DEREK CHAUVIN AND THE MYTH OF THE IMPARTIAL JUROR

By Sonali Chakravarti, Black Agenda Report.

April 7, 2021




https://popularresistance.org/derek-chauvin-and-the-myth-of-the-impartial-juror/



As A Space For Democratic Deliberation And Decision-Making, The Jury Box Still Has The Potential To Shift The Criminal Legal System – But First We Must Change Who Is Able To Serve On A Jury.


“The legitimacy of the criminal legal system is in tatters, and rightfully so.”

Did you, or someone close to you, participate in any of the demonstrations or marches against police brutality that took place in Minneapolis after George Floyd’s death?. . . If you participated, did you carry a sign? What did it say?

These questions were part of the questionnaire given to those summoned to serve as jurors in the trial of Derek Chauvin, the Minneapolis police officer accused of killing George Floyd. Provided that judges and attorneys are willing to take these questions up, they could hold the key for beginning more nuanced conversations about race and the criminal legal system.

As is well known, the jury selection process is one of the most consequential and contentious phases of the criminal trial. Attorneys from both sides attempt to empanel a jury sympathetic to their “side” and, thus, more likely to decide in their interest. However, the battle is just as much a defensive one as it is an offensive one: attorneys can exercise considerable discretion in rooting out jurors who might be disinclined to decide in their favor for reasons of personal prejudice or distrust of law enforcement. Jury consultants, who specialize in this process, represent a multi-million-dollar-a-year cottage industry.

One of the key tools in these consultants’ arsenals is the questionnaire. It is used to gauge biases and predispositions in a more candid way than is possible during voir dire, the questioning process conducted by judges and attorneys in the courtroom, usually in front of the other jurors. The recently released questionnaire for the Chauvin trial represents a notable development in the jury selection process, and also an opportunity. It suggests an evolution in the way that the court perceives supporters of Black Lives Matter (BLM) and a possibility for incorporating jurors who can bring knowledge of systemic racism into the legal system. These changes will not come easily—jury selection is compromised by some of the same structural forces of racism that led to the killings that necessitated BLM in the first place. Black jurors are less likely to be called for jury duty, less likely to be seen as qualified jurors, and more likely than their white peers to be dismissed. The legitimacy of the criminal legal system is in tatters, and rightfully so. The best path forward may be changing who is able to serve on a jury through a contextual understanding of impartiality—that is, shifting our notion of what an “impartial” juror should mean in a historically unequal criminal legal system.


“It suggests a possibility for incorporating jurors who can bring knowledge of systemic racism into the legal system.”

The questions posed to the Chauvin jury suggest that the norm of dismissing jurors who are critical of patterns of racism and police brutality might be shifting. Yet this can only be the case if judges and attorneys change their understanding of BLM, shifting their view that supporting BLM is an extreme position at odds with the responsibilities of being a juror. This view was put on display most recently in the case of Crishala Reed.

When Crishala Reed (then known as Juror 725) was called for jury duty in Contra Costa County in California in 2016, she was ready to serve. She was given a questionnaire, in which she stated that she was in support of BLM. Attorneys took the issue up, asking her if she agreed with the destruction of property (though the three defendants were charged with murder). She said she did not. Reed remained in the pool after questioning, but the prosecution used one of their peremptory strikes to dismiss her. They later defended her dismissal by saying that BLM was a fringe organization that condoned the destruction of property, thus making it impossible for her to apply the law as a juror. They also claimed that their dismissal was not racially motivated—they would have dismissed a white juror who expressed the same views.

Reed’s dismissal was not only a loss for the three Black defendants, but also a personal insult to Reed—the court effectively told her that she was not qualified to participate in the process of deciding justice because she supported BLM. She told the Marshall Project, “I felt targeted. It was a life-changing experience for me, personally. And I still talk about it to this day. I tell my kids about it. Not to scare them but to make them aware.” Her dismissal represented a check on her ability to participate in democratic life. Sure, she could vote, but the state did not trust her to help decide the fate of another person, supposedly solely because of her affiliation with BLM.

In an amicus brief filed at the California Court of Appeals, lawyers from the MacArthur Justice Center, the ACLU, and other civil rights organizations argued that Reed’s dismissal was in violation of the Constitution. They contended that her support for BLM could be considered a proxy for race, given that many more Black people than jurors of other races supported the movement at that time. Consistent with the precedent set in Batson v. Kentucky (1986) and affirmed in Flowers v. Mississippi (2019), it is unconstitutional to dismiss jurors on the basis of race. While the authors of the amicus brief framed their argument in racial terms to form the basis for a successful appeal, this angle ignores a critical issue: beyond race, there is value in including BLM supporters on juries—more broadly, there is value in including jurors who are critical of the criminal legal system and aware of its too often unequal and racist applications.


“The court effectively told Reed that she was not qualified to participate in the process of deciding justice because she supported BLM.”

After the summer of 2020, BLM can no longer be considered a fringe organization—a large and diverse group of people supports the movement. A Pew Research poll taken in September 2020 found that 55 percent of Americans supported the movement, including 16 percent of white people who considered themselves Republicans or Republican leaning. Protests occurred in all fifty states after the death of George Floyd, and the issue of police violence against Black citizens has been chronicled and supported in a variety of ways around the globe. A potential juror mentioning the documented unequal pattern of racial violence at the hands of police should not automatically lead to their dismissal. Rather, it should be understood as affirmation of just the type of civic awareness and attention to law that jurors should have.

The founders instituted a jury system for criminal cases not only to check the tyrannical power of the state in prosecuting political enemies, but also to ensure that democratically sanctioned laws were enforced fairly. Today, as then, this is a mandate that requires lived experiences with law enforcement in particular communities. As countless civilian review board decisions have shown, it is impossible for law enforcement to monitor themselves, just as it is for representatives of law enforcement to determine what constitutes entrapment—they are too enmeshed in the process and invested in guilty verdicts.

