A recent New York Times article, School Suspensions Lead To Legal Challenge, highlights the racial disparities in punishments dolled out by the nation’s public school system.

Of particular interest to REP readers, the article states:

“At issue [in a recent lawsuit in North Carolina] is the routine use of suspensions not just for weapons or drugs but also for profanity, defiant behavior, pushing matches and other acts that used to be handled with a visit to the principal’s office or detention. Such lesser violations now account for most of the 3.3 million annual suspensions of public school students. That total includes a sharp racial imbalance: poor black students are suspended at three times the rate of whites, a disparity not fully explained by differences in income or behavior.”

Stay tuned for the next edition of the REP e-newsletter slated for publication on Monday, March 22nd, on race and education.  The newsletter articles expand on the issues identified in this New York Times piece.

Recently the University of California, San Diego got a rude awakening about the state of racial relations on campus.  Three major incidents of racial insensitivity led to a student run sit-in which occupied the Chancellor’s office for several hours.   The first incident was a party held off campus that was called the “Compton Cookout” which was held to “to mock Black History Month, with guests invited to don gold teeth in the style of rappers from the Los Angeles suburb of Compton, eat watermelon, and dress in baggy athletic wear.”  The party spurred huge backlash from minority groups on campus, and particularly from African-American students, though they only comprise less than 2% of the student population.  Shortly after the “Compton Cookout” a student run TV station used a racial epithet in a campus wide broadcast, and just three days after the party a noose was discovered suspended from a bookshelf in the campus library.   After this string of racialized incidents, students occupied the Chancellor’s office in an effort to incite a much needed debate about the state of racial relations on campus.   UCSD’s Chancellor, Mary Anne Fox responded by saying, “I think we would all like to believe that racism was a thing of the ’60s, that it’s now passed us,” but that “these incidents suggest it’s not.”

The W. Haywood Burns Institute for Juvenile Justice Fairness and Equity has released a web-based interactive state data map showing racial and ethnic disparities in juvenile justice systems in the United States.   To use the data map, the website explains, “Click the desired State to learn about State data on racial and ethnic disparities in the juvenile justice system, State’s efforts to reduce disparities, and State’s juvenile justice system information, including state contact information and relevant law.”

After clicking on a state of interest, the user will be directed to relevant juvenile justice statistics and charts.  The user can select and search data on a state level and also on a national level.  The underlying data is supplied by the Office of Juvenile Justice and Delinquency Prevention.

The ABA Judicial Division sponsored a program by this name at their mid-year meeting in Florida this month.  The program explored the idea of diversity in the judiciary and studies on how the race or gender of the judge could affect decisions made in discrimination cases.  The results of the studies were very telling.  Most strikingly, “In federal racial harassment cases, one study (PDF) found that plaintiffs lost just 54 percent of the time when the judge handling the case was an African-American. Yet plaintiffs lost 81 percent of the time when the judge was Hispanic, 79 percent when the judge was white, and 67 percent of the time when the judge was Asian American.”  A similar disparity arose when gender differences were examined, where “A second study (PDF), looked at 556 federal appellate cases involving allegations of sexual harassment or sex discrimination in violation of Title VII of the Civil Rights Act of 1964. The finding: plaintiffs were at least twice as likely to win if a female judge was on the appellate panel.”

The program itself was of course named for the now famous comment made by current Justice Sonia Sotomayor, “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.”

In a recent Wall Street Journal article Heather Mac Donald, of the conservative think-tank “The Manhattan Institute”, claims that poverty, racism, and social injustice are not root-causes of crime. Mac Donald argues that under conventional left-wing wisdom, crime should be increasing due to the current economic recession. Mac Donald cites 2009 FBI crime statistics that reportedly show national decreases in crime. She writes, “The recession of 2008-09 has undercut one of the most destructive social theories that came out of the 1960s: the idea that the root cause of crime lies in income inequality and social injustice.”

Mac Donald criticizes government social service programs, including “after-school programs, social workers, and summer jobs”, suggesting that they are not effective in decreasing crime.

Is Mac Donald’s analysis too simplistic? Does a decrease in some crimes really demonstrate that crime is not linked to poverty, race, or social injustice? Even if one were to accept Mac Donald’s arguments, is it really better for individuals and society for the government to eliminate needed social service programs?

Disney’s The Princess and the Frog depicts the long awaited first African American princess in Disney’s mainstream filmmaking.  Many other racial groups have been represented thus far, there have been princesses of native american, asian, and even middle eastern descent throughout Disney’s history.   Reception of Princess and the Frog has been mixed, and the ongoing struggle with representing African Americans in mainstream media is obvious.  NPR explored this phenomenon and a controversial review written by Scott Foundas, entitled “Disney’s ‘Princess and the Frog’ Can’t Escape Ghetto.” Foundas says that “It seemed puzzling to me that after all of this pressure over many years from various groups to create an African-American princess, that when they finally got around to doing it they decided to put her in Jim Crow-era Louisiana, hardly a shining moment in the history of African-Americans in the U.S. in terms of their standing in society.”  Other comments reflect the disappointment in that Tiana is not actually a princess in the typical Disney manner, that her “prince” is very light-skinned, and that she seems to have straight hair.  But others, particularly African-American filmgoers, were delighted by this development and felt that it was the result of a long fought battle for representation in mainstream media for children.   A Disney store manager in Culver City teared up when the live version of “Princess Tiana” came to meet people and shake hands, saying “”I have worked for the Disney company for 16 years, and this is something that this community — and I can include myself — has been waiting on.”

There is no question that Disney and other mainstream film studios who market to children play a large role in the formation of our next generation’s ideals and values when it comes to race.    The Princess and the Frog is an important step toward broadening racial representation in children’s media, but still poses an important question about the manner in which African-Americans are depicted.

In an article published yesterday on SCOTUSblog.com, Professor Michael J. Klarman, from Harvard Law School, outlines the Supreme Court’s impact on race relations for the last fifty years, from Brown vs. Board of Education to Parents Involved.  It is an interesting historical account and well worth the read.

Professor Klarman reminds readers of the current conservative majority’s common ideology:  “That ideology embraces a narrow, formalist conception of what counts as race discrimination; abhors the use of racial preferences, whether benignly motivated or not; and deems this nation’s ugly history of white supremacy as something more to be repudiated than remedied.”  This is important for us, as advocates to remember.  By using the tools the Race Equity Project endorses, such as social cognition and framing, we can push back against this conservative ideology, to prevent further racially regressive results in our communities.

The National LGBT Legal Aid Forum is a new listserv dedicated to improving legal services for low-income LGBT clients. This listserv is a forum for members to post questions and answers related to serving LGBT clients, and to share resources and updates on new developments in LGBT-related law. Legal aid advocates who are committed to effectively advocating for LGBT people and their families are invited to apply for membership. Attorneys from national, state and regional LGBT legal organizations who wish to communicate directly with a community of LGBT-supportive legal aid advocates are also invited to apply. The Forum’s members include advocates with expertise in various aspects of LGBT-related law, including, but not limited to family, employment, health, immigration and domestic violence law. Legal aid advocates with no prior experience serving LGBT clients, but who wish to build their knowledge base and access related information, are also welcome. This listserv is administered by California Rural Legal Assistance and the National Center for Lesbian Rights with guidance and support from a committee of attorneys from New York Legal Assistance Group, Lambda Legal and Legal Services of Northern California. To apply for membership to the forum, visit www.nclrights.org/LGBTlegalaid.

Last week, despite the Supreme Court’s controversial ruling in Ricci v. DeStefano last term, the Center for Constitutional Rights successfully challenged the FDNY’s racially discriminatory hiring practices.  Interestingly, New York District Court Judge Nicholas G. Garaufis ruled that FDNY’s hiring practices led to racial disparities, which he attributed to both an exclusionary exam and intentional discrimination against African Americans.  Read the full opinion here.

