Civil Rights and Discrimination Commons^™

Antitrust And Economic Liberty, Doha Mekki

Center for Law and the Economy

Over the last few years, antitrust plaintiffs have won important victories in cases against digital platforms. They’ve won important cases involving real estate associations, elite private colleges, sports leagues, pharmaceutical companies, pork processors, and health insurers. In some cases, they have secured record-breaking jury verdicts and redress for harmed individuals.

The U.S. Department of Justice’s Antitrust Division has been active too. Last year, a federal court held that Google illegally maintained monopolies in general internet search and related search advertising markets. That case is about access to the information we see and use to make decisions about how we want …

Uncomfortably Reminiscent: Odonnell V. Harris County In History And Memory, Kellen R. Funk

Faculty Scholarship

In ODonnell v. Harris County, a federal trial court enjoined the misdemeanor bail system of Houston, Texas, freeing approximately 20,000 indigent defendants annually. To do this, the trial court drew upon Reconstruction era precedents establishing intensive federal oversight of state criminal proceedings. The court explicitly invoked the Civil War and Reconstruction transformation of the federal judiciary, comparing the County’s defenses to slavery era arguments. Conversely, when the en banc Fifth Circuit reviewed a similar order in Dallas, Texas, six years later, it rejected this historical framework, condemning such litigation as an impermissible “ongoing federal audit of state criminal proceedings.” …

Differential Validity In Fair Lending, Spencer Caro, Talia B. Gillis, Scott Nelson

Faculty Scholarship

Fair lending’s disparate impact doctrine aims to address lending disparities. But which disparities? Traditional fair lending has narrowly focused on equal outcomes — examining differences in loan approval rates or interest rates. However, this singular focus overlooks other dimensions of disparities that are essential for fair credit access. This article challenges the conventional emphasis on equal outcomes, demonstrating how it has failed to address deep-rooted inequalities in traditional credit allocation while also stifling innovation in machine-learning and alternative data. We argue that disparities in the validity of creditworthiness predictions — the accuracy with which a model identifies creditworthy applicants — …

Campus Crises And The Limits Of Title Vi, Suzanne B. Goldberg, Olatunde C.A. Johnson

Faculty Scholarship

This Piece examines the deployment of Title VI of the Civil Rights Act of 1964 as a mechanism for regulating campus conflict following the 2023 to 2024 campus protests and seeks to reset the discourse in light of the statute’s history, doctrine, and role in higher education. Title VI is an important tool for addressing identity-based harassment, epithets, and violence between students, but it is neither designed nor effective as a tool for negotiating clashes between universities’ cornerstone commitments to robust debate and an optimal learning environment for all students. In converting the statute from a source of protection against …

Understanding Processes That Produce Racial Disparities In California Death Sentences: A Review Of The Literature, Catherine M. Grosso, Michael Laurence, Jeffrey A. Fagan

Faculty Scholarship

A robust and extensive body of empirical research, and a rich historical record, documents a recurring and pervasive influence of race in the application of California’s death penalty. This article reviews the legal and social science research to document multiple paths through which institutions and processes produce these racial disparities over many decisions in many cases across four decades. The article reviews relevant literature by decision, institution, or actor and presents key findings. This includes documenting the history of the broad statutory design of the California capital punishment statue. The review also considers research on policing, including the influence of …

The Equal Right To Exclude: Religious Speech And The Road To 303 Creative Llc V. Elenis, Kate Redburn

Faculty Scholarship

This Article explains how speech became the constitutional vehicle for the right to discriminate on religious grounds in places of public accommodation. It argues that cause lawyers for the New Christian Right cobbled together a right to exclude from a surprising doctrinal source: the egalitarian tendencies within the First Amendment. Using extensive original archival research, case materials, and little-known accounts of key figures, I reconstruct the New Christian Right’s legal strategy to obtain speech coverage for service denial. By strategically co-opting the progressive free speech legacy, innovative lawyers in the religious wing of the conservative legal movement convinced liberal jurists …

The Influence Of The Race Of Defendant And The Race Of Victim On Capital Charging And Sentencing In California, Catherine M. Grosso, Jeffrey A. Fagan, Michael Laurence

Faculty Scholarship

The California Racial Justice Act of 2020 recognized racial and ethnic discrimination as a basis for relief in capital cases, expressly permitting several types of statistical evidence to be introduced. This statewide study of the influence of race and ethnicity on the application of capital punishment contributes to this evidence. We draw on data from over 27,000 murder and manslaughter convictions in California state courts between 1978 and 2002. Using multiple methods, we found significant racial and ethnic disparities in charging and sentencing decisions. Controlling for defendant culpability and specific statutory aggravators, we show that Black and Latinx defendants and …

