(Originally posted on Daily Kos.)

Four events in the past 10 days invite reflection on the question of race in 2009. Beyond the fact that there was some level of involvement by the ACLU in each, there were no obvious connections between the four. On closer examination, though, each raises significant and related questions about the likelihood of achieving true racial equality in the near future as well as the steps necessary to assure future opportunity for everyone.

On June 26, the Kirwan Institute for Race and Ethnicity at Ohio State University, along with partners including the ACLU, announced the launch of a website, www.fairrecovery.org, intending to highlight the uneven impact of the current economic crisis on communities of color and the need to assure that stimulus funding reach those communities. The website contains a host of tools and resources to make it possible for the stimulus funds to be distributed equitably. But included with links to information about the funding and the applicable law controlling its distribution is a sobering message about current inequalities and a cautionary note pointing out how prior efforts to address economic needs not only failed to address wealth gaps, but actually made them worse. The website illustrates how the high levels of unemployment and housing foreclosures which triggered the economic crisis had existed in communities of color long before there was any general concern about the national economic state as a whole. And the site reminds us that highly touted programs such as the G.I. Bill, social security and interstate highway construction programs contributed to conditions which hurt the ability of people of color to enjoy equal opportunity. With that reminder, the site urges us to heed the past and assure that we don’t repeat it.

One day after fairrecovery.org launched, a circuit court judge struck down a proposed ballot initiative aimed at amending the Missouri Constitution to forbid affirmative action in education, public contracting and public employment. The initiative is part of a concerted effort initiated by Ward Connerly, the Californian anti-affirmative crusader, to prohibit the consideration of race in these areas. The effort appears to be based on the belief that the greatest barriers to participation in the social and economic life of the country is suffered by whites, notwithstanding the evidence that shows that people of color continue to be exposed to discrimination regardless of their education or economic level. As significant as the victory is, it is based in large part on state procedural requirements for initiating ballot initiatives, and Timothy Asher, the sponsor of the proposed initiative, has re-started the process in order to try to get the anti-affirmative action initiative on the ballot.

On June 29, in a case in which the ACLU has submitted a friend-of-the-court brief, the U.S. Supreme Court announced its decision holding that the City of New Haven had violated the rights of 17 white firefighters and 1 Latino firefighter to be free from discriminatory treatment under Title VII of the Civil Rights Act of 1964 when it decided to scrap the results of a test that the city believed had unfairly disadvantaged black and other Latino firefighters in violation of a different provision of the same statute. The precise effects of the ruling remain to be seen. What is immediately certain is that New Haven, which has a long and sorry history of discrimination in the hiring of nonwhite firefighters and whose nonwhite population is nearly 60 percent, will continue to be served by a fire department with few people of color in its ranks.

At the same time that the Supreme Court was making it more difficult for the City of New Haven to increase the number of nonwhite officers in the ranks of its firefighters, the ACLU announced the release of a report to the United Nations outlining the widespread persistence of racial profiling despite the Bush administration’s denial of the problem. The report documents instance after instance of people denied the ability to participate in society in the most basic way because of their race, religion or ethnicity.

This confluence of recent events reveals a systemic disconnect between the clear fact of continuing racial inequality and the progressively greater roadblocks to its elimination. Courts and government agencies blithely assert the creed of color-blindness in the face of clear and unequivocal proof of the negative impact associated with race in the United States.

Despite this frustrating dissonance, there is hope. Whatever else the Supreme Court did, it did not shut the court house door to plaintiffs seeking relief under federal civil rights laws, nor did it prohibit governments from taking steps to eliminate discriminatory hiring practices. The U.N. has been advocating for the adoption of measures, such as the passage of a federal End Racial Profiling Act, which hold the promise of taking steps to eliminate racial profiling. As fairrecovery.org illustrates, careful use of stimulus funds could result in economic fairness and true equality of opportunity. And, perhaps, efforts to limit the ability of states to bring fairness to their hiring, contracting and educational policies can be defeated.

None of these things can happen without a conscious decision on the part of the government and the American people to recognize the need to take the steps to acknowledge and the address those things which keep us from living up to the promises of our laws and our core beliefs.

The Supreme Court today ruled that school officials violated the constitutional rights of a 13-year-old Arizona girl when they strip searched her based on a classmate's uncorroborated accusation that she previously possessed ibuprofen. The ACLU's Drug Law Reform Project represented April Redding, the plaintiff in the lawsuit, whose daughter, Savana Redding, was strip searched by Safford Middle School officials six years ago.

Adam Wolf, an attorney with the ACLU who argued the case before the Court, said today:

We are pleased that the Supreme Court recognized that school officials had no reason to strip search Savana Redding and that the decision to do so was unconstitutional. Today's ruling affirms that schools are not constitutional dead zones. While we are disappointed with the Court's conclusion that the law was not clear before today and therefore school officials were not found liable, at least other students will not have to go through what Savana experienced.

The ACLU today released a report summarizing the civil liberties and civil rights record of Judge Sonia Sotomayor, who was nominated by President Obama to replace retiring Justice David Souter as an Associate Justice of the United States Supreme Court. The report was prepared in accordance with ACLU policy, and will be made available to the public and members of the Senate.

The ACLU does not endorse or oppose candidates for elective or appointive office.

The full text of the report is online at: www.aclu.org/scotus/2008term/39769pub20090608.html.

On Monday, the Supreme Court decided an important case, Flores-Figueroa v. United States, which has serious implications for immigrant workers. In a unanimous decision, the Court held that "aggravated identity theft," a serious federal crime imposing a mandatory minimum two-year prison sentence, cannot be used to criminalize persons who have no knowledge that a false ID or Social Security number or other means of identification they are using belongs to another person.

During the Bush Administration, the government prosecuted or threatened to prosecute hundreds of immigrant workers for aggravated identity theft even when there was no evidence that the worker knew that he or she was using false documents that belonged to another person. As the Supreme Court has now held, the government's view contradicted the plain words of the statute, which requires knowledge.

The most notorious example of this occurred almost one year ago, on May 12, 2008, when U.S. Immigration and Customs Enforcement (ICE) raided a slaughterhouse in Postville, Iowa and subjected more than 300 Guatemalan and Mexican workers to criminal prosecution for using false documents to work. The prosecutions were designed and implemented to achieve high-pressure, mass processing of hundreds of indigent defendants in an extremely short period of time. Not only were few attorneys appointed to represent hundreds of defendants, but the government threatened workers with charges of aggravated identity theft — carrying the two-year mandatory prison sentence — if they did not plead guilty (within seven days) to knowingly using false employment documents or a false Social Security number with a sentence of five months incarceration.

As a result, the workers were faced with the choice between two years in prison or a shorter term of five months. Within days, the overwhelming majority of workers pled guilty and served five months or longer in prison. Some of them are still in prison today.

The ACLU submitted testimony to Congress on the abuses that occurred in Postville.

Most of the workers employed by Agriprocessors, Inc. in Postville were reportedly given an arbitrarily selected number by their employer to use as their Social Security number. Many of the prosecuted workers did not know what the number was used for (PDF), much less that it belonged to another person.

The Court's ruling makes clear that the government can no longer use a criminal statute designed to combat actual identity theft to go after and punish immigrant workers. That the government misused the aggravated identity theft charge as a hammer to pressure Postville workers to waive all their rights and plead guilty to lesser charges was a true miscarriage of justice — the punishment simply did not fit the crime.