Don’t expel racist chanters—educate them

Oklahoma Fraternity Racist Video
Students at University of Oklahoma protest racist fraternity chant.

A group of fraternity students at the University of Oklahoma found themselves in the national spotlight today when some of their ugliest expressions of anti-Black hostility were shared with the world.

The university president, David Boren, admirably expressed his unequivocal disgust, affirming the unacceptability of such repugnant bigotry in our society and universities.

But President Boren also suggested that he would attempt to expel the students. I think that would be a mistake, if based on these chants alone.

I don’t mean to suggest the chants should be viewed in isolation; it would be premature to conclude, without investigation, that no illegal conduct occurred. The chants could be evidence of a discriminatory membership policy; if so, the fraternity may have broken the law. Racist expression, after all, can be a way of demarcating who is welcome in a given space. It’s worth determining, too, whether other students have been harassed or bullied by these fraternity students. And with news reports that one of the fraternity’s employees is African-American, it’s worth looking into whether he faced discrimination in the workplace—also against the law.

But if an investigation does not identify any illegal conduct, then President Boren should not attempt to expel the students in response to these vile, bigoted chants. Because what’s clear is that these students need to be educated—they need an education that their families, communities, schools, and college have so far failed to give them.

The rest of us need them to receive that education, too. These young students have many decades ahead of them. They might, at some point, be in positions of authority. They might vote. They might have to interact with people of different backgrounds. They might have children.

We would all be better off if they pursued these activities not in the same ignorant state in which they rode that bus, but rather, with an education about the horrific history of anti-Black racism and oppression in this country, and an acute awareness about how racial inequality persists to this day (including through their own actions). There’s no guarantee they will learn or that their minds will be changed, but if anyone has a duty to try, it is their university.

While expelling the students might seem gratifying at first glance, it does little to address systemic racism or to teach a lesson, and may very well backfire.

If the students are expelled, the issue will automatically be re-framed as a debate about free speech and hate speech. If the university faces a lawsuit, there is a good chance it will lose because courts have consistently held that expressions of bigotry, in and of themselves and with very limited exception, are entitled to constitutional protection.

I can think of no worse outcome from this ordeal than the university being forced by a court to cut a check to these fraternity students. The substantial sums of money the university would put into paying lawyers to fight a lawsuit, or paying the fraternity students in the form of a settlement or damages, would undoubtedly be put to better use confronting systemic racism directly, by, for example, ensuring that the school’s curriculum includes required courses about contemporary and historical forms of racism against Black communities and others in the country.

Note: I am commenting strictly about whether the individual students should be expelled for these chants. I am not criticizing the national fraternity’s decision to terminate the chapter. And I am not defending fraternities more generally, given their historical association with various forms of racism, sexism, and elitism. 

Records show CBP sends info on traveler reading habits to FBI

This post was originally published by the Asian Law Caucus and is based on documents obtained and analyzed by ALC. All references to “we” and “our” refer to ALC.

Thumb - FBI Book NotesThe routine is familiar. Your international flight lands in the United States. You are finally home. You grab your luggage and proceed through customs. “Where did you travel? Was it business or pleasure? Welcome home.” For the vast majority of travelers, that’s it. But over 5 million air travelers a year are sent to a “secondary inspection” where an officer may ask detailed questions about their travels and perform a thorough search of their bags.

We regularly advise the community that U.S. citizens have an absolute right to enter the United States. That means a customs officer must let U.S. citizens into the country once they have declared the goods they are carrying and the countries they have visited. During a secondary inspection, however, customs officers might ask intrusive questions about the people you saw abroad, the places you went, information about your relatives and their livelihoods, your life in the United States, or your religious and political views and associations. U.S. citizens are not obligated to answer such non-routine questions to enter to the United States. Aside from proving you are a U.S. citizen and filing a customs declaration with information about the countries you visited, you are not obligated to answer detailed questions about the things you did and the people you saw abroad. (For legal permanent residents and other non-citizens, the situation is more complicated and we recommend consulting an immigration attorney for personalized advice before traveling.)

When a secondary inspection veers away from routine questioning, customs officers are no longer investigating whether you and the contents of your luggage may lawfully enter the country. Instead, they could be conducting an open-ended intelligence-gathering operation. At that point, we recommend U.S. citizens politely assert their right to consult an attorney before answering any questions—the same way you should react if an FBI agent knocks on your door asking to speak with you. If you eventually decide to answer questions from law enforcement, it should be on your terms and with an attorney present to protect your interests.

