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Deconstructing Reconstruction by Nicholas Lemann

August 12, 2013

Article V of an 11-part Series on Race in America - Past and President
Deconstructing Reconstruction
By Nicholas Lemann

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Nicholas Lemann

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The tumultuous decade that followed the Civil War failed to enshrine Black voting and civil rights, and instead paved the way for more than a century of entrenched racial injustice.

(TriceEdneyWire.com) - Children in elementary school often come home with the idea that the purpose of the Civil War was to end slavery-but if that were true, then why did it take Abraham Lincoln so long to issue the Emancipation Proclamation, and why was it less than universally popular in the Union states?

If you see the movie Lincoln, you get a much fuller picture of the contingency of emancipation, and of the difficulty of passing the Thirteenth Amendment to the Constitution, which abolished slavery completely-but why didn't Lincoln and the Congress think to address at the same time the obvious question of what status the freed slaves would have after that?

After Lincoln's assassination, Congress and the state governments settled that matter by passing the Fourteenth and Fifteenth Amendments, which gave the former slaves full civil rights and voting rights-but why was it necessary for exactly the same rights to be reenacted, after enormous struggle, nearly a century later, during the civil rights era?

The answers to all these questions are essentially the same: For most of American history, White America has been highly ambivalent, or worse, about the idea of full legal equality for Black Americans. Emancipation itself was a forced move, an obvious consequence of the war only in retrospect; it happened because in war zones in the Confederate states, slaves left their plantation homes and appeared at Union army encampments (they were known at the time as "contraband"), and somebody had to decide what to do about them; sending them back to their owners would be both morally suspect and a form of material aid to the enemy.

There has always been a debate about what kind of Reconstruction regime Lincoln would have instituted after the war, had he lived; his racial impulses were generous, but he was not an abolitionist until he actually abolished slavery. Reconstruction-the tumultuous decade or so that followed the Civil War-was an enormous shaping force in American history, and not just in the area of race relations. It's worth recounting in basic outline, because it's a far less familiar story than that of the Civil War itself, but far more relevant today.

The word "Reconstruction" is somewhat misleading in the American case, because it implies that the main challenge was managing the tension between punishing the South for seceding and getting it back on its feet economically and politically. In this instance the more pressing question was what the lives of the millions of freed slaves in the South would be like.

Would they be able to vote? To hold office? To own property? To sue White people? Would government undertake an active, expensive effort to educate them and put them on the way to economic self-sufficiency? Merely to say that former slaves were now free turned out to resolve remarkably little.

In the period just after the Civil War, Lincoln's vice president and successor, Andrew Johnson, was impeached for moving too slowly on these matters, and for being too lenient with the South. Then the fiercely antislavery "radical Republicans" took power, rammed through the Fourteenth (civil rights) and Fifteenth (voting rights) Amendments, maintained the presence of federal troops in the South to enforce those laws, and ran a proto-War on Poverty through a new federal agency called the Freedmen's Bureau, which was meant to help the freed slaves. Just as the Emancipation Proclamation and the Thirteenth Amendment were enormously controversial in the North as well as the South, so too - only more so - were these "radical Reconstruction" measures.

The freed slaves never got "forty acres and a mule," a land-reform idea that has resonated through the years but wasn't enacted (see "Rumors of the Land"
but they did get the basics of citizenship-most importantly, the right to vote. One of the most amazing achievements in the history of Black America was the creation, in just a few years, of an elaborate political machinery-Republican, of course-that produced far higher (in fact, pretty close to 100 percent) voter turnout among freed slaves in the South than the United States as a whole has now. One result of this was that the South elected dozens of Black officials to national office, and another was that state and local governments delivered, at least to some extent, what the freed slaves wanted, notably education at all levels.

None of this was especially popular in the North and it was wildly unpopular in the White South. Most of the rest of America chose to understand Black political empowerment in the South in terms that are still familiar in conservative discourse today: excessive taxation, corruption, and a power imbalance between federal and state government.

These arguments were more presentable than simply saying that Black people shouldn't be allowed to vote, and they built sympathy for the White South among high-minded reformists in the North who were horrified by the big-city political machines that immigrants had created in their own backyard. Good-government reformers hated the idea of uneducated people taking over the democratic machinery and using it to distribute power and patronage, rather than in more high-minded ways. Liberal northeastern publications like the Nation, the Atlantic Monthly, and Harper's Weekly were reliably hostile to Reconstruction, and their readers feasted on a steady diet of horror stories about swaggering corrupt black legislators, out-of-control black-on-white violence, and the bankruptcies of state and local government.

