Ed Koch Commentary: Interesting Court Decisions
A really interesting decision of a federal appeals court in Atlanta, Ga., was reported in the Times of December 28, 2011. An employee at a Tyson chicken plant sued the company, alleging racial discrimination and seeking damages for the act of a plant manager who “called adult black men working there ‘boy’” The Appeals Court, in a 2-to-1 decision, initially overturned the trial court’s finding in favor of the plaintiff, stating that “the uses [of boy] were conversational and non-racial in context.”
But there was such an uproar against the appeals court’s reversal amongst lawyers, civil rights leaders, and other federal judges that a year later the appeals court sua sponte (on its own) changed its decision and restored the $365,000 judgment in favor of the plaintiff, but rejected the $1 million punitive damage award.
In its original decision, the appeals court said: “The use of ‘boy’ when modified by a racial classification like ‘black’ or ‘white’ is evidence of discriminatory intent. But the use of ‘boy’ alone is not evidence of discrimination.”
However, the U.S. Supreme Court disagreed, sending the case back to the appeals court, with the following admonition, according to the Times, “‘The speaker’s meaning may depend on various factors including context, inflection, tone of voice, local custom and historical usage,’ the justices said in an unsigned opinion.”
The Times reported that “that admonition was rejected by the 11th Circuit panel last year. Then it was embraced this month though with little enthusiasm,” a reference to the reversal by the appeals court of its earlier decision. Ultimately, justice was done in this case.
In Illinois, as in New York City, the Catholic Charities organization is an arm of the Catholic Church. Catholic Charities renders social services, e.g., adoption, foster care, etc., under contract and for fees comparable to those paid non-religious organizations.
Illinois, according to the Times of Dec. 12, 2011, specified that all vendors providing services to the state “must consider same-sex couples as potential foster care and adoptive parents if they want to receive state money.”
The Roman Catholic Bishops in Illinois “have shuttered most of the Catholic Charities affiliates in the state rather than comply with a new requirement.”
When I was mayor and before the City Council at my request in 1986 enacted a law that prohibited the private sector from discriminating against gays, lesbians, bisexuals and transgendered with respect to employment, housing and education, I directed that all private sector organizations doing business with the city end all discrimination in employment based on sexual orientation. John Cardinal O’Connor and the Salvation Army responded that if the city bound them to follow these rules, they would cease entering into contracts with the city to provide social services to children, the homeless and the poor. I replied that the regulations covered every vendor, religious and non-religious alike. Both the Roman Catholic Church and the Salvation Army sued the city on the basis of a state law that exempted them from state mandates that violate their religious teachings. They won, and we were never faced with their ending their services.
If the city had won the case, would you, the reader of this commentary, have imposed the non-discrimination policy or provided a religious exemption?
According to The New York Times of Dec. 24, 2011, South Carolina enacted legislation that would “require voters to present photo identification.” The Times reported that the Justice Department blocked that law saying it would “disproportionately suppress turnout among eligible minority voters.”
The Justice Department cited South Carolina’s own submitted data that “there were 81,938 minority citizens who are already registered to vote and who lack such identification, and that these voters are nearly 20 percent more likely to be ‘disenfranchised’ by the change than white voters.”
Whenever a state or municipality seeks to impose preconditions on qualifying for a benefit, e.g., food stamps or housing vouchers, it generally faces opposition based on the belief that it is racist to impose any such preconditions. I have always believed that there is nothing wrong, and certainly it is not racist to require fingerprinting to qualify for some government benefits, particularly where significant fraud is present in the program.
However, I agree with the Justice Department that South Carolina’s proposed picture ID requirement as a precondition to voting is not necessary. I just don’t’ believe that fraud at the polls is a significant problem. The significant problem is that in the U.S. eligible voters, particularly in primaries, simply don’t go to the polls. To impede and reduce the vote further based on the desire to reduce or eliminate a fraud that really doesn’t exist, makes no sense.
Mayor Koch was a member of Congress from New York from 1969 through 1977.
Beating the Third Term Blues: Others Measure the Carpet
By HENRY STERN
The imminent approach of the mid-point of Mayor Bloomberg’s third (and presumably last) term makes this an appropriate time to review his tenure and to scan the prospects of his successor who will be sworn in on Jan. 1 2014 - unless something unexpectedly happens before that day.