Click here for CCR’s press release on their historic court victory.

The New York Times recently reported on three American evangelicals’ apparent ties to the Anti-Homosexuality Bill of 2009 in Uganda. The bill, which would make certain “homosexual” acts punishable by death, has spurred condemnation by the U.S. government, among others, and galvanized the worldwide LGBT community. The Times reports that the three men participated in a conference held in March 2009 in Kampala, one month prior to the Anti-Homosexuality bill’s introduction. During the conference, the men were presented as “experts” on homosexuality and lectured to thousands of Ugandans on how to make gay people straight and how the gay movement is an “evil institution” set to replace heterosexual marriage with “a culture of promiscuity.”

Schmierer and Lively are prominent “gay conversion” proponents. Conversion is thetheory that gays and lesbians can become straight with “treatment”, counseling and other support. This theory has been discredited and deemed harmful by the American Psychiatric Association.

When it was revealed that Schmierer and Lively have connections to the greater Sacramento region (Schmierer lives near Lodi and Lively is a former Citrus Heights resident) Sacramento area LGBT leaders felt compelled to speak out. “I am outraged that this is going on,” Sacramento Gay and Lesbian Center Interim Director Bill Otton told the Sacramento Bee. “I think this is tragic that this is coming from people out of our own community and carrying these beliefs to other people.” The Reverend Kapya Kaoma, a Zambian whom the Times describes as a key player in uncovering the relationship between American evangelicals and the African anti-gay movement believes that the evangelicals portrayal of members of the LGBT community as intent on corrupting children and destroying families has potentially deadly consequences for LGBT Ugandans, many of whom have been subjected to anti-gay abuse and violence. Kaoma says the evangelicals have “set a fire that can’t be quenched” given existing anti-gay norms and beliefs held by many Ugandans. Schmierer and Lively maintain that they do not condone the Anti-Homosexuality bill, but continue to promote their gay conversion beliefs.

Despite mounting pressures from Western governments and human rights and gay activists in Uganda and around the world to withdraw the bill, the Ugandan parliament is scheduled to consider passage of the bill in February or March of this year.

“Only a very small percentage of white children live in high poverty neighborhoods throughout childhood, while a majority of black children do.”  Pew Charitable Trust, Neighborhoods and the Black-White Mobility Gap (2009).

Launched in 2003, the Baltimore Housing Mobility Program was established to combat the concentration of poverty in minority communities.  The program provides current and former public housing families and families on the public housing or Housing Choice Voucher waiting lists access to private market housing in low poverty and predominantly white neighborhoods.  Program participants receive budget and financial education, at least two years of post-move counseling, and employment and transportation assistance.   To date, the program has moved 1,522 families into low-poverty, racially integrated neighborhoods.

A recent report written by Lora Engdahl and published by Poverty and Race Research Action Council and The Baltimore Regional Housing Campaign gives the program a very positive review. The report is based on the results of an ACLU of Maryland client feedback survey.  Participants reported dramatic, positive changes in their environment upon moving, significant improvement in school quality, and enhanced quality of life.

The Republican National Committee had this picture of President Obama posted on their Facebook page for nearly a week.  Since Obama’s election, public and pundits alike have been grappling with the idea of America being a “post-racial” society; a society that supposedly no longer needs the benefits of inclusionary or equal opportunity programs.   After all, we must have achieved equality if a man of mixed-racial heritage with a name like Barack Hussein Obama can be elected President.  Right?  But what if instead of equality, we have achieved a liberation of racism and its many incarnations?

In this NPR interview, the participants shared their unique perspective on race and racism in America since Obama’s election.  Each had a personal experience to share and perhaps surprisingly, most of their experiences were with the types of overt racism that the majority of America might attribute to a time long before the day when we could elect a black President.  Raymond Winbush, Director of The Institute for Urban Research at Morgan State University shared the following experience:

“Well, I had a rather mundane experience that happened about a week after Obama’s election. And I got into a taxi in New York, and people were still in this kind of euphoric state. And this white cab driver turned around, you know, rather matter-of-factly and said well, now that you guys have the country, what are you going to do with it?  So I asked him, you know, I started deconstructing the language. I said: Who are you guys? I thought we all had the country, and what did you guys do with it? And it was a fairly heated discussion, and I was surprised because it was kind of like a drive-by racial moment that I had to, you know, talk about quickly in the length of time it took to get from Lower Manhattan to, you know, Midtown. And that to me epitomized how people feel the racial divide: It’s your country or my country. And this our-country stuff is more – you know, it depends on who you talk to. ” (emphasis added).

Mr. Winbush describes the current climate in American racial politics as almost a win/lose situation, each side feels like they lost when the other appears to win control or power or influence.  More striking though is Mr. Winbush’s experience at a broader level- what made that taxi driver feel that he could or should address Mr. Winbush in that manner?  Has racism come out of the closet once again?   Keli Goff, a political blogger at theloop21.com attributes the more blatant use of racism to the growing fear that America is being “taken over” or “occupied” by minority populations.

“And so there is something that sort of struck me about the fact that when someone gets so angry that they feel the need to put in writing -call someone of color a banana-eating jungle monkey, you know, which is the type of language that I don’t think even David Duke would have been so silly as to put in writing, and yet when someone feels so angry they need to do that, when someone feels so angry they need to rip up a poster of Rosa Parks, when someone feels so angry that they need to call a member of Congress the N-word and put it in writing, that says to me that that’s someone who’s angry – not just angry but afraid that they’re losing their country.”

This anger and fear has led to a distinct phenomenon which Mr. Winbush identified later in the talk, “people are feeling freer now to talk about race in some of the most ugly ways.” Clarence Page, syndicated columnist from the Chicago Tribune, responded to Mr. Winbush and said that Obama’s election seems to have essentially liberated people from the burden of political correctness.   The question then becomes, what is it about the election of a non-white President that led to people feeling more free to express their feelings about race, racism and racial disparities?  And where will that freedom lead us in the future?  Will we become a more open society willing to dialogue about difficult racial issues, or will the incidence of hate crimes rise?

According to the New York Times, nine men have been executed for rioting in China last summer.

In July 2009, a series of violent clashes erupted between Uighurs, Chinese state police, and Han residents in the city of Urumqi resulting in over 200 dead and over one thousand injured. In the weeks following the riots, Chinese state police and security forces rounded up hundreds of Uighurs.

Among several others tried for involvement in the rioting, these nine men were sentenced to death after separate trials in early October. On October 30, an appeals court in Urumqi upheld their death sentences. After apparent review of the sentences by the Supreme People’s Court, the men were executed. Most of the men prosecuted for their involvement in the uprising had Uighur names.

In a recent report, Human Rights Watch documented 43 cases of Uighur men who have disappeared following the Urumqi riots.

The Los Angeles Times reports today that Donald Sterling, owner of the Los Angeles Clippers and a Los Angeles real estate mogul, has agreed to settle a housing discrimination lawsuit for $2.725 million, which he will pay into a fund for the victims of his discriminatory housing practices.  If approved, the settlement will end the case, filed three years ago by the Department of Justice, Civil Rights Division, based on allegations that Sterling favored Korean tenants and deliberately excluded African Americans, Hispanics, and families with children.  Sterling and his wife own and manage over 100 apartment buildings with approximately 5,000 units in Los Angeles County.

In an article published yesterday by the New York Times, reporter Choe Sang-Hun detailed a recent phenomenon in South Korea of mixed-race groups and couples being confronted with scorn and racial slurs in public. The author quotes an Amnesty International report that asserts “incidents of zenophobia are on the rise” in South Korea.

