The main thrust of Ricci focused on the disparate impact issue and its implications will likely be worked out in Briscoe v. City of New Haven, a disparate impact case brought against the City because it has now used the test scores challenged in Ricci. In Ricci, the City argued that its decision not to use the test scores was made to avoid the risk of disparate impact liability to the African-American testtakers who would [...]]]> UPDATE: Seven African-American testtakers in Ricci have moved to intervene in Ricci, which is back at the district court for implementation of the Supreme Court decision. Also, African-American testtakers have filed disparate treatment and disparate impact discrimination charges with the EEOC. All this reported in the Connecticut Employment Law Blog, www.ctemploymentlawblog.com/2009/11/articles/decisions-and-rulings/black-firefighters.

The main thrust of Ricci focused on the disparate impact issue and its implications will likely be worked out in Briscoe v. City of New Haven, a disparate impact case brought against the City because it has now used the test scores challenged in Ricci. In Ricci, the City argued that its decision not to use the test scores was made to avoid the risk of disparate impact liability to the African-American testtakers who would not be promoted if the test scores were used.  The Court conceded, as did all the parties, that the use of the test scores would have resulted in a disparate impact on African-American testtakers. Using the “pass rate,” or cutoff score that was set for the test, less than 80% of the minority testtakers passed. More important, the actual use of the test among those who passed would have excluded from immediate promotion all the African Americans and all but two of the 22 Hispanic testtakers. (Three African Americans might have some chance for promotion if new openings occurred in the future during the life cycle of the test.) With that prima facie case of disparate impact discrimination conceded, the focus moved to the business necessity and job relatedness affirmative defense and the plaintiff’s surrebuttal possibility of showing that an alternative was available that served the interests of the City but resulted in less impact.

Given the posture of the case – using the risk of disparate impact liability as a defense to a disparate treatment claim – the City had the burden to prove that it would not be likely to carry its burden of proving the test’s business necessity and job relatedness or that disparate impact plaintiffs would likely be able to prove an alternative way promote to promote firefighters that had less impact. The Court rejected the arguments that the City had to prove it would actually lose such a disparate impact case or that its good faith belief sufficed. Instead, the City had to have a “strong basis in evidence” for believing it would be liable for disparate impact discrimination. In other words, it should be somewhat easier for the City to win the issue of its potential risk of disparate impact liability than it would be if disparate impact plaintiffs actually had to prove the City liable for disparate impact discrimination.

The major focus of the Court turned to whether the City showed it had a strong basis in the evidence that the test was neither “job related for the position in question [nor] consistent with business necessity.” Long story short, the City had spent a lot of money hiring a test consultant who did an analysis of the lieutenant and captain jobs and then drafted a written test asking questions about information relevant to the jobs. Instead of jumping from job analysis to test writing, the next step should have been, at least under the EEOC’s Uniform Guidelines on Selection Procedures, deciding what kind of test should be constructed, if any, and what strategy should be used to validate the test. Under the classic approach established by the professional standards of industrial psychologists, a pen-and-pencil written test for a job that did not require the workers to take such tests as part of the job would have to be validated using criterion-related validation.

Criterion-related validation would require giving the test, hiring all the testtakers, doing a subsequent evaluation of their job performance and then running a correlation coefficient to determine whether the test scores correlated with their subsequent job performance scores. Since criterion-related validation is not used out in the real world, the City’s test consultant simply argued that the written test was content valid, i.e., that the written test was a sample of the lieutenant and captain jobs even though test taking was not part of the job.

Relying on content validation, even though it technically was inappropriate for this written test, would not be not risky if the City had been sued for disparate impact discrimination. Basically, the lower courts have upheld pen-and-pencil tests as content valid even though the job did not require workers to take pen-and-pencil tests as long as the defendants had spent some real money constructing and administering the tests and the test questions asked about the job. So, given the judicial abandonment of the professional test validation standards and if business necessity and job relatedness were the only issues, the City would have prevailed on its affirmative defense. With the test being held to be validated, the City could use it. So, on the issue of the validity of the written test, it is no surprise that the Supreme Court found as a matter of law that the test was job-related and justified by business necessity. If that was the only issue, the City would lack a “strong basis” in evidence that it faced disparate impact liability if it had used the test results.

But, even if a defendant proves its written test is job-related and justified by business necessity, the plaintiff has one more bite at the apple. That is by showing that the employer refused to adopt an available alternative that had less disparate impact and served the employer’s legitimate needs. The Court did discuss this and, in light of the weak “available alternative” authority that has been developed in the lower courts, it is not surprising that it found that the City lacked a “strong basis” in evidence that potential disparate impact plaintiffs would prevail on their available alternative surrebuttal claim. While shifting the weighting of the written and oral scores to reduce reliance on the written part of the exam would be an alternative that the Court indicated would have reduced the test’s disparate impact, that was not enough to establish that the test was illegal. The Court found that the City produced no evidence to show that a different weighting would be equally valid in determining who was qualified. In other words, an alternative that reduced the impact of the test was a necessary but not sufficient condition for this surrebuttal stage. There would also have to be a strong basis in the evidence that a change in weighting the scores would have adequately served the employer’s interests. While there was some testimony before the City when it was making its decision whether or not to use the test scores that the City of Bridgeport had reduced the disparate impact of its written exams by changing its weighting with an oral score, the City did not have before it any evidence that doing this would serve the City’s legitimate interests. This is a bit debatable since the claim was made that the revised system used by Bridgeport worked just fine. All in all, applying the prevailing lower court authority to this pen-and-pencil exam, it was likely that the City would not have a strong basis in evidence that it would be liable if it used the test scores. In sum, the Court pretty much applied the prevailing authority from the lower courts regarding job-relatedness, business necessity and available alternatives in deciding that the City would have won, not lost, a disparate impact challenge if it had used the test scores for promotion.

