Archive for the ‘Civil Rights’ Category
posted by Stanford Law Review
The Stanford Law Review Online has just published an Essay by Fatma Marouf entitled The Hunt for Noncitizen Voters. Professor Marouf writes that recent efforts by several states to purge noncitizens from their voter rolls may prevent many more citizens than noncitizens from voting:
Over the past year, states have shown increasing angst about noncitizens registering to vote. Three states—Tennessee, Kansas, and Alabama—have passed new laws requiring documentary proof of U.S. citizenship in order to register. Arizona was the first state to pass such a requirement, but the Ninth Circuit struck it down in April 2012, finding it incompatible with the National Voter Registration Act. Two other states—Florida and Colorado—have waged aggressive campaigns in recent months to purge noncitizens from voter registration lists. These efforts to weed out noncitizen voters follow on the heels of legislation targeting undocumented immigrants in a number of states. Yet citizens may be more harmed by the new laws than noncitizens, especially since the number of noncitizens registering to vote has turned out to be quite small. Wrongfully targeting naturalized or minority citizens in the search for noncitizens could also have negative ramifications for society as a whole, reinforcing unconscious bias about who is a “real” American and creating subclasses of citizens who must overcome additional hurdles to exercise the right to vote.
Some of the laws require voters to show government-issued photo IDs, which 11% of U.S. citizens do not have. Some have placed new burdens on voter registration drives, through which African-American and Hispanic voters are twice as likely to register as Whites. Others restrict early voting, specifically eliminating Sunday voting, which African-Americans and Hispanics also utilize more often than Whites. In two states, new laws rolled back reforms that had restored voting rights to citizens with felony convictions, who are disproportionately African-American. Each of these laws is a stepping-stone on the path to subsidiary citizenship. Rather than creating new obstacles to democratic participation, we should focus our energy on ensuring that all eligible citizens are able to exercise the fundamental right to vote.
October 31, 2012 at 9:30 am Tags: Civil Rights, Constitutional Law, Election law, Immigration, Politics, voter rights Posted in: Civil Rights, Constitutional Law, Election Law, Immigration, Law Rev (Stanford), Politics Print This Post No Comments
posted by Caroline Mala Corbin
The Affordable Care Act is changing the health care landscape. Among the changes is that employers that provide health insurance must cover preventive services, including contraception. Although the requirement does not apply to religious organizations, it does apply to religiously affiliated ones. This “contraception mandate” has generated a huge outcry from some religious leaders, most notably the United States Conference of Catholic Bishops. They insist that forcing Catholic hospitals, schools, or charities to include contraception in their employee insurance plans violates religious liberty.
It doesn’t. It certainly doesn’t violate the Free Exercise Clause. After Employment Division v. Smith, neutral laws of general applicability are constitutional, regardless of the burden they may impose on religious practices. Indeed, the law upheld in Smith banned a religious sacrament. But it was neutral, in that it did not intentionally target religion, and it was generally applicable, in that it was neither riddled with exceptions nor grossly underinclusive. The regulation requiring employers who provide health insurance to include contraception in that coverage is likewise a neutral law of general applicability.
While a recent Supreme Court decision (Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC) carved out an exception to this “neutral-generally-applicable-laws-do-not-violate-the-Free-Exercise-Clause” rule, it does not apply here. This exception — which holds that religious institutions are immune from neutral, generally applicable anti-discrimination laws when they are sued by their ministers — was designed to protect churches’ ability to pick their leaders without interference from the state. However, the provision by religiously-affiliated organizations of health insurance to their employees, many of whom do not belong to the same faith as their religious employer, clearly does not involve ministers or internal church governance. In short, there is no valid Free Exercise Claim.
What about the Religious Freedom Restoration Act? Stay tuned.
October 29, 2012 at 1:52 pm Tags: ACA, contraception, contraception mandate, equality, free exercise, health care, religious liberty, women Posted in: Civil Rights, Constitutional Law, Employment Law, Feminism and Gender, First Amendment, Health Law, Religion Print This Post 19 Comments
posted by Stanford Law Review
The Stanford Law Review Online has just published a Note by Kendall Turner entitled Dahlia v. Rodriguez: A Chance to Overrule Dangerous Precedent. Turner argues that the Ninth Circuit has an opportunity to make an important change to the rules governing the application of First Amendment protections to the speech of public employees:
In December 2007, Angelo Dahlia, a detective for the City of Burbank, California, allegedly witnessed his fellow police officers using unlawful interrogation tactics. According to Dahlia, these officers beat multiple suspects, squeezed the throat of one suspect, and placed a gun directly under that suspect’s eye. The Burbank Chief of Police seemed to encourage this behavior: after learning that certain suspects were not yet under arrest, he allegedly urged his employees to “beat another [suspect] until they are all in custody.”
