When President Lyndon Baines Johnson signed the Civil Rights Act of 1964 into law, his action punctuated an historic struggle. That struggle played out in churches, in the streets, in courtrooms, and finally in the halls of Congress, where supporters of the law had to overcome a 57-day filibuster. This conference will assess the interpretation, development, and administration of civil rights law in the five decades since President Johnson signed the Civil Rights Act, and it will examine the emerging civil rights issues that are likely to occupy public debate in the years to come. A diverse group of scholars will look at these questions from doctrinal, jurisprudential, historical, sociological, policy-analytic, and other perspectives. Topics to be discussed will include the theoretical foundations of civil rights laws; the social-movement contestation that led to the Civil Rights Act; the interaction between the Civil Rights Act and the social-welfare programs of the Great Society; the role, function, and constitutionality of affirmative action; the meaning of discriminatory intent; the application of civil rights principles to sexual orientation discrimination; the current judicial response to civil rights cases; the role of administrative agencies in enforcing civil rights; other countries' approaches to antidiscrimination laws; and the future direction of civil rights law and policy.
Samuel BagenstosProfessor of LawUniversity of Michigan Law School
Ellen D. KatzRalph W. Aigler Professor of LawUniverity of Michigan Law School
With leadership support provided by the Anti-Discrimination Center and generous additional funding provided by alumni of the University of Michigan Law School.
South Hall 1020
Ellen D. Katz, Ralph W. Aigler Professor of Law, University of Michigan Law School
Daniel Crane, Associate Dean for Faculty and Research and Frederick Paul Furth Sr. Professor of Law, University of Michigan Law School
Craig Gurian, Executive Director, Anti-Discrimination Center; Adjunct Professor of Law, Fordham Law School; and Editor, Remapping Debate website
Panel I: Theoretical Perspectives
A Social Movement Perspective on the Civil Rights Act of 1964Kathryn Abrams, Herma Hill Kay Distinguished Professor of Law, UC-Berkeley School of Law
The Concept of AnimusCary C. Franklin, Assistant Professor of Law, University of Texas at Austin School of Law
Sexuality as a Civil RightNan Hunter, Associate Dean of Graduate Programs and Professor of Law, Georgetown University Law Center
Towards a Jurisprudence of Civil RightsRobin L. West, Frederick J. Haas Professor of Law and Philosophy, Georgetown University Law Center
Panel II: Affirmative Action 10:45-12:15 P.M.
The Civil Rights Act of 1964 and the Great SocietySamuel Bagenstos, Professor of Law, University of Michigan Law School
The Diversity Feedback LoopDevon W. Carbado, Honorable Harry Pregerson Professor of Law, UCLA School of Law, and Patrick Shin, Assistant Dean and Professor of Law, Suffolk University Law School
Is the Future of Affirmative Race Neutral? Brian T. Fitzpatrick, Professor of Law, Vanderbilt Law School
Reimagining Affirmative ActionVicki Schultz, Ford Foundation Professor of Law and Social Sciences, Yale Law School
Lunch Break12:15-1:30 P.M.
Panel III: Administering Civil Rights
Judicial Repeal of the Civil Rights ActNancy Gertner, Retired Federal Judge, U.S. District Court of Massachusetts, and Professor from Practice, Harvard Law School
Taking Seriously Title VII's "Floor, Not a Ceiling" InvitationCraig Gurian, Executive Director, Anti-Discrimination Center; Adjunct Professor of Law, Fordham Law School; and Editor, Remapping Debate website
Leveraging AntidiscriminationOlatunde Johnson, Professor of Law, Columbia Law School
A Signal or a Silo? Title VII’s Unexpected HegemonySophia Z. Lee, Assistant Professor of Law and History, University of Pennsylvania Law School
Panel IV: Looking Ahead
Justice Ginsburg's UmbrellaEllen D. Katz, Ralph W. Aigler Professor of Law, University of Michigan Law School
After Civil RightsJohn D. Skrentny, Professor of Sociology, University of California-San Diego
Nested Civil Rights: Mapping the Pathways of PossibilitySusan P. Sturm, George M. Jaffin Professor of Law and Social Responsibility and Founding Director, Center for Institutional and Social Change, Columbia Law School
Disparate Impact AbroadJulie C. Suk, Professor of Law, Benjamin N. Cardozo Law School
Samuel Bagenstos, Professor of Law, University of Michigan Law School
Kathryn Abrams, University of California-Berkeley School of LawKathryn Abrams, Berkeley Law's Herma Hill Kay Distinguished Professor of Law, has been on the faculty at Boalt Hall since 2001. Teaching feminist jurisprudence, voting rights, and constitutional law, Prof. Abrams has written extensively on feminist methodology and epistemology, the jurisprudence of sexual harassment, and cultural and theoretical constructions of women's agency. Her scholarship has explored questions of employment discrimination, minority vote dilution, campaign finance, constitutional law, and law and the emotions, but has focused most centrally on feminist jurisprudence. Prior to joining Berkeley Law, Prof. Abrams taught at the law schools at Boston University, Indiana University-Bloomington, Harvard University, Northwestern University, and, most recently, Cornell University, where she was professor of law, associate professor of ethics and public life, and director of the Women's Studies Program. Prof. Abrams earned her JD from Yale University and BA from Harvard University.
