Habib Olapade – The Stanford Daily https://stanforddaily.com Breaking news from the Farm since 1892 Tue, 20 Jun 2017 06:16:20 +0000 en-US hourly 1 https://wordpress.org/?v=6.4.3 https://stanforddaily.com/wp-content/uploads/2019/03/cropped-DailyIcon-CardinalRed.png?w=32 Habib Olapade – The Stanford Daily https://stanforddaily.com 32 32 204779320 It’s time for Trump to ditch his counsel https://stanforddaily.com/2017/06/19/its-time-for-trump-to-ditch-his-counsel/ https://stanforddaily.com/2017/06/19/its-time-for-trump-to-ditch-his-counsel/#respond Tue, 20 Jun 2017 06:16:20 +0000 https://stanforddaily.com/?p=1128999 Our Commander-in-Chief will only be as effective as his lawyers permit him to be. Nearly four months into Donald Trump’s presidency, it is unclear, though, whether his White House Counsel, Don McGahn is up for the job.

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The White House counsel plays a critical role in modern administrations. She or he, at a minimum, is expected to perform four tasks. First, the counsel must ensure that executive staffers and nominees comply with ethics requirements. Second, the counsel should provide legal advice that properly balances the current President’s short term political interests, the Executive Branch’s long term prerogatives and the public good. Third, it is generally good practice for counsels to refrain from participating in substantive policy debates; if they do not, other executive branch aides may lose confidence in the counsel’s professional objectivity and suspect that her legal positions harbor political bias. White House counsels are lawyers, not clients. Finally, the counsel must solicit and coordinate agency perspectives when formulating legal opinions.

Our Commander-in-Chief will only be as effective as his lawyers permit him to be. Nearly four months into Donald Trump’s presidency, it is unclear, though, whether his White House Counsel, Don McGahn is up for the job. One could argue that the blame for Michael Flynn’s resignation, the White House’s lackluster approach to ethics clearance and the recent immigration executive order fiasco lies at McGahn’s feet. A brief overview will illustrate this point.

Before Mr. Trump’s inauguration, Michael Flynn’s lawyers informed McGahn that Flynn and his consulting firm, Flynn Intel Group, had provided lobbying, public relations and research services for a Dutch corporation, Inovo BV, during the campaign. Inovo is owned by Ekim Alptekin, a Turkish businessman, with close connections to Turkish President Recep Tayyip Erdogan. After receiving this notification, McGahn did not take further action, despite the fact that it is rather unusual for a top national security official to work for a foreign state’s benefit. Indeed, Flynn’s actions may have been influenced by Turkish officials because his firm publicly supported the extradition of Fethullah Gulen, a cleric suspected of fomenting a coup d’etat, back to Turkey. Since the 1990s, Gulen has resided in Pennsylvania because the Clinton, Bush and Obama administrations all determined that the coup charges were meritless.

Flynn did not violate any federal statutes because his consulting firm properly registered its activity under the Lobbying Disclosure Act (LDA). McGahn did not know about the LDA registration, however, which means that he should have forced Flynn to disclose his activities under the Foreign Agents Registration Act (FARA). FARA requires U.S. firms that provide services principally benefiting foreign governments, to disclose their work to the Justice Department. Correctly resolving this matter could have alerted senior administration officials about Flynn’s previous business activities as well as the likelihood that he could be compromised.

McGahn’s ethics compliance blunders extend beyond Flynn, though. On February 9, Kellyanne Conway, special counsel to the President, appeared on Fox & Friends in a tight frame between the official White House seal and the American flag urging viewers to “go buy Ivanka [Trump’s] stuff” because “it’s a wonderful line.” This endorsement violated two federal regulations and two standing ethics Executive Orders issued under George H.W. Bush and Trump, himself, prohibiting officials from using public office for personal enrichment. Indeed, the federal government’s handbook on ethics violations lists commercial endorsements as a per se violation of ethics rules. This problem is compounded by the fact that the President has decided to retain ownership interests in his global and national businesses while temporarily handing over control to his children. The White House counsel is responsible for ensuring that Trump complies with ethics rules and that the public is aware of this compliance. Because most of the counsel’s job deals with ethics compliance, McGahn’s effectiveness, or lack thereof, can be assessed on this factor alone.         

McGahn’s mistakes are not simply internal. After U.S. District Court Judge James Robart enjoined the Trump administration from enforcing its immigration executive order, Trump took to Twitter to question Judge Robart’s competence, attack the judiciary’s independence and blame judges for national security threats. McGahn did nothing to stop Trump’s tweet storm. Three things are also troubling here. First, the Executive Order was issued quickly without proper agency coordination and a media strategy. Second, the tweets were counterproductive because courts usually defer to the executive’s national security claims. Antagonizing judges will only make it harder for them to rule in his favor and trust the President’s integrity, truthfulness and motivations. Third, McGahn improperly tried to influence litigation over the Executive Order’s meaning by issuing a memorandum directing agency heads to not apply it to Green Card holders — a move that he was not authorized to perform. If the White House wanted the courts to uphold the Executive Order, its behavior did not suggest that.  

