Thursday, November 20, 2014

The Faculty Lounge: Arthur Frakt's Thoughts on Law School Admissions and the Bar

The first responsibility of a law school is to produce graduates who will be competent lawyers.  That requires passing the bar exam.  The level of difficulty of the exam is, of course, a policy judgment.  A few years ago New York raised the required scores with a differential impact on minority students.  Perhaps it set the requirement above that necessary for competence.

But nonetheless it is not just to take money from people who will not pass that test.  Does the bar exam generally assure a minimum degree of mastery of legal reasoning and a reasonable familiarity with the concepts most commonly used by lawyers.   I would say yes.  

Arthur Frakt is a distinguished legal educator and New Jersey lawyer of he era I wrote about in my history People's Electric - Engaged Legal Education at Rutgers Newark in the 1960's and 1970's.  His post is worth reading.  Click through to the complete original post.  - GWC

The Faculty Lounge: Arthur Frakt's Thoughts on Law School Admissions and the Bar: by David Frakt

"Arthur Frakt's Thoughts on Law School Admissions and the Bar
Introduction:  I often discuss my TFL posts and the comments thereto with my father, Arthur Frakt.  Dad was a long-time faculty member and Associate Dean at Rutgers-Camden before becoming Dean at Loyola LA in the 80s, and Dean of Widener (both Wilmington and Harrisburg) in the 90s before retiring.  He has come out of retirement a couple of times: first, to help start the law school at Drexel, and later, to help Western State overcome its bar passage struggles and get full accreditation.  He continues to follow closely what is going on legal academia.  I asked him if he would be interested in sharing some of his thoughts on The Faculty Lounge, and he graciously offered to do so.   After reading them, I find myself in complete agreement with everything he says.  We both look forward to your comments.  

- David Frakt

 SOME THOUGHTS ON LAW SCHOOL ADMISSIONS AND THE BAR

 by Arthur Frakt

 In my four decades as a teacher and administrator in legal education,  I was always deeply involved in the admissions process as well as the success of students in passing the bar examination and gaining entry into the profession.  Of course every law school dean must have an interest in how his or her school's students have  performed on the LSAT and succeeded at the bar examination, but I had a deep personal concern stemming from my own experience in law school and my work as the only lawyer in the New Jersey Attorney General's office working full time on civil rights.

I entered Rutgers Law School-Newark in 1961.  At that time the law school world and legal practice generally was the domain of white men. My class of approximately 130 students had three women and one African American male.  They were all excellent students, and while I never heard a racist comment from faculty and classmates, there was a great deal of animosity and insensitivity to the women.  Rutgers was fortunate to have a brilliant black professor, Clyde Ferguson, and an outstanding female professor, Eva Morreale.  Before I graduated, Ruth Bader Ginsburg had joined the faculty.  That was it for women and minorities.

I worked in Civil Rights during a time when discrimination in housing and employment was blatant and very widespread.  When I entered the teaching profession at Rutgers Camden in 1966, I was determined to do whatever I could to change the situation.  Fortunately, at that time of great national upheaval, there were many who felt the same way."



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Opponents of N.F.L. Concussion Settlement Make Case for Altering It - NYTimes.com

Chris Seeger, class action plaintiffs lawyer
Opponents of N.F.L. Concussion Settlement Make Case for Altering It - NYTimes.com

by Ken Belson



PHILADELPHIA — After hundreds of court filings over the past 16 months, opponents of the preliminary settlement between theN.F.L. and the 5,000 former players who sued the league for hiding the dangers of concussions urged a federal judge on Wednesday to alter key parts of the deal.
In a daylong hearing in front of Judge Anita B. Brody of United States District Court for the Eastern District of Pennsylvania, lawyers for the handful of retired players who object to the settlement complained that only players who died with chronic traumatic encephalopathy during a small window of years will be eligible to receive a cash award.
Only players who were found to have C.T.E., a degenerative neurological disease, before July, when the settlement was preliminarily approved, would be eligible for up to $4 million. Anyone found to have C.T.E. thereafter would get nothing.


