Category Archives: Discrimination

Proving Who You Are: The Legal Battle Over Voter ID Laws

Source: Myrna Pérez, Jerry H. Goldfeder, Brennan Center for Justice, June 4, 2014

In recent months, federal and state courts throughout the country have been weighing in on the validity of voter ID laws. In the seminal voter ID case, Crawford v. Marion County Election Board, a 2008 decision, the U.S. Supreme Court refused to enjoin Indiana’s voter ID law. Recent cases, however, have differed in their outcomes. Indeed, the more recent decisions seem to be trending against harsh voter ID laws—but, as they say, the jury is still out….

Addressing Minority Vote Dilution Through State Voting Rights Acts

Source: Paige A. Epstein, University of Chicago, Public Law Working Paper No. 474, February 1, 2014

From the abstract:
Passed largely to address the problem of vote dilution and racially polarized voting, the Voting Rights Act of 1965 (VRA) bans racial discrimination in voting practices by federal, state, and local governments. While the VRA has been successful in many respects, several large gaps remain. In an effort to narrow some of the gaps left by the federal VRA, four states have enacted or proposed individual state-VRAs or functional equivalents (herein referred to as individual state-VRAs).

In this paper, I seek to explore how these states have attempted to use individual VRAs — and how successful they have been — in closing the gaps in coverage existing under the federal VRA. For each of the four enacted or proposed VRAs, I explore the background of the legislation, followed by an analysis of how the legislation operates. For California, Illinois, and Florida — the three states with enacted individual state-VRAs — I then examine how successful the legislation has been in increasing minority representation, and how it can be strengthened to further the state’s goals. Since Washington’s VRA has yet to become law, I explore the background, followed by an analysis of the proposed legislation. I conclude by assessing which individual state-VRAs — or aspects thereof — are best suited to serve as models for the forty-six other states without such legislation.

I find that all four state-VRAs are ultimately successful insofar as they expand protection against minority vote dilution beyond that which is afforded to minority voters under the federal VRA. However, the level of success varies by state plan.

Revealing Discriminatory Intent: Legislator Preferences, Voter Identification, and Responsiveness Bias

Source: Matthew S. Mendez, Christian R. Grose, University of Southern California, USC CLASS Research Paper No. 14-17, May 1, 2014

From the abstract:
Is bias in responsiveness to constituents conditional on the policy preferences of elected officials? The scholarly conventional wisdom is that constituency groups who do not receive policy representation still obtain some level of responsiveness by legislators outside of the policy realm. In contrast, we present a theory of preference-induced responsiveness bias where constituency responsiveness by legislators is associated with legislator policy preferences. Elected officials who favor laws harming minority groups are also less likely to engage in non-policy responsiveness to minority groups. To test this proposition, we conducted a field experiment in 28 U.S. legislative chambers. Legislators were randomly assigned to receive messages from Latino, Anglo, English-speaking, and Spanish-speaking constituents asking if a driver’s license is required for voting. If legislators supported voter identification, Latino constituents were less likely than Anglo constituents to receive communications from legislators. The implication is that discriminatory intent underlies legislative support for voter identification laws.

Remedying Race-Based Decision-Making: Reclaiming the Remedial Focus of Affirmative Action after Fisher v. University of Texas at Austin

Source: John V. Wintermute, Seton Hall University – School of Law, Seton Hall Public Law Research Paper No. 2427354,
April 21, 2014

From the abstract:
In the aftermath of Fisher v. University of Texas at Austin, in which the Supreme Court added a wrinkle to a college or university’s ability to pursue educational diversity through a race-conscious admissions policy, American schools have been left with a tentative legal underpinning for their affirmative action programs. In light of the uncertainty created by Fisher, this Comment seeks to inject some perspective into the debate and to provide colleges and universities with another potential foundation upon which to pursue a race-conscious admissions policy. Specifically, this Comment argues: (1) that the Supreme Court’s articulation of racial discrimination as “race-based decision-making” encompasses many forms of unequal treatment likely experienced by a Black college applicant during his or her educational career; and (2) that the Court’s race-conscious remedy jurisprudence permits a school to account for the presence of the resultant discriminatory effects in its applicant pool.

