Civil Rights Law & Policy Blog

Planned closure of driver's license offices in Alabama violates Civil Rights Act, feds say

The Hill reports:

The Department of Transportation (DOT) and Alabama Law Enforcement Agency (ALEA) have...reached an agreement to ensure that all Alabama residents have access to driver's licensing programs, regardless of race, color or national origin, federal officials announced Wednesday...

 

Alabama announced last year plans to close or reduce service at 31 driver's license offices throughout the state. But federal transportation authorities opened an investigation after a preliminary analysis suggested that the proposed closures would disproportionately impact African-American residents in the state’s “Black Belt” region, a stretch of counties in southern Alabama from the Georgia to Mississippi borders.

 

Title VI of the 1964 Civil Rights Act prohibits entities that receive federal funding from discriminating on the basis of race, color or national origin in their programs and activities. Both the state of Alabama and its law enforcement agency receive federal assistance from the DOT.

 

The probe found that African-Americans in the Black Belt region are disproportionately underserved by ALEA’s driver's licensing services, causing “a disparate and adverse impact on the basis of race, in violation of Title VI.”

 

Under the agreement announced Wednesday, the DOT and ALEA will form a working relationship to make sure that the state’s driver's licensing services comply with civil rights.

 

ALEA will also expand the hours of operation for district and field driver's license offices throughout the Black Belt region; appoint a coordinator to be responsible for the development and operation of ALEA’s Title VI program; and submit a “community participation plan” within 90 days to ensure that communities are informed about service impacts.

N.C. governor takes feds to court over anti-transgender law

Gov. Pat McCrory (R-NC) filed a lawsuit in federal court today requesting clarification as to whether the anti-transgender law he signed earlier this year violates federal civil rights law, as DOJ claims. The Charlotte Observer's Michael Gordon reports:

The governor has a Monday deadline to respond to the Justice Department’s discrimination claim. Instead, McCrory’s attorneys sued the U.S. Justice Department in federal court, seeking a court to overturn federal prosecutor’s assertion last week that HB2 violates Title IX of the Civil Rights Act as well as the Violence Against Women Act...

 

In a statement issued Monday following the filing of his lawsuit, McCrory, who’s in a tough re-election fight, accused the administration of President Barack Obama of making up federal law in finding HB2 discriminatory. He has said that HB2 is a commonsense law makes bathrooms safer for women and children

 

“The Obama administration is bypassing Congress by attempting to rewrite the law and set restroom policies for public and private employers across the country, not just North Carolina,” the Charlotte Republican said. “This is now a national issue that applies to every state and it needs to be resolved at the federal level. They are now telling every government agency and every company that employs more than 15 people that men should be allowed to use a women’s locker room, restroom or shower facility.”

Known as H.B. 2, the law seeks to preempt a City of Charlotte ordinance allowing transgender individuals to use the bathroom corresponding to their gender identity. H.B. 2 would require transgender individuals to use the bathroom corresponding to the sex indicated on their birth certificates. 

Last week, DOJ sent the governor a letter stating that implementation of H.B. 2 could cost the state billions in federal funding. 

The law has already cost the state jobs.

See also:

• "Obama plans new push for transgender rights in schools"
• DOJ tells N.C. governor anti-transgender bill could cost state billions in federal education funding

DOJ tells N.C. governor anti-transgender bill could cost state billions in federal education funding

On Wednesday, DOJ sent a letter to Gov. Pat McCrory (R-NC) informing him that the anti-transgender law he recently signed violates the Civil Rights Act. The state must confirm by Monday that it will not comply with the law lest it face losing billions in education funding for state schools.

Known as H.B. 2, the bill pre-empted a Charlotte city anti-discrimination ordinance allowing transgender individuals to use the restrooms that conform with their gender identity. Apparently overwhelmed by hysteria and fear, North Carolinian conservatives passed H.B. 2 requiring people to use the restrooms that correspond with the sex identified on their birth certificate--signed by Gov. McCrory, of course.  

The Charlotte Observer's Jim Morrill had this extensive report, which states in part:

The letter says HB2, which pre-empted Charlotte’s anti-discrimination ordinance, violates Title IX [of the Civil Rights Act], which bars discrimination in education based on sex, and Title VII of the Civil Rights Act, which bans employment discrimination.

 

If the finding is upheld, North Carolina could lose federal education funding. During the current school year, state public schools received $861 million. In 2014-2015, the University of North Carolina system got $1.4 billion...

 

The Justice Department letter came two days after the Equal Employment Opportunity Commission posted a fact sheet reiterating its stance that it’s a civil rights violation to deny transgender employees access to a bathroom based on gender identity.

 

That fact sheet refers to a 2015 decision in which the EEOC ruled that a civilian transgender woman working for the Army had been discriminated against when she was banned from using the common women’s restroom and forced to use a single bathroom.

 

Carl Tobias, a University of Richmond law professor who has followed the HB2 legal issues, said the Justice Department letter was similar to one sent by the federal Education Department in the case of the Virginia transgender teen battling a bathroom ban in the Gloucester County school system.

 

“They might all be coordinating the federal response,” Tobias said...

 

In the Justice Department letter, Vanita Gupta, the Justice Department’s top civil rights lawyer, said, “HB 2 … is facially discriminatory against transgender employees on the basis of sex because it treats transgender employees, whose gender identity does not match their biological sex, as defined by HB2, differently from similarly situated non transgender employees.”

 

She went on to say the department “concluded that … the state is engaged in a pattern or practice of resistance to the full enjoyment of Title VII rights by employees of public agencies…”

The bill's supporters claim that allowing transgender people to use the restrooms that correspond with their gender identity exposes children (but mostly girls, apparently) to marauding pedophiles who have just been waiting for a pretext to legally enter a restroom for illegal ends. Even though there's no record of this ever happening, H.B. 2 supporters want to make sure that children are our number one priority, which is why they would violate federal law and risk losing billions in education funding.

DOJ finds University of New Mexico's "flawed system" for handling sexual assault claims fails to meet Title IX requirements

Title IX of the Civil Rights Act requires colleges and universities to investigate allegations of sexual assault and harassment. As The Huffington Post's Tyler Kingkade reports, the University of New Mexico (UNM) doesn't seem to care--at least according to a recent DOJ investigation into the university's handling of sexual assault and harassment allegations over a six-year period. As Kingkade writes:

During much of that time, UNM had no written protocol on how long it should take with investigations, and cases often took twice as long to resolve as the 60-day timeframe recommended by the U.S. Department of Education. Both complainants and respondents were often not told about delays or why things were taking so long, the DOJ said... 

 

Further problematic was that until the DOJ investigation, the [Office of Equal Opportunity], which handled sexual assault investigations, reported to the office of the university’s general counsel.

 

“This management structure created a conflict between OEO’s stated goal of eliminating and redressing harassment and OUC’s role in limiting the University’s liability,” the DOJ said.

 

Interim sanctions were inconsistent...

 

Students speaking with federal investigators accused campus police of gender bias, saying officers questioned victims about why they didn’t do more to fight off their attackers or lectured them on why young women should not drink in public, the report said. UNM cops often believed at “face-level” the accused students’ claims that victims consented and rarely challenged them, federal investigators found. 