According to the article, the response to this trend has been two-fold.  First, legislators in Parliament have begun drafting and debating legislation that would criminalize racial discrimination. Opponents of the legislation believe the law will encourage immigration, drive up crime rates, and push native workers out of their jobs.

Second, following media coverage of the incident, prosecutors charged a man who used racial slurs against a mixed-race group with contempt, signaling the first time such charges have been used to punish an allegedly racist offense. In that case, a Korean man shouted racial slurs at a Korean woman and East Indian man who were traveling together on a bus.

After the election of our nation’s first multi-racial President, many have been saying that we now live in a “post-racial” society.  John Payton, President of the NAACP’s Legal Defense Fund points out in this interview the potential dual meaning of this phrase and acknowledges that while we certainly have made strides in racial relations in our society, we still by no means live in a “post-racial” world.

This is evidenced most clearly by Louisiana Justice of Peace Keith Bardwell, who just last week refused to issue a marriage license to an interracial couple.  In defense of his actions, Bardwell told the AP, “I’m not a racist. I just don’t believe in mixing the races that way,” and that “[t]here is a problem with both groups accepting a child from such a marriage, I think those children suffer and I won’t help put them through it.”  Bardwell’s objection, particularly as it relates to his stated concern for the children of an interracial marriage, seems ironic.  This is particularly true since it was Barack Obama’s election that caused many in our society to say and even perhaps believe that we have overcome racism in America.  And yet, as we know, Obama himself is the product of an interracial couple.

Beth Humphrey and Terence McKay, the couple denied a license by Bardwell, expressed shock, saying “It’s not something you expect in this day and age.”  Similar sentiments popped up immediately after this story was publicized.  People around the country voiced their astonishment that something like this could happen in our modern society.   Bardwell holds firm in saying he did nothing wrong and even asserts that his action was completely legal because he did not actually prevent Humphrey and McKay from getting married, he just refused to personally perform the ceremony.

The bigger issue here of course is what type of precedent Bardwell’s actions will set.  What happens if all the judges in Louisiana start refusing to perform marriage ceremonies for interracial couples?  Will interracial couples soon have to cross state lines to get married?  Are we back to the days prior to Loving v. Virgina (388 U.S. 1 (1967))?  Now it seems obvious that we do not live in a “post-racial” society, but more importantly it appears that we have also lost significant ground in de-institutionalizing racism.

On October 21, HUD Secretary Shaun Donovan announced several initiatives, including an upcoming proposed rule, to ensure in Donovan’s words that “a qualified individual and family will not be denied housing choice based on sexual orientation or gender identity.” Among other things, the proposed rule will clarify that the term “family” as used in reference to beneficiaries of the Section 8 voucher and public housing programs, includes otherwise eligible lesbian, gay, bisexual and transgender (LGBT) individuals and couples.

In another initiative, HUD will commission the first-ever national study of the impact of discrimination against members of the LGBT community in the rental and sale of housing. HUD compares this planned study with research it undertook in 1977, 1989 and 2000 to study the impact of housing discrimination based on race and color. See HUD’s press release on these initiatives for more details and a link to a study by Michigan’s Fair Housing Centers that found that nearly one-third of same sex couples were treated differently from different sex couples when attempting to rent or buy a place to live.

A New York Times article recently highlighted ongoing struggles to create and / or replace affordable housing in New Orleans and neighboring parishes. In both predominately white suburbs and in primarily black neighborhoods in the New Orleans city limits, proposed low- or mixed-income developments have met with staunch opposition, but the opposition has been particularly fierce in St. Bernard Parish east of the city. In September 2009 a federal district judge held the parish in contempt for violation of a consent order and a previous court order enforcing it.

The Greater New Orleans Fair Housing Action Center (GNO) brought the original lawsuit, which the consent order settled. The suit challenged several ordinances enacted by the St. Bernard Parish Council. Most notable was the infamous “blood-relative” ordinance of September 2006. This ordinance would have required application for a permissive use permit to allow occupancy of any single-family residence by anyone other than a family member “within the first, second or third direct ascending or descending generation(s).” Since whites owned 93% of the houses in St. Bernard Parish before Katrina, the ordinance had glaring racial implications. The consent order, approved by the district court in February 2008, enjoined the parish from violating the Fair Housing Act and enforcing the discriminatory ordinances.

In September 2008, however, St. Bernard Parish enacted a twelve-month moratorium on multi-family development in the parish. At the time of the introduction and passage of this moratorium, a real estate developer (Provident) had begun the process of constructing four affordable housing developments in St. Bernard Parish.  GNO argued that the moratorium violated the consent order and filed a motion to enforce the order.  Judge Berrigan agreed, finding ample evidence of disparate impact, discriminatory intent, and discriminatory effect of the moratorium. In March, 2009, she enjoined enforcement of the moratorium and ordered St. Bernard Parish to rescind it. [Greater New Orleans Fair Housing Action Center v. St. Bernard Parish, 2009 WL 2399999, E.D.La., 2009.]

The parish’s fight against the affordable housing projects continued. After the court’s March order, St. Bernard Parish denied or delayed the Provident’s applications to re-subdivide the site of the the proposed projects. In August 2009, Judge Berrigan granted GNO / Provident’s motion for contempt and, again, enforced the consent order, finding that “[t]he objections raised [to the applications for minor re-subdivision], by both the Planning Commission and the Parish Council, [were] irrelevant to the re-subdivision process and pretextual.” (2009 WL 2567186, 16, E.D.La., 2009.) Amazingly, that didn’t stop the Planning Commission from denying the application again, construing it as a “major re-subdivision.”

GNO went back to court with yet another motion for contempt and to enforce the consent order. “This is the third time that this Court is called upon to determine whether or not defendants violated orders governing this case,” Judge Berrigan said in her opinion granting the motion. She applauded the immediate and earnest recovery efforts of the parish, one of the areas hit hardest by Katrina, pointing out the incongruity between the parish’s actions to block the affordable housing development, and its otherwise valiant “spirit of recovery”:

[W]hen parish officials were initially approached by Provident, they appeared to welcome their offer of affordable housing, and for good reason. The four modestly sized housing units would bring $60 million of investment into the parish, without any cost to the parish…. Each project was estimated to produce $40,000 in annual property taxes, for a total of $160,000 a year…. Each development was mixed-income with thirty percent of the units rented at fair market rates, fifty percent at 60% of Area Median Income and twenty percent at 30% of Area Median Income. These rents were targeted to the incomes of the St. Bernard Parish workforce, such as teachers, policemen, firemen, nurses, refinery workers, dock workers, cooks, waiters, and retail sales people….

Plaintiff’s expert in affordable housing, Kalima Rose, opined
that even if St. Bernard proceeded with all the currently available federal resources and projects, including Provident, that only twenty percent of the lost rental stock would be replaced. Provident’s projects clearly promise long and short term gains for the parish.

Nevertheless, since the fall of 2008, certain St. Bernard Parish officials have repeatedly taken actions to thwart, delay and derail the proposed developments…. [Id.]

Judge Berrigan’s September order deemed the re-subdivision applications approved, and imposed monetary sanctions if the Parish fails, without good cause, to meet any of the deadlines in the opinion. The sanctions would begin at $5,000 for the first day, “increasing to $10,000 each day thereafter per each individual missed deadline…” With this latest hammer, it appears that the affordable housing project can move forward.

