Judicial candidates shouldn't brag about harsh sentences when seeking office

Click to enlarge

    I recently visited the Jackson Jambalaya website, which is always full of great news, and saw the ad at right for Marlin "Marty" Miller, a candidate for 20th District circuit judge in Madison and Rankin Counties.
    All I can say is that Miller, who is currently a prosecutor, would not have my vote.
    Cannon 5, Section 3, Subsection d of the Code of Judicial Conduct provides that judicial candidates shall not:

i) make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office;
(ii) make statements that commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the court;

    Now, to be certain, Miller's ad is not promising that he will as judge impose maximum sentences as a judge. But he is clearly trumpeting the fact that he obtained these lengthy sentences as a prosecutor, and the clear inference is that he will impose these types of sentences as a circuit judge. And for that reason the ad is, in my opinion, unethical.
    I confess that I'm glad that Miller helped put those criminals away for quite a while. They are scary looking guys. I just don't think it ethical to run for circuit judge on a platform of having obtained harsh sentences as a prosecutor. I would rather see a prosecutor run on a platform of being firm but fair, and see him brag about how few of his cases had been overturned on appeal. But that's just me; other people may disagree.
    A major problem with our criminal justice system is that we have far too many judges who go straight from the prosecutor's office to the bench. Many become fair arbiters overnight, but others never set aside their prosecutorial bias. I don't think a law banning anyone from being appointed or elected judge within two years of serving in a prosecutor's office would be unreasonable.
    I don't know Miller and have no axe to grind with him, but if Miller were to be elected and I were to be a poor defendant in his courtroom, based on his advertisement I really don't feel like I would get a fair trial. And that's not healthy for our judicial system.

Fifth Circuit overturns Cleveland School Freedom of Choice plan; resegregation likely

    The Fifth Circuit Court of Appeals has reversed a Freedom of Choice integration (click here for decision) plan for the Cleveland School District that was ordered by U.S. District Judge Glen Davidson last year. I wrote a long post about this last year. This is bad news for Cleveland and bad news for public education in general.
    (Click here for the Bolivar Commercial story).
    (Click here for the Wall Street Journal story).
    The appeals court didn't expressly reject Freedom of Choice as an option, but said that in order for it to be allowed Davidson needed to explain in his opinion how it would help integrate all-black Eastside High School and an all-black jr. high school. Click here to read Davidson's well-reasoned opinion from last year.
    Cleveland currently has two high school districts. One has an all-black high school; the other district has a roughly 50-50 balance between black and white students.
    Well, here's the deal. Davidson is not going to be able to explain how his plan will desegregate Eastside because it won't. His order was designed to allow black students the choice to attend an integrated school or an all-black school while keeping a racial balance that would prevent white flight. His opinion noted that Cleveland was one of only two school districts in the Delta to have a substantial number of white students.
    A consolidated Cleveland Attendance District will be more than 70 percent black right off the bat. The U.S. Justice Department has insisted that there will be no white flight, and that white families are less resistant to sending their children to a mostly black school than they were in the 1960s and '70s. What the Justice Department is leaving out is that many Delta schools successfully integrated all the way through the late 1980s, when the whites just drifted away entirely, often due to mistreatment.
    If the Cleveland schools are consolidated, in 20 years the resulting school will have the same demographics as its sister schools in Clarksdale, Greenville, Greenwood, Leland, Rolling Fork, Yazoo City, Belzoni, and elsewhere. It will have virtually no white students.
    For the past 40 years the courts have pushed the notion that the only form of acceptable integration is perfect integration. So vouchers, ability grouping, or anything else that might bring black and white children together as equals have been forbidden. The courts have even gone so far as to rule that in overwhelmingly black districts two white children can't be grouped together in the same homeroom, because splitting them up prevents the creation of an all-black homeroom.
    For Cleveland, even a slight amount of white flight will tip the balance enough that a few more whites will leave. And after that there is likely to be a mad dash for the door. Bayou Academy, North Sunflower Academy, Indianola Academy, and Deer Creek School are only a short drive away. Washington School, at 35 miles, is probably the best school academically, and one that some will choose.
    Ultimately the question is whether society works to achieve desegregation plans that work on the ground but which are less than perfect, or whether we have to have perfect numerical integration.
    In every other heavily black school district in which the federal government has insisted on perfect integration the result has been white flight and almost total segregation. Cleveland will be no different. And just as Cleveland High will soon look a lot like Greenville or Clarksdale, so will the town itself.

