Monday morning fact checking – what’s the difference between refugees and asylum seekers?

This morning I heard a report on NPR about the refugee resettlement process. Someone who works with World Relief, which was established by the National Association of Evangelicals, pointed out that exactly no acts of terror have been committed by refugees in the United States.

Hold on a second, my brain said – what about the Boston Marathon bombers?

Actually, they were here via the asylum process.  The distinction is both technical and of critical importance.

Guidelines for who qualifies for refugee/asylee status is governed by the same code – INA 101(a)(42). The difference is where you apply – inside the United States or outside.  If you’re outside the US, you apply for refugee status, and go through a process that will take months and perhaps years.  If you’re inside the US, you can either proactively claim asylum by turning yourself over to immigration officials, or defensively claim asylum in response to an order of removal.  One of the difficulties with asylum claims is that from half a planet away, documentation of persecution can be difficult to obtain.  Judges have to keep this in mind while also maintaining the rigor demanded by the law.

Three examples of asylum claims:

Adelaide Abankwah, detained at an airport in the US because her ID seemed totally fake.  Remained in detention center for the majority of the legal proceedings.  Claimed that she was going to be forced to undergo FGM in Ghana.  Due to lack of evidence and inconsistent testimony, she was ordered removed back to Ghana. The liberal outrage machine jumped on this and said that we must defend women’s rights.  The Washington Times defended her, as did the Village Voice; strange bedfellows to be sure. Even Chuck Schumer visited her in the detention center.  The liberal outrage machine manged to round up enough resources to find better attorneys and eventually the 2nd Circuit Court of Appeals kicked the case back to the Board of Immigration Appeals, which then granted Abankwah eligible for asylum.  A few years later, further investigations proved without a doubt that she was full of horse feces the entire time and had fraudulently obtained asylum.  She was later charged with perjury.  (You can read more about her here.)

Romeike v Holder, which I previously posted about.  Family chooses to homeschool their family in spite of it being against German laws.  They enter as visitors thanks to the Visa Waiver Program, and then request asylum.  They managed to land a judge with one of the highest rates of approval of asylum claims, who grants them such status.  The Board of Immigration Appeals looks at it and says the judge wrongly granted them the status.  The 6th Circuit Court of Appeals concurs with the BIA.  The conservative outrage machine jumped all over this and kept blaming the Obama administration, even though two of the three judges on the panel – including the one who wrote the opinion of the court – were appointed by George W. Bush.  When the DHS granted a special exemption to this family, the conservative outrage machine failed to give a proper “Thanks Obama!” for the element of this ruling that actually had something to do with the Obama administration.

Finally, the Tsarnaev brothers.   Anzor Tsarnaev (the father) entered the United States on a visitor visa and then requested asylum due to his involvement with Chechnyan politics.  The father’s claim was found valid, and the children received derivative status due to that.  (Reports about the family history are plentiful across the internet, so I’ll leave that to your googling skills.)

Point #1 Asylum claims are ugly, and compounded by the reality of the people involved being physically present.  In part this makes it harder to investigate the veracity of the claim.

Point #2: If the goal is to protect the United States from potential terrorists, asylum claims on US soil should also be severely restricted.  Visitor visas and business visas need much stricter scrutiny.  But did I mention it’s not the refugees?

I realize I haven’t presented any cases here of good asylum cases, that is, people who really should be getting asylum status – so if you know of any, please comment!

 

Texas school funding and special education (Part 1)

Recently I attended a public hearing regarding the issues parents have had with getting their children qualified for special education services.  Before I can wade into unpacking what I learned there, I realized that I need to brush up on how Texas pays for these services.  Texas school funding can be simplified into three categories – local funds, state funds, and federal funds.  The largest categories are the first two, and the balance therein keeps shifting.

The US Department of Education created these public meetings in part to ensure that Texas is following federal guidelines that qualify them for US DoE funding.  The Individuals with Disability Education Act (IDEA)  was passed by Congress (under a different name) in the 70’s and has been repeatedly renewed, yet never full funded.  A burden is placed on local school districts to comply with laws, and while certain grants and funding streams are associated with it, it doesn’t provide for the full costs of the services required.(1)  Local school districts must still make up the difference in costs to provide these services.

The Texas constitution states “A general diffusion of knowledge being essential to the preservation of the liberties and rights of the people, it shall be the duty of the Legislature of the State to establish and make suitable provision for the support and maintenance of an efficient system of public free schools.”

The devil is in the details.

