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Critics of antidiscrimination law have long lamented that the Supreme Court is devoted to a shallow, formal version of equality that fails to account for substantive inequities and stands in the way of affirmative efforts to remediate systemic injustice. But these criticisms are primarily focused on the Supreme Court's interpretations of race discrimination law. The Court's most recent foray into statutory sex discrimination law, Bostock v. Clayton County, employed formalistic reasoning to move the law in an expansive direction, interpreting Title VII's sex discrimination provision to prohibit discrimination against lesbian, gay, and transgender employees. Examining post-Bostock developments, this Article asks whether formal equality might have more potential to advance civil rights than previously thought. It argues that "formal equality" is not a single legal inquiry; rather, in practice, it takes the form of at least three distinct tests. These tests lead to different results in different sex discrimination controversies, such as whether it is discrimination to treat someone adversely for being bisexual or nonbinary; to single out pregnancy, menstruation, breasts, or other aspects of reproductive biology for disparate treatment; to enforce sex-specific dress codes; to exclude transgender people from restrooms consistent with their gender identities; to ban genderaffirming health care; or to restrict who can change the sex designations on their identity documents. Although no formal test neatly maps onto prevailing normative theories and sociological insights about what discrimination is, in recent cases, courts have used formal tests to achieve results consistent with those theories. This account suggests that, rather than insisting that courts adopt substantive tests, civil rights scholars might reconsider the virtues of formalism. [ABSTRACT FROM AUTHOR]

An editorial is presented on discourse, scholarship, and research on social work education in 2023. Topics include initial licensing exam required in some states immediately after graduation is necessary, propose abolishing licensing altogether, and immediately addressing the financial effect on social workers of color; and explore making social work education more accessible by encouraging or helping to facilitate paid field placements.

This article examines the process for seeking redress under Australia's racial vilification laws. Recently, the debate concerning pt IIA of the Racial Discrimination Act 1975 (Cth) has focused on unmeritorious complaints and the importance of quickly terminating such complaints. This article argues that pt IIA establishes a civil wrong and that corrective justice provides an appropriate framework for understanding the process by which complainants may seek redress for this wrong. However, the remedial process currently fails to provide corrective justice in two ways. First, conciliation is compulsory and this unduly restricts complainants from commencing proceedings. This is inconsistent with the public character of vilification, which indicates that public vindication may be more appropriate than private settlement. Second, current costs rules may deter complainants from seeking vindication of their rights. Therefore, these rules should be modified in proceedings for racial vilification. [ABSTRACT FROM AUTHOR]

The global outbreak of COVID-19 in 2020 unleashed virulent xenophobia and a tide of racial hatred. There have been increasing reports of racist hostility in the digital environment. Former President Trump's racist remarks on social media platforms allowed these divides to resurface in the United States. Racial hostility in the virtual world has already fostered aggressive behavior in the offline world. In some cases, it has crossed the line from online hate speech to real-world hate crime. Cyber racism creates new challenges for the American legal system. This research investigates the possibility of regulating cyber racism in the United States from a comparative perspective. The introduction provides background information and introduces the structure of the research. Part I analyzes the international legal framework governing racial discrimination and suggests that due to the lack of enforcement power, the world cannot rely upon the international legal system for racial justice. Instead, individual countries must take responsibility for fighting racism. Part II examines cyber racism in the United States from two aspects: (1) the urgent need to address cyber racism, and (2) the constitutional challenges under current First Amendment jurisprudence. Part III proposes a multi-faceted approach that encompasses both legal and non-legal responses to combat cyber racism in the United States. In this Part, the practices of some of the world's most democratic countries, namely, France and Australia, are assessed from a comparative perspective. In the legal context, the French and Australian models provide persuasive authority for the United States Supreme Court to impose more restrictions on racist speech while interpreting the First Amendment. This article also suggests that the Australian scrutiny tests strike a better balance between the right of free speech and the right to freedom from racism than equivalent U.S. tests. Therefore, the Australian system could provide a great reference for the United States Supreme Court as it seeks to solve problems in applying the Brandenburg test. Furthermore, a well-designed conciliation process also provides an effective avenue for aggrieved parties to seek racial justice. In the nonlegal context, increased responsibility for internet intermediaries and antiracism education are crucial in combating cyber racism. Part IV concludes the research by re-emphasizing the importance of regulating cyber racism in the United States. It is hoped that the solutions proposed in this research can strengthen the arsenal of tools available to prevent cyber racism. [ABSTRACT FROM AUTHOR]

