Law Commons^™

Rental Home Sweet Home: The Disparate Impact Solution For Renters Evicted From Residential Foreclosures, David Lurie

Northwestern University Law Review

At the end of the last decade, a drastic spike in residential foreclosures brought unprecedented attention to the damage that mass foreclosure often brings to primarily low-income, minority–majority communities. Much of this attention—in both the media and in the legal arena—has been devoted to homeowners disadvantaged by predatory loans and other unsavory practices. However, a recent body of scholarship has shown that the brunt of mass foreclosure often falls on renters, who often have little or no procedural protection from speedy and unexpected eviction from their homes, regardless of lease status or tenure. This Note argues that the Supreme Court’s …

Postracial Remedies, Derrick Darby, Richard E. Levy

University of Michigan Journal of Law Reform

The Supreme Court’s equal protection jurisprudence is decidedly postracial. The Court has restricted the Equal Protection Clause to intentional discrimination by the government, concluding that the Constitution does not prohibit private acts of discrimination and rejecting challenges based on disparate impact, even when rigorous statistical analysis indicates that race is likely a factor. It has held that remedying the effects of past societal discrimination is an insufficient basis for race-specific remedies such as affirmative action. It has also ended remedies of this sort designed to combat previous state-sponsored racial discrimination, such as court-ordered desegregation measures in the schools and the …

Race, Shelby County, And The Voter Information Verification Act In North Carolina, Michael D. Herron, Daniel A. Smith

Florida State University Law Review

Shortly after the Supreme Court in Shelby County v. Holder struck down section 4(b) of the Voting Rights Act (VRA), the State of North Carolina enacted an omnibus piece of election- reform legislation known as the Voter Information Verification Act (VIVA). Prior to Shelby, portions of North Carolina were covered jurisdictions per the VRA’s sections 4 and 5—meaning that they had to seek federal preclearance for changes to their election procedures— and this motivates our assessment of whether VIVA’s many alterations to North Carolina’s election procedures are race-neutral. We show that in presidential elections in North Carolina black early voters …

Affirmatively Furthering Neighborhood Choice: Vacant Property Strategies And Fair Housing, James J. Kelly Jr.

Journal Articles

When many of us think about fair housing enforcement, scenes involving undercover apartment applicants ferreting out racially biased landlords come to mind. Indeed, fair housing "testers" have been and continue to be an important element of civil rights accountability.' However, implementation of the Fair Housing Act of 1968 has had at least as much to do with increasing the supply of decent, affordable housing options to members of protected groups as with assuring those individuals that they will not be denied a particular housing unit because of the color of their skin or a disability.

This macro aspect of fair …

The Fight For Equal Protection: Reconstruction-Redemption Redux, Kermit Roosevelt Iii, Patricia Stottlemyer

All Faculty Scholarship

With Justice Scalia gone, and Justices Ginsburg and Kennedy in their late seventies, there is the possibility of significant movement on the Supreme Court in the next several years. A two-justice shift could upend almost any area of constitutional law, but the possible movement in race-based equal protection jurisprudence provides a particularly revealing window into the larger trends at work. In the battle over equal protection, two strongly opposed visions of the Constitution contend against each other, and a change in the Court’s composition may determine the outcome of that struggle. In this essay, we set out the current state …

Disparate Impact And The Role Of Classification And Motivation In Equal Protection Law After Inclusive Communities, Samuel Bagenstos

Articles

At least since the Supreme Court’s 2009 decision in Ricci v. DeStefano, disparate-impact liability has faced a direct constitutional threat. This Article argues that the Court’s decision last Term in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc., which held that disparate-impact liability is available under the Fair Housing Act, has resolved that threat, at least for the time being. In particular, this Article argues, Inclusive Communities is best read to adopt the understanding of equal protection that Justice Kennedy previously articulated in his pivotal concurrence in the 2007 Parents Involved case—which argued that …

Race And Crime Sixty Years After Brown V. Board Of Education, Donald A. Dripps

San Diego Law Review

Whether the Court, let alone the electorate, has the political will to start down this path is another question. But I remind myself that Dr. King did not despair in his Birmingham jail cell, that Ruth Bader Ginsburg did not despair when asked by the Dean of the Harvard Law School why she was taking a place from a man, and that Evan Wolfson did not despair when the high Court declared that any claim of a constitutional right to private sex between consenting adults was “at best, facetious.”

