Archives for the month of: June, 2018

This is amazing. The ink wasn’t even dry on the Janus Decision, and letters from a rightwing policy shop in Michigan were delivered to teachers in New York, urging them to leave their union. The letters came from the Mackinac Center, which has been a recipient of DeVos family funding.

Mackinac says it plans to spend $10 million on its anti-union campaign.

How do these people sleep at night?

Richard Bernstein explains the secret to the academic success of Asian-American students on standardized tests: test prep.

As we have noted, Asian-American students ace the admissions test for NYC exam-based high schools.

“Asian children, who comprise just 16 percent of the overall school population, have come to dominate admissions to those schools –earning more than 50 percent of the spots overall and 74 percent of the slots at Stuyvesant, the most competitive and prestigious school in the public system. Of the 900 eighth graders admitted to Stuyvesant for next year, 10 are African American, 27 are Hispanic, 151 are white and 613 are Asian.

“De Blasio has a plan to close this gap: scrap the SHSAT altogether, and offer admission to the specialized high schools to the top 7 percent of all of New York’s 600 middle schools instead. The mayor says this will increase the black and Hispanic population to about 45 percent of the total…

“New York is hardly the only place where Asian Americans are disproportionately represented in the best schools. There’s Thomas Jefferson High School for Science and Technology in Fairfax County, Virginia, for example, which is commonly ranked the best public high school in America. Asians represent about 20 percent of the local population and secure about 70 percent of the seats at the school, where admissions are based on test scores plus grades, an essay, and teacher recommendations.

“Asians now account for 20 to 25 percent of undergraduates at Ivy League universities like Harvard, Yale, and Princeton, four to five times their representation in the general population. Advocacy groups cite strong evidence those figures are held down by unofficial anti-Asian quotas at those schools. That claim is at the center of a discrimination lawsuit brought against Harvard by a group called Students for Fair Admissions, now underway in federal court in Boston.”

The Hal of “Students for Fair Admissions,” led by Edward Blum of the conservative American Enterprise Institute, is to eliminate affirmative action.

The effort to abandon affirmative action is likely to pass muster in the new Trump Supreme Court.

This is very bad news for African-Americans and Latinos who are equally deserving of making a contribution to our society and equally deserving of a chance to enter the middle class without intensive test prep.

After a long and bruising battle, voters in Arizona will have their first chance to vote on vouchers in November. Arizona has vouchers now for specific groups of students, but last year the legislature enacted an e passion that would make vouchers available to all. Arizona is beloved by ALEC, the Koch brothers, and the DeVos family due to its choice programs. After passage of voucher expansion, supporters of public schools gathered over 100,000 signatures calling for a referendum. The Koch brothers sent in lawyers to try to block the referendum (Prop 305), but the state courts ruled that it could go forward. Then the Koch operatives pushed the idea that the legislature should repeal and re-enact the voucher expansion law, which would force the opposition to start over. But, in the days after the mass protests of the #RedForEd movement, the legislature was unable to gather enough votes for repeal.

Why are the Koch brothers and Betsy DeVos’s American Federation for Childre so frightened of a referendum? Vouchers have lost every time they have been put to a vote.

How do vouchers work in Arizona?

This article, published a year ago, says that oversight of public money is nearly a sham.

“As the program expanded, resources to scrutinize the expenditures — made using state-provided debit cards — never kept pace. The Legislature gave the Department of Education money for the program butwouldn’t authorize spending much of it.

“The warnings of lax oversight and little accountability proved prescient. Money was misspent but the state recovered almost none of it.

“For example, some parents transferred all of their scholarship money into a 529 college-savings account and then left the program — preventing the state from recouping the funds.

“Others pocketed the money and sent their kids to public schools.

“Some purchased books or other materials using their state-issued debit cards and then immediately returned them. The refunded money was put on gift cards, allowing parents to spend it with no scrutiny.

“And despite the Legislature’s vehement opposition to public money paying for abortions, the ESA program became one of the only state programs to allegedly fund the procedure. In 2014, payment to a health clinic led education officials to believe ESA money had been spent on an abortion.

“These illegal expenditures of taxpayer money have sparked little outrage and no widespread calls for changes from either the Governor’s Office or the Legislature.

“State leaders’ apathy is in stark contrast to their condemnation of and crackdown on abuse of social-welfare programs. Arizona has in recent years implemented among the nation’s most restrictive rules for lower-income recipients of cash assistance.

“Chris Kotterman, lobbyist for the Arizona School Boards Association, said that “double standard” reflects the special status Republican state leaders afford school-choice programs.

““Private-school choice is much more favored than cash assistance to the poor,” Kotterman said. “If it’s a welfare program, then strict accountability is necessary … On the school-choice side, there’s an inherent assumption that parents, no matter what, are able to make the best choices and the government should get out of the way.”

Follow the money is always a good principle.

Jeremy Mohler of “In the Public Interest” details where the crackdown on immigrants produces big profits.

“Buried under all the bad news this week was a glimmer of progress. No, not Alexandria Ocasio-Cortez’s win in New York’s 14th Congressional District — that’s way more than a glimmer. I’m talking about the order from a California judge to reunite separated undocumented immigrant families within 30 days.

“Who knows whether and how the Trump administration will implement the order? But one thing’s for sure: if Trump continues to criminalize immigration, the need for detention space will continue to grow.

“That’s music to the ears of the private prison industry, particularly CoreCivic and GEO Group, two publicly traded corporations that currently detain over two-thirds of undocumented immigrants. It’s music to their investors too — both have seen their stocks skyrocket in recent weeks.

“Because this is what they’ve been waiting for. As we document in a new report, CoreCivic and GEO Group both have been getting in the game of offering loans to governments to build jails, prisons, and detention centers. Both have turned private equity financing, also known as “public-private partnerships,” into a central growth strategy after they became Real Estate Investment Trusts (REITs) in 2013. In other words, private prison corporations want to be landlords.