McGahn has also failed to properly brief President Trump on the contents of the Executive Orders he has signed. Trump, for instance, was reportedly not told about an Executive Order provision placing Steve Bannon on the National Security Council. Substantive matters aside, Presidents, at a minimum, must have accurate reports summarizing the documents they approve.   

What are we to make of this? Harvard Law School Professor Jack Goldsmith suggests two answers. First, McGahn could be incompetent and we are witnessing a series of serious lapses. This explanation is unlikely, though, because McGahn worked in high level positions for the Republican Congressional Campaign Committee and the FEC for the past 15 years and both positions require attention to detail and extensive familiarity with ethics rules. What is more likely, is that McGahn is unable to properly advise President Trump because others have his ear, Trump does not feel the need to seek prior legal advice or McGahn’s personality does not mesh well with others in the administration. Whatever the reason, the White House needs to find a solution sooner rather than later.

 

Contact Habib Olapade at holapade ‘at’ stanford.edu.        

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Citizenship: a not-so-inalienable right? https://stanforddaily.com/2017/06/02/citizenship-a-not-so-inalienable-right/ https://stanforddaily.com/2017/06/02/citizenship-a-not-so-inalienable-right/#respond Fri, 02 Jun 2017 07:57:26 +0000 https://stanforddaily.com/?p=1128827 What most observers have not realized, however, is that Trump has pivoted from executive orders and is now advancing his agenda with aggressive legal positions in deportation hearings.

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Citizenship is a precious right. While many Americans were blessed with that right by virtue of their birth, others have obtained citizenship through naturalization. Throughout our history, naturalized citizens such as Andrew Carnegie, Madeleine Albright, Felix Frankfurter, Albert Einstein, Wayne Gretzky and Mikhail Baryshnikov have enriched every area of our national life including business, government, law, science, sports and the arts.

The Trump administration’s nativist policies do not seem to account for these positives. Most liberals and moderates have not been phased, though, because multiple federal courts have imposed injunctions on the president’s immigration executive orders. What most observers have not realized, however, is that Trump has pivoted from executive orders and is now advancing his agenda with aggressive legal positions in deportation hearings.  

Take the case of Divna Maslenjak, an ethnic Serbian born and raised in modern-day Bosnia. After the former Yugoslavia’s collapse in the early 1990s, armed clashes broke out between Bosnia’s majority Muslim and minority Serb populations. In April 1998, Maslenjak, her husband, Ratko, and her two children traveled to Belgrade to meet with an American immigration official assisting refugees. The Maslenjaks received asylum status in the United States by convincing the government that Ratko would be drafted into the Bosnian Serb army against his will if they remained in Yugoslavia.       

She lied. During the asylum petition period, Ratko was already serving in the Bosnian Serb army as a company commander in the Bratunac Brigade. Indeed, he was tangentially involved in the genocide of 8,000 Bosnian Muslims in Srebrenica. Although the records did not directly implicate Ratko in war crimes, they do demonstrate that he was participating in active duty on the date the genocide occurred and was promoted to a higher rank two months later. Ratko was subsequently arrested for, and convicted of, making false statements to immigration officials, subjecting him to mandatory deportation. Ratko filed another petition for asylum but during his hearing, Divna admitted that she initially lied about his participation in the Bosnian army. After this confession, the government sought to deport Divna under 18 U.S.C. 1425, which states that the government may strip a naturalized American of her citizenship when she obtains it by violating a federal law. In this case, Divna violated 8 U.S.C. 1427, which prohibits individuals from giving false testimony in order to receive an immigration benefit.

The Maslenjaks are not exactly plaintiffs who arouse sympathy — which is exactly why the administration is seeking to capitalize on this situation. Trump’s Justice Department is asking the Supreme Court to interpret 18 U.S.C. 1425 so as to permit denationalization whenever a citizenship applicant lies on their petition files — regardless of how immaterial the lie is. The government’s position is not simply inhumane, it could also have drastic consequences. This is so because the government’s position would permit federal prosecutors to denaturalize anyone — potentially conferring unlimited discretion on justice department officials. For instance, during oral argument, Chief Justice Roberts tried to test the limits of the government’s position with a hypothetical. Citizenship applicants must complete an N-400 application for naturalization, which among other things, asks the candidate to state whether she or he ever committed a criminal offense, however minor, regardless of whether there was an arrest. Chief Justice Roberts admitted that quite some time ago he drove sixty miles per hour in a fifty-five mile-an-hour zone. He inquired whether a naturalized citizen who did not report this incident on their N-400 application but lived in the nation for twenty years could suddenly be deported for this white lie. Justices Kagan and Sotomayor asked if a self-conscious female applicant who understated her weight could also be denaturalized under the government’s theory.