This is where the recent, post-Ricci disparate impact claim, Briscoe v. City of New Haven, comes in. Plaintiff, an African American firefighter who took the test at the same time as the Ricci plaintiffs, claims that he would have been promoted if the weighting were changed and that the weighting of 60/40 favoring the written component had a disparate impact on African Americans. Further, he claims the City knew, even before it decided to use a written test for promotions, that using this 60/40 weighting would have a disparate impact. Nothing was done about the weighting issue because it was a longstanding feature of the collective bargaining agreement between the City and the firefighters’ union even thought the existence of that contract obligation would not be a defense to a disparate impact claim. Briscoe’s claim of impact is that, of the 77 candidates for the lieutenant position, he scored the highest on the oral part of the exam, but his overall score using the 60/40 weighting left him 24^th on the list and thus not eligible to be promoted. His complaint alleges:

“The City did not believe that the 60 percent weighting that it required was job related, and it knew that the weighting would have a disparate impact on African-American candidates: for example, on the lieutenant exam immediately preceding the 2003 exam, the African-American candidates as a group performed substantially better than the white candidates on the oral exam, but they were scored much lower overall because of the 60 percent weighting given to the written test.”

The job-relatedness of the written test, as decided in Ricci, is irrelevant to Briscoe’s claim because he focuses on the impact and job-relatedness of the weight given to the written test scores, not the test itself, when those scores were combined with the oral scores to rank order those who would be promoted. The claim relies on Connecticut v Teal, where the Court upheld a disparate impact challenge to part of an overall selection process – the use of a written test – even though there was no disparate impact resulting at the end of the whole selection process. In Teal, African-American plaintiffs had flunked a written exam and so were not eligible to continue further in the selection process. Because of the impact that the written test scores had in the overall process, they could challenge the test even though when the hiring decisions were finally made there was not a disparate impact on African Americans among those hired.  

Briscoe tries to escape Ricci entirely by making his disparate impact based on fact that the liability of the City is triggered by events that all occurred before the test was administered, before the consequences in terms of the scores of different groups were known and before the City decided not to use the test results because it knew the racial consequences of using the scores. Thus, the argument will be whether or not Ricci has any relevance because Ricci’s focus was at a time after the test had been given, its racial impact was known, including the racial composition of those who would be promoted if the scores were used. In Ricci, Justice Kennedy seems to emphasize that the case focuses on what happened once the test was given.

“Nor do we question an employer’s affirmative efforts to ensure that all groups have a fair opportunity to apply for promotions and to participate in the process by which promotions will be made. But once that process has been established and employers have made clear their selection criteria, they may not then invalidate the test results, thus upsetting an employee’s legitimate expectation not to be judged on the basis of race. . . . Title VII does not prohibit an employer from considering, before administering a test or practice, how to design that test or practice in order to provide a fair opportunity for all individuals, regardless of their race.”

That suggests that when the City was planning to use the written test it was required to look, rather than being restrained from looking, at the potential disparate impact of its subsequent use. In other words, Ricci only comes to bear once a test has been given and the successful testtakers have an established reliance interest in its use.

Assuming that the earlier time frame does makes Ricci irrelevant to his claim, Briscoe focuses his attack on the disparate impact of the weighting of the written and oral scores and not the rest of the test as it was constructed by the test consultant. Again, the complaint alleges that:       

“If the oral exam were weighed 60 percent and the written test 40 percent instead of the other way around, the plaintiff would be ranked ninth instead of 24^th and would be promotable. . . . If the written test were not considered [at all], . . three African-Americans would be in the top 12, and the plaintiff would be at the top of the list.”

Briscoe looks more deeply at the issue of what caused the disparate impact in the City’s promotion process than the simple recognition in Ricci that, at the end of the day, the City’s selection process caused a disparate impact on the basis of race. Based on Teal, the weighting element of the selection would appear to make out a prima facie case of disparate impact discrimination. That was not addressed in Ricci because that case focused on the justification, the job-relatedness, of the written test itself, not how the test results were to be used. 

If Briscoe establishes a prima facie case on the weighting issue, the burden of persuasion shifts to the City to demonstrate that the weighting formula it used was “job related for the position in question and consistent with business necessity.” The only evidence in Ricci about the weighting was whether it was an available alternative, an issue upon which the City failed to carry its burden of persuasion. That does not address the business necessity issue as to the weighting at all. And, even if the City did prove that the weighting formula it used was job related and consistent with business necessity, that should still leave to plaintiff the chance to prove that a different weighting formula was an available alternative that the City knew of and failed to adopt. Just because the City failed to carry its burden on that issue in Ricci, would not seem to bar Briscoe from carrying his burden unless the Ricci Court meant that, as a matter of law, the alternative of changing the weighting was not an available alternative. 

While Ricci seemed to adopt the weakened use of the professional test validation standards to justify a written test as job-related for jobs that did not involve test taking, that decision may not foreclose Briscoe. And, of course, if Briscoe is successful, that will have no negative impact on the Ricci plaintiffs, who have been and will be promoted using the results of the test that the Ricci plaintiffs and Briscoe took. If the City failed to carry its burden of proving that the weighting of the written and oral scores was job-related and consistent with business necessity, Briscoe would be entitled to a remedy. Presumably, the City would be ordered to adopt a new promotion process that would either not result in any disparate impact or, if it did, was job-related and consistent with business necessity. Briscoe would then be subjected to the new process and, if he showed himself to be qualified, would get the first opening for lieutenant after the cycle of use of the Ricci test was completed. He should also receive backpay plus front pay until he gets his promotion, with that determined by the difference between his earnings as a firefighter and what he would have earned as a lieutenant.  If, however, the City proved the test was valid but Briscoe proved on surrebuttal that an alternative was available, Briscoe would have to show that he was qualified if that alternative was used. If he did, he would be entitled to promotion once the Ricci test had run its course and back and front pay until that happens.