For this reason a distinctive part of the jury system’s function is to bring in knowledge of the way laws are enforced in the lives of ordinary people. But this role is being undermined by what legal scholar Rachel Barkow calls the rise of the administrative state . In the administrative state, courts, instead of encouraging debate over different values and interpretations of justice, increasingly enforce regulatory decisions. Juries are the antithesis of this bureaucratic and regulatory vision of law—the variability of having twelve randomly selected people decide a case is the jury’s virtue as well as its shortcoming. Jury decisions are neither predictable nor consistent, but they are a laboratory for democratic deliberation. The jury should serve as a place where different communities reckon with what the guidelines for law enforcement should be. This means including individuals who understand the patterns of racism that BLM has brought to light.


“The jury should serve as a place where different communities reckon with what the guidelines for law enforcement should be.”

It is time to shift our collective understanding of who constitutes an “impartial” juror. The concept of impartiality is notoriously difficult to define, in part because it implies that a juror must be equally fair to the prosecution and defense, when in reality their task is to hold the prosecution to a high standard and presume innocence on the part of the defendant. Impartiality is also difficult to understand because it contradicts everything we know about human nature. Past experiences, political ideologies, and cultural priming shape how we understand events—no one can be truly impartial when asked to judge acts of intense violence and emotion.

In its distilled form, however, the Sixth Amendment right to an impartial jury can be understood as the defendant’s right to jurors who have not already determined guilt. Just as attorneys and judges can ask questions to determine a juror’s qualification, it is also significant that jurors understand the safeguards of the trial system for the defendant. It is here, between the poles of BLM and the constitutional ideals of the trial, that a new way of thinking about justice will emerge.

The questionnaire sent to potential jurors in the Chauvin case included questions pertaining to these safeguards, for example: “Under our system of justice, the prosecution has the burden of proving the defendant guilty beyond a reasonable doubt. Would you have any difficulty following this principle of law?” While the statement may seem to dissuade jurors from convicting Chauvin, it is a critical aspect of the process that jurors cannot ignore. Of course a juror who supports BLM will not automatically find every member of law enforcement guilty; it is worth being explicit about this during voir dire and in broader discussions of the scope of the movement. A juror takes on a highly particular role, distinct from that of an activist, protester, Twitter agitator, or bystander. Serving on a jury requires interrogating one’s own biases, being open to the evidence presented, and understanding the jury’s role as a check on state power.


“No one can be truly impartial when asked to judge acts of intense violence and emotion.”

In the past defense attorneys have been disappointed that vocalizing support for BLM also occasioned a refusal on the part of a potential juror to acknowledge the responsibilities of serving on a jury, including openness to a consideration of the evidence. As the movement expands, there is an opportunity to articulate an ideological space for potential jurors to support BLM and critique the racialized patterns of law enforcement, while simultaneously remaining committed to the expectations of the trial and the protections for the defendant. Better questions from the court during voir dire are certainly necessary, but so are opportunities for different answers from potential jurors. The set of questions about BLM coupled with the more common questions about the trial process in the questionnaire for the Chauvin case are important—they demonstrate the need for a prolonged conversation about justice that holds the ideals of the law and the flawed reality of their application in delicate balance. Indeed, as these questions show, one does not need to maintain complete faith in the legitimacy of the criminal legal system to be a competent juror. In fact many judges and lawyers do not, electing to work in the system for that very reason.

A change in our understanding of impartiality may also have implications for grand jury trials in police brutality. The recent grand jury decisions declining to indict officers in Rochester and Cleveland reveal that the recent nationwide protests after the death of George Floyd will not change how police brutality cases are adjudicated. Even in situations where the prosecutor does want to go forward with the charge, the formulation of the law—with its emphasis on the officer’s subjective interpretation of threat—favors the officer. A change in an understanding of impartiality might lead jurors to show less deference to an officer’s subjective experiences of threat based on race, owing to jurors own lived experiences and understandings of how systemic bias might impact the events in question.

A juror in the trial of George Zimmerman for the killing of Trayvon Martin said that the jurors did not consider race at all during their deliberations, revealing what may have been seen as the epitome of impartiality then but has a different resonance today. In 2014 ignoring race was arguably the ideal when considering the “stand your ground” law in Florida. Today, however, understanding how racism persists despite racially neutral laws and purported claims to fairness is crucial to legal judgment. We are now painfully aware of how police target Black people in a way fatally different from the treatment they afford their white counterparts. In this climate we want jurors to be aware of race and the role that it plays in the legal system. Legal scholar Cynthia Lee has found that presenting jurors with “race-switching jury instructions,” where they consider how their thinking might change if the victim were another race, is one example of how we can uncover bias and aid deliberation.


“We want jurors to be aware of race and the role that it plays in the legal system.”

Judges may now be more inclined to include jurors who recognize the tension between acknowledging racism in the legal system and adhering to the system’s ideals of protections for the defendant. Indeed, judges are being asked to do the same thing. Recognizing bias is currently a pressing issue for judges, who are having to confront evidence of their own implicit biases despite their professional obligations to combat partiality. For example, federal district judge Mark W. Bennett recently took the Harvard Implicit Association Test (IAT), one of the most well-known psychological experiments for identifying implicit bias. He reports finding the experience “deeply unnerving,” stating, “I knew I would ‘pass’ with flying colors. I didn’t.” Judge Bennett, however, used this knowledge of his own biases for good—he advocated for an end to peremptory strikes (which are often the result of implicit biases), as well as training for attorneys and jurors about the ubiquity of these biases and what might be done in the decision-making process to offset their effects. Unfortunately, his suggestions have not yet been widely implemented.