Mr. Parker responded that the government could denaturalize an applicant under both circumstances — provoking visible indignation from every bench member except Justices Thomas and Gorsuch. Disgusted, Justice Kennedy commented that the government’s argument “demean[ed] the priceless value of citizenship.” Justice Breyer admitted that it was “rather surprising that the [U.S. government thinks naturalization laws should be] interpreted in a way that would throw into doubt the citizenship of a vast percentage of the population.”           

18 U.S.C. 1425’s text also suggests a more natural reading. The government should only be permitted to denaturalize a citizen under this provision if it can prove that the resident obtained citizenship because of the violation. While this standard would not save the Maslenjaks, it would prevent the current administration from deporting citizens for baseless reasons such as lies about minor traffic violations or weight gain.      

Finally, constitutional concerns could arise if 18 U.S.C. 1425(a) was interpreted to require errorless naturalization filings. The Constitution expressly authorizes Congress to “establish a uniform rule of naturalization.” This general grant to confer citizenship, however, generally does not permit Congress to strip natural born or naturalized Americans of their citizenship. There are two exceptions to this rule, though. An American can lose their citizenship provided she (1) voluntarily renounces allegiance to the union or (2) unlawfully procures naturalization. Because federal courts presume that immigration statutes and regulations ultimately seek to “secure the blessings of liberty … to all those upon whom the right of American citizenship has been conferred,” during denaturalization proceedings, immigration statutes are interpreted as far as reasonably possible to favor the citizen. Therefore, even if readers believed that there was a close case between the government’s position and the more natural reading for the statute, this ambiguity should be resolved in the citizen’s favor. Deportation agents have better things to do than concern themselves with trifles.           

 

Contact Habib Olapade at holapade ‘at’ stanford.edu.

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A unicorn that shouldn’t exist https://stanforddaily.com/2017/05/26/a-unicorn-that-shouldnt-exist/ https://stanforddaily.com/2017/05/26/a-unicorn-that-shouldnt-exist/#respond Fri, 26 May 2017 07:32:04 +0000 https://stanforddaily.com/?p=1128062 Although the beverages are well-nigh indistinguishable in appearance, Starbucks did not approach The End for permission to use the Unicorn Latte name.

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On the corner of Union and Metropolitan Avenues in Williamsburg, Brooklyn sits The End, a coffee and blended beverage shop. The store sells healthy colorful beverages such as the Radiance Beauty Latte, made with a ginger and turmeric-based radiance dust, and Bonfire Cider, an ayurvedic blend of carrot, apple, cayenne, turmeric, ginger and raw honey. In spring of 2016, The End’s manager, Madeline Murphy, invented the Unicorn Latte, a freshly made blended beverage containing cold pressed ginger, lemon juice, dates, cashews, maca root, blue-green algae and vanilla bean. After six months of development and consumer testing, The End launched the Unicorn Latte in December of 2016, and it has accounted for 25 percent of the store’s revenue since January 2017.

The beverage became an instant success. Unicorn Lattes were featured in The New York Times’ style magazine, The Huffington Post, TimeOut magazine, Metro UK, Lonely Planet, New York Live TV, NBC New York, Facebook and Instagram. New York taxi cabs even promoted the beverage in their backseat televisions. Unicorn Lattes have broad appeal: They’re relatively popular among health conscious drinkers because they do not contain cow’s milk, processed sugar or food dye, but the beverage also fits within the current trend of colorful foods such as Unicorn Noodles, Rainbow Bagels and Mermaid Toast. In January, Murphy registered the name “Unicorn Latte” with the United States Patent and Trademark Office to capitalize on her product’s potential.

The beverage may have been too successful. During mid-April, rumors began circulating that Starbucks would launch its own “flavor-changing, color-changing, totally not-made-up” coffee drink. Later that month, Starbucks aggressively launched, promoted and sold Unicorn Frappuccinos in 13,000 U.S. stores and 2,000 other stores in Canada and Mexico. This unholy concoction of milk, artificial sweeteners, color additives and fruit juice flavor concentrate contains 410 calories, 59 grams of sugar and 16 grams of fat.

In addition to having similar names, both coffee drinks featured brightly colored blue and pink hues. The End’s customers immediately became confused over the Unicorn Frappuccino’s origin. Customers also assumed that The End’s product was unhealthy after Starbuck’s Unicorn treat was mocked on social media for its odd appearance and disappointing taste. Although the beverages are nigh indistinguishable in appearance, Starbucks did not approach The End for permission to use the Unicorn Latte name. As a result, Murphy filed a federal lawsuit claiming that Starbucks infringed and diluted her trademark property under federal and state law.