The 2020 election showed the importance of faith in the democratic system and the ability for citizens to cast a ballot for federal, state, and local races. After the election, state legislatures will be redrawing federal, state, and local electoral districts. Those new districts will affect the voting rights of nearly every American. This Note examines Section 2 of the Voting Rights Act of 1965, which has traditionally afforded minority group members the opportunity to challenge discriminatory electoral policies that thwart the ability "to participate in the political process and to elect representatives of their choice." This is an important avenue that minority group members can seek to remediate biased districting processes. Claims brought by one minority group at a time--such as a Black community suing to be a majority in a newly drawn electoral district after being discriminated against in the district drawing process--have been commonplace for several decades. But given the diversifying country, these standard challenges are becoming insufficient. A newer and more controversial theory pursued by litigants under Section 2 is the "aggregated claim"--which is a joint claim brought by two or more minority groups saying essentially, "We've been discriminated against collectively." This Note asks the question of whether aggregated claims are permitted under Section 2 and argues that they are. In particular, this Note examines the impact of a 2009 Supreme Court case, Bartlett v. Strickland, on the viability of aggregated claims, and makes a novel argument based on statutory interpretation that such claims should be permitted. [ABSTRACT FROM AUTHOR]

The article examines how the U.S. Supreme Court's decision in Flowers v. Mississippi may alter the approaches in which lower courts analyze claims of racial discrimination in the use of preemptory challenges. Topics discussed include the value of equal protection in jury selection, the Court's decision in Batson v. Kentucky, and pre-Batson approach to racial bias in jury selection.

This Article makes the case that twin plagues endemic to American law--the routine of police violence and its unequal impact on Black lives and other people of color--are rooted in the invention and application of qualified immunity by the courts and the legal profession. For the past four decades, the Supreme Court has eroded civil rights enforcement, echoing the late 1800s when the Supreme Court nullified the achievements of our Second Founding following the Civil War. Congress passed 42 U.S.C. § 1983 to protect Black lives and civil rights from unlawful state-sanctioned violence amidst widespread racial terror. The Supreme Court's invention and expansion of qualified immunity in Harlow v. Fitzgerald and beyond has obstructed § 1983's intended achievement. A grotesque judicial policy judgment underlies the doctrine: that it is in the interest of "society as a whole" to immunize unlawful police violence. Qualified immunity inscribes unlawful violence into the DNA of law enforcement. The Author offers several contributions to our understanding of qualified immunity and to the public dialogue regarding abolition. First, because qualified immunity undermines § 1983's anti-racist goal to protect Black lives and civil rights and given the pernicious unequal impact of police violence on persons of color, we should call it what it is: qualified immunity is a racist policy that lawyers and judges have perpetrated in communities across the nation. It must be abolished. Second, this Article identifies absurdity at the heart of qualified immunity doctrine, which protects officers from all but clearly established violations of law. The justification for qualified immunity is directly at odds with how it operates, further supporting abolition. Third, through analysis of Tenth Circuit qualified immunity appeals 2017-2020, this Article demonstrates the weaponization of interlocutory appeal to delay and frustrate justice: 95% of all qualified immunity appeals by defendants during this timeframe were interlocutory. Out of sixty total defense appeals, only three occurred after final judgment. This shows jury trials shepherd cases to settlement and accountability, a goal frustrated by qualified immunity interlocutory appeals. Though often described as a "shield," a better metaphor for qualified immunity might be to understand it as a litigation machine. This litigation machine incentivizes wasteful interlocutory appeals by officers of the denial of qualified immunity which delay cases for years, impose costs on plaintiffs, and deter the filing of civil rights cases. This Article calls for the reinvigoration of American courts as forums for rights enforcement by American juries. Qualified immunity must be abolished and § 1983 permitted to function as an anti-racist statute for the protection of Black lives and civil rights, and the rights of all persons. Following Colorado's lead, states should create their own state constitutional causes of action similar to § 1983, but which eliminate qualified immunity, expanding access to justice. More rights enforcement and officer accountability, not less, is what society values and demands. Yet no matter what we accomplish legislatively, ultimately judges will decide whether to permit our courts to enforce civil rights through jury trials, or whether to invent new ways to obstruct access to justice. For this reason, we must choose judges who believe in rights enforcement and who understand the demand that Black lives matter. [ABSTRACT FROM AUTHOR]

Systemic racism in the United States is pervasive. It runs through every aspect of society, from healthcare to education. Changing all of the parts of society touched by racism is necessary; however, this Article does not provide a cure for systemic racism. It seeks to address a byproduct of this racism: police brutality. Over and over, headlines broadcast the deaths of Black Americans at the hands of the police--why has nothing changed? This Article argues that meaningful reform requires trust in U.S. law enforcement, which can only be achieved by holding police accountable and deterring misconduct. To do so, this Article proposes reconsidering police licensing to guarantee more thirdparty, unbiased oversight. [ABSTRACT FROM AUTHOR]