 

University administrators had similar sentiments, the DOJ said, sometimes describing victims as “lonely” or “clingy.” In interviews, “University officials made several statements placing blame with students who are assaulted, reflecting a significant lack of understanding about the dynamics of sexual assault.”

 

The DOJ will now require UNM to provide better and clearer information about reporting options for sexual violence, and disclose more details to students and staff on where to go for assistance or to begin grievance procedures. The university will also have to revise policies, procedures and investigative practices to ensure “prompt and equitable resolution of sexual harassment and sexual assault allegations.” 

 

"The Disappearance of Voluntary Affirmative Action from the U.S. Workplace"

The title of this post comes from this paper by Professor David Oppenheimer, the abstract of which states:

As voluntary affirmative action in the United States has been transformed into diversity management, the original intended beneficiaries of affirmative action, racial/ethnic minority group members and women, and particularly Black Americans, have been left behind.

Despite controversy over the use of racial quotas in the United States, demands for voluntary affirmative action by private employers grew into a nationwide movement in the 1960s under the leadership of Rev. Dr. Martin Luther King Jr. and Rev. Jesse Jackson. In cities across the United States with large Black populations, they demanded the use of proportional hiring so that companies selling their products to Black consumers would hire Black employees in proportion to the local Black population or their Black clientele. In the 1964 Civil Rights act, the U.S. Congress considered the affirmative action/proportional representation/quota issue and reached a compromise; employers would not be required to give preferences to Black applicants, but neither would they be prohibited from voluntarily doing so. In the 1970s and 80s the U.S. Supreme Court upheld the compromise, holding that private employers could give hiring and promotion preferences to underrepresented ethnic/racial minority workers (and women) to correct “imbalances” in the workplace, subject to certain limitations. Yet beginning with the election of Ronald Reagan in 1980, and accelerating into the twenty-first century, U.S. employers have abandoned affirmative action policies in favor of “diversity management” policies. While these policies initially focused on the hiring and promotion of women and racial/ethnic minorities, as diversity policies have grown and developed, they have abandoned their focus on aiding underrepresented workers. As a result, Black Americans are being left behind, even as the policies adopted through their advocacy have become widely accepted.

"The New Public Accommodations"

The title of this post comes from this intriguing article by Professor Nancy Leong, the abstract of which states:

The rise of the sharing economy raises important new questions about public accommodations law. Some have argued that the sharing economy has the power to reduce or even eliminate discrimination on the basis of race in traditional public accommodations such as housing rental, transportation, and commerce.

Are these optimists correct? Is discrimination a problem in the new economy? If discrimination is not a problem in the new economy, why is the new economy different from the old economy? If discrimination remains a problem in the new economy, what form does such discrimination take? And what legal mechanisms can we use to address it?

In this Article, I argue that the new economy has not solved race discrimination in public accommodations, and, indeed, that it has raised new concerns that civil rights law must evolve to address. Most obviously, the online platforms that form the basis of many sharing economy businesses often make race salient to both parties to a transaction, which facilitates discrimination without the parties ever coming face to face with one another. Such discrimination may be rooted in either conscious or unconscious bias. Available evidence suggests that this relatively traditional form of discrimination affects the sharing economy to the same extent it affects the traditional economy.

Perhaps more troublingly, the sharing economy also facilitates new forms of discrimination by aggregating the experiences of many economy participants over time. Businesses such as Uber and AirBnb allow service providers (drivers; landlords) to rate service users (passengers; renters). Over time, these ratings aggregate the preferences of many service providers, and to the extent that the service providers are consciously or unconsciously biased, members of disfavored racial categories will gradually average lower ratings than their more favored peers. On the basis of this seemingly objective rating, service users who are members of disfavored racial categories may begin to receive worse service, or, eventually, to be denied service altogether.

The Article proceeds in four parts. Part I traces the history of public accommodations law, from its contested early roots to the Civil Rights Act of 1964 to its uneasy status today. Part II turns to the new economy. It describes the features of that economy, explains the hopes of some that the new economy offers a solution to racial discrimination in public accommodations, and then offers evidence suggesting that such hopes are unfounded. Part III considers available legal mechanisms to combat discrimination in the sharing economy. While such mechanisms offer considerable promise in many situations, they ultimately fail to address completely the unique way in which discrimination operates in the sharing economy. Part IV, then, calls for new antidiscrimination laws to take account of the unique features of the new economy, and briefly describes the form such laws should take.

"EEOC v. Abercrombie & Fitch Stores, Inc.: Mistakes, Same-Sex Marriage, and Unintended Consequences"

The title of this post comes from this recent paper by Professor Jeffrey Hirsch, the abstract of which states:

In EEOC v. Abercrombie & Fitch Stores, Inc., the Supreme Court held that a job applicant need not notify an employer of a needed religious accommodation in order to bring a claim of religious discrimination under Title VII of the Civil Rights Act. The decision has been heralded as a victory for religious employees and job applicants. Although Abercrombie is certainly a victory for many of these individuals, it is not clear that the decision will always be beneficial to religious employees. Indeed, while the decision enhanced protections for job applicants with clear religious accommodation it may have inadvertently penalized a different class of religious job applicants — those who convey only subtle signs of religious belief.

"The Civil Rights Act of 1964 and 'Legislating Morality': On Conscience, Prejudice, and Whether 'Stateways' Can Change 'Folkways'"

The title of this post comes from this recent paper by Professor Linda McClain, the abstract of which states:

Influential studies, from the 1940s and 1950s, of the problem of prejudice and how to remedy it challenged the famous assertion of nineteenth-century sociologist William Graham Sumner that “stateways don’t change folkways,” and its modern counterparts, “you cannot legislate against prejudice” or “you cannot legislate morality.” Social scientists countered that, although people might initially protest, they would welcome a federal antidiscrimination law that aligned with conscience and closed the gap between American ideals and prejudice, creating new “folkways.” Using examples from the contexts of public accommodations, education, and employment, this Article examines similar arguments made about conscience and “legislating morality” in debates about the Civil Rights Act of 1964 (the “CRA”). Proponents argued that the national conscience demanded such a law because discrimination posed a moral crisis. Proponents and opponents of the CRA differed sharply on the role of federal law in addressing prejudice and discrimination. While proponents recognized the limits of what law could achieve, they argued that the CRA would remove artificial barriers created by segregation that constrained normal or natural human interaction. Opponents defended segregation as natural, Biblical, and part of the created order and warned that the CRA would usher in a dangerous and forced racial intermingling and line-crossing, particularly in marriage. Similar to the social scientists of the late 1940s and 1950s, supporters or the CRA appealed to experience with local and state antidiscrimination law and the World War II-era Fair Employment Practice Committee. The Article concludes with reflections on the present-day implications of this earlier “legislating morality” debate for controversies over LGBT rights and the evident clash between conscience, or religious liberty, on the one hand, and antidiscrimination law and marriage equality, on the other. This Article is part of a symposium, “The Civil Rights Act of 1964 at 50: Past, Present, and Future.”