Given the success of the Ricci plaintiffs’ disparate treatment claim and assuming Briscoe will be successful on his disparate impact claim, the City of New Haven would appear to be damned for not considering the disparate impact before it set up the promotion procedure and then also damned for trying to take account of that impact once the test was given and the reliance interests of the successful testtakers had been established. But relief to the Ricci plaintiffs is not in conflict with relief to Briscoe: The Ricci plaintiffs get the promotions earned by their test scores and Briscoe would likely get the next opening of a lieutenant slot after the cycle for the use of the test had ended.

With that result, there would certainly be strong incentives for employers to investigate the potential disparate impact of any employment practices before using it and either modifying it to avoid that impact or be confident that its use can be shown to be job-related with consistent with business necessity with no alternative available to its use. Further, once the employment practice is implemented and there exists identifiable people who have legitimate expectations that their success pursuant to that practice would be followed, then it is likely too late for employers to refuse to honor those expectations. To fail to use the results of the practice would trigger disparate treatment liability unless the employer had a “strong basis in evidence” that it would be liable for disparate impact discrimination. One wonders, of course, whether an employer can prevent the creation of any expectations, or reliance interests, by making it clear from the start that the employer reserves the right not to use the results of the employment practice it uses.

All three volumes focus on Johnson’s ambition for power and leadership. Master of the Senate begins with the history of the Senate and its role in our Constitutional structure as the place where dramatic political and social change goes to die – by design. Even after Senators were directly elected, the longer terms, the rules of the Senate, the [...]]]> I am almost done with Robert Caro’s Master of the Senate, his magnificent biography of the years Lyndon Baines Johnson served in the United States Senate. This is the third volume of his-yet unfinished biography of the life of LBJ. This work in progress is now approximately 2500 pages long and has not even covered the years where LBJ was Vice-President and President.

All three volumes focus on Johnson’s ambition for power and leadership. Master of the Senate begins with the history of the Senate and its role in our Constitutional structure as the place where dramatic political and social change goes to die – by design. Even after Senators were directly elected, the longer terms, the rules of the Senate, the role of seniority, committee chairmanships, the ease of filibuster, and the difficulty of cloture have made the Senate a unique institution.

Caro focuses mostly on two developments in the years between 1948 and 1960 before Johnson was elected Vice-President. First, was his meteoric rise as the first (and possibly last) Senate Majority Leader to wield true power. Second, was his burning ambition to be the first Southerner to be elected President since the Civil War.

These two developments combined in Johnson’ epic struggle to pass the Civil Rights of Act of 1957. Out of burning ambition, but also a complicated attitude toward race that was different than most Southern Senators, Johnson wanted, needed, some, any, civil rights legislation to lay the foundation for a run for the White House in 1960. Passing such legislation meant a weak enough bill so the Southern Bloc (his bloc as Caro makes clear in detail) wouldn’t filibuster, and yet enough of a bill that the Republicans, Northern liberals, and Western Democrats could support. To ensure passage, and no filibuster, Johnson had to stitch together a coalition that had never been successfully created on civil rights from the Jim Crow era on.

Caro lays out the cajoling, wheeling, dealing, strong arming, and compromising in the fight for the civil rights bill as well as the complicated linkages between the civil rights bill and other legislation to obtain LBJ’s winning coalition. Among other things, Johnson brokered a deal between Western Democrats who wanted public power and conservative Southern Democrats who wanted the most watered down civil rights bill possible. The Southerners voted for a public power bill they had previously opposed, but did not filibuster the emerging civil rights bills once key changes were made. The Southerners opposed the bill on the floor and voted against it, but would never used the one weapon which could have killed it entirely. The Western Democrats got their public power (at least in the Senate) and supported watering down the civil rights bill which would not hurt them politically back home in that era. Northern Democrats eventually were reconciled to the fact that some bill was better than nothing and Southern Democrats were reconciled to the fact that some bill was inevitable.

Does this remind you of anything currently going on in the Senate? We are seeing the same type of struggle now play out in the Senate over health care reform. Only a fraction of the sausage making is taking place in public, but the same issues of power, leadership, and strategy seems to be unfolding. Some bill, any bill, will probably ultimately pass. Obviously Harry Reid is no LBJ, but the demographics of the House, Senate, and White House are different enough that something is likely to emerge.

But the issues of power, leadership, and strategy remain. Is some bill better than no bill? Is this the first step to more comprehensive reform down the road? Is the watering down of the public option to build coalitions within the Democratic Party, and perhaps a couple of Republicans, leadership, weakness, or just rent seeking? While we will never know, what would LBJ have done on health care, and will we ever see the likes of him as a legislative leader again?

***
Thanks to Danielle, Dan, and the rest of Concurring Opinions for the chance to blog for the month of October. I look forward to the new group of guest commentators for November including my Loyola-Chicago colleague Mike Zimmer.

A less known aspect of the now failed bid was the connection between the bid and one of the landmark cases taught in most civil procedure, civil [...]]]> By this point, everyone probably knows that Chicago finished last among the finalists for the 2016 Summer Olympic and Paralympic Games. Truth be told, I am personally glad that Rio got the games, but civic pride had me hoping that we would come in second, rather than last. I certainly knew a few people who really wanted the games for our fair city, but most actual Chicagoans I talked to were neutral to negative about the whole enterprise, but quite fascinated by the possibility of being able to rent out their homes to tourists for exorbitant sums.