Many people choose not to speak to an FBI agent without an attorney’s advice if they are visited at home or at work. The government, however, may be doing an end-run around that choice by confronting people at the border when they may feel most vulnerable. We recently obtained government documents proving that a customs officer conducting a secondary inspection might be working at an FBI agent’s behest—and the officer’s detailed notes about your personal life and reading habits may end up in an FBI intelligence file.

Thumb - FBI Order CBPSeveral years ago one of our clients asked for help obtaining a copy of his FBI file under the Freedom of Information Act. He wanted to know why FBI agents kept contacting him to ask questions about the Muslim community in San Francisco. A few years after filing the request, the FBI finally released some records to the client, who has given us permission to publish some of the information to raise public awareness.

You can view the files here and here. (The black redactions are our own, to protect our client’s privacy; the white redactions are the FBI’s.)

Here are some examples of the kind of information that ended up in our client’s FBI file after secondary inspection at San Francisco International Airport:

  • Detailed information about the books in his bags, including descriptions of the authors based on information the customs officer apparently found on the Internet
  • The name of the mosque he attends in the United States
  • That his wife was 3 months pregnant and her address in a European country
  • His employer’s name and information about his annual salary
  • His plans to buy land in his country of origin
  • Information about who he saw abroad, including details like how long they met for coffee and what they did together
  • His roommates in the United States and their jobs, including information about the primary renter on the lease
  • His educational aspirations and information about financial difficulty leading him to look for cheaper rent
  • Notes from his passport, including information about his travel history
  • His debit card number, found in his wallet
  • His bank account number, taken from a check found in his luggage

Courts have held that customs officers have the right to search all your belongings when you enter the United States, whether or not you are a U.S. citizen. But it’s another thing to see detailed notes about the contents of your luggage in an FBI file, especially when there is nothing remotely criminal about them or your activities.

In our client’s case, the results are clearly intrusive. That you and your wife may be expecting a child is certainly none of the FBI’s business. And neither are your reading habits. The customs officer took meticulous notes about the books in our client’s baggage, commenting that they “related to Salafist ideology” and noting one author “has come out and condemned the United States as an infidel country.” These conclusions were apparently based on the officer’s “open source internet checks”—in other words, something like a Google search. All that information—based on error-prone Internet research—ended up in our client’s FBI file, which now includes potentially prejudicial information. What is not mentioned in the FBI file is that books by the same authors found in our client’s bags can also be found in the library at UC Berkeley and Stanford University—and, of course, that most people consider reading to be a form of education, not criminal activity.

When innocuous information about your intimate family life and your constitutionally-protected reading activities ends up in an FBI file, where it is open to mis-use or mis-interpretation, the importance of knowing your rights and exercising them becomes all the more clear. Exercising your right to counsel and your right to remain silent may not only protect your privacy, but also the privacy of your friends, family, and others. Had our client exercised his right to limit the scope of conversation or to request an attorney, the statements he made during the interview would not have ended up in law enforcement intelligence files.

Another important reason to exercise your rights and to limit the scope of conversation with law enforcement officers is that knowingly making a false statement to a federal law enforcement officer may be a felony. Think about how detailed our client’s customs interview became. It is not hard to see how an exhausted traveler might forget some details about a trip, including who they saw, how long, the name of a landmark they visited, and other information. Such mistakes might be construed as intentional misrepresentations and have the potential to lead to criminal charges. That possibility can be avoided by continuing a conversation only with the help of an attorney.

For more information, consult an FBI Know Your Rights pamphlet jointly published with CAIR-SF Bay Area and the ACLU of Northern California, or contact us to schedule a Know Your Rights presentation in your community.

The shocking parallels between Hassan v. New York and Korematsu v. U.S.

A sign posted in a New York Muslim Student Association office referring to an Associated Press story revealing NYPD's surveillance of Muslim communities.
A sign posted in a New York Muslim Student Association office referring to an Associated Press story about NYPD’s surveillance of Muslim communities.

This Thursday, the Third Circuit Court of Appeals will hear an appeal concerning a case brought by Muslim-Americans in New Jersey who alleged the New York Police Department violated their rights by spying on them and their mosques on the basis of their religion alone, without any evidence of wrongdoing.

The case, Hassan v. City of New York, is one of two legal challenges to the NYPD’s notorious Muslim spying programHassan is brought by residents of New Jersey; a second case, Raza v. City of New York, is brought by residence of New York and is still being litigated.