The Ku Klux Klan, which began in the immediate aftermath of the war and was suppressed by federal troops, soon morphed into an archipelago of secret organizations all over the South that were more explicitly devoted to political terror. These organizations-with names like White Line, Red Shirts, and White League-had shadowy ties to the more respectable Democratic Party. Their essential technique was to detect an incipient "Negro riot" and then take arms to repel it. There never actually were any Negro riots; they were either pure rumor and fantasy that grew from a rich soil of White fear of Black violence (usually entailing the incipient despoliation of White womanhood) or another name for Republican Party political activity, at a time when politics was conducted out of doors and with high-spirited mass participation.

The White militia always won the battle, if it was a battle, and nearly all the violence associated with these incidents was suffered by Black people. In the aggregate, many more Black Americans died from white terrorist activities during Reconstruction than from many decades of lynchings. Their effect was to nullify, through violence, the Fifteenth Amendment, by turning Black political activity and voting into something that required taking one's life into one's hands.

All of this was known at the time (the movie Birth of a Nation can be seen as an extended brag about the effects of these techniques during Reconstruction), and there was no mystery about what the remedy to Southern political terrorism was: federal troops. Just as in every "Negro riot" the White militia won, in every encounter between the U.S. Army and a white militia, the Army won.

The Army was in the South to enforce the Fourteenth and Fifteen Amendments, and it became increasingly clear that without its presence, the white South would regionally nullify those amendments through terrorism. But the use of federal troops to confront the white militias was deeply unpopular, including in the North.

Remember that in the 1870s, despite the Civil War, few Americans thought of their national government as properly occupying an ongoing active presence in their lives. The country had never been entirely for full rights for African Americans in the first place, and it wanted to put the Civil War and its legacy behind it. In January 1875, troops under the command of General Philip Sheridan, the great Union cavalryman, marched onto the floor of the Louisiana legislature to ensure that representatives elected by Black voters would be seated. This incident was denounced by virtually every respectable liberal voice in the North; at a public protest meeting in Faneuil Hall in Boston, most of the leading White former abolitionists demonstrated that they had turned against Reconstruction. It's a clear example of the idea that the past is another country-it is hard for us to imagine today how abolitionists could support emancipation but not full black citizenship, but many of them did.

President Ulysses S. Grant, perhaps out of conviction and perhaps out of political calculation (Black Southern voters were a big part of the Republican electoral base), placed himself close to the pro-Reconstruction edge of White opinion. Every member of his Cabinet was more hostile to Reconstruction than he was. But he did not feel confident that he could empower federal troops again and again to enforce black voting rights until the South finally accepted those rights. The crucial moment came in the fall of 1875 (election dates were less standardized then than they are now), when Mississippi and Ohio held state elections.

White terrorists in Mississippi made it clear, by arming themselves and disrupting Republican political activity, that they intended to suppress the Black vote to the point that the Democrats would win. A group of Ohio politicians visited Grant and told him that if he had federal troops enforce the Fifteenth Amendment in Mississippi, it would be so unpopular in Ohio that the Democrats would win there. Grant tried to compromise by sending a negotiator to Mississippi to broker a peace treaty between the Republicans and the White Line organization, but the Democrats immediately violated the treaty, there was a wave of electoral violence in November, and the Democrats swept back to power (while the Republicans held Ohio).

The next year, militia organizations across the South copied "the Mississippi plan" for Black vote suppression, and this was one reason the 1876 presidential election ended in a tie-which was resolved by the Republicans promising to withdraw federal troops from the former Confederacy, in return for the presidency. From that point on, enforcement of the Fourteenth and Fifteenth Amendments in the South grew increasingly lax.

Whites with guns "called upon" politically active Republicans, Black and White, and urged them to move to the North or drop their political activities-and the advice was frequently taken. By the 1890s the Southern states were able legally to institute the Jim Crow system, which formally rescinded Black civil rights and voting rights, without challenge from the federal government. Through at least the first half of the twentieth century, most White Americans, North and South, understood Reconstruction to have been a miserable failure on its own terms, and even most liberals regarded Jim Crow as an impregnable fortress. In 1957, Congress passed a civil rights bill, and President Dwight Eisenhower sent federal troops to the South to ensure Black Americans' rights (specifically, the right to attend Central High School in Little Rock, Arkansas) - the first time either had happened since 1875.