Tradition and experience have cast a cloud over mayoral third terms. Public officials inevitably accumulate enemies over their tenure. There is no necessary correlation between competence and popularity. The better the mayor, the more s/he will attempt to accomplish, and the greater the chance of failure. The more often a mayor rocks the boat, the more opportunities for the passengers and crew to jump ship.
There is also historic inevitability in the rise and fall of politicians and dynasties. Parties and movements lose popularity over time as the public tires of them.
Creating a Vacancy
The mayoralty of New York City is determined on a quadrennial cycle. The mayoral election follows by one year the presidential election and precedes by one year the gubernatorial contest.
The last time a federal and a non-judicial statewide election coincided was 1950. One incumbent, Democratic Sen. Robert F. Wagner Sr., author of The National Labor Relations Act and The Social Security Act (father of Mayor Wagner), had been seriously ill for several years, rarely participating in Senate business. He was first elected in 1926 and his fourth term was set to expire in January 1951. Wagner was not expected to seek re-election. What he did, guided by other Democrats, was to resign in late June 1949, when the vacancy would be filled by a special election to be held on Election Day.
To hold a state-wide election on the same day as the New York City mayoral election would bring out a larger number of city voters, predominantly Democrats, thereby helping the Democrats win other races. The strategy worked, with former Democratic Governor Herbert Lehman defeating John Foster Dulles, the Republican who Governor Thomas Dewey had appointed to fill out the rest of Wagner’s term, by a small plurality in the November general election.
Ten Years On
Mayor Bloomberg has continued to function in a competent and professional manner. He is not beloved by the public, partly because of envy of his great personal wealth and influence, partly because of a handful of infelicitous remarks (usually quickly corrected), and to some extent because ordinary people do not believe the mayor has high regard for them and their concerns about municipal government. The Mayor has a national role to play as an honest, moderate reformer, and is well regarded by elites. This approval wanes, however, as the pollster climbs down the ladder.
The mayor’s achievements - in public health, in environmental protection, in governmental integrity, in expanding parks and recreation programs while diminishing staff - deserve recognition. Commissioner Kelly is justly well regarded, and the absence of successful terrorist attacks cannot be attributed to a change of heart by al-Qaeda. The murder rate has declined sharply, although some offenses have begun to tilt upwards.
The mayor’s wars on cigarette smoking and unlicensed guns deserve particular praise. He has turned his causes into national crusades, which have had varying degrees of success. He is not afraid to think of the larger picture, and the latest figures on extended life expectancy in New York City support his approach.
I am not persuaded by some of the proposed remedies, such as congestion pricing, which particularly disadvantage the middle class while having limited effect on the rich, to whom the fees would be a trifle. And the jury is still out on the rejected mid-Manhattan stadium, although the six dead blocks it would have created seem increasingly a high price to have paid for adding thousands of private vehicles to the midtown traffic mess. The interests of the Dolan and Johnson families should have been distinguished by the Council from the city planning and traffic questions involved.
The problem with construction issues like the stadium is that you can’t really be sure of the merits until you build the facility, and by then you cannot undo what has been done. Mario Cuomo’s rejection of the Shoreham nuclear plant on Long Island is a conspicuous exception to that rule.
As usual in politics, the occasional flaws in the record attract the most attention - the $700 million CityTime corruption scandal, the appointment of Cathie Black as schools chancellor, and the handling of the snowstorm the day after Christmas last year. But these must be judged as aberrational, compared with thousands of mayoral appointments, promotions and contracting decisions made pursuant to law and on the merits. And when compared with the performance of the City Comptroller, the Mayor is a beacon of light and learning.
We often appreciate public officials more after they have left office. We believe that Mayor Bloomberg’s reputation will grow over the years, as memories of his inappropriate term extension fade.
Anyway, does anyone believe that New York City would have been better off with Anthony Weiner as Mayor? Sometimes Providence protects us from acts of folly, but we cannot always rely on chance to protect us from humiliation and chaos.
The last observation we would make is that, at this point, the lineup of candidates seeking to succeed to the mayoralty is undistinguished. And we haven’t heard the bad parts yet about what they have done or failed to do. Are these the best out of eight million?