Ever since abolitionism, the heroes of every American civil rights movement …

Distinguishing Disparate Treatment From Disparate Impact; Confusion On The Court, Michael C. Harper

Faculty Scholarship

In two decisions in the 2014-2015 Term, Young v. United Parcel Service, Inc., and Equal Employment Opportunity Commission v. Abercrombie & Fitch, Inc., the Court seemed to give contradictory answers to an important unresolved conceptual definitional question: Does disparate treatment include assigning members of a protected group based on their protected status to a larger disfavored group that is defined by neutral principles and that includes others who are not members of the protected group? Or does such assignment have only a disparate impact on the protected status group?

In Young, the first of these decisions, all members of the …

Watson And Subjective Hiring Practices: The Continuing Saga Of Industrial Psychology, Title Vii And Personnel Selection, Daniel L. Bell

Akron Law Review

This comment will analyze Watson from both a legal and industrial psychological perspective. Part one of the comment discusses the legal impact of Watson. First, the Supreme Court's analytical framework for Title VII discrimination claims is presented. Next, Watson is analyzed in the context of prior case law to consider its potential impact on employment discrimination litigation.

Part two concentrates on the role of industrial psychology in the Watson decision. First, the comment introduces industrial psychology. The association of industrial psychology, Title VII, and personnel selection is presented next. Finally, the comment presents current industrial psychological research concerning several …

Transformation: Turning Section 2 Of The Voting Rights Act Into Something It Is Not, J. Christian Adams

Touro Law Review

No abstract provided.

Disparate Impact, School Closures, And Parental Choice, Nicole Stelle Garnett

Nicole Stelle Garnett

We live in an era of parental choice. Today, forty-two states and the District of Columbia authorize charter schools, and twenty states and the District of Columbia permit students to use public funds to attend a private school. During the 2012-2013 school year, nearly 2 million children attended charter schools, and nearly 250,000 children received publicly funded scholarship to attend a private school. The expanding menu of publicly funded educational options is one (but by no means the only) factor contributing to the current, intensely controversial, waves of urban public school closures. In school-closure debates, proponents of traditional public schools …

What’S Hud Got To Do With It?: How Hud’S Disparate Impact Rule May Save The Fair Housing Act’S Disparate Impact Standard, William F. Fuller

Fordham Law Review

Since 2011, the U.S. Supreme Court has granted certiorari three times on the question of whether disparate impact liability is cognizable under the Fair Housing Act (FHA). The first two times, the parties settled. The question is before the Court once again in Texas Department of Housing & Community Affairs v. Inclusive Communities Project, Inc., and this time the parties seem unlikely to settle.

Disparate impact liability in the civil rights context entails liability for actions that have a discriminatory effect, regardless of an actor’s motive. Under the FHA, this can translate into liability for actions that make housing …

Disparate Impact And Integration: With Tdca V. Inclusive Communities The Supreme Court Retains An Uneasy Status Quo, Rigel C. Oliveri

Faculty Publications

This article begins with a brief history of disparate impact theory as it relates to fair housing cases. It then proceeds to an overview of two previous cases on this issue to reach the Supreme Court in recent years. Next, it analyzes the Inclusive Communities opinion, discussing both the Court's affirmation of integration as a fair housing goal and its skepticism of whether plaintiffs can succeed using disparate impact theory in cases like the one at bar. The article concludes by locating the opinion's focus on competing priorities within the historical tension between affordable housing/community development and integration and discussing …