While there are many reasons for BLM supporters to experience legal estrangement, a sense of detachment, and skepticism toward legal institutions and their capacity to achieve justice, serving on a jury may cultivate a different aspect of legal consciousness. As the most democratic institution in the legal system, it is the only one that respects the capacity of laypeople to make difficult decisions about punishment and forgiveness and respects those decisions as final, an ideal that is important to preserve even if many other aspects of the legal system are overhauled in the service of racial equity and a turn away from retributive punishment.

In 2014, after the grand jury in St. Louis declined to indict Officer Darren Wilson for the killing of Michael Brown, local organizers and community members led by a group called the International People’s Democratic Uhuru Movement in Ferguson convened “The Black People’s Grand Jury” (BPGJ). The BPGJ examined the evidence and witness statements from the case in a mock version of the formal process. A small number of community members were also asked to recall their experiences with the Ferguson police, supplementing the testimony of Dorian Johnson, Michael Brown’s friend who was him at the time of his death. The leaders of the Uhuru Movement, which is grounded in the ideals of African internationalism and the need for the self-governance of Black communities, saw a chance for the BPGJ to manifest these aspirations. The formal grand jury was, from the Uhuru Movement’s perspective, skewed by racist language meant to influence jurors—such as Darren Wilson stating that when he placed a hand on Brown’s arm he felt like a five-year-old trying to hold onto the Incredible Hulk. But the concept of a deliberative body convened to adjudicate decisions about guilt and punishment remained an aspiration to the community. The BPGJ reflects that, even in light of community disappointment and deep skepticism about the legal system, community members still want to participate in a meaningful legal process and help change the way that future crimes are understood.

Even though the BPGJ’s 11-1 jury decision to indict could not be enforced, going through the process of the trial was a critical part of the local reckoning that happened in the aftermath of violence. It engaged community members while gathering information in a central location, akin to a rudimentary truth commission. While the law is fundamentally linked to racist practices in this country, the idea that there could be fair procedures and democratic participation in the most important decisions of punishment lives on.


“Community members still want to participate in a meaningful legal process and help change the way that future crimes are understood.”

Indeed, “procedural justice” refers to perceptions of fairness in all the processes associated with the legal system. To cooperate with the system, citizens want reassurance that defendants will be treated fairly and able to access all the protections to which they are entitled. Innumerable studies have shown that people have an easier time accepting a decision that is not in their favor if they feel they were treated fairly in the process. Revitalizing the jury as a critical node of procedural justice through changing the way Black jurors and jurors who support BLM are included could open a path to civic trust.

For many people serving on a jury is the most demanding form of civic participation that they will engage in. It also reflects an ambitious version of enfranchisement where citizens have the capacity to determine the course of justice. In an era where consensus about shared facts is hard to come by, the jury process demands that an individual set aside preconceived notions and do their best to listen and contribute to a verdict that all can endorse. Despite the very real ways racial discrimination has marred the jury process, it remains one of our best hopes for a democratic society that takes the participation of all people, randomly selected, as central to the administration of justice.

Black leaders from William F. Butler to Frederick Douglass have understood the right to be on a jury as a significant part of enfranchisement . As Butler, the Kentucky-born political leader, said in 1867, “First we had the cartridge box, now we want the ballot box, and soon we will get the jury box.” Just as the tens of thousands of new voters in Georgia and elsewhere were able to shape the election of 2020, we are in the middle of a period of notable legal changes that could expand the number of jurors called for service and those allowed to serve. This may even affect whether or not defendants choose to go to trial—they may opt to more frequently if they can be confident that they will have jurors who represent a fair cross section of the population, especially in racial and ethnic terms. Changing our expectations of who should be allowed to serve on a jury shows us that the march for freedom does not tarry at the ballot box, but rather proceeds forward into the heart of the justice system and to the jury box itself.

REFORMING AN UPRISING, BUT NOT THE POLICE

By Adnan Ahmed, Cliff Willmeng, Theresa Berrell Stets and Merrily Mazza, Left Voice.

April 7, 2021




https://popularresistance.org/reforming-an-uprising-but-not-the-police/



“Yes 4 Minneapolis.”

Minneapolis voters now may have a few different police-reform options to consider in the upcoming city elections in November. Despite promises to dismantle the Police Department, the proposals on the table will do nothing to stop police violence.

As the Derek Chauvin trial continues, Minneapolis residents witness the militarization of their city. Fearful of another uprising, terrified lawmakers have erected barricades and razor wire fences around the Government Center, City Hall, and police stations. The fortification is estimated to cost $645,000. Additionally, law enforcement has been using surveillance planes to look for signs of unrest. After backlash from community members, Minneapolis officials dropped their plan to hire social media influencers to share state-sanctioned messaging about the Chauvin trial.

On March 12, 2021 — as the jury selection was underway — the City of Minneapolis agreed to pay $27 million to George Floyd’s family to settle a wrongful death lawsuit, raising concerns from Judge Cahill and Chauvin’s defense attorney that the jury might be swayed against Chauvin.

Immediately after Floyd’s murder, the Minneapolis City Council publicly vowed to dismantle the Police Department, a pledge from which it later backed out.

Minneapolis voters now may have a few different police-reform options to consider in the upcoming city elections in November.

The City Council and Yes 4 Minneapolis (a coalition of advocacy groups) are each proposing separate but very similar plans to establish a Department of Public Safety, which would replace the Police Department. Meanwhile, Twin Cities Coalition for Justice 4 Jamar (TCC4J — an anti-police-brutality community group formed after the police killing of Jamar Clark) is proposing a Civilian Police Accountability Council, which will have oversight over the Police Department.

