Equality and Liberty

  • November 14, 2013
    Guest Post
    by Valerie Schneider, Assistant Professor of Law and Director of Fair Housing Clinic, Howard University School of Law
     
    Less than one year after the Supreme Court ended its term with the gutting of the Voting Rights Act, it is clear that at least four of the members of the current Supreme Court (the number needed for a case to be heard by the highest court) are eager to limit the reach of another pillar of the Civil Rights legislation from the 1960s -- the Fair Housing Act.
     
    In the past two years, the Supreme Court has granted certiorari in two Fair Housing Act cases, both of which would have required the Supreme Court to determine whether acts that are not intentionally discriminatory, but still have a disproportionate negative impact on minority communities, may be prohibited by the Fair Housing Act.  Each of these cases -- first Magner v. Gallagher and then, just this week, Township of Mt. Holly v. Mt. Holly Gardens Citizens In Action, Inc. – settled just weeks before oral arguments were scheduled.
     
    Those who would have liked the case to move forward argue that, unless plaintiffs can prove that a defendant harbored racial animus or intended to discriminate, the law should not recognize that discrimination has taken place. This proposition is countered by widely accepted social science, not to mention human experiences, that indicates that intent actually has very little to do with whether discrimination occurred.  Regardless, to those displaced by discriminatory redevelopment decisions or lending policies, it is little comfort that the decision-makers may have had no conscious intent to cause harm based on race. What is in the mind of those engaged in discriminatory actions is of no comfort to the victims of discrimination and should be of limited import under the Fair Housing Act.
     
  • November 4, 2013
    Guest Post
    by Sam Bagenstos, Professor of Law, University of Michigan Law School; former Principal Deputy Assistant Attorney General for Civil Rights, U.S. Department of Justice
     
    The Americans with Disabilities Act (ADA) is our nation’s Emancipation Proclamation for people with disabilities, and it is the envy of the world.  The United States is far more accessible than any other nation.  Americans with disabilities have far greater opportunities to participate in the mainstream of political, civic and economic life than do individuals with disabilities in other countries.  Although our nation has not yet fully realized the promise of the ADA, we are far ahead by any international standard.  The point is sometimes hard for me to remember as I spend my time fighting to ensure that states and private entities comply with the ADA.  But every time I meet with students or activists with disabilities from other countries, they heap praise on America’s commitment to accessibility and inclusion.
     
    But America’s leadership on disability access has been drawn into question, because we have not yet ratified the UN Convention on the Rights of Persons with Disabilities (CRPD).  This convention, colloquially known as the Disability Treaty, embeds the principles of the ADA in international human rights law.  It was opened for signature in 2007 and came into force in 2008 when 20 countries ratified it.  President Obama signed the treaty in 2009, but the Senate has refused to ratify it.  Last December, a ratification vote narrowly failed, with the measure receiving 61 of the necessary 67 votes in the Senate.
     
    The Senate is poised to take up the treaty again soon, with a hearing in the Foreign Relations Committee scheduled for this week.  This time around, here’s hoping the Senate heeds the counsel of the treaty’s bipartisan band of supporters—including such Republican stalwarts as former President George H.W. Bush, former Senate Republican Leader Bob Dole, former Attorney General, Senator and Governor Dick Thornburgh, 2008 Republican presidential nominee Senator John McCain and former Secretary of Homeland Security Tom Ridge—and consents to ratification.
  • October 31, 2013
    Guest Post
    by Emily J. Martin and Cortelyou Kenney, National Women's Law Center. Ms. Martin is the Vice President and General Counsel of the NWLC. Ms. Kenney is a Cross-Cutting Legal Projects Fellow at the NWLC.
     
    Thirty-five years ago today, the Pregnancy Discrimination Act (PDA) was signed into law, remedying the Supreme Court’s 1976 decision in General Electric Company v. Gilbert which held that discrimination on the basis of pregnancy was not sex discrimination, but rather discrimination between pregnant and non-pregnant persons. Congress acted quickly to rebuke this analysis by passing the PDA, which recognizes what is obvious to most – that discrimination on the basis of pregnancy is unlawful discrimination on the basis of sex. The PDA also makes clear that women affected by pregnancy, childbirth, or related conditions must be treated at least as well as other employees “not so affected but similar in their ability or inability to work.” As a result of the PDA, once-common policies – such as forcing pregnant women off the job regardless of their ability to work – are no longer permissible.
     
    Yet pregnancy discrimination still persists more than a generation after the PDA’s passage. This is in part because stereotypes about pregnant women persist in the workplace, despite the law’s protection. But even more troublingly, pregnancy discrimination also persists because some courts have read the language of the PDA narrowly, ignoring both its plain language and its intent while also limiting its protections for pregnant workers.
     