As most REP blog readers know, after the Supreme Court’s decision in Washington v. Davis, 426 U.S. 229 (1976) and the creation of the “intent doctrine,” racial profiling cases have often been unsuccessful. Here is a recent example that highlights the intent doctrine’s continuing impact in these cases:

In early 2008, police officers and health and code inspectors conducted warrantless raids on five barbershops owned and patronized predominantly by African Americans in Moreno Valley, California. The inspections were called “normal administrative inspections,” yet armed police officers blocked the business entrances, questioned employees and customers, and searched the storefront businesses. At one barbershop, police ran warrant checks on barbers and patrons alike; at another, police arrested a shop owner after he objected to the treatment of his customers and employees.

Soon after the raids, barbershop owners and customers filed a lawsuit in the district court of the Central District of California’s Eastern Division, against the City of Moreno Valley and individual officers and inspectors, claiming the unconstitutional raids violated their Fourth and Fourteenth Amendment rights. In response, the defendants filed two motions to dismiss the complaint. The Court found the plaintiffs had alleged sufficient facts to show the police officers’ discriminatory intent, but found the allegations did not show the inspectors’ intent was discriminatory. See Gordon v. City of Moreno Valley, _ F. Supp. 2d _, 2009 WL 3088557 (C.D. Cal. Aug. 31, 2009). Thus, the Court granted one motion, with leave to amend, and denied the other. Based on the Court’s docket, the parties are now engaging in limited jurisdictional discovery on the issue of whether or not the defendants’ practice of conducting these raids is likely to continue in the future, to support the plaintiffs’ request for a preliminary injunction.

The Washington University Law Review recently published an article on the results of an empirical study suggesting the race or ethnicity of a judge significantly affects the outcome of workplace racial harassment cases. See Chew & Kelley, Myth of the Color-Blind Judge: An Empirical Analysis of Racial Harassment Cases, 86 Wash. U. L. Rev. 1117 (2009). The study analyzed over 400 federal workplace racial harassment cases between 1981 and 2003. The authors, Professors Pat K. Chew and Robert E. Kelley, concluded: “[w]hile plaintiffs [in workplace harassment cases] have a poor win rate in general, they are much more likely to win if their cases come before African American rather than White judges. Plaintiffs are successful in 46% of their cases before African American judges but less than half as often before White judges; logistic regression indicated than on average, plaintiffs before African American judges are 3.3 times more likely to win than before White judges.” Id. at 1156.

The San Francisco Chronicle provided an update in an article today on a case involving minority residents of Section 8 housing in Antioch, California, that was first written up by the Race Equity Project E-Newsletter a year ago.  The subject of E-Newsletter 3.6 was the intersection of criminal law, race, and poverty law practice.  The specific case was described in the article titled, “Targeted Enforcement of Section 8 Participants in Antioch.”  The case, brought by Bay Area Legal Aid and Public Advocates, Inc. on behalf of primarily African-American Section 8 tenants in the city of Antioch, alleged that the City’s special police enforcement division, called, the “Community Action Team” (CAT), had systematically targeted Section 8 tenants for police enforcement (“over-policing”) in an effort to drive those tenants out of Antioch and, in so doing, had violated those tenants’ civil rights.

The SF Chronicle reports that criminologist Barry Krisberg’s recent study confirmed that “Antioch’s police Community Action Team … has disproportionately concentrated on subsidized Section 8 housing for the poor, and even more so on black tenants.”

The CAT website says that the CAT’s goal is to protect the right it asserts Antioch residents have “to feel safe in their homes and neighborhoods…“  The purported right to be free from fear has yet to be codified in California law.  Based on what Social Cognition science tells us about how our mind’s implicit associations are primed to be unconsciously fearful of, especially, people of African descent by such things as watching the local evening news (see Jerry Kang’s article, “Trojan Horses of Race“), residents of Antioch, Section 8 tenants included, are likely caught in a vicious cycle of unfounded fears confirmed, in many of their minds, by the experience and reporting of targeted enforcement of low-income, African-American households.  Maybe what is needed, at least in part, is some anti-bias training for fearful residents of Antioch and its police officers in order to raise the impact of unconcious biases to the conscious level where they may be dealt with openly and Constitutionally.

On August 10, 2009, U.S. District Judge Denise Cote approved a $62.5 million settlement agreement in a landmark action brought by the Anti-Discrimination Center (ADC) against Westchester County, New York. In a legal first, the ADC sued under the federal False Claims Act to enforce the County’s obligation to “affirmatively further fair housing” as a condition of receiving Community Development Block Grant (CDBG) funds from the federal government. Specifically, ADC alleged that over a period of six years, the County took CDBG funds under false pretenses by certifying to HUD that it affirmatively furthered fair housing, when in fact it failed, among other things, to consider race-based impediments to housing choice and to implement measures to overcome such impediments. Under the terms of the settlement agreement, Westchester County must spend $52 million (the amount ADC alleges the County falsely obtained) to build at least 750 units of affordable housing within five years in County neighborhoods with very small African-American and Latino populations. Counsel for ADC are ADC Executive Director Craig Gurian and the law firm of Relman & Dane. For more background on the case, see Judge Cote’s opinion denying the County’s motion to dismiss the action and decision granting partial summary judgment for ADC and the August 11 New York Times article on the settlement.

Welcome to our third e-newsletter of 2009. This issue explores the intersection of issues affecting the lesbian, gay, bisexual and transgender (LGBT) community and respective communities; race and poverty or low-income status. Each of the three articles references the Williams Institute’s groundbreaking study on poverty in the lesbian, gay and bisexual communities. The study serves to debunk the widely-held assumptions and stereotypes that families headed by same-sex couples have lower rates of poverty than different-sex couple families and concludes that for Latino/a and African-American same-sex couples, income levels are significantly lower than for their respective heterosexual counterparts. We hope the examples of cutting edge and innovative advocacy and practice described in the articles in this issue instruct and inspire our readers.

Legal advocates challenging stereotypes and increasing access to justice for LGBT communities, Lisa Cisneros, California Rural Legal Assistance, and Cathy Sakimura, National Center for Lesbian Rights

Economic realities in the transgender community by Matthew Wood, Transgender Law Center

Blacks and gays: Bridging the cultural divide by Joel A. Brown

Recent posts:

• Cries of “reverse racism” distract from reality of systemic racism
• The dire state of language access in state courts
• Voting Rights Act survives Supreme Court decision
• Critical race studies symposium takes on “colorblindness”
• The use of “frames” in race equity advocacy
• Can America’s urban food deserts bloom?

By Lisa Cisneros and Cathy Sakimura

Legal aid groups and national legal organizations are forging new programs to improve access to technically sound and culturally competent legal services for lesbian, gay, bisexual and transgender (LGBT) people. Access to civil legal counsel is a profound challenge for those who struggle with poverty, racial disparities, geographic isolation, and barriers associated with age, language or immigration status. Securing quality legal counsel becomes especially difficult when the matter at stake involves a client’s sexual orientation or gender identity. Laws impacting LGBT people have changed dramatically in recent years. Legal protections exist in a patchwork across the state and federal level. Lawyers, including legal aid attorneys, continue to climb the learning curve with respect to LGBT-related law, and the experiences of LGBT clients.

Programs That Make a Difference

One example of leadership to improve access to justice for LGBT people is the National Center for Lesbian Right’s Family Protection Project. NCLR is a national legal organization committed to advancing the civil and human rights of LGBT people and their families through litigation, public policy advocacy, and public education. The Family Protection Project improves access to family law services for low-income LGBT families, with a focus on serving families of color.

The Family Protection Project is a source for training and technical assistance for legal aid attorneys assisting LGBT families on legal issues involving sexual orientation or gender identity. The project works in coalition with organizations serving communities of color to provide culturally competent legal services, and issues publications on legal topics of particular relevance to low-income LGBT communities. The Family Protection Project has also created a resource kit for serving LGBT clients. The kit packages tools for advocates serving LGBT clients with materials for clients, themselves, such as a plain language brochure for LGBT parents about their rights. NCLR helps improve access to justice by sharing its legal expertise with attorneys on the front lines.

