.
As we saw in the article on KIPP, the same socialization of children as in Asia is happening in what will become an expanded for-profit charter chain. They are killing the idea of educating children broadly to become leaders and work for the good of community and society-----and installing the idea of corporation as the common good and winning at all cost focusing corporations as national pride and not the humanitarian, egalitarian ideals of allowing everyone to participate to their fullest. This is what created all of the wealth inequity, fraud, corruption and now this movement towards a global corporate tribunal and court rule through Trans Pacific Trade Pact. Remember, the Asian immigrants are not the problem and most do not want to live in an America made to look like the nation's they are leaving----it is the corporations and politicians working to install their public policies that are the problem.
Japan's Cutthroat School System: A Cautionary Tale for the U.S. A new book shows how fixating on testing and achievement can backfire.
- Noah Berlatsky The Atlantic monthly.com
- Nov 22, 2013
"No Child Left Behind." "Race to the Top." The names suggest mobility, progress, moving on up and not falling back. The goal of education, according to these national education initiatives with their standards and testing, is forward motion and competitive advantage, progress and success, both in an unabashedly economic context. President Obama talks about how we need to "invest in our young people" in order to compete in a global marketplace. Bill Gates, too, argues we need standards in order to become "more competitive as a country."
In this, as in so many other things, Japan preceded us. In her new book, Precarious Japan, anthropologist Anne Allison returns to the Japanese education system that she discussed in some detail in her 1995 monograph Permitted and Prohibited Desires. As Allison says in both volumes, the Japanese education system after World War II was built around highly competitive and rigorous high-school testing, which required enormous discipline and study. The goal was to prepare students for equally arduous employment in Japan's industrial capitalist economy, where men worked basically all the time. (In Precarious Japan, Allison relates one anecdote of a man sleeping at his desk for no extra pay.) Good scores on tests ensured good jobs in Japan's corporate economy. For their part, Allison writes, Japanese women were expected to stay home and focus all their time and energy on preparing children for their exams. In Allison's words, they "worked hard at love." Family, school, and work thus fit into a single seamless system of economic striving that "catapulted Japan to the heights of global prestige as an industrial power."
Again, in many ways, the Japanese experience seems to echo the dream of education reformers and policy-makers in the United States: strong parental involvement, rigorous testing, discipline, and study in school leading to disciplined workers competing successfully in the global economy. Obviously, every detail isn’t as appealing as every other. The relegation of women to the domestic sphere would not be popular in the U.S., for example. But overall, Japan's system can be seen as a prototype; the dream we Americans are now striving for.
The one problem being, as Allison shows, that that dream has already turned to dung. Japan's bubble economy burst in the ‘90s. Its amazing, decades-long post-war economic boom turned into post-post-war economic stagnation. Precarious Japan chronicles the unraveling of the home/job/school unity on which Japanese capitalism was based. Through a combination of economic contraction and neo-liberal restructuring of the economy, the lifetime salaryman jobs which were to be the reward of success in high school dried up. Today one-third of Japanese workers are irregularly employed, including 70 percent of all female workers and half of all workers between 15 and 24. A full 77 percent of the irregularly employed earn wages less than poverty level, and so are working poor.
There are a couple possible lessons to take from Japan's experience. On the one hand, you could perhaps argue that it shows that test-oriented education does not actually promote global competitiveness; that Japan's focus on testing and rigid connections between school, home and family, stifled creativity and created an insufficiently flexible economy. This is the critique that University of Oregon Professor Yong Zhao makes of our emphasis on testing in the U.S. From his perspective, the goal of global competitiveness is the right goal, but to get there we need education that focuses on creativity and innovation rather than test-taking.
Perhaps though the problem, though, is not with the methods we are using to link education to economic advancement, but linking education and economic advancement in the first place. Uncertain work and falling wages have contributed to the precariousness in Japan that Allison discusses, but they aren't its only cause. Rather, she suggests, the unified emphasis on economic achievement and global advancement as the social purpose has left people with few resources with which to confront hard times. The path from family to school to corporation in the context of expanding capitalism underwrote people's social place to such an extent that without it, many individuals become placeless.
In this context, Allison talks at some length about the Japanese social phenomenon of hikikomori, which began to emerge in the early 1990s. Hikikomori are effectively non-spiritual late capitalist monks; male young adults who "withdraw and remain in a single room they rarely, if ever, leave," sometimes for years. Generally hikiomori are isolated in their family homes and remain dependent for minimal care on their parents, who they may not even interact or speak with. Estimates of the number of hikikomori range between 100,000 and 700,000. Close to a third of them start out as kids who refuse to go to school. One hikikomori Allison talks to named Kacco says, "As long as I performed well in school, things were okay. But once I started to deviate just a little—they [parents, teachers] went to the extreme and started treating me incredibly coldly." Kacco adds, "now as the economy has fallen, we've all become strangers to one another. Society today is very cold." Allison discusses this coldness in other contexts: the isolation and abandonment of many elderly people; the disconnected lives of the growing ranks of part-time workers, many of whom have no permanent residence but go from net-café to net-café, logging on to seek the next days employment.
The Japanese school system oriented fanatically towards capitalist achievement seems to have reproduced or helped create capitalist social atomization. The notorious bullying in Japanese schools has actually been seen by many parents and teachers as a feature not a bug. Students can be targeted for failing to do well academically (Allison discusses one girl bullied for her failure to learn kanji quickly enough.) "[T]he parent who refuses to pamper their bullied child…, thereby forcing them to become tough as nails, is something of a Japanese ideal," Allison writes. "Tough love," she adds, leads to toughness and success, "Japan as number one."
Again, though, that link between competitive schooling and Japanese triumph has broken apart over the last decades. In light of that, and of our own protracted ongoing experience with economic precariousness, it might be worthwhile for the U.S. to reconsider our current focus on schools as engines of economic attainment, either individual or national. Do we want all our students constantly rushing in a race to the top, even if, life being what it is, that top is sometimes not a mountain but a cliff? Is education entirely about succeeding economically? Or might there be other, more important kinds of success, involving connection, community, and rootedness? Both Japan and the U.S. could stand to think about whether we want to concentrate on getting schools to produce good workers, or whether we would rather have them help to make good human beings.
Neo-conservative Larry Hogan was brought into the Maryland race for Governor because it was clear Clinton neo-liberal Anthony Brown was not going to win. Hocus pocus with Maryland primary rigging and someone with around 25% of votes becomes Maryland Governor and VOILA----he is pushing the very same policies as O'Malley/Brown because NEO-CONS AND NEO-LIBERALS ARE SIMPLY THE SAME POLS. HE IS PUSHING MARYLAND TO CONTROL BY GLOBAL MARKETS AS HARD AS O'MALLEY. It is this control of government and economy by global markets that is killing the American people----we want strong domestic economies in our states and communities. They pretend they are building small businesses----but start ups are simply a short step towards handing businesses to global corporations.
Hogan doubled-down on national Wall Street charter chains as he took O'Malley's education policies and moved them to the next step again using neo-conservative Johns Hopkins' Baltimore as the platform. With Kieffer Mitchell as the BOYS LATIN GRADUATE INSTILLED WITH NEO-LIBERAL DOCTRINE----Hogan placed a grandson of a REAL civil rights icon in charter of super-sizing this for-profit charter chain and neo-liberal education reform. Using faces of people the poor have been made to respect to lead them to this autocratic corporate control of society-----that is how neo-conservatives like Hogan and Johns Hopkins win at any cost. When people allow injustice for one group-----it will lead to injustice for all. Please stop allowing them to play one group off another----
WE NEED PEOPLE RUNNING FOR OFFICE THAT SEES RULE OF LAW, EQUAL PROTECTION, AND DOMESTIC ECONOMY AS THE GOAL. STOP ALLOWING THESE GLOBAL POLS TO SIMPLY SAY THAT IS WHAT THEY WANT.