Samuel Bagenstos, University of Michigan Law SchoolSamuel Bagenstos is a professor of law at the University of Michigan Law School, where he specializes in constitutional and civil rights litigation. From 2009 to 2011, he was a political appointee in the U.S. Department of Justice, where he served as the principal deputy assistant attorney general for civil rights, the number-two official in the Civil Rights Division. His accomplishments included the promulgation of the 2010 Americans with Disabilities Act regulations and the reinvigoration of the Civil Rights Division's enforcement of the Supreme Court's decision in Olmstead v. L.C., which guarantees people with disabilities the right to live and receive services in the most integrated setting appropriate. Prof. Bagenstos has published articles in journals such as the Yale Law Journal, the Columbia Law Review, the California Law Review, the Virginia Law Review, and the Georgetown Law Journal, as well as two books: Law and the Contradictions of the Disability Rights Movement and Disability Rights Law: Cases and Materials. He earned his JD from Harvard University and his BA from the University of North Carolina.
Devon W. Carbado, UCLA School of LawDevon Carbado is the Honorable Harry Pregerson Professor of Law at UCLA School of Law, where he teaches constitutional criminal procedure, constitutional law, critical race theory, and criminal adjudication. Focusing his scholarship and writing on critical race theory, employment discrimination, criminal procedure, constitutional law, and identity has helped establish Prof. Carbado as a nationally recognized figure in the field of critical race theory. He is editor of Race Law Stories with Rachel Moran, and recently published a book on employment discrimination, Acting White? Rethinking Race in Post-Racial America, with Mitu Gulati. Prof. Carbado is a former director of the Critical Race Studies Program at UCLA Law School, a faculty associate of the Ralph J. Bunche Center for African American Studies, a board member of the African American Policy Forum, and a James Town Fellow. In 2005, he was named an inaugural recipient of the Fletcher Foundation Fellowship, which is awarded to scholars whose work furthers the goals of Brown v. Board of Education. Prof. Carbado earned his JD from Harvard University and BA from UCLA.
Brian T. Fitzpatrick, Vanderbilt Law SchoolBrian Fitzpatrick is a professor of law at Vanderbilt Law School, where his research focuses on class-action litigation, federal courts, judicial selection, and constitutional law. Prof. Fitzpatrick joined Vanderbilt's law faculty in 2007 after serving as the John M. Olin Fellow at New York University School of Law. His writings have appeared in such publications as the Ohio State Law Journal, Notre Dame Law Review, and Journal of Empirical Legal Studies, with his chapter on "Civil Procedure in the Roberts Court" expected to appear in the 2014 edition of Business and the Roberts Court, edited by Jonathan Adler. Prior to entering academia, he practiced commercial and appellate litigation at Sidley Austin in Washington, D.C., and served as special counsel for Supreme Court nominations to U.S. Sen. John Cornyn (R-TX). Following law school, Prof. Fitzpatrick clerked for Judge Diarmuid O'Scannlain on the U.S. Court of Appeals for the Ninth Circuit and Justice Antonin Scalia on the U.S. Supreme Court. He earned his JD from Harvard Law School and BS from the University of Notre Dame.
Cary C. Franklin, University of Texas at Austin School of LawCary Franklin is an assistant professor of law at the University of Texas at Austin School of Law. Her primary research interests are in the fields of constitutional law, antidiscrimination law, and legal history, with a focus on the history of antidiscrimination law in the areas of sex and sexual orientation, and the ways in which this history influences legal conceptions of equality today. Her writings have appeared in such publications as the Harvard Law Review, Yale Law Journal-Online, and New York University Law Review, with her contribution to the latter, titled "The Anti-Stereotyping Principle in Constitutional Sex Discrimination," winning the Kathryn T. Preyer Prize by the American Society for Legal History. Prior to entering academia, Prof. Franklin clerked for Judge Sonia Sotomayor who, at the time, sat on the U.S. Court of Appeals for the Second Circuit, and served as a Junior Fellow at the Harvard Society of Fellows and a Ribicoff Fellow at Yale Law School. She earned her JD and BA at Yale University, and DPhil and MST at the University of Oxford, where she was a Rhodes Scholar.