Instead of suing, the ungrateful Postal Service needs to pay Lance Armstrong $70 million

    The U.S. Postal Service is suing Lance Armstrong, seeking a return of $30 million it paid the cyclist from 1996 to 2004 to sponsor his cycling team. The suit claims that Armstrong's admitted blood doping violated the terms of his contract, and therefore the post office wants its money back.
    Armstrong's attorney points out that the Postal Service's own analysis has determined that it received more than $100 million in benefits from sponsoring the Armstrong team. It's really hard for the post office to claim damages now, a decade later. But damages or not, the Post Office is suing Armstrong just because they can, essentially to prove that they are first-rate jackasses.
    If the Post Office wants to say the contract is void, it seems to me that Armstrong is entitled to an additional $70 million payment under the doctrine of quantum meruit. Her provided the Post Office with $100 million in benefits and they need to pay him $100 million in compensation. They've only paid $30 million of that. The Post Office needs to pay up.

Everything old is new again -- judge orders Freedom of Choice for Cleveland schools

    In a rather interesting judicial opinion, District Judge Glen Davidson has ordered the Cleveland School District to adopt a Freedom of Choice policy for the high schools in the district. In doing so he rejected efforts by the U.S. Justice department to force the school district to merge the schools, one virtually-all-black, the other almost perfectly racially balanced with a near 50-50 racial split.

A History of Freedom of Choice
    A brief history of Freedom of Choice is in order. In the 1960s, under court pressure to desegregate, school districts across the South adopted Freedom of Choice desegregation plans whereby students were allowed to attend the school of their choice. In practice this meant few or no whites chose to attend the formerly "black" schools while a relatively small number of blacks attended the former "white" schools, thus desegregating them but not fulling integrating the schools. In many cases blacks were pressured into not enrolling their children in the formerly "white" schools.
    The Supreme Court essentially outlawed the notion of "Freedom of Choice" in Green v. County School Board of New Kent County, 391 U.S. 430 (1968). In that case most black school children in New Kent County, Va., continued to choose to attend the formerly black school after being given a choice of schools to attend.
    This case was applied to Mississippi with the Alexander v. Holmes County Bd. of Ed., 396 US 19 (1969) ruling and later Singleton v. Jackson Municipal Separate School Dist., 419 F. 2d 1211, 5th Circuit (1970). Of interest is the Court's ruling that the Holly Springs, Miss., school district could not assign students to differing schools based on achievement: "...testing cannot be employed in any event until unitary school systems have been established." Given the disparities in student achievement for many parents this was simply unacceptable. (For smaller communities a "unitary" school system generally meant a consolidated school. For larger ones it meant that there were no racially identifiable schools and that race was not being used as a limiting factor in school assignments or district mapping).

The end of Delta integrated schools
    After 1970 lots of Mississippi schools successfully integrated. The key factor on whether or not a school successfully integrated was the percentage of minority students -- often referred to as the "tipping point" -- living in the district. In the Delta and former cotton towns most public schools either never integrated at all or integrated successfully and then resegregated as whites drifted away. Most small-town and rural schools with less than a 45 percent black student population managed to successfully integrate.
    But as Judge Davidson noted in his opinion on the Cleveland schools, there are only two school districts in the entire Delta with a substantial white enrollment: the Western Line School District in Washington County and the Cleveland School District. Although Davidson didn't quite say so, by seeking force Cleveland to consolidate its schools, the U.S. Justice Department sought to reduce that number to one. From his opinion:

After the United States Supreme Court ordered desegregation of public schools "with all deliberate speed," private schools began to dot the landscape, and Caucasian families pulled their children out of the public school system to send them to those private schools in an effort to bypass desegregation. What resulted was a majority-African-American enrollment in Delta school districts -- far from the racially integrated utopia contemplated by Brown v. Board of Education and its progeny. Currently, most Delta school districts have 95% or greater African-American enrollment and 5% or less Caucasian enrollment. Most Delta school districts also fare poorly in state testing.