Exporting natural gas is the LNG agreement------High Speed Trains will create a tiered system of transportation with killing commuter rail and replacing it with buses for all-----while moving the affluent with taxpayer subsidy. Expanding Asian global corporations in Maryland further places global markets in control of Maryland's economy----BYE BYE DOMESTIC ECONOMY---HELLO GLOBAL CORPORATE TRIBUNAL AND TRANS PACIFIC TRADE PACT WHETHER LARRY HOGAN OR O'MALLEY/BROWN
Governor Larry Hogan Joins Dominion Executives to Commemorate 20-Year LNG Agreement With Japan
Governor Hogan Speaks to LNG Posted: Friday, June 5, 2015 7:25 am | Updated: 10:51 am, Sat Jun 6, 2015.
Gov. Hogan Wants to Bring World's Fastest Train to...
Governor Larry Hogan is ... Hogan is taking the first steps to bring the fastest train in the world to Maryland. He took a trip on the Maglev while visiting Japan ..
Hogan takes Anne Arundel to Asia Gov. Larry Hogan participated in the signing of a Memorandum of Cooperation with the South Korean Small and Medium Business Administration that seeks to strengthen small and medium-sized enterprises in both Maryland and South Korea. Capital Gazette May 27, 2015
Where in the world is Governor Hogan? It isn't Maryland. Gov. Larry Hogan has taken several Anne Arundel County business executives with him on a trip to Asia, his first official overseas visit.
Notice below the headline-----Kieffer Mitchell as a Democrat working as Hogan's education charter school appointment. Mitchell is firmly attached to the Hopkins' International Economic Zone policies in Baltimore and embraces taking Baltimore public schools to these KIPP-style Wall Street charter chains. If Clinton neo-liberal Anthony Brown had won, Kieffer Mitchell would have been given the same position.
KIEFFER WORKING FOR JOHNS HOPKINS AND ITS DEVELOPMENT IS A NEO-CONSERVATIVE JUST LIKE LARRY HOGAN----YET THEY CALL HIM A DEMOCRAT!!!!
I've seen Kieffer Mitchell at the Maryland Assembly and he always has a very serious look with his head directed downward......he is being captured by this desire to be part of the wealthy private school scene and what he knows will kill all of what his grandfather, Clarence Mitchell worked for in crafting all of the Equal Protection legislation that became Constitutional rights. The few black leaders allow the rich in Baltimore to showcase the few people of color allowed any pathway to middle-class making it seem like selling out is the only way to advance economically. In Baltimore that has been the case too long----
WE NEED GOOD PEOPLE WORKING TO REVERSE THIS BREAKDOWN OF US CONSTITUTIONAL RIGHTS FOR ALL AND RULE OF LAW PROTECTING EVERYONE.
Be citizens and know where these policies lead----do not simply allow these captured few tell you what is good.
Hogan names Democrat Keiffer Mitchell as special adviser Governor-elect Larry Hogan announced the appointment of delegates Kieffer Mitchel and Jeannie Haddaway-Riccio to his staff, among several others on Tuesday.
(Erin Cox/Baltimore Sun) By Timothy B. Wheeler and Erin Cox The Baltimore Sun
Hogan's picked a transportation chief with expertise in highways, not mass transit Baltimore's Del. Keiffer Mitchell picked to oversee Hogan's efforts on charter schools Gov.-elect Larry Hogan reinforced his vow of bipartisanship while also signaling a potential fight with Democrats over mass transit as he announced more staff appointments Tuesday.
Hogan said a prominent Baltimore Democrat, former Del. Keiffer Mitchell, will oversee some of his legislative initiatives — including a proposal to expand access to charter schools in Maryland.
Mitchell, a former City Council member and scion of an eminent political family, was named a special adviser to Hogan. Mitchell said he considered himself "a testament" to the Republican governor-elect's promise to work with Democrats.
But Hogan also declared, in introducing his choice for transportation secretary, that he wants the state to focus more on building roads than mass transit. He chose Pete Rahn, a former transportation secretary in Missouri and New Mexico.
Governor-elect Larry Hogan on Thursday named four department heads, including former Harford County Executive David Craig, investment banker Michael Gill, former delegate Kenneth Holt and former senator Rona Kramer. (Michael Dresser/Baltimore Sun) "Let me say he's the best highway builder in the country, so that had a lot to do with us hiring him," Hogan said. Hogan also pledged to look at reducing tolls on state highways, bridges and tunnels later this year.
Rahn was the latest of 14 Cabinet appointments for the incoming governor. Nominees require Senate confirmation.
Hogan will take office Jan. 21 as only the second Republican to lead Maryland in more than four decades. At a luncheon Tuesday with the House and Senate Republican caucuses, he struck a bipartisan tone. Hogan said his election and that of the enlarged crop of GOP lawmakers was a "mandate for change." But he also appealed to Republicans to seek accord with Democrats to deal with the looming budget deficit.
"These are not Democrat or Republican problems," Hogan said. "They're problems facing the state."
GOP lawmakers echoed Hogan's sentiments, saying they expect the 90-day session's focus on fiscal and economic issues will make for less partisan conflict.
Del. Kathy Szeliga, the House minority whip, said with the budget woes facing the state, it doesn't matter much whether a Democrat or Republican occupies the governor's mansion.
"Now, regardless of who is in there, spending reductions have to come," said Szeliga, who represents Harford and Baltimore counties. "They'll force bipartisanship because we don't print money."
Sen. Stephen S. Hershey, a Republican from Queen Anne's County, predicted lawmakers "are going to want to work together and compromise on things." But he said Republicans' role in Annapolis has shifted from questioning and opposing initiatives of outgoing Democratic Gov. Martin O'Malley to one of "protecting and promoting" the bills put forward by Hogan.
Maryland House GOP keep leadership GOP leaders acknowledged the potential for conflict, but suggested Democratic resistance would be muted because of the election losses Democrats sustained last year.
"If the other side tries to harm him for political reasons, I think the people of Maryland will punish them," said Del. Nic Kipke, the House minority leader from Anne Arundel County.
Kipke said he didn't anticipate any emotional social issues this session like the fractious debates in recent years over the death penalty, gay marriage and gun control.
"I don't expect any wedge issues that will divide us," Kipke said. "That's what the governor campaigned on. We've got to get Maryland's economy in order. But we will see."
Some others were less sure all would be amicable.
"It's going to be a feeling out-period," said Del. Anthony J. O'Donnell, a Calvert County Republican. O'Donnell said he believed some lawmakers, particularly Democrats from Montgomery County, were "spoiling for a fight."
U.S. Rep. Andy Harris, the sole Republican in Maryland's congressional delegation, stopped by the GOP caucus to urge state lawmakers to keep pressing for their causes despite being outnumbered in the legislature.
"We have a Republican governor, but you still have to fight in the trenches in the House and Senate," he said.
Del. Wendell R. Beitzel, a Western Maryland Republican, said the GOP's larger numbers in the House — they will have 50 members now, to the Democrats' 91 — should make it more likely for Republican-sponsored bills to make it out of committee than in the past.
Democrats called Hogan's selection of Mitchell, who lost his re-election bid, a smart political move.
"The Mitchell name still holds some sway in this state," said Del. Dereck E. Davis, a Prince George's County Democrat.
Davis called Mitchell a "very level-headed, sensible guy. He'll be able to give the governor good advice on what's passable." He said Hogan might be able to "avoid some of the traps" encountered by former Republican Gov. Robert L. Ehrlich Jr.
While the Democratic majority in the legislature and Ehrlich battled repeatedly, Davis said, he didn't expect the same adversarial relationship this year — at least at the outset.
"I'm not saying everything is going to go smoothly and folks won't be in each other's faces," he said. But, he added, "I don't think either side of the proverbial aisle wants to be seen as obstructionist or bringing gridlock to Annapolis."
Still, Hogan's choice of transportation secretary, and his remarks about wanting to build roads, suggested that may be one fiscal issue on which Democrats and Republicans would argue.
Del. Kumar P. Barve, chair of the House Environment & Transportation Committee, said that for all the talk of bipartisanship and appointments of Democrats, "to me, the issue is more of: Are you going to promulgate policies that benefit people from both parties? We'll have to see."