Last year, I presented a paper at an Islamophobia studies conference arguing that  the Supreme Court’s reasoning in two World War II-era cases upholding the discriminatory treatment of Japanese-Americans lives on, animating the legal treatment of cases involving discrimination against Muslim-Americans. The cases were Hirabayashi v. United Stateswhich upheld military curfew orders forbidding Japanese-Americans in the West Coast from leaving their homes between 8pm and 6am, and Korematsu v. United Stateswhich upheld the internment of over 117,000 Americans in concentration camps based on their Japanese ancestry alone. Since World War II, these cases have been universally denounced by establishment figures, and in 1988, Congress formally apologized for the internment of Japanese-Americans and granted modest reparations to the survivors of internment.

In my paper, I argued that the district court order dismissing Hassan  had disturbing parallels to the Supreme Court’s reasoning in Hirabayashi and Korematsu—that the racial and legal logic of these cases animates, without citation or acknowledgment, the logic of many post-9/11 cases concerning anti-Muslim government practices.

The judge’s February 2014 order dismissing Hassan explained that plaintiffs,

have not alleged facts from which it can be plausibly inferred that they were targeted solely because of their religion. The more likely explanation for the surveillance was a desire to locate budding terrorist conspiracies. The most obvious reason for so concluding is that surveillance of the Muslim community began just after the attacks of September 11, 2001. The police could not have monitored New Jersey for Muslim terrorist activities without monitoring the Muslim community itself…. [T]he motive for the [spying] Program was not solely to discriminate against Muslims, but rather to find Muslim terrorists hiding among ordinary, law-abiding Muslims.

As the plaintiffs’ appeal argues in part, it’s improper for a judge contradict a lawsuit’s allegations (which are normally assumed to be true at this stage of a lawsuit) to come to this conclusion, before even providing the plaintiffs with an opportunity to collect and present evidence to make their case.

In other words, the judge’s ruling makes an empirical judgment about the NYPD surveillance program’s actual motives without an empirical inquiry into the evidence. In place of evidence, the opinion appears to rely on a casual equivocation between Muslims and terrorism. In other words, there’s no reason to look at the evidence because “everyone knows” Muslim communities at large need to be surveilled because of terrorism.

A page from an amicus brief filed by relatives of Fred Korematsu and Gordon Hirabayashi urging the appellate court to permit the Hassan case to proceed.
A page from an amicus brief filed by relatives of Fred Korematsu and Gordon Hirabayashi comparing the district court’s reasoning in Hassan to the Supreme Court’s Japanese internment cases.

This reasoning has shocking parallels to the World War II cases upholding discrimination against Japanese-Americans. In Hirabayashi, the race-based curfew case,  the Supreme Court treated national origin/ethnicity as a self-evident basis for criminality. The Court noted that while “racial discriminations are in most circumstances irrelevant and therefore prohibited,” in “the crisis of war,” the rule does not apply “based upon the recognition of facts and circumstances which indicate that a group of one national extraction may menace that safety more than others.” Thus, “[t]he fact alone that attack on our shores was threatened by Japan rather than another enemy power set these citizens apart from others who have no particular associations with Japan.”

This reasoning was not based on evidence, but rather, a form of logic that treated Japanese ancestry as cause for suspicion in and of itself. If this explanation is to be taken seriously, then it is worth asking why American citizens of German or Italian origin were not also placed under curfew or forced to concentration camps for the duration of the war. (Hint: racism. The Hirabayashi court explained that Japanese-Americans might be a source of suspicion because of their failure to “assimilat[e] as an integral part of the white population,” as signified by the attendance of Japanese children at “Japanese language schools…. [s]ome of which are generally believed to be sources of Japanese propaganda, cultivating allegiance to Japan,” and so on.)

The Korematsu court also treated Japanese ancestry as a basis for suspicion in and of itself—even while vigorously denying it was racist to do so. The Court argued that “[t]o cast this case into outlines of racial prejudice, without reference to the real military dangers which were presented, merely confuses the issue.”  Korematsu was not excluded from the Military Area because of hostility to him or his race,” but rather, “because we are at war with the Japanese Empire.”

In all three instances—Korematsu, Hirabayashi, and Hassan—the legal reasoning attempts to explain away potential prejudice by pointing to “facts” that apparently provide an alternative explanation.

In Korematsu and Hirabayashi, those “facts” turned out to be utterly false. In the 1980s, a bipartisan federal commission appointed by Congress to investigate the internment of Japanese-Americans during World War II concluded in a report called “Personal Justice Denied” that,

The promulgation of Executive Order 9066 [permitting curfews and internment] was not justified by military necessity, and the decisions which followed from it—detention, ending detention and ending exclusion—were not driven by analysis of military conditions. The broad historical causes which shaped these decisions were race prejudice, war hysteria, and a failure of political leadership. Widespread ignorance of Japanese Americans contributed to a policy conceived in haste and executed in an atmosphere of fear and anger at Japan. A grave injustice was done to American citizens and resident aliens of Japanese ancestry who ,without individual review or any probative evidence against them, were excluded, removed and detained by the United States during World War II.