“Why? Because REIT status allows them to dodge corporate-level taxation. Last year alone, GEO Group avoided almost $44 million in taxes.

“So here comes the federal government desperate for more cages to lock up undocumented immigrants. The Department of Homeland Security is considering adding space for 15,000 more adults and children in family detention centers. The agency already hired GEO Group in 2017 to finance, design, build, operate, and maintain a new 1,000-bed adult detention facility in Texas, which is expected to be up and running later this year.

“All of this has the corporations salivating. A couple weeks ago, CoreCivic CEO Damon Hininger told his company’s investors, this is “the most robust kind of sales environment we’ve seen in probably 10 years, not only on the federal side with the dynamics with ICE and [U.S.] Marshals, but also with these activities on the state side.”

“GEO Group and CoreCivic now stand more ready than ever to, as they describe it, “partner” with the Trump administration and “understand and accommodate their changing needs.” And they’re going to dodge a ton of taxes doing it.”

We have by now read about the independent Rand study of Bill Gates’ bet on Making test-based teacher evaluation the keystone of education reform. I distinctly recall Melinda Gates saying on PBS that “we now know” how to get a great teacher in every classroom in America.

Well, no, they didn’t.

The Gates put up $215 million and found willing suckers, I mean, partners to add even more of their own money to bring the total to $575 million to test the Gates’s shiny new idea.

It failed.

It exhausted the reserves of Hillsborough County in Florida, where MaryEllen Elia was Superintendent. She was fired but landed on her feet as State Commissioner of Education in New York. Believe it or not, the fiasco in Hillsborough County did not diminished her love of testing.

Valerie Strauss tells the sad saga here of Bill Gates’ latest failure.

“The six-year project began in 2009 when the foundation gave millions of dollars to three public school districts — Hillsborough County in Florida (the first to start the work), Memphis and Pittsburgh. The districts supplied matching funds. Four charter management organizations also were involved: Alliance College-Ready Public Schools; Aspire Public Schools; Green Dot Public Schools; and Partnerships to Uplift Communities Schools.

“The Bill & Melinda Gates Foundation pumped nearly $215 million into the project while the partnering school organizations supplied their own money, for a total cost of $575 million. The aim was to create teacher evaluation systems that depended on student standardized test scores and observations by “peer evaluators.” These systems, it was conjectured, could identify the teachers who were most effective in improving student academic performance.”

There is a silver lining.

“In 2014, he gave a nearly hour-long interview at Harvard University, saying, “It would be great if our education stuff worked, but that we won’t know for probably a decade.””

It’s far, nothing funded by Gates has reformed education. We have only six more years to wait, and maybe then he will invest in children’s health or something else where he has a chance of doing good work instead of messing up the schools.

Karen Attiah is an editor at the Washington Post.

She writes:

I have reached the regrettable conclusion that the Negro’s great stumbling block toward freedom is not the White citizen’s councilor or the Klu Klux Klanner, but the white moderate who is more devoted to order than justice; who prefers a negative peace which is the absence of tension, to a positive peace, which is the presence of justice; who constantly says, ‘I agree with you with the goals that you seek, but can’t agree with your methods of direct action.” — the Rev. Martin Luther King Jr., “Letter From Birmingham Jail,” 1963

I have reached a regrettable conclusion in the era of Trump. I no longer have hope in white America.

After White House press secretary Sarah Huckabee Sanders was politely asked to leave a restaurant in Virginia, discussion among the largely white political and media classes erupted into a firestorm over “civility” in the Trump era. Those of us whose identities have made us the direct targets of the Trump administration’s hateful rhetoric and discriminatory policies are told to not stoop to President Trump’s level. We are then fed cherry-picked quotes from black luminaries, often the Rev. Martin Luther King Jr. — “Returning hate for hate multiplies hate, adding deeper darkness to a night already devoid of stars” — or a favorite from Michelle Obama’s convention speech: “When they go low, we go high.”

The whitewashed version of a heroic, nonconfrontational King ignores the fact that he favored direct action and confrontation, and was painted as an extremist in his time. White Americans hated and jailed him. And ultimately, it was a white American who murdered him in broad daylight.

As for going high? Trump rose to power in no small part due to his promises to bury the political accomplishments of the first black president. It is easy for those who have privilege — the privilege of never being denied the opportunity to serve in the military because of their gender identity, of never being afraid of police brutality, of never facing anti-Muslim animus, of never being a migrant forcibly separated from his or her children — to lecture us who do not enjoy such privileges to conduct peaceful resistance in a way that doesn’t make others uncomfortable. But these demands for civility from the privileged, largely white political class who claim a desire to oppose Trumpism and injustice sound very much like the stumbling block of white moderates that King wrote about 55 years ago.

Those of us who knew we were under threat from Trump have, since Election Day 2016, been told that America’s institutions will protect us from Trumpism. Congress would be a check. The responsibility of the office of the presidency would humble him. None of this has happened. This week, the Supreme Court in a 5-4 decision decided to ignore the president’s Islamophobic rhetoric and upheld his ban on travelers from certain majority-Muslim countries, legally sanctioning Trump’s anti-Muslim animus into official policy. Now that Justice Anthony Kennedy has announced his retirement, Trump can shape the court even more in his own image for decades to come.

All of this leads to the question of hope. For those who have been working to fight for civil rights for people of all creeds, colors, genders and nationalities, it is a very dark time. What do we do?

In her book “I’m Still Here: Black Dignity in a World Made for Whiteness,” writer Austin Channing Brown says she has “learned not to fear the death of hope. In order for me to stay in this work, hope must die.” She writes: “I cannot hope in whiteness, I cannot hope in white institutions or white America, I cannot hope in lawmakers or politicians. I cannot hope in misquoted wisdom from MLK, superficial ethnic heritage celebrations or love that is aloof. I cannot even even hope in myself. I am no one’s savior.” Instead, she has decided to embrace the shadow of hope, opting to continue “working in the dark not knowing if anything I do will ever make a difference.”