A less known aspect of the now failed bid was the connection between the bid and one of the landmark cases taught in most civil procedure, civil procedure, and complex litigation courses. A temporary 80,000 seat stadium was planned for the opening and closing ceremonies and certain track and field events including the finish of the marathon. The stadium was to have been constructed in Washington Park, a south side neighborhood just west of Hyde Park and the University of Chicago campus. The park would have been the site of massive improvements and some sort of smaller permanent facility would have survived the end of the Games.

The residential portion of Washington Park immediately to the south of the actual park was the site of one of the many ugly incidents in the early part of the 20th century as many Chicago neighborhoods sought to maintain segregated communities in the face of the tremendous expansion of the African-American population that came to Chicago seeking work. At one time, the Washington Park neighborhood was all white and subject to a racially restrictive covenant. In the depths of the depression, a white home owner sold to a middle class black family. The family endured harassment beyond description as angry mobs howled outside their home and the family faced daily threats and numerous incidents of vandalism and violence.

On the legal front, there were also attempts to enforce the racially restrictive covenants that were still lawful in the days before the Supreme Court’s 1948 decision in Shelley v. Kramer. But first, the white land owners had to establish that the covenant was enforceable as a matter of contract law. The covenant was to take effect only when 95% of the owners had executed it. An action in the Illinois courts held that the requisite percentage of owners had signed the covenant. Then certain white home owners sought to enforce the covenant against the new black owner arguing that he was bound by the results of the earlier state court litigation.

By now, you may have figured out that I am describing the landmark case of Hansberry v. Lee. In the United States Supreme Court, Justice Stone wrote on behalf of a unanimous court (three Justice concurring in the result). As my civ pro students can tell you, the case holds that Mr. Hansberry could not be enjoined from purchasing or living in his home as a result of the earlier litigation, since he had been neither a party in the earlier case nor adequately represented by either side in what had amounted to a class action under Illinois law. The case matters today for all manner of principles we explore at length in civil procedure, class action, and mass litigation courses, but it also stands as an important early landmark on the way to the later civil rights rulings of Shelley v. Kramer and eventually Brown v. Board of Education.

To better understand the personal issues at stake for the Hansberrys throughout this ordeal, we have the moving play A Raisin in the Sun by Lorraine Hansberry, who was a young child when her family moved into their new neighborhood. For a detailed and sensitive history of the underlying facts and the convoluted sets of litigation leading up to Justice Stone’s opinion, we are also fortunate to have Jay Tidmarsh’s chapter on the case in Civil Procedure Stories.

I would like to think that the Olympic Games would have done some good for Washington Park and all the surrounding neighborhoods that Mr. Hansberry and others suffered so greatly to integrate, but as a somewhat cynical Chicagoan I suspect that the burdens would have shared by the public at large and the benefits enjoyed by a privileged few. But if you’re ever in town, I hope you will consider visiting Washington Park and seeing where an important part of legal history took place and where a very different type of sporting history was nearly made this past week. If you get there in the next two weeks, there is even a pretty good circus on the site of where the Olympic Stadium would have been.

Volume 56, Issue 6 (August 2009)

Articles

Overcoming Overdisclosure: Toward Tax Shelter Detection (pdf) Joshua D. Blank

First Amendment Enforcement in Government Institutions and Programs (pdf) Gia B. Lee

Ezra Pound’s Copyright Statute: Perpetual Rights and the Problem of Heirs (pdf) Robert Spoo

Comments

Nonwaiver Agreements After Federal Rule of Evidence 502: A Glance at Quick-Peek and Clawback Agreements (pdf) Jessica Wang

Narrowing the Definition of “Dwelling” Under the Fair Housing Act (pdf) Karen Wong

Addressing Youth Bias Crime (pdf) Jordan Blair Woods

The basic criticism of racial profiling is simple.  A police stop for “Driving while  Black” or “Driving while Brown” was unaccaptable as well as unlawful.  Police should stop suspects based on individualized suspicion rather than reliance on statistical group probablities.  Minorities for years had been complaining of profiling and it appeared that the political will to attack it may have come.  (The Supreme Court in Whren v. United States (1996) had undercut efforts to end [...]]]> Remember when racial profiling was an evil that President Bill Clinton, George W. Bush, and then-Attorney General John Ashcroft claimed would soon be ended.  In 2000, Democratic candidates Al Gore and Bill Bradley sparred in a debate in the Apollo Theater in Harlem about who as President would be tougher on racial profiling.

The basic criticism of racial profiling is simple.  A police stop for “Driving while  Black” or “Driving while Brown” was unaccaptable as well as unlawful.  Police should stop suspects based on individualized suspicion rather than reliance on statistical group probablities.  Minorities for years had been complaining of profiling and it appeared that the political will to attack it may have come.  (The Supreme Court in Whren v. United States (1996) had undercut efforts to end racial profiling in traffic stops through the Fourth Amendment and left a tootless Equal Protection remedy in its place.) Many police departments created policies on profiling; others began to collect  data on traffic stops.  A much-publicized report from New Jersey revealed disparities in the searches of the vehicles of minorities.

Were the promises to end racial profiling kept? Apparently not.  A report released by the American Civil Liberties Union and the Rights Working Group at the end of June concluded that widespread racial profiling by law enforcement remains a pervasive problem throughout the United States.

What happened?  The persistence of racial profiling should be no real surprise.  As we all know, law enforcement is difficult to reform.  Moreover, the tragic events of September 11, 2001 led to a resurgence of support, including by some prominent academics,  for the profiling of Arabs and Muslims in the newly-proclaimed “war on terror.”  Special registration and a whole plethora of immigration and other security measures targeted Arab and Muslim noncitizens.