Public libraries are on the frontline of serving underprivileged groups like racialized youth and help them to mitigate social inequities that manifest in negative outcomes like education gaps, underemployment and access to safe and affordable housing. Although racialized youth account for half of the youth population in Canadian cities like Toronto, their experience in public libraries is an unstudied area of Canadian LIS scholarly and professional research. Existing research approaches youth as a homogenous group in terms of age and biological stages and does not account for race, class, and urbanism. However, racialized youth face different challenges in which race and systemic racism are a facet of everyday life. This work aims to reverse racial neutrality in public libraries by demonstrating how ambivalence about race perpetuates systemic inequalities and the disengagement of racialized youth. It draws on interdisciplinary research to show how the race-blind approach is not reflective of the needs of communities being served. Using a Critical Race Theory (CRT) framework, it shows that public libraries can implement processes to gather race-specific data under the recently-implemented Anti-Racism Act (2017). This will provide a contextual understanding of the racial make-up of users and provide a valuable frame of reference to support efforts to build stronger and more effective relationships. [ABSTRACT FROM AUTHOR]

The European Union (EU) became a pioneer of the promotion of human rights and democratic values especially during the last decades. However, the members of the EU are not immune from the human rights violations including the areas of "equality" and "non-discrimination" that are related to racism, discrimination and xenophobia. "Antigypsyism", a form of racism, is among the most challenging human rights areas for the member states despite all recent initiatives. In this research, the use of EU competences to combat antigypsyism is analysed with case studies. It is argued that the use of the competences is limited. [ABSTRACT FROM AUTHOR]

This article focuses on two of the earliest Chinese law students in the United States who deployed their legal knowledge and advocacy skills to fight against the Chinese Exclusion Act and its related laws in the early 1900s. Ho Yow, the fourth Chinese national to ever attend law school in the United States, performed this courageous task as Chinese consul to the United States. His fellow countryman Yeung Fong joined in this battle by conducting a full-fledged systematic study of the racist laws, becoming the first Chinese national who wrote a master's thesis on this controversial topic. [ABSTRACT FROM AUTHOR]

The article discusses equal rights protection under the U.S. federal law Civil Rights Act of 1866. Topics explored include the protection of individuals against racial discrimination with regard to the enforcement of contracts, the use of Section 1981 of the U.S. Constitution by civil rights attorneys, and brief details of the court case Macedonia Church v. Lancaster Hotel which involves third-party beneficiaries in contract theory.

The article explores law aimed to keep fair housing interests in the familiar affirmatively furthering fair housing (AFFH) planning environment. Topics discussed include limits and promise of institutional reform litigation; segregation-producing practices; passage of the Fair Housing Act (FHA) in 1968; and affordable housing crisis amid increasing economic development activity in the U.S.

The article examines the barriers to achieve the racial and ethnic integration, specifically the longstanding political resistance to integration remedies. Topics discussed include limits and promise of institutional reform litigation; segregation-producing practices; and politics of advancing integration like passage of the Fair Housing Act (FHA) in 1968.

Before the Second World War it was a cardinal Commonwealth principle that intra-imperial disputes must be kept away from international fora. Yet in 1946 the not-yet-independent India complained to the United Nations about South African legislation discriminating against people of Indian origin. It did so without seeking Britain's approval, and went on to level fierce criticism at Britain's opposition to the UN General Assembly's discussion of the matter. This article explains the circumstances which led to these events; uncovers the divergent responses of the relevant British government departments - the India Office, the Dominions Office, and the Foreign Office - and shows how they were resolved; depicts the way in which Britain's delegation to the General Assembly handled the matter; and discusses the significance and consequences of the dispute for South Africa and for Anglo-Indian relations. [ABSTRACT FROM AUTHOR]

In this paper, I argue that exceptions to the Fair Labor Standards Act permitting the use of prison labor at sub-minimum wages are a form of legalized race discrimination. This discrimination is the result of: firmly entrenched structures of oppression that lead to the incarceration of people of color, particularly men of color, at markedly higher rates than white people; prison job training programs that exploit prisoners' labor for the benefit of corporations without noticeably improving prisoners' job prospects upon their release; and hiring trends outside of prison that clearly disfavor formerly incarcerated and nonwhite workers. Corporations that choose to use prison labor generally compartmentalize tasks performed by prison workers and those performed by civilian workers along the same lines used to classify "white" and "non-white" jobs prior to the enactment of Title VII. The tasks reserved for prisoners under this system are generally lower wage, lower skilled manufacturing jobs, while those reserved for civilian workers come with higher wages, more skilled tasks, and are more likely to be customer-facing. The result is that companies frequently choose to assign the least desirable, most menial tasks to prison workers, a group primarily made up of people of color, while these same companies hire predominantly white civilian workers to perform higher-skill jobs. This trend is actually magnified in jurisdictions that have "banned the box,"1 where employers are hiring fewer Black and Latinx workers than they hired when permitted to ask about criminal records on application paperwork. This amplifies the discriminatory effects of this statutory loophole.2 This counterintuitive outcome suggests that, rather than providing additional opportunities for formerly incarcerated workers, employers are reacting to these laws by treating race as a proxy for criminal history. [ABSTRACT FROM AUTHOR]

