The Wall Street Journal is celebrating a recent Supreme Court ruling that will allow an anti-choice activist group to challenge the constitutionality of an Ohio law that bans false statements in election campaigns, a state statute that is opposed by free speech advocates across the political spectrum. But the WSJ went on to erroneously argue that the false statement at issue in the case -- that the Affordable Care Act (ACA) funds abortions -- is actually true, because contraceptives are actually "abortifacients."
On June 16, the Supreme Court unanimously ruled that the group, Susan B. Anthony List, had standing to sue over the Ohio statute. Susan B. Anthony List, which is "dedicated to electing candidates and pursuing policies that will reduce and ultimately end abortion," ran into trouble when it tried to take out a billboard calling Ohio congressman Steve Driehaus' vote for the ACA a vote for "taxpayer funded abortion." Driehaus filed a complaint against Susan B. Anthony under the Ohio statute, but ultimately withdrew it after he lost his election. Nonetheless, the organization challenged the constitutionality of the false statement law, claiming that it violated their First Amendment rights.
The Court's decision did not address the merits of Susan B. Anthony's claim. But that didn't stop some right-wing media outlets from calling the ruling "a big win ... for the pro-life movement." The Wall Street Journal evidently agreed with this analysis and added that the decision is "a rebuke to politicians who don't want to be criticized" in a June 16 editorial. The WSJ went on to argue that the billboard at issue had been "vindicated" because the ACA forces "religious groups to finance abortifacents."
From the editorial:
Monday's decision concerned whether Susan B. Anthony was able to sue. The Sixth Circuit Court of Appeals had said it could not because Mr. Driehaus withdrew his complaint after he lost. But Justice Clarence Thomas wrote for the Court that this decision improperly minimized the burden on groups whose speech is chilled for fear that they could be sanctioned or sued. Lower courts will now revisit the constitutional challenge.
As it happens, Susan B. Anthony's billboard claim has been vindicated by the Obama Administration's rule forcing religious groups to finance abortifacients in their health-care policies for employees. In a democracy, voters rather than a priesthood of regulators are obliged to sort out the truth or falsity of political claims. Congrats to Susan B. Anthony, and perhaps the Sixth Circuit will seek out some remedial First Amendment education.
A new Delaware law that would restore the rights of stockholders to bring class action lawsuits without fear of having to pay legal costs if they don't win every single part of their legal claim is being slammed by the U.S. Chamber of Commerce and its affiliate, the Institute for Legal Reform (ILR). But even right-wing media outlet Forbes isn't sold on their arguments.
In May, the Delaware Supreme Court surprisingly ruled in ATP Tour v. Deutscher Tennis Bund that corporations were allowed to unilaterally add bylaws forcing the loser in shareholder litigation to pay all the associated legal fees. These sorts of "loser pays" provisions are atypical in the U.S. but have been promoted by conservative organizations like the Chamber and the ILR under the guise of ending "frivolous lawsuits." Ultimately, though, such provisions have the effect of deterring or outright blocking many meritorious class action lawsuits brought by victims of corporate malfeasance.
In response to the state supreme court's holding in ATP Tour, Delaware legislators have proposed SB 236, a bill that would reinstate the normal prohibition on "loser pays" bylaws. The ILR is already registering its vocal opposition to the bill, arguing that it will leave corporations vulnerable to "abusive litigation."
Usually, right-wing media can be counted on to recycle the Chamber and ILR's pro-business talking points, in particular The Wall Street Journal editorial board. This time, however, even Forbes' Daniel Fisher questioned ILR's arguments. According to Fisher, who has supported anti-consumer provisions like forced arbitration clauses in the past, "opponents of SB 236 may be pushing too far" by promoting a loser pays system:
The bill's sponsor, Democratic Sen. Bryan Townsend, said he will set the bill aside for a while amid vocal opposition by the U.S. Chamber Institute for Legal Reform, according to the Wilmington News Journal.
