Civil Rights and Discrimination Commons^™

Covid-19 And Lgbt Rights, Suzanne B. Goldberg

Faculty Scholarship

Even in the best of times, LGBT individuals have legal vulnerabilities in employment, housing, healthcare and other domains resulting from a combination of persistent bias and uneven protection against discrimination. In this time of COVID-19, these vulnerabilities combine to amplify both the legal and health risks that LGBT people face.

This essay focuses on several risks that are particularly linked to being lesbian, gay, bisexual, or transgender, with the recognition that these vulnerabilities are often intensified by discrimination based on race, ethnicity, age, disability, immigration status and other aspects of identity. Topics include: 1) federal withdrawal of antidiscrimination protections; 2) …

Standing Rock Defendants Move To Dismiss On Basis Of Factual Disputes, Columbia Center For Contemporary Critical Thought

Columbia Center for Contemporary Critical Thought

New York, February 15, 2019. Today, state and county defendants in Thunderhawk v. County of Morton et al. filed motions to dismiss plaintiffs’ First Amended Complaint. In their court filings, defendants attach 160 exhibits contesting the peaceful nature of the NoDAPL movement, arguing that their discriminatory closure of Highway 1806 was factually justified. Defendants ask the United States District Court to accept their factual account of the NoDAPL movement over the plaintiffs’.

Standing Rock Plaintiffs File First Amended Complaint, Columbia Center For Contemporary Critical Thought

Columbia Center for Contemporary Critical Thought

New York, February 1, 2019—Today, Cissy Thunderhawk, Wašté Win Young, the Reverend John Floberg, and José Zhagñay filed their First Amended Complaint in response to state and local defendants’ motions to dismiss. The amended complaint clarifies the civil rights violations caused when defendants closed, to the Tribe and its supporters, the primary road connecting the Standing Rock Reservation to both Bismarck and to numerous public sites of great expressive and religious significance. The plaintiffs are represented by Columbia Law School Lecturer in Law Noah Smith-Drelich and Professor Bernard E. Harcourt through the Columbia Center for Contemporary Critical Thought.

Advancing Racial Justice And Human Rights: Rights-Based Strategies For The Current Era, Human Rights Institute

Human Rights Institute

On June 1, 2018, the Human Rights Institute convened its 15th annual CLE Symposium on Human Rights in the United States, a signature event of the Human Rights Institute’s Bringing Human Rights Lawyers’ Network. The day-long event brought together more than 150 leading U.S. lawyers, activists, and academics, along with federal and local government representatives to share strategies to advance racial justice within a domestic and global context increasingly hostile to human rights.

This report highlights key takeaways and themes from the Symposium, drawing from speakers’ remarks and their advocacy. It also serves as a basic human rights primer, describing …

We Still Have Not Learned From Anita Hill's Testimony, Kimberlé W. Crenshaw

Faculty Scholarship

Twenty-seven years after Anita Hill testified in front of the Senate Judiciary Committee that Clarence Thomas sexually harassed her, and as Christine Blasey Ford prepares to testify that Brett Kavanaugh sexually assaulted her when they were teenagers, we still have not learned our mistakes from that mess in 1991.

Most people recognized that it looked bad, a black woman fending for herself in front of a group of white men. Yet we can’t acknowledge the central tragedy of 1991 – the false tension between feminist and antiracist movements.

We are still ignoring the unique vulnerability of black women.

Unjust Cities? Gentrification, Integration, And The Fair Housing Act, Olatunde C.A. Johnson

Faculty Scholarship

What does gentrification mean for fair housing? This article considers the possibility that gentrification should be celebrated as a form of integration alongside a darker narrative that sees gentrification as necessarily unstable and leading to inequality or displacement of lower-income, predominantly of color, residents. Given evidence of both possibilities, this article considers how the Fair Housing Act might be deployed to minimize gentrification’s harms while harnessing some of the benefits that might attend integration and movement of higher-income residents to cities. Ultimately, the article urges building on the fair housing approach but employing a broader set of tools to advance …

An Intersectional Critique Of Tiers Of Scrutiny: Beyond “Either/Or” Approaches To Equal Protection, Devon W. Carbado, Kimberlé W. Crenshaw

Faculty Scholarship

For the past forty years, Justice Powell’s concurring opinion in University of California v. Bakke has been at the center of scholarly debates about affirmative action. Notwithstanding the enormous attention Justice Powell’s concurrence has received, scholars have paid little attention to a passage in that opinion that expressly takes up the issue of gender. Drawing on the theory of intersectionality, this Essay explains several ways in which its reasoning is flawed. The Essay also shows how interrogating Justice Powell’s “single axis” race and gender analysis raises broader questions about tiers of scrutiny for Black women. Through a hypothetical of a …

