Saturday, July 31, 2021
The Void That Critical Race Theory Was Created to Fill
"The movement’s architects saw the inadequacy of liberal solutions to racial injustice. Yet the term has become a lullaby by which liberals self-soothe.
In 1971, Derrick Bell, a forty-year-old civil-rights attorney, became the first Black professor to gain tenure at Harvard Law School. A soft-spoken and prolific scholar, with glasses and a short fro coming to a widow’s peak, Bell was a Pittsburgh native and Air Force veteran who, before his career in academia, had worked with Thurgood Marshall composing legal strategies against school segregation in the South, at the N.A.A.C.P. Legal Defense Fund, and as the deputy director of civil rights at the U.S. Department of Health, Education, and Welfare. At Harvard, he created and taught the school’s first course of its kind on civil-rights law, providing students the only sanctioned opportunity for left-of-liberal legal training on the interworking of race and power. As a scholar, he published studies such as “Serving Two Masters,” in which he argued that the pursuit of racial balance in schools following the landmark ruling in Brown v. Board of Education was eclipsing efforts to improve the quality of education for Black children, leaving civil-rights lawyers compromised between their clients’ interests and the law.
Bell was a knowing token of sorts. “It became untenable for them to be an all-white institution,” he recalled, of Harvard, in an interview in 1993. “The status quo was better stabilized by moving in this direction a little bit.” But over the years Bell grew increasingly displeased with the school’s stagnant hiring practices regarding minority professors. He threatened to leave, and, in 1980, he did, moving on to the University of Oregon, to become the dean of its law school. (He would later resign from that post, and from a second post at Harvard, over the institutions’ resistance to hiring women of color.) Upon his departure from Harvard, Constitutional Law and Minority Issues was dropped from the curriculum. The following academic year, the Black Law Students Association met with the school’s dean, James Vorenberg, urging that the course be continued and that a Black professor qualified to teach it be hired. According to the scholar Kimberlé Crenshaw, who was a Harvard Law School student at the time, Vorenberg asked the students what was “so special” about Constitutional Law and Minority Issues. In terms of hiring, would they not prefer an “excellent white professor” over a “mediocre Black one”? Rebuking this false choice, the students compiled a list of thirty Black professors whom the school might consider. (All ten of the professors hired that year were white.)
In the spring of 1982, Vorenberg announced a three-week course on civil-rights litigation, to be taught by two part-time hires, including the prominent white civil-rights attorney Jack Greenberg. To the students, this was a placative offering, which would remedy neither the void in their legal training left by Bell’s departure nor the need for a full-time minority hire. They boycotted the mini-course and held rallies and sit-ins. In response, the dean sent a letter to second- and third-year students (which he later released publicly), lodging what was more or less an accusation of reverse racism: protesting the course because it was co-taught by a white lawyer worked “against, not for, shared goals of racial and social justice,” he wrote. Even the civil-rights leader Bayard Rustin, in a letter to the Times, chastised the students for what he said was their “blatant racism.” (Never mind that many of the students who joined the protests were white—this was Harvard, after all.) At a picket outside the course’s first session, in January of 1983, Crenshaw, in her third year at the school, gently refused such framings. “This whole charge of reverse racism has done what it was intended to—to obscure the real issue,” she told an A.P. reporter. (Harvard Law School declined to comment.)
In the midst of this protracted conflict, students led by Crenshaw and another future scholar and professor of law, Mari Matsuda, devised a means of accessing the education that they needed. They designed what they called the Alternative Course, premised upon a concept of the law not as a static, neutral entity but as “fundamentally political.” More robust than a reading group or a workshop, the course featured guest lecturers such as Charles Lawrence, Linda Greene, Neil Gotanda, and Richard Delgado, all experts in the legal dimensions of civil rights who were developing studies of the law as a racial document. The Alternative Course laid the groundwork for understanding not only racism within the law but also “how law was a constitutive element of race itself: in other words, how law constructed race,” as the editors of “Critical Race Theory: The Key Writings That Formed the Movement,” from 1995, wrote. Its core text was a book, from 1973, by the man who had inspired the program’s founding: Bell’s “Race, Racism, and American Law.” The course, Crenshaw later wrote, “set in motion a chain of events that would provide fertile ground for the emergence of CRT,” or critical race theory (a term that, along with “intersectionality,” she has been credited with coining).