The disproportionate placement of racial minorities and males into special education for learning disabilities (LDs) raises concerns that classifications occur inaccurately or inequitably. This study uses data from the Education Longitudinal Survey of 2002 to investigate the social etiology of LD classifications that persist into adolescence. Findings suggest the overclassification of racial minorities is largely consistent with (clinically relevant) differences in educational performance. Classifications may occur inconsistently or subjectively, with clinically irrelevant qualities like school characteristics and linguistic-immigration history independently predictive of disability classification. Finally, classifications may be partially biased, with male overclassification largely unexplained by this study’s measures and racial minorities’ risk of classification increased in schools with fewer minorities (the latter not statistically significant). [ABSTRACT FROM AUTHOR]

The article discusses Alabama Court of Appeals' decision in the case "McQuirter v. State," which figures prominently in many criminal law casebooks. Topics discussed include the standard account set by McQuirter to emphasize the role race played in the case; evolving law of attempts that gave judges and juries increased opportunities for racial discrimination; and ways in which American criminal law shifted from the pattern of manifest criminality to the pattern of subjective criminality.

Congress passed Title VII of the Civil Rights Act of 1964 with the primary goal of integrating the workforce and eliminating arbitrary bias against minorities and other groups who had been historically excluded. Yet substantial research reveals that racial bias persists and continues to limit opportunities and outcomes for racial minorities in the workplace. Because these denials of opportunity result from myriad individual hiring and promotion decisions made by vast numbers of managers, finding effective strategies to reduce the impact of bias has proven challenging. Some have proposed that a sense of accountability, or "the implicit or explicit expectation that one may be called on to justify one's beliefs, feelings, and actions to others," can decrease bias. This Article examines the conditions under which accountability to a committee of peers reduces racial bias and discrimination. More specifically, this Article provides the first empirical test of whether an employment committee's racial composition influences the decision-making process. My experimental results reveal that race does in fact matter. Accountability to a racially diverse committee leads to more hiring and promotion of underrepresented minorities than does accountability to a homogeneous committee. Members of diverse committees were more likely to value diversity, acknowledge structural discrimination, and favor inclusive promotion decisions. This suggests that accountability as a debiasing strategy is more nuanced than previously theorized. If simply changing the racial composition of a committee can indeed nudge less discriminatory behavior, we can encourage these changes through voluntary organizational policies like having an NFL "Rooney Rule" for hiring committees. In addition, Title VII can be interpreted to hold employers liable under a negligence theory to encourage the types of changes that yield inclusive hires and promotions. [ABSTRACT FROM AUTHOR]

The article focuses on Article 20(2) of the International Covenant on Civil and Political Rights (ICCPRT) stressing on prohibition of incitement to race or religion-based discrimination, hostility or violence. Topics discussed include need for governments to punish and deter acts of criminal incitement, First Amendment protections of the U.S. Constitution, and Article 19(3) of the ICCPR to evaluate incitement cases.

To prevent inflated property tax bills, the Michigan Constitution prohibits property tax assessments from exceeding 50% of a property's market value. Between 2009 and 2015, the City of Detroit assessed 55%-85% of its residential properties in violation of the Michigan Constitution, and these unconstitutional assessments have had dire consequences. Between 2011 and 2015, one in four Detroit properties have been foreclosed upon for nonpayment of illegally inflated property taxes. In addition to Detroit, the other two cities in Michigan's Wayne County where African-Americans comprise 70% or more of the population--Highland Park and Inkster--have similarly experienced systemic unconstitutional assessments and unprecedented property tax foreclosure rates. This Essay explores whether property tax administration policies in Wayne County disparately impact African-Americans in violation of the Fair Housing Act. I find that unconstitutional assessments and property tax foreclosures occur at a significantly higher rate in Wayne County's predominately African- American cities than in its predominately white ones. More importantly, the county's property tax equalization policy has failed to correct these disparities, leading to a violation of the Fair Housing Act. Unjust property tax administration was frequently used to dispossess African-Americans of their lands and other property during the Jim Crow era. Although the motives may be different, this deplorable form of institutional racism is resurgent in Michigan. [ABSTRACT FROM AUTHOR]

The project of using social science to help win equal protection claims is doomed to fail if its premise is that the Supreme Court post- McCleskey just needs more or better evidence of racial discrimination. Everyone--including the Justices of the Court--already knows that racial discrimination is endemic in the criminal justice system. Social science does help us to understand the role of white supremacy in U.S. police and punishment practices. Social science also can help us understand how to move people to resist, and can inform our imagination of the transformation needed for equal justice under the law. [ABSTRACT FROM AUTHOR]