“This is an insidious disease that deserves action,” said Steven Molo, a lawyer for several former players who object to the deal, which includes up to $5 million for players with severe neurological problems.
Molo and other objectors said that the settlement covers only a handful of serious illnesses, like Parkinson’s disease and severe dementia, and that the formula that provides more money to younger players and those with more N.F.L. experience was arbitrary.
Some of the lawyers who spoke for the objectors also said that the tests that players will have to take to be paid were biased against those with less education and were designed to prevent players from receiving an award.


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Reject NFL Class Settlement // Erichson

Prof. Erichson has been skeptical about many class action settlements for failure to sufficiently respect the autonomy of the members of the plaintiff class or litigants.  He was critical, for example, of the Vioxx litigation settlement in which plaintiffs' lawyers agreed to recommend the settlement to every client and to refuse to represent them further if the client rejected the settlement.  He sees a similar steamroller here.
Yesterday was the Rule 23 mandated "fairness hearing".  Prominent among the objectors was attorney Steven Molo, representing Sean Morey and others.  Among his co-counsel is Texas law professor Linda Mullenix, another academic critic whose work you will find on the Remedies syllabus. The Morey objection is HERE. - gwc

Class Action Exploitation
Reject the class settlement
By Prof. Howard Erichson  (Fordham Law School)


Tomorrow in Philadelphia, lawyers for the NFL and lawyers for former football players will try to persuade Judge Anita Brody to approve their settlement of claims that the League concealed chronic risks of concussions and failed to protect players. The judge, the players, and the public should view the settlement with suspicion. 

 We have grown so accustomed to "settlement class actions" that we have lost sight of what is strange and troubling about them. Class actions serve an essential function in our legal system by empowering claimants in mass disputes, and I reject the knee-jerk criticisms of class actions that I  hear too often. 

But when the class action tool is exploited by defendants to buy peace on the cheap, and when class members are harmed by the alignment of interests between defendants and class counsel, I feel the need to speak up.

Who reached this agreement with the NFL? Not the thousands of former football players. 


The deal was struck by lawyers who purported to represent the players but who had not actually gotten the go-ahead to litigate for the class. To litigate a class action, lawyers must get the class certified. But in this case, the lawyers negotiated their settlement before the court certified the class.

It makes sense that the NFL would want to do it this way. 


By negotiating before class certification, the NFL knew that the plaintiffs’ lawyers lacked the leverage that comes with being able to say, “See you at trial.” 

And it makes sense that the players’ lawyers would go along. They stand to make $112 million plus up to five percent of each award going forward. If these lawyers failed to reach agreement with the NFL, they risked being cut out if the League struck a deal with someone else.

In a “settlement class action” like the NFL deal, lawyers ask the court to certify the class for settlement only, as opposed to a standard class action that can be litigated or settled. 


This ought to be the first question people ask when they hear about a class action settlement: Was the class certified for litigation? If not, then class members are especially vulnerable to exploitation.

It is not an obscure problem. As I explain in The Problem of Settlement Class Actions, settlement class actions have become more common than standard class actions. And while good settlements exist, we see mischief too often. Three weeks ago, the Seventh Circuit heard arguments in Pearson v. NBTY, a settlement class action about false labeling for glucosamine supplements. Among numerous other problems, the lawyers’ fees were more than double the amount actually paid to the class. 



The district court's opinion approving the settlement is disturbing, and Ted Frank's argument for the objectors is powerful. And in Lane v. Facebook, a settlement class action involving claims that Facebook illegally shared information about members’ Internet activity, Facebook paid over $2 million to the plaintiffs’ lawyers, $6.5 million to a foundation that Facebook would partly control, and zero to the class members. Facebook discontinued the challenged program but could reinstate it under a different name. 

Facebook wiped away its liability while the class members got nothing of value. Chief Justice Roberts was horrified.

Compared to these settlements, the NFL deal looks pretty good. For some players, it offers immediate compensation, and for others it offers long-term insurance. 



Judge Brody initially rejected the settlement but then gave it preliminary approval after the NFL removed a cap on the fund. But the dynamic of settlement class actions should make us ask questions. The settlement rewards certain diagnoses (Alzheimer’s, Parkinson’s, ALS) over others (CTE). It pays for cognitive impairment but not mood disorders. The objectors make a strong argument that these items are crucial. 