Griggs At Midlife, Deborah A. Widiss

Articles by Maurer Faculty

Griggs v. Duke Power, the Supreme Court case that held that policies that disproportionately harm minority employees can violate federal employment discrimination law even without evidence of “intentional” discrimination, recently turned forty. Griggs is generally celebrated as a landmark decision, but disparate impact’s current relevance (and its constitutionality) is hotly debated. Robert Belton’s The Crusade for Equality in the Workplace offers a rich and detailed history of the strategic choices that led to the plaintiffs’ victory in Griggs. This Review uses Belton’s history as a jumping off point to consider the contemporary importance of disparate impact in efforts to challenge …

Are Disparate Impact Claims Cognizable Under The Fair Housing Act: Texas Department Of Housing And Community Affairs V. Inclusive Communities Project, Rigel C. Oliveri

Faculty Publications

The Fair Housing Act (FHA) makes it illegal to refuse to sell or rent or to "otherwise make unlawful or deny" housing to a person because of a protected characteristic, including race. The case asks the Court to determine whether the FHA covers disparate impact claims, where a plaintiff alleges discrimination based on the disparate impact that a defendant's facially neutral practice has on members of a group who share a protected characteristic.

A Response To Professor Choper: Laying Down Another Ladder, Sheri Lynn Johnson

Sheri Lynn Johnson

No abstract provided.

The Metamorphosis Of Comparable Worth, Nancy E. Dowd

Nancy Dowd

The concept of comparable worth has as its factual predicate two typical characteristics of women's employment: occupational concentration or segregation and significantly lower wages compared to those paid to men. What continues to be most troubling about this employment pattern is its stubborn persistence, despite the increased presence of women in the workforce and the existence for over two decades of legislation prohibiting sex discrimination in employment. The concept of comparable worth has provoked an outpouring of emotional rhetoric and scholarly analysis debating the concept’s viability and desirability. Rather than add to that debate, Professor Dowd traces the evolution of …

Employment Discrimination In The United States In 1989: Revisions Or A Pause, Josef Rohlik

Georgia Journal of International & Comparative Law

No abstract provided.

Citizenship, Aliengage, And Ethnic Origin Discrimination In Employment Under The Law Of The United States, Mack A. Player

Georgia Journal of International & Comparative Law

No abstract provided.

A Comparative Analysis Of Unconscious And Institutional Discrimination In The United States And Britain, Leland Ware

Georgia Journal of International & Comparative Law

No abstract provided.

The New Racial Justice: Moving Beyond The Equal Protection Clause To Achieve Equal Protection, Emily Chiang

Florida State University Law Review

Since handing down Washington v. Davis and Arlington Heights v. Metropolitan Housing Development, the United States Supreme Court has significantly curtailed the ability of plaintiffs to bring disparate impact claims under the Equal Protection Clause. Many academics continue to talk about the standards governing intent and disparate impact. Some recent scholarship recognizes that reformers on the ground have shifted away from equality-based claims altogether. This Article contends that civil rights advocates replaced the old equal protection framework some time ago and that they did so deliberately and with great success. It expands upon and refines the strategy shift some …

Disparate Impact, School Closures, And Parental Choice, Nicole Stelle Garnett

Journal Articles

We live in an era of parental choice. Today, forty-two states and the District of Columbia authorize charter schools, and twenty states and the District of Columbia permit students to use public funds to attend a private school. During the 2012-2013 school year, nearly 2 million children attended charter schools, and nearly 250,000 children received publicly funded scholarship to attend a private school. The expanding menu of publicly funded educational options is one (but by no means the only) factor contributing to the current, intensely controversial, waves of urban public school closures. In school-closure debates, proponents of traditional public schools …

In Defense Of Disparate Impact: Urban Redevelopment And The Supreme Court’S Recent Interest In The Fair Housing Act, Valerie Schneider