Once your ear is tuned to hear them, echoes of Reconstruction are all around us today. The distinctive voting patterns of the South are a product of Reconstruction and Jim Crow, and the dramatic switch in the South's political loyalties beginning in the 1960s is a direct result of the Democratic Party's aligning itself with the original goals of Reconstruction. Reconstruction was the beginning point for most of our debates about the proper size and extent of the federal government; the Fourteenth and Fifteenth Amendments were the first important measures directing the national government to do something affirmatively, rather than forbidding it to do something.

It's no accident that African-Americans are consistently the group with the most favorable view of government; essentially all of their progress toward full legal equality came as a result of government-specifically, federal government-action. Periods of greater state and local power were periods of at best no progress, and at worst more terror. And psychologically, the yawning gap that still exists between the way Whites and Blacks understand Reconstruction-which, unlike the Civil War and the civil rights movement, has had almost no depictions for popular audiences since the days of Gone With the Wind, but gets communicated privately inside family homes in very different ways-must partly account for what remains of the profound gaps between the races in their perception of the essential nature of the national project.

Nicholas Lemann a Washington Monthly contributing editor, is dean of Columbia University's Graduate School of Journalism and the author of "Redemption: The Last Battle of the Civil War." This article, the fifth of an 11-part series on race, is sponsored by the W. K. Kellogg Foundation and was originally published by the Washington Monthly Magazine.

Lawyer for Trayvon’s Parents Says He Fears for 'Black and Brown' Children by Hazel Trice Edney

Aug. 11, 2013

Lawyer for Trayvon’s Parents Says He Fears for 'Black and Brown' Children
Tells Why ‘Stand Your Ground’ Laws Must Be Amended

 By Hazel Trice Edney

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Benjamin Crump, pictured here at an April hearing in the Trayvon Martin case, says he and Martin's parents will not give up on the amendment of 'stand your ground' laws. Courtesy Photo

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(TriceEdneyWire.com) - Benjamin Crump, the passionate Tallahassee, Florida lawyer, who represents the parents of Trayvon Martin, says he will continue to press vigorously for changes in so-called “Stand Your Ground” laws around the nation because he fears for other children – including his own.

“My greatest concern is the precedent that has been set. This is a terrible precedent because I have Black sons. I’m a Black man,” said Crump, a father of 15 and 19-year-old sons. “This is so scary for little Black and Brown boys and girls to say that you can confront me, kill me and the law protects you. When you do that, this is a terrible precedent. I unfortunately predict that any Tom, Dick or Harry that shoots one of our children now, the first thing they’re going to say is, ‘I was standing my ground.’”

Speaking passionately in the telephone interview with the Trice Edney News Wire, Crump said a “Trayvon Martin Amendment” would require courts to consider who initiated the confrontation that led to violence. “You can’t profile somebody, pursue them, start the confrontation, pick the fight and then shoot and kill them and say that you were standing your ground.”

Currently, most of the laws only require someone to believe their life is in danger before legally shooting or taking another life – regardless of the circumstance that led to the confrontation.

“We need to concentrate on getting this legislation passed so if anybody takes another life, Trayvon Martin’s legacy will be, ‘Were you the aggressor?’ Because we can’t have everybody killing everybody,” says Crump. “They know they cannot bring Trayvon back, but what they’re trying to do is change these laws with the hope that it will prevent anybody else’s children being killed in this manner and with these results from our justice system.”

According to the Lawyers’ Committee for Civil Rights Under Law, the 22 states that have ‘stand your ground’ laws are Alaska, Alabama, Arizona, Florida, Georgia, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Montana, Nevada, New Hampshire, North Carolina, Oklahoma, Pennsylvania, South Carolina, Tennessee, Texas, Utah, Washington and West Virginia.

In an open letter posted on the organization’s website, Lawyers Committee President/CEO Barbara Arnwine explains why these laws must be “critically addressed”.

“These ‘stand your ground’ laws extend the castle doctrine, which allows one to use deadly force when defending one's ‘castle,’ to places outside the home.  Although Zimmerman alleged traditional self-defense, he benefited from a jury instruction, which stated that he ‘had no duty to retreat and had the right to stand his ground and meet force with force, including deadly force if he reasonably believed that it was necessary to do so to prevent death or great bodily harm to himself or another or to prevent the commission of a forcible felony.’”

Arnwine says because the laws do not consider the circumstances surrounding the incident, they “potentially increase violence and wrongful deaths based on misunderstandings, miscommunication, and racial prejudices.”