The three proposals have slightly different paths to the November ballot. Under the city charter, there are three ways to get an amendment on the ballot: through the Charter Commission (an unelected body of 15 members appointed by the Chief District Court Judge), through the City Council, or through a citizen petition. The City Council proposal would have to go through the Charter Commission and then the mayor before being submitted to voters. Both the Yes 4 Minneapolis and CPAC proposals would require 5 percent of registered voters to physically sign a petition by May 1. These options would go before the City Council and then the mayor before getting on the ballot. Organizers for CPAC, however, do not think they will meet the deadline and are exploring the possibility of qualifying for a special election.

All three proposals will eventually have to be either accepted or vetoed by the mayor before being put on the ballot. The mayor’s decision, however, can be overruled by a vote of nine out of 13 City Council members.
Community Control Proposal

The most radical of the three options is to establish community control of the Police Department. Proposed by TCC4J, this option would elect a 13-member Civilian Police Accountability Commission (CPAC), which would control the police. It would have the power to hire the chief of police and take disciplinary actions in cases of police misconduct. It would also be able to determine the police budget.

Qualifications to be on the CPAC include having work experience in civil rights or being a survivor of police brutality or a family member of someone who was killed by police or subjected to police brutality. CPAC eligibility criteria bar people with a law-enforcement background or people with family members in law enforcement.

Community control of the police is not a new idea. It was first proposed in the 1970s by the Black Panther Party as a response to police violence toward Black people. It is rooted in the principle of giving power over police to the community members most affected by police violence. Proponents of CPAC claim that under civilian control, it would be ultimately up to them (the community) to determine the police budget and to dismantle the police.
City Council Proposal

Then there is the City Council proposal put forth by three City Council members, to create a Department of Public Safety, which would include a law-enforcement division responsible for hiring police. This option would remove the mayor’s complete authority over policing and make it a shared role with the City Council. The City Council option would also remove the current requirement to keep a minimum number of police based on the population.
Yes 4 Minneapolis (City Council Lite) Proposal

The Yes 4 Minneapolis proposal is a milquetoast version of the City Council proposal with a few tweaks that one would certainly miss if not looking closely. It is almost exactly like the City Council proposal — except more vague. The only key difference between the Yes 4 Minneapolis and the City Council proposal is that instead of having a separate law-enforcement division under the Department of Public Safety (City Council proposal), the Yes 4 Minneapolis proposal would integrate officers throughout the Department of Public Safety, which would share the Minneapolis Police Department budget.

Yes 4 Minneapolis is proposed by a new group that goes by the same name. Little information is available as to what exactly the proposal hopes to accomplish besides changing the name of the proposed new entity. Both the City and Yes 4 Minneapolis have responded to requests for the full amendment legal language by directing people to the Yes 4 Minneapolis website, which does not say much.
Philanthropy Will Not Dismantle The Police

Yes 4 Minneapolis calls its petition “The People’s Petition,” but based on its philanthropic roots and lack of transparency, it seems anything but.

Not much is known about the origins of Yes 4 Minneapolis. At the bottom of its website, it says in small print, “Made in [solidarity fist sign] with Color of Change.” Color of Change has a history of running counter-campaigns and using email blasts and social media to gauge and tweak their messaging. It is a powerful racial justice nonprofit founded by Van Jones and James Rucker. In 2016, it also received a five-year $9.25 million grant from the Ford Foundation, which has a history of cooperating with the CIA to suppress radical movements1. Color of Change also received grants from Open Philanthropy Project and Open Society Foundation.

Recently, Yes 4 Minneapolis reported a single donation of $500,000 from George Soros’s Open Society Policy Center. This is more than twice the amount of money Mayor Jacob Frey (an opponent of replacing police with a Department of Public Safety) has on hand for his reelection campaign.

Yes 4 Minneapolis presents a nonthreatening, palatable option of changing something about policing. Given the distrust Minneapolis residents have voiced in the City Council after that body backtracked on the promise to eliminate the Police Department, Yes 4 Minneapolis aims to get more legitimacy than its nearly identical twin, the City Council proposal. It may even be a backup plan in case the City Council proposal is not adopted. Yes 4 Minneapolis also serves to head off support for the more detailed CPAC proposal.

Curiously, despite the vagueness, Yes 4 Minneapolis has garnered support from prominent groups such as Reclaim the Block, ACLU MN, Minneapolis Federation of Teachers and Educational Support Professionals (MFT 59), and Twin Cities DSA. Many people from these organizations have been at the forefront of social justice and abolition work. To understand how a multiracial uprising turned into a philanthropic petition, we need only look at Ronald Duchin’s tested formula to divide and conquer movements: isolate the radicals, cultivate the idealists, educate them into being realists, and then finally co-opt the realists.

In the book The Revolution Will Not Be Funded,2 Tiffany Lethabo King and Ewuare Osayande discuss philanthropy’s use of people of color to its advantage in maintaining the status quo. The Grassroots Institute for Fundraising Training (GIFT) model teaches that most funds come from individual donors rather than foundations, which have limited funds. While advising activists to raise money from their communities, the GIFT model also encourages activists to develop relationships with wealthy individuals. As a result, these activists become beholden to the interests of the donor class.

Grant money from the ruling class will not dismantle or even substantively reform the racist institution of police. Rather, it is a recipe to keep things as they are. A year into the pandemic, as the rich have gotten richer and the poor have gotten poorer, the ruling class is afraid of any semblance of police defunding or dismantling taking place in Minneapolis — the birthplace of the George Floyd uprising — and spreading like a pandemic across the globe.

