Category: Race

11

Ricci and Briscoe as Disparate Impact Cases

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.

Read More

2

What would LBJ do?

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.

1

The Civil Procedure, Civil Rights, Class Action Connection to the Chicago Olympic Bid

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.

0

UCLA Law Review 56:6 (August 2009)

UCLA-logo.jpg

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

6

Assimilation: What Will It Mean for Affirmative Action?

Orlando Patterson, the well-respected Harvard sociologist, wrote an article in the New York Times this week in which he argued that immigrants from Latin America and Asia will assimilate into mainstream American culture (whatever that might be) in the same way as European immigrants from the late 19th and early 20th century had. Maybe he’s right. Although social scientists have argued that Latino and Asian immigrants will not be able to assimilate as rapidly as Irish, Italian, and Jewish immigrants because the former are not white, there is some evidence suggesting that the children of Latino and Asian immigrants are assimilating quite well. They tend to be English-dominant (many do not speak or understand their parents’ native language), they have high intermarriage rates (with whites primarily but also with other groups), and many reside in integrated or predominantly white neighborhoods—all indicators of assimilation. Many Latinos (approximately 50% according to Patterson) also self-identify as white, suggesting that their experiences might not be that different from those of European immigrants.

These facts notwithstanding, many Latino and Asian-American scholars would disagree with Professor Patterson’s assertion. They would point to continuing discrimination and evidence of implicit biases against Latinos and Asian-Americans and the widespread perception that these groups are not “really American,” as illustrated by the question “no, where are you really from?” when a person who does not look Black or White says that he is from Texas, California, or Kansas.

Read More

0

Racial Profiling Still Pervasive in United States: Does Anyone Care?

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”?

2

Google Earth and Caste Discrimination in Japan

With gratitude to Funmi Arewa for sending me this link, here’s an interesting story from the Times Online about an unexpected area in which Google has found itself in hot water.  In adding information to some modern day maps of Japan on Google Earth, Google engineers overlaid some old maps of Japan on the modern sattelite images.  This effectively shows how some of the old Japanese ghettos relate to modern 21st centry streets.  Unfortunately, it also provides a proxy that effectively allows prospective employers to guess on the ancestry of people who may be applying for jobs and to identify them as likely members of a caste considered as “untouchables” and condemned to the worst positions in the social and cultural hierarchy.  Google did not realize how offensive and problematic this data-driven action could be within Japan.  It’s a great example of how modern technology can clash with deeply ingrained cultural mores.

On another note, this is my last post for Concurring Opinions as I’m heading off tomorrow for my first long weekend vacation in (too) many years!  Thanks so much to Dan and the whole Concurring Opinions crowd for having me.  I hope to visit again sometime.  Happy summer vacation everyone…

40

Knowledge of Jim Crow events: A quick, informal survey

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. Read More

1

Race Matters

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.

7

Spike this Heel!

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.

Dior Spring 2009 

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.