Both discrimination by private employers and governmental restrictions in the form of statutes that prohibit professional licensing serve to exclude the formerly incarcerated from much of the labor market. This Essay explores and analyzes potential legislative and contractual means for removing these barriers to labor market participation by the formerly incarcerated. First, as a means of addressing discrimination by the state, Part I of this Essay explores the ways in which the adoption of racial impact statements--which mandate that legislators consider statistical analyses of the potential impact their proposed legislation may have on racial and ethnic groups prior to enacting such legislation--could help to reduce labor market discrimination against the formerly incarcerated. In so doing, this Part analyzes the influence of racial impact statements in the few states that have implemented them. Part II of this Essay examines the possibility of a contractual solution that could help to decrease discrimination against the formerly incarcerated in the private labor market, particularly by those employers who rely on the labor of imprisoned individuals. Specifically, this Part uses the fact that many private corporations rely on and profit from lowwage prison labor to argue that the state penal institutions that lease prisoners to such corporations should push for contractual agreements that stipulate that corporations relying on prison labor must revoke policies that bar employing the formerly incarcerated upon their release. In addition, this Part explicates how contractual stipulations may also provide for affirmative hiring policies for the formerly incarcerated. Finally, this Essay concludes by highlighting how failure to address continued labor market discrimination against the formerly incarcerated could render the formerly incarcerated a permanent economic underclass, thereby undermining notions of fairness and equality. [ABSTRACT FROM AUTHOR]

The litigation campaign that led to McCleskey v. Kemp did not begin as an anti-death-penalty effort. It grew in soil long washed in the blood of African-Americans, lynched or executed following rude semblances of trials and hasty appeals, which had prompted the NAACP from its very founding to demand "simple justice" in individual criminal cases. When the Warren Court signaled, in the early 1960s, that it might be open to reflection on broader patterns of racial discrimination in capital sentencing, the NAACP Legal Defense & Educational Fund, Inc. (LDF) began to gather empirical evidence and craft appropriate constitutional responses. As that effort built, other deficiencies in state capital states became apparent, and LDF eventually asserted a broader constitutional critique of state capital structures and processes. By 1967, LDF and its allies had developed a nationwide "moratorium" campaign that challenged death sentencing statutes in virtually every state. Though the campaign appeared poised for partial success in 1969, changes in Court personnel and shifts in the nation's mood dashed LDF's initial hopes. Yet unexpectedly, in 1972, five Justices ruled in Furman v. Georgia that all death sentences and all capital statutes nationwide would fall under the Eighth Amendment's prohibition against cruel and unusual punishments. Each of the nine Furman Justices wrote separately, without a single governing rationale beyond their expressed uneasiness that the death penalty was being imposed infrequently, capriciously, and in an arbitrary manner. Thirty-five states promptly enacted new and revised capital statutes. Four years later, a majority of the Court held that three of those new state statutes met Eighth and Fourteenth Amendment standards. The 1976 Court majority expressed confidence that the states' newly revised procedures should work to curb the arbitrariness and capriciousness that had earlier troubled the Furman majority. The McCleskey case emerged from subsequent review of post-Furman sentencing patterns in the State of Georgia. A brilliant and exhaustive study by Professor David Baldus and his colleagues demonstrated that the Court's assumptions in 1976 were wrong; strong racial disparities in capital sentencing continued to persist statewide in Georgia--especially in cases in which the victims of homicide were white. The Supreme Court eventually heard and decided this case, ruling five to four against Warren McCleskey's claims in 1987. Justice Lewis Powell's opinion purported to accept in theory, but appears grievously to have misunderstood or disregarded in fact, McCleskey's powerful and unrebutted evidence of racial discrimination. Justice Powell's decision likewise appears to have contorted the Court's prior Eighth and Fourteenth Amendment jurisprudence, erecting all-but-insuperable future barriers against statistical proof of racial discrimination anywhere within the criminal justice system. This Symposium reflects on the handiwork of the Court in McCleskey and its subsequent impact. As one member of the legal team who brought the case, my contribution is to speculate on how and why the Court might have acquiesced in the face of such troubling patterns in capital sentencing, despite the Justices' clear condemnation of racial discrimination in principle and their occasional intervention to curb particularly egregious acts of racial injustice. This Essay ends by encouraging social scientists and legal scholars to continue to uncover and oppose patterns of racial discrimination that remain widespread in the administration of criminal justice. [ABSTRACT FROM AUTHOR]