Legal aid-led efforts include California Rural Legal Assistance’s Proyecto Poderoso | Project Powerful. CRLA provides no-cost legal representation to California’s rural poor in the areas of health, housing, civil rights, education, family security, and employment law. Proyecto Poderoso is increasing and improving LGBT-related legal services. The program carries out three areas of activity: professional development on LGBT-related law and cultural competency, community education, and direct assistance for low-income LGBT people, particularly LGBT farmworkers. CRLA has partnered with NCLR to implement the program, leveraging NCLR’s knowledge of LGBT legal issues to help CRLA attorneys develop expertise in this area. CRLA and NCLR have also jointly created Tips for Serving LGBT Clients, a publication for legal services and pro bono attorneys.

Since its inception, Proyecto Poderoso has trained nearly all staff members across CRLA’s 21 field offices. The program has conducted most of its community education in Spanish, reaching more than 3,000 individuals through presentations and outreach activities during the past year. The program attorney and community worker have appeared in 26 television and radio interviews, speaking out about LGBT civil rights in rural, predominantly Latino media markets. CRLA has significant increased its provision of legal services to LGBT people.

Other legal organizations, in addition to CRLA and NCLR, have launched initiatives to ensure that existing legal protections make a practical improvement in the everyday lives of LGBT people, regardless of poverty, racial disparities or other types of barriers. In Michigan, Lakeshore Legal Aid hosts a program directed towards serving LGBT survivors of domestic violence. The Los Angeles Gay and Lesbian Center hosts a general legal services program that offers assistance on a wide-range of LGBT-related legal matters. Lambda Legal’s Proyecto Igualdad extends its organizational resources and information to Spanish speakers and seeks to engage the Latino community on LGBT-related issues. These programs illustrate a growing recognition that the creation of new civil rights laws alone will not secure justice for LGBT people and their families. Rather, a robust infrastructure for justice is required. Critical to this infrastructure are legal aid attorneys with expertise in serving LGBT communities.

Overcoming Stereotypes to Recognize the Need for Affordable LGBT Legal Services

The success of the Family Protection Project, Proyecto Poderoso and similar initiatives has required confronting the widespread stereotype that LGBT people are predominantly wealthy and white. This stereotype creates a serious challenge to responding to the legal needs of low-income LGBT people and LGBT people of color. The myth feeds the mistaken belief that LGBT people are generally able to hire private attorneys to adequately handle their legal matters. These assumptions have slowed poverty and racial justice organizations’ responsiveness to the struggles faced by LGBT people within their constituencies. Similarly, LGBT organizations that neglect poverty and racial diversity within LGBT communities reinforce longstanding disparities and decrease their organization’s range of impact.

There are many reasons to dismiss the stereotype of overwhelming affluence and whiteness within LGBT communities. At the outset, the common experiences of LGBT people create challenges that could easily lead to equal if not higher rates of poverty compared to their non-LGBT counterparts. Employment discrimination, lack of access to marriage, higher rates of being uninsured, and less family support increase LGBT communities’ economic vulnerability.

Hard data also contradict conventional wisdom. The Williams Institute at the University of California, Los Angeles has found clear evidence that poverty is at least as common in the LGB population as among heterosexual people and their families.1 The Institute’s report analyzed data from three surveys to compare poverty (as defined by the federal poverty line) between LGB and heterosexual people: Census 2000, the 2002 National Survey of Family Growth (NSFG), and the 2003 & 2005 California Health Interview Surveys (CHIS).

National data indicate higher rates of poverty for lesbian and bisexual women, compared to heterosexual women, and roughly equal poverty rates between gay and bisexual men, compared to heterosexual men. Data from the NSFG for people from ages 18-44 revealed that 24% of lesbians and bisexual women are poor, compared with only 19% of heterosexual women. At 15%, gay and bisexual men have poverty rates equal to those of heterosexual men (13%).

According to Census 2000 data, poverty rates for people in same-sex couples are comparable to or higher than rates for married couples. When poverty rates are calculated for all members of the family, that is two adults and their children, the poverty rate for lesbian families is 9.4% compared to 6.7% for those in different-sex married couples and 5.5% for those in gay male coupled families.

Subsets of the LGB population face even higher poverty rates. African Americans in same-sex couples have poverty rates that are significantly higher than black people in different-sex married couples and are roughly three times higher than those of white people in same-sex couples. Latino and Latina same-sex parents have fewer financial resources to raise their children than those Latinos in married couples, with an average household income of $49,385 compared to $63,017.2 People in same-sex couples who live in rural areas have poverty rates that are twice as high as same-sex couples who live in large metropolitan areas. The rural same-sex couples are also poorer than people in different-sex married couples who live in rural areas.

The data sets analyzed by the Williams Institute do not include information about poverty rates within transgender communities, however a recent study indicates that transgender people face profound economic challenges. The Transgender Law Center commissioned a survey to gauge the well being of transgender people in California. In this survey transgender respondents were twice as likely to be living below the poverty line of $10,400 as compared to the general population.3 One in five respondents reported having been homeless since they first identified as transgender.

Contrary to stereotypes, the context of LGBT lives and demographic data confirm that many LGBT people face economic hardship. Advocates who wish to marshal organizational resources to serve low-income LGBT people or LGBT people of color may need to battle the assumption that LGBT people do not need no-cost legal services. The data and reports cited above provide useful information to dispel those myths, replacing them with a more realistic understanding of LGBT communities.

Conclusion: Ways to Support LGBT Communities

Legal aid attorneys play a critical role in ensuring that expanded legal protections have a real positive impact on diverse LGBT communities. There are a number of steps that legal advocates can take to make a difference. Those actions include participating in trainings to become knowledgeable about laws protecting LGBT people and ways to work effectively with LGBT clients. Legal aid organizations can make their office spaces friendly to LGBT people with visual cues such as posters, stickers or displayed resources that positively reflect LGBT people. It is also helpful for legal aid organizations to forge relationships with local LGBT organizations and activists to inform the larger community that the organization is a resource for LGBT people. Legal aid attorneys are also encouraged to reach out to LGBT legal groups to identify the most effective ways to address LGBT-related legal issues.

Lisa Cisneros is a Pride Law Fellow and attorney for Proyecto Poderoso, a joint project with California Rural Legal Assistance, Inc. and NCLR. Cathy Sakimura is a staff attorney and Family Protection Project Coordinator with NCLR.

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1 Randy Albelda, et al., Poverty in the Lesbian, Gay, and Bisexual Community, May 2008, http://www.law.ucla.edu/williamsinstitute/pdf/LGBPovertyReport.pdf. Other demographic studies can be accessed at http://www.law.ucla.edu/williamsinstitute/publications/Policy-index.html.

2 Williams Institute – University of California, Los Angeles, Census Snapshot: California’s Latino/Latina LGB Population, http://www.law.ucla.edu/williamsinstitute/publications/CASnapshotLatino.pdf

3 View the full report, The State of Transgender California, March 2009, at http://transgenderlawcenter.org/pdf/StateofTransCAFINAL.pdf.

By Matthew Wood

Gina,1 an African American transgender woman, worked for two years as a counselor in a nonprofit providing services to homeless adults. Having lived in a shelter and struggled with an addiction earlier in her life, Gina identified with her clients and worked to ensure their access to food, housing, and counseling. Unfortunately, Gina was discriminated against and sexually harassed by a co-worker. She eventually resigned under duress. Without income, she lost her apartment and was forced to live in a shelter. Without insurance, she was diagnosed with high blood pressure and hepatitis. For months, Gina endured being jobless, ill, and living in a shelter. After almost a year, she was offered a job at the shelter where she was living. However, before she could accept the job she had to move out of the shelter, and she could not afford to pay rent on a new apartment. Fortunately, the Transgender Law Center (TLC) was able to help Gina reach a settlement with her former employer that enabled her to move out of the shelter and begin work.