After some delay, Dahlia reported his colleagues’ conduct to the Los Angeles Sheriff’s Department. Four days later, Burbank’s Chief of Police placed Dahlia on administrative leave. Dahlia subsequently filed a 42 U.S.C. § 1983 action against the Chief and other members of the Burbank Police Department, alleging that his placement on administrative leave was unconstitutional retaliation for the exercise of his First Amendment rights.
Dahlia offers the Ninth Circuit an opportunity to overturn Huppert and articulate a narrow understanding of Garcetti. This narrow understanding accords with the reality of public employees’ duties—for the duties they are actually expected to perform may differ significantly from the responsibilities listed in their job descriptions. A narrow reading of Garcetti is also essential to ensuring adequate protection of free speech: The answer to the question of when the First Amendment protects a public employee’s statements made pursuant to his official duties may not be “always,” but it cannot be “never.”
Read the full article, Dahlia v. Rodriguez: A Chance to Overrule Dangerous Precedent at the Stanford Law Review Online.
October 22, 2012 at 10:39 am Tags: Civil Rights, Constitutional Law, employee speech.public employees, First Amendment, Ninth Circuit Posted in: Civil Rights, Constitutional Law, Employment Law, First Amendment, Law Rev (Stanford) Print This Post No Comments
posted by Caroline Mala Corbin
The United States Conference of Catholic Bishops (USCCB) has been leading the charge against the contraception mandate, but its opposition to the mandate does not represent the USCCB’s first entanglement with contraception lawsuits. ACLU of Massachusetts v. Sebelius involved an Establishment Clause challenge to a grant given to the USCCB pursuant to the Trafficking Victims Protection Act. The grant was to provide services to victims of sex trafficking, who are often forced into prostitution and forced to endure rape or other sexual abuse. In accepting the grant, the USCCB made very clear that its religious beliefs prevented them from providing contraception or abortion to their clients, or referring them to others who would. (More specifically, the USCCB stated it would bar its subcontractors from providing or referring these services.) Even though access to contraception and abortion are crucial for women and girls who have been sexually trafficked, the U.S. Department of Health and Human Services (HHS) nonetheless awarded the USCCB over $15 million dollars. The ACLU sued, alleging Establishment Clause violations. USCCB responded by claiming that HHS was merely accommodating its sincere religious beliefs. The ACLU won.
Sometimes the line between constitutional accommodation of religious belief and unconstitutional advancement of religion can be hard to draw. Sometimes, however, it is not. HHS should never have awarded the grant. It is true that religious groups may now compete on an equal basis with secular groups for government grants and contracts. But they should also be rejected on an equal basis if they cannot fulfill basic grant requirements. The point of the grant, after all, is to help the intended beneficiaries. Any group, secular or religious, that cannot provide the requisite services, which in this case includes contraception and abortion, is simply not qualified. To accommodate the USCCB at the expense of trafficked sex victims goes too far. At this point, “accommodation devolve[s] into an unlawful fostering of religion.”
October 20, 2012 at 2:25 pm Tags: contraception, establishment, funding, religious liberty, sex trafficking Posted in: Civil Rights, Constitutional Law, Feminism and Gender, First Amendment, Religion Print This Post 8 Comments
posted by Caroline Mala Corbin
In Bob Jones University v. United States, the IRS revoked the tax exempt status of two religiously affiliated schools because they discriminated on the basis of race. One school (Goldsboro Christian Schools) refused admittance to black students, the other (Bob Jones University) barred interracial dating and marriage. Both schools claimed that the discrimination was religiously mandated, and that the loss of their tax exempt status violated the Free Exercise Clause. The schools lost. The Supreme Court characterized tax exemptions as a taxpayer subsidy for charitable organizations that, at the very least, do not contravene fundamental public policy like our commitment to racial equality, and held that racist schools did not satisfy that requirement: “[I]t cannot be said that educational institutions that, for whatever reasons, practice racial discrimination, are institutions exercising beneficial and stabilizing influences in community life or should be encouraged by having all taxpayers share in their support by way of special tax status.” In addition, the Court held that eliminating race discrimination in education was a narrowly tailored and compelling state interest. The bottom line is that a university may discriminate based on race, but it should not expect to be considered a beneficial organization entitled to tax subsidies.
Assuming Bob Jones was correctly decided, should its holding be limited to discrimination in education, or discrimination on the basis of race? I think not. In fact, the IRS denies tax exempt status to any nonprofit organization, religious or not, that invidiously discriminates on the basis of race. If you are a church that excludes blacks, or won’t let blacks become ministers, you may have the constitutional right to exist, but you won’t get any government money to help you prosper. Should the same policy apply to organizations, religious or not, that invidiously discriminate on the basis of sex?