The movement for defunding or abolishing police seems to have fallen victim to elite capture, the ruling-class influence on well-intentioned activists through propaganda and public-private partnerships.
Public-Private Partnerships And Policing

An often-overlooked function of public-private partnerships is their policing work. A recent example of this is the emergence of groups like Minnesota Safe Streets. Safe Streets is a coalition of nonprofits that are partnering with the YMCA to provide “boots on the ground” (including, during the Chauvin trial, “creation of Critical Incident Response Teams for rapid deployment following the eruption of violence in the metro area”) and coordination with law enforcement.

Safe Streets is only one example of how the state delegates policing to other institutions. A more sinister and well-funded example is the Target Corporation. With its state-of-the-art forensics labs in Minneapolis and Las Vegas, Target has collaborated with law enforcement to surveil and incarcerate young Black people. Using facial recognition technology and collaborating with other stores and across state lines, Target also lets shoplifters steal from them until there is cumulative evidence to charge someone with a felony shoplifting crime. Notably, Jim Rowader, the Minneapolis City Attorney, also happens to be a former Target executive.
No Peaceful Way To Police

Police, whether or not they are under community control, will act exactly as they do now (and as they always have) when it comes to protecting capital. The police are the descendants of slave catchers and have not strayed from their roots. They suppress rebellions just like they did in their slave patrol days. Slave patrols terrorized and disciplined runaway slaves, eventually returning them to plantations. Today their descendants, the police, spread racial terror by arresting and brutalizing Black and Brown people to fill up the prison industrial complex.

The problems of racist policing we face today are inseparable from capitalism. Racist cops or lack of antiracism training are not what make the police racist. The institution of police — true to its origin — is a living example of maintaining a racialized capitalist system. The police or public safety officers will not hesitate to brutalize or kill workers taking over a factory. There is no peaceful way to evict unhoused people from an encampment or to deport undocumented immigrants seeking refuge or to bust a union of predominantly Black and Brown Amazon workers. More “good cops” or cops in T-shirts will not stop “illegal acts” that result directly from capitalism’s exploitation of us for profit.

People often feel compelled to choose an option on the table in the interest of wanting to “do something.” But we must be mindful that capitalism will not solve the problems it has created. The call for police reform is a prime opportunity for the Democratic Party, one of the two parties of capital, to co-opt and infiltrate activist work through nonprofits and philanthropy.

The solutions on the table, all too often, cater to the interests of the capitalist ruling class rather than the people most affected by these problems. A fight against violent racist policing cannot be had without an understanding of the police’s fundamental capital-protecting function and how it cannot fulfil that function without being racist. Our abolition work must be centered around organizing the working class and oppressed people to rise up against the injustices of racialized capitalism and imperialism everywhere.

Left Voice welcomes discourse around these ideas and welcomes people from the Twin Cities to reach out.

Notes

Who Paid the Piper: The CIA and the Cultural Cold War (London: Granta, 2000), 134–35, 139

INCITE!, The Revolution Will Not Be Funded: Beyond the Non-Profit Industrial Complex (Durham: Duke University Press, 2017), 79–87, 85.

How not to protect free speech

Judd Legum and Tesnim Zekeria
Apr 8





On Monday, Popular Information broke the news that Facebook, Google, AT&T, and other prominent corporations that issued statements in support of voting rights had recently donated tens of thousands of dollars to the RSLC, a GOP group pushing voter suppression bills. On Tuesday, Andrew Ross Sorkin, citing Popular Information's reporting, covered the story in the New York Times:


Still, statements by companies about their social priorities deserve a healthy dose of skepticism.

Indeed, some of the same companies taking part in the stampede of statements critiquing voting laws, like Facebook, Google and AT&T, also recently donated money to the Republican State Leadership Committee, a group that supports many of the voting initiatives. Judd Legum, a journalist, pointed out this hypocrisy in his Popular Information newsletter, noting that Republicans have introduced bills to restrict voting in 47 states.

You can support independent journalism that exposes corporate hypocrisy by becoming a paid subscriber.

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How not to protect free speech

Judd Legum and Tesnim Zekeria
Apr 8






The free expression of ideas is a bedrock principle for any democratic society. And that is particularly true on college campuses, where many young people are still developing their core beliefs. Students need the freedom to explore new ideas, challenge opinions they disagree with, and change their minds.

Many conservatives believe that higher education in America is indoctrinating students with progressive views, shielding them from controversial viewpoints, and discouraging free speech. If that is true, it would be a problem. But what is the solution?

In Florida, lawmakers are advancing legislation (HB 233) to "solve" the alleged lack of "intellectual freedom and viewpoint diversity" at the state's public universities. Many of the policy measures in the bill, however, are dystopian and would likely chill free speech on campus.

The bill "would require public colleges and universities to survey students, faculty and staff about their beliefs and viewpoints," the Tampa Bay Times reports. But it "offers no assurances that the survey’s answers will be anonymous, and there is no clarity on who will use the data and for what purpose."

As a result, critics believe the survey could be abused. "Don’t you think it is dangerous for us to have all the data on personal opinions of university faculty and students?" Florida Senator Lori Berman (D) asked. Specifically, the data could be used as a tool for Florida's Republican-controlled legislature to "meddle in, monitor and regulate speech on campus" — rewarding institutions that promote their favored viewpoints and punishing those with less politically popular views. Florida Representative Spencer Roach (R), one of the bill's sponsors, said the survey data could be used "as the basis to make policy decisions."

"I see the potential for the climate survey to be used to withhold appropriations from public universities that in the legislator's opinion do not promote a marketplace of ideas,” Clay Calvert, a law professor at the University of Florida, told Popular Information. Calvert believes that institutions where professors have a perceived "liberal bias" will be targeted.