Given the reliance on statistical probabilities based on race, national origin, and religion in the “war on terror,” it proved to be difficult to continue the full court press on eradicating racial profiling in ordinary criminal law enforcement.  The so-called logic of profiling allows statistical probabilities to be considered in terrorism and criminal law enforcement.  The result was that the  challenge to racial profiling ebbed.

It should be no surprise that, with the resurgence in racial profiling in the “war on terror,” little has been accomplished since 2001 in the efforts to end racial profiling in ordinary criminal law enforcement.

And the problem of profiling is not limited to the “war on terror” and ordinary criminal law enforcement.  Racial profiling also taints immigration enforcement, with many Latinos and Asian Americans (citizens as well as immigrants) claiming that they are too often profiled by immigration authorities for being undocumented immigrants.  This is a particular problem in the Southwest in the U.S./Mexico border region.  The Supreme Court has sanctioned this practice.  In the 1975 decision of United States v. Brignoni-Ponce, the Court authorized the consideration of “Mexican appearance” as one factor in an immigration stop.  Since that decision, “Mexican appearance” has come to dominate immigration enforcement.  Latinos regularly complain of profiling — as well as other forms of abuse — at the hands of Immigration and Customs Enforcement.   Click here for analysis of the Brignoni-Ponce decision.

The bottom line is this.  Racial profiling remains central to law enforcement in the United States.  Is there the political will to eradicate racial profiling?   Or is the maintenance of racial profiling on the streets of America another collateral impact of the nation’s “war on terror”?

1.  Demographic questions

a.  What is your approximate age?

b.  What is your gender?

c.  What is your race?

d.  What is your level of education?

2.  Survey questions.  Please state what you consider your level of knowledge about each of these events.  Please state whether you have “no knowledge of the event,” “little knowledge of the event,” (you [...]]]> I’m curious as to what level of knowledge people have of some important Jim Crow events. If you’ve got five minutes, please make a comment, to fill this out this brief, completely unscientific survey.  Feel free to do so anonymously or pseudonymously.  I’m not trying to embarrass anyone, I just wonder to what extent certain events are known or unknown, and this is enough to give me some general sense.

1.  Demographic questions

a.  What is your approximate age?

b.  What is your gender?

c.  What is your race?

d.  What is your level of education?

2.  Survey questions.  Please state what you consider your level of knowledge about each of these events.  Please state whether you have “no knowledge of the event,” “little knowledge of the event,” (you have heard it mentioned, but don’t know what it’s about), “some knowledge,” or “lots of knowledge.”  (Yes, it’s not a great methodology, but it’s enough for this purpose.)

Okay, here goes.  Please state what you consider your level of knowledge of:

a.   The Colfax Massacre (a.k.a Colfax Riot)

b.  The Wilmington Race Riot (a.k.a. Wilmington Insurrection)

c.  The St. Louis Race Riot (a.k.a. East St. Louis Riot)

d.  The Tulsa Race Riot.

e.  The Rosewood Massacre (a.k.a. Rosewood Race Riot)

f.  The Greensboro Massacre.

That’s it.  Thanks!

Over the past several years, two prominent studies have demonstrated that race matters to employers in hiring. In one study, published in 2003 in the American Journal of Sociology, employers responded negatively to Black [...]]]> On the heels of Obama’s election, many Americans are wondering whether race really matters anymore. Are we on the edge of a color-blind society? Have whites moved beyond race as a per se factor in shaping preferences? A study titled “In the Eye of the Beholder: Racial Beliefs and Residential Segregation” in the latest volume of the Du Bois Review reminds us that race continues to matter, and that it continues to matter in part as a consequence of whites’ racial stereotypes and negative racial beliefs.

Over the past several years, two prominent studies have demonstrated that race matters to employers in hiring. In one study, published in 2003 in the American Journal of Sociology, employers responded negatively to Black applicants (White applicants who reported a criminal record, for example, were more likely to be called back for a second interview than were Black applicants with no criminal record); in another, published in 2004 in the American Economic Review, they responded negatively to African American-sounding names on resumes (White applicants on average had to send out ten resumes to get a call for a job interview; Black applicants with a resume identical to that of the white applicants, except for name, had to send out fifteen resumes to get a call).

The recently published Du Bois Review study shows a similar reaction to race by whites in the housing market. The researchers constructed videos depicting different neighborhood social-class levels. Each video showed five hired actors as “residents” of the neighborhoods, picking up their mail, talking with each other, etc. For each social-class level, the researchers created videos with exclusively Black residents, with exclusively white residents, and with a mix of Black residents and white residents. The residents were otherwise matched in clothing style, age, and sex; the only difference was their race. See a sampling of the videos.

The finding? From the authors:

. . . . White respondents who saw a neighborhood with only Black residents evaluated it significantly more negatively than similar Whites who saw exactly the same neighborhood but with White residents. The skin color of our resident actors gave White respondents information they used to judge whether the homes were expensive or moderate in cost, whether the neighborhood was safe, whether the schools were good, whether housing prices would likely to go up or stagnate in the future.

Take a close look at this sandal from John Galliano’s runway show for Christian Dior. The carved statuette that forms the heel is reportedly a Masai fertility symbol.

Even setting aside the awkward juxtaposition of a curvy, pregnant woman with teenage fashion models so thin that they may not even be capable of conceiving (a legal issue for [...]]]> Many thanks for the invitation to join you all in blogging at Concurring Opinions! During my visit I’m looking forward to writing about things that are not necessarily part of my law-and-fashion beat over at Counterfeit Chic, but to start off I can’t resist sharing an image from Paris Fashion Week that touches upon – or, rather, walks all over – both fashion and cultural property.

Take a close look at this sandal from John Galliano’s runway show for Christian Dior. The carved statuette that forms the heel is reportedly a Masai fertility symbol.