Using Pyette to Counter the Fall of Contract-Based Unionism in a Global Economy

Source: Stephen A. Plass, Vol. 34 no. 2, 2013

Structural changes in the economy that contributed to high unemployment have combined with global wage competition to destroy the contract-making and contract-enforcement powers of unions. Supporters of labor uniformly insist on defining the role of unions as contractual, and condemn the Supreme Court’s Pyett decision that permits unions to take control of their members’ legal claims. Yet unions’ contractual powers have dwindled under the National Labor Relations Act, thereby leaving workers vulnerable to the bargaining demands of their employers. This article shows how Pyett can renew the importance of unions.

The Article argues that read appropriately, Pyett is positively transformative in the same way as the Steelworkers Trilogy. Although the Pyett decision did not offer a compelling justification for its conclusion that unions are authorized to bargain about antidiscrimination rights, unions’ effective advocacy for their members’ antidiscrimination claims may be a practical necessity today. The Article focuses on Pyett’s potential to transform the workplace by eliminating the line between contract and legal disputes. Using the Trilogy as a backdrop, and antidiscrimination rights as an example, the article addresses the theoretical and practical concerns cited as obstacles to Pyett’s viability. It provides original answers to the questions Pyett left open and provides a roadmap on how the decision may be implemented contractually to advance employers’ and workers’ interests.

Disabling the Gender Pay Gap: Lessons from the Social Model of Disability

Source: Michelle A. Travis, University of San Francisco Law Research Paper No. 2014-12, April 1, 2014

From the abstract:
As we celebrate the fiftieth anniversary of Title VII’s prohibition against sex-based compensation discrimination in the workplace, the gender wage gap remains robust and progress toward gender pay equity has stalled. This article reveals the role that causal narratives play in undermining the law’s potential for reducing the gender pay gap. The most recent causal narrative is illustrated by the “women don’t ask” and “lean in” storylines, which reveal our society’s entrenched view that women themselves are responsible for their own pay inequality. This causal narrative has also embedded itself in subtle but pernicious ways in antidiscrimination doctrine, which helps shield employers from legal liability for gender pay disparities.

The disability civil rights movement faced a similar challenge, however, and their response provides a potential path forward on gender pay issues. The causal narrative that erected barriers for disability rights was engrained in the medical model of disability, which also identified internal deficits as the source of individuals’ own limitations. The disability rights movement responded with a reconceptualized “social model,” which explains disability instead as the result of the environment in which an individual’s characteristics interact. The social model of disability is an alternative causal narrative: one that shifts focus onto the role played by employer practices and organizational norms in producing inequality. This article explores how a social model approach to women’s compensation could help shift the causal focus away from the manner in which women negotiate, and onto the institutional practices that produce unequal results. In doing so, the social model may help resuscitate Title VII’s disparate impact theory to allow challenges to employment practices that base compensation on employees’ individual demands, thereby moving us toward more effective structural solutions to the gender pay divide.

Race as a Tool in the Struggle for Political Mastery: North Carolina’s ‘Redemption’ Revisited 1870-1905 and 2011-2013

Source: Michael Kent Curtis, Wake Forest University Legal Studies Paper No. 2431272, April 24, 2014

From the abstract:
The article discusses in depth and in historical perspective the use of racial tools to achieve political dominance in North Carolina’s 2011 redistricting.

Prominent among these 2011 tools has been the use of racial quotas purportedly justified by the Voting Rights Act to add more black voters to districts that have been quite safe for black candidates and to subtract more white and other voters from the purported voting rights districts. These devices serve to disrupt biracial coalitions by packing additional African Americans in selected super-safe districts and removing them from others, undermining multi-racial coalitions and increasing racial polarization.

The effect, of course, is to deprive blacks of many of their white allies. In the past in North Carolina we have had a black Speaker of the House and black committee chairs. Effective disruption of a biracial coalition has provided a few more black representatives and many fewer white ones — but has helped to leave black representatives as a larger part of a more powerless party in the legislature. This emphasis on disrupting a bi or multiracial coalition and to portray a “black party” and a “white party” is a new chapter in an old story. That earlier history is explored in the article.