The settlement imposes a registration requirement and other hurdles that objectors say are intended only to reduce claims. I can see why the deal has drawn so much fire and why Public Citizen sought to intervene [but was rejected by Judge Brody]. 

 The truth is, it is always hard to judge whether a class settlement is fair. A settlement, after all, is a compromise. There is no magic formula by which a football fan or a federal judge can evaluate whether the settlement is good enough. What we can ask, however, is whether the settlement resulted from a fair process, a negotiation on a level playing field. The answer is no.

The concern in every settlement class action is that lawyers may have struck the deal not because it was the best the class members could have gotten, but because it was the best the lawyers could get for themselves. If the settlement proves inadequate, then the lawyers get rich, the League gets off easy, and the football players – damaged forever – are left without the money they need to take care of themselves and their families for the rest of their lives. 


 There is, of course, something the judge can do about it. Reject this settlement, and on a proper motion, certify the class for litigation as well as settlement. Rest assured, there will be a better offer on the table. Although the judge would still face the difficult task of evaluating a class settlement and would still have to be on the lookout for abuse, at least she would know that the players weren’t disempowered from the start. "


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Bishops support executive action on immigration | National Catholic Reporter

Bishops support executive action on immigration | National Catholic Reporter

by Thomas Reese, s.J.

"In a little noted letter, two bishops chairing committees of the U.S. Conference of Catholic Bishops have put the Catholic bishops on record supporting executive action on immigration. The letter places the bishops on President Barack Obama's side in his dispute with congressional Republicans, who are opposed to any executive action on immigration. 

The letter, sent on Sept. 9 with little fanfare, was addressed to Jeh Johnson, secretary of the Department of Homeland Security, with copies of the letter going to Dennis McDonough, chief of staff to the president, and Cecilia Munoz, director of the White House Domestic Policy Council. The letter was signed by Bishop Eusebio Elizondo, chair of the Committee on Migration, and Bishop Kevin Vann, chair of the Catholic Legal Immigration Network. 

The conference issued no press release to publicize the letter and I cannot find it on the USCCB website.

The letter asked for executive action "to protect undocumented individuals and families as soon as possible, within the limits of your executive authority." "With immigration reform legislation stalled in Congress," the letter said, "our nation can no longer wait to end the suffering of family separation caused by our broken immigration system." 


 The Republican leadership in Congress has said any executive action by the president on immigration would poison future cooperation on any topic."



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Wednesday, November 19, 2014

NEW ORLEANS: BP fights on to oust oil spill claims chief | National Business | SanLuisObispo

NEW ORLEANS: BP fights on to oust oil spill claims chief | National Business | SanLuis Obispo "NEW ORLEANS — AP

BP is heading to a federal appeals court in its effort to oust the administrator of damage settlement claims arising from the 2010 Gulf of Mexico oil spill.

The company filed notice Tuesday that it plans to file with the 5th U.S. Circuit Court of Appeals in New Orleans.

BP has long complained about Patrick Juneau's administration of claims. 


It sought his removal by a federal judge in motions claiming that he had a conflict of interest because he once represented Louisiana in talks setting up the claims process and had pushed for favorable terms for those with claims.

The company also said he had made misleading statements about that work before being named claims administrator. And they said Juneau improperly expedited claims for some people represented by the plaintiffs' steering committee. 


 U.S. District Judge Carl Barbier flatly rejected BP's arguments in an order last week. He said Juneau had disclosed his previous work to BP before being selected as administrator. He also said that BP used an out-of-context statement in its accusations against Juneau and that there was no evidence that any claims were improperly expedited.

 "BP has appealed that order as it continues its efforts to bring the integrity and transparency to the Gulf claims program that was promised at its inception and that is sorely needed today," BP spokesman Geoff Morrell said in an emailed statement. 

 In a related development Tuesday, Barbier approved plans for a second round of claims to be paid from a $2.3 billion seafood compensation program. He adopted recommendations from a group of third-party lawyers, referred to throughout his order and the court record as "the Neutrals," recommending disbursement of up to $500 million in seafood claims.

Barbier's latest order comes despite worries from BP about errors and fraud in the seafood compensation program. The judge said there are sufficient safeguards in place to root out fraud and prevent and correct errors."