Barve, a Montgomery County Democrat, said he believed that despite Hogan's questioning of the multibillion-dollar cost of light rail lines in the Washington and Baltimore areas, "there's a very strong business argument that's going to be made for the Purple and Red lines."
House Speaker Michael E. Busch credited Hogan with setting a more positive tone with his transition than Ehrlich did.
Busch suggested circumstances also may help the incoming governor in working with Democratic lawmakers. Hogan comes into office facing a smaller budget deficit than Ehrlich did, Busch said, and without controversial issues such as gambling looming.
"We all have the same goals, just not the same path to get there," Busch said.
Knowing all of this should send a signal to all citizens they need to have candidates in these primaries that represent real people-----and not installing global corporate wealth and power. When I see the number of teachers and administrators in Baltimore being laid off-----I see lots of progressive liberal labor and justice running in primaries at all levels. Stop being pushed from the public sector into these temporary small businesses-----BE THE POLITICIANS! Your labor and justice organization leadership would be doing this----would be educating this for decades if they were not working for Clinton neo-liberals and Bush neo-cons!
Corporate captured states like Maryland have dismantled the elected school boards and created fake reasons to hand control to state or local governors and/or mayors who then appoint a corporate school board structure. Then Mayor Schmoke worked with then Maryland Education Superintendent Grasmick (who after retirement went to work for neo-conservative Johns Hopkins as did Martin O'Malley) to use the failure to meet special education needs as the reason to hand Baltimore School Board to the Governor and Mayor. This was done with the goal of making Baltimore the platform for creating this privatized education structure that will simply expand across the state. Cities were used because the communities were reduced to third world poverty and easily controlled by corporations like Johns Hopkins. All of the political activism in these communities comes from people hired by Hopkins----all directors of corporate non-profits are appointed by Johns Hopkins----and the voice of progressive liberalism with Equal Protection and strong public institutions and oversight and accountability is drowned by neo-liberal global corporate mantra.
JOBS, JOBS, JOBS SUPERCEDES LIFTING ALL BOATS.
We need the over 600,000 citizens in Baltimore to WAKE UP-----be the leaders in your communities that do not accept an appointed director as your voice---BE THE VOICE----
St. Paul teachers union seeks candidates to challenge school board incumbents
By Josh Verges
firstname.lastname@example.orgPosted: 12/12/2014 12:01:00 AM CST | Updated: 6 months ago
Frustrated with the direction of St. Paul Public Schools, its teachers union is encouraging new candidates to run for four seats up for grabs on the school board next year.
The four current board members whose terms expire in 2015 -- Mary Doran, Keith Hardy, Anne Carroll and Louise Seeba -- were endorsed in 2011 by both the St. Paul Federation of Teachers and the Democratic-Farmer-Labor Party. But they'll have to work to get the union's blessing again.
"It's not a secret that we have been encouraging people to run. We are discouraged with the incumbents," said Roy Magnuson, a Como Park High School teacher who leads the union's political arm.
Mary Doran, from left, Keith Hardy, Anne Carroll and Louise Seeba Magnuson has advised DFL activists and elected officials that numerous people plan to run and asked them not to endorse any incumbents before hearing from their challengers.
"This, I think, is going to be a more contentious election than we have had in many years," said Al Oertwig, 69, who served on the school board for 20 years between 1983 and 2007, when he bowed out after losing the DFL endorsement. He's considering running again in 2015.
Oertwig said major recent changes in the district have created tension between teachers and parents and the district administration and board members. Moving sixth-graders to middle schools last year while also placing children with emotional and behavioral disorders in mainstream classrooms was "very disruptive," he said.
In addition, Oertwig said, the sudden switch to iPads for every student seemed poorly planned.
The ideas behind such initiatives are sound, he said, but the execution has been rushed.
"They're not well thought through and planned, and the staff training that's needed to make some of these things happen just is not there," he said.
Steve Marchese, 47, a lawyer who runs the state bar association's pro bono program, intends to run next year and will speak at the start of the school board meeting Tuesday.
He enrolled his sixth-grade son at Capitol Hill magnet school this year because he didn't trust the district to fix the behavioral problems that Murray Middle School experienced last year.
Marchese represented African-American families in a decades-old school desegregation lawsuit in Michigan and supports St. Paul's goal of disciplinary racial equity, but he said poor planning made the 2013-14 school year "a disaster."
"That's a good goal, but is it being implemented in ways that serve the students that are being disciplined and the rest of the community?" he said.
Zuki Williams Ellis, 40, has a first-grader at J.J. Hill Montessori, chairs the parent-teacher organization there and trains parents for the Parent/Teacher Home Visit Project in St. Paul. She wants more support staff in classrooms to help teachers, and she's found board members unresponsive to issues raised at their listening sessions.
"I feel like parents and our community members are not being listened to," said Williams Ellis, who intends to run for school board.
Jon Schumacher, 63, also plans to run. He's executive director for the St. Anthony Park Community Foundation and thinks he has the skills to bring all sides together.
"There's a lot of new, important things that are happening in our schools ... that have put a strain on the relationships in our school community," he said.
Mary Vanderwert, 63, used to be Head Start collaboration director for the Minnesota Department of Education. Now preparing to run for school board, she said the district hasn't taken advantage of research on how different children learn. She said those with behavioral problems could benefit from alternative classroom settings, such as smaller or single-gender classes, more activity or more arts instruction.
"They're screaming out for help and we've got to support teachers and parents in getting those issues resolved," she said.
Candidates can't formally join the school board race until spring, but Vanderwert is among those already raising money for a campaign.
Seeba, who is in her first term, said by email that she's heard from likely candidates and has encouraged them to run next year. She agreed the middle school and special education changes were "too much to do in one year" and noted that she voted against the "risky and expensive" iPad rollout in June.
Doran said by email that the board is listening but "we need to balance competing needs." She said the iPad program has moved quickly but it's going well, and that the middle-school and special-education changes are working better after a "difficult year."
Hardy and Carroll did not respond to a request for comment.
Superintendent Valeria Silva said by email that she "perhaps" would have preferred not to make the special-education and sixth-grade changes in the same year, "but how does one prioritize the welfare of one group of students over another?"
"I acknowledge we had a rough first year," she added. "We are moving forward positively during this school year. We continue to tweak the system to ensure that staff and students have the supports they need, but in the majority of cases, the students have adjusted extremely well."
I have told the story of AFT Weingarten going to South Korea and seeing how this super-competitive corporate education worked and then saying it was a good thing.....she supported it. Just as Trumka with the AFL-CIO supporting all of the Clinton neo-liberal structures and policies that killed the unions and are moving the American worker to the same Asian sweat shop International Economic Zones that the Clinton Initiative installed overseas. IT IS THE NATIONAL UNION LEADERSHIP THAT APPOINT THE STATE AND LOCAL UNION LEADERSHIP----IF THEY WORK FOR GLOBAL CORPORATE NEO-LIBERALISM SO TOO WILL YOUR STATE LEADERS. This is why every election cycle since the 1990s---when it was clear Clinton embraced a very corporate and wealth political strategy----union leaders did not run their own candidates----they kept supporting Clinton neo-liberals.
PLEASE STOP ALLOWING OUR UNION LEADERSHIP BE CONTROLLED BY CLINTON NEO-LIBERALS----BE THE CANDIDATES IN UNION LEADERSHIP ELECTIONS!
Weingarten knew where this Race to the Top neo-liberal education reform would lead-----she knew Race to the Top was only a global phrase for 'EXPANDING CORPORATIONS MARKET SHARE TO MAXIMIZE PROFITS' not improving the quality of American education. I very much think these national union leaders have the offshore accounts making them rich just as the justice organizations that used to work for people of color and the poor now have their former national leadership living the rich lives as people of color lose all their wealth and assets and move to the deepest poverty. WE MUST BECOME ENGAGED IN POLITICS---KNOW PUBLIC POLICY AND TAKE BACK OUR DEMOCRATIC PARTY FOR THE PEOPLE----WE NEED STRONG LABOR UNIONS REALLY WORKING FOR WORKERS AS WELL!