October 15, 2012 at 4:00 pm Tags: Bob Jones, discrimination, free exercise, Race, sex, taxes Posted in: Civil Rights, Constitutional Law, Education, Feminism and Gender, First Amendment, Law and Inequality, Race, Religion Print This Post 10 Comments
Professor Sherrilyn Ifill on Fisher v. University of Texas: Still Litigation Without Minority Representation
posted by Danielle Citron
My colleague Sherrilyn Ifill has generously offered to share her insights on the Fisher case. Professor Ifill is a nationally recognized expert on civil rights litigation: we are lucky to have her aboard as a guest commentator. Here is Professor Ifill’s post:
Since the Bakke v. California case, higher education affirmative action cases have largely been litigated between white applicants who claim they were excluded from university admissions as a result of affirmative action, and historically white universities who have in the last 30 years sought to diversify their student bodies. Minority students, whose interests are deeply affected by the litigation in these cases, are often relegated to the sidelines.
This troubling phenomenon was first the result of the federal court’s interpretation of intervention of a right under Rule 24 of the Federal Rules of Civil Procedure. A year after the Bakke case, Professor Emma Coleman Jordan (nee Jones) wrote powerfully about the refusal of the federal trial court in that case to allow black students to intervene in her Harvard Civil Rights-Civil Liberties Law Review article Litigation Without Representation: The Need for Intervention to Affirm Affirmative Action.
Post-Grutter, the exclusion of minority students as parties at trial may be even more firmly fixed. By grounding affirmative action’s constitutionality in the First Amendment rights of universities, the Court saved affirmative action in higher education, but may also have further reinforced the redundancy of minority student participation as full litigants in these cases.
The result is that the Fisher v. University of Texas case was litigated at trial almost entirely between white applicants and a majority white public university. No lawyer arguing the case in the Supreme Court represents the interests of minority students. Certainly it’s true that civil right litigators at the NAACP Legal Defense & Educational Fund were permitted to file briefs and to present oral argument in the Court of Appeals in the Fisher case. But the real issue is the refusal of courts to allow minority students party status at trial.
The exception was the University of Michigan case, Grutter v. Bollinger, where black, Latino, Asian-American and Arab-American students were permitted to intervene at the trial phase of the case. Their robust defense of the school’s affirmative action policy included strong and direct testimony and evidence about the school’s history of discrimination against blacks. Strikingly, in contrast to the law school’s defense, the minority students challenged the University’s over-reliance on the LSAT in its admissions decisions, to the detriment of minority students, describing the LSAT as providing a “sharp, undeserved, disadvantage for minority LSAT-takers, and a sharp unearned advantage for white LSAT-takers.”
The participation of minority students as parties at trial is important because we can only expect universities like Michigan and Texas to defend their affirmative action initiatives in the furtherance of their own interests and goals. Thus, the University of Michigan was unlikely, in the Grutter case, to explore its strong reliance on applicant LSAT scores in admissions. Nor does the brief filed by Texas lay out in detail the history of discrimination at the University of Texas, and the ongoing alienation experienced by black students at the state’s flagship university, as set out in a recent article co-authored by Professor Lani Guinier.
Although some of the most compelling arguments advanced in this case are contained within the amicus briefs filed in the Fisher case, including one filed by the NAACP Legal Defense & Educational Fund, Inc. on behalf of black students, another by the Advancement Project highlighting the history of discrimination by the University of Texas, and still another filed by the family of the man who challenged and defeated segregation at UT 60 years ago, amicus status is no substitute for party status at the trial phase. All good litigators know that the ability to shape and develop a cause of action at trial, first by the allegations advanced in the complaint, then by the information sought on discovery and finally by the theory of the case advanced at trial – determines the substantive scope of the findings ultimately made in the case. Thus, party standing in these cases is particularly important.
In fact, the trial judge in Fisher permitted the League of United Latin American Citizens (LULAC) and the NAACP to submit amicus briefs at trial “in lieu of intervention,” and expressly denied permission to LULAC to submit any evidence in the case.
It’s certainly true that despite the party status of minority students in Grutter, the Supreme Court in its majority opinion appeared to ignore the students’ contribution to the case, not even mentioning the intervenors’ participation in the recitation of the procedural history of the case. Some suggest that this demonstrates that even when intervention is permitted, courts may ignore the presentation made by minority students. But the mere fact that an appellate court fails to acknowledge the contribution of intervenors, is not evidence that those intervenors did not play an important role in shaping the record to which the appellate court was bound for its review.
There’s something deeply disquieting about higher education affirmative action cases in which blacks and Latinos are virtually litigation bystanders. More than thirty years after the Bakke case, affirmative action in higher education has survived and may yet survive this latest challenge in Fisher, but the voice of racial minorities in shaping the presentation of these issues is at a low ebb.
posted by Caroline Mala Corbin
Imagine the Boys Scouts of America discriminated on the basis of race. In this hypothetical, no black parents are allowed to lead troops, and no black children are even allowed to join them. If your child were eligible, would you let him become a Boy Scout? My guess is that the answer would be no. There are plenty of alternative extracurricular activities available, including other scouting clubs, so why belong to a racist one whose policies stigmatize innocent children and perpetuate hostility towards a group based on a completely irrelevant characteristic? In fact, you might not want to support them in any way. The federal government certainly does not: groups that discriminate on the basis of race are ineligible for government funding and cannot qualify as a tax exempt organization. In short, no government money would flow to them, not even in the form of tax breaks. As an expressive association, the Boy Scouts might have a constitutional right to discriminate, but that doesn’t mean that our tax dollars should help them.