Crump, of the Parks & Crump law firm, is scheduled to march and speak alongside Trayvon Martin’s parents – Tracy Martin and Sybrina Fulton - during March on Washington anniversary events Aug. 24, much of which will larger focus on racial profiling of Black youth. He is realistic about the amount of public pressure it will take to amend the laws; especially since they are decided from state to state. It would take a sweeping move by Congress, but he believes the momentum and passion since the July 13 not-guilty verdict will help.

“By the end of the year we hope that the Trayvon Martin tragedy will have the impact that the Emmett Till and the Medgar Evers and the Martin Luther King tragic deaths had to promote the passage of the civil rights act of 1965,” he said.

A string of civil rights leaders are also pressing the U. S. Department of Justice to file a federal civil rights case against Zimmerman. They argue that the volunteer Neighborhood watchman profiled Martin; therefore went after him because of his race. Crump says the Martin family has not given up on any legal strategy.

“We’re considering all legal options right now,” he said. “They’re focused on still trying to hold the killer of their son accountable in the criminal courts. And they understand that in the court system, they have no power over any of this stuff. So they’re trying to impact what they can.”

The Martin family continues to heal following the 18 months since their teenage son’s Feb. 28, 2012 death in Sanford, Fla. A jury found Zimmerman not-guilty after he argued he was attacked by Trayvon despite evidence that clearly showed the youth to have been unarmed and non-threatening while being followed by Zimmerman.

“They were devastated by the verdict as we all were. It was heart-breaking,” said Crump. “They’re trying to take something very painful and very negative and make something positive out of it. And they’re trying to not have a defeated mentality and they’re trying to take on this very tall order.”

Heard a tweet, “What will we tell our boys?” That’s the question. President Obama so eloquently made his remarks a few days ago and said we have to encourage our men and boys.

Meanwhile other families across the nation struggle to explain to their children how to avoid such a fate. “The sad thing about it is you don’t want to have to tell them they don’t have a right to walk in peace; They don’t have a right to walk home from the store,” says Crump. “You don’t want to tell them that it’s a different America for them, that they can’t have freedom of expression, they can’t wear certain clothes because they would be perceived as criminals or suspicious or up to no good.”

The Puzzle of the Unemployment Rate by William Spriggs

August 11, 2013
The Puzzle of the Unemployment Rate
By William Spriggs
NEWS ANALYSIS

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(TriceEdneyWire.com) - The Bureau of Labor Statistics released its latest report on the job market on Aug. 2. It had some good news for African-Americans: The Black unemployment rate in July dipped to 12.6 percent, its lowest level since January 2009.

The BLS also reported that since August 2012 the unemployment rate for adult Black men (those older than 20) remains below its 14.4 percent level in January 2009 and was reported at 12.5 percent in July. More importantly, the share of Black men holding jobs continues to rebound from its record low of 56.5 percent in 2011 to 59.2 percent, almost equal its level of 60.4 percent in January 2009. That was the good news.

The bad news was that the unemployment rate for adult Black women (those older than 20) remained above its January 2009 level (though it did fall to 10.5 percent) and the share of adult Black women holding jobs, at 55.5 percent, is not showing much movement to return to its January 2009 level of 57.9 percent. Since more than half the Black workforce is female, it means the labor market news was mixed at best.

A big puzzle in looking at the changes in the Black unemployment rate is the fact the Black labor force is older now than during past major downturns in the mid-1970s and early 1980s. In 1975, the Black unemployment rate spiked to 15.4 percent. In 1982 and 1983, the Black unemployment rate skyrocketed to above 20 percent for a nine-month period starting in October 1982.

In terms of the overall unemployment rate rise and the drop in the size of the economy, the Great Recession downturn of 2008 was much more severe than both the 1975 and 1982 downturns, and the Black unemployment rate reached 16.8 percent in March 2010. But the Black labor force was much younger in the 1970s and 1980s, and younger workers have the highest unemployment rates (in July the unemployment rate for Black teenagers was 41.6 percent).

Today, the labor force participation of young Black workers is very low, so they do not influence the overall Black unemployment rate as much today. Only 37 percent of Black teens were employed or actively looking for work in July-that is, "in the labor force" and counted in the unemployment rate.

Among Black men, in 1975 and 1983, about one in four of those in the labor force was between 16 and 24. Today, that age group represents about one in six. So, the group with the highest unemployment rate is a smaller factor in today's data. This downturn has driven the labor force participation of young people to all-time lows. Many have dropped out of the labor force for school (almost one in five African- Americans 16 to 24 is not in the labor force but enrolled in school), but many have just dropped out.

