Category Archives: Discrimination

The Civil Rights Act at Fifty: Past, Present, Future

Source: David Freeman Engstrom, Stanford Public Law Working Paper No. 2449945, 2014

From the abstract:
This brief essay introduces the Stanford Law Review issue accompanying the symposium, “The Civil Rights Act at Fifty,” convened at Stanford Law School on January 24-25, 2014. It provides a digestible overview of each of the five written contributions to the symposium – including Sam Bagenstos and Richard Epstein on Title II, Olatunde Johnson on Title VI, and Mary Anne Case and Richard Ford on Title VII – and then offers some thoughts connecting them.

Free at Last: Rejecting Equal Sovereignty and Restoring the Constitutional Right to Vote: Shelby County v. Holder

Source: James Uriah Blacksher, Lani Guinier, Harvard Public Law Working Paper No. 14-21, February 23, 2014

From the abstract:
The “equal sovereignty” principle the Supreme Court majority relied on in Shelby County v. Holder to strike down the coverage formula in Section 4 of the Voting Rights Act is rooted in the jurisprudence of slavery. In the infamous 1857 case of Dred Scott v. Sandford, Chief Justice Roger Taney held that black Americans, slave or free, were not members of the sovereign people and could never be “citizens” within the meaning of the Constitution. Otherwise, he said, blacks would be entitled to all the fundamental rights of citizenship guaranteed by the Privileges and Immunities Clause of Article IV, Section 2, including the right to vote, a result that would violate the equal sovereignty of the slave states. Black people, Chief Justice Taney wrote, could only enjoy those rights the sovereign people of each state chose to give them….

….African Americans remained disfranchised in the South until, through generations of bloody sacrifice, they finally got Congress to use its power to enforce the anti-discrimination provision of the Fifteenth Amendment and pass the Voting Rights Act of 1965. At first the Supreme Court upheld Congress’ authority to enact and to re-enact the Voting Rights Act, but eventually it began to push back. Now, in Shelby County, a five-four majority has struck down the coverage formula in the 2006 amendments to the Voting Rights Act, relieving the Southern states from having to obtain federal preclearance before implementing changes in their voting practices. But, by invoking the unwritten doctrine of “equal sovereignty,” Chief Justice John Roberts’ opinion for the Court forces us to revisit the racially discriminatory origins of that doctrine and its role in undermining the Privileges or Immunities Clause.

The authors argue that the appropriate response by Congress to Shelby County would be reasserting its explicit constitutional authority to interpret the Privileges or Immunities Clause. Adoption of the Fifteenth, Nineteenth, Twenty-Fourth, and Twenty-Sixth Amendments and the Court’s repeated acknowledgment of a constitutional right to vote have effectively overruled the Slaughter-House Cases and Minor v. Happersett. The American people of the twenty-first century should demand that Congress enact statutes expressly proclaiming what no one today can deny, that the right to vote is the paramount privilege or immunity of citizenship in the United States. Congress should exercise its Fourteenth Amendment power to enforce the Privileges or Immunities Clause and begin establishing uniform national standards for the administration of all elections, federal, state, and local, that guarantee full access to the franchise for all American citizens.

The 2006 Voting Rights Act had special constitutional stature; it was the first voting rights law in American history passed with the participation of African-American members of Congress from every one of the former Confederate states. Its re-enactment based on Congressional authority to enforce the right to vote under the Privileges or Immunities Clause, rather than on the anti-discrimination provisions of the Equal Protection Clause and the Fifteenth Amendment, would render irrelevant the Supreme Court’s call for comparing the states’ current records of voting discrimination. It would emphatically repudiate the racially tainted equal sovereignty principle relied on in Shelby County and finally renounce the legacy of Dred Scott by proclaiming African-American citizens’ full membership in the sovereign people of the United States.