    The federal courts of the 1970 integration era took an amazingly cavalier attitude towards the long-term effects of their rulings on the communities affected by them. Thus the Fifth Circuit, in United States v. Sunflower County School District, 430 F. 2d 839, 5th Circuit (1970), declared,

We are not unmindful of the difficulties involved in this case where the population of students of the entire School District reflects a marked racial imbalance — 85.7% black and 14.3% white. But we cannot alter the requirements of the law because of this factor.

    And so the courts instead imposed remedies that ensured that many Delta communities would be served only by all-black public schools. The courts intentionally turned entire swaths of America and many of our inner cities into wastelands by ruling in ways that they knew or should have known would result in the long-term failure of integration. The courts succeeded, but at what cost?

It didn't have to be this way
    Had the courts been willing to allow the creation of schools in which blacks and whites were roughly equal in number then today our state would be served by a lot more integrated schools. Schools like Cleveland High School. Instead the courts insisted on schools and districts with a perfect racial balance, even if that balance was achieved by making the schools all black.
    The idea of assigning students to schools based on ability, once sought by many districts, is a good one. My one observation from my school years is that students of limited ability do everything they can to disrupt the education of better students. This is true of both blacks and whites. If white parents could have been assured that their children would be in a school setting where their peers were their academic and behavioral equals, many would not have fled the public schools.
    In fact, the best way to find out how to make integration work is to ask some of the people who started out with the most devotion to making it work. Yazoo City, Rolling Fork, Leland, and other communities all had prominent families who very publicly supported public schools following integration. They sent their children to public school; some graduated, some transferred to private schools after a few years. Of those white children who did graduate from most Delta public schools, virtually all have moved or send their children to private schools. Has anyone ever bothered to ask them what happened?
    Pulitzer-winner Douglas Blackmon penned a Harper's Magazine article in 1992, "The Resegregation of a Southern School," in which he laments the failure of integration in Leland. Blackmon was a first-grader in 1970 when the Leland schools fully integrated.

That spring, sixty white faces peered out from the Leland senior-class portrait. In 1982, when my class was the first to graduate after twelve full years of black and white children studying together, only two dozen whites remained in a class of just under ninety.

    To Blackmon's credit he doesn't gloss over problems facing white students attending the Leland schools.

 At school, racial tension characterized the daily dynamic. Fistfights on the playground between whites and blacks were routine, and being harassed by blacks as I walked home through their neighborhood after school was so common that I was amazed later to learn that anyone else had grown up differently. The school stopped sponsoring senior proms, student banquets, senior trips, and other social gatherings long before I was old enough to know what they were.

     Amid the conflict, Blackmon feels he was well served by attending the Leland Public Schools and decries the fact that local residents are no longer devoted to making an integrated school system work:

Despite the racial tensions, we whites were well served by the integrated public schools. We gained from the rough-and-tumble mix of cultures and, I think, were strengthened by the confrontations it sparked.

* * * *

Personal convenience has prevailed over community good. The moral conviction that integrated my school has given way to an indifference and numbness – the same numbness that allowed me (and most white Deltans) to accept abject black poverty just a stone’s throw away from our own homes. Today, many of the children of the early white graduates of Leland’s integrated public schools are attending private academies.

    While I would not deny Blackmon or others things which they value, I think most parents and students aren't looking for a "rough-and-tumble" environment for their children. Most parents and students don't want a school where petty racial violence and harassment is routine.
    To understand why communities such as Leland, Yazoo City, or many others supported integrated schools in the 1970s but fail to do so today to read a review of Ellen Brantlinger's Dividing Classes: How the Middle Class Negotiates and Rationalizes School Advantage written by Peter Schmidt, an editor for the Chronicle of Higher Education. The newspaper review, entitled "When Loving Parents Choose Segregation," describes how Brantlinger interviewed 20 liberal parents -- many her friends -- and found that they all supported progressive educational ideas and racial and socio-economic integration. But when it came to their kids -- Whoa Nelly! -- they all wanted their children in schools populated almost exclusively with children of their own social class and they wanted their children to benefit from traditional, not progressive, teaching techniques.
    Schmidt's review ought to be required reading for every jurist, congressman and government worker in America. He sums the issue up perfectly:

I have watched enough of the Discovery Channel to know not to get between a bear and its cub. If they have not learned the lesson already, school districts that ask parents to compromise their children's future for some greater social good need to realize that they are up against a similarly primal force.