After the past few days, I have decided to embrace the shadow of hope as well. This doesn’t mean I’m not encouraged by positive developments. It is good that federal judges are challenging Trump’s family separation policy. It is good that those of us from minority groups are organizing across intersectional lines. We should be heartened by the New York primary win of Alexandria Ocasio-Cortez, a 28-year-old community organizer from the Bronx who beat establishment-Democratic powerhouse Rep. Joseph Crowley. Her win is a reminder that in the face of Trumpism, and of establishment parties that are slow to respond to the needs of the marginalized, we will make our presence known. But we will continue to struggle, to write, to resist, to confront, to march and to dissent, even if it is done in the darkness. The struggles of our forebears demand nothing less.

Some dissents turn out to be more important lodestars in the Law than the majority opinion. Often the majority is wrong, as it was in the Dred Scott case, Plessy v. Ferguson, and Korematsu.

Please read Justice Sonia Sotomayor’s dissent on the Muslim Travel Ban Case (Trump v. Hawaii), joined by Justice Ruth Bader Ginsberg. The Trump administration, in its third iteration, added North Korea and Venezuela, to five majority-Muslim nation’s in a thinly disguised effort to hide its religious bias. There is no migration from North Korea. Muslim countries where the Trump organization does business were curiously excluded from the Travel Ban.

JUSTICE SOTOMAYOR, with whom JUSTICE GINSBURG joins, dissenting.

The United States of America is a Nation built upon the promise of religious liberty. Our Founders honored that core promise by embedding the principle of religious neu­trality in the First Amendment. The Court’s decision today fails to safeguard that fundamental principle. It leaves undisturbed a policy first advertised openly and unequivocally as a “total and complete shutdown of Mus­ lims entering the United States” because the policy now masquerades behind a façade of national-security con­ cerns. But this repackaging does little to cleanse Presi­ dential Proclamation No. 9645 of the appearance of dis­ crimination that the President’s words have created. Based on the evidence in the record, a reasonable observer would conclude that the Proclamation was motivated by anti-Muslim animus. That alone suffices to show that plaintiffs are likely to succeed on the merits of their Estab­ lishment Clause claim. The majority holds otherwise by ignoring the facts, misconstruing our legal precedent, and turning a blind eye to the pain and suffering the Procla­ mation inflicts upon countless families and individuals, many of whom are United States citizens. Because that troubling result runs contrary to the Constitution and our precedent, I dissent.

Plaintiffs challenge the Proclamation on various grounds, both statutory and constitutional. Ordinarily, when a case can be decided on purely statutory grounds, we strive to follow a “prudential rule of avoiding constitu­ tional questions.” Zobrest v. Catalina Foothills School Dist., 509 U. S. 1, 8 (1993). But that rule of thumb is far from categorical, and it has limited application where, as here, the constitutional question proves far simpler than the statutory one. Whatever the merits of plaintiffs’ com­ plex statutory claims, the Proclamation must be enjoined for a more fundamental reason: It runs afoul of the Estab­ lishment Clause’s guarantee of religious neutrality.

The Establishment Clause forbids government policies “respecting an establishment of religion.” U. S. Const., Amdt. 1. The “clearest command” of the Establishment Clause is that the Government cannot favor or disfavor one religion over another. Larson v. Valente, 456 U. S. 228, 244 (1982); Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 532 (1993) (“[T]he First Amend­ ment forbids an official purpose to disapprove of a particu­ lar religion”); Edwards v. Aguillard, 482 U. S. 578, 593 (1987) (“The Establishment Clause . . . forbids alike the preference of a religious doctrine or the prohibition of theory which is deemed antagonistic to a particular dogma” (internal quotation marks omitted)); Lynch v. Donnelly, 465 U. S. 668, 673 (1984) (noting that the Establishment Clause “forbids hostility toward any [religion],” because “such hostility would bring us into ‘war with our national tradition as embodied in the First Amendmen[t]’”); Epper­ son v. Arkansas, 393 U. S. 97, 106 (1968) (“[T]he State may not adopt programs or practices . . . which aid or oppose any religion. This prohibition is absolute” (citation and internal quotation marks omitted)). Consistent with that clear command, this Court has long acknowledged that governmental actions that favor one religion “inevi­ tabl[y]” foster “the hatred, disrespect and even contempt of those who [hold] contrary beliefs.” Engel v. Vitale, 370 U. S. 421, 431 (1962). That is so, this Court has held, because such acts send messages to members of minority faiths “‘that they are outsiders, not full members of the political community.’ ” Santa Fe Independent School Dist. v. Doe, 530 U. S. 290, 309 (2000). To guard against this serious harm, the Framers mandated a strict “principle of denominational neutrality.” Larson, 456 U. S., at 246; Board of Ed. of Kiryas Joel Village School Dist. v. Grumet, 512 U. S. 687, 703 (1994) (recognizing the role of courts in “safeguarding a principle at the heart of the Establish­ ment Clause, that government should not prefer one reli­ gion to another, or religion to irreligion”).

“When the government acts with the ostensible and predominant purpose” of disfavoring a particular religion, “it violates that central Establishment Clause value of official religious neutrality, there being no neutrality when the government’s ostensible object is to take sides.” McCreary County v. American Civil Liberties Union of Ky., 545 U. S. 844, 860 (2005). To determine whether plaintiffs have proved an Establishment Clause violation, the Court asks whether a reasonable observer would view the gov­ ernment action as enacted for the purpose of disfavoring a religion. See id., at 862, 866; accord, Town of Greece v. Galloway, 572 U. S. ___, ___ (2014) (plurality opinion) (slip op., at 19).