This Essay asserts that in McCleskey v. Kemp, the Supreme Court created a problematic standard for the evidence of race bias necessary to uphold an equal protection claim under the Fourteenth Amendment of the U.S. Constitution. First, the Court's opinion reinforced the cramped understanding that constitutional claims require evidence of not only disparate impact but also discriminatory purpose, producing significant negative consequences for the operation of the U.S. criminal justice system. Second, the Court rejected the Baldus study's findings of statistically significant correlations between the races of the perpetrators and victims and the imposition of the death penalty within Georgia criminal courts as insufficient proof of discriminatory intent, overlooking unconscious and structural racism. Third, Justice Lewis Powell's approach to causation in McCleskey would have rendered almost any social science study incapable of proving the existence of race bias to his satisfaction, creating an unduly high bar for proving intent. Furthermore, this Essay contrasts the Court's use of the Baldus data in McCleskey with its use of social science data in other cases. For example, in oral arguments for a recent gerrymandering case, Gill v. Whitford, Chief Justice John Roberts summarily rejected the utility of applying empirical findings. In Brown v. Board of Education, by contrast, the Court positively endorsed studies on the harms of racial segregation that were less robust than the Baldus data. In response to uneven uses of empirical data in these cases, this Essay suggests approaches courts might develop to distinguish between stronger and weaker empirical evidence, including an update of how appellate courts review research introduced under the Daubert v. Merrell Dow Pharmaceuticals, Inc. standard. In the wake of decisions such as McCleskey, and the troubled history of considerations of race within social science research, this Essay also articulates the unique challenges that must be confronted when courts consider data on racial impact. [ABSTRACT FROM AUTHOR]

This Essay seeks to draw connections between race, sexual orientation, and social science in Supreme Court litigation. In some respects, advocates for racial minorities and sexual minorities face divergent trajectories. Among those asserting civil rights claims, LGBT rights claimants have been uniquely successful at the Court ever since Romer v. Evans in the mid-1990s. During this period, advocates for racial minorities have fought to preserve earlier victories in cases such as Regents of the University of California v. Bakke and have failed to overturn precedents that strictly limit equal protection possibilities, such as McCleskey v. Kemp. Nonetheless, we argue that the Court's "fear of too much justice" links race and sexual orientation cases and helps to explain victories as well as losses. Even when advocates win in a case like Obergefell v. Hodges or Grutter v. Bollinger, the Court carefully cabins its opinion so as not to destabilize the social hierarchy. We illustrate this claim through a close examination of the use of social science in Obergefell. The Court disregarded evidence suggesting that same-sex couples and parents experience positive differences, as compared to heterosexuals, such as instilling greater respect for gender and sexual orientation equality in their children. The Court also asserted the innocence of opponents of same-sex marriage, ignoring evidence linking the denial of access to marriage to homophobia. In short, a movement to upend homophobic marriage laws was itself confined by homophobia, which influenced which arguments lawyers and Justices could articulate. [ABSTRACT FROM AUTHOR]

The Northwestern University Law Review's 2017 Symposium asked whether McCleskey v. Kemp closed the door on social science's ability to meaningfully contribute to equal protection deliberations. This inquiry is understandable; McCleskey is widely understood to have rendered statistical racial disparities doctrinally irrelevant in the equal protection context. We suggest, however, that this account overstates McCleskey and its doctrinal impact. Roughly fifteen years after McCleskey, Chief Justice William Rehnquist--himself part of the McCleskey majority--invoked admissions data to support his conclusion that the University of Michigan Law School unconstitutionally discriminated against white applicants. Chief Justice Rehnquist's disparate treatment of statistical evidence in McCleskey and Grutter v. Bollinger reveals the doctrine's underdeterminacy and invites a corresponding inquiry: why do Justices rely on social science in some cases, yet reject it in others? We propose that one answer lies at the intersections of Critical Race Theory (CRT) and empirical scholarship on motivated social cognition. This "eCRT" lens illuminates how ostensibly neutral biases and heuristics, when informed by socially salient racial stereotypes, will predictably and systematically lead judges to overvalue "evidence" that rationalizes existing racial disparities and, as a result, author legal opinions that re-instantiate and legitimize the status quo. [ABSTRACT FROM AUTHOR]