    If Leland had maintained two schools, with students assigned to one or the other based on academic achievement and ability, today Leland would have one fully integrated school and one mostly black school. Most whites of limited academic ability would leave or go to private school before attending an all-black school, just as whites have done today. But so what? Leland would have an integrated school.
    If the courts had allowed the assignment of students based on achievement most or all of this bullying and friction would have been eliminated. Leland and Clarksdale and Greenwood and Rolling Fork and Yazoo City and Helena, Arkansas and Holly Springs would all today have a quality, integrated school system like that in Cleveland. But the courts didn't allow that, and so today communities across Mississippi are served by segregated rather than integrated schools.

Can the courts dare say "We were wrong"?
    In 1992 I was sharing a cocktail with a prominent planter who strongly supported the public schools during integration and urged his fellow citizens not to open a private school. He sent his children to public school. But he eventually came to the conclusion that the private academy was both an asset and a necessity to the community. In other words, he was wrong. I rarely remember conversations well enough 20 years later to quote them, but I recall our conversation well enough to quote him almost verbatim:

I did everything I could to stop them from opening that private school. They burned three crosses in my front yard. I wouldn't dare set foot on that campus today for fear that some redneck might try to beat me up. But all I can say now is thank God for that private school because if we didn't have it there would have been an explosion by now. Either that or all the white people would have just packed up and left.

    The problem with the school integration rulings of 1968-70 is that the courts essentially guaranteed the failure of integration in many communities. Instead of attempting to successfully integrate the schools the courts seemed hell-bent on punishing white people. What the courts failed to consider is that people have feet. People can move. And they did. Some went to private schools. Even more just packed up and left, leaving behind regions and cities in economic ruin.
    Imagine if the courts had taken the time to review the facts on the ground in each community and issue orders that would have been designed to promote integration and ensure academic excellence. For some communities a single, consolidated school might work fine. For others, assignment by achievement and ability would have maintained academic excellence and community support. For larger cities, a tiered system like that used in New York -- with admission to all schools based on test scores -- would have created outstanding, integrated schools. And no, the demographics of such tiered schools never reflect those of the community at large; they aren't supposed to. They are supposed to group students by achievement so that each child can be in a classroom of equally yoked children learning as much as possible as quickly as possible.

What's ahead for Cleveland?
    It's rather amazing that Cleveland was not targeted by the Justice Department years ago. The East Side schools are clearly racially identifiable -- they apparently have no white students enrolled.
    Some fraternity brothers of mine told me years ago that former Sen. Jim Eastland struck a deal with the Justice Dept. whereby Cleveland was to be let alone in exchange for some favor or another. If so, it is ironic that the senator known for years as a staunch segregationist is responsible for more Delta whites attending integrated schools than any other elected official or federal judge who ever held office.
    But for the two attendance zones Cleveland's story would be identical to that of every other city in the Delta. A consolidated school, either in 1970 or today, would push Cleveland well over the "tipping point" at which affluent whites start to abandon public schools. So now the question is, will Judge Davidson's ruling be allowed to stand? Will Cleveland be allowed to have an integrated public school?
    A report submitted by the school district recounted the recent sad story of the McComb School District after a court ordered it to sprinkle the tiny number of white students it had equally among homerooms. White enrollment dropped from 13.5 percent white to eight percent white. "It cannot be emphasized enough that there can be no integration without whites. An all-black school system may be racially balanced, but it is not integrated in a way that most sensible people would define that word," the report said. Unfortunately Judge Davidson did not cite this report in his opinion.
    In ordering the Freedom of Choice plan, Judge Davidson said a major factor was the fact that the East Side schools were in better condition that the racially mixed Cleveland High, and both the school board chairman and school superintendent are black. From his opinion:

The Court does not order consolidation of the two high schools and two junior high schools. However, the Court is of the opinion that the attendance zones, as defined by the former railroad tracks in Cleveland, perpetuate vestiges of racial segregation. The high school and junior high school students should have a true freedom of choice to attend either high school and either junior high school. Accordingly, the Court orders that the heretofore-established attendance zones shall be abolished, thus establishing an open-enrollment procedure.