Federal and New York law permit firms to prevail on trademark infringement and dilution claims so long as (1) the plaintiff owns a valid, protectable trademark name, (2) the defendant uses the trademark in commerce without the plaintiff’s authorization and (3) the defendant’s use of the trademark causes consumer confusion and harms the trademark’s reputation.

The End’s Unicorn Latte trademark was valid and protectable because it acquired distinctiveness through continuous and substantial use over time. Furthermore, there is no question that Starbucks imitated Madeline Murphy’s trademark in commerce. All that remains, therefore, is the consumer confusion criterion.  

New York courts assess consumer confusion by examining several factors, such as: (1) trademark strength, (2) trademark similarity, (3) product proximity and competitiveness, (4) evidence of actual consumer confusion and (5) evidence that the imitative mark was adopted in bad faith.

Murphy’s Unicorn Latte trademark had acquired strong consumer recognition in the New York market. The Unicorn Latte and Unicorn Frappuccino are virtually indistinguishable from one another and were sold in the same market. The End’s customers were misled about the Unicorn Latte’s origin after Starbuck’s coffee campaign, and Starbucks made no effort to secure Murphy’s permission before launching its new beverage. Widespread consumer uncertainty, moreover, caused patrons to associate the Unicorn Frappuccino’s unhealthfulness with the Unicorn Latte. Katy Perry, for instance, was spotted “spitting out Starbuck’s Unicorn Frappuccino after one sip,” and Instagram users urged others to “forget the gross #UnicornLatte from @Starbucks!”   

America thrives when its small businesses thrive. Intellectual property laws protect and reward ingenuity and creativity in our firms. Multinational companies play an important role in our society, but we cannot allow scale economies to stymie competitive startups that have better ideas and business methods. Starbucks’ trademark infringement must come to an end.        

 

Contact Habib Olapade at holapade ‘at’ stanford.edu.

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Revisiting Trump’s rallies in the courtroom https://stanforddaily.com/2017/05/19/revisiting-trumps-rallies-in-the-courtroom/ https://stanforddaily.com/2017/05/19/revisiting-trumps-rallies-in-the-courtroom/#respond Fri, 19 May 2017 07:37:15 +0000 https://stanforddaily.com/?p=1127762 Rightful ire directed towards Trump should not prompt liberals to weaken the presidency as an institution with imprudent suits.

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On March 1, 2016, Kashiya Nwanguma, Molly Shaw and Henry Brousseau entered a Donald Trump rally at Kentucky International Convention Center in Louisville. While the vast majority of people who attended Mr. Trump’s rally were there to support him, a small minority came to heckle Trump and his supporters, cause disruptions and protest peacefully.

Nwanguma, Shaw and Brousseau attended the rally with the intention of conducting a peaceful, albeit lewd protest. Nwanguma, for instance, held up a sign depicting Mr. Trump’s face on a pig’s body while Shaw and Brousseau stood in solidarity with her. The disruption was severe enough to distract Mr. Trump from his position on the dais – prompting the Republican candidate to command his security guards to “get them out of here.” Trump explicitly stated, however, that his staff were not to “hurt them.”

Mr. Trump’s plea fell on deaf ears. Upon hearing Trump’s expulsion order, Matthew Heimbach and Alvin Bamberger, two private citizens and rally attendees with no employment relationship to the Trump campaign, took it upon themselves to remove Nwanguma, Shaw and Brousseau from the rally by shoving, pushing, assaulting and shouting at them. Shaw experienced pain and difficulty sleeping for several days after the rally and Brousseau was forced to cope with anxiety and nightmares. Two months later, the trio filed a suit in the United States District Court for the Western District of Kentucky claiming that (1) Trump had incited a riot in violation of Kentucky law and (2) that Heimbach and Bamberger’s actions amounted to assault and battery. Only the second claim has merit. This case is particularly important because sitting presidents should not be forced to devote scarce resources and time to vexatious and wasteful lawsuits that were filed before their term. Rightful ire directed towards Trump should not prompt liberals to  weaken the presidency as an institution with imprudent suits.  

Mr. Trump did not incite a riot. Kentucky law makes it a crime to incite several persons in an uprising. In Kentucky, the legal definition of a riot is “a public disturbance involving an assemblage of five or more persons who, by tumultuous and violent conduct, create great danger of damage or injury.” Two key elements of this offense are wanting here. First, only two individuals, Heimbach and Bamberger, were engaging in violence. Two does not make five. Second, the rally was not overwhelmed with tumultuous and violent commotion.