All educators and and many education administrators will be the first to tell you NO EDUCATION ACADEMICS WERE INVOLVED IN THESE RACE TO THE TOP POLICIES----THEY WERE WRITTEN BY A CORPORATE ALEC -------SO WEINGARTEN IS LYING WHEN SHE SAYS THESE POLICIES HAD INPUT FROM TEACHERS AND EDUCATION ACADEMICS.
Statement by Weingarten On 'Race to the Top' Grant Awards
For Release: Tuesday, August 24, 2010 Contact: Tom Lansworth 202/393-6351 email@example.com U.S. Education Secretary Arne Duncan today announced the winners in the second
round of the $4.35 billion “Race to the Top” federal grant competition program.
WASHINGTON--“We congratulate the nine states and the District of Columbia on their selection today as federal Race to the Top program grant recipients. We are particularly pleased that Florida, Maryland, New York, Ohio and Rhode Island prevailed—their proposals were first-rate and the products of true collaboration among stakeholders—all focused on student achievement.
“Take Florida for example: After being shut out of the discussion in the first round of the Race to the Top competition, teachers fought for and won a seat at the table, where they played a key role in keeping the focus on what students need and what works in their classrooms. Similarly, the New York and Rhode Island proposals have built upon the teacher evaluation work started under the auspices of the AFT Innovation Fund—work so promising it was awarded an i3 grant by the U.S. Department of Education.
“The most important aspect of these grants is not who won today, but how those selected will implement their proposals as we move forward. This has always been the difference between success and failure in school reform—the one who finishes the race is not always first out of the starting gate. The burden is squarely on education officials in these states to work with teachers and others to make sure their Race to the Top plans succeed and to take all the other steps necessary to support good teaching and student achievement.”
* * * * * * *
Education Secretary Arne Duncan highlighted the key to that success back in March when he announced the finalists in the first round. “It’s about collaboration among all stakeholders—including administrators, educators, unions, parents and elected officials,” he said then. “It’s about building a shared agenda, and challenging ourselves to improve student learning.”
The AFT has stressed that kind of cooperation since the very beginning of the Race to the Top program. In a letter to the Department of Education last year, as the rules for the competition were being written, we welcomed the commitment of funding represented by Race to the Top. However, what we said then remains just as certain today: “True reform requires more than funding alone; it requires valid, reliable, sustainable and fair policies, thoughtful implementation and the collaborative approach necessary for success.” Over the long term, real innovation works only with the support of the educators who must implement it.
Given those principles, something is wrong with the process if Florida, New York, Rhode Island and Ohio, where teachers helped shape the proposals funded today, and the District of Columbia, whose proposal includes an evaluation system developed and implemented without any input from teachers, can simultaneously win grants. The common denominator for all good schools must be a professional atmosphere in which the adults work together on behalf of the students.
AFT members, who work every day on the frontlines of education reform and innovation, while happy for the winners, continue to be concerned that the Race to the Top competition by design excludes millions of public school students across the country. Rather than creating a contest that picks winners and losers, our education policies and programs should offer all students the quality education they need to succeed in college, career and life.
# # # #
The AFT represents 1.6 million pre-K through 12th-grade teachers; paraprofessionals and other school-related personnel; higher education faculty and professional staff; federal, state and local government employees; nurses and healthcare workers; and early childhood educators.
I showed how labor unions are now in the home mortgage and student loan business-----well here we have the other leaders pushing all of the Clinton neo-liberal policy and candidates every election -------black fraternities and sororities. These are the few that made it rich in the few decades of fraud----
We do not need these private institutions becoming our Federal Education Department and acting as Wall Street banks----which is what is happening. This is why you will not hear national labor leaders and these fraternity/sorority structures calling for Rule of Law and public justice----they are controlling all of the political and community structures tied to this Wall Street development and International Economic Zone. Not all labor union leaders and sorority/fraternity members are bad----just as all graduates from Ivy League schools are not bad-----but we need to error on the side of people in knowing we need better choices for leadership!
This is my answer to this add from Pan-Hellanic Council of global sororities/fraternities:
It seems simply recovering $1 trillion in for-profit education corporation industry fraud that targeted low-income students and using that would take care of paying off all student loan debt without any corporate loan structure all the while holding people accountable under Rule of Law for criminal activities. This moves the wealth from the people enriched from the fraud back to the people sold a bill of fraudulent goods!
This is what captures Baltimore's politics so completely----we have Johns Hopkins taking complete control as a neo-conservative institution and black sororities and fraternities from Historically Black Colleges choosing to join Johns Hopkins and Clinton neo-liberals. A partnership of the Federal Department of Education sending federal student loan control to private corporations like national labor unions and these national fraternity/sorority structures is what has what should be labor and justice organizations working for civil rights and labor rights now working to advance global corporate wealth and profit.
Think who pushed subprime mortgage loans in low-income communities as both of these groups are now pedalling home mortgage loans just before this devastating economic crash while never educating that this crash is coming!
'The National Pan-Hellenic Council of Washington, DC is partnering with the U.S. Department of Education's Federal Student Aid student loan repayment campaign. There are options to repay your student loans! Ladies and gents, please check out this video' -
Awkward Restaurant Moment
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We all have that one friend…Cindy WalshLike · Comment · Share · May 5
I like this article because it not only shows how Equal Protection was taken to such extremes as to alienate more and more groups that fell under this tent-----labor, people of color, and women were the original target of Equal Protection. When I talk with labor from more conservative states like the south----they will say----WE DON'T THINK PEOPLE NEED ALL OF THESE PROTECTIVE RIGHTS AND PROGRAMS. Gay rights falls under civil rights so the rights for gay and lesbians were won with the civil rights of the 1960s. The problem with War on Poverty and civil rights came when Reagan/Clinton killed the US economy with global markets and jobs disappeared making the American people feel they needed to protect their group of workers. Unions did this, southern workers did this, and communities of color did this.
EQUAL PROTECTION THEN BECAME A THREAT TO GROUPS THINKING THIS UNDERMINED THEIR CHANCES OF HAVING JOBS. IT WAS DELIBERATE.
This is why poor white workers in the South vote against their own interests every time in supporting Republicans who are the driver of this naked global market capitalism even when it is disguised as Clinton Democrats.
IF YOU DO NOT SUPPORT EQUAL RIGHTS FOR ALL THEN THESE GLOBAL POLS WILL KILL THE ENTIRE US CONSTITUTION AND OUR NATIONAL SOVEREIGNTY ALLOWING NO RIGHTS OR YOUR STATUS AS CITIZEN. PLEASE STOP ALLOWING THEM TO DRIVE WEDGES IN THE DEMOCRATIC BASE OF LABOR AND JUSTICE.
So, conservative labor thought ending civil rights for people of color and segregation in education was fine just as poor people of color given a chance for a job and wealth were told it is fine to end Rule of Law and Equal Protection for people of color, women, and labor. In Maryland, the divide between affluent blacks and low-income blacks played out in the gay marriage issue. In the South, labor vote against poverty programs thinking that is the reason taxes are so high when it really is corporate subsidy that is the problem. Reagan/Clinton used massive unemployment as the divider----global corporations growing to wealth and power overseas to come back to a weakened and impoverished American worker forced to take any conditions in order to survive and it was all done
BECAUSE THE AMERICAN PEOPLE WERE SOLD ON THE IDEA THAT EQUAL RIGHTS ARE BAD FOR ONE REASON OR ANOTHER. AN INJUSTICE FOR ONE DOES BECOME INJUSTICE FOR ALL.
