Law and Race Commons^™

Racial Targets, Atinuke O. Adediran

Northwestern University Law Review

It is common scholarly and popular wisdom that racial quotas are illegal. However, the reality is that since 2020’s racial reckoning, many of the largest companies have been touting specific, albeit voluntary, goals to hire or promote people of color, which this Article refers to as “racial targets.” The Article addresses this phenomenon and shows that companies can defend racial targets as distinct from racial quotas, which involve a rigid number or proportion of opportunities reserved exclusively for minority groups. The political implications of the legal defensibility of racial targets are significant in this moment in American history, where race …

Enforcing Equity, Daiquiri J. Steele

Northwestern University Law Review

Federal administrative agencies that enforce workplace laws have dual responsibilities: (1) to prevent or remedy noncompliance with the underlying workplace law and (2) to prevent or remedy noncompliance with the law’s antiretaliation provisions. Disparities based on race, sex, and their intersection exist with respect to both of these types of employer noncompliance, as female workers and workers of color experience more violations of the substantive provisions and the retaliation provisions of these laws. While effective enforcement is vital to preserving workplace regulation as a whole, there is also an equity component to enforcement. Because workplace law violations disproportionately harm women …

Black Liberty In Emergency, Norrinda Brown

Northwestern University Law Review

COVID-19 pandemic orders were weaponized by state and local governments in Black neighborhoods, often through violent acts of the police. This revealed an intersection of three centuries-old patterns— criminalizing Black movement, quarantining racial minorities in public health crises, and segregation. The geographic borders of the most restrictive pandemic order enforcement were nearly identical to the borders of highly segregated, historically Black neighborhoods.

The right to free movement is fundamental and, as a rule, cannot be impeded by the state. But the jurisprudence around state power in public health emergencies, deriving from the 1905 case Jacobson v. Massachusetts, has practically resulted …

Pathology Logics, S. Lisa Washington

Northwestern University Law Review

Every year, thousands of marginalized parents become ensnared in the family regulation system, an apparatus more commonly referred to as the child welfare system. In prior work, I examined how the coercion of domestic violence survivors in the family regulation system perpetuates harmful knowledge production and serves to legitimize family regulation intervention. This Article focuses on another logic deeply embedded in the family regulation system: the pathologizing of impoverished and racialized groups. Scholars have discussed the pathologizing of marginalized groups to describe a host of different phenomena. In this Article, “pathology logic” refers to a logic that produces notions of …

Reimagining Public Safety, Brandon Hasbrouck

Northwestern University Law Review

In the aftermath of George Floyd’s murder, abolitionists were repeatedly asked to explain what they meant by “abolish the police”—the idea so seemingly foreign that its literal meaning evaded interviewers. The narrative rapidly turned to the abolitionists’ secondary proposals, as interviewers quickly jettisoned the idea of literally abolishing the police. What the incredulous journalists failed to see was that abolishing police and prisons is not aimed merely at eliminating the collateral consequences of other social ills. Abolitionists seek to build a society in which policing and incarceration are unnecessary. Rather than a society without a means of protecting public safety, …

New Federalism And Civil Rights Enforcement, Alexander Reinert, Joanna C. Schwartz, James E. Pfander

Northwestern University Law Review

Calls for change to the infrastructure of civil rights enforcement have grown more insistent in the past several years, attracting support from a wide range of advocates, scholars, and federal, state, and local officials. Much of the attention has focused on federal-level reforms, including proposals to overrule Supreme Court doctrines that stop many civil rights lawsuits in their tracks. But state and local officials share responsibility for the enforcement of civil rights and have underappreciated powers to adopt reforms of their own. This Article evaluates a range of state and local interventions, including the adoption of state law causes of …

Eddie Murphy And The Dangers Of Counterfactual Causal Thinking About Detecting Racial Discrimination, Issa Kohler-Hausmann