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Opposition to N.F.L. Settlement Centers on Coverage for Neurological Disease - NYTimes.com



Opposition to N.F.L. Settlement Centers on Coverage for Neurological Disease - NYTimes.com

by Ken Belson



During his nine-year career as an N.F.L.linebacker, Jesse Solomon was a solid contributor, a 12th-round draft pick who rarely missed games despite numerous injuries. After 116 games with five teams, he retired in 1995 after a quadriceps tendon separated from his kneecap.
Solomon returned to school to get teaching and coaching certificates and became a high school football coach and gym teacher. But over the years, the thousands of head hits and injuries to his neck, shoulders, hands, knees and feet took their toll. Solomon was depressed and prone to outbursts, had continual headaches and was forced to leave his job.
When Solomon applied for N.F.L. disability benefits, two doctors, including a neurologist appointed by the league and the players union, said Solomon “probably is demonstrating features” of chronic traumatic encephalopathy, or C.T.E., a degenerative neurological disease that has definitively been diagnosed only in autopsies.
The N.F.L. denied some of the benefits Solomon sought, a decision he is fighting. Solomon, 51, may also get nothing from the N.F.L.’s settlement with retired players, who say the league hid from them the dangers of concussions. In that deal, only the estates of players who died and were found to have C.T.E. from 2006 to this July, when the proposed settlement was approved, are eligible to receive cash awards of up to $4 million.
Any former players with C.T.E. who died after July will be excluded. So will any of them who receive a C.T.E. diagnosis while living, if such a test is approved in the future.
Cyril Smith of Zuckerman Spaeder, which represents Solomon in his case against the N.F.L.’s disability board and in the concussion settlement, said: “C.T.E. has its own symptoms, and to carve it out from the compensable diseases is like taking lung disease out of a settlement on smoking. If you don’t take care of this, have you settled this fairly? We think no.”
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Monday, November 17, 2014

Lost in Rawlsland - NYTimes.com

Lost in Rawlsland - NYTimes.com
George Yancy: You are a philosopher who thinks very deeply about issues of race. Can you provide a sense of your work?
Charles Mills: I think a simple way to sum it up would be as the transition from white Marxism to (what I have recently started calling) black radical liberalism.
G.Y.: So, how does “white” modify Marxism? And what is it about the modification that helps to account for the transition to what you’re now calling black radical liberalism?
C.M.: Mainstream Marxism has (with a few honorable exceptions) been “white” in the sense that it has not historically realized or acknowledged the extent to which European expansionism in the modern period (the late 15th century and onward) creates a racialized world, so that class categories have to share theoretical space with categories of personhood and subpersonhood. Modernity is supposed to usher in the epoch of individualism. The Marxist critique is then that the elimination of feudal estates still leaves intact material/economic differences (capitalist and worker) between nominally classless and normatively equal individuals. But the racial critique points out that people of color don’t even attain normative equality.
In the new language of the time of “men” or “persons” (displacing citizens and slaves, lords and serfs), they are not even full persons.
Social justice theory should be reconnected with its real-world roots, the correction of injustices.
So a theorization of the implications of a globally racially partitioned personhood becomes crucial, and liberalism — once informed by and revised in the light of the black experience — can be very valuable in working this out. In a forthcoming essay collection for Oxford University Press, “Black Rights/White Wrongs: The Critique of Racial Liberalism,” I try to make a case for this retrieval — the deracialization of a liberalism historically racialized.


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Unfinished Business: The Legacy of Brown v. Board of Education | The Center for Professional Responsibility

Unfinished Business: The Legacy of Brown v. Board of Education | The Center for Professional Responsibility:

By William C. Hubbard
William C. Hubbard is the President of the American Bar Association. Mr. Hubbard is a partner with Nelson Mullins Riley & Scarborough LLP in Columbia, South Carolina.
This article is adapted from remarks to staff at ABA headquarters, Chicago, at an event commemorating the 60th anniversary of Brown v. Board of Education and the 50th anniversary of the Civil Rights Act of 1964.
In December 1953, a taxi carried Thurgood Marshall from the Wardman Park Hotel to the U.S. Supreme Court to argue his biggest case, Brown vs. Board of Education. Marshall turned to his co-counsel William T. Coleman and said, “I have to be at my best today.”
Marshall said he was going to have to be as good as Henry V at Agincourt, where the young king led his vastly outnumbered forces to victory over the French. The two lawyers knew what the stakes were on that exciting, memorable day. Marshall rose to the occasion, and their work changed history.
But has it changed history in the way that the Supreme Court and Thurgood Marshall and William Coleman thought it would? Regrettably, unfinished business is the legacy of Brown v. Board of Education. We need to finish this unfinished business if we are to fulfill the promise of Brown.
A close friend and law partner of mine in South Carolina, Steve Morrison, devoted 10 years of his life and several million dollars of pro bono time to a case called Abbeville v. State of South Carolina. The case, which seeks to address inequitable school funding and was brought on behalf of poor, rural school districts, has been litigated for 10 years. It has been before the South Carolina Supreme Court three times, but we have yet to receive a final decision.
The case was tried in the Clarendon County Court House in South Carolina, which was the trial courthouse of a case called Briggs v. Elliott – one of the five cases that were consolidated under the caption, Brown v. Board of Education.
What an irony that 60 years later cases are still being tried to fulfill the expectation of Brown. Those are our battles today, and we can’t let down our guard. We cannot let the legacy of Brown go unfulfilled because if we don’t have full, equal, and fair funding of public schools in this country, we haven’t met the promise of Brown v. Board of Education.
If we don’t do the hard work to make quality education, from early childhood through high school, available to everyone so that we can develop the pipeline of leadership and give people a fair opportunity to have a successful life, then we will not have met our obligation and fulfilled our duties under Brown and the Civil Rights Act.
Mr. Morrison worked hard on Abbeville and sadly died last December in his early 60s, in part I’m convinced because the effort that he put into the case left him exhausted. In his closing argument, he told the story about babies floating down a river. Men and women said, “We have to get these babies out of the river,” and they started pulling the babies out. Two men started walking upstream, and they were asked, “Where you going? These babies are floating down the river. We must get them out.” And the two men said, “We’re going upstream and we’re going to find out who’s tossing these babies in the river. We’re going to stop them.”
We have to stop tolerating separate and unequal schools in this country today, and we must reenergize public education in America through equitable funding. If we don’t take that step, we will not only have not fulfilled our obligations under Brown, we will threaten the very underpinnings of our constitutional democracy.
The ABA addresses these and other matters of inequity every day by working to improve access to justice. We know that 80 percent of the poor in the United States do not have adequate access to civil justice. We know that there’s an unfulfilled promise under Gideon v. Wainwright to have adequate counsel in many criminal proceedings.
This year, through the new Commission on the Future of Legal Services, the ABA will be particularly focused on bridging the justice gap by developing new and innovative ways to provide legal services to the poor. The research shows that when the poorest of the poor—disproportionately persons of color—get an eviction notice, they assume, “Well, that’s just life. That’s what I deserve. That’s what happens to me.” They don’t realize that they have rights and can do something about those situations if they have access to our legal system.
We will work on these issues this year and through the year that my successor Paulette Brown is ABA president to try to bridge that justice gap so that more people have a fair shot.
We also will focus on issues involving disparities and discrimination in sentencing. Through the efforts of our Criminal Justice Section, Governmental Affairs Office, and other groups that are working on these issues, we will promote state and federal sentencing reform and advocate for laws to reduce the collateral consequences of incarceration. In many states, hundreds of laws prohibit people, once they’ve been released from incarceration, from ever being able to get certain licenses, qualify for student loans, and get a fair shake in reentering society in a way that they can live productive lives.
All of these are priorities of the American Bar Association. That’s our way of trying to do something to meet our obligations and our duties under Brown v. Board of Education.
Editor's Note: On November 12, 2014, the South Carolina Supreme Court issued a final decision inAbbeville v. State of South Carolina, ruling for rural school districts in holding that legislators had failed for decades to ensure public school students from disadvantaged communities their opportunity to succeed.
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NCAA files opening argument in appeal of O'Bannon case

NCAA files opening argument in appeal of O'Bannon case: USA Today

"The NCAA opened its appeal of the Ed O'Bannon class-action antitrust lawsuit late Friday night by primarily contending that U.S. District Judge Claudia Wilken erred "by refusing to follow" a 1984 Supreme Court ruling that the NCAA has relied upon to preserve its amateurism system. 