While quotas are increasingly disfavored by the current Court, here the legislature (purporting to follow the law) had two quotas — more 50% black voting age population districts and black representatives in the legislature in proportion to the overall black voting age population of the state. While many justices on the Court have expressed Fourteenth Amendment concerns about entrenching racial districting, the dual quotas have done both. As a means of containing expanding racial districting and its quotas, the article suggests a strategy and tests for containment — at least limiting creation of new districts for no good purpose and protecting multiracial coalitions from decimation to meet dual quotas.

The case discussed here is currently before the North Carolina Supreme Court. If that decision comes out before publication, it can easily be revised to take account of the decision, which seems likely to follow the decision of the trial court which is criticized.

Is the Future of Affirmative Action Race Neutral

Source: Brian T. Fitzpatrick, Vanderbilt Law School, Vanderbilt Public Law Research Paper No. 14-11,April 18, 2014

From the abstract:
The outlook does not appear particularly bright for affirmative action programs in the United States that grant preferences based on race to blacks, Hispanics, and others in hiring, university admissions, and bidding on government contracts. These programs continue to be unpopular with the public and face increasing hostility in courts of law. In its place, courts and commentators have been promoting an alternative form of affirmative action called “race-neutral affirmative action.” Race-neutral affirmative action seeks to change the racial composition of those who benefit from employment, education, or government spending not by granting preferences based on race, but by granting preferences based on characteristics that are correlated with race. In this chapter, I examine the rise of race-neutral affirmative action in the United States and assess the costs and benefits of trying to diversify through race-neutral means. I conclude, first, that, although courts have been promoting race-neutral affirmative action, they have yet to confront serious questions about whether it is any more constitutional than racially explicit affirmative action. In my view, it is hard to square race-neutral affirmative action with the Supreme Court’s cases that prohibit programs that have both the purpose and effect of racial discrimination. Second, even if the courts decide not to adhere to these past cases, it is unclear whether race-neutral affirmative action is any less problematic than racially explicit affirmative action. Although race-neutral affirmative action may be less divisive and less stigmatizing to its beneficiaries, it may be so much less efficient at bringing about racial diversity that it will require institutions to make much greater sacrifices to other aspects of their missions. Indeed, the race-neutral programs that are likely to be the least divisive and least stigmatizing are probably also those that are the least efficient at diversifying. For both of these reasons, I am not sure race-neutral affirmative action is the panacea that many seem to think it is.

How racism in the doctor’s office hurts patients

Source: Liz Banks-Anderson, Futurity.org, May 9, 2014

Researchers reviewed dozens of studies published between 1995 and 2012 of racism among US healthcare providers and found that minority patients may face racist attitudes and beliefs that can affect their treatment. The review assessed attitudes towards race held by physicians, nurses, and allied healthcare professionals such as physiotherapists and social workers, as well as support staff such as nursing aides involved in direct patient care. Most of the 37 studies included in the review were conducted in the United States. The review findings are published in the Journal of General Internal Medicine….
Related:
Interventions to improve cultural competency in healthcare: a systematic review of reviews

From the abstract:
Cultural competency is a recognized and popular approach to improving the provision of health care to racial/ethnic minority groups in the community with the aim of reducing racial/ethnic health disparities. The aim of this systematic review of reviews is to gather and synthesize existing reviews of studies in the field to form a comprehensive understanding of the current evidence base that can guide future interventions and research in the area….
Source: Mandy Truong, Yin Paradies, Naomi Priest, Journal of General Internal Medicine, March 2014

Brown-versus-Board of Education: Sixty Years Later

Source: Diane Rehm Show, May 15, 2014

This week marks the sixtieth anniversary of the landmark Supreme Court decision Brown-versus-Board of Education. The court ruled that school segregation was unconstitutional. By the 1970s, many schools were integrated. But over the last twenty years, judges have released hundreds of schools from desegregation orders. Now many African-American children attend majority-black schools at levels not seen in four decades. And civil rights lawyers say black and hispanic students are disadvantaged in other ways – such as being disproportionately suspended. In the next hour we’ll discuss racial integration and equal opportunity in public schools today.

Guests:
Dennis Parker director of the American Civil Liberties Union’s Racial Justice Program
Catherine Lhamon assistant secretary, Office of Civil Rights, U.S. Department of Education
Jesse Register director, Metropolitan Nashville Public Schools
David Armor professor emeritus, School of Public Policy, George Mason University

Related:
Brown v. Board of Education: History Of The Landmark Case