In recognition of National Coming Out Day on October 11, let’s tweak the hypothetical and substitute sexual orientation for race. Shouldn’t the results be the same?
October 9, 2012 at 12:51 pm Tags: Boy Scouts, discrimination, National Coming Out Day, Race, sexual orientation Posted in: Civil Rights, Constitutional Law, First Amendment, Tax Print This Post 13 Comments
posted by Caroline Mala Corbin
The Supreme Court is set next week to hear the affirmative action case of Fisher v. University of Texas at Austin. Many people are troubled by affirmative action because they are convinced that it means less qualified (non-white) students are admitted over more qualified (white) ones. To them, that just seems unfair. (One may wonder how it compares to the unfairness of a public education system that generally offers much better schooling to suburban (white) students.)
In any case, how reliable is their measurement of merit? As an initial matter, if diversity in itself is valuable, then the ability to add to it makes you more qualified then someone who cannot. Of course, what people usually have in mind are test scores, grades, and recommendations. Yet do the best grades and recommendations, for example, necessarily go to the best students? Studies on unconscious biases suggest the answer may be no. Take the most recent entry in a long series of studies revealing that identical qualifications are evaluated differently based on the race or sex of a candidate. In this randomized double-blind Yale study, science professors were asked to evaluate men’s and women’s resumes. The resumes were exactly the same except that some bore a man’s name (John) and some bore a woman’s (Jennifer). Both men and women rated the male candidates higher, and were willing to pay them more. Again, these were the exact same resumes. It is not a huge leap to think the same kind unconscious bias regularly occurs in classrooms across the country — and this is only one way that unconscious bias might lead to unfair assessments.
Granted, affirmative action may be a crude way to compensate for structural inequality and unconscious biases. But realistically, what are the alternatives?
posted by Frank Pasquale
The New York Times posted an editorial on voting harassment on Friday, describing these troubling scenarios:
In an ostensible hunt for voter fraud, a Tea Party group, True the Vote, descends on a largely minority precinct and combs the registration records for the slightest misspelling or address error. It uses this information to challenge voters at the polls, and though almost every challenge is baseless, the arguments and delays frustrate those in line and reduce turnout. . . .
posted by Mike Carroll
Like the other commenters on From Goods to a Good Life, I also enjoyed the book and applaud Professor Sunder’s initiative in engaging more explicitly in the values conversation than has been conventionally done in IP scholarship. I also agree with most of what the other commenters have said. I want to offer plaudits, a few challenges, and some suggestions about future directions for this conversation.
September 21, 2012 at 11:13 am Posted in: Book Reviews, Civil Rights, Culture, Cyberlaw, Economic Analysis of Law, Innovation, Intellectual Property, Jurisprudence, Law and Humanities, Law and Inequality, Politics, Property Law, Symposium (From Goods to a Good Life), Technology, Trade Print This Post No Comments
posted by Madhavi Sunder
Another day brings another cornucopia of exciting and important comments on my book, From Goods to a Good Life: Intellectual Property and Global Justice. I thank Professors Molly Van Houweling, Jessica Silbey, Michael Madison, and Mark McKenna, and earlier Concurring Opinions commentators —Professors Deven Desai, Lea Shaver, Laura DeNardis, Zahr Said, and Brett Frischmann—for reading my book so carefully, and engaging it so helpfully. I focus here on Professor Van Houweling’s framing of an important issue arising in the discussion.
Professor Van Houweling has provoked stimulating discussion with her astute observation of two competing visions of intellectual property within the emergent “capabilities approach” school of intellectual property we identified earlier this week. Professor Van Houweling contrasts Professor Julie Cohen’s alternative justification of copyright as a tool for promoting corporate welfare (sustaining creative industries), with my attention to intellectual property laws as tools for promoting livelihood and human welfare (sustaining human beings in their quest for a good life).
September 14, 2012 at 1:15 am Posted in: Civil Rights, Constitutional Law, Culture, Cyber Civil Rights, Education, Feminism and Gender, First Amendment, Jurisprudence, Law and Humanities, Law and Inequality, Media Law, Race, Symposium (From Goods to a Good Life), Technology, Uncategorized, Web 2.0 Print This Post One Comment
posted by Stanford Law Review
The Stanford Law Review Online has just published a Note by Nicolas L. Martinez entitled Pulling the Plug on the Virtual Jury. Martinez takes issue with Judge William Young’s proposal that Khalid Sheikh Mohammed be tried via videoconference from Guantanamo Bay by a jury sitting in New York:
Most people probably figured that the debate over where to try alleged 9/11 mastermind Khalid Sheikh Mohammed (“KSM”) had ended. Indeed, it has been well over a year since Congress forced Attorney General Eric Holder to reluctantly announce that KSM’s prosecution would be referred to the Department of Defense for trial before a Guantanamo military commission. But a provocative proposal put forth recently by Judge William G. Young of the District of Massachusetts has revitalized one of the most contentious legal debates of the post-9/11 era. In a nutshell, Judge Young proposes that an Article III court try KSM at Guantanamo, but with one major twist: the jury would remain in New York City.
