SPC Vincent Ibarria, 21 years old, died in Afghanistan recently. SPC Ibarria was assigned to the 10th Mountain Division. He died in a vehicle rollover accident. SPC Ibarria joined the Army in 2017. He was described as a soldier who always volunteered. He believed firmly in the motto, “Choose the harder right over the easier wrong.”

He liked soccer and track and field. His buddies said he also liked boxing and golf. SPC Ibarria’s awards include the National Defense Service Medal, the Global War on Terrorism Service Medal, the Afghanistan Campaign Medal with Campaign Star, the Army Achievement Medal and the Army Service Ribbon. See San Antonio Express News report here.

Cary Clack, usually a careful and thoughtful writer, penned a piece recently regarding Confederate memorials. His piece betrays a superficial understanding of Confederate memorials. See his opinion piece here in the San Antonio Express News. Mr.  Clack argues that the Civil War was primarily caused by slavery, as though someone disagrees with him. Not even Pres. Trump has claimed the civil war was not about slavery.

The Confederate memorials were largely erected by women. According to Kelly McMichaels’ book, “Sacred Memories,” of the 65 Confederate memorials which used to stand in Texas, about 50 were erected by women. A couple of those were started by male veterans of the war, but they could not get it done. The women had to step in and raise the necessary funds. Why were women so successful at a project the men could not accomplish? Dr. McMichaels suggests women were the “rememberers.” They were the ones most likely to safeguard the small things of a lost loved one.

The money for these memorials was raised ten, twenty-five, and fifty cents at a time over years. Mr. Clack engages in stereotypes to suggest the memorials were erected in the early 1900’s when Jim Crow laws were becoming common. Mr. Clack essentially suggests all white folks were trying to diminish the black man. So, these statues must share the same motive. Mr. Clack does not mention that this was also a time when many Civil War veterans on both sides were dying. The union veterans erected their memorials about the same time. Both sides generally purchased their memorials and statues from the same sources.

Neither does Mr. Clack mention that in a time when women could not work, could not vote, and often could not own property, they were raising the equivalent of hundreds of thousands of dollars in today’s money.

These memorials sometimes depict generals, sometimes the common soldier. Yet, they always call on the viewer to recall those who fell. This veteran cannot forget those who fell in any war. Mr. Clack looks at the statues with no notice of the message at the foot of the statue.

During the Civil War, armies did not collect and bury the dead. There were no funerals back home. There were no honor guarded processions. There were no gifts of a flag to the grieving family. After the war, hundreds of families, North and South, wandered these battle fields looking for lost loved ones. One historian estimated there were 35,000 dead, lying unburied, unmarked between Baton Rouge and Vicksburg. That was just one small corner of the war.

Mr. Clack conflates respect for those who fell with respect for secession. He suggests the cause was unjust because contemporary documents pointed to slavery. I deployed to Iraq in 2005. I did not consult the Congressional Resolution that authorized the war. It is very unlikely any Confederate soldier reviewed Alexander Stephens’ “Cornerstone Speech” before enlisting. Soldiers don’t do that. They just serve.

Mr. Clack never addresses the words which actually appear on every memorial: “Lest we forget.”

Mr. Clack ends his piece by asking where is the statue that honors his enslaved ancestor? Indeed. Where are the memorials to our country’s enslaved ancestors? Why remove Confederate memorials, when Mr. Clack could just as easily raise the funds for a memorial to his enslaved ancestor? Removal is relatively easy. Erecting is much the harder task. Those Southern women who could not vote and could not work, however, showed it can be done.

What happens when a large employer first learns it is being sued for discrimination? How does that first phone call with counsel go? In most lawsuits, we never know. But, we get some clues in the case of Brian Collister v. KXAN. Mr. Collister, an investigative reporter who has worked in various Texas cities, was fired in early 2018 by the Austin news station, KXAN. Before he was fired, he filed a complaint with the EEOC. After filing with the EEOC, Mr. Collister was called to his supervisor’s office. While waiting outside the office, he heard loud voices, including his manager, talking with attorney Bill Davis in Dallas on speaker phone. The sound, said Mr. Collister, was as loud as a Led Zeppelin concert. He clearly heard Mr. Davis instructing KXAN management how to fire Mr. Collister in a way that would improve their case.

At the point of this conversation, Mr. Collister had already filed a complaint of discrimination with the EEOC. He apparently claimed discrimination based on his disability, ADHD. He had also by the time of this conversation already filed a claim for arbitration with AAA.

Mr. Collister says he heard Mr. Davis clearly say KXAN needs to create a narrative of poor performance:

  • “What you’re looking for are performance issues with no connection to ADHD, this is our biggest opportunity.”
  • “Yeah he has the right to bring a claim, but we have to build better proof.”