Jamie Raskin of Maryland is a rascal. His wife was appointed to the FED and they both have global corporate rule in their veins.....they are the face of Clinton neo-liberalism and yet----Maryland Progressives and the Maryland branch of Progressive Democrats of America sell Jamie Raskin as such the progressive. Even this organization created back in the 1960s----People for the American Way-----has been taken by Clinton neo-liberals to create this war against the right wing----with Clinton neo-liberals being right of center themselves. Gay and lesbian citizens had their rights back in the 1960s when Equal Protection was made a Constitutional Right. It was the Federalism Act installed by Clinton and now Obama as Executive Order that allows states to ignore those rights. Gay marriage, contraception and abortion-----
THOSE ARE NOW THE ONLY SOCIAL DIVIDERS AS ALL EQUAL PROTECTION AND CIVIL RIGHTS HAVE BEEN DISMANTLED. THESE FIGHTS ARE NOT WORTH IT FOLKS! STOP ALLOWING CLINTON NEO-LIBERALS AND REPUBLICANS USE THESE FIGHTS TO KILL ALL EQUAL PROTECTION AND LABOR RIGHTS.
Using social equal protection in the south and using individual wealth in communities of color have broken Equal Protection and Rule of Law and we must rebuild these and get back to POWER TO THE PEOPLE!
RASKIN IS JUST A WALL STREET GLOBAL CORPORATE POLS EXTRAORDINAIRE AND ANY PUNDIT, ORGANIZATION, OR MEDIA THAT SAYS HE IS PROGRESSIVE IS CLINTON NEO-LIBERAL!
Join the fight against the right wing----Get the latest progressive news and updates on how you can get involved to stop right wing extremism:
Equal Protection or "Social Tradition": The Supreme Court's Test in the Marriage Cases
By Jamie Raskin
Tradition is often just the evidence of silence. –Judith Shklar
If we had a Supreme Court that cared as much for the liberty and equality of people as it cares for the liberty and equality of corporations, deciding the two cases taken up this Term on the future of marriage discrimination in America would be a piece of cake—wedding cake, to be exact.
The Constitution, logic, and precedent are all on the side of equal rights.
One case, United States v. Windsor, deals with the constitutionality of Section 3 of “DOMA,” the 1996 federal Defense of Marriage Act, which provides that the word “marriage” in any federal law or regulation—including the Social Security Act, the Internal Revenue code, immigration law, and more than 1,000 others—shall apply only to the “legal union of one man and one woman as husband and wife.” This sweeping discrimination means that, although hundreds of thousands of gay and lesbian Americans have won and exercised the right to marry in nine states and the District of Columbia, the rights, benefits, and duties that they should receive as married people under federal law are categorically withheld from them. Under federal law, married couples who are gay are treated as legal strangers to one another and as unworthy of the rights enjoyed by other citizens.
This discrimination has dramatic consequences. The respondent in Windsor, Edith Windsor, was forced to pay $363,000 in federal taxes on the estate she inherited after her wife (and romantic partner of 40 years) died, since DOMA prevents same-sex spouses from inheriting marital property on a tax-free basis, a benefit that heterosexual couples, of course, take for granted. Windsor won a clean victory in the United States Court of Appeal for the Second Circuit, which found that discrimination against gay people triggers Equal Protection “intermediate scrutiny” and that Congress could not demonstrate a valid, much less an important, interest for defining marriage at the federal level so as to exclude from its benefits thousands of actually married couples in the states.
The other case taken up by the Supreme Court in its momentous cert grant of December 7 of last year is Hollingsworth v. Perry, which tests the constitutionality of California’s infamous Proposition 8 ballot measure (“Prop Hate,” as it is known on the West Coast), which revoked the marriage rights that gays and lesbians had enjoyed in the state under a landmark California Supreme Court decision. Proposition 8 was voided in a broad pro-marriage decision handed down by California United States District Court Judge Vaughn Walker, a decision that was reaffirmed on narrower grounds by the United States Court of Appeals for the Ninth Circuit, which essentially found that California may not take away from its gay citizens the marriage rights that it had previously granted.
Both cases involve government refusing to recognize the equal rights of gay people in married couples. With DOMA, Congress denied the same equal rights and benefits to gay married people as it offers to straight married people, and with Proposition 8, California actually revoked the marriage rights of gay people and prohibited the legislature from ever restoring that right. The Proposition 8 proponents even sought to use the measure to annul gays’ and lesbians’ existing marriages without their consent. The discrimination in both cases is plain to see for anyone with open eyes.
The Question Understood by America’s School Children—but Not by Some Supreme Court Justices
A third grader sent me a crayon drawing of two hearts with the scrawled caption “Why can’t two people who love each other get married?”
This is the central question raised by both cases. It can be understood by America’s elementary school children—and, in fact, it is understood far better by America’s elementary school children than by the conservative Justices on the Court.
But the question has a perfectly logical constitutional answer: they can get married. Everything that we know about Due Process and Equal Protection—not just common sense—tells us that it violates the rights of gay and lesbian Americans when government denies them an equal opportunity to marry their partners and denies to them and their families all the benefits and rights of marriage.
The analysis begins with the right to marry, which the Supreme Court has declared to be fundamental. The right to marry the person you love is such a basic right and attribute of liberty under the Fourteenth Amendment Due Process Clause that it cannot be impaired for people who have had multiple divorces, people who left their last spouse in the midst of a serious illness, people who are not presently living up to their child support obligations or never paid at all, people living behind bars for having committed domestic violence, mass murderers on death row, or people who just met on a television show called Who Wants to Marry a Millionaire—that is, right now so long as none of these people is gay.
The decision that first established the fundamental character of the right to marry is the celebrated Loving v. Virginia, which struck down the criminal convictions and sentences of Virginians Mildred and Richard Loving for the act of getting married. Mildred was African-American and Native American, and Richard was white; they had married in the District of Columbia before returning to the Old Dominion. The Lovings were arrested at home and prosecuted under Virginia’s Racial Integrity Act of 1924, which made it a crime punishable by a year in prison for a white person to marry a “colored” person and vice versa.
For a unanimous Court, Chief Justice Earl Warren struck the law down, holding that, “Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival . . . ” The anti-miscegenation law violated both Due Process and Equal Protection by stripping citizens of their right to marry the person of their choice and enshrining “White Supremacy” as the gateway principle of the marriage institution.
According to Warren, the fundamental right of two people to choose to marry could not be nullified because of the state’s desire to uphold a single kind of officially approved union or because of its desire to denigrate a whole class of people based on their presumed inferiority. Chief Justice Warren wrote:
To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry a person of another race resides with the individual and cannot be infringed by the State.
If a state conducted a lottery today and randomly stripped five percent of the population of its right to wed, everyone would agree that this policy violates the fundamental right of citizens to marry. There would be no rational—much less compelling—interest for doing it. But if a state denies the right to marry to all of its gay and lesbian citizens, as most still do, it is equally irrational and equally violative of marriage rights under Due Process and Equal Protection. Indeed, marriage discrimination against the gay community not only carves up the laws to target a whole class of citizens for second-class treatment, denying them more than a thousand rights, benefits, and privileges that accompany marriage, but sends a discriminatory, stigmatizing message about gay people generally.
Some conservatives think that they win the argument over marriage discrimination by pointing out that classifications based on sexual orientation do not trigger the same heightened scrutiny under the Equal Protection Clause as racial classifications do. But they miss two essential points. The first is that burdens placed on the right to marry do trigger strict scrutiny, meaning that the government in such cases must demonstrate that its imposition on marriage rights serves a compelling purpose and does so using the least restrictive means available. Second, and even more importantly, the Supreme Court has been emphatic that legislation and enactments motivated by anti-gay animus, however camouflaged, cannot withstand even the lowest level of Equal Protection scrutiny, the mere “rational basis” test that applies to ordinary legislation. Thus, even using rational basis scrutiny, it is simply not a rational purpose of a law to harm gay people, to denigrate their equality, or to isolate them from everyone else.
The key case establishing this principle was Romer v. Evans, a pivotal 6-3 decision in which Justice Kennedy emerged as a major voice on the Court, rejecting anti-gay discrimination. Writing for the majority, Justice Kennedy struck down a Colorado constitutional amendment that made it impossible for gay and lesbian people to achieve civil rights protection in any branch or department of state, county, or local government without first amending the state constitution. He could find no logic or rationale for this sweeping amendment outside of bigotry toward the gay community: “the amendment seems inexplicable by anything but animus toward the class it affects; it lacks a rational relationship to legitimate state interests,” he wrote, concluding that: “It is not within our constitutional tradition to enact laws of this sort." This statement is correct as an aspiration but a bit off as a statement of fact. Putting it differently, we might say that it has often been within our political tradition to enact laws of this sort—alas, that is what the Black Codes, the Jim Crow era, and laws denying women the right to vote and to enter the professions were all about—but it is definitely within our finest constitutional traditions to strike such laws down as a violation of Equal Protection.