Even assuming that Mr. Trump’s actions did violate Kentucky’s riot statute, however, he cannot be subject to criminal sanctions because he was giving a political speech, which is protected First Amendment activity. Political campaigns have a First Amendment right to hold rallies that exclude individuals with views at odds with the campaign’s positions. Nwanguma and her peers disrupted the rally with a grotesque sign and security subsequently determined that they were trespassers on the Trump campaign’s property. Kentucky law permits landowners to “use that degree of force necessary … under the circumstances to eject an unwelcome trespasser from [a] premise.” The Supreme Court has held that the state may not “proscribe advocacy of the use of force … except where such advocacy is directed to inciting or producing imminent lawless action and is likely to produce such action.” Federal courts in Kentucky require that speech (1) explicitly or implicitly intend to encourage the use of violence and (2) be likely to result in violence in order to meet this standard. The first condition, intent, has not been met – indeed, Trump instructed his security guards, not Heimbach and Bamberger, to “not hurt” anyone.

But, Trump’s security forces did not eject the three protesters – Heimbach and Bamberger did. While the president may not be liable for any damages, these two present different issues.

Matthew Heimbach and Alvin Bamberger are not choir boys. Heimbach is a member of the Traditionalist Worker Party, recognized as a hate group by the Southern Poverty Law Center, whose goal is to terminate racial integration and inter-racial marriages. He has publicly stated that he wants to “make Jews around the world quake in their boots” and was banned from entering the United Kingdom last year because the conservative government feared that he would foster “hatred” and “inter-community violence” in the country. Both men shouted “n#%!@*” and other racially profane remarks at the protesters before repeatedly striking them. After the rally, Heimbach, displaying his brilliant criminal mastermind, proudly proclaimed on social media that “there’s some viral footage of several heated moments in Louisville. One features yours truly helping the crowd drive out one of the [protesting] women.” Bamberger also confessed that he “physically pushed [Nwanguma] down the aisle toward the exit.” He, however, expressed that it was an “action [he] sincerely regretted.”  

Contrition is nice. Sticks and stones, though, do break bones. Under Kentucky law, an aggressor may be forced to pay his victim civil damages for battery and assault if he engages in “unlawful touching” “intend[ed] to cause harmful contact.” Heimbach and Bamberger both admit that they placed their hands on their three protesters and the event’s circumstances make clear that they intended to harm the trio. Heimbach and Bamberger are hosed.

 

 

Contact Habib Olapade at holapade ‘at’ stanford.edu.

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Sex-sensitive payrolling https://stanforddaily.com/2017/05/15/sex-sensitive-payrolling/ https://stanforddaily.com/2017/05/15/sex-sensitive-payrolling/#respond Mon, 15 May 2017 07:16:46 +0000 https://stanforddaily.com/?p=1127445 Habib Olapade argues that payroll practices that base current salaries on previous earnings are discriminatory because women already earn less than men.

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Unequal pay for equal work is morally and legally unjust. Take an example: Aileen Rizo began working as a STEM consultant with the Fresno County Schools in the fall of 2009. Because Fresno’s school salary schedule bases new employee pay on prior income regardless of other qualifications, Rizo’s previous salary was used to calculate her new wage. Fresno pays new employees a five percent premium in order to attract and retain quality teachers.

When she was hired, Rizo had a bachelor’s degree in mathematics education, masters’ degrees in educational technology and mathematics education and close to 10 years experience teaching middle and high school math and designing math curricula. Rizo earned $50,630 per year, plus an annual master’s degree stipend in Arizona. Rizo’s adjusted salary, however, was lower than Fresno’s minimum starting salary, so her annual income was set at $62,133 with a $600 master’s degree stipend. Rizo testified that she was assured her salary “was comparable to [consultants] with as much experience as [she] had.”

It wasn’t. On July 31, 2012, Rizo was having lunch with two male colleagues, Eric Crantz and Mike Chamberlain, and learned that both earned almost $10,000 more than her. This was so notwithstanding the fact that all three performed the exact same job, and Rizo was the most educated and qualified of the trio. Crantz was paid $79,088, and Chamberlain was paid $73,832. On August 12, Rizo complained to a human resources administrator, but her complaint was promptly dismissed. Shortly thereafter, Rizo sued Fresno claiming that its discriminatory salary schedule violated the Equal Pay Act.  

Rizo’s suit was unsuccessful. Equal Pay Act actions proceed in two steps. First, the plaintiff must prove that she and her male co-workers are receiving different wages for equal work. If the plaintiff satisfies this requirement, the burden shifts to the employer, who must show that the wage disparity is due to (1) a seniority system, (2) a merit system, (3) a system which measures earnings or quantity or quality of production or (4) a differential based on any other factor other than sex. Any justification must reasonably promote some business policy. Rizo was clearly receiving unequal pay for equal work. Fresno, however, claimed that its salary schedule (1) promoted objective wage decisions and incentivized quality teachers to come work for the school district. Since 1982, moreover, federal courts in California have held that employers may pay women less than men for equal work so long as the discrepancy arises from a salary schedule based on an employee’s prior income.  