The lawyer’s advice suggests the employer had some interest in creating evidence. Or, something. The testimony also suggests that  the employer was starting to scrutinize Mr. Collister’s performance – after h submitted a complaint to the EEOC.

In any event, Mr. Collister lost his claim at arbitration. He then filed suit in U.S. district court representing himself. Mr. Collsiter sought to disqualify Mr. Davis from representing KXAN in that lawsuit. The federal court dismissed his lawsuit, citing a lack of jurisdiction. That makes sense. He had already received a ruling in arbitration. See Cause No. 19-CV-00350. Regarding the motion to disqualify, if Mr. Davis was a witness, he should indeed be disqualified. A lawyer cannot represent a party to a lawsuit if that lawyer is a witness. Management did indeed take some disciplinary action against Mr. Collister after the conversation with Mr. Davis. But, the court did not address Mr. Collister’s motion.

Collister has now re-filed his lawsuit in Travis County district court, where he has again sought to disqualify Mr. Davis. See Collister v. KXAN, Cause No. D-1-GN-19-001138. He claims to have an audio recording of Mr. Davis’ conversation that day outside his manager’s office. And, Mr. Davis continuers to represent KXAN to this day.

In the Iraq war, like all wars, we lost a few buddies. Each death carries with it these tremendous ripple effects. For every death, 5, 6 soldiers or more say, “If I had been there SGT Saenz would still be with us. I should have gone out on that patrol.” The guilt, as irrational as it might be, can be devastating. Multiply those ripple effects some 20 or 30 times and you get the U.S. Civil war. The casualty rate in that war was 20-50% in combat units, compared to .02% in the Iraq war for all units. During the Civil War, armies did not collect and bury the dead. There were no funerals back home. There were no honor guarded processions. There were no gifts of a flag to the grieving family. After the war, hundreds of families, North and South, wandered these battle fields looking for lost loved ones. One historian estimated there were 35,000 dead, lying unburied, unmarked between Baton Rouge and Vicksburg. That was just one small corner of the war.

So, after the war, communities across America built memorials to the confederate dead. Northern communities did the same. Those memorials applied a much needed salve to deep, emotional wounds. But, how did a South with its economy in shambles raise the money for memorials?

In her book (“Sacred Memories”), Kelly McMichaels describes the process employed by male veterans and the female United Daughters of the Confederacy in erecting hundreds of veteran memorials across America. Overwhelmingly, most were built by the women. Dr. McMichaels attributes that to the nature or role of women in the 1890-1930 time frame when most of these memorials were built. Women were often the “rememberers.” They tended the graves. They laid aside the old baby slippers and the old worn hat from lost loved ones.

One of the first memorials was the Robert E. Lee statue in New Orleans. Fund-raising started the year of Mr. Lee’s death in 1870. The fund-raising committee included bankers and leading merchants of the city. But, these were banks and merchants who had no money. The economy was reeling. The committee came close to disbanding in 1876. But, they re-organized and added many more merchants and former Gen. P.G.T. Beauregard. By 1884, the committee raised the $36,000 necessary for a very large, beautiful Lee statue.

But, to reach that huge figure, they held hundreds of bake sales and public entertainments. The public entertainments included militias performing close order drill, a play titled “Cinderella,” for the children; lectures on Robert E. Lee and his life. Admission was generally .25 cents for children and .50 cents for adults. In 1877, 98 persons pledged $100 each which brought them close to the stated goal of $30,000. Contributors included Sen. Charles Furlong, a Republican Senator from Mississippi and union veteran.

My ancestor, George P. Crane, supported one such public entertainment as part of his social club. He recorded in his diary for May 16, 1878, that the old Opera House had never seen such a “jam.” Thousands, he said, had to be turned away. From a building that could seat 1,600 souls. Even allowing for some exaggeration, the white folks of New Orleans supported their Confederate memorials.

But, the Lee monument in New Orleans was unique. Most memorials were erected by women, usually the United Daughters of the Confederacy. In a time when women could not work, could not vote, often could not own property, they got the job done. Among the 65 Confederate monuments in Texas, two were started by men, but finished by the women. Of the 65 Confederate memorials, twelve were erected by the male veterans. The remaining 50 or so were erected by the UDC. The San Antonio chapter of the UDC relied on hundreds of bake sales and quilting bees to raise the $3,000 necessary for their memorial in 1899. The San Antonio memorial depicted the common soldier. The Grand Army of the Republic, the veterans organization for union veterans, contributed to the San Antonio monument and participated in the unveiling ceremony. The Grand Army of the Republic followed right behind the United Confederate Veterans in the lengthy procession.