The legislation was drafted with a certain outcome in mind. Another of the bill's sponsors, Florida Senator Ray Rodrigues (R) says "students have told him they fear being ostracized for expressing conservatives views on campus." The purpose of the survey is to "ascertain" why conservative students feel that way.

Lobbyist Barney Bishop, who is advocating for the bill on behalf of undisclosed clients, said "the cards are stacked in the education system...toward the left and toward the liberal ideology and also secularism — and those were not the values that our country was founded on." The purpose of the bill is to "get our country back" to conservative values.

The survey would be designed by the Florida State Board of Education, which is populated with political appointees of Florida Governor Ron DeSantis (R) that have an ideological agenda. The current chair of the Board, Andy Tuck, opposes the teaching of evolution as a fact. "I strongly oppose any study of evolution as fact at all. I’m purely in favor of it staying a theory and only a theory," Tuck said in 2008. Asked about his statements in 2019, Tuck did not indicate his views had changed.
Campus free speech advocates oppose Florida bill

As originally drafted, the Florida bill would have allowed students to record class lectures for any purpose. The current version allows recording without a professor’s consent for a student's "personal educational use, in connection with a complaint to the public institution of higher education where the recording was made, or as evidence in, or in preparation for, a criminal or civil proceeding." Although public postings of these recordings would be prohibited, the only recourse that professors would have is to sue the student who posted the video.

The Foundation for Individual Rights in Education (FIRE), an organization dedicated to defending free speech on campus, opposes the bill, specifically citing the recording provision. "[T]he consequences of giving a statutory green light to recordings and litigation around [classroom recordings] is fraught with the potential to wreak havoc with classroom instruction, chilling faculty and student speech," FIRE argues.

FIRE says that the provision of the bill that allows the videos to be used "in connection with a complaint to the public institution of higher education where the recording was made," opens the possibility that students and faculty of all political persuasions could be reported to administrators for expressing unpopular views.
Public universities as public forums

Under the bill, universities and colleges would be prohibited from “shielding students, faculty, or staff from certain speech.” The sponsors of the bill go on to clarify that to “shield” means “to limit...access to, or observation of, ideas and opinions that they may find uncomfortable, unwelcome, disagreeable, or offensive.” This provision stems from the false perception that controversial speakers are discriminated against on public campuses and need speech protections.

But under the First Amendment, public colleges and universities cannot restrict campus speech. Unlike a private institution, which can choose to exclude certain speakers, public colleges and universities have little leeway. These entities, viewed as “public forums,” have virtually no ability to restrict speech regardless of the content.

The University of Florida, where Calvert teaches, has hosted numerous controversial speakers. In 2017, amid outrage, the University hosted white nationalist leader Richard Spencer. This was just a few months after Spencer was implicated for his participation in the “Unite The Right” rally in Charlottesville. In 2019, the University drew intense scrutiny after Donald Trump Jr. and Kimberly Guilfoyle spoke at the university. In both instances, the University did not discriminate against the speakers.

“The University of Florida already must comply with the terms of the first amendment because we are a state university. When it comes to controversial speakers, it has proved itself,” Calvert told Popular Information. “So, you have to ask yourself: why do we even need [HB 233]? Why adopt this?”






The Colorado experience

In 2014, the University of Colorado commissioned a study of "ideological diversity" at the institution's four campuses. The study found that "9 percent of faculty members and 17 percent of students report Republican Party affiliation, compared to 42 percent of professors and 29 percent of students who identify as Democrats." But nearly all students (96%) believed that "their instructors promote respectful classroom environments."

Nevertheless, the University "created a visiting scholar program that brought decidedly conservative thought leaders to campus for stints." While some of the right-wing professors have proven popular, the program has run into issues. In January, the University of Colorado stripped visiting conservative scholar John Eastman of his public duties after Eastman spread "conspiracy theories about voter fraud at the Trump rally in Washington, D.C., that preceded the storming of the U.S. Capitol." Chancellor Phil DiStefano called Eastman's behavior "repugnant" but did not fire him. Eastman's contract expires in May.

Landmark Case Could End Biden’s Student Debt Prison

Walter Bragman




Jessica was in her early 30s when she decided to pursue her MBA. She enrolled full-time at Columbia University after the school offered her a scholarship. To help with the rest of her tuition, Jessica relied on $72,000 in loans. Most were federal, but one was private through Wells Fargo.

That was nearly 25 years ago. Today, despite her making regular payments, Jessica’s debt has increased to roughly $200,000 — and it’s still growing.

“I’ve paid nearly $61,000 so far,” said Jessica, who lives in New York City and does consulting work for government-funded entities. “Yet in those ten years, the $72,000 principal didn’t go down one cent. All that money went to interest.”

Jessica, who asked not to use her last name for privacy reasons, had little expectation of her situation improving — until recently. The Supreme Court is considering hearing a case which could help dismantle the massive roadblocks that stand in the way of student borrowers like Jessica from seeking debt relief in bankruptcy court. The case is the most prominent in a series of recent court actions that together could defang a draconian bankruptcy law championed by Joe Biden and his financial industry donors 16 years ago — and could offer people a meaningful pathway out of massive student debt.

These legal developments, plus reports that Biden is exploring canceling up to $50,000 of student debt plus interest payments per person, suggest the country could finally be taking some steps to deal with its mounting student loan crisis after decades of political neglect and obstruction — a situation that was in part created by our current president.
A Growing Student Debt Crisis

As college costs have skyrocketed, student debt in America has now reached a whopping $1.8 trillion in outstanding loans, impacting nearly 45 million people. In total, 92 percent of those loans are federally owned. While defaults, payments and interest have been frozen through September due to the pandemic, prior to the freeze, 11 percent of student loans were 90 days delinquent or in default.