Thus, whether you choose to look at marriage discrimination as an attack on a fundamental right that all citizens must enjoy—the right to marry—or as a discriminatory classification inspired by animosity toward the gay and lesbian community—or both, the Court should have an easy time striking it down. There is no rational basis for denying gay citizens the right to marry, which is why defenders of the practice have been forced to rally around one final and familiar last-ditch argument: “tradition” or “traditional morality.”
The Time-Honored “Tradition” of Discrimination
Defenders of marriage discrimination argue that their policy is justified by “tradition,” which is to say a long history of excluding gay people from participating in the marriage institution. But a “tradition” of discrimination is still discrimination, and the long-time assertion of an invalid interest based on animosity, fear, or ignorance does not make the interest more valid over time, especially as the people who are the objects of discrimination begin to demand equal rights for themselves and their families and debunk the stereotypes held against them.
Ironically, it was Justice Scalia who gave the game away by chastising Justice O’Connor for voting in Lawrence v. Texas to strike down anti-sodomy laws while signaling her view that “preserving the traditional institution of marriage” might still be a legitimate state interest. Justice Scalia essentially faulted O’Connor for agreeing in Lawrence that people’s rights cannot be nullified just because other people disapprove of them. Scalia perceived that this is a fatal concession when it comes to marriage discrimination. He remarked sharply in his dissenting opinion that “’preserving the traditional institution of marriage’ is just a kinder way of describing the State’s moral disapproval of same-sex couples.” How true an insight that is: if you can’t brand gay people as criminals without violating Equal Protection, you can’t deny them equal rights either.
But Justice Scalia advances the most sophisticated-seeming argument for basing constitutional rights on discriminatory social traditions. He argues that the meaning of “liberty” under Fourteenth Amendment Due Process should be defined with reference to social traditions as they were embodied in state laws that prevailed at the time the Fourteenth Amendment was passed (1868). Since no state actually permitted gay people to marry in 1868, there is no way that the Due Process right to liberty in intimate decision making or the right to equal treatment under Equal Protection could include the right of gay people to marry. Any expansion of Due Process liberty beyond the social traditions that existed when Due Process came into the Constitution is considered by conservatives like Scalia to be naked “judicial activism” and “judicial legislation.”
Whatever the surface appeal to this argument, Justice Scalia’s tradition-bound interpretation of liberty undermines the whole idea of constitutional freedom in the Bill of Rights. The rights we have inscribed in the Constitution are not there to codify and freeze repressive social traditions, like Jim Crow, sex discrimination or anti-gay laws, but to overthrow them. The genius of the Bill of Rights is its articulation of broad principles like “liberty,” “equal protection,” and “due process,” which are capacious enough and muscular enough to invalidate any and all laws seeking to institutionalize prejudice and bias. Our constitutional democratic republic has adopted rights in order to destabilize discriminatory social traditions and to arm the people against them.
It does not take much imagination to see how the sanctification of “tradition” in the definition of constitutional freedom and equality would have thwarted nearly every major advance in civil rights and liberties that has taken place in Supreme Court decision making. When the Court finally rejected school segregation in Brown v. Board of Education, it overthrew the Jim Crow tradition that was deeply entrenched in large parts of the country. Of course, when the Equal Protection Clause entered the Constitution in 1868, segregation was not only a pervasive policy in the states, but a policy commitment in Congress, whichsegregated the public schools in the District of Columbia and even the spectator galleries in the U.S. Senate and House of Representatives.
Moreover, the Supreme Court in Brown had to reverse Plessy v. Ferguson, its own five-decade old precedent upholding the tradition-soaked legal regime of “separate but equal.” Plessy was a decision which—Scalia-style—upheld the “reasonableness” of a challenged practice under the Fourteenth Amendment because it successfully assimilated and codified the “customs, usages, and traditions of the people.” Thus, segregation of the train cars in Louisiana was deemed reasonable and constitutional precisely because it reproduced and reinforced the social traditions of racial apartheid in Louisiana. Under this circular theory, the practice of discrimination became its own justification. The Plessy Court further constitutionalized the tradition of Jim Crow, ruling that the practice of official racial segregation did not mark African-Americans as inferior. Such an interpretation existed “solely because the colored race chooses to put that construction on it.”
It is no surprise that the remarkable progress made by gay people in the jurisprudence of the Supreme Court over the last two decades has also always been against the conservative bloc’s determination to elevate “traditional morality” over individual freedom. In the infamous Bowers v. Hardwick, a five-justice conservative bloc upheld a Georgia state law criminalizing sodomy at least as it applied to gay people, rejecting their claim that Due Process liberty gives them an equal sphere of sexual privacy free from state control. Writing for the majority, Justice Byron White argued that the Due Process right to privacy—first identified in 1965 in Griswold v. Connecticut, which struck down a ban on access to contraceptives as applied to married people—was irrelevant to gay people. The real issue, he said, was whether the Constitution conferred “a fundamental right upon homosexuals to engage in sodomy.”
To determine whether such a “right to sodomy” exists, White performed an inventory of state sodomy laws throughout American history, finding them pervasive at the time of the nation’s founding and present in all 50 states in 1961. He concluded that “to claim that a right to engage in such conduct is ‘deeply rooted in this Nation's history and tradition’ or ‘implicit in the concept of ordered liberty’ is, at best, facetious.” For how could Georgia’s criminal law threatening Michael Hardwick with 20 years in prison for having sex be deemed unconstitutional when a majority of other states maintained similar laws? The fact that these laws were based on no social interest greater than the desire to impose some people’s moral judgments on others did not move White: “The law,” Justice White said, “is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed.” Hold this thought because the fallacy that it embodies is precisely what is falling in the modern age of civil liberties and privacy jurisprudence.
Chief Justice Burger’s concurrence added to the majoritarian traditions of demonizing gay sex by the homophobic judgments of major religions, a factor totally outside the interpretation of the Constitution but clearly not outside his private moral feelings: “To hold that the act of homosexual sodomy is somehow protected as a fundamental right,” he concluded, “would be to cast aside millennia of moral teaching.”
To his everlasting glory, Justice Harry Blackmun filed a stinging and prescient dissent in Bowers, joined by Justices Thurgood Marshall, William Brennan, and John Paul Stevens. Castigating the majority for its “almost obsessive” focus on the details of gay sex, Justice Blackmun insisted that the case was not about a Due Process liberty to practice sodomy but about “the most comprehensive of rights and the right most valued by civilized men, namely, the right to be let alone.” Surely the right to privacy in sexual, procreative, and family decision making, identified in cases like Griswold v. Connecticut and Roe v. Wade , created a zone of sexual privacy sufficient to protect gay people too.
But Justice Stevens’ lucid dissenting opinion in Bowers offered the breakthrough intellectual insight for the whole field, definitively refuting Justice White’s argument that all law is based on morality and the anti-sodomy law is just one more example. Grabbing the bull by the horns, he declared that “the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice.” Stevens articulated the Due Process liberty principle that parallels John Stuart Mill’s “harm principle,” which posited that liberty requires that adult persons should be free to engage in any private conduct that harms no one else. He argued that it is not a rational public purpose to criminalize private gay sex simply because other people disapprove of it. Some laws involve moral disapproval because they seek to prevent underlying empirical harms; this is the case with laws against murder, rape, and embezzlement, for example. But then there are laws involving moral disapproval that address no empirical harms at all but simply seek to impose a moral or religious value judgment. Laws against sodomy—gay and straight—are an important example of those that target not social harms but harmless activity that gives moral or religious offense to others. Justice Stevens blew the whistle on the criminalization of harmless and victimless sexual conduct.
