Category Archives: Discrimination

Empirically Measuring the Impact of Photo ID Over Time and Its Impact on Women

Source: Michael J. Pitts, Indiana University Robert H. McKinney School of Law Research Paper No. 2014-29, August 12, 2014

From the abstract:
This article is part of a series of studies related to the impact of Indiana’s photo identification law during the two presidential election cycles at which it has been implemented — 2008 and 2012. This article tracks the number of provisional ballots cast and not counted because of a lack of voter identification at Indiana’s 2012 general election. Importantly, this article also addresses an argument against photo identification laws that has became more prominent in recent years — the idea that photo identification laws disparately disfranchise female voters. This article addresses that argument by tracking the gender of those persons who cast provisional ballots due to a lack of valid photo identification — something that does not seem to have been previously done anywhere in the literature. While the research presented here allows for several conclusions, the most important of those conclusions are as follows. First, Indiana’s photo identification law has a relatively small (in relation to the total number of ballots cast) overall actual disfranchising impact on the electorate. Second, Indiana’s photo identification law’s actual disfranchising impact seems to be headed in a downward direction when one compares data from the 2012 general election to the 2008 general election. Third, Indiana’s photo identification law appears to have a disparate impact on women.

How U.S. Urban Unrest in the 1960s Can Help Make Sense of Ferguson, Missouri, and Other Recent Protests

Source: Ashley M. Howard, Scholars Strategy Network, Key Findings, November 2014

Recent protests in U.S. cities including Ferguson, Missouri, recall America’s “long hot summers” of decades ago – even though the protests of recent times are far from reaching the scope and scale of urban revolts back then. Between 1965 and 1968, 329 urban rebellions took place in 257 U.S. cities, resulting in nearly 300 deaths, 60,000 arrests, and hundreds of millions of dollars in property loss. For nearly fifty years this type of protest has lain largely dormant. But within the past decade, incidents of mass urban protest, sometimes including violent outbursts, are happening once again. Can we take lessons from the past to better understand roots and remedies for present unrest? I believe so. Urban rebellions must be understood as complex, deliberate mechanisms through which the desperate seek political recourse they feel they cannot get by other means. By understanding the texture of these modern rebellions, activists, elected officials, and policymakers can hope to find solutions that improve upon past failures.

Employment Discrimination Based on Sexual Orientation and Gender Identity in Georgia

Source: Christy Mallory, Brad Sears, Williams Institute, October 2014

From the abstract:
Approximately 7,500 LGBT workers in Georgia are vulnerable to employment discrimination due to a lack of state legal protections. At least 35 localities and many private corporations based in Georgia have personnel policies that prohibit employment discrimination based on sexual orientation and gender identity. While Georgia law protects state workers from discrimination based on personal characteristics including race, religion, national origin, sex, disability, and age, it does not include sexual orientation or gender identity. In response to a 2013 survey, 79% of voters surveyed in Georgia said that it should be, or probably should be, illegal for government employers in the state to discriminate against their employees based on sexual orientation or gender identity.

Findings from the Georgia report are consistent with national data. A 2013 Pew Research Center survey found that 21 percent of LGBT respondents had been treated unfairly by an employer in hiring, pay, or promotions. In 2010, 78 percent of respondents to the largest survey of transgender people reported having experienced harassment or mistreatment at work.
Press release

Twenty Years of Compromise: How the Caps on Damages in the Civil Rights Act of 1991 Codified Sex Discrimination

Source: Lynn Zehrt, Belmont University College of Law Research Paper 2014-07, 2014

From the abstract:
This article takes a novel approach and reexamines the legislative history surrounding the enactment of the Civil Rights Act of 1991 with a central focus on exploring the issue of capped damages. Part I begins by briefly contrasting and summarizing the diverging remedies available under 42 U.S.C. § 1981 and Title VII. The article then shifts in Part II to an examination of the political climate and legislative history that forged the enactment of the 1991 Act, paying particular attention to the debate surrounding damages. This history reveals that many members of Congress had a discriminatory motive in capping damages for victims of sex discrimination under Title VII, and therefore, that these capped damages represent a codified version of injustice. Although prior scholarship documents the legislative history of the 1991 Civil Rights Act, it fails to adequately address the issue of capped damages. Thus, this legislative history is a substantial contribution to contemporary Title VII scholarship, as it provides necessary context for the current debate about whether to abolish the existing Title VII damage regime.