The bill seems to restore the status quo by affirming the limited liability nature of corporations, where shareholders can only lose money to the extent of their investment. But the ILR said the proposed law -- passed, it noted, on "an extraordinarily expedited basis" -- would reverse a decision that "gives corporations a way to protect their shareholders" against the costs of "abusive litigation."
By pushing to retain the option implied by the ATP Tour decision, opponents of SB 236 may be pushing too far. Delaware courts have granted them ample tools to deal with shareholder litigation and chipping away at limited liability might be a cure that is worse than the disease.
Fisher's skepticism of ILR's issues with the bill are well-founded. According to Paul Bland, executive director of Public Justice, the Delaware Supreme Court's decision not only runs afoul of the basic concepts of contract law by allowing corporations to unilaterally change the rules of the game on their investors, it makes it "far easier for corporations to insulate themselves from accountability if they cheat shareholders or break the law. By contrast, the vast majority of courts in the U.S. disapprove of this kind of loser-pays provision."
It's not just states like Delaware that are threatening the viability of investor class action lawsuits, one of the best ways for defrauded stakeholders to get legal relief from the corporation who harmed them. Any day now, the Supreme Court will issue its decision in Halliburton v. Erica P. John Fund, a case that could make it nearly impossible for investors who have been the victims of corporate fraud to join together as a class and sue. Watch Bland explain in two minutes how Halliburton could be yet another in a long line of pro-business decisions from the conservative majority at the Court:
Media outlets are starting to report on the reintroduction of "post-abortion syndrome" (PAS) and similar junk science that claims a causal link between abortion and mental illness, which is being used in a coordinated attempt to defend restrictive state abortion laws in court. Witnesses claiming abortion leads to mental trauma are being organized by the discredited psychotherapist Vincent Rue, whose theories about PAS were debunked by reporters and experts years ago.
Right-wing media outlets like Fox News and National Review Online have pushed the myth of "post-abortion syndrome," the idea that choosing to have an abortion causes subsequent mental illness. The concept of "post-abortion syndrome" was developed by discredited psychotherapist and anti-abortion activist Vincent Rue, and is at the center of numerous current legal challenges to statewide abortion restrictions.
Both Wisconsin and Alabama have passed highly restrictive abortion laws, known as TRAP laws, that target abortion providers under the pretext of protecting women's health. These laws require abortion providers to obtain unusual admitting privileges at local hospitals, even though such privileges are difficult to obtain and keep. Providers are now challenging these laws in federal court, arguing that the regulations are unnecessary because abortion procedures are exceedingly safe. Moreover, the admitting privileges requirement is so burdensome that it will force clinics in each state to close down, and will increase wait times at the remaining clinics.
State officials in Wisconsin and Alabama defending these laws in court are relying on expert witnesses who have been coached by Rue to testify that "depression could be a complication of abortion," but media in the states where Rue has offered his "expertise" are starting to report on his unreliable theories. As explained by Isthmus, an alternative weekly newspaper in Madison, WI, "post-abortion syndrome" has not been recognized by either the American Psychological Association or the American Psychiatric Association. Not only that, but Rue's expert testimony has been thrown out twice by federal appellate judges because of his "limited clinical and research experience. In Planned Parenthood v. Casey the judge also wrote that Rue's 'admitted personal opposition to abortion, even in cases of rape and incest, suggests a possible personal bias.'"
Yet faulty hypotheses like Rue's have been repeatedly championed by conservative media in support of the closure of dozens of clinics across the country. Fox News shows like Hannity and The Five have explicitly linked abortion with mental illness and depression, and have questioned the mental health of women who choose to terminate their pregnancies. National Review Online has similarly argued that there is a "substantial body of academic research which has linked abortion to a variety of mental-health problems, including depression, anxiety, sleep disturbances, substance abuse, and suicide."