D-Hacking, Emily Black, Talia B. Gillis, Zara Hall

Faculty Scholarship

Recent regulatory efforts, including Executive Order 14110 and the AI Bill of Rights, have focused on mitigating discrimination in AI systems through novel and traditional application of anti-discrimination laws. While these initiatives rightly emphasize fairness testing and mitigation, we argue that they pay insufficient attention to robust bias measurement and mitigation — and that without doing so, the frameworks cannot effectively achieve the goal of reducing discrimination in deployed AI models. This oversight is particularly concerning given the instability and brittleness of current algorithmic bias mitigation and fairness optimization methods, as highlighted by growing evidence in the algorithmic fairness literature. …

The Remedial Rationale After Sffa, Olatunde C.A. Johnson

Faculty Scholarship

After the Supreme Court’s ruling in Students for Fair Admissions, Inc. v. President & Fellows of Harvard College (SFFA) limiting the ability of higher education institutions to use race as a factor to advance diversity in the student body, at least one prominent commentator suggested that universities should now justify their affirmative action policies based not on diversity but on the need to remedy discrimination. Chief Justice John Roberts’s majority opinion deems diversity — the rationale established in Regents of the University of California v. Bakke and affirmed in Grutter v. Bollinger — a “commendable” goal. But the …

The Chicken-And-Egg Of Law And Organizing: Enacting Policy For Power Building, Kate Andrias, Benjamin I. Sachs

Faculty Scholarship

In a historical moment defined by massive economic and political inequality, legal scholars are exploring ways that law can contribute to the project of building a more equal society. Central to this effort is the attempt to design laws that enable the poor and working class to organize and build power with which they can countervail the influence of corporations and the wealthy. Previous work has identified ways in which law can, in fact, enable social-movement organizing by poor and working-class people. But there’s a problem. Enacting laws to facilitate social-movement organizing requires social movements already powerful enough to secure …

Racing Dobbs, Katherine M. Franke, Ria Tabacco Mar

Faculty Scholarship

In Dobbs v. Jackson Women's Health Organization, the U.S. Supreme Court reversed Roe v. Wade's limits on a state's ability to restrict, and indeed completely outlaw, abortion. The case raises fundamentally important questions about rights to reproductive autonomy, bodily integrity, sex equality, privacy, and health.

Upon closer examination, Dobbs is also about race and the nation's racial history, as the two papers published here argue. In Dreding Dobbs, Professor Katherine Franke suggests that Dobbs should be read alongside the Supreme Court's 1857 decision in Dred Scott v. Sandford, in which the Court held that Black people-even free or freed Black …

The Missing Half: Revisiting Monetary Remedies To Redress Racial Segregation, Olatunde C.A. Johnson

Faculty Scholarship

This Essay considers whether courts should have awarded monetary remedies in housing desegregation cases. By examining the relief awarded in public housing desegregation cases brought in United States federal courts between 1966 and 1994, this Essay reveals the limitations of the almost exclusive reliance on forward-looking integration relief as a remedy. The Essay argues that there is a “missing half” of remedies that courts never awarded: compensatory damages for the loss of wealth and opportunity caused by housing segregation. Forward-looking remedies that promised integration have often gone unfulfilled. Understanding these “missing” damages is crucial given recent Supreme Court rulings on …

(How) Can Litigation Advance Multiracial Democracy?, Olatunde C.A. Johnson

Faculty Scholarship

Can rights litigation meaningfully advance social change in this moment? Many progressive or social justice legal scholars, lawyers, and advocates would argue “no.” Constitutional decisions issued by the U.S. Supreme Court thwart the aims of progressive social movements. Further, contemporary social movements often decenter courts as a primary domain of social change. In addition, a new wave of legal commentary urges progressives to de-emphasize courts and constitutionalism, not simply tactically but as a matter of democratic survival.