Missouri Law Review

Twice in the past three years, the Supreme Court has granted certiorari in Fair Housing cases, and, each time, under pressure from civil rights leaders who feared that the Supreme Court might narrow current Fair Housing Act jurisprudence, the cases settled just weeks before oral argument. Settlements after the Supreme Court grants certiorari are extremely rare, and, in these cases, the settlements reflect a substantial fear among civil rights advocates that the Supreme Court’s recent decisions in cases such as Shelby County v. Holder and Fisher v. University of Texas are working to dismantle many of the protections of the …

A Revolution At War With Itself? Preserving Employment Preferences From Weber To Ricci, Sophia Z. Lee

All Faculty Scholarship

Two aspects of the constitutional transformation Bruce Ackerman describes in The Civil Rights Revolution were on a collision course, one whose trajectory has implications for Ackerman’s account and for his broader theory of constitutional change. Ackerman makes a compelling case that what he terms “reverse state action” (the targeting of private actors) and “government by numbers” (the use of statistics to identify and remedy violations of civil rights laws) defined the civil rights revolution. Together they “requir[ed] private actors, as well as state officials, to . . . realize the principles of constitutional equality” and allowed the federal government to …

Responding To Environmental Injustice: The Civil Rights Act And American Federal Institutional And Systemic Barriers To Private Redress Of Disparate Environmental Harm, Michael B. Jones, Peter J. Jacques

Florida A & M University Law Review

This article discusses the use of private action in federal institutions for relief from disparate racial impacts. The courts have eliminated consideration of § 602 disparate impact regulations as the basis for a private right of action challenging environmental harms. Legislative action seems unlikely in this era of gridlock and partisan polarization. Agency action seems to offer the most avenues for consideration of environmental justice concerns. However, agencies are bureaucratic and subject to election results, Congressional oversight and budgetary limitations, and backlogs of determination of environmental justice complaints. Deeply rooted systemic institutional racism further constrains possible reforms to the federal …

Employment Discrimination Against Ex-Offenders: The Promise And Limits Of Title Vii Disparate Impact Theory, Tammy R. Pettinato

Marquette Law Review

none

Giving Meaning To 'Meaningful Access' In Medicaid Managed Care, Mary Crossley

Articles

As states seek to shift Medicaid recipients with disabilities out of traditional fee-for-service settings and into managed care plans, vexing questions arise about the impact on access to needed care and providers for beneficiaries with medically complex needs. With many states expanding their Medicaid program as part of health care reform and cost-containment pressures continuing to mount, this movement will likely accelerate over the next several years. This Article examines the possibility that disability discrimination law might provide a mechanism for prodding states in the planning stage to anticipate and plan for likely access issues, as well as for challenging …

Disabling The Gender Pay Gap: Lessons From The Social Model Of Disability, Michelle Travis

Michelle A. Travis

As we celebrate the fiftieth anniversary of Title VII’s prohibition against sex-based compensation discrimination in the workplace, the gender wage gap remains robust and progress toward gender pay equity has stalled. This article reveals the role that causal narratives play in undermining the law’s potential for reducing the gender pay gap. The most recent causal narrative is illustrated by the “women don’t ask” and “lean in” storylines, which reveal our society’s entrenched view that women themselves are responsible for their own pay inequality. This causal narrative has also embedded itself in subtle but pernicious ways in antidiscrimination doctrine, which helps …

Employment Discrimination: Recent Developments In The Supreme Court (Symposium: The Supreme Court And Local Government Law: The 1992-93 Term), Eileen Kaufman

Eileen Kaufman

At a symposium entitled, “The Supreme Court and Local Government Law; The 1992/93 Term”, Professor Eileen Kaufman spoke about the cases involving employment discrimination that were decided during that particular Term, Hazen Paper Company v. Biggins and St. Mary's Honor Center v. Hicks. While Hazen is an age discrimination case and St. Mary's is a Title VII case, they can be viewed as companion cases which serve to explain what an employment discrimination plaintiff must now establish when attempting to prove disparate treatment by indirect evidence. By way of preview, suffice it to say that plaintiff's task has been made …

Saving Disparate Impact, Lawrence Rosenthal

Lawrence Rosenthal

No abstract provided.