Nancy Gertner, Harvard Law SchoolThe Hon. Nancy Gertner is a retired federal judge on the U.S. District Court of Massachusetts and professor of practice at Harvard Law School, where she teaches a number of subjects including criminal law, criminal procedure, forensic science, and sentencing. She has written extensively on sentencing, discrimination, and forensic evidence, as well as women's rights and the jury system. She published her autobiography, In Defense of Women: Memoirs of an Unrepentant Advocate, in 2011. In 2008 she became only the second woman—Supreme Court Justice Ruth Bader Ginsburg being the first—to receive the Thurgood Marshall Award from the American Bar Association, Section of Individual Rights and Responsibilities. Prof. Gertner is also a recipient of the Arabella Babb Mansfield Award from the National Association of Women Lawyers, the Leila J. Robinson Award of the Women's Bar Association of Massachusetts, the Morton A. Brody Distinguished Judicial Service Award, and the Massachusetts Bar Association's Hennessey Award for judicial excellence. She was appointed to the U.S. District Court of Massachusetts by President Bill Clinton in 1994. Prof. Gertner holds an honorary doctor of laws degree from Brandeis University, earned her JD and MA from Yale University, and her BA from Barnard College, Columbia University.
Craig Gurian, Anti-Discrimination CenterCraig Gurian is the executive director of the Anti-Discrimination Center, adjunct professor of law at Fordham Law School, and editor of the Remapping Debate website. He has practiced anti-discrimination law since 1988. Prof. Gurian conceptualized, investigated, developed, and co-counseled the landmark False Claims Act case against Westchester County, in which Westchester was found to have "utterly failed" to meet its affirmatively furthering fair housing obligations, and to have falsely or fraudulently represented that it had or would do so. Ultimately, the litigation resulted in a landmark housing desegregation consent decree. He was legal counsel to a sister civil rights organization in a successful effort to pass a comprehensive Nassau County Fair Housing Law in 2006, and was the principal drafter of the Local Civil Rights Restoration Act of 2005. In private practice, he successfully litigated the first Title IX sex harassment case tried to a jury in the United States. In addition to work on behalf of plaintiffs in employment discrimination matters, he has represented both individuals and fair housing groups in housing discrimination cases. He also has co-counseled matters with a variety of private sector and public sector counsel, including the Civil Rights Division of the U.S. Justice Department, and has provided training on discrimination law issues for a wide array of bar, community, and not-for-profit organizations. He received his BA from Columbia College, JD from Columbia Law School, and MA from Columbia University.
Nan Hunter, Georgetown University Law CenterNan Hunter is the associate dean of graduate programs and a professor of law at Georgetown University Law Center. Teaching and writing primarily in two areas—health law and state regulation of sexuality and gender—her works have been published in such law journals as the Michigan Law Review, Pennsylvania Law Review, Harvard Civil Rights-Civil Liberties Law Review, Virginia Law Review, and Georgetown Law Journal. With William Eskridge, she wrote the first casebook to conceptualize sexuality and gender law as embodying a dynamic relationship between state regulation, sexual practices, and gender norms. Her most recent health law scholarship focuses on the intersection of health-care systems with democratic theory. Outside academia, Dean Hunter has served as deputy general counsel for the U.S. Department of Health and Human Services, and as a member of the President's Advisory Commission on Consumer Protection and Quality in the Health Care Industry. She is a fellow of the New York Academy of Medicine, and earned her BA from Northwestern University and JD from Georgetown Law.
Olatunde Johnson, Columbia Law SchoolOlatunde (Olati) Johnson is a professor of law at Columbia Law School. Her areas of expertise are anti-discrimination law, constitutional law, civil procedure, administrative law, congressional power, and public interest law practice. Before joining the Columbia faculty in 2006, Prof. Johnson was a Kellis Parker Research Fellow at Columbia from 2004 to 2006 and a senior consultant on racial justice at the ACLU National Legal Department from 2003 to 2004. She previously served on the U.S. Senate Judiciary Committee and with the NAACP Legal Defense and Educational Fund, and was a law clerk to Judge David Tatel of the U.S. Court of Appeals for the D.C. Circuit and to Justice John Paul Stevens of the U.S. Supreme Court. She received her BA, cum laude and with distinction in literature, from Yale University and her JD from Stanford Law School.
Ellen D. Katz, University of Michigan Law SchoolEllen Katz is the Ralph W. Aigler Professor of Law at the University of Michigan Law School, where she writes and teaches about election law, civil rights and remedies, and equal protection. Her scholarship addresses questions of minority representation, political equality, and the role of institutions in crafting and implementing anti-discrimination laws. Prof. Katz has published numerous articles including an influential empirical study of litigation under the Voting Rights Act. Prior to joining the Michigan faculty, Prof. Katz practiced as an attorney with the appellate sections of the U.S. Department of Justice's Civil Division and its Environment and Natural Resources Division. She was a judicial clerk for Justice David H. Souter of the U.S. Supreme Court, and for Judge Judith W. Rogers of the U.S. Court of Appeals for the D.C. Circuit. She earned her JD from Yale Law School and her BA from Yale College.