But there is no evidence of a causal link between abortion and subsequent mental health problems. In 2008, the American Psychological Association "formed the Task Force on Mental Health and Abortion to examine the scientific research addressing mental health factors associated with abortion, including the psychological responses following abortion." According to its analysis, there is "no evidence that having a single abortion causes mental health problems":
The Task Force concluded that there is no credible evidence that a single elective abortion of an unwanted pregnancy in and of itself causes mental health problems for adult women. The research consistently found that the backgrounds and circumstances of the women who seek abortions vary. The Task Force found some studies that indicate that some women do experience sadness, grief and feelings of loss following an abortion and some experience "clinically significant disorders, including depression and anxiety." The evidence regarding the relative mental health risks associated with multiple abortions is more uncertain.
Print media outlets in Wisconsin and Alabama have begun reporting on the discredited theories of anti-choice advocate Vincent Rue, who is being used by state officials to coordinate an attack on reproductive rights in federal court. As these cases progress, media should be aware of Rue's affiliation with the national anti-abortion movement as well as his questionable track record as an "expert."
In May, doctors in Wisconsin and Alabama went to federal court to challenge unnecessarily restrictive laws introduced in both states that require abortion providers to obtain unusual hospital admitting privileges -- a mandate that could force some of the state's clinics to close because the doctors there lack those privileges at local hospitals. These kinds of laws -- known as Targeted Regulations of Abortion Providers, or TRAP laws -- have become increasingly common throughout the country as a way to block access to abortions under the guise of women's health. Admitting privileges are not only extremely difficult to obtain and maintain, many medical professionals believe they are unnecessary for these types of clinics because abortions are generally safe, safer than other medical procedures that don't require such privileges, and patients rarely need to be admitted to the hospital due to complications.
Providers in the Wisconsin case -- Planned Parenthood of Wisconsin v. Van Hollen -- have argued that if the law stands, they would be forced to close down essential clinics throughout the state, placing a significant burden on the remaining providers, and putting women's health and safety at greater risk. Planned Parenthood has argued that such closures could increase wait times from three to four weeks to eight to ten weeks at its Milwaukee clinic. In Planned Parenthood Southeast v. Strange, doctors are challenging a similar law in Alabama, arguing that abortion clinics there are also at risk of shutting down due to the stringent, and unnecessary, admitting privileges requirement.
However, state officials in Wisconsin and Alabama are still defending these laws in court, claiming that admitting privileges are necessary to promote the health and safety of women. To prove this point, each states' attorneys general have called on "expert witnesses" -- specifically pro-life doctors -- who have testified in support of admitting privileges. But only two local outlets appear to have reported the connection between these "expert witnesses" and Vincent Rue, an unreliable psychotherapist who "coined the term 'post-abortion syndrome,' which purports a link between abortion and mental health issues," who has been behind the coordination and coaching effort of these witnesses in multiple states.
In a 2000 interview with the Elliot Institute -- an anti-reproductive choice organization that has been criticized for "building a literature to be used in efforts to restrict access to abortion," Rue supported his study on "post-abortion syndrome" by saying: "Since ambivalence is a good predictor of postabortion problems, it is likely that many of these women are having post-abortion symptoms that simply fall short of full-blown PAS."
Outlets such as the Milwaukee Journal-Sentinel and the Wisconsin State Journal covered the trial in Wisconsin, highlighting pro-life physician Dr. James Linn's testimony that he had patients "abandoned" by their doctors when traumatic complications arose. But they did not mention that Linn, as well as pro-life physician Dr. James Anderson, had been coached by Rue. According to Isthmus, an alternative weekly newspaper in Madison, Anderson testified in open court that he joined the case after he was contacted by Rue, "who helped him with 'wordsmithing' his report to the court."
As Isthmus reported, Linn's testimony was called into question by lawyers representing abortion providers because Rue's "post-abortion syndrome" diagnosis "had been discredited":
First proposed in the early 1980s, the condition is not recognized by the American Psychological Association or the American Psychiatric Association. Researchers at Johns Hopkins University, who conducted a comprehensive review of the scientific literature in 2008, also rejected the hypothesis.