In answering that question, this Court has generally considered the text of the government policy, its operation, and any available evidence regarding “the historical back­ ground of the decision under challenge, the specific series of events leading to the enactment or official policy in question, and the legislative or administrative history, including contemporaneous statements made by” the decisionmaker. Lukumi, 508 U. S., at 540 (opinion of KENNEDY, J.); McCreary, 545 U. S., at 862 (courts must evaluate “text, legislative history, and implementation . . . , or comparable official act” (internal quotation marks omitted)). At the same time, however, courts must take care not to engage in “any judicial psychoanalysis of a drafter’s heart of hearts.” Id., at 862.

Although the majority briefly recounts a few of the statements and background events that form the basis of plaintiffs’ constitutional challenge, ante, at 27–28, that highly abridged account does not tell even half of the story. See Brief for The Roderick & Solange MacArthur Justice Center as Amicus Curiae 5–31 (outlining President Trump’s public statements expressing animus toward Islam). The full record paints a far more harrowing pic­ ture, from which a reasonable observer would readily conclude that the Proclamation was motivated by hostility and animus toward the Muslim faith.

During his Presidential campaign, then-candidate Don­ ald Trump pledged that, if elected, he would ban Muslims from entering the United States. Specifically, on Decem­ ber 7, 2015, he issued a formal statement “calling for a total and complete shutdown of Muslims entering the United States.” App. 119. That statement, which re­ mained on his campaign website until May 2017 (several months into his Presidency), read in full:

“Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on. According to Pew Research, among others, there is great hatred towards Americans by large segments of the Muslim population. Most recently, a poll from the Center for Security Policy released data showing ‘25% of those polled agreed that violence against Americans here in the United States is justi­ fied as a part of the global jihad’ and 51% of those polled ‘agreed that Muslims in America should have the choice of being governed according to Shariah.’ Shariah authorizes such atrocities as murder against nonbelievers who won’t convert, beheadings and more unthinkable acts that pose great harm to Americans, especially women.

“Mr. Trum[p] stated, ‘Without looking at the vari­ ous polling data, it is obvious to anybody the hatred is beyond comprehension. Where this hatred comes from and why we will have to determine. Until we are able to determine and understand this problem and the dangerous threat it poses, our country cannot be the victims of the horrendous attacks by people that believe only in Jihad, and have no sense of reason or respect of human life. If I win the election for Presi­ dent, we are going to Make America Great Again.’— Donald J. Trump.” Id., at 158; see also id., at 130– 131.

On December 8, 2015, Trump justified his proposal during a television interview by noting that President Franklin D. Roosevelt “did the same thing” with respect to the internment of Japanese Americans during World War II. Id., at 120. In January 2016, during a Republican primary debate, Trump was asked whether he wanted to “rethink [his] position” on “banning Muslims from enter­ ing the country.” Ibid. He answered, “No.” Ibid. A month later, at a rally in South Carolina, Trump told an apocryphal story about United States General John J. Pershing killing a large group of Muslim insurgents in the Philippines with bullets dipped in pigs’ blood in the early 1900’s. Id., at 163–164. In March 2016, he expressed his belief that “Islam hates us. . . . [W]e can’t allow people coming into this country who have this hatred of the United States . . . [a]nd of people that are not Muslim.” Id., at 120–121. That same month, Trump asserted that “[w]e’re having problems with the Muslims, and we’re having problems with Muslims coming into the country.” Id., at 121. He therefore called for surveillance of mosques in the United States, blaming terrorist attacks on Muslims’ lack of “assimilation” and their commitment to “sharia law.” Ibid.; id., at 164. A day later, he opined that Muslims “do not respect us at all” and “don’t respect a lot of the things that are happening throughout not only our country, but they don’t respect other things.” Ibid.

As Trump’s presidential campaign progressed, he began to describe his policy proposal in slightly different terms. In June 2016, for instance, he characterized the policy proposal as a suspension of immigration from countries “where there’s a proven history of terrorism.” Id., at 121. He also described the proposal as rooted in the need to stop “importing radical Islamic terrorism to the West through a failed immigration system.” Id., at 121–122. Asked in July 2016 whether he was “pull[ing] back from” his pledged Muslim ban, Trump responded, “I actually don’t think it’s a rollback. In fact, you could say it’s an expansion.” Id., at 122–123. He then explained that he used different terminology because “[p]eople were so upset when [he] used the word Muslim.” Id., at 123.

A month before the 2016 election, Trump reiterated that his proposed “Muslim ban” had “morphed into a[n] ex­ treme vetting from certain areas of the world.” Ibid. Then, on December 21, 2016, President-elect Trump was asked whether he would “rethink” his previous “plans to create a Muslim registry or ban Muslim immigration.” Ibid. He replied: “You know my plans. All along, I’ve proven to be right.” Ibid.

On January 27, 2017, one week after taking office, President Trump signed Executive Order No. 13769, 82 Fed. Reg. 8977 (2017) (EO–1), entitled “Protecting the Nation From Foreign Terrorist Entry Into the United States.” As he signed it, President Trump read the title, looked up, and said “We all know what that means.” App. 124. That same day, President Trump explained to the media that, under EO–1, Christians would be given prior- ity for entry as refugees into the United States. In particu­ lar, he bemoaned the fact that in the past, “[i]f you were a Muslim [refugee from Syria] you could come in, but if you were a Christian, it was almost impossible.” Id., at 125. Considering that past policy “very unfair,” President Trump explained that EO–1 was designed “to help” the Christians in Syria. Ibid. The following day, one of Presi­ dent Trump’s key advisers candidly drew the connection between EO–1 and the “Muslim ban” that the President had pledged to implement if elected. Ibid. According to that adviser, “[W]hen [Donald Trump] first announced it, he said, ‘Muslim ban.’ He called me up. He said, ‘Put a commission together. Show me the right way to do it legally.’” Ibid.