Perhaps unwilling to refight the battles of two years ago, Congress has shown no inclination to retreat from its apparent view that KSM may only be tried by a military commission at Guantanamo. As a result, following through on Judge Young’s plan, which could be viewed as an attempt to circumvent the will of Congress, might lead some legislators to harden their stance on civilian trials for alleged terrorists and propose even more disagreeable legislation to that end. This is not to say that creative solutions aimed at fortifying the rule of law in a post-9/11 world should be held hostage to the proclivities of intransigent voting blocs in Congress. Quite the opposite, in fact. But the likely political ramifications of Judge Young’s proposal cannot be ignored, especially in an election year when few members of Congress may be willing to spend their political capital defending the need to hold KSM’s trial in federal court.
Even though Judge Young’s provocative suggestion should not be adopted in its current form, he has moved the conversation in the right direction. Continuing to think imaginatively about ways to preserve our rule of law tradition from external threats is immensely important, particularly in the context of national security crises. For it is when the rule of law can be so easily discarded that it must be most doggedly defended.
September 13, 2012 at 10:00 am Tags: Civil Rights, Courts, criminal justice, Criminal Law, Criminal Procedure, guantanamo bay, military commissions, security, War on Terror Posted in: Civil Rights, Constitutional Law, Courts, Criminal Law, Criminal Procedure, Current Events, Law Rev (Stanford), Military Law, Politics Print This Post No Comments
posted by Madhavi Sunder
I am moved and honored by this deep engagement with my book by this amazing array of scholars. Let me reply to each that has chimed in so far, and seek to situate my work within the broader IP discourse at the same time.
What a difference a few years make! Professor Said, who is younger than I am, arrived on the IP scene more recently, and happily she found a more plural discourse than I saw several years back. In the first few years of the new century, scholars on both the Right and Left seemed unified in their commitment both to the incentives rationale and the ultimate goal–innovation. Scholars on the Left saw the incentives rationale as limiting IP rights, because they argued that intellectual property need not offer rights beyond those necessary to incentivize creation. They also argued that too many property rights might result in an anticommons and erode the public domain. Some public domain scholars—to whom my book is both homage and reply—worried that opening IP to alternative discourses such as human rights might bolster property owners’ arguments rather than limit them.
The public domain scholars opened a space for critique in a field that was “coming of age.” In my new book, From Goods to a Good Life: Intellectual Property and Global Justice (Yale University Press 2012), I seek to both consolidate and expand that critique. I argue that we need to rethink the ultimate goal of intellectual property itself. We should seek not simply to promote more goods, but rather the capability of people to live a good life. To that end, we need to ask new questions beyond just how much intellectual production law spurs, and turn to disciplines beyond law and economics for guidance. Which goods are being produced and which are neglected under market incentives? Even when goods are produced, like AIDS medicines, how can we ensure just access to these knowledge goods? Surely access to essential medicines for people who cannot afford them is important if we believe in the dignity of all human beings. But what about access to culture, such as films, music, and literature? I argue that participation in these cultural activities is just as important – singing and dancing together and sharing stories are activities central to our humanity. They promote learning, sociability, and mutual understanding.
September 12, 2012 at 9:37 pm Posted in: Civil Rights, Feminism and Gender, Health Law, Intellectual Property, Jurisprudence, Property Law, Race, Symposium (From Goods to a Good Life), Technology, Uncategorized, Web 2.0 Print This Post No Comments
posted by Sarah Waldeck
A couple of weeks ago I wrote about how my colleague Tim Glynn and I recently examined elementary and high school rankings in Illinois, New Jersey, and Ohio, and sampled school report cards from 18 states. Our analysis, available here, demonstrates how rankings penalize socioeconomic and racial diversity and are biased toward wealthier and Whiter schools.
My prior post explained that because most ranking metrics fail to account for the achievement gap, wealthier and Whiter schools will almost always outrank diverse schools. The post also hypothesized about how the choices parents make based on these ratings help fuel neighborhood and school segregation. Now I want to discuss how alternative rankings could dampen the diversity penalty’s damaging effects.
People are drawn to the bottom-line assessment of quality that rankings provide, which means that rankings are not going to just disappear. But there is plenty of room to improve how school rankings and ratings are calculated. And herein lies a powerful opportunity to counteract the diversity penalty. As research by Michael Saunder and Wendy Nelson Espeland demonstrates, one way to mitigate the harm caused by influential ranking systems is to offer competing rankings. When a marketplace is crowded with multiple ratings, it is too loud for any single rating system to carry the day. No single ranking system will appear authoritative because each just offers information that conflicts with that offered by others.