According to an online bio, Rue is currently the director of the Institute for Pregnancy Loss in Jacksonville, Fla., described as an "independent nonprofit research and treatment center." Rue notes that he has treated "numerous women and men who have been traumatized by their abortion experience" and that he serves as a "litigation consultant" for numerous offices of state attorneys general in abortion-related lawsuits.
According to documents obtained by Isthmus, the Wisconsin Department of Justice expects to pay Rue $47,362.50 for his work as an "expert consultant" on the admitting-privileges lawsuit.
In Alabama, where officials are also fighting to severely restrict women's access to abortion, the state's largest papers have mostly relied on wire stories from the Associated Press (which also have not mentioned Rue) to report on the legal challenge to Alabama's TRAP law. But the Montgomery Advertiser, a daily newspaper in Alabama, was one of the few newspapers in the state to both cover the trial and highlight Rue's connection to the witnesses. According to the Advertiser, Anderson, who gave testimony in Wisconsin, also testified in support of Alabama's admitting privileges law in May after being prepped by Rue:
[Attorneys for the abortion providers] challenged Anderson's connection with Vincent Rue, a pro-life activist who has suggested links between abortion and subsequent mental illness in women, an idea that has been twice rejected by the American Psychological Association; Rue assisted Anderson in preparation of his expert statements. Griffith asked Anderson if he knew that Rue had been "discredited" in other trials; Anderson, who earlier testified that depression could be a complication of abortion, said he did not. Griffith also noted that Rue's degree was from the University of North Carolina's School of Home Economics.
Judge Thompson also questioned Anderson about his relationship with Rue, asking if Anderson had any knowledge of where Rue worked or his professional credentials. Anderson said he did not, a response that seemed to surprise Thompson.
"You don't know his employment or any organization he belongs to?" Thompson asked. "Why do you trust him?"
Anderson said he had worked with Rue on other abortion cases, and found him reliable.
As both cases are still pending, it will give media outlets in those states the opportunity to ensure their reporting begins or continues to shine a light on Rue's sketchy science and his coordination of state's witnesses in defense of these TRAP laws -- especially since a similar "post-abortion syndrome" rationale has already been alluded to in Supreme Court opinions limiting women's access to safe abortion procedures. Writing for the majority in 2007, Justice Anthony Kennedy concluded that "it seems unexceptionable to conclude that some women come to regret their choice to abort the infant life they once created and sustained" and that "severe depression and loss of esteem can follow." The conservative majority subsequently ignored reproductive rights precedent and upheld the Partial Birth Abortion Ban Act, a George W. Bush-era law that criminalizes late-term abortions.
Right-wing media figures incorrectly described President Obama's signing statement attached to a law involving what type of Congressional notification is required before Guantanamo detainees are freed, avoiding the substantive question of whether or not a Commander-in-Chief had the responsibility and authority to rescue Sgt. Bowe Bergdahl, a captured American soldier. In fact, signing statements are a common practice of the modern presidency, the President has used these pronouncements far less frequently than his predecessors, and bipartisan legal experts are validating the administration's legal arguments.
Right-wing media are disappointed that the Supreme Court decided to rule narrowly in a domestic criminal case that nonetheless had big implications for the United States' standing in the global community, rejecting a conservative legal challenge to Congress' long-standing powers under the U.S. Constitution to enforce ratified international treaties.