On February 3, 2017, the United States District Court for the Western District of Washington enjoined the en­ forcement of EO–1. See Washington v. Trump, 2017 WL 462040, *3. The Ninth Circuit denied the Government’s request to stay that injunction. Washington v. Trump, 847 F. 3d 1151, 1169 (2017) (per curiam). Rather than appeal the Ninth Circuit’s decision, the Government declined to continue defending EO–1 in court and instead announced that the President intended to issue a new executive order to replace EO–1.

On March 6, 2017, President Trump issued that new executive order, which, like its predecessor, imposed tem­ porary entry and refugee bans. See Exec. Order No. 13,780, 82 Fed. Reg. 13209 (EO–2). One of the President’s senior advisers publicly explained that EO–2 would “have the same basic policy outcome” as EO–1, and that any changes would address “very technical issues that were brought up by the court.” App. 127. After EO–2 was issued, the White House Press Secretary told reporters that, by issuing EO–2, President Trump “continue[d] to deliver on . . . his most significant campaign promises.” Id., at 130. That statement was consistent with President Trump’s own declaration that “I keep my campaign prom­ ises, and our citizens will be very happy when they see the result.” Id., at 127–128.

Before EO–2 took effect, federal District Courts in Ha­ waii and Maryland enjoined the order’s travel and refugee bans. See Hawaii v. Trump, 245 F. Supp. 3d 1227, 1239 (Haw. 2017); International Refugee Assistance Project (IRAP) v. Trump, 241 F. Supp. 3d 539, 566 (Md. 2017). The Fourth and Ninth Circuits upheld those injunctions in substantial part. IRAP v. Trump, 857 F. 3d 554, 606 (CA4 2017) (en banc); Hawaii v. Trump, 859 F. 3d 741, 789 (CA9 2017) (per curiam). In June 2017, this Court granted the Government’s petition for certiorari and issued a per curiam opinion partially staying the District Courts’ in­ junctions pending further review. In particular, the Court allowed EO–2’s travel ban to take effect except as to “for­ eign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States.” Trump v. IRAP, 582 U. S. ___, ___ (2017) (slip op., at 12).

While litigation over EO–2 was ongoing, President Trump repeatedly made statements alluding to a desire to keep Muslims out of the country. For instance, he said at a rally of his supporters that EO–2 was just a “watered down version of the first one” and had been “tailor[ed]” at the behest of “the lawyers.” App. 131. He further added that he would prefer “to go back to the first [executive order] and go all the way” and reiterated his belief that it was “very hard” for Muslims to assimilate into Western culture. Id., at 131–132. During a rally in April 2017, President Trump recited the lyrics to a song called “The Snake,” a song about a woman who nurses a sick snake back to health but then is attacked by the snake, as a warning about Syrian refugees entering the country. Id., at 132, 163. And in June 2017, the President stated on Twitter that the Justice Department had submitted a “watered down, politically correct version” of the “original Travel Ban” “to S[upreme] C[ourt].”1 Id., at 132. The President went on to tweet: “People, the lawyers and the courts can call it whatever they want, but I am calling it what we need and what it is, a TRAVEL BAN!” Id., at 132–133. He added: “That’s right, we need a TRAVEL BAN for certain DANGEROUS countries, not some politi­ cally correct term that won’t help us protect our people!” Id., at 133. Then, on August 17, 2017, President Trump issued yet another tweet about Islam, once more referenc­ ing the story about General Pershing’s massacre of Mus­ lims in the Philippines: “Study what General Pershing . . . did to terrorists when caught. There was no more Radical Islamic Terror for 35 years!” IRAP v. Trump, 883 F. 3d 233, 267 (CA4 2018) (IRAP II) (en banc) (alterations in original).

In September 2017, President Trump tweeted that “[t]he travel ban into the United States should be far larger, tougher and more specific—but stupidly, that would not be politically correct!” App. 133. Later that month, on Sep­ tember 24, 2017, President Trump issued Presidential Proclamation No. 9645, 82 Fed. Reg. 45161 (2017) (Proc­ lamation), which restricts entry of certain nationals from six Muslim-majority countries. On November 29, 2017, President Trump “retweeted” three anti-Muslim videos, entitled “Muslim Destroys a Statue of Virgin Mary!”, “Islamist mob pushes teenage boy off roof and beats him to death!”, and “Muslim migrant beats up Dutch boy on crutches!”2 IRAP II, 883 F. 3d, at 267. Those videos were initially tweeted by a British political party whose mission is to oppose “all alien and destructive politic[al] or reli­ gious doctrines, including . . . Islam.” Ibid. When asked about these videos, the White House Deputy Press Secre­ tary connected them to the Proclamation, responding that the “President has been talking about these security is­ sues for years now, from the campaign trail to the White House” and “has addressed these issues with the travel order that he issued earlier this year and the companion proclamation.” Ibid.

As the majority correctly notes, “the issue before us is not whether to denounce” these offensive statements. Ante, at 29. Rather, the dispositive and narrow question here is whether a reasonable observer, presented with all “openly available data,” the text and “historical context” of the Proclamation, and the “specific sequence of events” leading to it, would conclude that the primary purpose of the Proclamation is to disfavor Islam and its adherents by excluding them from the country. See McCreary, 545 U. S., at 862–863. The answer is unquestionably yes. [Footnote: 2 The content of these videos is highly inflammatory, and their titles are arguably misleading. For instance, the person depicted in the video entitled “Muslim migrant beats up Dutch boy on crutches!” was report­ edly not a “migrant,” and his religion is not publicly known. See Brief for Plaintiffs in International Refugee Assistance Project v. Trump as Amici Curiae 12, n. 4; P. Baker & E. Sullivan, Trump Shares Inflam­ matory Anti-Muslim Videos, and Britain’s Leader Condemns Them, N. Y. Times, Nov. 29, 2017 (“[A]ccording to local officials, both boys are Dutch”), https: // / 2017 / 11 / 29 / us / politics / trump­ anti-muslim-videos-jayda-fransen.html (all Internet materials as last visited June 25, 2018).]