A little more than one in four African-Americans 16 to 24 is neither in school nor employed or looking for work). In 1975, 48 percent of the Black men in the labor force were older than 35. The 1983 downturn chased older workers out of the labor force-many choosing to retire or file Social Security disability claims-so the share of Black men in the labor force older than 35 fell to 45 percent. Today, 60 percent of Black men in the labor force (those employed or actively looking for work) are older than 35. This is the group with the lowest unemployment rate, suggesting the rate today is lower than would have been the case in 1972 and 1983 when younger workers remained a bigger share of the Black labor force. So this complicates comparing unemployment rates across time, making it a paradox that Black unemployment is high with such a high share of older workers.

Part of the resolution of this paradox is that while older workers have low unemployment rates, they get stuck in the unemployment rut. Almost 40 percent of the 2.5 million unemployed African-Americans in July have been unemployed longer than six months. This is another marked feature of the Great Recession. In 1975, the share of long-term unemployed among unemployed workers peaked at 21percent. In the 1982-83 downturn, the long-term unemployed got up to 26 percent of the unemployed. In this downturn, the share of long-term unemployed reached 44.9 percent.

Each month, the BLS also reports on the flow of workers into, and out of, unemployment. The employed can become unemployed or retire, and the unemployed can get a job, or quit and drop out of the labor force, or remain stuck looking for work another month. July continued the pattern that the unemployed were more likely to drop out of the labor force than to land a job, and the majority remained stuck looking for work. Of the almost 12.5 million unemployed Americans in June, 55 percent remained unemployed in July.

People are getting stuck because the hiring rate in the economy-the share of jobs that are from new hires-remains stuck at a low near 3.1percent. So, new opportunities are not being created to clear the backlog of people stuck in the unemployment line. Basically, the employment market is now like a still pond rather than a flowing river. Each month, few people who are employed are quitting and getting another job, and few firms are hiring new workers. In a normal market, things are more dynamic, with firms hiring and workers switching jobs. That "rolling" of the job market creates lots of hiring opportunities.

So while there was some good news in the numbers for African-Americans in the July report, the labor market remains underperforming. At the current rate of job creation, we are still more than six years away from making up the backlog of unemployed and underemployed workers. For young people, that is six years too long.

Members of Congress are back at home in their districts. Republicans appear prepared to return to Washington in September so they can hold up any discussion of generating jobs in favor of cutting the Supplemental Nutrition Assistance Program (food stamps), and continuing the sequestration and its cuts to Head Start, housing assistance and extended unemployment benefits-programs that put money into the pockets of American workers struggling to survive the worse labor market since the Great Depression.

Despite a reversal in trend from the huge and ballooning deficits that the tax cuts to America's richest 5 percent from the Republican tax agenda of 2001 and two unfunded wars and the greatest loss of jobs and American household income since the Great Depression, Republicans appear prepared to hold the government and the American people ransom to their fixations on "Obamacare" and the long-run cost implications of Medicare.

The president has been out to rally America so we can focus instead on the immediacy of the lack of jobs and income. Let's hope Republicans hear the concerns of people outside Washington, not the wealthy lobbyists who want to avoid paying their fair share to clean up the mess of the economy.

William Spriggs serves as Chief Economist to the AFL-CIO and is a professor in, and former chair of the Department of Economics at Howard University.  Bill is also former assistant secretary for the Office of Policy at the United States Department of Labor.

2,000-Plus Convictions to Be Reviewed Because of Invalid Hair Samples by Frederick H. Lowe

Aug. 11, 2013

2,000-Plus Convictions to Be Reviewed Because of Invalid Hair Samples 
By Frederick H. Lowe

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An FBI agent testified that Santae Tribble's hair fibers were found at the scene of a murder, but DNA excluded the hair as Tribble's. DNA also  revealed that one of the hairs used to convict Tribble belonged to a dog. PHOTOS: The Innocence Project

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Donald Gates

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Kirk Odom

Special to the Trice Edney News Wire from TheNorthStarNews.com

(TriceEdneyWire.com) - The U.S. Justice Department and the FBI will review more than 2,000 criminal convictions in which the FBI used microscopic hair-sample analysis that has now been proven to be scientifically invalid. In come cases, hair-sample analysis led to convictions of innocent individuals.

The Justice Department and the FBI launched a review after three Black men - Donald Gates, Kirk Odom, and Santae Tribble - all of Washington, D.C., had been convicted of violent crimes and were sentenced to long prison terms based on hair samples found at the individual crime scenes.