Sophia Z. Lee, University of Pennsylvania Law SchoolSophia Lee is an assistant professor of law and history at the University of Pennsylvania Law School. She is a legal historian whose scholarship synthesizes labor, constitutional, and administrative law. She has written about administrative agencies' role in shaping constitutional law; civil rights and labor advocates' challenges to workplace discrimination during the early Cold War; and conservative legal movements in the post-New Deal era. Representative publications appear in the Virginia Law Review and Law & History Review. Prior to joining the Penn Law faculty, she clerked for the Hon. Kimba M. Wood of the U.S. District Court for the Southern District of New York and served as a Samuel I. Golieb Fellow in Legal History at New York University School of Law. She is currently working on a history of the workplace Constitution from the 1930s to the 1980s. She earned her JD and PhD in history from Yale.
Vicki Schultz, Yale Law SchoolVicki Schultz is the Ford Foundation Professor of Law and Social Sciences at Yale Law School. An expert in law and social science, the workplace, discrimination, and the family, she has written and lectured widely on sexual harassment, sex segregation on the job, work-family issues, working time, the meaning of work in people's lives, household labor, same-sex marriage, and marriage generally. Her publications include "The Need for a Reduced Workweek in the United States," "The Sanitized Workplace," "Reconceptualizing Sexual Harassment," and "Life's Work." Prof. Schultz's work has been influential in legal scholarship, the social sciences, the courts, and the national news media. She has held a number of significant fellowships, including the Evelyn Green Davis Fellowship at the Radcliffe Institute for Advanced Study and a fellowship at the Center for Advanced Study in the Behavioral Sciences. In 2010-2011, she was the MacDonald-Wright Visiting Professor of Law and the faculty chair of the Williams Institute at UCLA School of Law. Before coming to Yale, she was a professor at Wisconsin Law School and an attorney at the U. S. Department of Justice, Civil Rights Division. She holds a BA from the University of Texas and a JD from Harvard.
Patrick Shin, Suffolk University Law SchoolPatrick Shin is assistant dean and professor of law at Suffolk University Law School. He teaches Torts, Employment Discrimination, Professional Responsibility, and Jurisprudence. A 2011 recipient of the Cornelius J. Moynihan Teaching Award, his current scholarship focuses on philosophical dimensions of problems in antidiscrimination law and on theoretical issues surrounding the meaning and value of diversity. Dean Shin completed judicial clerkships in the U.S. District Court for the District of Massachusetts and the U.S. Court of Appeals for the First Circuit after law school, and worked for several years as a litigation associate in the Boston office of Hale and Dorr LLP (now WilmerHale). He then returned to Harvard University to earn his PhD in philosophy before joining the faculty at Suffolk Law. In addition to his PhD, Dean Shin holds an AB, summa cum laude, from Dartmouth College and a JD, cum laude, from Harvard Law School.
John D. Skrentny, University of California, San DiegoJohn Skrentny is a professor of sociology at the University of California, San Diego. His primary areas of research and teaching interest are politics, law, social movements, ethnicity, globalization, and culture. His first book, The Ironies of Affirmative Action (University of Chicago Press, 1996), is a study of the origins and politics of employment affirmative action for African Americans. His book The Minority Rights Revolution (Belknap Press of Harvard University Press, 2002) explores the American development of public policy designed to benefit minorities, including Latinos, women, Asian Americans, the disabled, white ethnics, and others. He is also the editor of Color Lines: Affirmative Action, Immigration and Civil Rights Options for America (University of Chicago Press, 2001). Prof. Skrentny's current research includes a study of globalization and human rights in East Asia and a study of the impact of immigration on discrimination law in the United States. Prof. Skrentny is a former National Science Foundation Fellow and fellow of the Princeton University Center for Human Values. He received his BA from Indiana University and PhD from Harvard University.
Susan P. Sturm, Columbia Law SchoolSusan Sturm is the George M. Jaffin Professor of Law and Social Responsibility and the founding director of the Center for Institutional and Social Change at Columbia Law School. She has published numerous articles, case studies, and books on "the architecture of inclusion," institutional change, transformative leadership, workplace equality, legal education, and inclusion and diversity in higher education. Her recent publications include: Scaling Up (2010); Negotiating Workplace Equality (2008); Conflict Resolution and Systemic Change (with Howard Gadlin, 2007); and The Architecture of Inclusion: Advancing Workplace Equity in Higher Education (2006). The architecture of inclusion was the focus of a symposium issue published in June 2007 by the Harvard Journal of Law and Gender. Prof. Sturm is the principal investigator for a Ford Foundation grant awarded to develop the architecture of inclusion in higher education. She is currently co-chairing a working group on transformative leadership, as part of a Ford Foundation funded project on Building Knowledge for Social Justice. In addition, her research on strategies for facilitating constructive multi-racial interaction in police training is featured on the Racetalks website. Prof. Sturm received her BA from Brown and JD from Yale.