The Court’s majority finally came around to these essential liberal understandings in Lawrence v. Texas, a ringing 6-3 decision which reversed Bowers and elevated the principle of individual freedom in the sphere of consensual intimate conduct over the hallowed traditions of self-proclaimed moral majorities legislating social control over gay people. Striking down a Texas statute criminalizing gay sex, Justice Kennedy declared for the majority that the gay petitioners in the case “are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime.”
Justice Kennedy was very specific about what the decision meant. Due Process liberty comprehends the freedom of the gay petitioners in the case to pursue their intimate and romantic associations. As he wrote:
Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. “It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.” (citation omitted) The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.
Significantly for the upcoming marriage cases, Justice Kennedy observed that the unfolding of constitutional liberty under the Fifth and Fourteenth Amendments cannot be shackled by the traditionalist grip of discriminatory laws. He stated that:
Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom. (emphasis added)
Justice O’Connor’s concurring opinion relied on an Equal Protection instead of Due Process analysis to invalidate the Texas statute, but she too focused on the essential invalidity of legislation that criminalizes consensual sexual conduct based on nothing more than the society’s moral disapproval of the people who engage in it. O’Connor wrote: “Moral disapproval of a group cannot be a legitimate governmental interest under the Equal Protection Clause because legal classifications must not be ‘drawn for the purpose of disadvantaging the group burdened by the law.’” (citation omitted).
As we have seen, Justice Scalia, who is nobody’s fool, understood the watershed character of this decision, which determined that neither homophobia nor the long tradition of legislating homophobia can justify denying gay people fundamental rights that all citizens may expect. A bit unhinged by the decision, he denounced the majority opinion in Lawrence as “the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.”
In fact, Justice Scalia should be aware that, under the First Amendment, obsessed homophobic citizens can continue to freely register their “moral opprobrium” towards “homosexual conduct,” just as gay people can register their “moral opprobrium” toward right-wing homophobes in black robes. But self-proclaimed moral majorities can no more turn their outrage over same-sex marriage into discriminatory laws than they can turn their moral outrage over interracial marriage, interfaith marriages or second marriages into laws banning those offending practices.
But Justice Scalia was right in his dissenting opinion about one thing, which is the way that the dismantling of “tradition” and “moral disapproval” as valid interests for sodomy laws inescapably clears the way for gay people to get married. For the thin rationale upholding marriage discrimination today is the exact same rationale discredited for prosecuting gay people who have sex: that other people strongly disapprove of gay relationships and have pervasively enacted laws codifying their disapproval.
Consider carefully what Justice Scalia wrote in his dissenting opinion in Lawrence. If you strip this passage of its bitter sarcasm, you will find a powerful argument for why the right to marry cannot be denied to gay citizens today:
At the end of its opinion—after having laid waste the foundations of our rational-basis jurisprudence—the Court says that the present case “does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” Do not believe it. More illuminating than this bald, unreasoned disclaimer is the progression of thought displayed by an earlier passage in the Court’s opinion, which notes the constitutional protections afforded to “personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education,” and then declares that “[p]ersons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.” Today’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is “no legitimate state interest” for purposes of proscribing that conduct, and if, as the Court coos (casting aside all pretense of neutrality), “[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring,” what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising “[t]he liberty protected by the Constitution”? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry. This case “does not involve” the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court.
Justice Scalia was, in his bitterly misanthropic and homophobic way, absolutely right. Romer v. Evans, Lawrence v. Texas, Loving v. Virginia all point to one irresistible logical conclusion: under the existing precedents of the Supreme Court, the right to marry belongs to everyone, straight people and gay people alike.
But What Will This Conservative Court Do?
The world of logical analysis under the rule of law is, alas, not the world of the Roberts Court. At almost every turn, short-term political considerations and long-term ideological agendas threaten to trump straightforward logical reasoning on this Court.
To begin with, there are three Justices—Scalia himself, Clarence Thomas, and Samuel Alito—who are very likely to read the liberties of gay people in pinched and hostile fashion, squinting at them through the repressive social traditions of the past, in order to placate what they imagine to be the wounded feelings of the shrinking conservative population. They will also look for any way to develop an argument to cut off merits consideration of marriage discrimination if they are in fear of losing on the big question.
Of course, Chief Justice John Roberts leans to the Right too, but he has a somewhat more modern sensibility than his hard-Right allies on the Court. He has displayed a Chief Justice John Marshall-style concern for the legitimacy and credibility of the Court and seems desperately not to want the institution to be seen as a purely political and partisan operation. Thus, Roberts could surprise us with a vote at least in the DOMA case, but in general, the smart money says that Roberts will align with the other conservatives.
Meantime, the four moderate-to-liberal Justices—Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan—are likely to be persuaded by the inexorable logic of constitutional liberty and equality and the plain irrationality of anti-gay prejudice to vote against the discriminatory provision in DOMA and for marriage rights, both in California and across the country. They may be a bit nervous now about the constant patter of “too far, too fast” being heard in academia and on editorial pages, but they are all smart enough to realize that it is not the role of the Court to test public opinion, much less follow it, but rather to vindicate the rights of the people under the rule of law.
This likely lineup leaves the swing vote, as is so often the case, to Justice Anthony Kennedy, the intellectual hero of both Romer v. Evans and Lawrence v. Texas, the decisions that now set the table for a big victory for equal rights under Equal Protection and Due Process in these cases.
What will Justice Kennedy do? It is hard to know. The decisions he wrote knocking down anti-gay enactments in Colorado and Texas are stirring pieces of constitutional analysis that properly treat the Constitution as a charter of essential human freedoms. He definitely seems to have found his voice in recognizing the unfolding and dynamic character of freedom in a constitutional democracy: “As the Constitution endures,” he wrote, “persons in every generation can invoke its principles in their own search for greater freedom.”
On the other hand, it must be remembered that Justice Kennedy generally tilts to the Right and has joined the conservative faction in delivering some major politically inflected decisions, like Citizens United, Bush v. Gore, Shaw v. Reno, and the ruling that the individual health insurance mandate in the Affordable Care Act was outside the Commerce Clause powers of Congress, among many others.
The marriage cases that will be argued before the Court in March would be simple to decide for a Court determined to wipe out the messy details of unconstitutional discrimination. But the cases offer a nervous Justice or a hesitating Court lots of detouring pathways to avoid the basic issues in the case. The essential escape route stems, ironically, from the fact that government officials, like the attorney general of the United States and the attorney general of California, are now simply refusing to defend marriage discrimination. This unofficial boycott by public officials creates complex “standing” issues relating to the various parties who have stepped forward to take their place.
Hollingsworth v. Perry
Proposition 8 was the California state constitutional amendment passed by voters in November 2008 to reverse the California Supreme Court decision earlier that year striking down marriage discrimination and giving tens of thousands of gay couples the right to wed. When attorneys David Boies and former U.S. Solicitor General Theodore Olson, former adversaries in Bush v. Gore, teamed up to bring suit against Proposition 8 on behalf of two same-sex couples, state Attorney General Jerry Brown refused to defend Proposition 8, agreeing with the plaintiffs that it violates the Fourteenth Amendment. Governor Arnold Schwarzenegger took essentially the same position. When Brown was elected governor in November 2010, the new Attorney General, Kamala Harris, and Governor Brown himself both again refused to defend the measure in court. United States District Court Judge Vaughn Walker allowed the official proponent of Proposition 8, ProtectMarriage.com, to intervene as a defendant in place of the acquiescing state officials.
In August of 2010, Judge Walker issued a powerful and meticulously detailed decision in favor of the plaintiffs and brought heightened scrutiny to bear on laws disfavoring the gay community. He ruled that there is no rational basis, much less a compelling interest, for denying marriage rights to the gay population and, echoing the language of Justice Kennedy from Romer and Lawrence, found that Proposition 8 simply imposed animus and discrimination through law, violating both Due Process and Equal Protection. Judgment was stayed pending appeal.
