Harvard CRCL

Ricci v. DeStefano: Declaring Civil War within Title VII – By William Yeomans

CRCL — Thu, 25 Feb 2010 15:19:13 +0000

It is the height of folly to make hard and fast predictions about the impact of freshly minted Supreme Court decisions, especially when the Court announces a new standard. Yet it is safe to predict that Ricci v. DeStefano, while not as devastating as some advocates have feared, will discourage some employers from voluntarily eliminating practices that disadvantage minority applicants, and could inflict far broader damage on efforts to ensure equal opportunity.

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. 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. 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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Making Employment Civil Rights Real – by Stephen Churchill

CRCL — Thu, 25 Feb 2010 15:17:54 +0000

When Title VII of the Civil Rights Act of 1964 passed, it was heralded as a long-overdue measure to eradicate discrimination. The law has had a profound effect on the workplace, both by helping to establish a public ethic against discrimination and by providing a mechanism by which victims of discrimination can seek redress. Both of these means, however, have run into barriers limiting their effectiveness.

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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The Dim Side Of The Bright Line: Minority Voting Opportunity After Bartlett v. Strickland – By Ryan P. Haygood

CRCL — Thu, 25 Feb 2010 15:16:26 +0000

When he left Congress in 1901, George White, an African American Republican from Tarboro, North Carolina, announced that it was “perhaps the Negro’s temporary farewell to Congress.” Mr. White’s premonition was right. Voters from North Carolina would not send another African American to Congress until 1992, nearly a century later, when Melvin Watt and Eva Clayton were elected from two majority-black districts. Their elections were made possible by the Voting Rights Act (“VRA” or “the Act”), which is widely regarded as the crowning achievement of the Civil Rights Movement, and has proven to be one of the most successful federal civil rights statutes, if not statutes of any kind, in American history.

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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New Public Spaces – by John Palfrey

CRCL — Thu, 25 Feb 2010 15:12:52 +0000

Digital environments are becoming the most important public spaces of the twenty-first century. These digital spaces are where many young people—and many older people, too—spend enormous amounts of time. These spaces are akin to the public parks, schoolyards, malls, and lecture halls of the physical world.1 These are places where social lives take place, where nearly all information is found and republished, and where important functions like learning and participating in civic life occur. With every passing year, digital technologies are mediating more and more of the ways that we lead our lives.

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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