The Alternative Course cannot be counted as the sole genesis of critical race theory, which became a multidisciplinary movement that draws from the work of a mélange of theorists (including Antonio Gramsci, W. E. B. Du Bois, and Jacques Derrida) and earlier movements (critical legal studies, ethnic liberation groups), with contributions from legal scholars across the country. The core premises of critical race theory—that the invention and reinvention of race enable the status quo, and that liberal solutions prove insufficient—have been applied in recent decades within fields from education to disability studies. But the ideological necessity of the course at Harvard Law in the early eighties is key to understanding the role that critical race theory has sought to fill within post-civil-rights America writ large. The Manichaean bent of popular American race narratives would incline us toward discerning what happened at Harvard in terms of conservatives against liberals, racists against people of color, but the architects of what would become critical race theory saw things differently. Harvard administrators at the time possessed what they considered, and what students considered, a liberal view on race. Vorenberg and the students “shared a desire to work towards justice and diversity,” Crenshaw and another member of the Black Law Students Association, Donald Christopher Tyler, recalled in the Crimson. The fact that administrators could condemn race-based discrimination while also dismissing the study of race-based power exemplified the blinkered insights of the liberal doctrine. The vocabulary gifted by civil rights—“bias,” “discrimination”—amounted to a Pyrrhic win for racial discourse; the era’s legal victories outlawed only what the justice system narrowly understood racism to be. As Richard Thomas Ford, a professor at Stanford Law School, put it to me recently, critical race theory “is a reaction to a conventional liberal account that says, ‘Well, you know, if we just carry on with the mainstream civil-rights project, we will get to racial justice.’ ”
Lately, of course, this niche legal movement has found itself at the center of the culture wars, as a new bogeyman of the political right. Conservatives want it gone; liberals, in turn, insist that it’s necessary. Yet few from either squad seem to have thought much about what exactly “it” is. Something something “race,” something something “history,” something something “America.” That seems to more or less summarize the thinking behind HB 3979, a bill, recently signed into law by Texas’s governor, Greg Abbott, which seeks to regulate civic education in public schools by, among other things, stipulating that teachers should not be “compelled” to discuss current events or “currently controversial issues” and, most sensationally, that students (i.e., white students) should be spared any sense of “blame,” “guilt,” or other “psychological distress” on account of belonging to a dominating race or sex. HB 3979, which goes into effect this fall, does not name critical race theory explicitly, but it is the most high-profile of a cluster of new pieces of legislation prompting hand-wringing over the term. Last month, in Florida, the State Board of Education banned critical race theory by name and also the 1619 Project, the Times endeavor that foregrounds the arrival of African slaves in the founding narrative of American national identity. Florida’s governor, Ron DeSantis, appropriating the color-blind language of liberalism, has expressed his fear that critical race theory might “cause people to think of themselves more as a member of a particular race based on skin color, rather than based on the content of their character.” (Note how, as in the case of the critics of the Harvard boycott, progressive rhetoric is called upon to suppress a feared education.)
It should not be difficult to sell a reasonable person on the idea that the “critical race theory” of conservatives’ imaginations has little to do with critical theory as such. Writers and scholars such as Adam Harris, The New Yorker’s Jelani Cobband Benjamin Wallace-Wells, and Crenshaw herself (exhibiting a patience that we the people do not deserve) have more than adequately demonstrated that campaigns against critical race theory have in fact used the term to arouse generalized fears about the implications of liberal race talk, from cultural-competency seminars to the “cancellation” of public figures. In a recent interview with Wallace-Wells, Christopher Rufo, nominally a journalist, boasted of his part in turning critical race theory into a right-wing target. He explained that he’d gone truffle-hunting for incendiary ideas in the works of scholars such as Bell, Crenshaw, and Angela Davis, whose names he had found in the footnotes of anti-racism best-sellers. In terms of its ability to foster racial hysteria, critical race theory struck Rufo as more promising than reigning buzzwords such as “woke” or “cancel culture.” It was “the perfect villain,” he told Wallace-Wells.
What has exhausted me more than Rufo’s success at igniting right-wing race hysteria, though, is the manner in which liberals have chosen to rebut it. Bona-fide critical race theory, a scholarly movement, wouldn’t be taught in grade school any more than “drifting to a person in their first driving course,” as one writer, Michael Harriot, of the Root, put it to me recently. Yet those eager to cross swords with conservatives have worked themselves into a corner: in attempting to defend critical race theory, they have whittled a leftward strain of scholarship into a set of innocuous talking points that, indeed, sound fit for children. In May, for example, the Instagram account @thistletopics (“Colorful infographics on social issues and current events”) uploaded a slide-show explainer on critical race theory, written by an incoming college freshman: “Some people agree with CRT, while others don’t,” it coos. “Racism is embedded into society through systems and institutions.” The digital-news channel AJ+ used the occasion of Juneteenth to define critical race theory as “the study of racial injustice and its effects on law and culture in the past and present.” In a column for MSNBC, the Twitter-famous historian Kevin Kruse wrote that “racism is more deeply rooted in larger structural and systemic problems.”