On February 7, 2012, a divided three-judge panel of the Ninth Circuit upheld this result, but significantly narrowed the grounds of decision, with U.S. Circuit Judge Stephen Reinhardt focusing on the fact that California had deliberately revoked the existing right to marry for gay people and that the clock cannot be turned backwards in that way to selectively disadvantage a specific part of the population. Reinhardt wrote that, “Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples.
He too provided a distinct echo of Justice Kennedy, writing that, “The Constitution simply does not allow for laws of this sort.” It was not necessary to deal with the total problem of marriage discrimination as Judge Walker had done at the District Court level, because a much narrower ground was available here, Judge Reinhardt explained. Proposition 8 “singles out same-sex couples for unequal treatment by taking away from them alone the right to marry," which is a “distinct constitutional violation” forbidden by the logic of Romer v. Evans. He described this approach as “the narrowest ground” for deciding the case and therefore the appropriate one.
When the Supreme Court accepted the case by granting a writ of certiorari on December 7, 2012, it asked the parties not only to brief the question of whether Proposition 8 is constitutional but to brief the question of whether its proponents have Article III standing to defend it. The Court has questioned in the past whether sponsors of ballot initiatives have such standing without resolving the issue. If the Court were to find they don’t, it would nullify the Ninth Circuit’s decision and arguably reinstate the broader decision against Proposition 8 rendered by Judge Walker. However, the scope of his order in that case would then be in question, with Proposition 8 proponents likely arguing it applies only to the parties in the case and marriage proponents contending that it is binding statewide.
United States v. Windsor
With its vivid facts showing a severe “gay marriage penalty” imposed by DOMA, Windsor presents a straight-up case of anti-gay discrimination.
But the quirky procedural history of the parties and lawyers in the litigation creates an opportunity to dodge the merits here too.
Attorney General Eric Holder announced in February of 2011 that the Department of Justice would no longer appear in court to defend DOMA’s Section 3, which it considers unconstitutional (although the Obama administration has said that it will continue to enforce the law until it is struck down or repealed). In response, conservative lawyer Paul Clement filed a motion for intervention in the case on behalf of the Bipartisan Legal Advisory Group (BLAG) of the House of Representatives, a standing body in the House composed of the House leadership—the Speaker, the majority and minority leaders, the majority and minority whips—which oversees the work of the House Office of General Counsel. The BLAG intervened “for the limited purpose of defending the constitutionality of Section III.”
When Windsor moved for summary judgment, BLAG filed a brief in opposition and continued to participate in the litigation, with the Department of Justice filing a notice of appeal in the Second Circuit on behalf of BLAG’s right to defend DOMA. When the Second Circuit ruled in Windsor’s favor, the Department of Justice—which technically lost the case but got the result it wanted—petitioned for certiorari, asking the Court to expand the Second Circuit’s ruling nationwide so the U.S. government would no longer have to enforce a law it believes is unconstitutional. In January 2013, the House of Representatives specifically authorized BLAG to defend DOMA and related laws, stating that “the Bipartisan Legal Advisory Group continues to speak for, and articulate the institutional position of, the House in all litigation matters in which it appears.”
On December 7, 2012, when it granted certiorari, the Supreme Court asked the parties not only to address whether Section 3 of DOMA violates Equal Protection but to answer two threshold procedural issues: (1) whether the United States’ and Department of Justice’s agreement with the Second Circuit decision in Windsor deprived the Supreme Court of jurisdiction in the case, and (2) “whether the Bipartisan Legal Advisory Group of the United States House of Representatives has Article III standing in this case.”
Under Article III’s “case or controversy” requirement, parties to litigation must have “standing,” which means a direct and particularized interest in the outcome of the litigation.
The Court has raised serious issues relating to standing, and plausible arguments can be mobilized on both sides. Conservatives are adept at playing with standing doctrine, which has often been used to drive environmental, church-state separation, and civil rights and civil liberties plaintiffs out of court. In any event, the pliable standing doctrine may offer a way out for a Court that cannot move one way or another on equal marriage rights for gay people or would prefer to see marriage discrimination ride off slowly into the sunset rather than give it the guillotine once and for all.
If the Court deems it cannot hear the case because the party asking for review (the U.S.) actually agrees with the opinion being challenged or because BLAG lacks Article III standing, that would presumably leave the decision below in favor of Edith Windsor and create a precedent in the Second Circuit at least against DOMA. For, if the government refuses to defend a clearly unconstitutional statute and the Court rules that no one has standing to defend it in the government’s place, it would be unthinkable to take the position that such a statute, and the discrimination it imposes, must simply remain the law forever because no one with standing is willing to defend it. A constitutional injury must have a remedy.
Public Opinion or the Rule of Law: A Big Test for the Supreme Court
Overhanging the Court’s treatment of these cases is the question of whether the Court should “get ahead” of public opinion on the marriage issue. This is a burning obsession with many academics who seem convinced that the Court should mirror or track public opinion.
Public opinion polls actually show a majority of Americans in favor of marriage equality today; and the 2012 elections saw four decisive victories for same-sex marriage at the polls when voters in Maryland, Maine, Minnesota, and Washington voted to stop discriminating. But that still means that a total of only nine states and the District of Columbia permit same-sex couples to marry while 41 states still do not. Fully 30 states have taken pains to write the “one man and one woman” standard explicitly into their constitutions.
Many people, including some marriage equality supporters, argue that the Court should not be asked to “get ahead” of the people and the states on this question. They fear that the Court could create a backlash by striking down marriage discrimination, and they cite to a booming academic literature questioning the wisdom of landmark cases like Brown v. Board of Education and Roe v. Wade, where the Court took on powerful social commitments by opposing racial segregation and abortion prohibition instead of waiting patiently for attitudes and values to change. Critics of these landmark equality and liberty decisions argue that they caused great social divisions, like “massive resistance” in the South and the pro-life movement’s campaign against abortion rights.
But this whole line of attack fundamentally misunderstands why we have a Supreme Court and a judiciary. The major purpose of judicial review is to uphold individual liberty and rights against official injustice. The Court proceeds by interpreting the meaning of the Constitution and Bill of Rights, not by reading public opinion polls or adding up state laws. Judicial review is rendered meaningless if the Court’s reading of the rights of the people is dictated by a commitment to ratifying existing public policies and public opinion. It should make no difference to the Court’s decision whether 52 percent of Americans now reject marriage discrimination or 52 percent still support it, as was the case a year ago. Constitutional rights cannot hinge on the margin of error in public opinion polls!
Even if we ask the Court to anticipate the public response to its decisions, it seems strange to blame Brown v. Board for racism or Roe v. Wade for people who want to deny reproductive rights to women. These repressive impulses were there long before these decisions were handed down and it is no surprise that they were there afterwards. The only real question is what role the Court will play in the historical process of vindicating the rights of the people. Will it stand in the doorway as it did in Plessy v. Ferguson, endorsing Jim Crow, or will it proclaim the equal rights of citizens, as it did in Brown? Will it constitutionalize discriminatory “traditions,” as it did in Bowers v. Hardwick, or will it defend the rights and liberties of the people, as it did in Lawrence v. Texas?
The moderate-liberal faction on the Court today has a sufficiently strong connection to the modern civil rights tradition that it can be expected not to shy away from its historic task in these cases. The hard-Right conservative faction is in full-swing reaction against this tradition and will doubtless work to uphold marriage discrimination. The real question is whether Justice Kennedy will follow the powerful logic of his prior opinions and help render one of the landmark decisions in Supreme Court history. If he does, DOMA’s Section 3 will fail and discriminatory state laws across America will fall too. It is also possible that Proposition 8 will be reversed just on the narrow basis that California had not demonstrated a legitimate reason to take away what it has already given to gay couples—that is, equal rights. In any event, the direction of the march of freedom in our constitutional democracy is clear. The question is no longer if gay and lesbian citizens will achieve full equality under law, but when.
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Jamie Raskin, a Senior Fellow at People for the American Way Foundation, is a professor of constitutional law at American University and a member of the State Senate in Maryland. He was an original sponsor and floor leader of the state’s marriage equality legislation upheld by the voters at the polls in November.