Gates, Odom and Tribble, were later exonerated by DNA evidence, which has replaced hair-sample evidence, said Paul Cates, a spokesperson for the Innocence Project, which is based in New York.

Before DNA testing was used in criminal trials, prosecutors throughout the country routinely relied on microscopic-hair comparison analysis, often provided by the FBI, to link a criminal defendant to a crime.

The practice was deemed "highly unreliable" in a 2009 National Academy of Science report on forensic science, titled, "Strengthening Forensic Science in the United States: A Path Forward," the Innocence Project said in a statement.

FBI overstated hair-sample evidence to win convictions.

"It is possible to conduct hair microscopy and find similarities among various samples," said Peter Neufeld, co-director of the Innocence Project. "But it appears that in many cases the FBI was overstating the significance of these similarities, often leaving juries with a false impression that the hair recovered from the crime scene must have come from the defendant and could not have come from anyone else. The government is now acknowledging that this was wrong and that the science does not support such conclusions."

The Innocence Project uses scientific DNA evidence to overturn wrongful convictions.

Blacks are the most exonerated.

Since 2000, 311 individuals, including 193 African Americans, 94 Caucasians, 22 Latinos and 2 Asian Americans, have had their convictions overturned by DNA evidence, according to Innocence Project Fact Sheet.

The Innocence Project already has identified that 72 of the first 310 wrongful convictions overturned by DNA evidence involved faulty hair evidence.

The Innocence Project announced in July the historic agreement to review the cases that were processed by the FBI between 1985 and 2000.

The National Association of Criminal Defense Lawyers (NACDL) and pro bono lawyers also are participating in the case reviews. The cases involve an undisclosed number of FBI agents who testified that hair samples found at the crime scenes pointed to one individual, excluding all others.

An FBI agent testified that Santae Tribble's hair fibers were found at the murder scene, but DNA evidence excluded the hair fibers as Tribble's. DNA also found that one of the hair fibers used to convict Tribble was a dog's hair."

The Innocence Project, NACDL, and pro bono partners worked for more than a year with the FBI and the Justice Department in determining the scope and protocols and implementation of the review that will cover the more than 2,000 cases during the specified-time period plus any number of unknown cases processed in preceding years.

The review will focus on cases in state and federal courts.

"Over the course of 25 years, the FBI conducted a two-week training course that reached several hundred state and local hair examiners throughout the country and that incorporated some of the scientifically flawed language that the FBI's examiners had used in lab reports and trial testimony. As a result, it is likely that audits similar to the FBI's will be necessary in most states," the Innocence Project said.

The Department of Justice has agreed not to raise procedural objections such as statute of limitations. The government also agrees to notify directly the defendants and their lawyers where an error is identified and to offer free DNA testing in the cases where an error was identified in the analysis or testimony.

The three Black men

The cases that made the law-enforcement community realize the shortcomings of microscopic hair testimony involve Tribble, Gates and Odom.

Tribble served 23 years in prison for the 1978 robbery and murder of a John McCormick, based on 13 hairs found in a stocking mask worn by the gunman. Police recovered the mask at the crime scene. In 2012, Tribble's lawyers had DNA tests performed on the hairs and none of them matched Tribble. The FBI also mistakenly called a dog hair a human hair.

Gates was convicted of the 1981 rape and murder of Catherine Schilling, a 21-year old Georgetown University student. A judge sentenced Gates to 20 years to life in prison. In 2009, a DNA test of the hair samples found at the crime scene eliminated Gates as the rapist and murderer. In 2010, Gates was issued a certificate of innocence.

Odom was sentenced to prison for 22 years and had to register as a sex offender for the 1981 rape of a White woman on Capitol Hill. An FBI special agent testified that a hair sample found at the scene matched Odom's. His family testified that Odom was at home at the time of the rape because his sister had returned that day from the hospital with her new baby. A jury took only a couple of hours to convict him.

A DNA test on the hair excluded Odom as the rapist. The hair was linked to a convicted sex offender.

"This review is an example of our judicial system at its best - prosecutors and defense lawyers working together to see that justice is done," said David Koropp, a partner at Winston & Strawn LLP, one of the pro bono partners involved in the review. "Determining whether erroneous forensic evidence may have been used in criminal cases is vital to maintaining the integrity of our criminal justice system."