Gina’s experience is common among TLC’s clients, many of whom are marginalized by their gender identity, race, economic status, and lack of health care. In 2008, TLC surveyed more than 600 transgender2 people throughout California. The results revealed that Gina’s experience was typical of the state’s transgender community as a whole. This is shocking considering that California has the most progressive anti-discrimination laws in the country.3 This article uses the survey results to explore the intersections of gender identity, race, and poverty.

Some of the results of the 2008 survey were surprising, including respondents’ high level of education. 94% of respondents over age 25 held a high school diploma or equivalent, compared to 80% of all Californians over age 25.4 Respondents were twice as likely to hold bachelor’s degrees than members of the California general population. White, Asian American, Pacific Islander and Native American respondents had higher levels of education, with more than half of these respondents holding a bachelor’s degree or higher.

Sadly, the survey revealed that the common correlation between higher levels of education and higher earnings was not true for transgender people. Respondents were twice as likely to live below the poverty line as a member of the general population, with one in four earning less than $10,400 annually. Poverty was especially high among youth, with two out of three survey respondents under age 25 earning less than $10,000 last year. When controlled for educational background, race had no impact on income. However, just over 15% of African American and Latino respondents reported holding undergraduate college degrees. Clearly, race impacts income to the extent that transgender people of color are less likely to have access to jobs that require a college degree.

Under/unemployment also disproportionately affects the transgender community. Fewer than half of survey respondents were employed full-time, and three out of four earned income from more than one source. Female respondents were unemployed at twice the rate of male respondents. The overall unemployment rate was 14%, twice the statewide average during the survey period. With such progressive anti-discrimination laws and a relatively high level of education among survey respondents, how are these discouraging results possible?

One reason is employment discrimination. In addition to experiencing discriminatory practices such as wage inequality and disparaging comments, transgender people face uniquely humiliating discriminatory acts in the workplace including being denied restroom access appropriate for their gender; being compelled to abide by a dress code not appropriate for their gender; employers’ and co-workers’ refusal to use correct name and gender pronouns; and being subjected to inappropriate questions about their bodies. These actions are not just illegal – they are humiliating and demoralizing. They were also experienced frequently by survey respondents, some 70% of whom reported experiencing workplace discrimination. Almost half reported having experienced loss of employment related to their gender identity. Frustratingly, only 15% of those who reported discrimination or harassment filed a complaint. Of those who did not file any kind of complaint, 44% did not think they could get assistance, 27% did not know how or where to file a complaint, and 26% were afraid of losing their jobs. 30% did not know what, if any, protections they had as transgender persons.

In an era in which heath, education, and retirement benefits are increasingly available to people through their jobs, the consequences of employment discrimination are devastating. When a person loses her job, she loses her insurance, pension, day care, and educational opportunities. Survey respondents reported that their health was affected by their low employment and income: 30% reporting postponing care due to discrimination by health care providers. More than 40% postponed care because of economic barriers. This is extremely dangerous given that many transgender people access medical care as part of their transition. Like Gina, 1 out of 5 survey respondents indicated that they had been homeless.

In addition to providing legal assistance and representation where possible, TLC works to increase the capacity of employment lawyers to handle cases involving transgender clients. The 30% of survey respondents who did not know that they were protected by antidiscrimination laws are not alone – many plaintiffs’ attorneys also do not know that FEHA prohibits discrimination on the basis of gender identity and expression. There is a misperception that cases involving transgender plaintiffs are not sufficiently fee-generating. TLC’s “Transitioning the Bar” project is designed to increase the capacity of attorneys addressing such discrimination.

Transgender economic marginalization also can be combated by developing job training resources specifically for transgender employees. As a result of the survey and its 2006 predecessor, the California Employment Development Department dedicated $300,000 to create the Transgender Economic Empowerment Initiative (TEEI), which helps transgender people find and keep sustainable employment. TEEI is based in San Francisco and its partners include San Francisco LGBT Community Center; San Francisco Transgender Empowerment, Advocacy, and Mentorship; Jewish Vocational Services; and TLC. Since 2007, TEEI has helped 52 transgender people obtain more than 70 total job placements, as well as helped more than 125 transgender people obtain job readiness skills.

There is also a significant need to create transgender-friendly workplaces. TLC receives many calls each month from employees who need help approaching their employers about transition-related issues including name and pronoun usage, dress codes, and restroom access. Many employers are unfamiliar with both the law and with transgender individuals and mistakenly assert that transgender employees cannot access the restroom that comports with their gender identity, or cannot be called by their appropriate name unless that have obtained a court ordered name and/or gender change. Such requirements are contrary to California law. They are also especially onerous for transgender immigrants, who may fear that changing their identity documents could jeopardize their asylum or immigration status.

Transgender employees often have concerns about using their preferred name on their resume or revealing their transgender status during interviews. TEEI helps job seekers navigate the application process; it also helps employers create safe and welcoming workplaces. To help employers understand their legal responsibilities and to share best practices for working with transgender employees and clients, TLC provides technical assistance to employees and employers, including individual advocacy and policy creation and implementation. TLC also conducts elimination of workplace bias and workforce development trainings. But TLC’s and TEEI’s efforts are not enough. There is a tremendous need to develop workplace resources targeting the needs of transgender employees.

Matthew Wood is a staff attorney with the Transgender Law Center.
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1 “Gina” is a pseudonym.

2 The term “transgender” is used here to include people whose gender identity and/or expression differs from the sex they were assigned at birth. Transgender individuals may self-identify as male-to-female (MTF), female-to male (FTM), transsexual, or “gender queer” individuals.

3 The California Fair Employment and Housing Act prohibits discrimination against transgender people in housing and employment. Cal. Gov’t. Code §§12940(a), 1955(a). The Unruh Civil Rights Act prohibits discrimination against transgender people in public accommodations. Cal. Civ. Code §§51(a). These laws are powerful because they use the definition of “gender” in the California Penal Code: “’Gender’ means sex, and includes a person’s gender identity and gender related appearance and behavior whether or not stereotypically associated with the person’s assigned sex at birth.” Cal. Penal Code §422.56(c).

4 See http://www.cpec.ca.gov/FiscalData/CACountyEconGraph.asp?D=HSGrad&Y=2007.

By Joel A. Brown

In the wake of Proposition 8 in California, much has been made about the growing polarity between the African-American population and the Lesbian Gay Bisexual and Transgender (LGBT) community. The problem, however, is that most of the commentary has been sensational and divisive, rote and myopic. The importance of this topic goes beyond the social need for Blacks and Gays – and presumably, the entire country – to “just get along.” Within this dynamic lies the opportunity for both communities to help frame civil rights discourse in a way that is befitting of the 21st century.

To elevate the discussion regarding the cultural disconnect between the African-American and LGBT communities requires a bilateral approach, which looks at each group’s “cultural baseline,” or social, philosophical, and cultural pre-disposition to matters involving diversity and civil rights. The study of diversity and civil rights in this context is important because these are the two spheres in which disadvantaged groups have been able to argue effectively for social equality. The dialogue also requires a level of candor and intellectual discernment that is rarely offered when discussing inter-cultural dynamics, especially those between two “out groups,” or disadvantaged communities in the American socio-political landscape.

Diversity, in its earliest form, arose out of the cognitive need to make sense of our increasing heterogeneous society. As more and more groups became visible and actualized, the unifying concept for these particular groups was the idea of “culture” – something that was unequivocal, definable, and beyond biological.