Taking all the relevant evidence together, a reasonable observer would conclude that the Proclamation was driven primarily by anti-Muslim animus, rather than by the Government’s asserted national-security justifications. Even before being sworn into office, then-candidate Trump stated that “Islam hates us,” App. 399, warned that “[w]e’re having problems with the Muslims, and we’re having problems with Muslims coming into the country,” id., at 121, promised to enact a “total and complete shut­ down of Muslims entering the United States,” id., at 119, and instructed one of his advisers to find a “lega[l]” way to enact a Muslim ban, id., at 125.3 The President continued to make similar statements well after his inauguration, as detailed above, see supra, at 6–10.

[Footnote: 3The Government urges us to disregard the President’s campaign statements. Brief for Petitioners 66–67. But nothing in our precedent supports that blinkered approach. To the contrary, courts must con­ sider “the historical background of the decision under challenge, the specific series of events leading to the enactment or official policy in question, and the legislative or administrative history.” Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 540 (1993) (opinion of KENNEDY, J.). Moreover, President Trump and his advisers have repeatedly acknowledged that the Proclamation and its predecessors are an outgrowth of the President’s campaign statements. For exam­ple, just last November, the Deputy White House Press Secretary reminded the media that the Proclamation addresses “issues” the President has been talking about “for years,” including on “the cam­ paign trail.” IRAP II, 883 F. 3d 233, 267 (CA4 2018). In any case, as the Fourth Circuit correctly recognized, even without relying on any of the President’s campaign statements, a reasonable observer would conclude that the Proclamation was enacted for the impermissible purpose of disfavoring Muslims. Id., at 266, 268.]

[Footnote: 4At oral argument, the Solicitor General asserted that President Trump “made crystal-clear on September 25 that he had no intention of imposing the Muslim ban” and “has praised Islam as one of the great countries [sic] of the world.” Tr. of Oral Arg. 81. Because the record contained no evidence of any such statement made on September 25th, however, the Solicitor General clarified after oral argument that he actually intended to refer to President Trump’s statement during a television interview on January 25, 2017. Letter from N. Francisco, Solicitor General, to S. Harris, Clerk of Court (May 1, 2018); Reply Brief 28, n. 8. During that interview, the President was asked whether EO–1 was “the Muslim ban,” and answered, “no it’s not the Muslim ban.” See Transcript: ABC News anchor David Muir interviews Presi­ dent Trump, ABC News, Jan. 25, 2017, transcript-abc-news-anchor-david-muir-interviews-president / story ? id = 45047602. But that lone assertion hardly qualifies as a disavowal of the President’s comments about Islam—some of which were spoken after January 25, 2017. Moreover, it strains credulity to say that President Trump’s January 25th statement makes “crystal-clear” that he never intended to impose a Muslim ban given that, until May 2017, the President’s website displayed the statement regarding his cam­ paign promise to ban Muslims from entering the country.]

Moreover, despite several opportunities to do so, Presi­ dent Trump has never disavowed any of his prior state­ ments about Islam.4 Instead, he has continued to make remarks that a reasonable observer would view as an unrelenting attack on the Muslim religion and its follow­ ers. Given President Trump’s failure to correct the rea­ sonable perception of his apparent hostility toward the Islamic faith, it is unsurprising that the President’s law­ yers have, at every step in the lower courts, failed in their attempts to launder the Proclamation of its discriminatory taint. See United States v. Fordice, 505 U. S. 717, 746– 747 (1992) (“[G]iven an initially tainted policy, it is emi­ nently reasonable to make the [Government] bear the risk of nonpersuasion with respect to intent at some future time, both because the [Government] has created the dispute through its own prior unlawful conduct, and be­ cause discriminatory intent does tend to persist through time” (citation omitted)). Notably, the Court recently found less pervasive official expressions of hostility and the failure to disavow them to be constitutionally signifi­ cant. Cf. Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n, 584 U. S. ___, ___ (2018) (slip op., at 18) (“The official expressions of hostility to religion in some of the commissioners’ comments—comments that were not disavowed at the Commission or by the State at any point in the proceedings that led to the affirmance of the order—were inconsistent with what the Free Exercise Clause requires”). It should find the same here.

Ultimately, what began as a policy explicitly “calling for a total and complete shutdown of Muslims entering the United States” has since morphed into a “Proclamation” putatively based on national-security concerns. But this new window dressing cannot conceal an unassailable fact: the words of the President and his advisers create the strong perception that the Proclamation is contaminated by impermissible discriminatory animus against Islam and its followers.

Rather than defend the President’s problematic state­ments, the Government urges this Court to set them aside and defer to the President on issues related to immigra­ tion and national security. The majority accepts that invitation and incorrectly applies a watered-down legal standard in an effort to short circuit plaintiffs’ Establish­ment Clause claim.


I am not copying the balance of the decision, as I have to cut and paste one paragraph at a time, which is very tedious. To read the rest, go to the decision itself.

Click to access 17-965_h315.pdf

But here is the concluding section. I fully expect Justice Sotomayer’s Dissent to be read in generations to come as an affirmation of basic American principles, and the majority decision will be reviled as an e er is in bigotry and raw political power, like the majority decisions in Dred Svott, Plessey v Ferguson, and Korematsu.

Justice Sotomayor concludes:

The First Amendment stands as a bulwark against official religious prejudice and embodies our Nation’s deep commitment to religious plurality and tolerance. That constitutional promise is why, “[f]or centuries now, people have come to this country from every corner of the world to share in the blessing of religious freedom.” Town of Greece v. Galloway, 572 U. S., at ___ (KAGAN, J., dissent­ ing) (slip op., at 1). Instead of vindicating those principles, today’s decision tosses them aside. In holding that the First Amendment gives way to an executive policy that a reasonable observer would view as motivated by animus against Muslims, the majority opinion upends this Court’s precedent, repeats tragic mistakes of the past, and denies countless individuals the fundamental right of religious liberty.