None of these summations is incorrect, exactly—in an appearance on CNN, Crenshaw herself described critical race theory in similar terms, as a rejection of the idea that “what’s in the past is in the past, and that the laws and systems that grow from that past are detached from it.” And yet there is something about the homogeneity of these definitions, their recourse to coddling cliché, that makes critical race theory seem like just another version of a fluffier and more familiar three-word initialism, D.E.I.—diversity, equity, and inclusion. As with the less robust term “privilege,” the words “structural” and “systemic” are called upon with a suspiciously breezy regularity these days. Rather than carry on the edifying work that these words are meant to undertake—the project of implicating ourselves in the world that contains us—they have become a lullaby by which liberals self-soothe: it’s never you; it’s the system. Ibram X. Kendi, the best-selling author of “How to Be an Antiracist,” told Slate in a recent interview that the divide over critical race theory is based on a misunderstanding that it “seeks to attack white people” rather than “to attack structural racism.” Late last month, Twitter gathered in praise of General Mark Milley, the chairman of the Joint Chiefs of Staff, for expressing an “open mind” about critical race theory before the House Armed Services Committee: “What is wrong with understanding—having some situational understanding about the country for which we are here to defend?” This expression of tolerance from the seat of power exhibits how defanged the popular apprehension of racial critique has become.
Ultimately, the liberal defense of critical race theory ignores an aspect of the movement that many of its founders considered fundamental: the “desire not merely to understand the vexed bond between law and racial power but to change it,” as the editors of “Critical Race Theory” wrote. Many scholars, myself included, might debate the attainability of this goal—the subtitle of Derrick Bell’s book “Faces at the Bottom of the Well,” from 1992, is, after all, “The Permanence of Racism.” But the transformative aims of critical race theory, inspired by the as-yet-unrealized dreams of Jim Crow’s children, have been awfully undersold in the current liberal punditsphere. Critical race theory is not merely about making a better historical document but about movement toward the way things could be. If there is anything valid about conservatives’ cooked-up attack, it’s their sense that a free accounting of race in society cannot help but imply an unmaking of the rule of law as we know it. And, in that case, the influential liberal class might have good reason to diminish the movement’s teachings. As Bell and as his peers knew well, reformers can be corrosive, too."
Friday, July 30, 2021
Thursday, July 29, 2021
Opinion | Joe Biden is overseeing one of the largest cuts in legal immigration in history - The Washington Post
Opinion: Joe Biden is overseeing one of the largest cuts in legal immigration in history
A Biden administration official announced last week that the government has processed green card applications at such a slow pace that it will come at least 100,000 slots short of using up the annual limit. Without drastic revisions in the glacial processing times, President Biden will have presided over one of the largest cuts to legal immigration in U.S. history — and almost no one is talking about it.
While Biden will own this unwelcome distinction, former president Donald Trump staged this disaster last year by barring most immigrants sponsored by their family members from entering the United States. This caused 120,000 family green card slots to go unused.
Green cards permit holders to permanently live and work in the United States, and immigration law provides two primary routes to obtain them — sponsorship by family members or by employers. If fewer family-based green cards are issued than are allotted, the law requires that the unused family-based number from one year be added to the cap for employment-based green cards in the following year — in this case, an additional 120,000 slots (on top of the annual 140,000).
But here’s the problem: If those additional employment-based slots aren’t used by Sept. 30, the end of the fiscal year, they are lost forever. And the administration is now saying that most won’t be, largely because of bureaucracy and a lack of preparation by the federal government.
The Trump administration should have known a huge effort would be needed to adjudicate the additional 120,000 employment-based applications. And it had plenty of time to mount a response: Trump signed his executive order banning most family-based immigrants in April 2020. But no plan ever materialized.
Instead, the State Department refused to allow anyone to submit applications until the first day of the new fiscal year in October 2020 — half a year wasted. That meant the government had just 12 months to process applications that often takemuch longer in a normal year. What happened next is a window into the United States’ devastatingly broken immigration system.
The delay resulted in a mass filing scramble in October. Because the United States is probably the only government in the world that has failed to produce an online immigration filing system, these paper forms had to be sent by mail. The government’s mailroom staff had to manually enter each applicant’s information into its system and issue a receipt. Precious weeks disappeared as too few staff attempted to rip open the flood of envelopes.