"Coercive Assimilationism: The Perils of Muslim Women's Identity Performance in the Workplace"

The title of this post comes from this exciting upcoming article by Professor Sahar Aziz, the abstract of which states:

Fifty years after Congress passed the Civil Rights Act of 1964, unlawful discrimination continues to ail American workplaces. Despite the prevailing narrative that America is now "post-racial" after the election of the first African American president, equal opportunity still eludes many Americans. Their membership in racial, ethnic, or religious groups stigmatized as the "other" adversely affects their access to education, political empowerment, and equal opportunity in the workplace.

At the time Title VII was passed, victims often experienced explicit bias against their protected group. The law’s immediate effect was to ban overt prejudice causing disparate intergroup discrimination between men and women, blacks and whites, different ethnicities, and Christians and non-Christians. As a result, Title VII, along with other anti-discrimination laws, has been relatively successful in rooting out explicit bias in employment. Many employers now refrain from overtly treating employees disparately on account of an immutable characteristic. But, as the data show, the absence of discriminatory policies on paper does not always translate into a discrimination free workplace in practice. Rather, it pushes bias into more covert manifestations wherein facially neutral factors become proxies for unlawful discrimination.

While Title VII prohibits covert bias; it is ill equipped to prevent two increasingly prevalent forms of discrimination: 1) implicit bias arising from negative stereotypes of protected classes; and 2) disparate treatment of subgroups of protected classes who do not conform to coercive assimilationist pressures.Because an employee alleging discrimination must show that a similarly situated worker outside the protected class does not receive the same adverse treatment or impact, an employer who treats a subgroup of a minority better than another subgroup of the same minority can evade liability. 

Of course, if the difference in treatment among the subgroups is based on performance and skills directly related to the work at issue, then no liability should attach. However, that is not always the case. Disparate treatment of members of the same protected class arises from negative racial, ethnic, or religious stereotypes that privileges those able and willing to perform their identity in accordance with assimilationist demands of the majority group. The effect is intragroup discrimination based on intergroup bias rooted in implicit negative stereotyping. 

Female employees who fall under multiple protected classes face an intersection of identity performance pressures as women, racial or ethnic minorities, and religious minorities.The dominant group’s expectations of how women or members of minority groups should behave, dress, and communicate to be "professional" are often contradictory due to conflicting stereotypes. A Black woman, for example, who is assertive, ambitious, and exhibits leadership qualities associated as masculine characteristics, risks being stigmatized as aggressive, insubordinate, and threatening because of negative stereotypes of blacks. Meanwhile, her behavior contradicts gender conformity norms that women should be deferential, gentle, soft spoken, and pleasant. And if she is a Muslim, then her behavior triggers stereotypes of Muslims as terrorists, disloyal, foreign, and suspect.

For workplace anti-discrimination laws to eradicate these multiple binds that disparately impact women of color, this Article argues that Title VII jurisprudence should take into account intergroup discrimination based on intragroup identity performance to assure all employees, not just a subset of a protected class, are covered by workplace antidiscrimination law. As such, a plaintiff’s treatment should not be compared only with similarly situated employees outside the protected class but also with similarly situated employees within the protected class whose identity performance accommodates coercive assimilationism rooted in stereotypes.

This Article applies social psychology and antidiscrimination theories to the case of Muslim women of color in the workplace, an under-researched area in legal scholarship. I examine in detail the identity performance challenges and contradictions faced by Muslim women of color as "intersectionals" facing stereotypes against 1) Muslims as terrorists, violent, and disloyal; 2) Muslim women as meek, oppressed, and lacking individual agency; 3) women as sexualized, terminally second best to men, and uncommitted to their careers; 4) immigrants as forever foreign and undeserving of equal treatment; and 5) ethnic minorities from the Middle East and South Asia as barbaric, misogynist, and anti-American. I conclude that Muslim women of color are at risk of falling between the cracks of Title VII jurisprudence due to courts’ unwillingness to recognize the harms caused by coercive assimilationst pressures to conform one’s identity to comport to high status group norms, irrespective of the relevance to work performance.

"The Fundamental Nature of Title VII"

The title of this post comes from this recent paper by Professor Maria Linda Ontiveros, the abstract of which states:

This article explores the fundamental nature of Title VII and argues that Title VII is a statute designed to protect the right to own and use one's own labor free from discrimination in order to provide meaningful economic opportunity and participation. This conclusion is based upon three different types of analysis: the elements approach; the super statute approach and the human rights approach. The "elements approach" places Title VII in context and argues that it cannot be interpreted in isolation because it is only one element of the Civil Rights Act of 1964. The "super statute approach" argues that Title VII embodies the fundamental principle, originally found in the Thirteenth Amendment to the U.S. Constitution, that individuals have the right to own and use their own labor free of discrimination, in order to have meaningful economic opportunity. This conclusion is supported by a historical analysis which ties together the Fair Employment Practices Commission (which served as the direct predecessor to Title VII); the work of the Civil Rights Section of Roosevelt's Justice Department; and the Thirteenth Amendment and Anti-Peonage Act jurisprudence to show the connection between Title VII and the principles underlying the Thirteenth Amendment. The "human rights approach" shows that international law also categorizes and interprets employment nondiscrimination provisions in this way. The article uses this analysis to explain why the U.S. Supreme Court's recent moves to categorize and interpret Title VII as a tort are incorrect. Finally, it suggests that, if tort analysis were to be imported into Title VII, the doctrine of duty could be used to argue that Title VII creates an affirmative duty for employers to provide a workplace where all employees have a right to meaningful economic opportunity.

"Flight attendants helped to ground sex discrimination"

The title of this post comes from this fascinating story, which begins:

Dedicated to protecting the safety of others, Lake Barrington's Shari Worrell once performed mouth-to-mouth to save a man's life. Another time, she used a pair of earphones, a small drinking cup and "occupied" stickers meant for the bathroom door to fashion a MacGyver-esque stethoscope needed by a doctor. Throughout her career, she received three awards of merit for her lifesaving efforts.

 

But before she started her job each day, Worrell had to step on the scale to prove she weighed between 105 and 118 pounds, undergo an inspection to make sure the seams in her stockings were straight and submit to a girdle check.

 

"It was just the way it was back then," says Worrell, 66, who started as a "stewardess" with United Airlines in 1968. "I didn't think it was the least bit odd. If they told me to stand on my head in the corner, I probably would have done it."

 

But during her 34-year career as a flight attendant, Worrell and other young women who started as stewardesses helped change the way the airlines and all employers dealt with women in the wake of the groundbreaking Civil Rights Act of 1964 and its Title VII, which prohibits employment discrimination based on race, color, religion, sex and national origin.

 

"The flight attendants played an astonishing role in the development of Title VII," says professor Mary Rose Strubbe, assistant director of the Institute for Law and the Workplace at IIT Chicago-Kent College of Law. Strubbe, 66, who started her law career with a Chicago firm representing many of those flight attendants in discrimination cases, will be one of the presenters Thursday at the institute's conference on the role of flight attendants in fighting sex discrimination.