While student debt is primarily thought of as an issue for young people, an analysis by the American Association of Retired Persons (AARP) found that Americans over the age of 50 account for an increasingly large share of the $1.8 trillion. In total, this group owed $289 billion as of 2018.

Moreover, the AARP report found that in 2015, nearly one in three of Americans between the ages of 50 and 64 were in default on those loans. Meanwhile, according to 2018 data from the Consumer Financial Protection Bureau, nearly 40 percent of student borrowers age 65 and older were in default.

Still, most student borrowers are between the ages of 25 and 49. That demographic also owns the lion’s share of the debt.
Biden, The Brunner Test And “Undue Hardship”

Bankruptcy courts have not been friendly to student borrowers. That’s at least partly attributable to Biden. In 2005, “the Senator from MBNA,” so named for his close relationship with the credit card company that was also his largest donor, was one of 18 Senate Democrats who backed a successful Republican-led bankruptcy reform bill that stripped private student loans of bankruptcy protection amid an explosion of private loan debt.

“He is a zealous advocate on behalf of one of his biggest contributors — the financial services industry,” Sen. Elizabeth Warren, D-Mass., said of Biden at the time.

For his part, Biden argued the law was necessary to prevent abuse of the system by borrowers who could afford to repay some of their debt. He and other supporters of the bankruptcy bill claimed the legislation would enable private lenders to lower costs for people seeking credit. But both arguments were ultimately proven wrong — abuse was minimal and interest rates in general did not go down. Instead, the law resulted in a system that leaves borrowers with few options for relief.

Prior to the passage of the revised bankruptcy law, student loans issued by for-profit private entities could be erased under the Bankruptcy Code. Congress had stripped federal student debt of bankruptcy protection in the 1970s, but private loans were a different matter. The 2005 law removed those protections, requiring borrowers to show that compelled repayment of their loans would impose “undue hardship” on them or their dependents.

Proving undue hardship is difficult because the Bankruptcy Code does not define the term. In general, courts have found that it means borrowers are unable to repay their loans and maintain a minimum standard of living. To determine whether that is the case, many courts apply what has come to be known as the Brunner test.

Established in the 1987 case Brunner v. New York State Higher Education Services Corp, the Brunner test involves three requirements to prove undue hardship: The borrower must be unable to maintain a minimal standard of living for themselves and their dependents, the borrower’s financial status must be likely to continue for a substantial part of the repayment period, and the borrower must have made a good-faith effort to repay the loan debt.

Because of the subjective way different courts have applied the test, the requirements have proven to be a notoriously high bar to meet. Prior to the 2005 law, a showing of undue hardship had only been required to discharge federal student loans, which traditionally offered lower interest rates and greater repayment flexibility than private loans. Since private loans had no such cushions, the 2005 law expanding the Brunner to cover them proved to be punishing.

The change proved to be so damaging, the Obama administration tried to roll the law back in 2015, while Biden was vice president. Obama’s Department of Education released a report urging legislative action.

“As private student loans generally do not include the consumer protections, such as income-driven repayment plans, included in federal loans, the undue hardship standard for bankruptcy discharge leaves private student loan borrowers in financial distress with few options,” it read.

Even the Bloomberg editorial board lamented the lack of relief for student borrowers in 2018, calling for changes in an op-ed titled, “Let Student Borrowers Declare Bankruptcy, Already.” The editorial board noted that those who cannot pay their student loans “are relegated to a modern-day form of debtors’ prison.”

Howard University bankruptcy law professor Matthew Bruckner told The Daily Poster that the second prong of the Brunner test — a person must prove loan repayment would be a burden through much of the repayment period — is particularly difficult for student borrowers to meet.

“The standard repayment term is 10 years,” he said. “Some courts have said you could repay them over 25 years.”

It’s very hard for people to prove that their financial situation will stay the same for that long, said Bruckner, adding, “I don’t know what I’m going to have for dinner on Sunday.”
A New Standard

A new case that the Supreme Court may consider could upend the Brunner test. A petition for a writ of certiorari, or review by the high court, has been filed in the case of McCoy v. United States, which centers around Texas resident Thelma McCoy.

McCoy pursued higher education in her forties, taking out student loans to do so. However, after severe accidents left her disabled with diminished job prospects, she found herself unable to pay her debt. Now in her sixties, she owes about $350,000.

In 2016, McCoy filed for bankruptcy protections, and filed a separate lawsuit against the U.S. Department of Education to discharge her loans. The courts found that McCoy had failed to meet the second prong of the Brunner test.

In support of McCoy’s legal efforts, the nonprofit Center for Responsible Lending has filed an amicus brief with the Supreme Court calling for a rejection of Brunner in favor of a less common and more lenient standard, called the totality of the circumstances test, which, as the name suggests, weighs real-world circumstances — the debtor's past, present, and future financial resources, living expenses; and anything else that’s relevant.

If McCoy is successful in her efforts, it could be a boon to overwhelmed student borrowers across the country. The May 7 deadline for the Supreme Court’s response to the petition is fast approaching.

Even if McCoy goes the other way, which is possible with a Supreme Court dominated by conservatives, there may still be hope, thanks to other recent court cases.

In January 2020, the chief judge of the U.S. District Court of the Southern District of New York, Celia Morris, canceled more than $221,000 worth of student debt in a decision that could have significant implications for the Brunner test.

Navy veteran Kevin J. Rosenberg had accrued the student loan debt more than a decade after completing law school. His debt, which was roughly $116,000 after graduation, reached that amount despite repayment efforts over a 13-year period. He filed for Chapter 7 bankruptcy in 2018 and commenced an adversarial lawsuit to have his debt discharged months later under the U.S. Bankruptcy Code.