There can be no question but that Judge Davidson's ruling will produce the maximum amount of school integration in the Cleveland School District. Now the question is which the federal government or appeals courts want more: integration or perfect balance.

Ruling says Delta doesn't begin at the Peabody Hotel
    For possibly the first time there has been a judicial finding of fact that the Mississippi Delta does not begin in the lobby of the Peabody Hotel. From Davidson's opinion:

Although it has been said that the Mississippi Delta "begins in the lobby of the Peabody Hotel in Memphis and ends on Catfish Row in Vicksburg," the Mississippi Delta actually consists of about fifteen Mississippi counties with an approximate total population of 350,575 persons, 225,653 of which are African American and 119,499 of which are Caucasian.

    I guess the judge couldn't get it all right.

If states can't choose their own license plates, then there may be no right to choose state songs, either

    Are state songs constitutional? If a recent federal court ruling banning North Carolina's "Choose Life" license plates is upheld I don't see how they can be. (ACLU v. Conti)
    Now what does a "Choose Life" license plate have to do with a state song? Simple. Both represent official, state-sanctioned or approved speech which -- in most cases and in North Carolina's case -- have been approved by the state legislature and signed into law. North Carolina had approved 150 license plates as speech which the state itself supported and was willing to give its imprinteur.
    North Carolina has only one state song, "The Old North State," but a majority of state have more than one. New Hampshire has 10 state songs. Yes, 10!
    In North Carolina, the procedure for adopting a state song and a license plate are identical. Both are proposed by a legislator and then enacted into law (any group may seek a special license plate, but it must be approved through the regular legislative process). Approval by the legislature and signing into law by the governor effectively makes the state song or the license plate officially approved state speech.
    It should be noted that a state may not force someone to carry a license plate with a message that violates their fundamental religious principles. Thus the U.S. Supreme Court ruled that Jehovah's Witnesses had the right to tape over the words "Live Free or Die" on New Hampshire license plates, Wooley v. Maynard, 430 U.S. 705 (1977). But North Carolina isn't trying to force people to carry the "Choose Life" plate; it is just declining to issue a pro-abortion plate.
    License plates aren't the only things with the potential to cause offense. State songs have just as much, if not more, potential to offend as the "Choose Life" license plate. Florida's state song, Swanee River by Stephen Foster, makes reference to "Darkies" longing for the plantation. Virginia's "Carry Me Back to Old Virginny" contains fond references to both "Darkies" and "Massa."
    And our own "Go Mississippi!" state song was adopted in 1962 and set to the tune of Gov. Ross Barnett's campaign song, in a clear show of support of his segregationist policies. I can see how some might find the history of the song offensive. Click here to hear the tune of the state song, which adds a note or two to spell the state name. The lyrics to both songs, sung to identical tune, are reproduced below (click to enlarge):



    For those of you interested in such things, Curtis Wilke in his book Dixie: A Personal Odyssey Through Events That Shaped the Modern Southgives the meaning of the derisive nicknames at the end of the song: Big Daddy was Gov. Hugh White; Tall Daddy was Gov. J.P. Coleman; and Little Boy Blue was Lt. Gov. Carroll Gartin, all more moderate than Barnett. In his unsuccessful 1955 campaign for governor, Barnett referred to the candidacy of former vice presidential candidate and Gov. Fielding Wright as "Wright to White and White to Wright," a memorable suggestion that the two men were swapping the office back and forth. Wright was defeated by J.P. Coleman and died in 1956.
    I think a strong argument can be made that Mississippi should have a new state song. But I don't have the right to have the current song banned just because I don't like it. I don't have the right to insist that the state adopt a song of my choosing to further my exercise of free speech, and the failure of the state to adopt a song of my choosing doesn't deprive me of my free speech rights. It is the prerogative of the legislature to adopt a state song or songs. If I don't like them I can choose not to sing them.