Wings. Beer. Racism.: BW3 faces civil rights suit over alleged racial discrimination

Two former Buffalo Wild Wings employees claim the restaurant violated their rights protected under Title VII of the Civil Rights Act.

Specifically, they allege that the assistant manager at the restaurant at which they worked had created a hostile work environment by repeatedly telling a particularly incomprehensible racist joke (to my mind, its truly not understandable, but its
nevertheless available for your disgust in the complaint). He apparently wasn't punished after the plaintiffs complained about this behavior to BW3's human resources department. To the contrary, he was promoted.

And his promotion allegedly didn't assuage the abuse. He continued to make racist comments and give white employees preferential treatment. According to the complaint, he "allowed a white shift leader to strike and African American female employee with a plate without reprimand," and he even threw a plate of food at an African American cook.

This mistreatment apparently wasn't enough for him. He also wanted "to clean up the front of the house image," apparently meaning he wanted all the black people to move to the back of the house. The local CBS affiliate reports:

[The plaintiff's] claim that what happened to them was a systematic plan to have less interaction between African American employees and customers. FOX19 Investigates staff saw a number of African American workers serving customers at the Forest Park location.

 

However, FOX19 Investigates found a promotional video on the Buffalo Wild Wings corporate website that tells a different story. The video, aimed at prospective employees, is introduced by the company CEO.

 

It shows employees working at the chain's "most engaged" restaurant team of the year at a location in Memphis, Tenn. The video shows satisfied customers being served by happy workers, who participate in team huddles and high fives with co-workers and managers. But FOX19 Investigates noticed that in the nearly two-minute video, only non-African American workers were interacting with customers. African American workers are seen briefly only in the back of the restaurant or in the kitchen.

Finally, this BW3 manager also fired one of the plaintiff's even though she exceeded the metric used to determine whether employees fulfill their customer service obligations.

The complaint is here. 

'LBJ's second great battle: Enforcing the Civil Rights Act'

Wednesday, July 2, marks the 50th Anniversary of the signing of the Civil Rights Act of 1964 by President Lyndon B. Johnson. The title of this post comes from playwright Robert Schenkkan's op-ed in yesterday's LATimes examining the president's subsequent efforts to enforce the hard-won law. He writes:

Jim Crow began to die, in part because LBJ well understood that passing laws was one thing and enforcing them quite another. Just as he had been determined to muscle the bill through Congress, Johnson was determined to see the law carried out by every executive power at his command.

 

Title II (public accommodations) of the act overturned state and local segregation laws, and the Supreme Court helped by upholding its application to the private sector through the commerce clause.

 

There had been chilling resistance in some quarters. In Jonesboro, La., that summer, the public library and swimming pool remained off-limits to blacks, and when local youths protested, 40 of them, and some of their parents, were arrested. To drive the point home, the Ku Klux Klan paraded through the black neighborhood in full regalia, carrying guns, led by a sheriff's patrol car.

 

Both sides began to arm themselves, and a very real race war was only averted by a federal injunction and the personal intervention of administration officials, including Humphrey, who by then was vice president.

 

Title VII (workplace discrimination) created the Equal Employment Opportunity Commission. Women had been given special protection under the new law, not out of any moral imperative but as a poison-pill amendment introduced by Virginia Rep. Howard W. "Judge" Smith, who hoped that Northern senators sensitive to union concerns would not support a bill that granted women equal rights. He was wrong. And to everyone's surprise, Title VII would profoundly alter the legal and cultural landscape for women as well as blacks.

 

Title VI (discrimination in government-funded activities) was even more immediately successful. Swift directives from the White House to the Department of Health, Education and Welfare to cease giving federal dollars to segregated hospitals transformed facilities overnight. Where moral suasion had failed, the threat of defunding worked wonders.

 

President Johnson was determined to see the [Civil Rights Act] carried out by every executive power at his command. 

 

Similarly, a quick ruling by U.S. Commissioner of Education Francis Keppel announced the withholding of federal funds ($4 billion) from school districts in 17 long-segregated states. In one year, there were more public school desegregation commitments than had been achieved over the previous decade. To ensure this was more than lip-service, the Office of Education developed objective, quantifiable measures to evaluate progress.

 

In 1965, the Voting Rights Act was the final nail in the coffin of Jim Crow. Six days later, Watts erupted in violence, the first in a series of urban riots as the long-simmering frustration of blacks trapped in city slums sought release. At the same time, the white backlash and subsequent political realignment that LBJ had predicted was already underway.

 

The South, once solidly Democratic, would become a Republican stronghold. And the civil rights movement would meet its Waterloo not in Southern cities but in Boston and Chicago, where Northerners would discover that the limits of their racial tolerance ended in their own neighborhoods. Politicians who could no longer get away with using the vilest excesses of racial language communicated in coded but comfortable phrases like "law and order" and the "intrusive federal government."

 

Today, even after the election of a black president, men and women of color still suffer disproportionally against almost every measure of American life. So how should we feel about the 1964 Civil Rights Act? We should feel proud of an achievement that brought us closer to the founding ideals of this country. We should feel humbled by the sacrifice of millions of people over decades of hard and painful work to bring that change about. And we should feel challenged because the work is not yet complete.

'The Civil Rights Act at Fifty: Past, Present, Future'

The title of this post comes from this essay by Professor David Freeman Engstrom, the abstract of which states:

This brief essay introduces the Stanford Law Review issue accompanying the symposium, “The Civil Rights Act at Fifty,” convened at Stanford Law School on January 24-25, 2014. It provides a digestible overview of each of the five written contributions to the symposium – including Sam Bagenstos and Richard Epstein on Title II, Olatunde Johnson on Title VI, and Mary Anne Case and Richard Ford on Title VII – and then offers some thoughts connecting them.

'It is Political: Using the Models of Judicial Decision-Making to Explain the Ideological History of Title VII'

The title of this post comes from this recent paper by Professor Kate Webber, the abstract of which states:

Scholars and observers often explain or interpret Supreme Court decisions based on the ideology of the sitting Justices. Many offer a similarly political account of the Court’s decisions in actions brought under Title VII of the Civil Rights Act of 1964 (“Title VII”). Certain events in the history of Title VII do suggest ideological decision-making by the Supreme Court. Dozens of the Court’s Title VII opinions are split between the conservative and liberal Justices. On three separate occasions, including most recently the Lilly Ledbetter Fair Pay Act of 2009, a more liberal Congress amended Title VII in order to override the Supreme Court’s conservative interpretation of the statute. Yet subsequent to each of these amendments, the conservative Justices continued to vote to restrict Title VII, apparently following their political preference over Congressional intent. 

The full history of Title VII, however, does not conclusively establish that the Supreme Court is deciding cases according to ideological viewpoint. Although numerous split decisions fall along ideological lines, other cases, including a number of unanimous decisions, reflect votes contrary to political viewpoint and potentially indicate a different dynamic. The fifty years of Title VII jurisprudence therefore present the opportunity to assess whether Justices’ votes on issues of employment discrimination are determined by their respective ideology. 