Both Union and Confederate veterans generally supported each other’s memorials and attended each other’s reunions. The replacement cost of the San Antonio memorial has been valued at $450,000 in today’s dollars.

Some of the monuments, typically those found in the larger cities, depicted Confederate generals, but most Texas memorials depicted the common solder. All included some words on the pedestal asking the community to remember those who fell. “Lest We forget,” a then recent poem by Rudyard Kipling, was a familiar refrain carved into the base. These memorials filled a void. These were the funerals those families never had.

Dr. McMichael states in her book that the statues were also intended to support white supremacy. But, her citation does not support her assertion. Dr. McMichael points to John J. Winberry’s article, “Lest We Forget: The Confederate Monument and the Southern Townscape.”  Mr. Winberry offered four reasons for the erection of Confederate monuments across the South. None of his reasons include sending a message of white supremacy.

Even when the men erected the monument, it was often the women who did the actual work. To some folks today, those memorials represent vestiges of racism. But, in reality, they represent hundreds of bake sales, bazaars (similar to yard sales), public entertainments and thousands of ten, twenty-five and fifty cent contributions. Seeing those beautiful memorials spat on, spray-painted and pulled down unceremoniously deeply saddens this Iraq war veteran.

 

 

The U.S. Supreme Court has held that title VII of the Civil Rights Act of 1964 does include discrimination against gay persons. I have discussed this issue a few times, that the decision in Oncale v. SundownerOffshore Services, Inc., 523 US 75, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998), was a very parsed decision. See my prior posts here and here.

Now, the Supreme Court has agreed. Looking at the plain meaning of Title VII, which prohibits discrimination based on sex, Justice Gorsuch finds the statute clearly prohibits homosexual based discrimination. The language of Title VII says it prohibits discrimination based on sex. In its decision, the court essentially says a statute says what it says. The decision admits that back in 1964, when Title VII was enacted, no one involved expected it would include discrimination against gay persons, including the members go Congress who passed the statute. But, as the court noted, if a statute is plain, then the job of the court is at an end. Sex, said the majority decision, plays a “necessary and undisguisable” role on a decision based on a person’s homosexuality. The court added that if the stature is clear, then the wishes expressed by individual legislators are of no consequence.

See the decision on Bostock v. Clayton County, No. 17-1618 (2020)  here.

I previously wrote about a butt-shaking lawyer here. Attorney Dennis Duffy shook his “booty” to the opposing attorney at a mediation. He mocked the attorney’s ponytail. Dennis Duffy was a  big firm lawyer at the time. The opposing attorney, Alfonso Kennard filed a motion asking the judge to disqualify Mr. Duffy from representing the Defendant. He sought sanctions. The Defendant, Chevron Oil, wisely changed lawyers soon after the motion was filed. But, the motion remained.

Judge Lee Rosenthal in Houston denied the motion for sanctions. The judge was clearly unhappy with Mr. Duffy’s antics. She accepts that Mr. Duffy was guilty of the conduct of which he was accused. She accepted sealed statements from Mr. Kennard and the mediator. She said Mr. Kennard’s conduct was also imperfect. She noted that the story has gone viral. Mr. Duffy’s reputation and ability to attract new business have suffered, which it should, noted he judge. The judge also noted that Chevron replaced Mr. Duffy with new lawyers and a new law firm.

And, indeed, Mr. Duffy left his former law firm and is now working for a different law firm. We should all know better than to engage in such unprofessional behavior. Certainly, Mr. Duffy, the self-professed Rambo lawyer, should know better.

Be Safe.

A lot of folks are upset about the killing of George Floyd. With good reason. How far would you go to protest his death? Two lawyers in New York City decided they should fire bomb police cruisers to show their feelings. An associate lawyer at Pryor Cashman, a large firm in New York, named Colinford Mattis, and a second lawyer named Urooj Rahman, decided to toss a Molotov cocktail trough the broken window of a police car during protests. Mr. Mattis was on furlough from his firm.

The two terrorists were seen driving away. Officers pursued and apprehended the pair. They had more materials in their van to make more Molotov cocktails. Mr. Mattis, African-American, graduated from NYU law school and attended Princeton University undergraduate. Ms. Rahman attended Fordham University law school. Her building superintendent described her as an “angel” who recently lost her job.  She formerly worked at Bronx Legal Services. See ABA Bar Journal report here.

There are other, less violent ways to protest the very unjust killing of Mr. Floyd.

Be Safe. The pandemic is not over.

I previously wrote about the federal court’s interpretation of the Texas Election Code here. In that decision, the Western District of Texas found that fear of contracting the coronavirus does indeed constitute a disability. Now, the Texas Supreme Court has weighed in. TheTexas Supreme Court reached the opposite conclusion, that fear of the virus does not amount to a disability. The Texas Election Code provides that “disability” is a physical condition that prevents a voter from appearing at a polling place without a likelihood of injuring the voter’s health. It does not require any consideration of how the impairment affects a major life activity. It is a more broad definition than that found in the ADA.