Right now readers are probably thinking that they can’t swing a dead cat without hitting a school ranking. There are national ranking entities like SchoolDigger and GreatSchools, local magazines with “Best Schools” issues, and even some state department of education websites that provide ordinal ranks or allow users to compare one school to another. The problem, however, is that almost all of these ranking systems use metrics that ignore the achievement gap. The marketplace thus becomes an echo chamber in which wealthier and Whiter schools are rewarded and diverse schools are penalized.
The key, then, is for states to develop truly alternative rankings—ones that are sensitive to the socioeconomic and racial composition of schools. These rankings would neither penalize nor reward demographic diversity. Instead, they would measure a school’s overall quality by comparing the performance of each of its students against the average performance of the student’s demographic peers across the state. Indeed, New Mexico has already started down this road by including a variant of this methodology in its school assessments.
You can read more about this sort of methodology in our article. To be clear, however, these alternative rankings would not freeze expectations for any subgroup of a school’s population. On the contrary, a school’s ranking would benefit from better outcomes for students on both sides of the achievement gap, as well as from outperforming other schools in narrowing the gap. These competing rankings would encourage parents to dig deeper to determine whether a school is right for their children. That analysis would benefit students, schools, and communities alike.
posted by Leora Eisenstadt
In a recent case out of the Sixth Circuit, the court addressed the concept of “racial balance,” finding that an effort to achieve racial balance in disciplinary measures constitutes direct evidence of discrimination. While this is by no means the first case to deal with “racial balance” and discrimination, I am wondering: are all “racial balance” cases created equal?
In Ondricko v. MGM Grand, the plaintiff, a white woman, claimed reverse race discrimination (and sex discrimination) after she was fired from her job as a floor supervisor in the casino. Ondricko was ostensibly fired for participating in a “bad shuffle” at a blackjack table that she supervised. This type of incident is apparently not uncommon, and the court had at least six other similar incidents to compare involving white and black men and women who had engaged in similar conduct and whose discipline varied from several-day suspensions to terminations.
The “smoking gun” in this case is the interesting part. Four months before Ondricko’s incident, a black woman was terminated for her involvement in a similar incident involving unshuffled cards put into play. Around the time that supervisors were discussing the appropriate discipline for plaintiff, two managers had a conversation in which one noted that the black woman’s lawyers had called and wanted to know how the casino was going to handle Ondricko’s case (presumably because they viewed her as a similarly situated comparator). The other manager responded by saying, “do you think I wanted to fire [Ondricko], I didn’t want to fire [her], how could I keep the white girl?” The Sixth Circuit determined, based on this statement, that a reasonable jury could conclude that race was a motivating factor in the decision to terminate. “[I]t is certainly reasonable to conclude . . . that MGM was motivated by a desire to be racially balanced in its terminations for misconduct related to shuffling.” In support of this proposition, the court cited another Sixth Circuit case involving a school board’s attempt to be racially balanced in the hiring of school employees. And that was essentially the end of the court’s analysis.
But Ondricko was not an affirmative action case nor was it a case about achieving racial balance in hiring. Instead, the case was about insuring racial balance in the employer’s discipline of its employees. The Sixth Circuit did not see a distinction between these two types of “racial balance” cases, but I think that is a flawed view. This case may not be the best example because the desire to mete out the same discipline across races was expressed in response to a call from a lawyer but what if that had not been the case? Although race is technically a motivating factor when an employer attempts to be “racially balanced” in its approach to disciplining employees, is that the type of case Title VII is intended to cover? Shouldn’t we, on some level, be encouraging employers to be mindful about race when meting out discipline and to insure that they are treating employees of all races the same? If they don’t, they risk disparate treatment claims for treating employees differently based on race. To call race a “motivating factor” in this type of case and not discuss the potentially legitimate reason for consideration of race seems to be a flawed or, at least, an incomplete analysis.
I think there is an analogy here to Ricci v. DeStefano, in which the Supreme Court recently concluded that an employer’s fear of disparate impact litigation is only a legitimate basis for intentional discrimination when the employer possesses a “strong basis in evidence” for believing that a valid disparate impact claim can be asserted. The Court in Ricci may have made my argument about Ondricko and racially balanced discipline more problematic, but I would be interested to hear others’ views on this issue.
posted by Danielle Citron
Last week, I blogged about Mr. Marvin Wilson’s capital sentence, scheduled for today, and the Texas Court of Appeals’ egregious replacement of science with literature to determine Mr. Wilson’s mental capacity. John Steinbeck’s son, Thomas Steinbeck, has released the following statement about the Marvin Wilson case and the Briseño decision, which cites his father’s work:
”On behalf of the family of John Steinbeck, I am deeply troubled by today’s scheduled execution of Marvin Wilson, a Texas man with an I.Q. of 61. Prior to reading about Mr. Wilson’s case, I had no idea that the great state of Texas would use a fictional character that my father created to make a point about human loyalty and dedication, i.e, Lennie Small from Of Mice and Men, as a benchmark to identify whether defendants with intellectual disability should live or die. My father was a highly gifted writer who won the Nobel prize for his ability to create art about the depth of the human experience and condition. His work was certainly not meant to be scientific, and the character of Lennie was never intended to be used to diagnose a medical condition like intellectual disability. I find the whole premise to be insulting, outrageous, ridiculous, and profoundly tragic. I am certain that if my father, John Steinbeck, were here, he would be deeply angry and ashamed to see his work used in this way.”