Big Data And Discrimination, Talia B. Gillis, Jan L. Speiss

Faculty Scholarship

The ability to distinguish between people in setting the price of credit is often constrained by legal rules that aim to prevent discrimination. These legal requirements have developed focusing on human decision-making contexts, and so their effectiveness is challenged as pricing increasingly relies on intelligent algorithms that extract information from big data. In this Essay, we bring together existing legal requirements with the structure of machine-learning decision-making in order to identify tensions between old law and new methods and lay the ground for legal solutions. We argue that, while automated pricing rules provide increased transparency, their complexity also limits the …

Reevaluating School Searches Following School-To-Prison Pipeline Reforms, Joshua Gupta-Kagan

Faculty Scholarship

The U.S. Supreme Court held in New Jersey v. T.L.O. that school officials could search students without a warrant and with only reasonable suspicion, not probable cause, because of schools’ need for discipline and the relationship between educators and students. That case belongs to a body of Fourth Amendment cases involving, in T.L.O.’s terms, “special needs, beyond the normal need for law enforcement.” What Fourth Amendment standard, then, governs searches involving one of the roughly 20,000 school resource officers (SROs) in American schools? Most state courts to decide the issue in the 1990s and 2000s found that T.L.O. applied …

Comment In Response To Proposed Rulemaking: Inadmissibility On Public Charge Grounds, Brittany Thomas, Nahal Zamani, Joann Kamuf Ward

Human Rights Institute

The proposed rule on “Inadmissibility on Public Charge Grounds” would cause irreparable harm to communities across the United States, and immigrants and their families, in particular. The proposed change contravenes globally accepted human rights norms, which aim to ensure an adequate standard of living and prohibit discrimination, including specific human rights obligations and commitments of the United States.

As legal organizations devoted to ensuring justice and human rights accountability in the United States, we submit this joint comment in opposition to the proposed rule, which threatens to destabilize communities, and undermine public health and safety by penalizing individuals who seek …

Religion, Discrimination, And Government Funding: Enforcing Civil Rights Law After Masterpiece Cakeshop And Trinity Lutheran, Public Rights/Private Conscience Project

Center for Gender & Sexuality Law

A memorandum published by the Law, Rights, and Religion Project at Columbia Law School (formerly the Public Rights/Private Conscience Project) that clarifies the responsibility of state and local human rights agencies and commissions to robustly enforce civil rights laws — particularly in the context of government-funded social services — in the wake of the Supreme Court’s decisions in Masterpiece Cakeshop v. Colorado Civil Rights Commission and Trinity Lutheran Church of Columbia, Inc. v. Comer

Are Rights A Reality? Evaluating Federal Civil Rights Enforcement, International Association Of Official Human Rights Agencies (Iaohra), Human Rights Institute

Human Rights Institute

This comment draws upon prior submissions to UN human rights experts, and past resources and scholarship, as well as independent research conducted by the Columbia Law School Human Rights Institute, in partnership with state and local actors, including a 2018 survey of IAOHRA member agencies.

Columbia Law School Lecturer Noah Smith-Drelich And Professor Bernard E. Harcourt Challenge Standing Rock Civil Rights Violations, Columbia Center For Contemporary Critical Thought

Columbia Center for Contemporary Critical Thought

New York, October 26, 2018—Cissy Thunderhawk, Wašté Win Young, and the Reverend John Floberg filed a class action lawsuit on Oct. 18 in the U.S. District Court for the District of North Dakota challenging a number of civil rights violations that arose during the Standing Rock movement to oppose the construction of the Dakota Access Pipeline (DAPL). They are represented by Columbia Law School Lecturer in Law Noah Smith-Drelich and Professor Bernard E. Harcourt, founding director of the Columbia Center for Contemporary Critical Thought.

Devalued, Turned Away, And Refused Health Care: What Happens To Women Of Color When Religion Dictates Patient Care, Elizabeth Boylan

Center for Gender & Sexuality Law

Columbia Law School's Law, Rights, and Religion Project, and the National Women’s Law Center hosted a Capitol Hill Briefing at 10:15 am on Thursday, May 24th to discuss the impact of religious health care refusals on women of color. The event, entitled Devalued, Turned Away, and Refused Health Care: What Happens to Women of Color When Religion Dictates Patient Care, was presented in cooperation with Senator Kamala Harris and Representative Bonnie Watson Coleman.

New Report Details Consequences Of Trump Administration’S Overly Broad Guidance On Religious Liberty, Public Rights/Private Conscience Project, Center For American Progress

Center for Gender & Sexuality Law

April 3, 2018, Washington, D.C. – Obama-era rules prohibiting discrimination in dozens of federal programs could be undermined by the Trump administration’s controversial guidance on religious liberty, according to a new report from the Center for American Progress and Columbia Law School’s Public Rights/Private Conscience Project.