This isn’t right. Decisions permitting discriminatory salary schedules based on previous wages were originally erroneous, are no longer sound because of new conditions and do more harm than good. Prior salary alone cannot be a factor removed from sex because when an employer sets pay by considering only its employees’ prior salaries, it perpetuates existing pay disparities and thus undermines the Equal Pay Act’s purpose. The Equal Pay Act was intended to remedy a serious and endemic problem — the fact that the wage structure of many American industries has been based on an ancient but outmoded belief that a man, because of his role in society, should be paid more than a woman even though his duties are the same.  Indeed, women’s earlier salaries are likely to be lower than men’s because of gender bias. On average, male primary and secondary school teachers earn $120 more than their female coworkers per month despite the fact that women hold 80 percent of such jobs. Furthermore, in California, women earn close to 86 cents for every dollar a man earns.

Fresno has two responses. First, the county tells us that it must pay men more because they will not accept less. Second, Fresno insists that its salary schedule attracts the best teachers. Both counters are unavailing. Male entitlement is not an excuse for perpetuating the discrimination Congress intended the Equal Pay Act to end. And Fresno’s fixation with prior earnings is not an ideal proxy for job experience. Under Fresno’s current system, a woman with a doctorate in curriculum development earning $50,000 annually would be paid less than a Silicon Valley tech worker with no education experience but a $80,000 prior salary. Fresno fails morally and legally.   

 

Contact Habib Olapade at holapade ‘at’ stanford.edu

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The lights are on but nobody’s home https://stanforddaily.com/2017/05/10/the-lights-are-on-but-nobodys-home/ https://stanforddaily.com/2017/05/10/the-lights-are-on-but-nobodys-home/#respond Wed, 10 May 2017 07:12:32 +0000 https://stanforddaily.com/?p=1127261 Unfortunately, a compelling body of evidence suggests that branches of Bank of America and Wells Fargo in South Florida breached prohibitions on discriminatory lending during the subprime mortgage crisis.

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Banks should not make discriminatory loans. Financial institutions are expected to extend credit to minorities on the same terms that they do with other, similarly situated borrowers. Banks are also encouraged to refrain from maliciously targeting minority neighborhood residents with loan terms that are worse than those offered to whites with similar credit credentials. These prohibitions matter: When banks engage in discriminatory conduct, their actions have profound financial consequences for marginalized communities and the cities that contain them. Unfortunately, a compelling body of evidence suggests that branches of Bank of America and Wells Fargo in South Florida breached these obligations during the subprime mortgage crisis.

On May 1, the Supreme Court allowed the City of Miami to proceed with a lawsuit against Bank of America and Wells Fargo, alleging that both financial institutions had engaged in discriminatory mortgage-lending practices. Specifically, the suit alleged that their lending practices resulted in disproportionate and excessive foreclosures on African-American and Latino homebuyers and significant financial harm to Miami. Bank employees were given financial incentives to offer African-American and Latino customers risky, high-interest loans because these mortgages carried higher commissions and brokerage fees, and they were processed quicker than safer loans. The banks saddled vulnerable, underserved minority borrowers with deceptive loans that featured exorbitant interest rates, high fees and severe pre-payment penalties that these homeowners could not afford.

What’s more, African-American and Hispanic borrowers were placed into predatory loans even though white borrowers with similar credit credentials were placed into prime loans. The disparities were especially pronounced for high-income bracket minority borrowers with satisfactory credit scores. For example: Among borrowers with an income over $100,000 and a FICO score of over 660 (indicating good credit), African-Americans and Latinos received a high interest rate loan over three times as often as white borrowers. Moreover, when default loomed, Bank of America and Wells Fargo refused to refinance minority loans while simultaneously refinancing similar loans issued to white borrowers.

Mid-level Wells Fargo and Bank of America management knew about – and encouraged – these discriminatory practices. Mortgage brokers were forced to sell a minimum number of risky, high-interest loans every month and lie about their client’s income, assets and employment records in order to meet these goals. One former Wells Fargo loan officer testified that the bank made a deliberate effort to target minority communities by hosting “wealth building seminars” with Hispanic Chambers of Commerce and African-American churches where African-American and Latino bank employees were forced to mislead undereducated and non-English-speaking attendees. White supervisors were apparently not permitted to attend these events because their presence would have spread suspicion among minority attendees. In any event, concerned employees were urged to worry about “putting food on the table,” rather than questioning bank policies. And Wells Fargo and Bank of America employees testified that their superiors altered mortgage records to prevent federal authorities from “giving them sh#%.”  