To answer this question, this article turns to the work of political science scholars, specifically, the models of judicial decision-making developed by political theorists over the past two decades. These models use sophisticated empirical techniques to test whether the Justices of the Supreme Court vote according to their ideology and to explain the circumstances when Justices vote contrary to their viewpoint. Their work can be divided into three predominant models, attitudinal, strategic and integrated, all of which agree that that ideology influences Supreme Court decisions, but offer different explanations for the exceptions when the Court’s ideological pursuit is apparently constrained. The political science models therefore offer the potential to explain Title VII’s varied jurisprudence. 

This potential, however, is not fully realized. The strategic and integrated models fail to effectively explain a significant portion of the Supreme Court’s Title VII decisions because these models have generally failed to study the effect of statutory overrides on the Court’s decision-making. This article therefore draws on the few studies of overrides that are available, and some of the more context-specific analyses, to draw a more nuanced model for Title VII and to account for the apparent exceptions to ideological decision-making. Ultimately, this article asserts that the history of Title VII is not only political, but particularly so, with the Supreme Court exhibiting strong resistance to any restraint on their ideological voting in the area of employment discrimination.

'Enforcing Equality: Statutory Injunctions, Equitable Balancing Under eBay, and the Civil Rights Act of 1964'

The title of this post comes from this upcoming paper by Professor Michael Morley, the abstract of which states:

The four-factor test for issuing injunctions under federal laws that the Supreme Court endorsed in eBay, Inc. v MercExchange, L.L.C. requires courts to make quintessentially policy judgments and affords them tremendous discretion to decline to grant relief. Courts face additional challenges in determining whether the eBay standard governs injunctions under laws such as the Civil Rights Act, how it should apply in such circumstances, or whether it should be modified. 

This Article offers a new framework for statutory injunctions. Courts should neither apply a single, uniform standard in determining whether to issue such injunctions, nor vary the standard depending on the nature of the statute being enforced. Rather, the proper approach depends on the nature of the relief a plaintiff seeks — in particular, whether the plaintiff seeks remedial relief, to repair harm she already has suffered, or prospective relief, to prevent further statutory violations. A court should grant a plaintiff’s request for a remedial order, if possible, unless the combined burdens or harm that it would cause for the defendant and third parties overwhelmingly outweigh the benefit to the plaintiff. Conversely, when a successful plaintiff has standing to seek prospective relief, a court automatically should enjoin repeated, ongoing, or impending statutory violations, and wait until subsequent contempt proceedings to determine the propriety of enforcing the injunction under the circumstances. 

While remedial injunctions play a valuable role, Congress should avoid relying on prospective injunctions as statutory remedies. Instead, it should enable courts to directly apply civil and criminal contempt-type remedies for statutory violations, rather than requiring plaintiffs to first take the “intermediate” step of obtaining an injunction.

"A Signal or a Silo? Title VII's Unexpected Hegemony"

The title of this post comes from this upcoming paper by Professor Sophia Z. Lee, the abstract of which states:

Title VII’s domination of employment discrimination law today was not inevitable. Indeed, when Title VII was initially enacted, its supporters viewed it as weak and flawed. They first sought to strengthen and improve the law by disseminating equal employment enforcement throughout the federal government. Only in the late 1970s did they instead favor consolidating enforcement under Title VII and its implementing agency, the Equal Employment Opportunity Commission. Yet to labor historians and legal scholars, Title VII’s triumphs came at a steep cost to unions. They write wistfully of an alternative regime that would have better harmonized antidiscrimination with labor law’s recognition of workers’ right to organize and bargain collectively with employers. This chapter explains how these impulses played out during Title VII’s uncertain first fifteen years as advocates, legislators, administrators, and workers pursued a more powerful Title VII on the one hand and one more harmonized with labor rights on the other. Empowering Title VII via dissemination proved more costly and less effective than its proponents expected; achieving a more harmonious regime was more complicated than is currently thought. This history provides a cautionary tale to those today who seek to reinvigorate labor rights by incorporating them into Title VII.

"Taking Seriously Title VII's 'Floor, Not a Ceiling' Invitation"

The title of this post come from this recent paper by Craig Gurian, Executive Director of the Anti-Discrimination Center and Adjunct Professor at Fordham Law, in which he advocates strengthening civil rights protections through state and local legislation. Here's the abstract:

Civil rights advocates have been insufficiently attentive to the promise of creative state and local legislating as the means by which to counteract the erosion of federal civil rights protections. The promise has not only a defensive component (trying to hold on to doctrine that the Supreme Court has been abandoning) but an offensive one as well (introducing more robust substantive and procedural provisions than Title VII has ever had). This paper examines a so-far successful attempt in New York City to implement a vision that proposed to "meld the broadest vision of social justice with the strongest law enforcement deterrent" (one that, for example, has removed the "severe or pervasive" hurdle to the prosecution of sexual harassment lawsuits). The paper, while recognizing that state and local action is no cure-all, goes on to identify several doctrinal areas that are particularly ripe for state and local legislative innovation.

The Origins of Arguments Over Reverse Discrimination: Lessons from the Civil Rights Act of 1866

The title of this post comes from this recent paper by Professor George Rutherglen linking the debates over the Civil Rights Act of 1866 to modern ones over affirmative action policies. Here's the abstract:

Disputes, disagreement, ambiguity, and ambivalence have marked the law of affirmative action since it came to prominence in the Civil Rights Era, nearly 50 years ago. These current controversies might be attributed to modern attitudes, and in particular, the need to delay enforcement of a strict colorblind conception of prohibitions against discrimination until the continuing effects of racial and ethnic discrimination have been eliminated. But a look at the origins of the civil rights law in Reconstruction belies this modernist perspective, which foreshortens debates to the aftermath of Brown v. Board of Education rather than rediscovering their origins in Reconstruction. This article attempts to rediscover those origins by re-examining the legislative history and immediate reception of the Civil Rights Act of 1866 as it bears upon race-conscious remedies for racial discrimination. The argument proceeds in three parts. The first concerns the 1866 Act itself and the congressional debates over it, which featured charges of special treatment despite the neutral terms of the act. The second compares the act to the legislation authorizing the Freedmen’s Bureau, where arguments of special treatment carried more force, so much so that the authorization for the bureau had to remain temporary and it lapsed well before Reconstruction ended. The third part briefly considers the implications of this comparison for modern civil rights law, and in particular, for constitutional arguments over affirmative action. No one-to-one correspondence exists between the legislative debates in 1866 and constitutional arguments today, but the debates then have left their traces now in concerns over special remedies for discrimination, and in particular, over how long they last.