Julie C. Suk, Cardozo School of LawJulie Suk is a professor of law at the Benjamin N. Cardozo School of Law. She is a leading scholar of comparative equality law, and her research has developed a transnational perspective on the theory and practice of antidiscrimination law. Prof. Suk's articles compare European and American approaches to a broad range of problems, including the stakes of criminal, civil, and administrative enforcement of antidiscrimination norms, the state's role in mitigating work-family conflict, the law of Holocaust denial and hate speech, constitutional limits on race-consciousness and affirmative action, and the rise of gender quotas in Europe. Her publications include "Are Gender Stereotypes Bad for Women? Rethinking Antidiscrimination Law and Work-Family Conflict" (Columbia Law Review), "Discrimination at Will: Job Security Protections and Equal Employment Opportunity in Conflict" (Stanford Law Review), "Procedural Path Dependence: Discrimination and the Civil-Criminal Divide" (Washington University Law Review), and "Gender Parity and State Legitimacy: From Public Office to Corporate Boards" (International Journal of Constitutional Law). She was a Jean Monnet Fellow at the European University Institute in Florence and a Law and Public Affairs Fellow at Princeton University. Before teaching, she clerked for Harry T. Edwards on the U.S. Court of Appeals for the D.C. Circuit. She received her AB, summa cum laude, from Harvard, JD from Yale Law School, and DPhil from Oxford University, where she was a Marshall Scholar.
Robin L. West, Georgetown University Law CenterRobin West is the Frederick J. Haas Professor of Law and Philosophy at the Georgetown University Law Center. She came to the Law Center from the University of Maryland Law School, where she taught from 1986 to 1991. Prof. West has been a visiting professor at the University of Chicago and Stanford law schools and taught at Cleveland-Marshall College of Law at Cleveland State University from 1982 to 1985. Prof. West has written extensively on gender issues and feminist legal theory, constitutional law and theory, jurisprudence, legal philosophy, and law and literature. She received her BA and JD from the University of Maryland and JSM from Stanford.
Abstracts, and links to the full text, of the work presented at the conference and to be published in the conference volume appear below.
View all papers here.
Kathryn Abrams, A Social Movement Perspective on the Civil Rights Act of 1964A look at the Civil Rights Act of 1964 from a social movement perspective, framing the Act as a successful outcome of an innovative social movement mobilization. The struggle to enact this law created a body of strategic, tactical, and interpretive resources which subsequent social movements have utilized and modified in their efforts to create legal change. I will develop this thesis by drawing on my (ongoing) work on one of the country's newest civil rights movements: the movement for immigrant justice as it has emerged in the state of Arizona. Activists in this movement have drawn on practices of the civil rights movement in ways that are both obvious—the use of non-violent civil disobedience, or the borrowing of Martin Luther King, Jr.'s discourse of temporality—and more subtle—the deployment of disenfranchised activists to stimulate electoral response. But they have also modified these practices in ways that respond to changes in media and communications technology, and to the politics of a deeply divided government, and to activists who cannot claim the mantle of even formal citizenship, yet seek to perform their civic commitment and affiliation.Full Text: http://ssrn.com/abstract=2409971
Samuel Bagenstos, The Civil Rights Act of 1964 and the Great SocietyI will argue that employment discrimination laws cannot achieve their egalitarian distributive goals unless they stand side-by-side with efforts to improve social welfare provision. I will use three examples to make the point: (1) the Civil Rights Act, whose success in obtaining employment for minorities was abetted by Great Society initiatives such as Head Start, the ESEA, and Medicare/Medicaid (and whose success in that context continues to be limited by the failure to press those Great Society initiatives further); (2) the Americans with Disabilities Act, whose success in obtaining employment for people with disabilities has been limited by the lack of universal health insurance and accessible transportation (though the Affordable Care Act holds promise to correct some of these problems); and (3) the Pregnancy Discrimination Act, whose success in preserving employment opportunities for women who become pregnant has been limited by the lack of universal preschool.Full Text: http://ssrn.com/abstract=2404355
Devon W. Carbado and Patrick Shin, Recursive DiversityShould anti-discrimination law permit employers to consider race as a positive hiring factor for the sake of increasing workplace diversity? A common approach to this question has been to analogize the value of diversity in the workplace to the value of diversity in the educational context and then to argue that since that value justifies affirmative action in the latter context, it should similarly justify race-conscious action in the former. This sort of answer is incomplete, because it overlooks a critical fact. The contexts of higher education and the workplace are not separate domains of diversity but are rather dynamically interconnected. For employers who draw from the ranks of higher education, student body diversity becomes a defining feature of the available labor pool. If educational supply and workplace demand for diversity are related, then employer efforts to produce diverse workplaces may be directly impacted by legal rules governing educational affirmative action. And legal limitations on diversity hiring in the workplace may have an effect on the level of student body diversity that educational institutions will seek. Further, preferences for diversity in the educational and workplace contexts do not operate independently but are rather iterative or recursive. A university’s judgments about the ideal “diversity student” partly determines the supply of diversity available to employers; and employer judgments about the ideal “diversity worker” likely have effects on universities’ admissions decisions. This paper highlights some of the important yet under-examined ways in which the diversity of the workplace and the diversity of the university are in these ways co-constitutive.Full Text: http://ssrn.com/abstract=2348420