Stacked Deck: How the Racial Bias in Our Big Money Political System Undermines Our Democracy and Our Economy

Source: Adam Lioz, Dēmos, Executive Summary, December 2014

[editor’s note: The full report will be available in December 2014]

…Race intersects with our big money system in two important ways. First, because donor and corporate interests often diverge significantly from those of working families on economic policies such as the minimum wage and paid sick leave, people of color are disproportionately harmed because a larger percentage are poor or working class. Second, and more profound, our nation’s legacy of racism and persistently racialized politics depresses the political power of people of color, creating opportunities for exploitation and targeting—exemplified by the subprime lending crisis, mass incarceration, and voter suppression laws. The dominance of big money in our politics makes it far harder for people of color to exert political power and effectively advocate for their interests as both wealth and power is consolidated by a small, very white, share of the population.

Summarized below are this study’s findings on (1) the racial bias inherent in our big-money political system; (2) our policy recommendations on how to make government more responsive to all people; and (3) five case studies detailing the real-world impact of money in politics on people of color and examples of how to shift power from wealthy interests to all voters….

Does Protest Work?

Source: Tomiko Brown-Nagin, Howard Law Journal, Vol. 56 no. 3, 2013

Her article distills the lessons that can be learned from critical moments in protest history, examines whether modern protest movements have learned and employed those lessons, and prescribes a plan for modern social engineers to use in developing today’s effective protest strategies. …

… Does protest really work? Can citizen participation in informal politics — demonstrations, boycotts and other forms of mass participatory action — help to address issues of our time? If so, how might lawyers advance the goals of such protest movements? … The most celebrated episodes of the civil rights era can crowd out these questions and obscure answers to them. In legal literature, the constitutional dimensions of Cooper v. Aaron overshadow examination of the protest movement that gave rise to the legal action. Even when scholars specifically recall the non-lawyers who animated legal changes, they often discuss change agents in hagiographic terms. The Little Rock Nine are now iconic symbols of the hardship that blacks endured in the struggle against Jim Crow. Few have analyzed the story behind the lawsuit—the ideas, planning, groundwork, and protest — that provided the context in which the great constitutional case unfolded. It is this context—rather than the landmark lawsuits—that should command more of our attention. For a truer picture of how social change can occur, scholars must study social movements in detail rather than skim the surface of history in search of icons and moments to celebrate. If civil rights-era protests are to provide useful lessons today, when economic inequality is one of the most pressing issues of our times, we must examine the movement’s evolution and its depth and breadth. …

Growing Inequality and Racial Economic Gaps

Source: Thomas W. Mitchell, Howard Law Journal, Vol. 56 no. 3, 2013

From the abstract:
Over the past several decades, economic inequality has grown dramatically in the United States while inter-generational economic mobility has declined, which has challenged the very notion of the “American Dream.” In fact, the United States is more economically unequal than most other industrialized countries. Further, there are dramatic and growing racial economic gaps in this country. Despite the Occupy Wall Street Movement, and the various spinoffs it has catalyzed, there has not been any sustained, widespread social movement to address economic inequality in the United States over the course of the past several decades. Furthermore, it is unlikely that a mass social movement will emerge and endure over a long period of time in the near future to address economic inequality and growing poverty. Greater economic equality in the United States is achievable only if policymakers make fundamental changes in certain key areas of public policy impacting education, the criminal justice system, taxation, and families’ ability to invest financial and non-financial resources in their children, among other areas. Although it is unlikely that the legal system can serve as a primary tool to reduce economic inequality in any substantial way, there are a number of legal strategies and initiatives that lawyers and legal organizations, including law schools, could pursue in an effort to increase economic equality and security for many Americans on the margins, including for many persons of color.

The Problem of Voter Fraud

Source: Michael D. Gilbert, Virginia Public Law and Legal Theory Research Paper No. 2014-56, September 5, 2014