In 1968, several hundred high school students in San Antonio staged a walk-out to protest the unequal access to education in Texas.  Some school districts were earning greater revenue at lower tax rates because of higher property values; the poorer school districts couldn’t afford supplies and teachers.  This became the basis of the Rodriguez v San Antonio ISD case, in which a federal court ruled that the Texas finance law violated the equal protection clause of the 14th Amendment – only to be overturned by a 5-4 SCOTUS decision.  The court ruled that it was a state, not federal decision.

A few years later, MALDEF took that to heart and approached it from a different angle, arguing that the school finance system was indeed violating the Texas constitution, not the US constitution.  This case stuck, and in a unanimous decision, the Supreme Court of Texas ruled in Edgewood ISD v Kirby that something needed to change.

It was in this context that the infamous “Robin Hood” bill, SB7, was birthed.  SB7 effectively put a cap on the amount of revenue a given school district can get from property taxes, requiring instead that the excess be funneled to other districts. (2)

However, Article 8, Section 1-e of the Texas Constitution expressly forbids a statewide property tax.  The statewide redistribution of school funding was effectively that. Oops.

So eventually Governor Perry proposes an increase in other taxes, such as cigarettes, as a funding stream for the schools, and a decrease on the reliance of property taxes.  Local school districts were restricted on how much they could raise property taxes.

In the most recent legal challenge, the Supreme Court of Texas had harsh words for the existing system, and implored the lege to create something new rather than trying to patch an awful system.  But they stopped short of overturning it.  “Judicial review, however, does not licence second-guessing the political branches’ policy choices, or substituting the wisdom of nine judges for that of 181 lawmakers. Our role is much more limited, as is our holding: Despite the imperfections of the current school funding regime, it meets minimum constitutional requirements.”

And so here we are.  One of the running themes at the public hearing on Monday was that the issues with special education in Texas cannot be separated from the larger funding issues.  School districts have to control SPED costs somehow.  State and federal mandates aren’t backed up with funding, so school districts feel pressured to kick the can down the road somehow.  Sadly the figurative can in question is a child with special needs.

Unanswered questions for future reading – how do states that don’t have statewide income tax fund their schools?  (I believe there’s half a dozen besides Texas.)   Are there particular states that can be looked to as the model for this?

(1) For more on the funding issues, The New America Foundation has an overview of it.  The New America Foundation is a non-partisan think-tank whose research & policy advocacy focus spans foreign policy, technology, economics, and education; their overall goal is to “renewing American politics, prosperity, and purpose in the Digital Age.” Notable people associated with them include Atul Gawande , Reihan Salam, and David Brooks.

(2) The TEA has an overview of the history of public education in Texas. They didn’t think it necessary to point out that an older funding system was ruled to be unconstitutional, nor is desegregation mentioned in the history.  The way they present it, you’d think that the public education system in Texas has a flawless history.   The Houston Chronicle also gives an overview.

November elections to watch

Texas races:

Harris County District Attorney:

Recently, Harris County prosecutors jailed a rape victim after she had a mental breakdown.  Prosecutors defended this, saying that they needed her testimony to ensure a conviction.  Victims’ rights advocates said it was a further abuse of the victim.  The rest of us just stare in horror at how awful the situation is on both sides.  Should the DA’s office reform these policies?  Current Harris County district attorney Devon Anderson says this choice was fine; the above article quotes her saying “If nothing was done to prevent the victim from leaving Harris County in the middle of trial, a serial rapist would have gone free – and her life would have been at risk while homeless on the street.”

Democratic challenger Kim Ogg says that wouldn’t fly under her watch.   Big money from national donors is pouring into the election trying to oust Anderson.  That in turn has triggered Ted Cruz robocalls defending the Republican.   The last election had the same contenders and it was a tight race: in the 2014 election, Devon Anderson (R) had 53%; Kim Ogg (D) had 47%.

Rangers ballpark:

Should the Rangers be given half a billion dollars in sales tax revenue to support a new stadium?  If they don’t get it, will they leave?  Are ballparks good investments for cities, anyway?  The Brookings Institution has worked through part of that question.  Let’s see what the Arlington voters think.

 

Texas House of Representative seats

Four seats in the Dallas area held by Republicans are actually competitive this year.   I’m not particularly familiar with any of those districts.  The State House is currently 50 Dems, 99 Reps, and 1 independent, so any change in that skew would be interesting.

I read somewhere that ousting moderate Republicans in favor of Democrats could be problematic.  Because of the significant majority held by the R’s, House Republicans can largely ignore what the D’s want.   But, House Republicans have to balance the interests of the far-right tea party members with the more traditional moderates.  A moderate has, well, a moderating effect on the majority.  Democrats can be ignored.  Unless it were closer to a 50/50 house, it might be better to leave in moderates.