This Essay considers the continuing role of rights litigation, using the litigation over race-conscious affirmative action as an illustration. Courts are a key …

The Legal Case For Equity In Local Climate Action Planning, Amy E. Turner

Sabin Center for Climate Change Law

Over the last half decade, local climate action plans have regularly come to incorporate considerations of racial and socioeconomic equity, recognizing the ways in which low-income communities and communities of color experience earlier and worse consequences from global warming, and these communities are also at risk of being harmed by policies meant to address climate change. Until now, however, the discourse on equity in climate action planning has largely pertained to policy; it acknowledges the disproportionate harm that certain communities experience as a result of climate change and policies to address climate change, and suggests policy tools that can address …

Columbia Law School’S Era Project Releases New Policy Paper Demonstrating Race-Based Gap In Who Benefits From Sex Discrimination Laws, Center For Gender And Sexuality Law

Center for Gender & Sexuality Law

New York, New York – On February 27, 2023, Columbia Law School’s Equal Rights Amendment (ERA) Project released a new policy paper showing that despite sweeping federal, state, and local laws that prohibit discrimination on the basis of sex in virtually all significant aspects of the U.S. economy and society, white women have been the primary beneficiaries of sex equality laws, leaving women of color significantly behind.

The Impacts Of Compulsory Prison Labor Ballot Initiatives On Pregnant & Postpartum Incarcerated Women Of Color, Candace Bond-Theriault

Center for Gender & Sexuality Law

The 13th Amendment to the United States Constitution purported to abolish the institution of slavery, but it created an exception for compulsory labor performed by people convicted of crimes. In November 2022, voters in Alabama, Vermont, Louisiana, Tennessee, and Oregon will be asked to vote on ballot initiatives that would strike language from their state constitutions that currently allows states to force incarcerated people to perform labor with minimal or no pay.1 This policy brief examines the legal language of these ballot initiatives and evaluates whether each measure, if approved by voters, will actually close the compulsory labor loophole. In …

Era Project Summary Of Argument Before Pa Supreme Court On Whether Medicaid Abortion Ban Amounts To Sex Discrimination, Center For Gender And Sexuality Law

Center for Gender & Sexuality Law

This morning, the Pennsylvania Supreme Court heard oral arguments in Allegheny Reproductive Health Center v. Pennsylvania Department of Human Services, a case in which reproductive rights advocates have challenged the state’s ban on Medicaid funding for abortion (Coverage Ban), arguing that the ban violates the state constitution’s explicit prohibitions against sex discrimination.

Era Project Summary Of Argument Before Pa Supreme Court On Whether Medicaid Abortion Ban Amounts To Sex Discrimination, Center For Gender And Sexuality Law

Center for Gender & Sexuality Law

On October 26, 2022, the Pennsylvania Supreme Court heard oral arguments in Allegheny Reproductive Health Center v. Pennsylvania Department of Human Services, a case in which reproductive rights advocates have challenged the state’s ban on Medicaid funding for abortion (Coverage Ban), arguing that the ban violates the state constitution’s explicit prohibitions against sex discrimination.

Parading The Horribles: The Risks Of Expanding Religious Exemptions, Law, Rights, And Religion Project

Center for Gender & Sexuality Law

People of faith now have a constitutional right to practice their religion—even when doing so conflicts with a government law or policy — that is more rigorously protected than nearly any other right. Some states have passed bills that provide an even broader right to such “religious exemptions” from the law than provided under the U.S. Constitution. Other religious exemption bills have been introduced and await consideration.

Columbia Law Experts Submit Two Briefs To Supreme Court In Free Speech/Lgb Rights Case, Law, Rights, And Religion Project

Center for Gender & Sexuality Law

Columbia Law School faculty and policy teams submitted amicus briefs to the Supreme Court on Friday in 303 Creative v. Elenis, a case the Court will decide next term.

Critical Race Theory: Faq, Candace Bond-Theriault

Center for Gender & Sexuality Law

CRT is not a comprehensive theory of law. Instead, it is an invitation to consider the role that law, even “good” civil rights laws, plays in the creation and maintenance of racial injustice.

Columbia Law School’S Center For Gender And Sexuality Law On Leaked Dobbs Opinion, Center For Gender And Sexuality Law

Center for Gender & Sexuality Law

The leaked Supreme Court opinion in Dobbs v. Jackson Women’s Health Organization, signals a major break with at least three generations of constitutional law. Should this opinion be officially issued by the Court, it will eliminate not only constitutional protections for abortion, but well-settled legal principles on which basic personal rights have rested for over 60 years.