The Supreme Court recently ruled in Bond v. United States, holding that federal prosecutors had overreached when they charged the defendant, Carol Anne Bond, with violating the Chemical Weapons Convention Implementation Act of 1988, a statute enacted by Congress to fulfill the international obligations of the United States. Local authorities in Bond's home state of Pennsylvania declined to prosecute her assault of her husband's mistress -- she had "spread harmful chemicals on [her] friend's car, mailbox and doorknob" -- because her activities didn't result in any injuries worse than a burnt thumb. Nevertheless, Bond was prosecuted in federal court for violating the international Convention on Chemical Weapons, a treaty that was ratified by the United States in 1997 and codified into federal law by Congress in 1998. Bond argued (in part) that her conviction should be overturned because Congress has no constitutional authority to enact legislation that would help implement ratified treaties like the Convention on Chemical Weapons. This extreme and ahistorical argument was concocted by the libertarian Cato Institute, and contradicts not only the Framers' clear intent to transcend the dysfunctional Articles of Confederation that hampered early America on the global stage, but also hundred-year-old precedent of the Supreme Court.
The Court ultimately avoided that result by reading the statute and reasonably concluding that Congress never intended a treaty guarding against the mass slaughter of modern warfare to be applied to what has been described as nothing more than a "sad soap opera" that nevertheless "caught the attention of a group of conservative lawyers, who saw in her shabby act of domestic vengeance a chance to further an agenda centuries in the making." Writing for the unanimous Court, Chief Justice John Roberts held that federal prosecutors should not have gone after Bond because federal law "does not cover the unremarkable local offense at issue here."
Right-wing media outlets like The Wall Street Journal and National Review Online were clearly upset that the Court refused to adopt the radical concurring opinions of conservative Justices Scalia, Thomas, and Alito. Scalia and Thomas, for their part, "uncritically embraced" the outlandish constitutional argument put forth by Cato that "Congress lacks any specific power to pass legislation necessary and proper to ensure that the United States abides by its treaty commitments."
Ta-Nehisi Coates' much-praised essay, "The Case for Reparations," that recently appeared in The Atlantic has given right-wing media a fresh opportunity to argue that the best way to address racially discriminatory laws or policies -- such as housing segregation -- is to never speak of them, let alone litigate them under civil rights law.
In Coates' essay, which ultimately calls for a congressional study on the long-term effects of the treatment of African-Americans in the United States, he explores the country's history of racism and oppression, from slavery to the Jim Crow laws to the present. Although right-wing media have been known to erroneously claim that racism is no longer a problem, the systemic effect of state and federal laws that favored whites and oppressed people of color is still felt today. As Coates explains, institutionalized oppression of black people was often sanctioned by the federal government, either through legislation that inadequately addressed racial discrimination or by agencies that propagated biased policies rooted in federal law. For example, agencies like the Fair Housing Administration often refused to insure mortgages in neighborhoods that they deemed unsuitable, perpetuating systematic housing segregation that in turn fueled other disparate racial impacts that continue today, such as separate and unequal schools. Despite the fact that redlining was outlawed in 1968 with the passage of the Fair Housing Act, the housing market is still hostile to black buyers and renters, even in neighborhoods that have taken steps to improve residential housing segregation.
Ultimately, Coates argues that the best way to even begin to evaluate how whether the government owes a debt for the generations of stolen wealth and opportunity it sanctioned would be to allow Rep. John Conyers' (D-MI) bill, HR 40, also known as the Commission to Study Reparations Proposals for African Americans Act, to proceed. The bill calls "for a congressional study of slavery and its lingering effects as well as recommendations for 'appropriate remedies.'" Conyers has introduced this bill -- which does not actually authorize the disbursement of any funds -- every year for the last 25 years, but it has never proceeded to the House floor. For Coates, HR 40 represents an opportunity to finally study the impact state-sanctioned discrimination has had and continues to have on black communities, and provide a vehicle for a "a serious discussion and debate ... we stand to discover much about ourselves in such a discussion."
But yet again, members of right-wing media have no interest in such a discussion.
The Wall Street Journal continued its crusade against clean air, calling on the Supreme Court to put an end to centuries-old state lawsuits that hold polluters accountable for the "smoke, dust, poisonous chemicals, and noxious odors" they dump on their neighbors, despite previously arguing for state-level solutions to air pollution.
