(Reuters) - A federal appellate judge made a rare move earlier this month when she called out – within the pages of a formal ruling – a fellow judge's "lecture on when, where, and how to identify racial injustice."
The pointed language appeared in a little-noticed footnote to a Nov. 18 decision from the 9th U.S. Circuit Court of Appeals, which rejected a challenge by the state of California and environmental groups to the federal government's approval of an Amazon cargo facility at San Bernardino International Airport.
Judge Johnnie Rawlinson, a Black woman on the 9th Circuit, disagreed with her colleagues Judge Eugene Siler – a 6th Circuit judge sitting on the case by designation – and Judge Patrick Bumatay, saying in her dissent that the Federal Aviation Administration's review and approval process for the facility “reeked of environmental racism."
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In response to Rawlinson's dissent, Bumatay wrote a concurring opinion pointing out that none of the parties raised the issue of discrimination. Doing so was “unfair to the employees of the FAA,” who had no opportunity to defend themselves, he said.
That apparently irked Rawlinson, and prompted the terse footnote.
"My concurring colleague chastises me for 'mark[ing] ...
government employees' ... 'with advancing environmental racism,'" Rawlinson wrote in reference to Bumatay. “For the record, I grew up in the segregated South and looked racism in the face, up close and personal, long before my concurring colleague was born.”
She added that she would take a “hard pass” on Bumatay's "lecture" on identifying racial injustice.
Rawlinson then addressed Siler.
“As for those involved in the preparation of this report who co-sign my colleague’s accusation, I leave you with the wise words of my dearly departed Mama Louise: ‘Only hit dogs holler.’”
The aphorism comes from a 19th century proverb, and means that a person who is offended will protest, or that hollering is evidence of guilt.
Rawlinson’s admonishment was easy to miss. Virtually all of the scant news coverage thus far has focused on the ruling itself. And, the assertion came in a footnote on the 63rd and final page of the opinion.
But those who spotted Rawlinson's footnote might have noted that, in context, it also served as a defense against an all-too-common process of whitewashing – ignoring the issue of racial bias. This dynamic happens again and again in federal court cases, even when that age-old American problem is apparently front-and-center. Rawlinson's decision to include the note sets a prudent counter-example to the norm: It’s sensible to identify and acknowledge bias or any other problem, or at least to raise questions, if one intends on preventing the problem.
Siler said through a spokesperson for the 9th Circuit that he never comments on decisions he participated in and doesn't criticize colleagues outside the bounds of those opinions.
“My only quote is from Lincoln’s second inaugural address: ‘I have malice toward none but charity for all,'" Siler said in the statement.
Bumatay and Rawlinson "respectfully" declined to comment, the spokesperson said.
The plaintiffs in the case alleged that the FAA didn’t conduct an adequate environmental impact study before approving Amazon’s now-operational cargo facility.
Rawlinson agreed in her dissent, saying the FAA didn't adequately explain why it limited the geographic area examined for potential impacts, ignored a finding by California that the project would further harm an over-polluted region and undercounted daily truck trips associated with the facility.
San Bernardino County is one of the most polluted corridors in the country, according to the court's opinion. Asthma rates are among the highest in the state. And the population around the project site is 73% Latino and 13% African-American.
The area has even been designated a “disadvantaged community” under state laws meant to improve environmental justice.
The concept underlying California's law is environmental racism – the notion that minority communities bear a greater proportion of the effects of past and current industrial pollution.
The idea was recognized by legal academics more than 25 years ago, Rawlinson said, citing a 1993 law review article by Pamela Duncan. The article points to other research showing that the legal field recognized the concept belatedly. Sociologists, urban planners and activists had been writing about it since at least the late 1960s.
Multiple studies have since verified the theory that neighborhoods around the country with high non-white populations do indeed coincide with high emissions, Rawlinson wrote, citing a 2018 study by Environmental Protection Agency scientists.
Given what we know about environmental racism, the basic allegations of the lawsuit and U.S. history, it seems almost inappropriate not to, at the very least, raise questions about discrimination.
Still, Bumatay wrote in his concurring opinion that he and Siler decided against addressing Rawlinson’s points “not because they are unimportant – but because no party raised them.” It was “inappropriate for the dissent to reach such a highly charged conclusion,” he added.
It’s certainly within a judge’s discretion to decide which dissenting arguments warrant a response. On the other hand, judges also have discretion to raise issues they perceive on their own accord, even if the parties didn’t.
In my view, it was the majority opinion that included inappropriate assertions: that a judge shouldn’t exercise her authority to raise what she believes is a relevant issue, simply because racism is “highly charged.”
Bumatay’s argument is also undermined by his apparent misunderstanding of Rawlinson’s main point. Many Americans understand the concept Rawlinson evidently referred to, which is laid out in the Duncan article: Racist acts may be committed by individuals or by institutions. Rawlinson raised a question about systemic or institutional racism – not individual FAA employees.
Lastly, Rawlinson’s “conclusion” here was really just a question. Saying the case “reeked of” racism is more reasonably interpreted as an educated hunch or suspicion.
On balance, it was the majority opinion that was actually inappropriate. Rawlinson's decision to respond was unusual, but seems warranted under the circumstances.
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