Three of those four are ranked quite poorly by Empower Texans; that signals to me that they’re moderates.  Clearly I need to read more about those races.

 

State ballot propositions

 

California

Prop 56 – increase cigarette tax
Prop 60 – require condoms in porn
Prop 62 – repeal death penalty
Prop 64 – legalize weed

Colorado

Statewide universal healthcare

 

Maine

 

Ranked choice voting

United States v. Sterling & the advocacy groups involved

This case came to my attention by way of a friend who is deeply concerned that our religious liberties are eroding.  This is the view I saw first:

According to First Liberty:

United States Marine Corps Lance Corporal (LCpl) Monifa Sterling was court-martialed after she refused to take down Bible verses she had posted in her workspace and for reposting the verses after her supervisor threw them in the trash. A trial court ruled against Sterling, giving her a bad conduct discharge and reducing her rank.

And if that’s the only story, it seems like a blatant religious liberties issue.  But of course there’s two sides to every story.  According to the Marines, the postings were not identified as religious initially, and Sterling repeatedly disobeyed orders; the court martial had to do with that, not any persecution.

To highlight this rift in the understanding of the facts, look at the news coverage.  Yesterday in my Intro to Sociology class, we played a game of “match the headline to the news source.”  It works as well for opinion pieces as for actual news articles!  My class did a great job of identifying which was Fox News and which was Huffington Post, which left the Washington Post in the middle.

“Marine court-martialed for refusing to remove Bible verse.”

“After court-martial, this Marine cites religious freedom.”

“How to turn a bad Marine into a persecuted Christian.”

The HuffPo blog article has already decided that she’s a bad Marine; Fox News opinion has already decided that the most important element of the court martial was the Bible verse.  Both of these are the type of contentious statements that will reinforce what you already want to believe and do nothing to communicate to those who disagree.  The WaPo headline is closest to accurate; there is some argument regarding when she initially claimed religious persecution.

If you want to actually look at the source texts, it’s all posted at the Court of Appeals for the Armed Forces. The case was argued this week, with superstar attorney Paul Clement making his first appearance in military courts to lead the “religious liberty” charge.  If Clement fails in his challenge, certainly he will appeal to the Supreme Court – whether they’ll hear the challenge or defer to the military courts is in question.

The Religious Freedom Restoration Act states that the government cannot substantially burden the free exercise of religion unless there is a compelling governmental interest and this is the least restrictive means of doing so.  The lower court (the U.S. Navy-Marine Corps Court of Criminal Appeals) did not believe that her behavior was religious exercise – thus, RFRA would not be triggered.  Clement contents it was, and is.   The brief for the appellee states that Sterling did not notify her NCO that the notes in question were religious in nature, nor did she ever request for religious accommodations, nor did she raise a claim of religious discrimination in the earliest days of the suit.  One of the questions this case addresses is if a person needs to make it clear that their behavior is religiously motivated in order to be protected, or if it absolutely protected by its very nature regardless of if others are aware it’s religious.

Eight amicus briefs are listed with the case.

First, a few dozen members of Congress along with the American Center for Law & Justice writing in defense of the appellant attempt to clarify legislative intent and correct the lower court.  They contend that the lower court wrongly decided that the appellant was not actually exercising her religion.

Second is a brief from the Citizens United Foundation! Yes, we are promoting traditional values and restoring the government to big money citizen control in this case! Quite a few other noteworthy organizations signed on to this one, which focuses on the initial order to remove the signs being unlawful.

Third brief comes from Nine Retired General Officers.  The nine retired generals remind us that the purpose of the military is to defend American values – and what is more important than religious freedom?  Further, if we fail to protect religious freedom, then we’ll have significant recruitment issues within the military.  The brief strongly supports religious expression and brushes over Sterling’s choice not to follow procedures for accommodation.  They do write that “Service members do not turn off their religiosity until they are given permission to exercise or express it. ” (p. 12)  How sustainable this is?  I work at a public college; certainly my religious freedom is protected by law.  But if a holy day were coming and I would not be at work that day, I would still have to follow proper procedure to find a substitute teacher and notify my leadership that I wouldn’t be in class that day.  I’m not sure if I buy this argument that a person can demand their religious freedom without proper notice – regardless of the context.  (At this point I’m referring to her refusal to work on a Sunday afternoon – which again, the briefs defending her largely brush over.)   The nine generals preposterously claim that if the ruling from the lower court stands, then service members might worry ” about whether their religious expression, like cries out to divine providence, might result in punishment. ” (p. 12) Are intentionally printed sheets of paper and dogged refusal to show up for duty the same as a spur-of-the-moment prayer in combat?  What is a parallel example, and what is a false equivalency?