The WSJ has a long history of blanket opposition to class action lawsuits, regardless of the merits of the case. It has called class actions nothing more than a "windfall" for plaintiffs lawyers despite the fact that such lawsuits are often the only avenue for legal redress for many consumers. Class actions are often the most effective tool to punish corporate plaintiffs whose behavior cause Americans injury or harm, yet the WSJ has falsely accused federal judges (like conservative Seventh Circuit Court of Appeals Judge Richard Posner) of not following and having "disdain for" Supreme Court precedent, just for allowing class action lawsuits to proceed.
In its most recent editorial on the subject, the WSJ complained that the Supreme Court should "polish off" a new series of class action lawsuits that seek relief for injury caused by air pollution or the physical effects of climate change caused by such pollution. Based on long-established state common law -- judge created doctrine as opposed to legislatively-enacted law -- that redresses personal injury caused by nuisance, trespass, or negligence, these suits allow landowners to bring civil claims against factories and power plants whose air pollution has negatively interfered with their property rights.
In 2011, the Court ruled that federal common law does not provide for civil nuisance claims seeking injunctions against polluters because the federal Clean Air Act (CAA) displaced such litigation, but the question of whether the CAA applies to state common law was explicitly left unanswered. Although the 2011 case sought a court order to stop pollution that caused global warming, other lawsuits based on the state version of common law only seek damages for the air pollution itself, regardless of its contribution to climate change. But the WSJ complained that allowing these more traditional class actions to go forward would "lead to a state-by-state chopped salad of pollution controls," even though it has previously argued that managing pollution should be largely left to the states rather than the federal government.
The Supreme Court will soon decide Sebelius v. Hobby Lobby Stores, a case that could let owners of for-profit, secular corporations ignore the Affordable Care Act (ACA) and provide health insurance that does not cover preventive benefits like contraception. Right-wing media continue to advance multiple myths to support the owners of Hobby Lobby, despite the fact that these arguments have been repeatedly debunked by legal experts, religious scholars, and medical professionals.
Saturday, May 17, marked the 60th anniversary of the Brown v. Board of Education decision, holding that state-mandated racially-segregated schools violated the U.S. Constitution. Fox News celebrated this historic event by slamming Attorney General Eric Holder and First Lady Michelle Obama for discussing the role of systemic racial discrimination in modern American society in commencement addresses over the weekend.
On the May 19 episode of Hannity, host Sean Hannity was joined by Town Hall reporter Katie Pavlich to discuss the speeches, saying that he found it "suspicious" that Holder's commencement address at Morgan State University in Baltimore, MD, and Michelle Obama's to graduating seniors in Topeka, KS, discussed race at all, even though Brown is known as ushering in modern civil rights law by condemning the racial caste system of white supremacy. In his remarks, Holder pointed out that despite the holding in Brown, "in too many of our school districts, significant divisions persist and segregation has reoccurred -- including zero-tolerance school discipline practices that, while well-intentioned and aimed at promoting school safety, affect black males at a rate three times higher than their white peers." The first lady warned that "today, by some measures, our schools are as segregated as they were back when Dr. King gave his final speech," and that "many districts in this country have actually pulled back on efforts to integrate their schools, and many communities have become less diverse as folks have moved from cities to suburbs."
But Hannity was unmoved, criticizing these speeches that discussed the "subtle" institutional discrimination that leads to severe inequalities of opportunity for persons of color. Pavlich, meanwhile, blamed Holder and President Obama for the spike in resegregation, because they have fought "school choice" and voucher programs.
This is not the first time that Fox News bizarrely complained about these commencement addresses because they discussed race on the anniversary of Brown. On the May 18 edition of Fox & Friends Sunday, co-hosts Tucker Carlson and Anna Kooiman complained about Holder's accurate description of the discrimination currently facing minority students, and claimed that his speech was not sufficiently "uplifting." Kooiman went on to argue that Holder should have included a "call of action for African-American fathers to actually be fathers and not be baby daddys" instead of calling zero-tolerance policies that unfairly funnel students of color into prison "racist." Carlson agreed with Kooiman's assessment and argued that Holder's speech didn't "acknowledge reality."