According to Bruckner at Howard University, Morris’ decision was noteworthy because of how it interpreted the second prong of the Brunner test — that the borrower must prove repayment will continue to be a challenge through much of the repayment period.

“She looks at this, ‘Will you be able to pay in the future?’ as asking, ‘Will you be able to pay when the loan is due?’ And she said, ‘Well, the loan has been defaulted and accelerated, so there is no future; the future is now,’” Bruckner explained. “That’s really interesting. I hadn’t seen any other court do that. I’m not aware of any court that interpreted it that way.”

Rosenberg was one of several recent cases in which a court has been willing to discharge student debt in bankruptcy. In August, a federal appeals court allowed the bankruptcy discharge $200,000 for a Colorado couple with 11 private student loan accounts. The next month, a New York judge enforced a prior discharge of $400,000 of federal student loans.

There is even a new startup called Reset Button, which seeks to encourage and facilitate student borrowers to attempt discharge of their debt through bankruptcy. The company provides a consultation service for borrowers, drafts a strategy, and connects them with bankruptcy professionals in select states.
“A Bit Of Hope”

While the courts may present one avenue for student borrowers, advocates are pushing for more action from the federal government.

Earlier this month, the U.S. Department of Education offered up minimal relief, announcing that roughly 72,000 student borrowers who were defrauded by their schools would get loan forgiveness totaling $1 billion. The amount represented a mere 0.058 percent of total student debt and 0.16 percent of total borrowers.

If the president so desired, he could back legislation to statutorily change the “undue hardship” standard, rather than waiting for a judicial reinterpretation of current law. He could go even further by issuing an executive order to cancel most or all student debt on federal loans. Last week, Senate Majority Leader Chuck Schumer took the remarkable step of calling on Americans to make phone calls to the president to demand he cancel $50,000 of student debt per person.

"We're asking you, email, call, write President Joseph Robinette Biden and tell him you want this done,” Schumer said.

Now, according to the latest reports, Biden is exploring canceling $50,000 worth of student debt per person and is considering capping or eliminating interest payments.

In New York, Jessica noted the gesture would hardly “make a dent” in her $200,000 debt. But between that and the recent developments in the courts, she finally feels there could be an eventual escape from the burden of her student loans.

“Now,” she said, “I have a little bit of hope.”

Message from Status Coup

Jenn here. Jordan and I are DETERMINED but stuck. We aren't stuck when it comes to our mission–not at all. We are FIRED UP when it comes to uncovering corruption. We always have been and always will be.

What has us STUCK is the way we're being suppressed online. From YouTube to Twitter and everywhere in between, Status Coup is being hidden–and it is hugely (scarily) impacting our income and ability to operate.

People aren't seeing our reporting which means crucial stories aren't getting out there.

For Example:
Amazon forcing Black mother Poushawn Brown to administer COVID tests without health training in unsuitable spaces, only to have her later die with no care from Jeff Bezos' corporation of evil? People didn't see it.
Jordan reporting in-field in front of the Staten Island location as Amazon workers move to unionize with nationwide leader Chris Smalls? People didn't see it.
Jordan and my BOMBSHELL story of a flurry of highly suspicious phone calls showing former Michigan governor knowing of DEADLY legionella in Flint's water supply as early as October 2014? People didn't see it.

And that is the fault of greedy tech overlords (no, I'm not being hyperbolic) who are determined to silence leftist voices and TRUTH.

Only heavily edited and propagandized corporatist media is allowed to see the daylight these days.

Take a look at this:



OFF A CLIFF!



OFF A CLIFF!



OFF A CLIFF!



OFF A CLIFF!

The proof is in the screenshots...and there are plenty more where that came from.

This isn't about us. We don't report for our egos. We report to get the stories out. We report because it MATTERS.

And when YouTube and its cohorts suppress us, it does incredible damage to everyday people. It allows the rich to get richer, the corrupt to become more corrupt, and the evil world to continue spinning as it is.

But we won't stop. It doesn't matter if it comes down to us handing out our reporting from alleyways like in the days of old, we won't stop.
We Do Need Your Help


Status Coup isn't just about us–it's about the whole COUPmunity.

We wouldn't be here without people like you. And so now it's time we ask for help. Due to the suppression, our membership isn't growing, our YouTube revenue has dropped so significantly that it (literally) keeps me up at night, and our donation buttons just aren't getting seen.

We realize this is a difficult time for a lot of people. We're in a worldwide pandemic and folks are in a crunch. We appreciate your shares and your views.

If you are in a position to help us financially, if it's possible at all, you can help Status Coup keep going by supporting us at any amount via our GoFundMe fundraiser: http://GoFundMe.com/StatusCoup



Whether it's $5 or $500, we thank you from the bottom of our hearts.

We desperately need this boost right now as we work to outsmart the algorithms and readjust our business strategy. We're trying new things: we've hired the wonderful Damasco team to redo our website, we're going to go all-in on Twitch, we're working to expand with freelance help, we're soon to launch a Substack, and we'll be announcing a nonprofit arm to the business in the coming months.

Note: Our GoFundMe has been around for years now- we in no way have the dollar figure raised overall- it's been wonderfully donated and spent on equipment, freelancers, travel, and reporting costs.

We WILL continue to succeed and we will grow into a reporting force that is unstoppable.

And as always, we'll have you to thank for it. It's the #NotMeUs of the reporting world.

Vice President Kamala Harris Says Be Ready For Water Wars

 

https://www.youtube.com/watch?v=tlCd5UpNDSs&ab_channel=HardLensMedia

Anti-Capitalist Chronicles: The Golden Age of Post-War Capital

 

https://www.youtube.com/watch?v=8ih9FBKxNjk&ab_channel=DemocracyAtWork