Mr. Wilson’s scheduled execution has been condemned by numerous prominent groups and organizations, including the American Association on Intellectual and Developmental Disabilities, Amnesty International, Human Rights Watch, Texas Senator Rodney Ellis, Texas Representative Lon Burnam, and others. The New York Times, and the Dallas Morning News have editorialized that the execution must be stopped.
Now, the Supreme Court needs to step in and stop the execution.
posted by Leora Eisenstadt
As I mentioned in my prior post, I am thinking a lot right now about the intersection between identity and linguistic meaning as it impacts employment discrimination. In my last post, I wrote about the Seventh Circuit’s view of the word “bitch” and its failure to mention the relevance of the gender identity of the speaker of that word when considering its contextual meaning. I recently posted a draft of my article on this topic, “The N-Word at Work: Contextualizing Language in the Workplace,” on SSRN. The article primarily deals with the “n-word” but makes the broader point that linguistic meaning is a product of numerous contextual factors including the racial, gender, religious, etc. identity of the speaker and listeners.
“The N-Word at Work” argues that there is a widening gap between the use and meaning of words in modern American culture and courts’ treatment of those words. This is particularly true in the case of derogatory slurs and phrases but is equally true for discriminatory language in general. For example, in American culture, it is a virtually universally accepted reality that a word, like the “n-word,” can have horrific or endearing meanings depending on the identity of the speaker and other contextual factors. There is a striking difference between a white man using the word with his colleagues and a black man using it among his friends. But given Title VII’s prohibition of different treatment on the basis of race, the white man’s use of the term raises difficult questions about whether he can claim protection from discipline under Title VII’s reverse race discrimination jurisprudence.
Nonetheless, both the legal literature and judicial system have largely ignored this problem of language in discrimination cases. Perhaps sensing an emerging problem in the lower courts, in its 2006 decision in Ash v. Tyson, the Supreme Court devoted a single, vague sentence to the meaning of language in discrimination cases. Despite this, the problem persists among appellate and district courts alike.
My article calls attention to this issue by examining the uses and meanings of discriminatory language in modern culture and advocates a theory of meaning that relies on the context in which it is used, the identity of the user, and the social, historical, and cultural framework in which the language developed. The article highlights the mistreatment of language by trial and appellate courts and tracks the troubling history of Ash, which was finally resolved in December 2011 after two trials, a trip to the Supreme Court and four reviews by the Eleventh Circuit. Finally, the article suggests solutions to this seemingly intractable problem, including the need to (1) recall the purposes of anti-discrimination law and the permissible non-literal applications of that law, and (2) permit and encourage the use of extra-legal expert testimony akin to social framework evidence that could translate the cultural realities of language for courts.
Any comments on the topic in general and the solutions I offer would be helpful as I am currently revising the article and am working on my next project, which deals with the changing nature of identity and the “protected class” paradigm in discrimination law.
posted by Danielle Citron
My colleague (and guest blogger) Sherrilyn Ifill has an insightful post on Anne-Marie Slaughter’s attention-grabbing Atlantic piece and future book on the silly notion of “having it all.” As Professor Ifill’s post makes clear, Slaughter’s lament captures a microscopic part of the problem–most working women, especially minorities, cannot remotely have any part of the illusory promise. Professor Ifill calls upon professional women, the 1%, to help the plight of the other 99% of working women with kids, because they can and because they should. Professor Ifill’s post on the relevance of legal scholarship rightly captured lots of attention, and this post should too.
posted by Leora Eisenstadt
I am thrilled to be guest-blogging for Concurring Opinions for the month of August. For my first post, I thought I would draw your attention to an interesting case out of the Seventh Circuit last month. In Passananti v. Cook County, the court considered a hostile work environment sexual harassment claim brought by an investigator for the Cook County Sheriff’s Department. The primary issue on appeal was whether the “frequent and hostile use of the word ‘bitch’ [was] a gender-based epithet that contributed to a sexually hostile work environment.” In other words, is “bitch” always sexist?
Putting aside the use of the word in dog-training circles, you might be wondering how this word could possibly not be sexist? It turns out that the Seventh Circuit, in a prior case, actually concluded that the use of the word was not based on sex but rather on personal animosity that “arose out of an earlier failed relationship between the plaintiff and the harasser.”
But in Passananti, the Seventh Circuit reversed the lower court, finding that the mere use of the term in this case, without other gendered words, is sufficient for a finding of sexual harassment. And the court, quite reasonably, pointed out that “when gender-specific language is used in the workplace . . . context is key.” A laudable approach until you look one step further at the specific context that the court looked to for help here: “The jury heard testimony that Sullivan used the word “bitch” regularly in reference to the plaintiff. He did not use the word in jest, but instead used it together with his threats against Passananti’s employment.” Not exactly convincing. We are supposed to understand that the term is gendered because he didn’t use it in jest and was threatening her employment?