The Next Affirmative Action by Kevin Carey

August 7, 2013

Article IV of  an 11-Part Series on Race in America - Past and Present

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Kevin Carey

The Next Affirmative Action
Want to help minority college students? Make the entire higher education system more accountable.
By Kevin Carey 

(TriceEdneyWire.com) - Affirmative action as we know it is dying. A growing number of states have moved to prohibit public universities from considering race in admissions, and the U.S. Supreme Court recently made a decision in an anti-affirmative action lawsuit that left little doubt about where the Court's conservative majority stands. Less than a decade after the Court upheld racial admissions preferences in Grutter v. Bollinger, newer jurists like Samuel Alito and Chief Justice John Roberts seem ready to call into question and refuse to reaffirm a policy that has helped generations of minority students grab a rung on the ladder of opportunity.

The Court's decision to remand the case - Fisher v. University of Texas - to the U. S. Court of Appeals for the 5th Circuit is apparently a temporary victory. It is particularly odious given the college admissions apparatus it could leave in place if ever struck down. Elite colleges warp and corrupt the meritocratic admissions process in a wide variety of ways. Academically substandard athletes, for example, are allowed in so they can play for the amusement of alumni and help shore up the fund-raising base. While some men's football and basketball players come from low-income and minority households, many athletes at the highly selective colleges where affirmative action really matters engage in sports like crew and lacrosse that are associated with White, privileged backgrounds. Colleges also give preference to the children of legacies, professors, celebrities, politicians, and people who write large checks to the general fund. All of these groups are also disproportionately wealthy and White.

In other words, the Supreme Court is poised to uphold affirmative action for everyone except Minority students. We've come to this point in part because the Court has been packed with people like Roberts, who once struck down a plan to integrate public schools on the grounds that he saw no distinction between race-conscious policies that increased integration and the kind of brutal discrimination outlawed by Brown v. Board of Education. Apparently, John Roberts doesn't see race, so neither should anyone else.

But affirmative action is also dying because it has strayed far from its original purpose. The justification for affirmative action the Court used in Grutter is that schools have a compelling interest in increasing racial diversity because students benefit from learning among people from disparate backgrounds. Affirmative action, once a pillar of the nation's work on behalf of the historically oppressed, is now allowable only on the grounds that it's good for White people.

This allowed Roberts to harangue lawyers defending the University of Texas's affirmative action policies by asking them how much diversity, exactly, they were shooting for, knowing that any specific answer could be struck down as an illegal quota. Perpetual swing vote and de facto King of America Anthony Kennedy, meanwhile, made the sensible critique that UT was giving preference to wealthy minority students, since the university presumably gets more than enough of the poor kind through a state law granting automatic admission to students who graduate in the top 10 percent of their high school class.

Regardless of how the Court ultimately rules, it's time to return affirmative action to its original purpose: leveling the college playing field for students who have been unjustly denied a fair chance at success. And the most important part of that project is expanding this idea far beyond elite colleges and universities.

While Brown is the iconic twentieth-century decision on race and educational justice, the 1954 decision was presaged by a number of crucial legal actions in higher education. Unsurprisingly, states with racist elementary and secondary school policies also discriminated against Black students in their universities. In 1950, future Supreme Court Justice Thurgood Marshall argued and won Sweatt v. Painter, which prohibited UT from forcing Black students into a separate law school.

And like Brown, the promise of those early victories has been substantially unfulfilled. More than half a century after states were instructed to desegregate with "all deliberate speed," the Justice Department still maintains a division of lawyers tasked with monitoring racial discrimination in public schools. (A DOJ headline from November 2012: "Justice Department Reaches Settlement with Georgia School District to Ensure All Students Can Enroll in and Attend School.") And while public schools are no longer officially segregated, they are still governed by thousands of independent school districts that are substantially funded by local property taxes. Long-term residential and economic trends have made many of those districts impoverished and racially homogenous. As a result, minority students go to schools that on average receive less funding than those serving predominantly White students and are more likely to be staffed by unqualified teachers.

The same patterns persist in higher education. But here's where the two parts of our education system sharply diverge. Both K-12 and higher education continue to suffer from a legacy of racism. There is enormous awareness of the elementary and secondary side of the problem. George W. Bush's signature domestic policy achievement, the No Child Left Behind Act, was designed to erase the "achievement gap" between White and minority students, while the Obama administration's Race to the Top school initiative was touted by both candidates in the recent presidential debates. There is currently a roiling national argument about K-12 school reform, with partisans and advocates arguing for and against standardized testing, charter schools, teacher merit pay, school closings, and many other policies aimed at fixing low-performing schools.