The next stage was no better. Government regulations require that every applicant be fingerprinted for backgrounds checks. This rule may seem reasonable — except nearly all employment-based applicants have lived and worked legally in the United States, many for a decade or more, with temporary residency status. This status they maintained by — you guessed it — repeatedly being fingerprinted and passing background checks.
During the pandemic, Trump closed all the fingerprinting sites for months, creating a massive backlog of green card applicants, work visa holders and others waiting for appointments. Neither the Trump nor the Biden administrations waived the need for fingerprinting, even though the government already had fingerprints for nearly all green card applicants.
What’s worse is that all these green card applicants were booking multiple appointments for fingerprinting, one to continue their underlying temporary status and another for the green card. Mercifully, Biden stopped requiring double booking, but he waited until mid-May to do so — way too late to stop the disaster.
At the same time, most green card applicants must request permission to travel internationally and work without the restrictions of their temporary work status while the green card application is pending — benefits they could obtain with a green card. In other words, the government is reviewing applications that are only necessary because it is taking so long to review a different application.
The lost green cards will disproportionately harm Indian immigrants. That’s because while they make up about half of all applicants, federal law says immigrants from a single country usually cannot make up more than 7 percent of green cards in a year (the remnants of a racist system going back to the 1920s). As a result, many Indian immigrants face a lifetime wait, while others pass them in line.
Yet the extra green cards have given Indian applicants a once-in-a-lifetime chance to far exceed that 7 percent threshold this year because there are not enough other applicants to use them. But that chance will be lost for thousands waiting in the queue if the government fails to get the cards out the door before Oct. 1.
The Biden administration can change course, but at this stage, it would need to take extreme action to work through the backlog — such as issuing approvals en masse without any reviews but revoking later if an issue pops up.
But by saying that it expects 100,000 green cards to go to waste, the administration is implying it would rather take the extreme step of violating the law that requires them to be issued. Unless there is a change of heart soon, Biden will assume responsibility for denying thousands of immigrants the path to citizenship that Congress promised them."
What HIPAA does and doesn't protect against when it comes to vaccine questions
"Many people are confused when it comes to the rules surrounding HIPAA. We'll help explain.
With vaccination rates slowing, COVID-19 infections are climbing because of the delta variant. To check the spread of the virus, health care officials and business owners are doing everything from going door to door to talk to people about getting vaccinated to requiring proof of vaccination to enter a business or return to work. One question you may hear increasingly from employers, health care workers -- maybe even family members and friends -- is, "Have you received the COVID-19 vaccine yet?" But can someone legally ask you about your vaccine status? Or is that a violation of your Health Insurance Portability and Accountability Act rights?
Confusion over what HIPAA does and doesn't cover by some public figures has helped shed some light onto the question. When asked about his COVID-19 vaccination status, for instance, Dallas Cowboys' quarterback Dak Prescott said, "I think that's HIPAA." US Representative Marjorie Taylor Greene also responded to questions about whether she's been vaccinated as "a violation of my HIPAA rights." However, both are incorrect.
We'll explain what the HIPAA law is, what it does and doesn't protect, and if someone can ask you about your vaccine status. For more vaccine details, here's what you need to know about COVID-19 breakthrough infections for fully vaccinated people. This information comes from the Centers for Disease Control and Prevention and the US Department of Health and Human Services.
Watch this: What to do if you lose your vaccination card, and how...
What is the HIPAA law?
HIPAA is a federal law that was created to protect sensitive patient health information from being disclosed without the patient's consent or knowledge, according to the Centers for Disease Control and Prevention. It was signed into law in 1996 by former President Bill Clinton as patient details were going electronic.
The law established the HIPAA Privacy Rule, which was issued by the Department of Health and Human Services (HHS) and sets up protections around a person's medical records and sensitive health information. And it gives a patient rights over their health information -- for instance, you have the right to examine and obtain a copy of your own health record.
As defined under the law, health care providers such as doctors and clinics, dentists, health insurance companies, and health care clearinghouses -- what the law calls "covered entities" -- must follow the rules for guarding patient information..
Who isn't required to follow the HIPAA law?
If a business is not categorized as a covered entity as set out in the law, it is not required to follow the HIPAA rules around patient privacy. There are of course other rules that businesses, employers and schools need to follow that protect your privacy. Here's a partial list of which organizations do not fall under HIPAA rules.
- Life insurers
- Worker compensation carriers
- Most schools and school districts
- Many state agencies such as child protective service agencies
- Most law enforcement agencies
- Many municipal offices
Is it a HIPAA violation to ask about your vaccine status?