Brian T. Fitzpatrick, Is the Future of Affirmative Race Neutral?Many people believe that the future of affirmative action lies in using race-neutral means to achieve racial diversity. Indeed, many state universities have already turned to such techniques after laws were enacted that banned their uses of explicit racial preferences. In this paper, I catalogue the current uses of racial-neutral affirmative action in the United States, explore the relative efficacy of racial-neutral and racially-explicit affirmative action, and assess whether racial-neutral affirmative action programs can avoid the legal threats that continue to mire racially-explicit affirmative action.Full Text: http://ssrn.com/abstract=2426656
Cary C. Franklin, The Concept of AnimusA focus on the concept of animus in employment discrimination law. For the first 10 years of Title VII's existence, courts and commentators did not use the word animus and certainly did not see it as a necessary component of an employment discrimination claim. It was only after Washington v. Davis and Feeney that courts in Title VII cases began to use the word animus and to require that plaintiffs demonstrate animus to win their cases. Today, the concept of animus is ubiquitous in Title VII law—courts frequently suggest that a showing of animus is required to establish a disparate treatment claim, and some conservative judges, Justice Scalia among them, have suggested that even disparate impact law is designed to smoke out underlying animus (and that without such animus, no violation has occurred). Moreover, the current rhetoric about animus suggests that this is what Title VII required from the start. Adopting a historical focus, this paper will show that the view that Title VII required animus from the start is not accurate. The idea that animus is part of the definition of discrimination&mdashlwhich has made it more difficult for plaintiffs to win Title VII cases—is the product of the constitutional politics of a later era, imported into Title VII law.Full Text: http://ssrn.com/abstract=2401527
Nancy Gertner, Judicial Repeal of the Civil Rights ActJust when we are rightly celebrating the 50th anniversary of the March on Washington and the passage of the Civil Rights Act of 1964—what historians call the “signature achievement” of the Kennedy/Johnson administrations—that law has been gutted. The culprit is not Congress or an executive agency. It is the third branch—the judges of the United States courts. Federal judges from the trial courts to the Supreme Court have interpreted the Act virtally, although not entirely, out of existence. This is so across the political spectrum and judicial philosophies.Full Text: http://ssrn.com/abstract=2406671
Craig Gurian, Taking Seriously Title VII's "Floor, Not a Ceiling" InvitationCivil rights advocates have been insufficiently attentive to the promise of creative state and local legislating as the means by which to counteract the erosion of federal civil rights protections. The promise has not only a defensive component (trying to hold on to doctrine that the Supreme Court has been abandoning) but an offensive one as well (introducing more robust substantive and procedural provisions than Title VII has ever had). This paper examines a so-far successful attempt in New York City to implement a vision that proposed to “meld the broadest vision of social justice with the strongest law enforcement deterrent” (one that, for example, has removed the “severe or pervasive” hurdle to the prosecution of sexual harassment lawsuits). The paper, while recognizing that state and local action is no cure-all, goes on to identify several doctrinal areas that are particularly ripe for state and local legislative innovation.Full Text: http://ssrn.com/abstract=2401056
Nan Hunter, Civil Rights 3.0It is now commonplace to hear the LGBT rights movement being described as the last, or the next, or today’s, pre-eminent civil rights issue. This chapter will explore what that means from several perspectives: What does the label tell us about the civil rights paradigm itself? If the achievement of marriage equality is the great civil rights achievement of this generation, what does that suggest about a future for equality more generally? How have new forms of, and technologies for, movement building affected the idea and practice of civil rights? Does the civil rights paradigm have a future? I focus in on three aspects of the social meaning of civil rights: legal doctrine and legal institutions, social movement strategies, and the tension between the discourse of challenges to social hierarchy and that of civil rights. What we learn is that LGBT advocates have contributed to the overall project of formal equality under law primarily by developing an extraordinary strategic and tactical dexterity, uniquely so at the state level and in its alliance with the business sector. As to the latter, however, there are serious potential disadvantages. In the current political framework, the possibility of advances in substantive equality law-–either statutory or Constitutional-–has shrunken to the point that, even as LGBT rights groups make breakthroughs in achieving goals such as marriage equality, they will do well to avoid having to take backward steps with regard to such overarching concepts as the disparate impact principle or heightened scrutiny. For the future, the big question for this movement-–and all other social justice movements in the United States-–is whether it will deploy its talents and resources to challenge embedded, structural forms of discrimination.Full Text: http://ssrn.com/abstract=2404422
