The public ethic against discrimination finds its barrier at the edge of consciousness. Almost everyone in the workplace understands that discrimination is prohibited, and this understanding reduces acts of open hostility or conscious discrimination. Far fewer people in the workplace understand how underlying stereotypes can operate at an unconscious level to affect workplace decisions. This form of discrimination, while less well understood, is also prohibited. As a result, discrimination continues to occur, even in an environment where it is condemned and even by people who share in its condemnation.

The enforcement mechanism has found its barrier in a legal environment where typical dispute resolution options are unattainable for most victims of discrimination. For most workers, it is prohibitively burdensome to obtain legal assistance or to take effective action.

Although it is necessary to address both of these barriers — the complex nature of discrimination and problems with the enforcement mechanism — this article focuses on the latter, ending with a discussion of possible solutions.

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But last term, the VRA came under attack on numerous fronts. Much attention4 has been paid to Northwest Austin Municipal Utility District Number One v. Holder (“NAMUDNO”), an unsuccessful challenge to the constitutionality of Section 5 of the Act.  However, with the spotlight focused so intently on NAMUDNO, a pivotal case arising from North Carolina concerning the reach of another crucial provision of the VRA, has not received sufficient attention.

In Bartlett v. Strickland, a fractured Supreme Court narrowly construed the protections of Section 2 of the Act as imposing a bright-line rule regarding when parties can state a claim for minority vote dilution. Specifically, a minority group must be capable of constituting a numerical majority of the voting-age population in a geographically compact area before Section 2 requires the creation of an electoral district to prevent dilution of that group’s votes. With its ruling in Bartlett, the Court conclusively answered a question that it had avoided on four previous occasions. In doing so, the Court prohibited North Carolina, a state that had previously gone nearly a century without an African American representative in Congress, from voluntarily preserving an election district that had reliably provided its African American residents with an opportunity to elect their candidate of choice.

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The disheartening core of Ricci is that five members of the Court view the twin prohibitions against discriminatory impacts and intentional discrimination contained in Title VII of the Civil Rights Act of 1964 as being at odds with each other.2 They have signaled that they will treat efforts to comply with the disparate impact prohibition as a form of race-conscious decision making.3 The Court imported a standard from inapposite cases involving challenges to race-conscious remedies pursuant to the Equal Protection Clause, requiring that an employer must have a “strong basis in evidence” before taking voluntary action to eliminate a disparate impact. 4 Although the precise content of the standard remains unclear, the decision certainly makes it more difficult for employers to voluntarily avoid practices that disproportionately disadvantage minority applicants. In the process of applying the standard, the Court appears to have lowered the bar for validation of employment tests, thus making it easier for employers to justify the use of tests that disadvantage minority applicants, and diminishing their ability to challenge employment practices successfully.

The decision could have been worse. Notably, it did not reach the significant question expressly left open by the majority and discussed by Justice Scalia in concurrence: whether Title VII’s disparate impact standard is inherently inconsistent with the Equal Protection Clause.5 In addition, on a practical level, the opinion leaves open the possibility that well-intentioned employers and determined plaintiffs may still find room to advance equal opportunity.

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In this essay, I explore several of the privacy and speech problems that arise in the context of lives partially mediated by digital technologies. I conclude by arguing that we should focus not just on the civil rights and civil liberties problems, but also on the opportunities afforded by life in these new public spaces online.

Risks Associated with Life in Online Public Spaces

Just as there are great things about life online, so, too, are there risks. Consider the prevalent behavior of those young Internet users who lead lives extensively mediated by digital technologies. Not all young people use technology the same way. There are important variations based on where one lives in the world, how much money one has, what age one is, one’s level of literacy, one’s gender, and so forth. Here, though, I focus on youth in developed countries, where Internet access is nearly ubiquitous and where the vast majority of young people go online multiple times per day.2

These wired young people do not distinguish much between life online and life offline—it is all just life. Teachers and parents, lawyers and law enforcement officers, technology companies and social networks: we all need to heed this lesson, too. And as we seek to protect our children in this hybrid world (as well as to live in it ourselves), we need to be sure not to trample on civil liberties like speech and privacy. Nowhere in today’s world are people striking this balance well; nowhere in today’s world do we yet see ample protection of safety and of civil liberties online. It is a noble and important goal, for our children and for all of us.

As we seek to understand emerging problems online—such as threats to safety and the privacy of our children—and to anticipate the future, we have to listen to our children and our grandchildren and seek to understand how their behaviors differ from those who are older.

Take the concept of identity, for instance. Identity formation is one of the ways in which young people often use technologies and relate to the world differently than those who came before.3 Young people shape their identities by what they wear and who their friends are, just as they always have. But they also shape their identities through the profiles that they create in online social networks, through the personalities that they develop while instant messaging and texting, and through blogs and LiveJournals and their avatars in games and virtual worlds. Identity is shaped in this converged space of online and offline.

Young people interact with both friends and strangers online. Their understanding of the word “friend” (as in, to “friend” someone on Facebook, for instance) is changing. They may consider someone they have never met, other than in an online chatroom, to be a close friend. They spend a great deal of time online with their friends—as they play games together, plan something that they might do later, share music and movies, or just chat—and chat, and chat (or: text, and text, and text). These are the spaces where growing up takes place.

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In recent years CR-CL has published articles by professors, practitioners, and students on varied topics including zoning the homeless, political lawyering, and the right to revolution. These and other subjects continue to be some of the most exciting and rapidly developing areas of the law, and we believe that the dialogue provided by CR-CL and other progressive journals will help to shape the future.

We regret that CR-CL cannot provide legal advice or referrals. For information on Harvard University admissions, please click here.

In recent years CR-CL has published articles by professors, practitioners, and students on varied topics including zoning the homeless, political lawyering, and the right to revolution. These and other subjects continue to be some of the most exciting and rapidly developing areas of the law, and we believe that the dialogue provided by CR-CL and other progressive journals will help to shape the future.

We regret that CR-CL cannot provide legal advice or referrals. For information on Harvard University admissions, please click here.

We welcome submissions of manuscripts, as well as ideas for comments and articles.