In most cases, according to experts, not at all. HIPAA does not create a right that you can refuse to disclose health information if requested by an employer or a business -- or in the case of Prescott or Greene, if asked by the media.
According to the HHS, for example, it is not a HIPAA violation for your employer to ask for proof of vaccination. (It would be a violation, however, if your health care provider shared that information with your employer without your consent.) You can of course choose not to provide that information, but there could be consequences if you refuse to disclose your status.
What does HIPAA protect?
This is what the HIPAA law protects, according to the HHS:
- Information your doctors, nurses, and other health care providers put in your medical record.
- Conversations your doctor has about your care or treatment with nurses and others.
- Information about you in your health insurer's computer system.
- Billing information about you at your clinic.
- Most other health information about you being held by those who must follow these laws.
What doesn't HIPAA protect?
Here's what isn't covered under HIPAA, according to the Privacy Rights Clearinghouse organization:
- Your health information in employment records.
- Your health information in education records.
- Health information for someone who's been deceased for more than 50 years.
- Information on you that has been de-identified, where all personally identifiable information has been removed.
Three Americans create enough carbon emissions to kill one person, study finds | Greenhouse gas emissions | The Guardian
Three Americans create enough carbon emissions to kill one person, study finds
The new research builds upon what is known as the “social cost of carbon”, a monetary figure placed upon the damage caused by each ton of carbon dioxide emissions, by assigning an expected death toll from the emissions that cause the climate crisis.
The analysis draws upon several public health studies to conclude that for every 4,434 metric tons of CO2 pumped into the atmosphere beyond the 2020 rate of emissions, one person globally will die prematurely from the increased temperature. This additional CO2 is equivalent to the current lifetime emissions of 3.5 Americans.
Adding a further 4m metric tons above last year’s level, produced by the average US coal plant, will cost 904 lives worldwide by the end of the century, the research found. On a grander scale, eliminating planet-heating emissions by 2050 would save an expected 74 million lives around the world this century.
The figures for expected deaths from the release of emissions aren’t definitive and may well be “a vast underestimate” as they only account for heat-related mortality rather than deaths from flooding, storms, crop failures and other impacts that flow from the climate crisis, according to Daniel Bressler of Columbia University’s Earth Institute, who wrote the paper.
Air pollution caused by the burning of fossil fuels is also directly killing people, with a landmark Harvard University study published in February finding that more than 8 million globally are dying each year from the health effects of toxic air.
“There are a significant number of lives that can be saved if you pursue climate policies that are more aggressive than the business as usual scenario,” Bressler said. “I was surprised at how large the number of deaths are. There is some uncertainty over this, the number could be lower but it could also be a lot higher.”
The research, published in Nature Communications, illustrates the vast disparities in the emissions generated by people’s consumption in different countries around the world. While it takes just 3.5 Americans to create enough emissions in a lifetime to kill one person, it would take 25 Brazilians or 146 Nigerians to do the same, the paper found.
The social, or financial, cost of carbon has become a widely-used metric after its creation by economist William Nordhaus, who subsequently won a Nobel prize, in the 1990s. The measurement calculates the damage caused by a ton of emissions, factored with the ability to adapt to the changing climate.
Under Nordhaus’ DICE model the 2020 social cost of carbon is $37 a metric ton but Bressler’s addition of the mortality cost brings this figure up to $258 a ton. This change to the model would imply that an economically optimal policy would be to radically reduce emissions to reach full decarbonization by 2050, a scenario that has also been backed by climate scientists as one that would avoid the worst ravages of global heating.
“Nordhaus came up with a fantastic model but he didn’t take in the latest literature on climate change’s damage upon mortality, there’s been an explosion of research on that topic in recent years,” said Bressler.
Gernot Wagner, a climate economist at New York University who was not involved in the research, said that the social cost of carbon is a “crucial policy tool” but is also “very abstract”.
“That makes attempts to translate our climate impact into more relatable terms so important,” he said, adding that the new research on the mortality cost shows the “results are certainly dramatic”.
A series of heatwaves has swept the globe over the past month, including the dramatic heat and wildfires in the US Pacific north-west, where temperature records in Seattle and Portland were shattered and caused hundreds of people to die from heat stroke and other related conditions. Scientists say the climate crisis, driven by carbon emissions, is making heatwaves far more frequent and severe.
Bressler said that while his paper looked at the emissions caused by individual activity, the focus should instead be on policies that impact businesses and governments that influence carbon pollution on a societal scale.
“My view is that people shouldn’t take their per-person mortality emissions too personally,” he said. “Our emissions are very much a function of the technology and culture of the place that we live.”