According to the Ninth Circuit decision, the petitioner in that case had already filed a petition under 28 usc 2254. However, that petition did not raise an Apprendi argument since, according to the court, the claim was not ripe at the time of the petition. In other words, the petitioner had not exhausted his state remedies as to the Apprendi claim when the first petition was filed.

The State argued that the petition should be dismissed since the procedures under 2244 were not followed. Under 2244, a second petition may be filed if, inter alia, “the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable”. Further, a petitioner must get authorization from the Circuit court before filing the petition.

In an unpublished decision which I am paraphrasing, the Ninth Circuit found that there was no need to consult the statute since it was not really a second petition as the issue could not have been raised in the first petition.

Essentially, the Ninth Circuit found that 2244 did not apply.

Thus, the question before the Court, as far as I can tell, will be whether this situation presents a second petition or should still be considered a first petition.

My guess is that the Court will say that this was a second petition which can only be filed according to the mandates of 2244. The retroactivity issue, as contained in the statute, will not need to be addressed.

It really makes no difference from a fairness point of view if you are screwed over because your parents were discriminated agains or because they were drunkards and couldn’t hold down a job. In either case you are getting an unfair shake because of actions beyond your control. Besides, we know many other categories of individual who end up getting dealt with unfairly by society. Short people earn considerably less than tall people. Attractive people do better in life than unattractive people. Does this mean fairness requires affirmitive action for the children of short people or unattractive people? No, I think not.

However, despite these theoretical considerations it is an undeniable fact that people do identify with certain groups and not others. Children of short people do not identify themselves as such but members of racial groups still (unfortunatly) identify themselves as such and have strong emotional feelings about the past oppression of their group and its underclass status. This means persisting racial inequalities creates social fault lines, resentment and other secondary harms that simply don’t exist with other forms of hereditary unfairness (people who are badly off because their parents were treated unfairly). Thus it is entierly possible that there are pragmatic reasons to favor affirmitive action despite the failure of the fairness argument.

However, before people continue to implement and defend such schemes it would be nice to have some compelling data as to whether they work or instead exacerbate the tensions.

I certainly agree with you about disability rights; it’s an area of significant concern. However, don’t assume that just because black people (for example) don’t currently suffer the lash doesn’t mean that they still don’t suffer from the *effects* of that system. Read Feagin; he may not convince you like he convinced me but he will make the case better than I can.

One group of people who are consistently discriminated against and never given preferences are attorneys with noticeable physical disabilities. This has been documented here: http://calbar.ca.gov/calbar/pdfs/reports/2004_Attorneys-with-Disabilities-Report-Exec-Sum.pdf

Yet, there is no movement by the law firms and other hiring entities to give preference to those with noticeable physical disabilities who also are members of a state bar. These would-be attornies have and are experiencing discrimination. Yet, the Supreme Court is only concerned with giving preferences to people who haven’t themselves experienced discrimination. Why are only some people given an opportunity when there is no opportunity given to others who have actually experienced discrimination?

So, I don’t think it appropriate to give preferences to individuals who haven’t themselves experienced discrimination even though they are members of groups that have historically experienced discrimination.

I find this to be one of the more intellectually difficult areas to deal with, especially because I agree with you in many respects. However, if you haven’t done so I strongly suggest you read a book by Joe Feagin called “Racist America”. I disgree with a great many of his conclusions but I think he makes an excellent historical case that I have yet to see rebutted by anyone.

The fundemental truth of the matter is that blacks, women, and other minorities were not discriminated against as individuals. They were discriminated against, indeed enslaved in the cass of blacks, precisely because they were individuals that belonged to a group. Historically, individual colorblindess is a myth. There is a such as thing as “group think” and it was precisely this group think that caused the injury.

As a consequence, it is simply offensive to any notion of basic fairness to insist that people who face injury due to their membership in a group must seek relief as individuals. Such a requirement only perpetuates the underlying power inequalities that existed to begin with, power inequalities historically built upon racism. As a consequnce, I cannot agree with your statement that the website in question is “kooky”. It is actually grounded in a solid and vaild perspective that represents history as it actually happened.

One of the consequnces of Feagin’s arguement is that “reverse racism” is perfectly acceptable. Indeed, harming whites as a group is the only way, in his mind, that the historical injustices to blacks as a group can be fixed. Lincoln said it best, “Yet, if God wills that it continue until all the wealth piled by the bondsman’s two hundred and fifty years of unrequited toil shall be sunk, and until every drop of blood drawn with the lash shall be paid by another drawn with the sword, as was said three thousand years ago, so still it must be said ‘the judgments of the Lord are true and righteous altogether.’”

Your write: “The Seattle school district has a bizarre message for budding entrepreneurs, civil libertarians, and free market conservatives: your belief in individual rights or individual initiative brands you as a racist.”