Just weeks ago, the Court rendered its decision in Mas­ terpiece Cakeshop, 584 U. S. ___, which applied the bed­ rock principles of religious neutrality and tolerance in considering a First Amendment challenge to government action. See id., at ___ (slip op., at 17) (“The Constitution ‘commits government itself to religious tolerance, and upon even slight suspicion that proposals for state inter­ vention stem from animosity to religion or distrust of its practices, all officials must pause to remember their own high duty to the Constitution and to the rights it secures’” (quoting Lukumi, 508 U. S., at 547)); Masterpiece, 584 U.S., at ___ (KAGAN, J., concurring) (slip op., at 1) (“[S]tate actors cannot show hostility to religious views; rather, they must give those views ‘neutral and respectful consideration’ ”). Those principles should apply equally here. In both instances, the question is whether a gov­ ernment actor exhibited tolerance and neutrality in reach­ ing a decision that affects individuals’ fundamental reli­ gious freedom. But unlike in Masterpiece, where a state civil rights commission was found to have acted without “the neutrality that the Free Exercise Clause requires,” id., at ___ (slip op., at 17), the government actors in this case will not be held accountable for breaching the First Amendment’s guarantee of religious neutrality and toler­ ance. Unlike in Masterpiece, where the majority consid­ ered the state commissioners’ statements about religion to be persuasive evidence of unconstitutional government action, id., at ___–___ (slip op., at 12–14), the majority here completely sets aside the President’s charged state­ ments about Muslims as irrelevant. That holding erodes the foundational principles of religious tolerance that the Court elsewhere has so emphatically protected, and it tells members of minority religions in our country “‘that they are outsiders, not full members of the political commu­ nity.’ ” Santa Fe, 530 U. S., at 309.

Today’s holding is all the more troubling given the stark parallels between the reasoning of this case and that of Korematsu v. United States, 323 U. S. 214 (1944). See Brief for Japanese American Citizens League as Amicus Curiae. In Korematsu, the Court gave “a pass [to] an odious, gravely injurious racial classification” authorized by an executive order. Adarand Constructors, Inc. v. Peña, 515 U. S. 200, 275 (1995) (GINSBURG, J., dissenting). As here, the Government invoked an ill-defined national- security threat to justify an exclusionary policy of sweep­ ing proportion. See Brief for Japanese American Citizens League as Amicus Curiae 12–14. As here, the exclusion order was rooted in dangerous stereotypes about, inter alia, a particular group’s supposed inability to assimilate and desire to harm the United States. See Korematsu, 323 U. S., at 236–240 (Murphy, J., dissenting). As here, the Government was unwilling to reveal its own intelligence agencies’ views of the alleged security concerns to the very citizens it purported to protect. Compare Korematsu v. United States, 584 F. Supp. 1406, 1418–1419 (ND Cal. 1984) (discussing information the Government knowingly omitted from report presented to the courts justifying the executive order); Brief for Japanese American Citizens League as Amicus Curiae 17–19, with IRAP II, 883 F. 3d, at 268; Brief for Karen Korematsu et al. as Amici Curiae 35–36, and n. 5 (noting that the Government “has gone to great lengths to shield [the Secretary of Homeland Securi­ ty’s] report from view”). And as here, there was strong evidence that impermissible hostility and animus motivated the Government’s policy.

Although a majority of the Court in Korematsu was willing to uphold the Government’s actions based on a barren invocation of national security, dissenting Justices warned of that decision’s harm to our constitutional fabric. Justice Murphy recognized that there is a need for great deference to the Executive Branch in the context of na­ tional security, but cautioned that “it is essential that there be definite limits to [the government’s] discretion,” as “[i]ndividuals must not be left impoverished of their constitutional rights on a plea of military necessity that has neither substance nor support.” 323 U. S., at 234 (Murphy, J., dissenting). Justice Jackson lamented that the Court’s decision upholding the Government’s policy would prove to be “a far more subtle blow to liberty than the promulgation of the order itself,” for although the executive order was not likely to be long lasting, the Court’s willingness to tolerate it would endure. Id., at 245–246.

In the intervening years since Korematsu, our Nation has done much to leave its sordid legacy behind. See, e.g., Civil Liberties Act of 1988, 50 U. S. C. App. §4211 et seq. (setting forth remedies to individuals affected by the executive order at issue in Korematsu); Non-Detention Act of 1971, 18 U. S. C. §4001(a) (forbidding the imprisonment or detention by the United States of any citizen absent an Act of Congress). Today, the Court takes the important step of finally overruling Korematsu, denouncing it as “gravely wrong the day it was decided.” Ante, at 38 (citing Korematsu, 323 U. S., at 248 (Jackson, J., dissenting)). This formal repudiation of a shameful precedent is laud­ able and long overdue. But it does not make the majority’s decision here acceptable or right. By blindly accepting the Government’s misguided invitation to sanction a discrimi­ natory policy motivated by animosity toward a disfavored group, all in the name of a superficial claim of national security, the Court redeploys the same dangerous logic underlying Korematsu and merely replaces one “gravely wrong” decision with another. Ante, at 38.

Our Constitution demands, and our country deserves, a Judiciary willing to hold the coordinate branches to ac­ count when they defy our most sacred legal commitments. Because the Court’s decision today has failed in that respect, with profound regret, I dissent.

Arthur Camins recalls his father’s rise from poverty to the middle class, and his political evolution, reminds Camins about what matters most.