Due to the compelling history and experience of Blacks in America, the very ideas of diversity and civil rights have been largely defined by African-Americans. African-Americans, specifically in relation to food, music, dance, and affect, are viewed as quintessentially emotional, exotic, and “cultural” while Europeans, often positioned at the other end of the cultural spectrum, are seen as being “a-cultural.” Given that the earliest precepts about diversity were spawned by the Civil Rights Movement in the sixties, African-Americans are seen as having been the first group to really introduce some tangible aspect to the America’s fluid concept of culture. As a result, any group seeking political efficacy in the wake of the 1960s Civil Right Movement has had to contend with an idea of culture that is tied rigidly to Blackness, and more specifically, ethnicity. Moreover, any group which wants to be thought of in terms of “multiculturalism” and “diversity” has had to align itself with a “cultural” definition that mirrors some bio-logically-determinative factor or ethnicity.

Additionally, the African-American experience has also been instructive for how we as a nation view civil rights jurisprudence. Case law interpreting the Equal Protection Clause of the Constitution’s 14th Amendment has established that any law that on its face treats people differently using the classification of race must be reviewed with “strict scrutiny.” In order to pass constitutional muster, the law must be narrowly tailored, serve a compelling governmental interest, and there must be no less-restrictive alternative available. The fact that race is given special treatment is by no accident. The theoretical underpinnings for Equal Protection Clause interpretation were created in response to the discrimination faced by African-Americans after the Civil War.1 As such, race has been accorded special legal significance because, as defined in the African-American context, it suggests immutability, relative powerlessness, and a profound vulnerability to discrimination.

This is not to say that civil rights laws are focused exclusively on race, or that civil rights claims based on other suspect classifications such as gender or age are not reviewed critically or skeptically. What it does suggest is that in any discussion of civil rights, the notion of race creates an enduring and sometimes imposing intellectual backdrop. Race acts as the gold standard for how we as a nation perceive civil rights and how we perceive the validity of any group’s claim to civil rights. Rightly or wrongly, African-Americans are seen as the shepherds of civil rights and the guardians of all things cultural. As a result, any group seeking legal and political enfranchisement will have their journey compared and contrasted to that of African-Americans.

Logically, the LGBT community, like many marginalized groups, has tried to adopt the political sensibilities of and associate itself politically with the African-American community. The conventional thought is that if African-Americans support civil rights for LGBT Americans, then the LGBT community will enjoy a type of cultural cache that it has not previously possessed. In other words, the hope is that mainstream America will come to view the lives of LGBT people in terms that truly reflect their everyday experience. Further, the hope of many LGBT activists is that if African-Americans act as guarantors for any LGBT civil rights agenda, then the success of LGBT civil rights initiatives will be a foregone conclusion.

My concern, however, is that a lot of well-intentioned LGBT activists have put the “horse before the cart,” and have failed to recognize the prevailing notions around “culture” and “civil rights,” before crafting and shaping their political campaigns. This also explains, in part, why neither the African-American nor LGBT community has fully ingratiated itself with the other. As a result, I offer the following short-list of best practices, with the unremitting goal of bridging the gaps in understanding between these two communities.

1) (more…)

In its recent publication Language Access in State Courts, the Brennan Center for Justice describes the experience of the millions of Limited English Proficient (LEP) Americans who must go to court to protect themselves, their families or their homes while unable to communicate or understand what is going on as a “Kafkaesque nightmare.” Half of the 25 million LEP people in the U.S. live in states that do not require their courts to provide interpreters in most civil cases. The report reviews the state courts’ legal language access obligations under Title VI of the Civil Rights Act and other laws and provides a summary detailing the extent to which each of the 35 states with the highest LEP populations complies with guidelines regarding interpreter competence and providing interpreters at no charge. With the release of the report, the Brennan Center hopes to facilitate some positive efforts taking place around the country to improve language access to state courts, including a broad initiative through the Consortium for State Court Interpreter Certification (40 states) to improve interpreter competence and a re-energized federal Department of Justice intent on better enforcing civil rights laws.

Yesterday, the US Supreme Court issued its decision in Northwest Austin Municipal Utility District v. Holder, a case that challenged the manner in which Section 5 of the Voting Rights Act has been applied for decades.  We are happy to say that Section 5 survived, but the decision indicates that the assault on voting rights is far from over.  Language in the majority decision invited further challenges to the act.

Writing for the 8-1 majority, Chief Justice John Roberts said,

Things have changed in the South. (Minority) voter turnout and registration rates now approach parity. Blatantly discriminatory evasions … are rare. And minority candidates hold office at unprecedented levels, ….

Despite the Court’s declaration that progress has been made, we are all aware of the serious Voting Rights Act violations in the 2000 presidential election in Florida where minority voters were stricken from the rolls and had their voting places moved without notice.  Similar charges surfaced in Ohio in the 2008 presidential election.

Rather than deal with the weighty issue of striking down Section 5, the court suggests that the North Austin Utility District was entitled to and should seek an exemption from the Voting Rights Act.

That larger issue, Roberts said in an ominous note,  is a difficult constitutional question we do not answer today.

In a press statement today, the Advancement Project offers an analysis of the decision.

How does race function in formally colorblind contexts?

This was the central question tackled by an extraordinary array of interdisciplinary scholars at the 2009 CRS Symposium: Race in Colorblind Spaces.  In search of answers and ever better questions, panelists focussed on the following contexts in which colorblindness is the (legal) norm: universities, workplaces and employment, policing/law enforcement, and self-governance/voting.

In case you missed it, the very good news is that the sessions have been video recorded, archived, and made available to the public.  Selected session topics and links to the corresponding video follow below.  Links will open a video in Windows Media Player.

1.    Seeing Colorblindness
2.    Colorblind Consequences
3.    Bigger Pictures
4.    Colorblindness and Social Science: Are we Relevant to the Law?
5.    (Race-Conscious) Interventions

For more sessions, see generally: http://crsonline.law.ucla.edu/CRS_Program/Events/2009_Symposium/Agenda.

To access past CRS Symposia sessions online, visit the UCLA Library’s Electronic Reserves.

This event was put on by the Critical Race Studies Program at the UCLA School of Law.
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For additional information on the impact of California’s Proposition 209 in various sectors, including employment, government contracting, and education, visit Impact209.org.  See also a previous REP post — Affirmative Action Redux on Prop 209’s impact on employment and labor.

As many in the civil rights and housing advocacy world are happily aware, on March 25, U.S. District Court Judge Helen Berrigan, struck down an ordinance passed by the St. Bernard Parish Council which placed a 12-month moratorium on housing developments of more than five units in St. Bernard Parish, New Orleans. Plaintiffs, including Greater New Orleans Fair Housing Action Center, brought action again the Council on the grounds that the moratorium violated an existing consent decree under which the Council had agreed not to engage in further violations of the federal Fair Housing Act following the Council’s adoption of a series of racially discriminatory housing ordinances. The Court found that enactment of the subject ordinance indeed violated the Fair Housing Act under both a discriminatory effect standard and discriminatory intent standard and thus violated the decree. The opinion provides a good primer on applying the Arlington Heights factors to support a finding of intentional discrimination, an unfortunately exceedingly rare occurrence. For example, the opinion noted that a proposal for mixed-income multi-family developments slated for St. Bernard Parish precipitated enactment of the moratorium. The opinion also cites to decisions that found that the terms “crime” and “blight” and concerns about personal safety due to “new” people, references made in a newspaper editorial opposing prior to imposition of the ordinance, are camoflaged racial expressions. The court relied heavily on the testimony of Dr. Calvin Bradford, housing discrimination expert, regarding the disproportionate negative impact the moratorium had on African-Americans because African-Americans in the relevant geographic area are disproportionately lower-income and disproportionately renters, and Kalima Rose, Gulf Coast region affordable housing policy expert with PolicyLink regarding, among other things, the irregularity of enacting a such a moratorium following a development application consistent with the zoning of the subject area. Relman & Dane served as lead counsel for plaintiffs and the full opinion is available on its website.