Olati Johnson, Leveraging AntidiscriminationAs the Civil Rights Act of 1964 turns 50, antidiscrimination law has become unfashionable. Commentators say that "discrimination" should be dislodged from its prominent place in American contemporary discourse, and that antidiscrimination laws merely aim at formal discrimination—inadequate for addressing the substantive inequalities that persist today. This [essay/chapter] journeys back through the legislative history of the Act as well as the early public and private implementation of the Act to reveal a much thicker account of the barriers to exclusion and a more expansive set of enforcement strategies than we typically recognize today. Further this [essay/chapter] shows how this history might shape how we understand the continued capacity of the Civil Rights Act's public and private enforcement regime. In particular, I examine the use of affirmative equality directives in Title VI and the emerging return to a systemic enforcement approach in Title VII.Full Text: http://ssrn.com/abstract=2409090
Ellen Katz, Justice Ginsburg's UmbrellaThis essay relies on an analogy pressed in the dissenting opinion in Shelby County v. Holder to describe an increasingly prominent conception of federal anti-discrimination law. It is a conception that sees the existing regime to be a source of unjust enrichment to its beneficiaries, one that does not simply make victims of undeniable discrimination whole, but instead places a host of interested parties, victims included, in a decidedly better position than they would have been had the discrimination never occurred. Notably, this conception of federal anti-discrimination law does not deny the persistence of discrimination, including discrimination that is unconstitutional or otherwise invidious. The more pressing worry, however, is that the regime today does more harm than the discrimination it presently addresses.Full Text: http://ssrn.com/abstract=2402868
Sophia Z. Lee, Title VII’s Unexpected HegemonyA focus on the way in which Title VII dominates what we think of as employment discrimination law today, but that it was neither immediate nor inevitable after its passage that it would reach this stature. I intend to discuss the widespread skepticism about the law initially; the search and even preference for administrative alternatives at the NLRB, FCC, and FPC; civil rights advocates’ efforts to amend the law to give the EEOC enforcement powers; and the process through which Title VII finally gained its hegemonic position in the late 1970s, nearly 15 years after its passage.Full Text: http://ssrn.com/abstract=2404397
Vicki Schultz, Reimagining Affirmative ActionThis paper will articulate a new conception of affirmative action, one that is entailed by an emerging theory of anti-discrimination law that I call "anti-discrimination as disruption." In this new conception, the purpose of affirmative action is not to ensure that employers create a prophylactic system to correct or prevent ongoing discrimination, or to offer more favorable treatment to members of historically disadvantaged groups because discrimination has left them unable to compete effectively in the traditional selection process (the two earliest conceptions of affirmative action). Nor is the purpose of affirmative action to ensure that such group members are represented in sufficient numbers to give voice to their different (or "diverse") experiences and viewpoints (a more recent conception). Instead, in the new understanding, the purpose of affirmative action is precisely to break down the stereotyped notion that member of such groups are "different" or have different viewpoints. It is only by including an adequate number of members of these groups that they can be present in sufficient numbers to have the power, and the presence, to censor such stereotypes and challenge the notion they are different. Thus, paradoxically, we must take account of race in order to ensure that, ultimately, people will disregard it. After explaining this conceptual framework, the paper will show how it is grounded in social science and trace how support for it can be found in recent Supreme Court cases. Finally, I will show how this understanding of affirmative action sheds light on some key issues that have plagued courts and policymakers, such as the notion of "critical mass."
John D. Skrentny, After Civil RightsWhat role should racial difference play in the American workplace? As a nation, we rely on civil rights law to address this question, and the monumental Civil Rights Act of 1964 seemingly answered it: race must not be a factor in workplace decisions. This book contends that after decades of mass immigration, many employers, Democratic and Republican political leaders, and advocates have adopted a new strategy to manage race and work. Race is now relevant not only in negative cases of discrimination, but in more positive ways as well. In today's workplace, employers routinely practice "racial realism," where they view race as real—as a job qualification. Many believe employee racial differences, and sometimes immigrant status, correspond to unique abilities or evoke desirable reactions from clients or citizens. They also see racial diversity as a way to increase workplace dynamism. The problem is that when employers see race as useful for organizational effectiveness, they are often in violation of civil rights law.