And, unlike the ADA, there is no practical way for some person or entity to question a voter’s claim of disability. There is no employer or EEOC to argue that the claimed disability is not that serious. On appeal, the Harris County Clerk argued that lack of immunity to the virus is a physical condition protected by the statute. The Western District opinion accepted that argument. But, the Supreme Court said no. “Disabled,” said the court, means incapacitated. In no way, can lack of immunity be considered to be incapacitated. As i mentioned in my prior post, the caselaw supports the Supreme Court’s conclusion.

The court found that lack of immunity does not amount to a “physical condition” that would harm a person at a polling site. Two justices concurred in the decision. Justices Bland and Boyd found that lack of immunity is indeed a physical condition for purposes of Tex.Elec.C. Sec. 82.002, but that a showing of “likelihood” of harm has not been made. Those two justices also suggested with a wink, that if a voter falsely claims a disability, no one would know. Said the concurrence:

“We agree, of course, that a voter can take into consideration aspects of his health and his health history that are physical conditions in deciding whether, under the circumstances, to apply to vote by mail because of disability.”

See the Texas Supreme Court decision in the matter of In Re Texas, No. 20-0394 (Tex. 5/27/2020) here.

Even the Supreme Court shows more humanity than the Texas Attorney General is prosecuting this lawsuit.

Several years ago, in a federal courthouse here in Texas, a lawyer friend tried a case of white discrimination. A white man was fired under suspicious circumstances. His boss had used the term “gringo,” often. If the man’s race had been Hispanic and the term used was “greaser,” then most persons in Texas would agree that the very offensive term showed discriminatory bias. Yet, during the trial, the Hispanic judge pushed back, saying that when he was a young boy playing basketball, they often used the term “gringo.” He was saying that if he and his friends used a discriminatory term, then it was okay.

I recall a  federal judge in the 1970’s. Published reports indicated he used the n—- word on occasion. The judge’s supporters said, well, he grew up using that term. He was from a different generation.

Today, we have a new term, “Karen” to describe white women who feel entitled. Elliot Williams, a former DOJ lawyer, discusses the recent incident in New York’s Central Park. He wrote a piece finding Amy Cooper’s actions to amount to racism. She brought up race early in her encounter with Christian Cooper in Central Park, notes Mr. Williams. In his view, that indicates her racism.What Lawyer Williams wholly omits is that also early in their interaction, Christian Cooper, African-American, told her to release her “inner Karen.” See the opinion piece here. Mr. Cooper was taunting Ms. Cooper. He told the woman he would start doing “something” and she would not like it. Mr. Cooper apparently meant he would start videotaping her. But, she had no way to know what his intentions were. Christian Cooper engaged in his own provocation. It seems neither party emerges from this altercation with clean hands.

“Karen” refers to white women who feel privileged. See Wikipedia post here. Who came first with their respective racial stereotype, Amy Cooper or Christian Cooper? Does it even matter?

Ms. Cooper is now referred to as the “Central Park Karen” on Twitter and on the internet. Even CBS news used that phrase in a headline. See that news report here. But, if the situation was reversed, if someone tried to refer to her as the “Central Park Greaser,” that would never fly. Racial stereotypes applied to white persons remain racial stereotypes.

I forget who, but some wise person once remarked that we all bear some level of racism inside ourselves. We all have some sense of “other.” The smart ones, he noted, understand that and adjust their behavior accordingly. Racism is exceedingly difficult to prove in court. Let us all start from a position that stressful situations are what? Stressful. A white woman alone in the bushes is vulnerable, as is a black man anywhere in today’s time. A little more understanding and less finger-pointing would help us all.

 

So, it appears after all that the police force of a private entity is not an arm of the state. I mis-read the Texas Supreme Court’s 2017 decision. I wrote about that 2017 decision here. The Texas Supreme Court has now resolved the issue in University of the Incarnate Word v. Redus, No. 18-0351 (Tex. 5/22/20202), and found that UIW’s small police force is not entitled to sovereign immunity. The Super Court found there were some factors which suggest the small police force compared to other police force. But, in the end, the court noted that its small police force is governed by the UIW Board of Trustees. It is not accountable to the taxpayers or to any state official.

This matter has been on appeal since 2016. See the most recent decision here. It was a silly argument. Yet, it took years to resolve. The 2017 decision suggested that since charter schools have been found to be an arm of the state,  perhaps the UIW police force should also be considered an arm of the state. That such a flimsy argument was considered reflects on the very conservative nature of the Texas Supreme Court.