This was illegal. The Fair Housing Act forbids mortgage brokers from “engaging in … real estate transactions … that discriminate against any person … in terms or conditions … because of race.” Municipalities injured by discriminatory housing practices are permitted to file civil suits under the Fair Housing Act for damages. The banks predatory practices injured Miami because they (1) disproportionately caused foreclosures and vacancies in minority communities, (2) impaired the city’s racial integration and desegregation efforts, (3) decreased home values and reduced property tax revenues, (4) forced Miami police and fire departments to continually send first responders to address increased vagrancy, gang activity and fire-related problems in blighted communities and (5) compelled the city to hire more independent contractors to remove excess vegetation, haul away debris and remove graffiti from vacant properties.

The banks contend that Miami has no case, because the Fair Housing Act does not protect a city’s interest in constant property tax revenue and low municipal expenses. Bank of America and Wells Fargo’s response is unavailing, however. The Fair Housing Act has been interpreted broadly over the last 50 years to protect municipal interests in lost tax revenue, low city expenses and racial integration. The banks are out of luck.

 

 

Contact Habib Olapade at holapde ‘at’ stanford.edu.               

 

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Trump’s sanctuary cities folly https://stanforddaily.com/2017/05/01/trumps-sanctuary-cities-folly/ https://stanforddaily.com/2017/05/01/trumps-sanctuary-cities-folly/#respond Mon, 01 May 2017 07:14:05 +0000 https://stanforddaily.com/?p=1126796 Donald Trump’s early attempts to implement his nativist immigration policies have hit a wall. The President’s aides and lawyers have struggled to interpret and implement his recent executive orders because Trump’s policy directives have been quite vague.

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Donald Trump’s early attempts to implement his nativist immigration policies have hit a wall. The President’s aides and lawyers have struggled to interpret and implement his recent executive orders because Trump’s policy directives have been quite vague. For example, on Jan. 25, President Trump signed Executive Order 13768, which purports to withdraw federal funding from sanctuary cities. Funding withdrawal threats can be quite coercive because many local jurisdictions depend on these resources to balance their budgets and provide essential public services. Santa Clara and San Francisco Counties, for example, each receive more than $1 billion in federal funds every year and depend on these outlays to fund safety net programs, care for the poor and elderly and fund earthquake and terrorist disaster relief.  

On balance, sanctuary cities have a positive impact on surrounding communities because they foster healthier relationships between immigrant neighborhoods and local law enforcement, protect undocumented individuals from unjust and racially charged deportation raids and allow immigrants to live in peace without constant fear of removal. However, these immigration enclaves also come with costs because they can serve as safe harbors for criminals. On July, 1, 2015, for example, Juan Francisco Lopez-Sanchez, an undocumented immigrant, gunned down Kathryn Steinle, in eastern San Francisco. This murder was particularly heinous because Lopez-Sanchez had been deported five times prior to the incident but re-entered the country after each expulsion. Most undocumented immigrants have not committed serious crimes warranting deportation such as murder or rape, but, those who have should not be here.

Executive Order 13768, however, is a step in the wrong direction. On April 25, United States District Judge William Orrick III entered an order temporarily prohibiting the government from enforcing its policy against Bay Area sanctuary cities because it is riddled with several problems. The order usurps Congress’ right to set conditions on the receipt of federal funds, imposes unexpected, unclear and coercive conditions on state and local governments and denies sanctuary cities any chance to challenge a decision withdrawing federal funding.  

Only Congress can create federal programs and provide conditional funding to state and local governments. Federal law mandates that these conditions be unambiguous, have a clear relationship to federal immigration policy, be non-coercive and cannot be retroactively imposed after a local government has taken federal money.  

Executive Order 13768 violates each requirement. First, the executive order is vague — it does not even define what a sanctuary city is. Indeed, the President’s Homeland Security Secretary, John Kelly, stated that he has “no clue” how his agency will define the term in enforcement proceedings. Nor does the executive order give state and local governments any guidance on which policies will result in funding withdrawals. Trump’s own lawyers even conceded that they have no idea how a local jurisdiction could comply with his executive order, which is shocking because government lawyers have a collective reputation for being the best and brightest advocates in the profession. Second, the order is non-germane. It punishes sanctuary cities by cutting funding for transportation, vaccination, emergency preparedness and other programs that have absolutely nothing to do with immigration policy. Third, the order is coercive. It threatens to deny sanctuary jurisdictions all federal grants, amounting to hundreds of millions of dollars on which Santa Clara and San Francisco Counties alone rely. Finally, the order imposes retroactive conditions. Federal authorities originally agreed to provide bay area sanctuary cities with federal funding without also requiring local police to cooperate with federal immigration agents.