Theodore J. St. Antoine, Labor Unions and Title VII: A Bit-Player at the Creation Looks BackThe often-fraught relationship of organized labor and the civil rights movement is a well known story. Before Title VII, African Americans were openly excluded from membership in most railroad unions and their numbers were sharply limited in the skilled construction trades, even though all those unions eventually had the legal obligation to provide “fair representation” of any minorities who did manage to get jobs within the unions’ jurisdiction. Given the mores and culture of that time, it was probably inevitable that many if not most rank-and-file union workers placed their perceived economic self-interest above any concerns about promoting racial equality. Yet the story is more complicated than that of white workers simply taking advantage of discrimination against black workers, and the other side of the story needs to be remembered. Union leadership took a more principled position and ultimately the official policy of the AFL-CIO was to support passage of the Civil Rights Act, including the prohibition of discrimination in employment by either employers or unions.Full Text: http://ssrn.com/abstract=2402258
Susan P. Sturm, Nested Civil Rights: Mapping the Pathways of PossibilityThis essay identifies the common features of promising approaches to advancing the Civil Rights Act’s animating vision of a society affording full participation in social, civic, and economic life for people of all backgrounds, including people of color and women. Many of the recent initiatives that have gained traction have positioned civil rights as a nested concept and practice. Civil rights norms, such as anti-discrimination and anti-subordination, have been nested within broader aspirational frameworks anchored in a compelling collective goal, such as reentry education, “cradle to college”, community health or justice reinvestment. Racial, gender, or other identity based disparities remain important and explicit components of these projects, but do not constitute their overarching umbrella, which is defined in terms of transforming institutions or contexts to achieve full participation-type goals. “Rights” constitute one but not necessary the preeminent rhetorical frame for defining collective goals. These projects “nest” civil rights in a second sense: strategies operating within the conventional arenas for advancing civil rights—courts, legislatures, public protests—are linked to and intentionally defined “action arenas” defined by collectively defined goals and strategies explicitly informed by theories of change. Law, lawyers, and regulation thus play a wide range of roles enacting an idea of law articulated by Robert Cover as the relationship between the is, the ought, and the what might be. Law and lawyers play an important but not necessarily the constitutive role in shaping the architecture, strategies and relationships within these collective projects. Civil rights’ nested character operates in a third sense of the holders of civil rights identities and projects being nested in broader set of relationships, networks, and contexts that can only be understood and addressed through inquiry about the meaning and salience of these categories in particular contexts and in relation to specified goals. These relationships are important both as means—the mechanisms by which transformative change occurs—and ends—a crucial aspect of achieving full participation in a networked world. Finally, civil rights are nested in a more literal sense of building nests: spaces that anchor people and communities in a place that scaffolds their opportunities to develop, thrive, and contribute to the thriving of others. Many initiatives that have mobilized collective action and produced meaningful outcomes related to civil rights goals are rooted in places, which are linked to each other through intermediaries and networks. The essay illustrates the promise of nested civil rights with the example of an emerging movement to advance education for communities affected by mass incarceration.
Julie C. Suk, Disparate Impact AbroadThis paper traces and evaluates the trajectory of Title VII doctrine in Europe. The Civil Rights Act of 1964 prohibited discrimination in various realms of social and economic life. Title VII, proscribing discrimination in employment, gave rise to the Civil Rights Act’s largest body of jurisprudence, in which courts have struggled to define the concept of discrimination. Title VII doctrine has had tremendous influence not only on the American workplace, but on antidiscrimination law throughout the world. Antidiscrimination laws in several European jurisdictions have borrowed from U.S. Title VII cases to develop a body of equality law that appears more robust than its American cousins. Griggs v. Duke Power Company, the U.S. Supreme Court case that articulated the disparate impact theory of discrimination, has been cited by English courts, the European Court of Justice, and the European Court of Human Rights. Griggs appears to have shaped the European concept of “indirect” discrimination. At the same time, Griggs converged with other strands of European law developed by the European Court of Justice to interpret the non-discrimination guarantees necessary to promote European integration through the free movement of labor. This paper compares the evolution of disparate impact in the U.S. and that of “indirect” discrimination in several European jurisdictions. The comparison illuminates a major question that has plagued U.S. courts since Griggs: Does disparate impact liability make sense independently of imposing positive duties towards substantive collective goals on public and private institutions? Furthermore, in a legal order that does impose such positive duties, what, if anything, does the concept of discrimination contribute?Full Text: http://ssrn.com/abstract=2408143
Robin L. West, Towards a Jurisprudence of Civil RightsThis paper examines the nature of the "right" at the heart of the Civil Rights Act, the civil rights movements, and the idea of civil rights, drawing particularly on the definition given in Thomas Paine's pamphlets The Rights of Man. The essay distinguishes and contrasts civil rights from constitutional rights and natural rights both, arguing that the former are best understood as rights that are derived from one's status as a citizen, rather than as a constitutional subject or natural human being. Unlike constitutional rights, civil rights are those rights that exist solely by virtue of positive law, including the law of property, contract, personal security, and personal injury law, but unlike legal rights per se, they are also grounded loosely in our nature: they are the legal rights we must have to best live out our social lives and individual capabilities. Discriminatory action by private or public figures is one obstacle to our enjoyment of those social capabilities, but only one among others. We have unnecessarily truncated our own civil rights traditions by focusing exclusively on the anti discrimination norm as the core content of civil rights, rather than understanding discrimination as one barrier to our enjoyment of civil rights, and anti discrimination as a necessary but not sufficient legal means for ensuring their continuing role in our civil life.Full Text: http://ssrn.com/abstract=2363036
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