Monday, December 17, 2012
The thesis of this article is that the national project to redress discrimination, which has waxed and waned through the decades since the enactment of the Civil War Amendments, is now being squeezed toward oblivion by important substantive and procedural decisions of the Roberts Supreme Court. While the procedural restrictions are based on new interpretations of the Federal Rules of Civil Procedure, the substantive restrictions, ironically, are primarily driven by a narrow vision of the purpose of the Constitution’s equal protection clause. Now equal protection law has been turned upside down, with more protection provided the majority against governmental action aimed at redressing the present consequences of historic discrimination while members of groups that have been its victims face increasingly difficult barriers to their attempts to redress the present discrimination they face.
Section I will describe the procedural barriers the Roberts Supreme Court has erected to prevent discrimination claims from being decided on the merits in court. These barriers divert claims from court to arbitration, even if there is no actual consent to arbitrate by the claimant. Arbitration cuts off the right to a jury trial and may prevent bringing a class action. If arbitration is avoided, the Court has imposed a “plausibility” standard at the pleading stage of litigation which allows lawsuits to be dismissed before discovery takes place. Further, the Court has limited the possibility of bringing class actions. Section II will show how the substantive law applied to discrimination claims has been narrowed for claims typically brought by women and people of color, while broadening claims brought by the white majority. Section III will look to the immediate future of the antidiscrimination project in the upcoming decision by the Supreme Court of an affirmative action case, Fisher v. University of Texas. Section IV will conclude.