Even setting aside the awkward juxtaposition of a curvy, pregnant woman with teenage fashion models so thin that they may not even be capable of conceiving (a legal issue for another day), the colonialist image is a disturbing one. Galliano, like many other Western designers, is known to “ransack the world’s closets for inspiration,” as I put it in my first book. Many of the resulting cultural hybrids (to use Naomi Mezey’s term) are extraordinarily beautiful expressions of human creativity that few would wish out of existence, even if greater norms of attribution to source communities should be developed and encouraged. Some uses of others’ cultural products, however, are simply inappropriate. Placing an African religious symbol literally under the heels of predominantly white women on a European runway is one such offensive use. Selling those same shoes to wealthy women around the globe is another.

I’m reminded of an Australian case that I’ve written about and taught, along with Christine Haight Farley and a number of other scholars. Milpurrurru v. Indofurn Pty. Ltd., (1994) F.C.R. 240, involved a rug merchant who appropriated a series of sacred Aboriginal images for his carpets. It happened that in this case the theft was so literal that copyright law provided a remedy. But what about damages for the desecration of the sacred images that had been trodden underfoot? Or the fact that, lengthy as copyright terms are, religious beliefs are likely to outlast them? Or the potential appropriation of religious images that are not the work of a specific living artist but are instead iconic forms, repeated and passed down over time?

To be fair, maybe the admittedly brilliant Galliano or the august fashion house for which he designs consulted authorized Masai representatives and female elders, who freely and without the pressure of economic or other coercion licensed the use of the fertility figure. It could even be their gift to the reproductively challenged pale populations to their north. But I doubt it.

Perhaps the most peaceful resolution of an issue like this one is a demand for mutual inquiry and respect, rather than protective legislation. Moreover, bearing in mind the violent response to Danish editorial cartoons of Mohammed several years ago and the resulting tension between religious demands and freedom of speech, any such legislation would require extraordinarily careful drafting. But if the cultural “owners” of this fertility symbol object to its commercialization, there should be some forum for their concern.

Note that the normal photo was not shown on Fox News; the distorted image was presented as the face of Steinberg. (I’ve embedded the full clip below the fold.)

Can such a distorted depiction give rise to a defamation action? Obviously if the picture were a cartoon, and/or the program a satire or non-news program, creative license lets just about anything go (though some particularly egregious images have [...]]]> At 25, you have the face heredity gave you; at 50, you have the face you deserve; and at Fox News, your features depend on whether you’re a friend or enemy of the network. Or at least that’s how Jacques Steinberg and Edward Reddicliffe must feel after Fox aired doctored photos of them on its news show.

Note that the normal photo was not shown on Fox News; the distorted image was presented as the face of Steinberg. (I’ve embedded the full clip below the fold.)

Can such a distorted depiction give rise to a defamation action? Obviously if the picture were a cartoon, and/or the program a satire or non-news program, creative license lets just about anything go (though some particularly egregious images have sparked resistance). But does a news program have a special obligation to “objectively” present images? And, returning to defamation, is it possible to argue a) that the distorted image is a “lie” about the person it depicts and b) that ugliness (that which distortion seeks to convey) is actionable as something damaging to the person whose image is distorted?

a) As for the idea of “lie” here, consider these arguments about the infamous “darkened OJ Simpson” image on the cover of Time Magazine:

The image on Time was digitally manipulated, making OJ darker and heavily shadowed (in juxtaposition to Newsweek['s image]). . . . Although Time claimed it was a “photo illustration” that served to “show the tragic downfall of an American football hero,” other folks disagreed. Time was charged with: (1) perpetuating the stereotype of “violent” black men; (2) suggesting OJ was guilty; (3) applying digital manipulations to a “news” photo–apparently a real no-no in journalism . . . [But Cara A.] Finnegan . . . challenges those who think the image serves as a “visual argument,” which she defines as a “set of premises, identifiable in the image, leading to a conclusion which is itself present in the image” (236).

Compare the idea that “OJ is guilty” to “Steinberg is ugly.” What does the puff-chinned, big-eared, grotesque-nosed Steinberg image “argue” here? Glenn Greenwald might assimilate it to what he calls “the dominant media theme for the last two decades in our political discourse:”

What matters is that Democrats and liberals are weak, effete, elitist, nerdy, military-hating, gender-confused losers . . .and who merit sneering mockery and derision. Republican right-wing male leaders are salt-of-the-earth, wholesome, likable tough guys — courageous warriors and normal family men who merit personal admiration and affection. . . . [In our] press corps, fantasy easily trumps reality. And our media stars thus . . . cackle in derision at the Democratic weaklings and losers.

Greenwald’s analysis, backed up at length in his latest book, articulates a possible “message” in the Fox News photoshopping. But is it really communication, or manipulation? And if the latter, does it not fit more under the rubric of “subliminal advertising” than defamation?

b) Another challenge to a defamation suit might be whether the image is genuinely harmful to the person’s reputation. The closer one looks at it, the more obvious it becomes that the proportions of the face are impossible. But note that the clip was shown very briefly in its original context, leaving no time to scrutinize it.

What about “ugliness” is “damaging”? Enlightened individuals judge others on the basis of the content of their character, not their looks; but in this respect America may be becoming less enlightened every day. Here some perplexities raised in recent cases about allegations of homosexuality may be relevant. The question is whether, in an increasingly tolerant society, being alleged to be homosexual is still libelous. Two recent cases come out in diametric opposition:

Klepetko v. Reisman, 41 A.D.3d 551 (N.Y. App. Div. 2007) (”The false imputation of homosexuality is “reasonably susceptible of a defamatory connotation” )

Greenly v. Sara Lee Corp., 2008 WL 1925230 (E.D. Cal. 2008) (”[c]ontinuing to characterize the identification of someone as a homosexual [to be] defamation per se [demeans the lives of homosexual persons]“.)