    Specifically, courts have opened loopholes in the PDA that have too often left without protection those women who need temporary work accommodations because of pregnancy. Many women work through their pregnancies without any need for accommodation, but some pregnant workers, particularly those who work in more physically demanding or less flexible jobs, need some adjustments in work rules or duties. When their requests for reasonable accommodations – such as being allowed to carry a water bottle, refrain from climbing ladders, or avoid heavy lifting – are refused, pregnant workers must often choose between their paycheck and a healthy pregnancy even when their employers provide similar accommodations to employees who need them because of disability or injury.
  • October 31, 2013
    Guest Post
    by Gerald Torres, Marc and Beth Goldberg Distinguished Visiting Professor of Law, Cornell Law School; Bryant Smith Chair, University of Texas Law School
     
    A recent Huffington Post article by Alex Palombo accuses Texas of discriminating against women in the exercise of the franchise because it has imposed new rules for voting which require all Texans to…
     
    “…show a photo ID with their up-to-date legal name. It sounds like such a small thing, but according to the Brennan Center for Justice, only 66 percent of voting age women have ready access to a photo document that will attest to proof of citizenship. This is largely because young women have not updated their documents with their married names, a circumstance that doesn’t affect male votes in any significant way. Suddenly 34 percent of women voters are scrambling for an acceptable ID while 99 percent of men are home free.”
     
    The law also imposes requirements of original documents for name change and a minimum fee of $20 to obtain acceptable copies of the documents. These requirements, in conjunction with registration deadlines, will leave many women unable to vote. Palombo views this as an assault on the 19th Amendment and women’s right to vote, suggesting that “if the Tea Party gets their way, the only people left to vote will be wealthy white men.”
     
    Is this column another example of fear mongering from the Left? Rather than a regressive return to the days when women had no independent political existence, let alone a right to vote, Texas’ new laws surely represent the strongest possible statement supporting women’s independent personhood.  Governor Perry and his legislative confederates cannot have intended to keep women from voting or to impose new, oppressive barriers to women’s participation in the political process, right? That would be illegal.
  • October 23, 2013
    Guest Post
    by William Kidder, the Assistant Provost at UC Riverside. Mr. Kidder’s post represents his personal views and not necessarily those of the UC administration. Mr. Kidder has a book review of Mismatch forthcoming in the Texas Law Review and a policy brief on the impact of Michigan’s Proposal forthcoming through the UCLA Civil Rights Project. His article on California’s Proposition 209 was published last spring in the Journal of College and University Law.
     
    In discussing scientific evidence, Justice Breyer articulated a bare minimum standard that judges need to meet in order to protect the public interest and parties to litigation: “Consider the remark made by physicist Wolfgang Pauli. After a colleague asked whether a certain scientific paper was wrong, Pauli replied, ‘That paper isn’t even good enough to be wrong.’ Our objective is to avoid legal decisions that reflect that paper’s so-called science.  The law must seek decisions that fall within the boundaries of scientifically sound knowledge.”  
     
    Regrettably, in last week’s oral argument in Schuette v. Coalition to Defend Affirmative Action, there were times where Michigan’s solicitor general John Bursch advanced arguments about higher education that aren’t “even good enough to be wrong” and that, if accepted, would leave the Court in a wilderness outside of the boundaries of sound statistics and social science knowledge. 
     
    In response to Justice Sotomayor’s question about the impact of California’s affirmative action ban, Bursch claimed, “The statistics in California across the 17 campuses in the University of California system show that today the underrepresented minority percentage is better on 16 out of those 17 campuses.  It’s not at Berkeley; they haven’t gotten there yet; but its better on the rest.” There are only ten UC campuses, not seventeen.  Of these campuses nine UC campuses (and eight with undergraduates) permit a comparison of pre- and post-affirmative action periods.
     
    In contextualizing Bursch’s claims, it is also helpful to address African Americans, American Indians and Latinos separately. Most directly responsive to Bursch’s dubious claim are total enrollment figures (though that means combining undergraduate, graduate and professional school students). Compared to a baseline of 1996 (before California’s affirmative action took effect), the percentage of African Americans in 2012 is lower on a majority of UC campuses: Berkeley, Davis, Los Angeles, San Diego and San Francisco. The negative impact of prohibiting affirmative action is greatest at the most selective campuses that disproportionately train future leaders.  At UC Berkeley African Americans were 5.1 percent of students in 1996 and only 3.3 percent in 2012, fifteen years after the campus implemented myriad rigorous race-neutral efforts to improve diversity. At UCLA African Americans were 5.8 percent of total enrollment in 1996, and 3.9 percent in 2012.