“Countless state, local, and national offices across the country are controlled by Republicans who care only about protecting the privileges of wealthy white folks. They will spare no expense nor let anything stand in their way- not the health or education of children, seniors or the disabled; not the fate of blameless children of immigrants; not the threat of annihilation from a nuclear war; not the steady erosion of the right of every citizen to vote; not even the sustainability of life itself on the planet. Nonetheless, Americans elected them. Americans need to vote to defeat them.

“The dangers are imminent. For the foreseeable future an electable progressive third party is a pipe dream. Unless and until the Democratic Party unambiguously regains the trust and loyalty of working people and does so explicitly across racial lines, there is no hope of reversing the tide of growing inequality, alarming erosion of democracy, and destruction the environment.

“The New Deal and to a lesser extent, the Great Society made social obligation through government action a normative value. However, the political failure to link racism with broader inequality sowed the seeds of an individualism that is defined by selfishness.

“My father’s Democratic Great Depression- and World War II-influenced generation is gone. The most recent chance to build cross-racial solidarity– the Great Recession– was squandered. However, that opportunity can yet be reclaimed.

“A WPA-like massive job creation project to rebuild roads, highways, bridges, develop clean energy, and fund scientific and medical research was never seriously considered– at least as a rallying point if not achievable legislation. Instead we got some private sector so-called shovel-ready projects.

“Federal action avoided complete disaster, but the nation got nothing on the bold unifying scale of Social Security to deal with dwindling retirement incomes or Medicare to address the unaffordability of health care. Universal guaranteed healthcare for all was never on the table–even as moral and economic principle. Instead we got limited, private insurance-based, high-deductible plans. For the vast majority of Americans with employer-provided health insurance, the Affordable Care Act was easily perceived, once again, as being for them, not all of us. Nothing is on the horizon to substantively address the unaffordability of housing.

“On education– another potential unifier– Democrats, instead of addressing burdensome property taxes, pushed taxpayer funded, privately governed charter schools and high-stakes tests, with a hefty measure of anti-union rhetoric.

“Whereas the New Deal wrought decades of allegiance to the Democratic Party, their response to the Great Recession ended in voter cynicism, a drop in voter turn-out among African Americans, and the election of a racist, wealth-protecting Republican.

“Disconnected from either the unions or social movements that catalyzed the New Deal or Great Society programs, my father ascribed progress to great men. Because FDR and LBJ responded with tangible actions, they won his allegiance. Those same forces and responsive Democratic men and women can win back the allegiance of a vast cross-section of Americans.

“In fact, it is when we bound in a web of mutual that we are most fulfilled and reach our greatest human potential.

“That is the winning Democratic platform.”

Steven Singer explains a paradox: Shunning Sarah Huckabee Sanders is actually a sign of respect. He calls it “the height of respect.”

He writes:

Press Secretary Sarah Huckabee Sanders went to the Red Hen restaurant and was refused service because she works for the Trump administration.

But while many far right and mainstream media outlets are decrying the restaurateur’s decision as discourteous, they seem to have missed the point.


It was exactly the opposite.

There was no greater way to show Sanders respect than to deny her service.

After all, she defended the Supreme Court’s recent ruling for a conservative baker’s right to refuse to make a cake for a gay couple’s wedding.

If Sanders thinks it’s a good thing for this baker to be able to deny service to someone because this potential customer’s lifestyle violates his moral convictions, then she should also support the owner of the Red Hen denying her service because her lifestyle violates the owner’s moral convictions.

And make no mistake – this isn’t a rebuke of Sanders. It’s a celebration.

Twice in the New Testament Jesus, himself, is quoted prescribing what has come to be called The Golden Rule.

In Matthew 7:12:

“Do to others what you want them to do to you. This is the meaning of the law of Moses and the teaching of the prophets.”

In Luke 6:31:

“Do to others what you would want them to do to you.”

Sanders and other Trump Republicans have done onto others in just this manner. Therefore, that is how they must also want to be treated.

Isn’t that exactly what the owner of the Red Hen did?

She knew Sanders was in favor of business owners refusing service based on their own personal religious convictions.

Sanders life violates the owner’s religious convictions.

Therefore, she should deny Sanders service.

Got that?

I actually tweeted exactly these sentiments right after the Red Hen honored Sanders by evicting her, doing to her what the baker did to two gay men in Colorado. Biblical.

Lorna Lewis, school superintendent on Long Island, was named president of the New York State Council of Supervisors. I don’t normally note events of this sort but do so now, first because of her inspiring story as an immigrant from Jamaica who enriched our country, but mostly because of a wonderful poem that she cited.

“Being a pioneer in her career field is nothing new for Lewis, who over the past decade has emerged as the first black female educator on the Island to take charge of two predominantly white school districts. She is now completing her sixth year in the 4,790-student Plainview-Old Bethpage district, after spending five years in the 1,700-student East Williston system.

“Lewis, who came to New York from Jamaica as a teenager in the early 1970s, believes that her success in running high-achieving suburban districts conveys a message that people need to hear in a time when immigration is a political hot button…

“Lewis, who is now in her 60s, spent her childhood in Jamaica’s capital of Kingston. She was raised by an aunt who was a schoolteacher and principal, and who instilled in her a passionate belief that a solid education was the sure route to upward mobility.

“Lewis still remembers the words of a song she memorized in school, with lyrics by Desmond Dekker, a popular Jamaican singer-songwriter:

“Labor for learning before you grow old,
Because learning is better than silver and gold.
Silver and gold will vanish away,
But a good education will never decay.”

“At age 16, Lewis enrolled at Fordham University, where she earned a bachelor’s degree in physics. She went on to obtain a master’s degree in the same subject from Rutgers University and a doctorate in science education from Teachers College, Columbia University.”

Friends tell me she loves testing. If she reads this, I hope she will take my advice to read “The Death and Life of the Great AMERICAN School System: How Testing and Choice Are Undermining Education” and “Reign of Error.” Good summer reading!