McCleskey v. Kemp, the case that upheld the death penalty despite undeniable evidence of its racially disparate impact, is indelibly marked by Justice William Brennan's phrase, "a fear of too much justice." The popular interpretation of this phrase is that the Supreme Court harbored what I call a "disparity-claim fear," dreading a future docket of racial discrimination claims and erecting an impossibly high bar for proving an equal protection violation. A related interpretation is that the majority had a "color-consciousness fear" of remedying discrimination through raceremedial policies. In contrast to these conventional views, I argue that the primary anxiety exhibited by the McCleskey majority was a "leniency fear" of death penalty abolition. Opinion author Justice Lewis Powell made clear his view that execution was the appropriate punishment for McCleskey's crime and expressed worry that McCleskey's victory would open the door to challenges of criminal sentences more generally. Understanding that the Court's primary political sensitivity was to state penal authority, not racial hierarchy, complicates the progressive sentiment that McCleskey's call-toaction is securing equality of punishment. Derrick Bell's "interest convergence" theory predicts that even conservatives with an aversion to robust equal protection law will accept racial-disparity evidence when in the service of crime-control values. Indeed, Justice Powell may have been more sanguine about McCleskey's discrimination claim had mandatory capital punishment been an option. Accordingly, I caution that, outside of the death penalty context, courts and lawmakers can address perceived punishment disparities through "level-up" remedies, such as mandatory minimum sentences or abolishing diversion (which is said to favor white defendants). There are numerous examples of convergence between antidiscrimination and prosecutorial interests, including mandatory sentencing guidelines, aggressive domestic violence policing and prosecution, and the movement to abolish Stand-Your-Ground laws. [ABSTRACT FROM AUTHOR]

Ideologies are most successful (or most dangerous) when they become common sense--when they become widely accepted, taken-forgranted truths--because these truths subsequently provide implicit guidelines and expectations about what is moral, legitimate, and necessary in our society. In Regents of University of California v. Bakke, the Court, without a majority opinion, considered and dismissed all but one of several "common-sense" rationales for affirmative action in admissions. While eschewing rationales that focused on addressing discrimination and underrepresentation, the Court found that allowing all students to obtain the educational benefits that flow from diversity was a compelling rationale--essential, even, for a quality education. Although ostensibly pro-diversity, this rationale positioned diversity as conditional on the educational benefit to the student body as a whole, including white students. Armed with social science evidence, subsequent affirmative action jurisprudence in Grutter and Fisher reinforced this rationale. While these cases proved favorable to affirmative action, the reasoning surrounding the benefits of diversity may prove deleterious to inclusion efforts in the long run. In this Essay, we first review the intellectual history of "diversitybenefits" ideology in these key affirmative action cases, focusing on the recruitment of social science by litigants, amici, and the Court. We focus on how these legal actors have used social science to construct a view of diversity as a benefit to all, including dominant groups. In contrast, we note that the impact of discrimination and lack of diversity on historically marginalized groups has been largely, though not entirely, absent from this social science literature. We then examine the interracial contact framework that pervades the diversity-benefits literature, arguing that this approach is psychologically one-sided in that it focuses more on the benefits Whites receive from diversity than on how nondominant groups experience diversity. Moreover, because diversity-benefits ideology positions Whites as key beneficiaries, it could create a sense of entitlement to diversity. We explain that while it appeals to egalitarian sensibilities, it can simultaneously appeal to Whites' psychological desires to maintain their position at the top of the social hierarchy. Finally, we discuss an experiment we conducted to examine how four rationales based on those in Bakke affect policy support. Preliminary results suggest that diversity-benefits language may lead Whites to support policies that center benefits to white students more than policies tailored for nondominant racial groups. Furthermore, the study provides initial support for the role that egalitarianism and preference for racial hierarchy together can play in cultivating a common-sense entitlement to diversity. [ABSTRACT FROM AUTHOR]

In McCleskey v. Kemp, the Supreme Court refused to accept statistical evidence of race discrimination in an equal protection challenge to the death penalty. This lecture, on the decision's thirtieth anniversary, locates McCleskey in cases of the Burger and Rehnquist Courts that restrict proof of discriminatory purpose in terms that make it exceedingly difficult for minority plaintiffs successfully to assert equal protection claims. The lecture's aims are both critical and constructive. The historical reading I offer shows that portions of the opinion justify restrictions on evidence to protect prosecutorial discretion, while others limit proof of discrimination in ways that seem responsive to conservative claims of the era about race, rights, and courts. Scrutinizing the Court's reasons for restricting inferences from statistical evidence opens conversations about the principles on which McCleskey rests and the decision's prospective reach. A close reading of the decision has led some courts to interpret McCleskey's restrictions on statistical evidence as a response to particular concerns raised by the record in that case, opening the door to statistical evidence of bias in other equal protection challenges in criminal cases. At the same time, revisiting McCleskey and its progeny raises questions about the capacity of courts to redress bias in the criminal justice system. Three decades of living with McCleskey teaches that it is important to design remedies for bias in the criminal justice system that do not depend solely on judges for their implementation. [ABSTRACT FROM AUTHOR]

The article addresses law enforcement's rampant misuse of arrest records, focusing on the New York City Police Department's practices. It argues how such misuse has resulted in unwarranted punishment for unproven crimes and noncriminal violations, and has further led to racially disparate law enforcement practices. It suggests lawyers using existing sealing statutes as a tool to counter the police's misuse of arrest information.