What Fox ignores is that not only is the 60th anniversary of one of the most significant civil rights victories in history a perfectly appropriate time to discuss race, but that Michelle Obama and Holder were correct to point out that there is still work to be done to fulfill the promise of Brown. According to a recently released study by UCLA's Civil Rights Project, "segregation increased substantially" after federal court desegregation orders were terminated and ignored under Republican administrations and conservative Supreme Court rulings, leaving devastating and lasting effects on America's students and future leaders.
Cheered on by right-wing media, the conservative justices of the Roberts Court are steadily dismantling Americans' ability to access justice through class actions, case after case.
The latest chance for the Supreme Court to roll back consumer protections in favor of big business is in Halliburton v. Erica P. John Fund, a case that could make it more difficult for investors to bring class action lawsuits against corporations who commit fraud. Right-wing media have been busy misinforming about the case, calling securities litigation a "situation basically directly out of a Kafka novel," a "windfall" for plaintiffs lawyers, and have attacked class actions as "frivolous" and "ineffective."
For its part, the conservative Roberts Court has repeatedly sided with corporations, all the while making it difficult for consumers to fight back. Under Roberts, the Court has slashed at its own precedent in an effort to make class actions obsolete, making it more difficult for women and people of color who have been systematically paid less by their employers to join together as a class to sue.
Paul Bland, the executive director of Public Justice, has dedicated his professional life as a lawyer and consumer advocate to protecting people from corporate wrongdoers and bad Supreme Court decisions. Watch as he explains how the pro-business tilt of the Court has harmed not just his clients, but everyone.
Any day now, the Supreme Court will decide Halliburton v. Erica P. John Fund, a case that could make it more difficult for investors to file class action lawsuits against large corporations who commit fraud. The Court looks poised to embrace a "compromise" position that would continue to allow these class actions, but with new burdens on plaintiffs before they can proceed to trial.
This week marks the 60th anniversary of the Supreme Court's unanimous decision in Brown v. Board of Education, holding that state-mandated racial segregation in public schools was unconstitutional, and right-wing media have jumped at the chance to mislead about the case and its legacy.
On May 13, The Wall Street Journal ran an op-ed by former National Review Online contributor Abigail Thernstrom and her husband, Stephan Thernstrom, who misrepresented both the importance and legacy of Brown by declaring it "an American success story" and its promise "fulfilled," while pushing the myth that the U.S. Constitution is "colorblind." Because apartheid schools are now technically prohibited, the Thernstroms also dismissed statistics that show schools have been rapidly resegregating in recent years, called integration efforts "racist," and ignored the well-documented link between housing segregation and the growing separation of schools based on class and race. Instead, the Thernstroms blame "the differential fertility rates of immigrants and natives" for our separate and unequal schools.
This most recent attack is part of a larger right-wing pattern of denying the continuation of systemic racial discrimination and advocating for the rollback of half a century of civil rights precedent and legislation.
When conservative media discuss Brown at all, it is usually to misrepresent the case's condemnation of a racial caste system designed to maintain white supremacy in order to champion education policies like voucher programs and school choice, or take offensive shots at civil rights leaders. For example, when Louisiana's voucher program was scrutinized for violating several long-standing desegregation orders, outlets like National Review Online compared Attorney General Eric Holder to segregationist Alabama Governor George Wallace, famous for blocking the University of Alabama's doors to black students in the wake of the Brown decision.