    The same goes for North Carolina's "Choose Life" license plate. The U.S. Supreme Court ruled in Roe v. Wade that the state had a legitimate interest in the life of the fetus from the time of conception. Roe just held that the Ninth Amendment privacy right of the mother outweighed the state's interest in the life of the fetus during the first trimester of the pregnancy. There is nothing in Roe v. Wade to suggest that a state may not pass proclamations urging women not to choose abortion; this should certainly include going so far as to put to these proclamations on license plates.

    It should be noted that the court in its decision banning the "Choose Life" license plates said that they weren't really government speech, as they were adopted along with 70 other license plates. However, several legislators suggested the additional of a "Respect Choice" plate and after vigorous debate this was rejected. So the state clearly had some messages that it was willing to support and some that it rejected. This is a state's sovereign right. And if New Hampshire can have 10 state songs, why can't North Carolina have 150 license plates?

    The Court's ruling is that North Carolina is engaging in viewpoint discrimination. Yet North Carolina as a state is permitted to engage in viewpoint discrimination. It is permitted to throw out a buffet of what it considers socially acceptable causes for its citizens to support with their license plates -- should they choose to do so -- while declining to give state sanction to those activities which, though legal, the state does not approve.

    By denying North Carolina the right to issue license plates of its choice the federal court is depriving that state of the right to exercise one its basic rights of state sovereignty: the right to have official positions as a state; the right to say that as a state it would prefer that its citizens "Choose Life."

    But the right to determine state birds, state songs and state license plates should be up to the several legislatures and states, not the federal courts. This is true whether we agree with the state's position or not.

Mississippi State Song Lyrics

"Go Mississippi"

Mississippi State Song, Adopted 1962

States may sing their songs of praise

With waving flags and hip-hoo-rays,

Let cymbals crash and let bells ring

Cause here's one song I'm proud to sing.

Choruses: 

Go, Mississippi, keep rolling along,

Go, Mississippi, you cannot go wrong,

Go, Mississippi, we're singing your song,

M-I-S-S-I-S-S-I-P-P-I

Go, Mississippi, you're on the right track,

Go, Mississippi, and this is a fact,

Go, Mississippi, you'll never look back,

M-I-S-S-I-S-S-I-P-P-I

Go, Mississippi, straight down the line,

Go, Mississippi, ev'rything's fine,

Go, MIssissippi, it's your state and mine,

M-I-S-S-I-S-S-I-P-P-I

Go, Mississippi, continue to roll,

Go, Mississippi, the top is the goal,

Go, Mississippi, you'll have and you'll hold,

M-I-S-S-I-S-S-I-P-P-I

Go, Mississippi, get up and go,

Go, Mississippi, let the world know,

That our Mississippi is leading the show,

M-I-S-S-I-S-S-I-P-P-I

Roll With Ross

Ross Barnett 1959 Campaign Song

When they count the votes that night

You’ll find that things have gone just right

Folks will laugh and sing be gay

With Ross Barnett to lead the way

Choruses:

So climb on the wagon, it’s rolling along,

Shout from the rooftop, his victory song,

Climb on the wagon, it cannot go wrong,

Roll with Ross, Roll with Ross, He’s his own boss

He’s for segregation, 100 percent,

He’s not a moderate, like some other gent,

He’s fight integration, with forceful intent,

Roll with Ross, Roll with Ross, He’s his own boss

Invited Edward Rollins, up Tennessee way,

To fight for segregation, without any pay,

He’s one of the lawyers who helped save the day,

Roll with Ross, Roll with Ross, He’s his own boss

He is rebellious against the machine

Dictatorial politics are somewhat unclean,

He’s a man of the people if you know what we mean,

Roll with Ross, Roll with Ross, He’s his own boss

Owes no allegiance to some chosen few

Owes his allegiance to you and to you

[shout] Big Daddy, Tall Daddy, Little Boy Blue!

Roll with Ross, Roll with Ross, He’s his own boss