Congress is also constitutionally barred from commanding state and local officials to enforce federal regulatory programs. But, Trump’s executive order does just this by forcing Bay Area police to detain undocumented criminals that federal officials suspect violated California criminal laws. This requirement isn’t just illegal — it’s unfair. Several police departments around the country have refused to cooperate with federal immigration agents because detention orders can ruin lives since they can be issued without strong evidence that someone committed a crime. The federal government also does not reimburse state governments for detention costs, which can be quite expensive. Trump needs to call his lawyers again.        

 

Contact Habib Olapade at holapade ‘at’ stanford.edu.

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The stars and bars must go https://stanforddaily.com/2017/04/17/the-stars-and-bars-must-go/ https://stanforddaily.com/2017/04/17/the-stars-and-bars-must-go/#respond Mon, 17 Apr 2017 07:05:03 +0000 https://stanforddaily.com/?p=1125978 It was against this backdrop of legalized discrimination, that Mississippi’s current state flag was adopted in 1894. The emblem has been used time and again in the Deep South to express opposition to racial equality.

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On Jan. 9, 1861, Mississippi became the second state to secede from the Union. While some argue that Mississippi’s decision to secede was not connected to slavery, those who put forward this narrative need only read Mississippi’s Declaration of Secession. It unabashedly declared that the state’s “position is thoroughly identified with the institution of slavery” and that “subordination to the superior race is the [negro’s] natural … condition.” Mississippi was so devoted to the subjugation of African-Americans that it sought to form a new nation predicated on white supremacy.

Upon Mississippi’s readmission to the Union, the state attempted to preserve its antebellum culture by maintaining a racial caste system through violence. Organizations such as the Ku Klux Klan, Knights of the White Camellias and White League lynched, beat, burned and raped African-Americans in Vicksburg, Clinton, Meridian, Austin, Yazoo City and other towns across the state. The South sought to recover its pride in the next generation’s collective memory. Confederate veterans’ groups launched a revisionist history campaign promoting confederate holidays, monuments and museums around the nation. In the late 1800s, Mississippi’s political elites adopted a new state constitution that effectively excluded African-Americans from the franchise. It was against this backdrop of legalized discrimination, that Mississippi’s current state flag was adopted in 1894. The emblem has been used time and again in the Deep South to express opposition to racial equality.

Enter Carlos Moore, an African-American man from Mississippi. In April 2016, he filed a lawsuit in federal court claiming that (1) the state flag is a vestige of slavery that amounts to government hate speech damaging him and similarly situated blacks and (2) his black daughter should not be forced to pledge allegiance to the flag, which is, after all, an overt symbol of white supremacy.

Moore’s case was dismissed. This hardly unprecedented: The Constitution does not allow federal courts to hear every lawsuit under the sun. Rather, the judiciary can only resolve cases where a plaintiff demonstrates a concrete, particularized and actual injury. Moore’s first claim did not meet this standard because his complaint did not disclose an instance where he was personally subjected to discriminatory treatment because of the state flag. Likewise, Moore’s second claim was unsuccessful because Mississippi law only requires public school instructors to teach the pledge to pupils. Students are technically not required to recite the oath although many feel pressure to do so.

This decision was lawful but awful. Displaying the “stars and bars” on an official state flag is racially divisive. After the Charleston Emanuel AME Church massacre and the murder of an unarmed African-American man in Tupelo, Mississippi shortly thereafter, in the summer of 2015, South Carolina and Alabama removed the racially charged symbol from their respective state houses, and several national retailers announced they would stop selling confederate battle emblem merchandise. Mississippi’s Episcopal Diocese and Baptist Convention passed resolutions calling for the flag’s removal. And traditionally white colleges in Mississippi such as Ole Miss, Southern Mississippi and Mississippi State have all removed the flag from their campuses. Today Mississippi stands alone. It is the only state to include the confederate emblem it its state flag.

Mississippi’s political elites have dragged their feet on this issue. During the 2015 legislative session, every bill that proposed modifying the flag’s design died in committee. Citizens opposed to the flag removal movement claimed that it was driven by “scalawags who wanted to spit on the graves of [Mississippi’s] ancestors.” Another woman was blunter, arguing that the state “should not change something [it] hold[s] sacred to make a point to Northerners.” Because on balance, she “did not believe in turning to what the colored people want.” Governor Phil Bryant apparently agrees. He decided to celebrate black history month by announcing that April would be Confederate Heritage Month in the state. The struggle is real, and it is racist too.

One reason Moore’s lawsuit was quashed was because the judges in his case felt that it would be better for Mississippi’s political process if the people decided to remove the flag on their own volition. Yet Mississippi tried and failed. Sometimes, courts are the only forum where political and racial minorities can vindicate their rights. Moore’s judges did not just slam the courthouse door on him alone, but racial equality as well.        

 

Contact Habib Olapade at holapade ‘at’ stanford.edu.

 

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