 In a 72-page filing with the 9th U.S. Circuit Court of Appeals, the association also said Wilken "improperly … took on the role of superintendent of collegiate sports" when, in addition to ruling that the NCAA's rules violate antitrust laws, she issued an injunction that would allow some athletes to receive not only scholarships covering their full cost of attending school but also what amounts to deferred compensation — all for their participation and the schools' use of their names, images and likenesses. 

 The NCAA, for the first time in the case, offered an assessment of what the cost of Wilken's injunction would be to schools, writing that Bowl Subdivision football players and Division I men's 



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Sunday, November 16, 2014

When Whites Just Don’t Get It, Part 4 // Kristof - NYTimes.com

When Whites Just Don’t Get It, Part 4 - NYTimes.com



by Nicholas Kristof

WHEN I write about racial inequality in America, one common response from whites is eye-rolling and an emphatic: It’s time to move on.
“As whites, are we doomed to an eternity of apology?” Neil tweeted at me. “When does individual responsibility kick in?”
Terry asked on my Facebook page: “Why are we still being held to actions that took place long ago?”
“How long am I supposed to feel guilty about being white? I bust my hump at work and refrain from living a thug life,” Bradley chimed in. “America is about personal responsibility. ... And really, get past the slavery issue.”
This is the fourth installment in a series of columns I’ve written this year, “When Whites Just Don’t Get It,” and plenty of white readers have responded with anger and frustration at what they see as the “blame game” on race. They acknowledge a horrific history of racial discrimination but also say that we should look forward, not backward. The Supreme Court seems to share this view as it dismantles civil-rights-era rulings on voting rights.
As Dina puts it: “I am tired of the race conversation. It has exasperated me. Just stop. In so many industries, the racial ceiling has been shattered. Our president is black. From that moment on, there were no more excuses.”
If only it were so simple!
*****
But we in white society should be equally ready to shoulder responsibility. In past articles in this series, I’ve looked at black/white economic inequality that is greater in America today than it was in apartheid South Africa, at ongoing discrimination against African-Americans in the labor market and at systematic bias in law enforcement. But these conversations run into a wall: the presumption on the part of so many well-meaning white Americans that racism is a historical artifact. They don’t appreciate the overwhelming evidence that centuries of racial subjugation still shape inequity in the 21st century.
Indeed, a wave of research over the last 20 years has documented the lingering effects of slavery in the United States and South America alike. For example, counties in America that had a higher proportion of slaves in 1860 are still more unequal today, according to a scholarly paper published in 2010. The authors called this a “persistent effect of slavery.”
One reason seems to be that areas with slave labor were ruled for the benefit of elite plantation owners. Public schools, libraries and legal institutions lagged, holding back working-class whites as well as blacks.
Whites often don’t realize that slavery didn’t truly end until long after the Civil War. Douglas Blackmon won a Pulitzer Prize for his devastating history, “Slavery by Another Name,” that recounted how U.S. Steel and other American corporations used black slave labor well into the 20th century, through “convict leasing.” Blacks would be arrested for made-up offenses such as “vagrancy” and then would be leased to companies as slave laborers.
Job and housing discrimination also systematically prevented blacks from accumulating wealth. The Federal Housing Administration and other initiatives greatly expanded home ownership and the middle class but deliberately excluded blacks.
That’s one reason why black families have, on average, only about 6 percent as much wealth as white households, why only 44 percent of black families own a home compared with 73 percent for white households.
The inequality continues, particularly in education. De jure segregated schools have been replaced in some areas by de facto segregation.
Those of us who are white have a remarkable capacity for delusions. A majority of whites have said in opinion polls that blacks earn as much as whites and are as healthy as whites. In fact, black median household income is $34,598, compared with $58,270 for non-Hispanic whites, according to census data. Black life expectancy is four years shorter than that of whites.
Granted, race is just one thread in a tapestry. The daughters of President and Michelle Obama shouldn’t enjoy affirmative action preference (as their dad has acknowledged), while disadvantaged white kids should.
Yet one element of white privilege today is obliviousness to privilege, including a blithe disregard of the way past subjugation shapes present disadvantage.


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