Most of us would agree that the supervisor’s use of the word “bitch” in this case was gender-derogatory for one simple reason: he is a man, using a gendered word, against a woman, and there is no other explanation for its use. Can the term have different meanings in other contexts? Absolutely. When women use it amongst themselves, for one, the term can be endearing or playful. But it is rarely benign when spoken by a man and directed at a woman. But nowhere in the court’s lengthy discussion of context does this simple truth appear. Why is the court so hesitant to name this reality – that linguistic meaning is the product of multiple contextual factors, including, importantly, the identity of the speaker?
I’ll save additional discussion and some possible answers for a later post. Suffice it to say, I am thinking a lot about this question right now and have just posted a draft of my article on the topic on SSRN. I’ll discuss the article in a later post but for now here’s the link to The N-Word at Work: Contextualizing Language in the Workplace.
posted by Sarah Waldeck
Those in legal education are familiar with the deleterious effects of the U.S. News rankings, but have not paid much attention to similar popular rankings of elementary, middle, and high schools. Because perceptions of public school quality often dictate where parents of school-aged children choose to live, these rankings are tremendously important.
My colleague Tim Glynn and I have recently examined rankings by private entities of schools in Illinois, New Jersey, and Ohio, and sampled school report cards from 18 states. Our analysis, available here, demonstrates that school rankings are neither accurate nor neutral measures of quality. Instead, rankings penalize socioeconomic and racial diversity and are biased toward wealthier and Whiter schools.
Most rankings use a student body’s overall performance on standardized proficiency tests to gauge school quality. This ignores the achievement gap—the well-documented phenomenon that, on average, wealthier students outperform poorer students on these tests and Asian and White students outperform Black and Hispanic students. The achievement gap is not inevitable, and educators are working hard to close it. But while the gap persists, wealthy and White schools will almost always have higher aggregate proficiency scores and thus outrank schools with a diverse mix of students. And that’s true even if a particular school serves each subgroup of its student population better than the higher ranked schools do.
This diversity penalty exists across popular school ranking systems in all areas of the country. Consider the website SchoolDigger and its rankings of New Jersey and Illinois high schools. Millburn High School—located in an affluent northern New Jersey town and often described in the media as one of the best high schools in the state—ranked 22 for tested year 2010. (The top spots were held by magnet schools that pre-select their students based on academic achievement.) The high school in neighboring South Orange-Maplewood—a far more socioeconomically and racially diverse community—ranked 179. But isolating performance at these two schools by demographic subgroup creates a very different impression of relative school quality. For example, when the two schools are re-ranked based just on the test scores of White students, they are in a virtual dead heat. The high school in Montclair, another nearby diverse community, performs comparably. Similarly, in Illinois, New Trier Township High School—which draws students from several affluent Chicago suburbs—ranked fifth for tested year 2010. Nearby Evanston High School—located in a far more diverse community—ranked 126. But when the two schools are re-ranked in ways that account for the achievement gap, they are essentially tied. Oak Park & River Forest High School, another diverse Chicago suburban school, is competitive as well. This pattern repeats itself in different years and different states and for elementary schools as well as high schools.
Parents should care about more than just the performance of their child’s demographic peers. But rankings that rely on aggregated scores are a misleading indicator for all demographic subgroups, including low-income students and historically-disadvantaged minorities. The problem is not that disadvantaged subgroups drag down aggregated test scores. Rather, by lumping all students together without regard for socioeconomic and racial differences, rankings reveal little about how a school actually serves its student population.
Because of the achievement gap, diverse schools in which both disadvantaged and advantaged students outperform their demographic peers will often still have lower aggregated proficiency scores—and hence lower rankings—than schools with mostly wealthy and White students. The rankings therefore penalize diversity and reward wealth and White racial homogeneity. Parents who rely on rankings will conclude that wealthy and White schools are better, even when the statistics show their children would do just as well or better in a diverse school.
Many parents see the value of diversity and would happily opt for schools that are both diverse and academically strong. And integrated learning environments benefit all students. But popular school-ranking systems suggest, contrary to reality, that academic strength and diversity seldom co-exist. When parents choose school districts based on rank, those with means will select away from diverse schools and the neighborhoods in which they are located. This distortion of local housing markets contributes to school and neighborhood segregation and may help explain why highly diverse communities are so rare.
School report cards contain data about demographic subgroup performance, and some private ranking systems also make this information available. But because the disaggregated data is usually buried beneath the headlines, many parents do not focus on it. Moreover, disaggregated data does not provide what many parents want—a bottom-line assessment of overall school quality.
Given their popularity, rankings are not going to disappear anytime soon. The question, then, is how to dampen their damaging effects. More on that in a later post.