Similarly, this purportedly colorblind right-wing media have criticized race-conscious educational initiatives designed to eliminate racial biases that perpetuate the stigma of inferiority that Brown condemned. When the Department of Justice announced new disciplinary guidelines intended to prevent racially discriminatory punishments in public schools, Fox News characterized the new rules as "bringing race into it," a promotion of race-based punishments, and were tantamount to "playing the race card." NRO agreed with Fox's assessment of the new guidelines, and went even further, claiming that black students have "weak impulse control" that "means more disruptive behavior in school." Of course, these outlets glossed over the fact that black students are disproportionately more likely to be punished, and even arrested, for minor and nonviolent infractions at school, whereas their white counterparts are often never disciplined for the same behavior.
But what this vitriol chooses to ignore is just how resegregated public schools have become, leading to racial and socio-economic isolation and heightened racial tensions in higher education. This problem is only compounded as federal courts have lifted long-standing desegregation orders or failed to actively enforce those still in existence. As reported by ProPublica's Nikole Hannah-Jones, there are still hundreds of districts under a federal desegregation order. Many of those schools, however, have no idea that they're under orders or what the order says, and the courts are "releasing districts from court oversight even where segregation prevails, at times taking the lack of action in cases as evidence that the problems have been resolved."
Washington Post columnist George Will dedicated his most recent column to bashing citizens uncomfortable with forced participation in Christian prayer before they can petition town officials, characterizing both the Jewish and atheist plaintiff in the Supreme Court's recent decision on the constitutionality of state-sponsored prayer as "flimsy people" with "thin skins."
The suit, Town of Greece v. Galloway, was filed by two residents of Greece -- a small town in upstate New York -- who objected to their town officials' decade-long practice of inviting almost exclusively Christian clergy to deliver at times extremely sectarian prayers before the start of town meetings. On May 6, the Supreme Court's conservative justices held that the Christian prayer regularly invoked at town meetings before residents could engage their local officials in town business did not violate the Establishment Clause of the First Amendment. In the majority's view, the prayers were appropriate because "although most of the prayer givers were Christian, this fact reflected only the predominantly Christian identity of the town's congregations." In their dissent, the liberal justices noted that although "legislative prayers" have been held to be a ceremonial exception to the First Amendment's prohibition on the establishment of religion, the Town of Greece crossed the constitutional line by embedding Christian prayers as the bar citizens must cross before they can engage their representatives.
In his Washington Post column, Will celebrated the majority's reinterpretation of what constitutes permissible "legislative prayers." He also took the opportunity to gratuitously slam the "prickly plaintiffs" for bringing the case at all, falsely pretending the concerns of religious minorities are the same as those of "militantly aggravated secularists."
From Will's May 7 column (emphasis added):
Three decades have passed since the court last ruled on the matter of prayers during government meetings. In 1983, the court held:
"The opening of sessions of legislative and other deliberative public bodies with prayer is deeply embedded in the history and tradition of this country. From colonial times through the founding of the Republic and ever since, the practice of legislative prayer has coexisted with the principles of disestablishment and religious freedom."
Since then, however, many Americans have become more irritable and litigious and less neighborly. Also, there are many more nonbelievers. And the court has made establishment-clause jurisprudence more labyrinthine with nuances such as the "endorsement test": What government behavior touching religion would a reasonable observer see as endorsing -- or disapproving -- a particular religion or religiosity generally?
The majority held that ceremonial prayer -- an encouragement to gravity and sobriety -- is not harmful to the plaintiffs, who felt somehow coerced when present at public prayers, and who said such prayers are necessarily divisive. The court should have told them: If you feel coerced, you are flimsy people, and it is a choice -- an unattractive one -- to feel divided from your neighbors by their affection for brief and mild occasional expressions of religiosity.
Taking offense has become America's national pastime; being theatrically offended supposedly signifies the exquisitely refined moral delicacy of people who feel entitled to pass through life without encountering ideas or practices that annoy them. As the number of nonbelievers grows -- about 20 percent of Americans are religiously unaffiliated, as are one-third of adults under the age of 30 -- so does the itch to litigate believers into submission to secular sensibilities.