Fourth brief comes from 10 states, mainly from the south and west. They don’t explicitly support either party but do want to make it known that they don’t believe that RFRA was applied accurately.   This is similar to what the first brief says, but in that brief they are explicitly defending Sterling.  The states here don’t want to weigh in on the compelling government burden/least restrictive means elements, but at least want to make it known that she was exercising her religion.

Up fifth is a brief from the Alliance Defending Freedom and Chaplain Alliance for Religious Liberty, defending Sterling’s actions.  They argue that the request to take down the notes had no valid military purpose – the Marines contend otherwise.  (For more on the valid military purpose, compare Clement’s argument in appellant brief pp. 32-36 with the military’s argument in appellee brief pp. 64-69 )

The sixth brief is from the Aleph Institute & the Becket Fund for Religious Liberty & systematically dismantles everything the appellee is standing for.  I mean, how many more ways can I write that they’re defending Sterling?  Again creating an equivalency between inspirational/ potentially vaguely threatening quotations with family photos, again saying that it’s religious expression regardless of it she called it such – we should be familiar with all this by now.

The seventh comes from a rabbi & the Thomas More Society.   This one reinforces the belief that we are a nation built on Judeo-Christian values, and as such, these need to be protected at all stages.

Finally, the eighth brief comes from Americans United for the Separation of Church and State, Jewish Social Policy Action Network, and People for the American Way, all opposing Sterling’s case.   This brief argues that Sterling was not substantially burdened, there was a compelling government interest, and they did follow the least restrictive means.  She should have requested an accommodation if it were legitimately a religious expression.

Prior to this case I had not listened through oral arguments in a military court.  What stood out to me as I listened was just how much the judged focused on the procedural element – unsurprising, but still striking in contrast to how the Supreme Court cases I listen to talk more about substantive rights.  Clement seemed a bit out of his element, not directly answering the questions but rather reframing the issue to be more on the territory he’s used to.   The attorney on behalf the Marines claimed that religion was not invoked in the early confrontations, and that if it were a religious issue, proper procedure would have been to file a form requesting an accommodation.  The discussion goes in circles, questioning if a right as critical as free exercise of religion needs to have an accommodation, or if proper deference to authority is more important.

If the CAAF affirms the lower court’s rulings, I have no doubt that it will be quickly appealed to the Supreme Court.  But will the SCOTUS defer to the military on the whole, or choose to hear it?

More links to briefs and audio available at CAAFLOG.

 

Side note: who voted against RFRA?

I’m in the midst of working through a long post on a current court case that is far over my head – the act of writing posts on here helps me understand the cases well enough to discuss with others – and got a little sidetracked looking at the history of the Religious Freedom Restoration Act.  This is the 1993 federal act that came in response to the Supreme Court allegedly eroding our religious freedoms.  Three senators voted against the bill – Jesse Helms (R-NC), Robert Byrd (D-WV), and Harlan Mathews (D-TN).  Why would southern senators vote against a religious freedom bill in the early 90’s? I was six at the time of the vote, so I wasn’t particularly paying attention to politics at the time.

Jesse Helms:

The News & Observer from Raleigh, North Carolina has an article about why Jesse Helms opposed the bill. He suggested that this bill would open the floodgates for litigation demanding protection for hallucinogens and animal sacrifice.  This blogger, who has quite a few fascinating posts, describes Helms as a segregationist.  Oh, and a former Democrat – to clarify, when the Democrats started supporting civil rights, quite a few party members switched to being Republican.  Check out the Jesse Helms Center for an interesting perspective that attempts to defend him – though using his own words will ultimately condemn him.

So Jesse Helms was a Dixiecrat-turned-Republican who opposed Civil Rights and ultimately RFRA as well, apparently out of fear that non-Christian religions could use it to defend their own rights.

Robert Byrd: 

Formerly a recruiter for the KKK, Byrd subsequently distanced himself from the Klan.  The NAACP ratings for Byrd were pretty good by the turn of the millenium, though.  In 2000, his voting record was 93%; 2003-2004, 100%.

Harlan Mathews:

Apparently a career politician who mainly stayed behind the scenes, he was briefly a senator when Al Gore vacated the seat to become vice president.   All of the references I have found (in an entire 10 minutes of googling) refer to him serving “quietly” – though the vote against RFRA is hardly quiet.  I’ll have to come back to this!

Why couldn’t I find more quotes from the Democrats who opposed RFRA than from the Republican in a hasty search?