This Article seeks to provide the most comprehensive national-level empirical analysis of misdemeanor criminal justice that is currently feasible given the state of data collection in the United States. First, we estimate that there are 13.2 million misdemeanor cases filed in the United States each year. Second, contrary to conventional wisdom, this number is not rising. Both the number of misdemeanor arrests and cases filed have declined markedly in recent years. In fact, national arrest rates for almost every misdemeanor offense category have been declining for at least two decades, and the misdemeanor arrest rate was lower in 2014 than in 1995 in almost every state for which data is available. Third, there is profound racial disparity in the misdemeanor arrest rate for most--but not all--offense types. This is sobering if not surprising. More unexpectedly, perhaps, the variation in racial disparity across offense types has remained remarkably constant over the past thirty-seven years; the offenses marked by the greatest racial disparity in arrest rates in 1980 are more or less the same as those marked by greatest racial disparity today. Our findings confirm that the scale of misdemeanor justice is vast, but contradict the notion that it is expanding. In addition, we document a surprising degree of uniformity in misdemeanor trends. Such consistency suggests that the misdemeanor system may have a deeper and more uniform structure than we anticipated. [ABSTRACT FROM AUTHOR]

This Essay examines how the Supreme Court has used conceptions of time and the passing of time to narrow the definition of racial discrimination and, ultimately, to constrain the very meaning of equal protection. The Essay challenges the common notion in equal protection that as time passes, discrimination and its harmful effects dissipate and eventually expire. Based largely on this notion, courts set artificial time horizons for identifying the continuing vestiges of past discrimination, which in turn rationalizes persisting inequality in the present. Using social science, the Essay explains how social conceptions of time discourage deeper inquiry into the relationship between past discrimination and present systemic inequality. It proposes that equal protection reject notions that discrimination naturally subsides so that courts and other constitutional actors may more freely explore these connections between past and present. [ABSTRACT FROM AUTHOR]

The Christmas story has been retold so often, through sermons, church plays, popular literature, and movies, that a false memory has been constructed. This memory romanticizes the birth of Jesus, thus masking the radical political implications of the event. All too often, we read the Gospels with privileged eyes, thus transforming the Christmas story into a hopeful salvific tale, if not legend. But the Jesús narratives can be read as anti-colonial literature about a native resident living under an invading colonial foreign power. This article reads the familiar story through the eyes of marginalized Latinxs (Latinos/as), who live under the consequences of colonization. [ABSTRACT FROM AUTHOR]

This article examines narratives of anti-blackness and the myth of white superiority to clarify why violence against black bodies is part of American identity and to discern how that cycle of violence might be broken. Churches are vital in the process of opening white minds to the realities and consequences of American myths of anti-blackness and white supremacy. Until such a time as churches become literate in all facets of systemic racism, the cry to “stop the violence” will be meaningless. [ABSTRACT FROM AUTHOR]

The article address the transportation and housing planning institutions bound by law to advance the goals of civil rights such as racial discrimination, and environmental justice in the U.S. Topics discussed include provision of Americans with Disabilities Act and Fair Housing Act to prevent discrimination; racism and discrimination that existed in affordable housing; and importance of planning at the regional scale with metropolitan planning organizations.

The article address the transportation planning institutions bound by law to advance the twin goals of civil rights and environmental justice in the U.S. Topics discussed include the U.S. Supreme Court decision in the case "Texas Department of Housing and Community Affairs v. Inclusive Communities Project;" racism and discrimination that existed in affordable housing; and importance of planning at the regional scale with metropolitan planning organizations.

In 2014 Jennifer Cramblett, a white lesbian, filed a Complaint for Wrongful Birth alleging that the Midwest Sperm Bank mistakenly provided sperm from an African-American donor. In this article, we trace the complex and overlapping lines of legal and social inheritance that have conditioned not only the possibility of such a lawsuit, but also the legal language and arguments within the Complaint itself. First, we trace the racial politics of homonormativity, which set the conditions of possibility for an out, white lesbian to bring this case forward. Second, we trace the inheritance of wrongful birth tort law, reviewing its prior race and disability-related uses, and its basis in feminist reproductive rights. Third, we trace how disability, race and sexuality interlock within the eugenic inheritance of both 'wrongful birth' and reproductive technologies. Finally, we follow traces of racial inheritance, namely, the loss of white property and proximity to whiteness. [ABSTRACT FROM AUTHOR]

The article focuses on race-and poverty-based discrimination arguments figured prominently in early constitutional litigation and Court's silence on the relationship between race, poverty, sex equality, and family status. It mentions cases concerning the constitutional rights of unmarried fathers became a battleground for competing conceptions of parenthood outside of marriage. It also mentions consequences of constitutional law's erasure on family status equality claims.