To continue the analogy: just as sodomy laws were only repealed gradually, only in the early 1970s were certain “ugly laws” repealed. One such law ordered that “‘No person who is diseased, maimed, mutilated or in any way deformed so as to be an unsightly or disgusting object or improper person [is] to be allowed in or on the public ways or other public places in this city . . . under a penalty of not less than one dollar nor more than fifty dollars for each offense.”

In conclusion; I imagine that a defamation case would be a tough one for either Reddicliffe or Steinberg, but admittedly I have not researched “defamation by distorted image.” Edward Tufte has documented the damage that “fudged photos” can do to science, but it’s not clear that much can be done about them in the political public sphere.

So what’s to stop the unflattering depiction, already a mainstay of negative political ads, to gradually morph into the photoshopped truthiness Fox has pioneered? Perhaps the only answer is to fight fire with fire; Olbermann might air the work, say, of Kenneth Tin-Kin Hung . . . :

(Hung, still from Because Washington is Hollywood for Ugly People)

One thing is clear: if one side in politics adopts the tactic with impunity, the other side has clearly not read its Schmitt and Niebuhr if it decides merely to “turn the other cheek.”

PS: Here is the clip in context:

And here is Reddicliffe’s transmogrification:

You can subscribe to “Law Talk” using iTunes or Feedburner. You can also visit the “Law Talk” page at the iTunes store. For previous episodes of Law Talk [...]]]> In this week’s episode of Law Talk, we hear from Professor Al Brophy of the University of Alabama Law School. In addition to his fame as a Co-Op guestblogger, Al is a legal historian with a special interest in issues of slavery and race in American law. Al is also interested in issues surrounding debates over reparations and apologies for slavery. In this podcast, he discusses how universities and colleges with links to slavery might deal with these issues, using the example of my own employer, The College of William & Mary.

You can subscribe to “Law Talk” using iTunes or Feedburner. You can also visit the “Law Talk” page at the iTunes store. For previous episodes of Law Talk at Co-Op click here.

It’s an interesting question whether these laws would violate the First Amendment as currently understood. On the one hand, we know from cases like Cohen v. California that the government cannot regulate clothing’s expressive qualities, even when [...]]]> The city of Atlanta, as the Chicago Tribune reported recently, looks likely to join a growing number of cities that have enacted laws regulating saggy trousers as constituting indecent exposure. These laws strike out at the fashion of men wearing their pants off their hips exposing their boxers or women wearing their jeans low so as to expose thongs. Unlike school dress codes regulating hip-hop clothing that have been promulgated in cities like Indianapolis, these laws apply beyond the school context to regulate dress in public.

It’s an interesting question whether these laws would violate the First Amendment as currently understood. On the one hand, we know from cases like Cohen v. California that the government cannot regulate clothing’s expressive qualities, even when such expression contains profanity. On the other hand, notwithstanding the Cohen line of cases, indecent exposure laws requiring people to wear clothes are probably constitutional under some kind of residual (and weak) power to require decency in public. Saggy pants laws form a kind of hybrid case, regulating in terms of indecent exposure on the theory that undergarments cannot be displayed in public, but seem to be directed at the expression of identity through clothing. The harms that these laws seek to remedy are those of personal offense and outrage – something like “I am offended by the dress of that young man over there.” Laws that try to protect hurt feelings from being upset (particularly in public) tend to do very poorly when subjected to First Amendment analysis. Moreover, because saggy pants laws single out a particular fashion for regulation, I would think that they raise serious constitutional problems under the First Amendment. That said, given the murky government power to enact indecent exposure laws, I’d be hesitant to call all saggy pants laws categorically unconstitutional under current doctrine without the text of an actual ordinance and/or facts upon which to apply it.

But putting First Amendment doctrine to one side, I still think saggy pants laws would be a terrible idea. Our clothes can be a form of personal expression – they are one of the most important ways we project our selves and our identities to the world. The government may decide (and be entitled to) regulate the dress of children in school in pursuit of educational objectives generally, but outside that narrow context, it is up to children (and their parents) to decide how they should dress. Indecent fashion statements, like other forms of expression, are not the kinds of things that the government should be wasting its time, energy, and scarce law enforcement resources on. I would imagine that the Atlanta police probably have more pressing problems to deal with than young people (or maybe even the elderly) showing too much thong. There’s also a significant racial component to this issue, as the fashions being scrutinized are inspired and associated with Black popular culture. This is an additional consideration of constitutional magnitude counseling a light regulatory hand here.

I think that in the long run, we’ll look back on this question with the same incredulity that we now regard the fuss over Elvis Presley’s swiveling hips on Ed Sullivan or the long-haired men and short-haired women of the 1960s. Politics has fashions no less than clothing, and I hope this fashion for these kinds of laws will soon go the way of New Wave hairdos and other regrettable fashion mistakes.

The Chinese government’s new restrictions on international adoptions went into effect earlier this week. The new rules require that all adoptive parents be married at least two years (to a person of the opposite sex), that they have at least a high school education, and that their family assets total at least $80,000. Most Americans seeking to adopt internationally have no objection to the educational and financial requirements, possibly because most Americans adopting from China are upper middle class. However, there has been a lot of discussion on the adoption blogs about China’s new age and health requirements. According to the U.S. [...]]]> Thank you for the introduction and the opportunity to guest blog this month. I look forward to everyone’s comments.