Personally, I don’t find this perspective bizarre, although I do find it misplaced. Many of the people in the groups you name are not racist as individuals. However, many of them, it seems to me, remain willfully and woefully ignorant of America’s racial past. And bringing that to people’s attention is indeed a part of the school’s fundemental educational mission.

First, there was an extra word “web” after the word “new” in my sentence about the Seattle schools’ equity and race relations department, which should have read:

“The Equity and Race Relations department has just replaced the blatantly kooky web site I discussed above with a new, somewhat less extreme but still bizarre web site attacking the concept of a racially-integrated ‘melting pot’ and what it calls the ‘colorblind mentality.’”

Second, I should not have included the word “don’t” after the word “Seattle schools” in my paragraph about colorblindness, which should have read:

“The Seattle schools seem to be ignorant of the fact that many civil rights leaders used the concept of colorblindness and its invocation in Justice Harlan’s dissent to fight against segregation in the years leading up to Brown v. Board of Education (1954).”

Sorry about that.

Letting the Seattle schools use race is like giving whiskey and car keys to teenage boys, since the Seattle schools themselves have been criticized, and rightly so, for their racism and belief that academic achievement is “acting white.”

The Seattle school district has a bizarre message for budding entrepreneurs, civil libertarians, and free market conservatives: your belief in individual rights or individual initiative brands you as a racist.

On a web site taken down on June 1 after weeks of negative publicity, culminating in an Op/Ed and editorial cartoon in the Seattle Post-Intelligencer, the Seattle Public Schools had a wacky series of definitions of racism.

The Seattle schools formally defined individualism as a form of “cultural racism,” declaring that “cultural racism” includes “emphasizing individualism as opposed to a more collective ideology.”

On their web site, they also defined racism to include stereotypically white traits such as “future time orientation,” which is a pejorative word used among politically correct academics for studying and “acting white” to reap future advancement, rather than devoting one’s energy to being hip or cool and enjoying the moment.

It is racist for the Seattle schools to stereotype achievement as a “white” characteristic. Plenty of non-whites study and exercise self-discipline. No school system should disparage student studying and achievement. That is at odds with a school system’s basic educational mission.

The Seattle schools also declared “equality” of treatment to be a form of racially-biased assimilation, favoring instead affirmative action in the form of “unequal treatment for those who have been disadvantaged over time,” to give historically oppressed groups “special programs and benefits.”

The “equality” they derided – the notion that “people who are the same in those respects relevant to how they are treated in those circumstances should receive the same treatment” – is the same notion of equal treatment whose infringement is the basis for a disparate-treatment discrimination lawsuit under the federal civil rights laws, under U.S. Supreme Court precedent.

In an apparent conflict with federal law, the Seattle schools deny that whites can be the victims of racism. They define racism as limited to acts against groups that have “little social power in the United States (Blacks, Latino/as, Native Americans, and Asians), by the members of the agent racial group who have relatively more social power (Whites).”

By contrast, federal appeals courts routinely rule against institutions that fire or harass white employees, recognizing that whites can indeed be victims of racism. See, e.g., Bowen v. Missouri Department of Social Services (2002) (racial harassment of white employee by black co-worker); Taxman v. Board of Education (1996) (termination of white teacher instead of black teacher). And the Supreme Court held that racial discrimination against whites by local governments is generally illegal in City of Richmond v. J.A. Croson Co. (1989). Affirmative action can’t be used to justify terminating or harassing an employee.

Moreover, the U.S. Department of Education, unlike the Seattle schools, recognize that minorities can be racist towards other minorities, holding schools liable for allowing black students to physically harass and intimidate Asian students.

The Seattle schools’ policy, which discourages complaints of unlawful discrimination by whites, is the product of its Equity and Race Relations department.

The Equity and Race Relations department has just replaced the blatantly kooky web site I discussed above with a new web, somewhat less extreme but still bizarre web site attacking the concept of a racially-integrated “melting pot” and what it calls the “colorblind mentality.”

(The Seattle schools don’t seem to be ignorant of the fact that many civil rights leaders used the concept of colorblindness and its invocation in Justice Harlan’s dissent to fight against segregation in the years leading up to Brown v. Board of Education (1954)).

The Supreme Court is currently considering a challenge to the Seattle schools’ policy of assigning pupils to schools based on their race, in the case of Parents Involved in Community Schools v. Seattle School District No. 1.

The Seattle schools’ racist web site should be brought to the Supreme Court’s attention, since it may shed light on the school system’s purpose for using racial classifications, and an improper or overbroad purpose invalidates even an otherwise permissible affirmative action policy under the Supreme Court’s 1996 decision in Shaw v. Hunt.