Comment On U.S. Department Of Health And Human Services Rule, Public Rights/Private Conscience Project

Center for Gender & Sexuality Law

In medical facilities across the country, doctors whose conscience would require them to perform a sterilization on a patient who requests one, offer truthful information about accessing abortion services, or provide comprehensive LGBTQ+ health care are forbidden from doing so by their employer. The conscience of such medical providers is entirely ignored by the U.S. Department of Health and Human Service’s (HHS) recently proposed rule that purports to “ensure that persons or entities” providing health care “are not subjected to certain practices or policies that violate conscience, coerce, or discriminate.” As explained in a comment submitted today by the Columbia …

The Legacy Of Civil Rights And The Opportunity For Transactional Law Clinics, Lynnise E. Pantin

Faculty Scholarship

At the end of the historic march from Selma to Montgomery in 1965, Reverend Dr. Martin Luther King Jr. famously paraphrased abolitionist and Unitarian minister Theodore Parker stating, “the arc of the moral universe is long, but it bends towards justice.” The implication of the phrase is that the social justice goals of the Civil Rights Movement would eventually be achieved. His prayer was that servants of justice would be rewarded in due time. In other words, that the goals of the Civil Rights Movement would be achievable at some point in the future. President Obama resurrected the phrase throughout …

Sparking King's Revolution, Bernard E. Harcourt

Faculty Scholarship

Fifty years ago, Martin Luther King, Jr., protested our country’s counterinsurgency war in Vietnam. King passionately decried the bombings and civilian deaths, the destruction of families and villages, and the herding of the population into “concentration camps.” King denounced our imperialist arrogance and urged “a radical revolution of values.” From the pulpit at Riverside Church in New York City, King declared: “These are revolutionary times.” Indeed they were. And if anything, they have become even more so today.

Mutual Tolerance And Sensible Exemptions, Kent Greenawalt

Faculty Scholarship

This chapter focuses on three general themes that bear on the need to understand one another in society and how that understanding bears on appropriate exemptions relating to abortions and same-sex marriage, two questions that continue to divide the American people.

First, there is a need for mutual tolerance toward others who see things differently. Second, a great deal in life is not subject to rational answers. Third, people should generally not be required to do directly what they believe is deeply wrong. However, society can work only if people do not refuse to help those who, they believe, have …

Police, Race, And The Production Of Capital Homicides, Jeffrey A. Fagan, Amanda Geller

Faculty Scholarship

Racial disparities in capital punishment have been well documented for decades. Over 50 studies have shown that Black defendants more likely than their white counterparts to be charged with capital-eligible crimes, to be convicted and sentenced to death. Racial disparities in charging and sentencing in capital-eligible homicides are the largest for the small number of cases where black defendants murder white victims compared to within-race killings, or where whites murder black or other ethnic minority victims. These patterns are robust to rich controls for non-racial characteristics and state sentencing guidelines. This article backs up the research on racial disparities to …

Rights As Trumps?, Jamal Greene

Faculty Scholarship

Rights are more than mere interests, but they are not absolute. And so two competing frames have emerged for adjudicating conflicts over rights. Under the first frame, rights are absolute but for the exceptional circumstances in which they may be limited. Constitutional adjudication within this frame is primarily an interpretive exercise fixed on identifying the substance and reach of any constitutional rights at issue. Under the second frame, rights are limited but for the exceptional circumstances in which they are absolute. Adjudication within this frame is primarily an empirical exercise fixed on testing the government’s justification for its action. In …

Bearing Faith: The Limits Of Catholic Health Care For Women Of Color, Kira Shepherd, Elizabeth Reiner Platt, Katherine M. Franke, Elizabeth Boylan

Faculty Scholarship

This study finds that in nineteen out of the thirty-four states/territories that we studied, women of color are more likely than white women to give birth at hospitals bound by the ERDs. Women of color’s disproportionate reliance on Catholic hospitals in these states increases their exposure to restrictions that place religious ideology over best medical practices.

To determine whether women of color disproportionately give birth at hospitals operating under the ERDs, we compared the percentage of births to women of color at Catholic and non-Catholic hospitals. In over half of the states we studied (19 out of 33 states plus …

Religious Liberty For A Select Few, Sharita Gruberg, Frank J. Bewkes, Elizabeth Reiner Platt, Katherine M. Franke, Claire Markham

Faculty Scholarship

This report discusses how the Department of Justice’s guidance opens the door to an extreme rewriting of the concept of religious liberty. The guidance — and the numerous agency rules, enforcement actions, and policies that it is influencing — will shift the balance of individual religious protections across the federal government toward a new framing that allows religious beliefs to be used as a weapon against minority groups.