Getting To Death: Race And The Paths Of Capital Cases After Furman, Jeffrey A. Fagan, Garth Davies, Ray Paternoster

Faculty Scholarship

Decades of research on the administration of the death penalty have recognized the persistent arbitrariness in its implementation and the racial inequality in the selection of defendants and cases for capital punishment. This Article provides new insights into the combined effects of these two constitutional challenges. We show how these features of post-Furman capital punishment operate at each stage of adjudication, from charging death-eligible cases to plea negotiations to the selection of eligible cases for execution and ultimately to the execution itself, and how their effects combine to sustain the constitutional violations first identified 50 years ago in Furman …

The Visibility Trap, Kate Redburn

Faculty Scholarship

Vice Patrol offers a novel history of the visibility trap. It integrates interventions in legal history, history of sexuality, and queer theory with remarkable ease. Lvovsky brings new insight to a question that has puzzled scholars across several fields: Why and how does cultural representation lead to increased state repression? Blending impressive archival research with sophisticated theoretical analysis, Lvovsky follows cultural knowledge into the legal system to offer a fresh diagnosis of the problem and how it develops. In her discovery of “epistemic gaps,” she uncovers a key mechanism of the visibility trap. Disagreements between the police and the courts, …

Before Equal Protection: The Fall Of Cross-Dressing Bans And The Transgender Legal Movement, Kate Redburn

Faculty Scholarship

Scholars are still unsure why American cities passed cross-dressing bans over the closing decades of the nineteenth century. By the 1960s, cities in every region of the United States had cross-dressing regulations, from major metropolitan centers to small cities and towns. They were used to criminalize gender non-conformity in many forms – for feminists, countercultural hippies, cross-dressers (or “transvestites”), and people we would now consider transgender. Starting in the late 1960s, however, criminal defendants began to topple cross-dressing bans.

Scholars are still unsure why American cities passed cross-dressing bans over the closing decades of the nineteenth century. By the 1960s, …

Practicing With Conviction: Race, Reentry, And The Legal Profession, Nicole Smith Futrell

Faculty Scholarship

Within recent years, different areas of the legal community have publicly addressed the need for racial justice. The killing of George Floyd and the reckoning with race that followed prompted law schools, bar associations, and court systems, as well as government, private, and non-profit legal organizations, to publicly acknowledge that racial disparities continue to persist in our society. While most of these legal institutions have made some recognition of the fact that the legal system has played a role in perpetuating systemic racism, they have essentially failed to address how discrimination against system-impacted individuals continues to deepen racial and socioeconomic …

Remarks From The 2022 Symposium: The Equal Rights Amendment: A New Guarantee Of Sex Equality In The U.S. Constitution, Katherine M. Franke

Faculty Scholarship

In so many respects, the culmination of Ruth Bader Ginsburg’s career took place in 1996, three years after she joined the Supreme Court and twenty-four years before her death. In U.S. v. Virginia, Justice Ginsburg convinced a majority of the Supreme Court to embrace the strongest formulation of a constitutional norm condemning sex inequality in the Court’s history. The new rule articulated in the U.S. v. Virginia case declared that “[s]ex classifications ... may not be used, as they once were, ... to create or perpetuate the legal, social, and economic inferiority of women.”

Mindful Debiasing: Meditation As A Tool To Address Disability Discrimination, Elizabeth F. Emens

Faculty Scholarship

Antidiscrimination law is at a critical juncture. The law prohibits formal and explicit systems of exclusion, but much bias nonetheless persists. New tools are needed. This Article argues that mindfulness meditation may be a powerful strategy in the battle against disability discrimination. This Article sets out eight reasons that disability bias is particularly intractable. The Article then draws on empirical, philosophical, and scholarly sources to identify mechanisms through which mindfulness meditation can address these dynamics. The Article concludes by presenting concrete doctrinal implications of bringing mindfulness to bear on disability discrimination. This Article thus contributes to the established fields of …

Discriminatory Taint, Kerrel Murray

Faculty Scholarship

The truism that history matters can hide complexities. Consider the idea of problematic policy lineages. When may we call a policy the progeny of an earlier, discriminatory policy, especially if the policies diverge in design and designer? Does such a relationship condemn the later policy for all times and purposes, or can a later decisionmaker escape the past? It is an old problem, but its resolution hardly seems impending. Just recently, Supreme Court cases have confronted this fact pattern across subject matters as diverse as entry restrictions, nonunanimous juries, and redistricting, among others. Majority opinions seem unsure whether or why …

The Legal Origins Of Catholic Conscientious Objection, Jeremy K. Kessler

Faculty Scholarship

This Article traces the origins of Catholic conscientious objection as a theory and practice of American constitutionalism. It argues that Catholic conscientious objection emerged during the 1960s from a confluence of left-wing and right-wing Catholic efforts to participate in American democratic culture more fully. The refusal of the American government to allow legitimate Catholic conscientious objection to the Vietnam War became a cause célèbre for clerical and lay leaders and provided a blueprint for Catholic legal critiques of other forms of federal regulation in the late 1960s and early 1970s — most especially regulations concerning the provision of contraception and …