From the abstract:
Voter ID laws have provoked a fierce controversy in politics and public law. Supporters claim that such laws deter fraudulent votes and protect the integrity of American elections. Opponents, on the other hand, argue that such laws, like poll taxes and literacy tests before them, intentionally depress turnout by lawful voters. A vast literature, including legal scholarship and opinions of the Supreme Court, accept these two narratives. But these narratives are wrong, or at least incomplete. Voter ID laws can have many effects, including surprising ones like this: they can exacerbate fraud. To illustrate, suppose that without a voter ID law candidates A and B would receive 13 and 10 lawful votes, respectively, and B would receive two fraudulent votes. Candidate A wins non-fraudulently, 13 to 12. Now suppose that with a voter ID law, candidates A and B would get nine and nine lawful votes, respectively (less than before because of depressed turnout), and B would get one fraudulent vote (less than before because of fraud deterrence). Candidate B wins fraudulently, 10-9. The conditions necessary for ID laws to have this effect are simple and may be common. The paper captures this risk with a formula, the Election Integrity Ratio, which judges and scholars could use to determine when ID laws protect elections — and when they cause the very problem they purport to solve. The paper has implications for constitutional law and public policy. It also has broad reach. Any law that deters fraudulent votes, depresses lawful votes, or does both — citizenship and residency requirements, for example, which are used throughout the United States and around the world — are subject to the analysis herein.

Paying an Unfair Price: The Financial Penalty for Being LGBT in America

Source: Movement Advancement Project and the Center for American Progress, September 2014

From the summary:
Paying an Unfair Price: The Financial Penalty for Being LGBT in America paints a stark picture of the added financial burdens faced by LGBT Americans because of anti-LGBT laws at the national, state and local levels. These laws contribute to devastating cycles of poverty and create unfair financial penalties in the form of higher taxes, reduced wages and Social Security income, increased healthcare costs, and more.

The report documents how inequitable laws harm the economic well-being of LGBT people in three key ways: by enabling legal discrimination in jobs, housing, credit and other areas; by failing to recognize LGBT families, both in general and across a range of programs and laws designed to help American families; and by creating barriers to safe and affordable education for LGBT students and the children of LGBT parents.

Paying an Unfair Price offers broad recommendations for helping strengthen economic security for LGBT Americans, such as instituting basic nondiscrimination protections at the federal and state level; allowing same-sex couples to marry in all states; allowing LGBT parents to form legal ties with the children they are raising; and protecting students from discrimination and harassment on the basis of sexual orientation and gender identity.

Paying an Unfair Price was co-authored by the Movement Advancement Project and the Center for American Progress, in partnership with the Center for Community Change, the Center for Popular Democracy, the National Association of Social Workers, and the National Education Association.
Condensed Report
Executive Summary
Video: Paying an Unfair Price – Maria’s Story

Embracing Loving: Trait-Specific Marriage Laws and Heightened Scrutiny

Source: Christopher R. Leslie, Cornell Law Review, Vol. 99 No. 5, 2014

From the abstract:
In the wake of the Supreme Court’s recent Windsor opinion, the focus of marriage equality litigation has returned to challenging state gender-specific marriage laws that make a couple’s right to marry a function of their genders. The outcomes of these future legal challenges will be affected by the level of scrutiny that courts apply. To date, all courts that have applied heightened scrutiny have held same-sex marriage prohibitions to be unconstitutional, while courts applying rational basis review have often upheld such laws.

Laws that classify or discriminate based on gender are generally subject to heightened scrutiny. Yet the vast majority of courts have held that gender-specific marriage laws neither classify nor discriminate based on gender because the laws apply to both men and women, and thus are not subject to heightened scrutiny. In Loving v. Virginia, however, the Supreme Court explicitly rejected the parallel argument that if a race-specific marriage law applies equally to all affected races then heightened scrutiny is unnecessary.

Courts wishing to avoid heightened scrutiny have attempted to distinguish Loving. For example, courts have concluded that Loving is irrelevant to the level of scrutiny applied in equal protection challenges to gender-specific marriage laws because, while miscegenation laws were implemented to further the theory of white supremacy, gender-specific marriage laws do not have a similar improper discriminatory purpose. In particular, they assert that gender-specific marriage laws are not motivated by a desire to put one gender in a superior position to another gender.

This Article explains why these attempts to distinguish Loving are flawed. First, courts misapply the basic equal protection framework when they demand a discriminatory motivation for gender-specific marriage laws as part of determining the appropriate level of scrutiny. Furthermore, even if intent were relevant to that determination, supporters of same-sex marriage bans seek to implement and reinforce a gendered model of marriage in which a woman is presumed to be subordinate to a man. To social conservatives, who are the driving force behind gender-specific marriage laws, same-sex marriage is dangerous precisely because it threatens the gendered model of marriage in which a husband dominates his wife. The Article concludes by noting that following the logic of Loving, same-sex marriage bans necessarily classify based on gender and, thus, gender-specific marriage laws should receive heightened scrutiny.