CRL&P related posts:

• Title VII as Precedent: Past and Prologue for Future Legislation
• Section 1983 Is Born: The Interlocking Supreme Court Stories of Tenney and Monroe
• AALS Scholarly Paper Award winner examines how sit-ins challenged role of courts

SCOTUS's Vance, the formalist dance, and the downfall of employer liability

In Formalism and Employer Liability Under Title VII, Professor Samuel Bagenstos argues that SCOTUS's decision in the employer liability case Vance v. Ball State University fulfilled both standard critiques of formalist reasoning--the "unacknowledged-policymaking critique" and the "false-determinacy critique." Vance's resultant damage, he claims, can only be remedied by a complete revamping of the employer liability structure by Congress. Here's the abstract:

Most lawyers, law professors, and judges are familiar with two standard critiques of formalism in legal reasoning. One is the unacknowledged-policymaking critique — that formalist reasoning purports to be above judicial policymaking but instead simply hides the policy decisions offstage. The other is the false-determinacy critique — that formalist reasoning purports to reduce decision costs in the run of cases by sorting cases into defined categories, but that instead of going away the difficult questions of application migrate to the choice of the category in which to place a particular case. Last Term’s decision in Vance v. Ball State University demonstrates that the Supreme Court's complex doctrine on employer liability under Title VII amply deserves each of these critiques. The Court’s formalistic reasoning conceals a series of unacknowledged, undefended, and dubious policy choices. Those choices stand behind the Court’s resolution of the question that triggered substantial debate within the Court — how to define a “supervisor,” whose harassing acts trigger employer liability. They also stand behind the perhaps more important holding, hiding in plain sight, that an employer is liable for harassment by nonsupervisory coworkers only when the employer is itself negligent. To the extent that the Court offered any justification for its decision, that justification was one of crispness and determinacy of application. But, as is often the case with formalist reasoning, the Court’s promises of crispness and determinacy were almost transparently false. In her dissenting opinion in Vance, Justice Ginsburg urged Congress to overturn the Court’s narrow interpretation of who is a “supervisor.” Such an action would solve some of the problems with the Court’s opinion, but it would not go far enough. Rather, Congress should reconsider the entire employer liability structure the Court constructed in the landmark 1998 Faragher and Ellerth cases.

Title VII as Precedent: Past and Prologue for Future Legislation

The title of this post comes from this compelling paper by Professor George Rutherglen exploring the pattern of civil rights legislation since the passage of the Civil Rights Act of 1964. Here's the abstract:

Congress passed the Civil Rights Act of 1964 after nearly 90 years in which it enacted no major civil rights legislation. The 1964 Act stood out then - as it stands out now - as Congress acting at its best rather than its worst. It confronted the historic problem of race in America, it overcame partisan divisions and sectional obstruction, and it acted to enforce constitutional principles. This is not to say that sponsors of the legislation made no compromises in the 1964 Act. On the contrary, they had to do so, particularly in the Senate, to obtain the two-thirds majority then needed to close off debate and end a filibuster. The resulting legislation, compromises and all, then became the foundation for all employment discrimination law, providing the template for prohibitions against discrimination on the basis of age and disability. Even more remarkably, the legislation was consistently extended and reinforced, often over the narrowing interpretations imposed by the Supreme Court. Long after the Civil Rights Era had ended, Congress continued to pass expansive and progressive legislation, with virtually no examples to the contrary. The few restrictive or qualifying provisions that Congress enacted invariably came as compromises, like those in the 1964 Act, added in order to pass expanded prohibitions against discrimination. This article recounts this pattern of legislation, the role that Title VII played in it, and possible explanations for it. These explanations, like those for passage of the 1964 Act, extend over a wide range: from the simple selection effect of noticing only the statutes that are passed rather than those that fail, to an unholy alliance between plaintiffs’ lawyers and big business, to the moral and ideological force of the principle against discrimination.

CRL&P related posts:

• Section 1983 Is Born: The Interlocking Supreme Court Stories of Tenney and Monroe
• Bad Behavior Makes Big Law: Southern Malfeasance and the Expansion of Federal Judicial Power, 1954-1968
• AALS Scholarly Paper Award winner examines how sit-ins challenged role of courts
• Upcoming article draws attention to largely overlooked Supreme Court civil rights decision

Freedom of Dress: State and Private Regulation of Clothing, Hairstyle, Jewelry, Makeup, Tattoos, and Piercing

The title of this post comes from this paper from Professor Gowri Ramachandran arguing for a "freedom of dress as a fundamental right," which would require re-conceptualizing such a right on its own terms--"rather than treating dress merely as an adjunct to speech." Although published several years ago, it remains an intriguing read. Here's the abstract:

This article proposes a legal right to free dress, encompassing clothing, hair, jewelry, makeup, tattoo, and piercing choices. Neither speech rights nor equal protection provide an accurate account of the importance of self-presentation; instead a new theory of freedom of dress is needed, drawing on its unique location at the blurry border of the personal (as an exercise of control over the physical self) and the political and cultural (as the performance of social identity). Four of the most important applications of this theory are found in public schools, private workplaces, prisons, and direct state regulation. These settings require different balances of individual appearance choices against other interests. 

In the workplace, employers should be required to reasonably accommodate employees' dress choices. Even in the absence of a distinct statutory right, conceiving of freedom of dress as a fundamental right would make viable disparate impact and "sex-plus" claims affecting dress under Title VII. On the street, the paucity of important countervailing state interests supports reviewing infringements on the freedom of dress with strict scrutiny and subjecting them to narrow tailoring requirements - rather than treating dress merely as an adjunct to speech. In schools, too, strict scrutiny is appropriate; carving out freedom of dress as a liberty for students may be easier even than carving out student liberties like speech. In prisons, a reasonable accommodation approach is appropriate, but with a much narrower construction of reasonable accommodation than in other settings.

Title VI and the future of environmental civil rights

In Realizing the Promise of Environmental Civil Rights: The Renewed Effort to Enforce Title VI of the Civil Rights Act of 1964, Tony LoPresti argues that Title VI will not provide adequate protection for environmental civil rights until the structural barriers to its enforcement are resolved. LoPresti offers several possible solutions to such problems. Here's the abstract:

The environmental justice movement has long pursued a viable mechanism for federal enforcement of environmental civil rights. No legal tool has inspired such high hopes — and such deep disappointment — as Title VI of the Civil Rights Act of 1964. 

Without a private right of action to enforce Title VI, advocates have focused on filing administrative complaints with the Environmental Protection Agency. But, after twenty years of “active” enforcement and 247 complaints, EPA has yet to issue a single violation. Complaints alleging severe and discriminatory health impacts routinely languish at EPA’s Office of Civil Rights for years without response, in clear violation of the Agency’s own regulations. 

In spite of EPA’s dismal record, advocates have found cause for optimism in a Ninth Circuit decision chastising EPA for its “pattern of delay,” a scathing audit of the Office of Civil Rights, and some encouraging steps by Administrator Lisa Jackson. While these recent developments have kept advocates invested in Title VI, little has been done to address the structural barriers that have stymied effective enforcement. This article discusses these structural barriers in the context of three controversial complaints, and proposes solutions that EPA can put into place. The solutions — creating effective remedies, building accountability into the Office of Civil Rights’ enforcement system, and easing the tension between federal authority and state autonomy — form the backdrop of any effort to improve enforcement of environmental civil rights. 

EPA’s ability to create a legitimate Title VI program will be pivotal to the future of environmental justice. And, in an administrative state that allocates hundreds of billions in federal assistance each year, Title VI may be the most critical battleground in defining the ongoing legacy of the civil rights movement.

