Equality and Liberty

  • January 20, 2015
    Guest Post

    by Valerie SchneiderAssistant Professor of Law at Howard University School of Law.

    On Wednesday, January 21, the Supreme Court will hear arguments in Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc., one of the most important civil rights cases of the 2014-2015 Supreme Court term.  Via this case, the Justices will decide whether disparate impact claims – that is, claims where members of a protected class are disproportionately affected, but where intent to discrimination cannot be proven – are cognizable under the Fair Housing Act.

    Much has been written on the text, legislative history and case law that supports the validity of disparate impact analysis under the Fair Housing Act.  Indeed, as pointed out by many, in the Fair Housing Act’s over 45 year history, every circuit that has examined the issue has either assumed or decided that such claims are cognizable under the FHA.  The Department of Housing and Urban Development also weighed in last year, issuing a rule that clarifies the burden-shifting structure of such claims.  What is less examined, however, is why disparate impact analysis matters, not just as a litigation strategy, but as a behavior-modifier and as a moral imperative.

    Housing segregation was not just sanctioned, but explicitly enforced by public and private actors in our country for over 200 years. During that time, minorities were systematically denied not just access to housing, but access to all of the benefits that flow from housing opportunities:  educational opportunities, economic centers, healthy food, clean air, government services and many other critical threads in the fabric of American life. 

    After over 200 years of enforced segregation, housing discrimination has been prohibited for only 45 years.  Housing discrimination has been outlawed for less than one quarter of this country’s history. To say that prohibiting acts of intentional discrimination alone can reverse the ill-effects of our country’s long relationship with housing segregation is a fallacy.

  • December 16, 2014

    by Nanya Springer

    During his confirmation hearings in 2005, many voiced concerns that then-Supreme Court nominee John G. Roberts had consistently opposed attempts to strengthen women’s rights while he was a legal adviser in the Reagan White House.  Roberts responded to those concerns by generally reassuring the Senate Judiciary Committee that he supported equal rights for women, including in the workplace.  When asked about his position on abortion, Roberts responded that he would respect precedent, referencing the stare decisis principles articulated in Planned Parenthood v. Casey.

    Now that the Roberts Court has entered its tenth year, the Constitutional Accountability Center has released Roberts at 10: Roberts’s Quiet, But Critical, Votes to Limit Women’s Rights.  The newest installment in CAC’s Roberts at 10 series investigates how Roberts has approached women’s issues during his tenure as Chief Justice.  CAC points out that while there has been some progress on women’s issues in the past ten years, those victories have largely been in cases where there was little or no disagreement on the Court.  In cases that resulted in limiting workplace equality and reproductive freedom, however, the Court has typically been split 5-4 with Roberts joining the Court’s majority.

    The piece is best read in conjunction with previous installments, especially Roberts at 10: A Look at the First Decade of John Roberts’s Tenure as Chief Justice, which explains how Roberts’s position as Chief Justice allows him to influence the scope of Court decisions and the willingness of other justices to join the majority instead of write concurring opinions.

  • December 15, 2014

    by Paul Guequierre

    The Supreme Court today declined to hear a case out of Arizona seeking to end the blocking of a state law limiting the availability of medicinal, nonsurgical abortions.  Opponents of the law, which had been blocked by a lower court, say it would all but put an end to medication abortions in the state.  This is not the first time this year the justices sided with abortion rights advocates. In October the Supreme Court allowed more than a dozen abortion clinics in Texas to remain open, blocking a state law that would have shut them down.

    In Arizona, the 2012 law requires abortion providers to comply with a 2000 protocol from the Food and Drug Administration for mifepristone, an abortion-inducing drug that is sometimes called RU-486, reports The New York Times.  The Legislature said the law was meant to “protect women from the dangerous and potentially deadly off-label use of abortion-inducing drugs.” Since 2000, doctors have found the drug, in proper doses, is safe and effective, undermining the anti-choice intent behind the state law.  

  • December 15, 2014

    by Caroline Cox

    In The New York Times, Mark Bittman wonders whether inequality and injustice in the United States is bad enough yet to lead to change.

    On MSNBC's "Weekends with Alex WittEkow Yankah from Cardozo School of Law discusses if the nationwide protests in the wake of the deaths of Michael Brown and Eric Garner have formed into a movement.

    Steven Mazie considers whether Supreme Court justices are too privileged to understand the concerns of average Americans at Big Think.

    NPR’s All Things Considered” looks at a family’s fight to introduce a new law on how investigations occur when police shoot civilians.

    Michael Li writes for the blog of the Brennan Center for Justice on the major questions raised by the racial gerrymandering case before the Supreme Court.

    In The Washington Post, Terry Lenzer asserts that the Justice Department has retreated from civil rights protection.

  • December 15, 2014

    by Nanya Springer

    Investigative journalist Jo Becker spent four years embedded with the plaintiffs’ litigation team in Hollingsworth v. Perry, also known as the Prop 8 case. After the Supreme Court ruled on the case, she published Forcing the Spring: Inside the Fight for Marriage Equality, which provides rare insight into the privileged strategy discussions and work product materials of the attorneys.

    In Lessons for Law Reform Litigators, Alan B. Morrison, the Lerner Family Associate Dean for Public Interest and Public Service Law and Professional Lecturer in Law at George Washington University Law School, uses Becker’s account to extract lessons in strategy for attorneys who seek to institute social change through the courts.

    Morrison’s paper, published by The Green Bag, traces the evolution of the famous case, as told by Becker, and draws out pearls of wisdom as it goes. For example, after Prop 8 was struck down by the District Court, California’s governor and attorney general chose no longer to defend the discriminatory law. However, this created a problem for the Prop 8 plaintiffs who thought they could win at the Supreme Court. Absent an appeal from the state, and with no new same-sex marriages having taken place, the plaintiffs had a standing problem that threatened to impede the progression of the case through the courts and deny them the broad ruling they sought. The lesson?  Seemingly good news can be bad news for litigators seeking sweeping reforms to the law.

    Morrison, a co-faculty advisor of the ACS Student Chapter at GW Law, also discusses the importance of District Judge Vaughn Walker’s decision to hold a trial as opposed to resolving the case—in which no facts were disputed—through summary judgment. He explains that the trial not only allowed the plaintiffs to tell their personal stories, thereby educating the public and influencing public opinion, but also made it impossible for the defense to find an expert who was willing to testify in open court that same-sex marriage harms opposite-sex marriage.  The lesson?  While discovery can be used to expand upon the facts of a case, there is no substitute for the testimony of real, live witnesses.

    Morrison’s paper is not a book review, nor is it a law review article. Instead, Morrison, a co-founder and director for 25 years of the Public Citizen Litigation Group, uses the story of one of the greatest legal undertakings in recent history to provide tips and advice on litigation strategy.  For public interest attorneys, or anyone interested in taking on far-reaching public interest cases, it is worth a read.