The Persistent Challenge of Voting Discrimination: A Study of Recent Voting Rights Violations by State

Source: Leadership Conference on Civil and Human Rights, June 2014

From the press release:
The Leadership Conference on Civil and Human Rights today released a new report, The Persistent Challenge of Voting Discrimination, which details nearly 150 recent voting violations. The report was released in advance of the one-year anniversary of the Supreme Court’s decision in Shelby County v. Holder, and demonstrates the urgent need to find solutions to protect the right to vote for all Americans, and for Congress to pass the Voting Rights Amendment Act before November’s elections. …

…The new report details 148 separate instances of racial discrimination in voting since 2000, noting that each case, by its nature, impacts hundreds, thousands, or even tens of thousands of voters. It also includes a separate section detailing potentially discriminatory voting changes that have been enacted just since the Supreme Court’s decision weakened the Voting Rights Act (VRA) in June 2013. The discriminatory activities in the report are drawn from multiple public sources, including the U.S. Department of Justice (DOJ) website and published judicial opinions.

Some key findings of the new report, The Persistent Challenge of Voting Discrimination, include:
· Racial discrimination in voting remains a significant problem in our democracy. As shown from the 148 separate instances of voting violations since 2000, nearly 50 years after the enact­ment of the VRA, racial discrimination in voting remains a persistent problem around the country. Additionally, the actual extent of racial discrimination in voting is likely much more extensive than this list may suggest, given that it is only documented instances.

· The problem of racial discrimination in voting is not limited to one region of the country. The examples outlined in this report document instances of voting discrimination from 30 states, representing every region of the coun­try. Racial discrimination in voting remains concentrated in states that were previously covered under the VRA’s preclearance requirement, but is also present in other states and jurisdictions that have not had the same history of discrimination.

· Voting discrimination occurs most often in local elections. The vast major­ity of instances of racial discrimination since 2000 have occurred at the local level. The changes often concern the election of city, county or other local elected officials, where many of the contests are nonpartisan.

· Discrimination in voting manifests itself in many ways, and new methods continue to emerge. Voting discrimina­tion occurs today in both overt and subtle forms, from cancelling a general election to the closure of polling places in heavily minority areas….

Does Officer Race Matter?

Source: Sarath Sanga, American Law and Economics Review, Advance Access, First published online: May 13, 2014
(subscription required)

From the abstract:
Do racial profiling tactics differ by officer race? The literature has relied on a test based on hit rates in vehicle searches to answer this question. This paper instead argues for a test based on patrol officers’ stop rates since it is less manipulable by officers, requires fewer assumptions, and includes all officer–citizen interactions. I compare these two methods of testing for discrimination using detailed data from Oakland, California. The hit rate test concludes that officer race does not matter on average or within neighborhoods. In contrast, the stop rate test concludes that officer race does matter within neighborhoods, and further suggests that the same officers discriminate in favor of their own race in some neighborhoods, yet against their own race in other neighborhoods. The contradictory nature of this discrimination suggests that it is more likely driven by information than animus.

True South: Voters of Color in the Black Belt 50 Years After Freedom Summer

Source: Ben Jealous, Center for American Progress, June 16, 2014

From the summary:
The 1964 Mississippi Freedom Summer was a pivotal moment for democracy in America. Yet 50 years later, despite many gains at the local level, the dream of Freedom Summer remains largely unrealized in the stretch of heavily black southern states known as the Black Belt. There are a number of significant and troubling signs:

• Large numbers of black voters and voters of color remain unregistered.
• New waves of voter suppression laws are being passed, and they have taken a form not seen since the rise of Jim Crow laws.
• The general wisdom in many Black Belt states remains that when it comes to winning statewide office, candidates who support the views and concerns of people of color simply do not have a chance.

Nevertheless, the Black Belt region is in a state of change. Waves of black remigration and Latino and Asian immigration are infusing Black Belt states with a more diverse, more tolerant, and more progressive population. At the same time, extreme right-wing attacks on women’s rights, as well as a rising generation of increasingly tolerant young white voters, have begun to increase the possibilities for successful multiracial voter coalitions and candidates of color at the statewide level.

This report examines the conditions in the Black Belt today and identifies lessons from Freedom Summer that can help today’s political organizers build a more inclusive Black Belt.