Formalism and Employer Liability Under Title VII

The title of this post comes from this article arguing that the Supreme Court's decision in Vance v. Ball State University demonstrates that legal formalism amounts to a ruse for judicial policymaking. Here's the abstract:

Most lawyers, law professors, and judges are familiar with two standard critiques of formalism in legal reasoning. One is the unacknowledged-policymaking critique — that formalist reasoning purports to be above judicial policymaking but instead simply hides the policy decisions offstage. The other is the false-determinacy critique — that formalist reasoning purports to reduce decision costs in the run of cases by sorting cases into defined categories, but that instead of going away the difficult questions of application migrate to the choice of the category in which to place a particular case. Last Term’s decision in Vance v. Ball State University demonstrates that the Supreme Court's complex doctrine on employer liability under Title VII amply deserves each of these critiques. The Court’s formalistic reasoning conceals a series of unacknowledged, undefended, and dubious policy choices. Those choices stand behind the Court’s resolution of the question that triggered substantial debate within the Court — how to define a “supervisor,” whose harassing acts trigger employer liability. They also stand behind the perhaps more important holding, hiding in plain sight, that an employer is liable for harassment by nonsupervisory coworkers only when the employer is itself negligent. To the extent that the Court offered any justification for its decision, that justification was one of crispness and determinacy of application. But, as is often the case with formalist reasoning, the Court’s promises of crispness and determinacy were almost transparently false. In her dissenting opinion in Vance, Justice Ginsburg urged Congress to overturn the Court’s narrow interpretation of who is a “supervisor.” Such an action would solve some of the problems with the Court’s opinion, but it would not go far enough. Rather, Congress should reconsider the entire employer liability structure the Court constructed in the landmark 1998 Faragher and Ellerth cases.

HUD finds Dallas discriminates against minorities in affordable-housing practices

Yesterday, the U.S. Department of Housing and Urban Development (HUD) issued a letter stating that the City of Dallas has violated federal civil rights laws by promoting discrimination against minorities and disabled residents in its affordable-housing practices. As The Dallas Morning News reports:

City Council member Scott Griggs, vice chairman of the council housing committee, said the HUD letter confirms the long-standing image of Dallas as a city divided between a northern sector for better-off people who can pay market-rate rents and a southern sector for low-income people who need rent subsidies.

“It sets up that in southern Dallas, we’re going to continue to put low-income housing, but when you get to the north we’re going to use the money that should be used for low- and moderate-income housing but find a way to create market rate.”

The findings could put the city at risk of losing millions of dollars in federal funds that are supposed to go to developers for low- and moderate-income housing. The letter delves into a complex system of government subsidies that often flow through city government and then to developers.

The money comes with strict civil rights requirements meant to prioritize benefits for lower-income residents throughout the city and prevent or eliminate blight. In Dallas, most of those lower-income residents are black, Hispanic or disabled.

The letter appears to be the opening salvo in a bureaucratic battle between federal officials and the city government, but it does not mean HUD officials intend to take immediate action to alter housing projects.

City spokesman Frank Librio claims that HUD's letter does not tell the whole story.  On December 2, Librio issued the follwoing statement:

The City complies with HUD guidelines and regulations in its work with affordable housing projects. It is important to note that HUD has given final approval of all projects assisted by federal housing funds, either on the local level and/or from the Washington D.C. office. Any proposed projects assisted by federal housing funds must be approved by HUD before they may be implemented.

Now the Fort Worth Office of HUD has issued a letter where it contends that the City has violated HUD guidelines and regulations.  City staff believes that the letter leaves out key facts presented by the City, did not fully evaluate arguments made by city staff, and reaches unfounded legal conclusions.  City staff looks forward to working with HUD to resolve this matter in the best interests of the public.

As for the 1600 Pacific project referenced in the HUD letter, Curtis Lockey and Craig MacKenzie were the former developers.  They sued the City in federal district court when they did not receive their requested large subsidy for their proposed project.  Their case was dismissed and Mr. Lockey and MacKenzie have appealed the ruling of the district court.  Since that case is currently in litigation, it would not be appropriate for the City to comment further at this time.

The city will have an opportunity to respond to HUD's investigation, and it can request a review of its findings. It also can take voluntary action to remedy the violations.

HUD's letter describes the findings of an investigation begun in 2010 when local developers filed a complaint after the city blocked their proposal to build low-income housing. City officials claimed to have been worried about the proposal's provision for financing the project.

CRL&P related posts:

• Settlement in Fair Housing Case—A Sigh of Relief

Categorically Black, White or Wrong: 'Misperception Discrimination' and the State of Title VII Protection

The title of this post comes from this article arguing that denying Title VII protection to victims of "misperception discrimination" in employment settings produces negative and unintended consequences in contravention of the statute's purpose. Here's the abstract:

This Article exposes an inconspicuous, categorically wrong movement within anti-discrimination law. A band of federal courts have denied Title VII protection to individuals who allege "categorical discrimination": invidious, differential treatment on the basis of race, religion, color, national origin, or sex. Per these courts, a plaintiff who self-identifies as Christian but is misperceived as Muslim cannot assert an actionable claim under Title VII if she suffers an adverse employment action as a result of this misperception and related animus. Though Title VII expressly prohibits discrimination on the basis of religion, courts have held that such a plaintiff’s claim of "misperception discrimination" is beyond Title VII’s scope. Accordingly, Title VII protection is only extended to such a plaintiff if she is "actually" Muslim or brings forth allegations of invidious, differential treatment based upon her actual Christian identity. This Article argues that these judicially created prerequisites to Title VII protection are categorically wrong. They impose a new "actuality requirement" on Title VII plaintiffs in intentional discrimination cases that engenders unfathomable results. Plaintiffs who suffer from invidious, differential treatment animated by either their self-ascribed or misperceived protected status will be denied statutory protection against discrimination if they fail to prove their actual religious, gender, ethnic, racial, or color identity upon defendant-employers’ challenge.

Though this Article primarily examines the imposition of an actuality requirement in misperception discrimination cases, this Article also demonstrates that courts have considered and imposed an actuality requirement in conventionally framed discrimination cases as well. Accordingly, this Article is the first to enumerate the development of, and myriad justifications for, the actuality requirement in cases of categorical discrimination. This Article argues that some courts’ imposition of an actuality requirement in misperception and conventionally framed discrimination cases denotes the birth of an unorthodox interpretation of Title VII’s reach and meaning nearly fifty years after its enactment — an interpretative methodology that this Article is first to describe as "anti-anticlassificationist."

This Article also highlights a few critical, negative implications of courts’ anti-anticlassificationist interpretation of antidiscrimination law. Namely, it examines the emergence of a minimalist "actuality defense" and resulting identity adjudication, which obfuscates the chief issue in intentional discrimination cases: whether the plaintiff suffered unlawful, invidious, differential treatment. Additionally, this Article illuminates that courts’ anti-anticlassificationist interpretation and attendant actuality requirement have in fact resuscitated age-old trials of racial determination. They have thereby produced an additional destructive consequence by reifying race as a stable, biological construct.