Northwestern University Law Review

The model of discrimination animating some of the most common approaches to detecting discrimination in both law and social science—the counterfactual causal model—is wrong. In that model, racial discrimination is detected by measuring the “treatment effect of race,” where the treatment is conceptualized as manipulating the raced status of otherwise identical units (e.g., a person, a neighborhood, a school). Most objections to talking about race as a cause in the counterfactual model have been raised in terms of manipulability. If we cannot manipulate a person’s race at the moment of a police stop, traffic encounter, or prosecutorial charging decision, then …

Section 5'S Forgotten Years: Congressional Power To Enforce The Fourteenth Amendment Before Katzenbach V. Morgan, Christopher W. Schmidt

Northwestern University Law Review

Few decisions in American constitutional law have frustrated, inspired, and puzzled more than Katzenbach v. Morgan. Justice Brennan’s 1966 opinion put forth the seemingly radical claim that Congress—through its power, based in Section 5 of the Fourteenth Amendment, to “enforce, by appropriate legislation,” the rights enumerated in that Amendment—shared responsibility with the Court to define the meaning of Fourteenth Amendment rights. Although it spawned a cottage industry of scholarship, this claim has never been fully embraced by a subsequent Supreme Court majority, and in City of Boerne v. Flores, the Supreme Court rejected the heart of the Morgan …

Blind Justice: Why The Court Refused To Accept Statistical Evidence Of Discriminatory Purpose In Mccleskey V. Kemp—And Some Pathways For Change, Reva B. Siegel

Northwestern University Law Review

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 …

What Can Brown Do For You?: Addressing Mccleskey V. Kemp As A Flawed Standard For Measuring The Constitutionally Significant Risk Of Race Bias, Mario L. Barnes, Erwin Chemerinsky

Northwestern University Law Review

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 …

Combating Discrimination Against The Formerly Incarcerated In The Labor Market, Ifeoma Ajunwa, Angela Onwuachi-Willig

Northwestern University Law Review

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 …

Equal Protection And White Supremacy, Paul Butler

Northwestern University Law Review

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.

The Futile Fourth Amendment: Understanding Police Excessive Force Doctrine Through An Empirical Assessment Of Graham V. Connor, Osagie K. Obasogie, Zachary Newman

Northwestern University Law Review

Graham v. Connor established the modern constitutional landscape for police excessive force claims. The Supreme Court not only refined an objective reasonableness test to describe the constitutional standard, but also held that the Fourth Amendment is the sole avenue for courts to adjudicate claims that police violated a person’s constitutional rights in using force. In this Essay, we ask: What impact did this decision have on the nature of police excessive force claims in federal courts? To address this, we engaged in a qualitative examination of 500 federal cases (250 in the twenty-six years before Graham and 250 in the …

Diversity Entitlement: Does Diversity-Benefits Ideology Undermine Inclusion?, Kyneshawau Hurd, Victoria C. Plaut

Northwestern University Law Review

Ideologies are most successful (or most dangerous) when they become common-sense—when they become widely accepted, taken-for-granted 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. …

Mccleskey V. Kemp: Field Notes From 1977-1991, John Charles Boger

Northwestern University Law Review

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 …

Equal Protection And The Social Sciences Thirty Years After Mccleskey V. Kemp, Destiny Peery, Osagie K. Obasogie

Northwestern University Law Review

No abstract provided.

Equal Protection Under The Carceral State, Aya Gruber

Northwestern University Law Review

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 race-remedial policies. In contrast to these conventional views, I argue that the primary anxiety …

"Our Taxes Are Too Damn High": Institutional Racism, Property Tax Assessment, And The Fair Housing Act, Bernadette Atuahene

Northwestern University Law Review

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 …

"Playing It Safe" With Empirical Evidence: Selective Use Of Social Science In Supreme Court Cases About Racial Justice And Marriage Equality, Russell K. Robinson, David M. Frost

Northwestern University Law Review

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 …

Eyes Wide Open: What Social Science Can Tell Us About The Supreme Court's Use Of Social Science, Jonathan P. Feingold, Evelyn R. Carter

Northwestern University Law Review

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 …