[eDebate] take the towson challenge

Kevin Sanchez let_the_american_empire_burn
Sat Aug 9 09:39:54 CDT 2008


art kyriazis writes, "I do agree with Prof. Mitchell that this does raise the
precise analogous issue of /Batson v. Kentucky, / 476 U.S. 79 (1986), and
that the use of MPJ to knock off the only and last African American judge off
of a five judge or three judge panel is quite analogous to using peremptory
challenges to intentional exclusion of black jurors from the venire pool. I
join in his learned analysis of analogizing the /Batson/ rationale to MPJ.
For myself, I would amend MPJ to prohibit the exclusion of the last African
American from any debate judging panel in accord with /Batson/ as applied
to debate."


don't think i made my point on batson as clearly as possible last time
so let me elaborate.

the analogy to batson helps understand why fort hays responded the way
they did, but it doesn't help us accurately understand towson's argument;
here's what the defense must demonstrate in a batson challenge:

The defendant first must show that he is a member of a cognizable racial

group, and that the prosecutor has exercised peremptory challenges to remove

from the venire [jury pool] members of the defendant's race. The defendant

may also rely on the fact that peremptory challenges constitute a jury selection

practice that permits those to discriminate who are of a mind to discriminate.

Finally, the defendant must show that such facts and any other relevant

circumstances raise an inference that the prosecutor used peremptory challenges

to exclude the veniremen from the petit jury on account of their race. Once the

defendant makes a prima facie showing, the burden shifts to the State to come

forward with a neutral explanation for challenging black jurors.

-- http://en.wikipedia.org/wiki/Batson_v._Kentucky

first note that fort hays came forward "with a neutral explanation" for their
strike: in-round, they claimed it was 'strategic' given a previous round that
reid-brinkley had judged them; after-round, we learned from shanahan the
deciding factor was low speaker-points. 'the points' is a neutral explanation,
and there's a sense that the fort hays squad thought this excuse sufficient.

{interestingly, however, once an initial case has been presented in an actual
batson challenge, it'd be an inadequate rebuttal to respond, "we didn't strike
her because she's black". in the words of justice powell:

Nor may the prosecutor rebut the defendant's case merely by denying that
he had a discriminatory motive or "affirm[ing] [his] good faith in making
individual selections." If these general assertions were accepted as rebutting
a defendant's prima facie case, the Equal Protection Clause "would be but a
vain and illusory requirement." The prosecutor therefore must articulate a
neutral explanation related to the particular case to be tried. The trial court
then will have the duty to determine if the defendant has established purposeful discrimination.}

second note that towson never argued that reid-brinkley was struck "on
account of her race". they're not attempting to show anything "analogous
to using peremptory challenges to [the] intentional exclusion of black jurors".
and they repeatedly insist on this point: in the cross-ex of the 1a.c., avery
henry asks, "how can you make the claim that our strike sheet represents a
form of racism in a world where you don't know the reasons [...]? [...] in
a room full of tons of people, you're going to call us out, you want to call us

deven cooper then interrupts, "we didn't call you racist. we said that you're

exclusionary for the act that you took, and your action has racist implications

- not that you yourself are racist."

-- 9:08s: http://video.google.com/videoplay?docid=567966331243825646

let's be clear: the batson decision doesn't hold that i as a black person have
a right to be tried by a jury with black people on it. no, it merely holds that i
have a right to be tried by a jury that's been vetted by non-discriminatory
criteria, i.e., in which no black jurors were dismissed solely because they're
black. juries are to be "indifferently chosen".

towson is saying that this remedy isn't enough. if you claim to care about
inclusion of racial minorities, then you can't just 'choose indifferently'. you
have to choose with a mind attentive of inclusion.

dayvon love puts it cogently in the 2a.c. (at 27:36s) - analysis that's worth

"the argument here is that if we recognize that there's a need for inclusion in
the activity, then we have to take specific actions to make sure that inclusion
happens. it was an opportunity for fort hays to be able to include her in the
discussion - to make this discussion more fruitful. [see post-script] this isn't
an argument about them being racist. this is an argument about a methodology
that they choose to pick to not include shanara in the discussion that is
necessary. and if they agree that inclusion is an important part in them being
able to effectively challenge these forms of domination, then that inclusion
was necessary. and what's interesting about it is that shanara is very well
versed in post-structuralist and post-colonial literature which is the vein of
literature they use and have used to debate against us, and [she] gave them
advice about how to make that postmodern and post-structural theory to be
able to relate to us, to be able to debate us. and so what she's asking for
and what the negative failed to do is to make that connection. this isn't a
question of their sincerity or a question of their intentions; this is a question
of their methodology, and their methodology was problematic in the way in
which they struck her."

in short, the professed neutrality of fort hays' methods *is the link*. it's an
example of where color-blindness falls short, since debate teams, having no
wish to racially discriminate and using procedures that are focused solely on
strategy, still back into judging panels bereft of black voices. color-blindness,
far from a weakness, is today white privilege's primary strength. without ever
having to put up a sign reading 'no blacks allowed', without ever having to even
think a racist thought, seemingly neutral institutions roll along while qualified
and dedicated black scholars are relegated to the role of spectators.

so again, take a peek at this note by joshua wilkenfeld:


some of the same reasons that a diversity-enhancing system for selecting

jurors is in the government's interest are reasons that towson challenges

are in the forum's interest; some of the same reasons batson challenges

have proven inadequate in creating community-reflective juries are reasons

ensuring the m.p.j. system is free of intentional racism won't work either.

one assumes that this activity has a stake in being perceived as fair, in
expanding the analytic skill set brought to bear on judging rounds, and in
promoting cross-racial understanding; one also assumes that remedies
should be narrowly tailored to further these goals - whence the need for
towson challenges.


p.s., an excerpt from justice o'conor's opinion in grutter v. bollinger:

We have long recognized that, given the important purpose of public education
and the expansive freedoms of speech and thought associated with the university
environment, universities occupy a special niche in our constitutional tradition.
In announcing the principle of student body diversity as a compelling state
interest, Justice Powell invoked our cases recognizing a constitutional dimension,
grounded in the First Amendment, of educational autonomy: "The freedom of
a university to make its own judgments as to education includes the selection
of its student body." From this premise, Justice Powell reasoned that by claiming
"the right to select those students who will contribute the most to the 'robust
exchange of ideas,'" a university "seek[s] to achieve a goal that is of paramount
importance in the fulfillment of its mission." Our conclusion that the Law School
has a compelling interest in a diverse student body is informed by our view that
attaining a diverse student body is at the heart of the Law School?s proper
institutional mission...

As part of its goal of "assembling a class that is both exceptionally academically
qualified and broadly diverse," the Law School seeks to "enroll a 'critical mass'
of minority students." ...the Law School's concept of critical mass is defined by
reference to the educational benefits that diversity is designed to produce.

These benefits are substantial. As the District Court emphasized, the Law
School's admissions policy promotes "cross-racial understanding," helps to
break down racial stereotypes, and "enables [students] to better understand
persons of different races." These benefits are "important and laudable," because
"classroom discussion is livelier, more spirited, and simply more enlightening
and interesting" when the students have "the greatest possible variety of

-- http://www.law.cornell.edu/supct/html/02-241.ZO.html


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