Consequently, this Article proposes fresh, practical, and theoretical interventions to cease the continued anti-anticlassificationist interpretation of Title VII. In doing so, this Article excavates previously unexplored Title VII statutory provisions, longstanding EEOC directives, Fifth and Third Circuit precedent, and recent Supreme Court precedent. Properly read, these sources will show that a prerequisite showing of actuality in cases of categorical discrimination under Title VII is wrong. Thus, this Article affirms that all categorical discrimination plaintiffs — that is, all individuals who have allegedly suffered discriminatory treatment on the basis of their actual or mistaken religious, gender, ethnic, racial, or color identity — are entitled to vindicate their statutory rights to be free from unlawful discrimination.

 

CRL&P Daily Reads: Nov. 21, 2013

Many believe NSA intrusions go too far, and most Americans believe Snowden leaks harmed national security; President Reagan played a role in NSA's development; NSA spies on Britons despite no-spying pact; and, Toomey & Kaufmann argue that the problems with NSA surveillance are the result of too much secrecy.

Wisconsin Supreme Court to hear challenge to voter ID law; proponent of Wisconsin voter ID law claims that people who can't vote just don't care; and, Massachusetts House approves early voting and online registration.

Online impersonators are not protected by the First Amendment, according to the Pennsylvania Supreme Court.

Disgruntled businessman uses newspaper editor's name to direct people to hardcore porn website.

Police use of license plate readers draws criticisms from privacy groups.

Rep. John Lewis speaks about President Kennedy's complicated relationship with civil rights.

 

CRL&P Morning Reads: Oct. 28, 2013

High school student who dressed as a homeless man pursuant to an assignment gets suspended for failing to identify himself to school officials quickly enough.

Christian school allegedly required black student to attend spiritual retreat glorifying Confederate history and Confederate flag.

ACLU requests that ICE immediately desist arresting people arriving at the courthouse to pay traffic tickets.

New GPS tracking projectile allows police to attach GPS to vehicles reducing the risk of chases.

New report says President Obama did not know about NSA's surveillance of foreign leaders.

Saudi women to continue campaign for right to drive.

 

Restroom battles emerge in transgender rights cases

The title of this post come from this article about the recent victory of two transgender individuals before the Iowa Civil Rights Commission. Although born as men, these two women will now be able to use women's restrooms in public places. The article states in part:

These cases, along with milestones such as the University of Northern Iowa's crowning of transgender student Steven Sanchez as its homecoming queen this month, bring visibility to a new set of rights issues in Iowa.

"Civil rights for black people didn't happen overnight, and it won't happen overnight for trans people, either," said Jodie Jones, an Iowa City transgender who won a dispute over whether she could use the women's restroom at the Johnson County Courthouse. "But I feel like we've moved the ball forward."

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CRL&P Daily Reads: Oct. 25, 2013

Gun-rights advocates are planning to start collecting signatures in an attempt to recall California lawmakers who supported proposed gun regulations.

Greensborough police captain's civil rights lawsuit alleging discrimination by PD moved to federal court.

American Prospect argues that the Surpreme Court's reliance on two post-Reconstruction decisions have limited available remedies to victims of sexual assualt.

ACLU files amicus brief on behalf of secure email service provider facing contempt charges for failure to cooperate with U.S. government.

N.C. Attorney General and potential gubernatorial candidate speaks out on new voter ID law.

Homelessness among American K-12 students is growing.

 

Upcoming article draws attention to largely overlooked Supreme Court civil rights decision

In his upcoming article Snubbed Landmar: How United States v. Cruickshank Truncated the Reconsturction Amendments and Racialized Class Politics in America, Professor James Gray Pope argues that traditional narratives about the development of civil rights jurisprudence have failed to account for the precedential case that started it all: United States v. Cruikshank, 92 U.S. 546 (1876). According to Pope, the legal academy has created a "tale of progress" largely by ignoring Cruikshank's restriction on the Fourteenth Amendment's mandate to federal actions; its tailoring of the privileges and immunities clause; and, its limitation o the available protection of the Fourteenth and Fifteenth Amendments to racial minorities. "The results," argues Pope, "have been obfuscation and distortion." In fact, Cruikshank stymied "cross-racial movements" that might have led to a more promising futures. In the end, he urges: "It is long past time for this jurisprudentially inventive, politically pivotal, and socially schismatic case to take its proper place at the heart of the American constitutional narrative and pedagogical canon."

For those interested Supreme Court and civil rights history, this article provides valuable and intruiging insights that are well worth the time.

CRL&P related posts:

• Today in Civil Rights History: Decision in Civil Rights Cases announced
• New research suggests lynched teenager's innocence
• Today in Civil Rights History: Martin Luther King, Jr. wins Nobel Peace Prize

CRL&P Daily Reads: Oct. 24, 2013

Texas voter ID law could cause problems for newly married or divorced women, although Slate observes that there is very little data to support claims of either side.

Civil rights group seeks meeting with Barney's CEO to discuss racial profiling allegations made by two shoppers who had been detained following expensive purchases.

ACLU files lawsuit to compel Missouri to disclose supplier of execution drugs.

BLT notes that federal court judge declined to dismiss former legal secretary's pregancy discrimination against firm.

Michael Steele discusses the institutional obstacles faced by HBCUs.

Michigan Gov. Rick Snyder dodges questions about his stance on extending civil rights to LGBT community.

Hiding the Statute in Plain View: University of Texas Southwestern Medical Center v. Nassar

The title of this post comes from this recent article arguing the Supreme Court's recent decision in University of Texas Southwestern Medical Center v. Nassar used an approach to statutory interpretation different from the standard it had previously required. Here's the abstract:

The Supreme Court decided in University of Texas Southwestern Medical Center v. Nassar that the “a motivating factor” level of proof to establish liability set forth in §§ 703(m) and the same-decision defense to full remedies of 706(g)(2)(B) of Title VII of the Civil Rights Act of 1964 does not apply to claims of retaliation brought pursuant to § 704(a). Instead, Title VII retaliation must be the “but-for” cause of the adverse action plaintiff challenges. The obvious impact of Nassar is that it makes it more difficult for plaintiffs to prove retaliation. In some ways, Nassar is a surprise because the Court had consistently held for plaintiffs in a number of retaliation cases. In other ways, it was not a surprise that the Court would move its retaliation jurisprudence more in line with its recent pro-employer, anti-civil rightsinterpretation of statutes typified by its decision in Gross v. FBL Financial, Inc. To reach its desired decision, the Court had to forego the plain meaning approach to statutory interpretation that in Gross it said was to be used. The Court reached its conclusion by hiding the terms and the structure of Title VII in plain sight while replacing the actual terms of the statute with terms of its own creation. Further, the majority of the Court was captivated by a hypothetical presented by counsel for the employer of employees gaming retaliation law, a fact pattern that does not appear to have happened in any reported case, with that captivation indicative of the majority’s perspective favoring employers over employees in its recent antidiscrimination decisions.