Visibly (Un)Just: The Optics Of Grand Jury Secrecy And Police Violence, Nicole Smith Futrell

Faculty Scholarship

Police violence has become more visible to the public through racial justice activism and social justice advocates’ use of technology. Yet, the heightened visibility of policing has had limited impact on transparency and accountability in the legal process, particularly when a grand jury is empaneled to determine whether to issue an indictment in a case of police violence. When a grand jury decides not to indict, the requirement of grand jury secrecy prevents public disclosure of the testimony, witnesses, and evidence presented to the grand jury. Grand jury secrecy leaves those who have seen and experienced the act of police …

Fiscal Pressures And Discriminatory Policing: Evidence From Traffic Stops In Missouri, Allison P. Harris, Elliott Ash, Jeffrey A. Fagan

Faculty Scholarship

This paper provides evidence of racial variation in traffic enforcement responses to local government budget stress using data from policing agencies in the state of Missouri from 2001 through 2012. Like previous studies, we find that local budget stress is associated with higher citation rates; we also find an increase in traffic-stop arrest rates. However, we find that these effects are concentrated among White (rather than Black or Latino) drivers. The results are robust to the inclusion of a range of covariates and a variety of model specifications, including a regression discontinuity examining bare budget shortfalls. Considering potential mechanisms, we …

Dignity Denied: Religious Exemptions And Lgbt Elder Services, Movement Advancement Project (Map), Public Rights/Private Conscience Project, Sage - Advocacy Services For Lgbt Elders

Center for Gender & Sexuality Law

LGBT older adults, like many older Americans in the United States, rely on a network of service providers as they age–for community programming and congregate meals, for health care, and for housing ranging from independent living to skilled nursing. Research finds that a majority of these services are offered by religiously affiliated organizations.

While many of these religiously affiliated facilities provide quality care for millions of older adults, there is a coordinated effort to pass religious exemption laws, issue executive orders and agency guidance, and to litigate court cases to allow individuals, businesses, and even government contractors and grantees to …

Dignity Denied: Religious Exemptions And Lgbt Elder Services, Elizabeth Boylan

Center for Gender & Sexuality Law

LGBT older adults, like many older Americans in the United States, rely on a network of service providers as they age–for community programming and congregate meals, for health care, and for housing ranging from independent living to skilled nursing. Research finds that a majority of these services are offered by religiously affiliated organizations.

The report was launched with a panel discussion program hosted at Columbia University's Union Theological Seminary on Friday, December 15th, 2017, detailing the increased risks LGBT older adults face as a result of recent religious exemption laws and policies.

Columbia Law Experts Denounce Doj Religious Liberty Guidance As Attack On Religious Liberty And Fundamental Equality Rights, Public Rights/Private Conscience Project

Center for Gender & Sexuality Law

Columbia Law School’s Public Rights/Private Conscience Project (PRPCP) denounces the memorandum released today by the Department of Justice (DOJ) entitled the “Federal Memorandum for Religious Liberty Protections.” This document, and its implementation guidance misinterpret the meaning and scope of religious liberty under the Constitution and the federal Religious Freedom Restoration Act (RFRA), demonstrating this administration’s continued commitment to elevating a particular set of religious beliefs over the safety and equality rights of women, LGBTQ people, people of color, and religious minorities.

Columbia Law Experts Denounce Federal Guidance Allowing Religious And Moral Discrimination In Contraceptive Coverage, Public Rights/Private Conscience Project

Center for Gender & Sexuality Law

Columbia Law School’s Public Rights/Private Conscience Project (PRPCP) condemns the Trump administration for issuing sweeping new rules today that roll back the Affordable Care Act (ACA)’s birth control benefit, by broadening exemptions for employers who claim religious or moral objections to offering birth control to their workers. These regulations place the religious and moral views of employers above the health and wellbeing of their workers and gut the contraceptive coverage provision of the ACA by dramatically reducing access to affordable birth control. Rather than protecting religious freedom for all Americans, these regulations are part of the current administration’s ongoing effort …

Joint Submission To The Human Rights Committee: Draft General Comment 36 On Article 6, On The Right To Life, American Civil Liberties Union (Aclu), Human Rights Clinic, International Commission Of Jurists, Open Society Justice Initiative, Rights Watch (Uk)

Human Rights Institute

Columbia Law School’s Human Rights Clinic, the International Commission of Jurists, the Open Society Justice Initiative, the American Civil Liberties Union, and Rights Watch (UK) welcome the opportunity to provide the Human Rights Committee (the Committee) with the following observations on its draft General Comment on Article 6 (the draft) of the International Covenant on Civil and Political Rights (the Covenant) on the right to life, ahead of its second reading.