Evenwel v. Abbott & the Project on Fair Representation

Yesterday the Supreme Court handed down a unanimous decision affirming that “one person, one vote” means that districts based on total population is acceptable.  This came due to a challenge from a group called the Project on Fair Representation, the group that is also leading the Fisher v. University of Texas case.  (Part 1 kicked it back to a lower court; Part 2 to be decided this year.)

The Project on Fair Representation is the brain child of Edward Blum.  In 1992, he ran for Congress in Houston in a district that was 50% African-American.  Racially gerrymandered districts had been created as a way of ensuring equal representation at the state level; Blum objected to this because “neighbors that have common concerns were split apart simply because they were a certain color.”

Unfortunately, in a state that is only 12% black, you probably won’t have many black representatives unless you specifically shape a district that encompasses historically black areas such as the 3rd ward.

But Blum objected to the racial classifications there and has apparently spent considerable time and resources since seeking legal challenges to civil rights legislation.  The NBC news article linked above does a good job describing how special interest groups operate – what it takes to find people to be the test cases for some legal crusade.

Many noteworthy Supreme Court cases do not come about due to a single aggrieved person seeking protection from the courts.  These are pointed, targeted cases identified by special interest groups with deep pockets for legal fees – whether we’re talking Plyler v. Doe, Obergefell v. Hodges, or Citizens United – people seeking to make political change in the country actively look for cases they can pursue.

In this case, the issue is not inequality of district sizes relative to voting-eligible population.  If that were true, you’d attack the root causes: why are so many immigrants here without a path to citizenship?  Either enforce the immigration laws effectively or provide legal paths.  And why are felons still disenfranchised across so many states?  Texas is in the middle on this issue – stricter than many, requiring that probation be finished, but not as harsh as the ones who permanently lose voting rights. No, this case isn’t about fair representation in voting.

The most telling statement about Blum: “The goal in all of this is to restore the original colorblind principles to our nation’s civil rights laws.”

Are we talking about the color-blind principles that obscured black slavery under the term “other persons“?

Or the color-blind principles of our first naturalization laws, such as the Naturalization Act of 1790 which restricted naturalization to “free white persons”?

It’s easy to be color-blind when you’re part of the majority group that benefits from the long history of racist laws.

Read Evenwel v. Abbott here.

Their real purpose?

“To believe them, they have no motive but to establish ‘free institutions, civil and religious,’ yet in defiance of human freedom, just laws, and true religion, they proceed to consummate their real purpose, which is to people the country with slaves in order to cover it with cotton crops.” – George Featherstonhaugh

A British geologist/geographer traveled through North America in the early part of the 19th century and wrote a book describing the terrain and inhabitants of the land.  The quote comes from pg 124-125.  Here he’s describing what it was like to pass through Texas and delivering this scathing criticism of their politics.  And almost two centuries later, we still have the same issue in Texas history.  The relationship between Texan independence from Mexico has more to do with slavery than we’re really comfortable with admitting today.  Or than we’re willing to see.  Featherstonhaugh commented that the Texians focused on free civil and religious institutions – and the pernicious thing here is that perhaps that’s sincerely what they thought.  As you read through the Texas Declaration of Independence, that’s all you see.  But the blindness (often willful blindness) of dominant groups as they relate to minority groups seemingly knows no boundaries.  To the British observer, it seemed obvious that if you support human freedom, you must oppose slavery.  To the Texans – it was all tied up together.  A couple decades later, the declaration of secession from the Union made this explicit.

In all the non-slave-holding States, in violation of that good faith and comity which should exist between entirely distinct nations, the people have formed themselves into a great sectional party, now strong enough in numbers to control the affairs of each of those States, based upon the unnatural feeling of hostility to these Southern States and their beneficent and patriarchal system of African slavery, proclaiming the debasing doctrine of the equality of all men, irrespective of race or color–a doctrine at war with nature, in opposition to the experience of mankind, and in violation of the plainest revelations of the Divine Law. They demand the abolition of negro slavery throughout the confederacy, the recognition of political equality between the white and the negro races, and avow their determination to press on their crusade against us, so long as a negro slave remains in these States.

There’s Texas history for you.  Continue reading the declaration of secession and you’ll continue to see a blind denial of the full humanity of the “African race.”  As a 21st century Texan, I’m left wondering how to best represent Texas history in the future – how to balance the “great man” narrative of the Texians fighting for independence from an oppressive government with the real ways it was intertwined with slavery.  The British description of the day helps.  What I’d really like to find is a history text from the Mexican perspective.  Suggestions welcome!