People may vehemently disagree about how to help minority students in K-12 education, but nearly all agree that the students need help in the first place. Yet in every big city with a headline-making, underperforming school district, there's a public higher education system receiving not 1/100th of the scrutiny. Detroit, for example, is widely seen to have the worst public school system in America-so bad that U.S. Secretary of Education Arne Duncan has said he "lose[s] sleep over" the plight of the city's 50,000 students. But how many people know that Wayne State, Detroit's main public university, has an 8 percent-yes, 8 percent-graduation rate for Black students? Who's losing sleep over them?

Detroit is, no surprise, a worst case. But it's hardly the only city with a pervasive and largely ignored higher education problem. In Duncan's hometown, 19 percent of Black students who enroll full-time at Chicago State University graduate within six years. At California State University, Los Angeles, it's 22 percent. The University of the District of Columbia matches Wayne State for futility, with an 8 percent graduation rate for Black students. The University of Wisconsin-Milwaukee? 19 percent.

Texas Southern University in Houston was once the Texas State University for Negroes-the separate, unequal institution that the state created to avoid integration, leading to Sweatt. Today, it hosts the Thurgood Marshall School of Law and graduates 12 percent of its Black undergraduates on time.

Nationwide, the majority of all Black and Latino college students fail to graduate within six years. Even those who do finish may not be getting much benefit. Richard Arum and Josipa Roksa's blockbuster 2011 study Academically Adrift, which found "limited or no learning" taking place among a substantial percentage of all college graduates, also found significant racial disparities, with Black students learning less than their White peers. Studies of literacy among college graduates have found similar patterns.

Black students are also more likely than other groups to default on student loans that cannot be discharged in bankruptcy, leaving financial ruin in their wake, and minority students are targeted by for-profit colleges peddling sketchy degrees and inflated student loans. State governments, meanwhile, give far more money per student to flagship universities enrolling a disproportionately White, wealthy student body than to the regional universities and community colleges where most minority students are educated.

America's higher education system is comprehensively failing to give minority students what they need, and this has little to do with elite college admissions. Including community colleges, fewer than one in 10 undergraduates attend colleges with admissions rates below 50 percent. By definition, affirmative action only affects the small percentage of students who are qualified to attend elite schools. Many of the minority students washing out of public universities in droves are the survivors of our infamously substandard K-12 schools, attending local, open-admissions institutions. Their problem isn't getting into college-it's getting out with a quality degree in hand and no terrible loans on their backs.

So the end of affirmative action, absurd though it is, may be an opportunity to change the way people think about race and higher education. Affirmative action is one of a relatively small number of high-profile issues, like climate change, school vouchers, and abortion, that people form strongly held opinions about based largely on broad ideological affiliation. To be liberal is to favor admissions preferences in college; to be conservative is to oppose them. That's a powerful dynamic, but it has also had the effect of training generations of progressives to believe that they're doing their part to further the cause of racial justice in college by supporting affirmative action-and nothing else.

In reality, minority students need a much broader reform agenda, one that focuses on giving the colleges they attend a fair share of public resources and then holding them accountable for results. Not all colleges that enroll large numbers of Black students have catastrophic graduation rates. Some, like Elizabeth City State University, a historically Black public institution in North Carolina, get nearly half of their students through on time. Like many minority-serving institutions, Elizabeth City enrolls students whose academic preparation reflects the dysfunction of our K-12 schools. That's a tough job, and a university with real academic standards shouldn't necessarily let 100 percent of students earn a degree. But there's a huge difference between 8 percent and 50 percent, and the things universities like ECSU do to help students graduate aren't revolutionary: they bring new students to campus over the summer to help them acclimate, they carefully track their academic progress to look for warning signs of dropping out, and they focus hard on academics. But many unsuccessful colleges don't do these things-or don't do them well-because nobody outside the institution is paying attention.

States need to start practicing financial affirmative action by devoting more public resources to colleges that enroll students with the greatest academic needs. Along with the federal government, they should also penalize institutions with terrible graduation rates, student loan repayment rates, and post-graduation employment and earning rates, compared to peers with similar student populations. Those who set the national education agenda need to look past the handful of universities that graduate the ruling class and focus on improving the neglected institutions that educate future minority school teachers, scientists, doctors, and engineers. It will require the work of generations, but that's what minority college students-blinkered jurists notwithstanding-truly need.

Kevin Carey is the director of the Education Policy program at the New America Foundation.  This article, the fourth of an 11-part series on race, is sponsored by the W. K. Kellogg Foundation and was originally published by the Washington Monthly Magazine.
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