The plaintiffs in Hassan claim that NYPD’s surveillance of their communities was not based on the evidence either but, rather, on their religion. They may be able to prove their case if given the opportunity to collect and present the evidence for review by a court. But it opens the door to injustice to turn a blind eye, as the district court did here, based on pernicious racial logic.

No, you can’t make it illegal for California professors to disagree with you

A plaque at the University of Wisconsin honors the idea of academic freedom.
A plaque at the University of Wisconsin honors the idea of academic freedom.

Two right-wing activists are calling on California Attorney General Kamala Harris and the Legislature to investigate California professors who have publicly advocated for the so-called academic boycott of Israeli educational institutions. They claim California tax dollars “are funding the promotion of the boycott of Israel” because these professors, by expressing their views, are using “their state university’s name and taxpayer-funded resources to promote a boycott of Israeli universities and scholars.”

But their claims, on their own terms, make no sense. For in the same breath, the authors praise leaders of California universities like UC Berkeley Chancellor Nicholas Dirks and UC President Janet Napolitano (of deportation infamy) for, they say, along with “more than 200 university leaders,” condemning a resolution by the American Studies Association “endors[ing]” and “honor[ing]” that boycott.

Unlike individual professors who can do no more than speak for themselves, whether through a vote or lecture, both President Napolitano and Chancellor Dirks present their condemnation of the boycott idea as the university’s official point of view. In other words, they are public officials using “their state university’s name and taxpayer-funder resources,” like UC’s website and their communications teams, to promote a political view they support.

The last thing these right-wing activists want, then, is for anyone to take their position seriously, that public university officials and academics are forbidden from expressing their views on disputed issues like the proposed boycott from their posts. Because they do not want Chancellor Dirks or President Napolitano or professors to remain silent about this issue. They want condemnations so loud and clear they can then cite them to convince legislators to make it illegal for professors at public universities to express alternative views on the topic—a clear-cut case of marshaling the state’s resources to enshrine a political orthodoxy by punishing one viewpoint (support of a boycott) while amplifying the opposing viewpoint (opposition to a boycott).

Not to mention that punishing university professors for having opinions about contentious issues is like fining a baker for making bread. One aspect of an academic’s job is to contribute to a public body of knowledge by developing informed opinions and ideas through research and study, not to come to a consensus, tow a party line, or satisfy the public or political interest groups’ pre-existing views. Their task is not artificially constrained to limited areas of expertise or so-called non-political issues, forbidding them from commenting on current events. (Case in point: Alan Dershowitz, the criminal law professor who has also made a career as an ardent defender of Israel, and torture with a “sterilized needle underneath the nail,” but that’s another matter.) That straightjacket would deprive the public of insights from people of knowledge, leaving the public arena to politicians, wealthy businesspeople, and others who hold the reins of power. And it would reflect a world entirely different from our own, where university professors are often featured in television interviews, quoted in newspapers, or published in the op-ed columns to make sense of current affairs.

I am not making a case for or against an academic boycott. I am simply arguing that the government should leave professors and academics alone so they can make their arguments, on any issue and from any perspective, on the merits. Political favoritism, where some political viewpoints are rewarded by the government but others are punished if not banned, is forbidden by the First Amendment and runs afoul of the values necessary not only for free universities, but also a free society. All Californians, regardless of their views on U.S. foreign policy or Israel and Palestine, should recognize this fundamental point.

Racist jokes draw the color line

Segregated Water Fountains in the United StatesFor the most part, public and explicit expressions of extreme hate or animosity towards racialized groups of people are pretty easy to identify as wrong. Despite this, in certain spaces, the infamous ‘harmless racist joke’ persists because, as the defender says, it is not to be taken as a serious communication of ill-will.

Examples of these jokes can sound something like this (and I apologize for repeating them): [Edit 3/9/2015: I have removed the examples because nobody needs them, and I found them too grotesque to re-publish.]

Of course, the person delivering this joke loves to glamorize him/herself as a bold hero who is not afraid of “being offensive” and won’t let something silly like “political correctness” get in the way of his/her free speech. In this First Amendment martyr’s world, not only should it simply be legal to tell the racist joke, but it’s also a moral duty to do so. It’s only humor, after all. Continue reading “Racist jokes draw the color line” »