The Chinese government’s new restrictions on international adoptions went into effect earlier this week. The new rules require that all adoptive parents be married at least two years (to a person of the opposite sex), that they have at least a high school education, and that their family assets total at least $80,000. Most Americans seeking to adopt internationally have no objection to the educational and financial requirements, possibly because most Americans adopting from China are upper middle class. However, there has been a lot of discussion on the adoption blogs about China’s new age and health requirements. According to the U.S. Department of State, China now requires that all foreigners seeking to adopt be 50 years of age or younger. They also must be free of certain medical conditions such as “mental disorders requiring medication for more than two years, including depression, mania, or anxiety neurosis” or a “Body Mass Index (BMI) of 40 or more.” Persons with severe facial deformities, limb paralysis or dysfunction, or blindness (even if only in one eye) are also disqualified.

Many sending countries place even greater restrictions on foreigners seeking to adopt. In addition, Russia has recently stopped accepting applications from American adoption agencies as it attempts once again to curb rampant corruption in its adoption system. Guatemala has similarly announced that it will impose greater restrictions on international adoptions as it attempts to comply with Hague Convention on Intercountry Adoption. As a result, many Americans must come to terms with the reality that their odds of creating or expanding their families through international adoption anytime soon might be reduced.

A few days ago I got a call from a journalist asking what effect, if any, China’s new restrictions will have on white Americans’ adoptions of African-American children. One might expect that China’s new policies would lead some white Americans who would otherwise have adopted from China to adopt an African-American child. After all, these are families who had already decided to adopt a child of a different race. However, I am not hopeful. As much as I would like to believe that China’s restrictions will lead many more white Americans to seek African-American children, not only from foster care, but from private agencies that place primarily healthy infants who were relinquished voluntarily, I am not sure China’s restrictions will lead to increased demand for African-American children.

First, some families chose to adopt internationally because they wish to avoid the risk that the birth mother or father will later change their minds and attempt to reclaim the child. Although this rarely happens, understandably, some adoptive parents prefer to adopt from abroad where this particular risk might be even lower although the risks of other types of disruptions might be higher. Second, some adoptive parents want to avoid open adoptions which are increasingly common in the U.S. and require the adoptive parents to keep in contact (albeit minimal contact in many cases) with the birth parents.

But let me suggest a third reason—race. Is it possible that some white Americans disqualified from adopting from China might not seek to adopt an African-American child precisely because he is Black? The literature on unconscious racial bias shows that cognitive biases against African-Americans influence employers’ evaluations of applicants’ resumes based on whether they have a “white” name or a “Black” name. Unconscious racial biases also affect the amount of bail set, and even the rate at which NBA referees call fouls against African-American players. Studies have shown that Americans marrying interracially find African-Americans to be the least desirable marriage partners, even when the study participants honestly believed that they had no racial biases. Further, demand for African-American children is significantly lower than demand for children of other races. Indeed, many adoption agencies subsidize adoptions of African-American infants because too few families are interested in adopting these children. The standard fee for adoptions of “Caucasian, Hispanic, Asian-American, or Native-American infants, or any combination thereof” does not apply to adoptions of African-American infants which are discounted as much as 50%. Thus, I ask: Is it possible that unconscious biases against African-American children will keep some white families from providing a child with his “forever family?”

How do persons concerned with racial justice convince people to examine structural racism with the same level of intensity as they devote to incidents such as Nappy-Gate? When idiots like Imus (and Lott and all the other racists du jour) have moments of Freudian slippage, Sharpton, Jackson and others respond; the idiots apologize; and the racist “moments” pass. Victory! But what about the next day? Racism in its structural and individualized forms persists. Is it possible to capitalize on moments like these to bring attention to issues far more dangerous and pervasive than Imus (like conjoined poverty [...]]]> Over at BlackProf, Darren Hutchinson has a good post about the understandably strong response to the comments of shock-jock Don Imus. Here’s a taste:

How do persons concerned with racial justice convince people to examine structural racism with the same level of intensity as they devote to incidents such as Nappy-Gate? When idiots like Imus (and Lott and all the other racists du jour) have moments of Freudian slippage, Sharpton, Jackson and others respond; the idiots apologize; and the racist “moments” pass. Victory! But what about the next day? Racism in its structural and individualized forms persists. Is it possible to capitalize on moments like these to bring attention to issues far more dangerous and pervasive than Imus (like conjoined poverty and racism)? Does intense focus on idiot du jour racism, rather than structural racism, make the latter even more obscure and beyond remediation?

I think this is an extremely important point. Events like the Imus fiasco have multiple pathogenic results. They make millions of people feel good about their petty racisms because “I never would have said anything that stupid and offensive.” They create excellent opportunities for individuals and institutions who promote, or benefit from, racism to speak out against Imus and publicly document their supposed opposition to racism, thus innoculating them against future criticism. Most of all, they obscure potent forms of institutional discrimination by creating the impression that Imus-like comments are the prototypical form of racism that we should all worry about.

Ironically, I fear most the suggestion that events like this reduce racism because they generate an important public debate about race. Any public debate happening in the aftermath of Imus seems to be a sideshow obscuring the main event – institutional racism that lacks fingerprints or soundbites, and operates silently and effectively throughout America’s day to day. The Imus affair reminds me a bit of the aftermath of Megan Kanka’s brutal abduction and killing. As bad as that individual case was, the public debate and legislative response – targeting the comparatively rare child sexual abuser who victimizes strangers- completely obscured the much more significant child sexual abuse problem in America: sexual assaults by close friends and family members and, in particular, step-dads and their equivalents. (Robin Wilson’s article remains a critical piece of this literature.)

As a general matter, if CNN can’t describe an issue in 60 second or less, it’s not a problem our society can acknowledge or address. Deep seated societal racism cannot be captured in a clip. Don Imus can be. The consequences? We learn that Imus = racism. Punishment and apology follows. And a relieved nation moves on.