The first and most important lesson is that massive voter registration can overcome massive voter suppression. Our analysis shows that registering just 30 percent of eligible unregistered black voters or other voters of color could shift the political calculus in a number of Black Belt states, helping blacks elect candidates who share their concerns or alternatively, forcing all candidates to pay attention to the community’s concerns. Registering 60 percent or 90 percent would change the political calculus in an even greater number of states.

However, if organizers seek to maintain this progress in the long term, they must also embrace two other lessons from Freedom Summer. The second lesson is that coalition building is the key to transformative political power. The third is that successful movement is a marathon, not a sprint.

The Evolution of Employment Discrimination Law: Changed Doctrine for Changed Social Conditions

Source: Michael Selmi, George Washington University Law School, GWU Legal Studies Research Paper No. 2014-8, 2014

From the abstract:
Times change, and when they do, the law must as well. Much of the most important employment discrimination case law was established in the 1970s during an era when discrimination was both overt and pervasive. Moving forward forty years, discrimination has receded dramatically and is no longer seen as a default explanation for workplace decisions or statistical imbalances in a workforce. At the same time, the discrimination that remains is more complex, more subtle in nature and more difficult to identify. This article explores how the Supreme Court has navigated the declining but more complex nature of employment discrimination. In a series of recent cases, including the landmark sex discrimination case of Wal-Mart v. Dukes, the Supreme Court has embarked on a judicial updating of the foundation of employment discrimination law with the Court quietly announcing that the old case law no longer fits contemporary claims of discrimination. In other words, what counted as discrimination in the 1970s no longer does today. Despite the criticism the Court has received for its decisions, I conclude that the Court was right to shed its old doctrine as the inferences of discrimination that were permissible during an earlier era fail to account for our changed social conditions. The real problem with the Court’s recent updating of the doctrine is not the shedding of the old but what it has left in its place – the Supreme Court has failed to adapt its doctrine to capture the complexities of modern discrimination, thus leaving a substantial gap between what the law defines as discrimination and what we know about the difficulties of uncovering subtle discrimination. This article also critiques the recent academic emphasis on “implicit bias” and instead offers some suggestions for moving forward in a way that might better adapt the legal doctrine to the complexities of modern discrimination. This includes the use of testers to document workplace discrimination, more emphasis on educating courts and jurors regarding the nature of subtle discrimination (not implicit bias) and the role employer self-interests might play in bringing greater diversity to the workplace.

The Dilemma of Criminal Background Screening

Source: Rita Zeidner, HR Magazine, Vol. 59 No. 6, June 2014
(subscription required)

Deciding if and when to check a job seeker’s criminal history is a thorny legal and ethical issue… Recent federal guidance and “ban-the-box” laws add a new wrinkle to hiring decisions involving people with criminal histories. …
Video: EEOC and Criminal Background Checks
Attorney Michael Cohen, partner at Duane Morris LLP, talks about what the EEOC expects from employers when screening and considering candidates with criminal backgrounds.

Unfinished Business: The Enforcement of Civil Rights for People with Disabilities

Source: Ronald M. Hager, David T. Hutt, Janice Johnson Hunter, Diane Smith Howard, Elizabeth Priaulx, Amy Scherer, Kenneth Shiotani, Clearinghouse Review, Vol. 48 nos. 1-2, May-June 2014
(subscription required)

From the abstract:
Barriers to equal rights in public accommodations, housing, employment, education, and other publicly available programs are not uncommon for people with disabilities. With broad authority under specific federal statutes, Protection and Advocacy (P&A) System advocates still must protect the civil, legal, and human rights of persons with disabilities. Of interest to advocates of low-income persons are aggressive enforcement of the “integration mandate” conferred by the Americans with Disabilities Act and the Olmstead v. L.C. ruling; protection against discrimination in housing under the Fair Housing Amendments Act of 1988; and protecting youth from abusive use of restraint and seclusion with the advocacy strategies offered by the Rehabilitation Act and the Individuals with Disabilities Education Act.