Finding legitimate parallels between different minority groups’ struggle for civil rights is one thing; attempting to co-opt another group’s struggle is entirely another.   Recently on Racewire, Ron Buckmire of the Bayard Rustin Project discusses the problematic effort by some advocates (pun intended) in the gay community to frame the LGBT civil rights movement in the context of Black experience.

While acknowledging significant parallels between the two groups’ experiences, Buckmire says that to suggest discrimination against gay people is the same as discrimination against Black people  “is such a thoughtless exaggeration that it enrages Blacks and increases the divide between the two groups, causing people like [himself] who are both Black and gay to become even more invisible.”

In California’s Prop 8 battle, echoes of 1966 housing case (Sacramento Bee, February 18, 2009), Bee writer Aurelio Rojas reports on the comparisons being drawn in the legal community between the current court battle over the recently enacted California ballot initiative banning same-sex marriage, to which state Attorney General Jerry Brown and civil rights organizations have raised a state constitutional challenge, and the constitutional court battle waged by then state Attorney General Thomas Lynch in the mid-1960s following passage of Proposition 14. Prop 14 made it legal for property owners to refuse to rent or sell on the basis of race.

Prop 8 was placed on the November ‘08 ballot in response to a state Supreme Court decision in May 2008 striking down as unconstitutional California’s Proposition 22, passed in 2000, which banned same-sex marriage. Rojas reports that Proposition 14, passed in 1964 with 65 percent of the vote, was a response to passage a year earlier of the Rumford Act (a predecessor to today’s California Fair Employment and Housing Act) that banned housing discrimination based on race. Lynch prevailed with the state Supreme Court finding Prop 14 unconstitutional under the U.S. Constitution, a decision which the U.S. Supreme upheld.

Some interviewed for the article question Brown’s chances of success pointing to the lack of a federal right to marry for same-sex couples (as compared to the federal Civil Rights Act of 1964 upon which Lynch relied to mount his Fourteenth Amendment equal protection challenge) and other differences between the cases. However Constitutional Law heavyweight and UC Irvine law school dean Erwin Chemerinsky opines that if the state Supreme Court concludes that Proposition 8 is an illegal revision requiring a 2/3 approval by the Legislature to be placed on the ballot (the approach taken by LGBT and civil rights organizations and others also challenging Prop 8, with which Brown disagrees), as he believes it should, then the court should find Prop 8 unconstitutional. Historical references in the article include the fact that conservative political groups, like the John Birch Society, supported Prop 14, that the passage of Prop 14 sparked the Watts’ riots in 1965, and the following quote from former Governor and President Ronald Reagan, a supporter of Prop 14: “If an individual wants to discriminate against Negroes or other in selling or renting his house, he has the right to do so.” The oral argument on the Prop 8 challenge will be held before the California Supreme Court on March 5, 2009 from 9:00 to noon and will be broadcast live on the California Channel.

Eva Paterson, the president of the Equal Justice Society, and Dorothy Cotton give their view of how the civil rights movement might take shape during  the Obama era.   Eva challenges us all to take a broad view of civil rights adopting the strategy of Martin Luther King’s aide Baird Ruston.  A broad movement should include a challenge to inequity based upon race and ethnicity, but also, gender, sexual preference and religious beliefs.  Listen to her comments provided on NPR’s News & Notes segment on January 22, 2009.

This is the question PolicyLink CEO Angela Glover Blackwell put forth in PolicyLink’s EquityBlog on November 5th following Barack Obama’s historic election to the White House. Taking this unique moment in history to remind us that “[a]ll Americans–especially those in low-income communities and communities of color–deserve a chance to participate and prosper[,]” Blackwell offers Four Principles for Equity to guide the Obama Administration and Congress as they prepare to tackle the unprecedented economic challenges we face as a nation: 1) Sustain the deep levels of democratic participation and civic engagement of the presidential campaign; 2) Build an economy that expands opportunity for struggling families and revitalizes distressed communities; 3) Make affordable housing available to all, recognizing its powerful asset-building capacity; and 4) Invest in building strong, healthy communities across the country. View Blackwell’s companion video, find a link to the full Four Principles piece or submit your own recommendations to the Obama Administration and Congress on the EquityBlog by clicking here.

In the Fall of 2007, the Connecticut Law Review hosted a symposium that celebrated the twentieth anniversary of Professor Lawrence’s article The Id, The Ego, and Equal Protection: Reckoning with Unconscious Racism. Symposium panelists included, amongst others, Professor Charles Lawrence, Professor Samuel Bagenstos and Ms. Eva Paterson.

The Symposium included the following discussions (available as mp3s):

• Keynote Address By Professor Charles R. Lawrence
• Panel: Evolution of The Id, the Ego, and Equal Protection
• Panel: The Intersection of Law and Psychology
• Luncheon Keynote Address By Professor Amy Wax
• Panel: Applying Unconscious Discrimination

The Connecticut Law Review recently published several articles written by symposium panelists on topics related to unconscious discrimination and Professor Lawrence’s seminal article:

Charles Lawrence III, Unconscious Racism Revisited: Reflections On The Impact And Origins Of “The Id, The Ego, And Equal Protection, 40 Conn. L. Rev. 931 (2008).

• Summary: This essay “seeks to understand and articulate the injury that racism or white supremacy and its reiteration in the law does to African Americans, to other people of color, and ultimately to us all.”

Amy L. Wax, The Discriminating Mind: Define it, Prove It, 40 Conn. L. Rev. 979 (2008).

• Summary: This article addresses “the question of how unconscious discrimination claims-and discrimination claims generally-are substantiated.”

Honorable Janet Bond Arterton, Unconscious Bias And The Impartial Jury, 40 Conn. L. Rev. 1023 (2008).

• Summary: This article “examines the relationship between the scholarly research into unconscious bias and the judiciary’s role in addressing the phenomenon in courtroom practice.”

Mari J. Matsuda, Are We Dead Yet? The Lies We Tell To Keep Moving Forward Without Feeling, 40 Conn. L. Rev. 1035 (2008).

Gowri Ramachandran, Antisubordination, Rights, And Radicalism, 40 Conn. L. Rev 1045 (2008).

• Summary: “This Article seeks to shift the top-down emphasis of recent scholars seeking greater justice and equality through professional psychologists, human resource officials, and other policymakers. [The author] question[s] the temptation to direct too much trust and optimism toward those who are well adjusted, and [the author] call[s] on us to redirect some of that attention to those Martin Luther King, Jr. calls the maladjusted. Instead of thinking of what legal constructs would and could facilitate change by those who are well adjusted, perhaps we can think of what legal constructs would and could facilitate change by those who are maladjusted.”

Catherine Smith, Unconscious Bias And “Outsider” Interest Convergence, 40 Conn. L. Rev. 1077 (2008).

• Summary: “This Article explores biases within and among subordinated groups in an attempt to offer some clarity on how subordinated groups may build coalitions and uncover how their subordinations are interrelated and dependent upon one another to uphold the power and privilege.”

Avital Mentovich, John T. Jost, The Ideological “Id”? System Justification And The Unconscious Perpetuation Of Inequality, 40 Conn. L. Rev. 1095 (2008).

• Summary: This article “expound[s] on several major themes that spring from Lawrence’s masterful (and prescient) incorporation of social psychological theory with research concerning unconscious (or implicit) cognition and motivation.”

Natasha T. Martin, Immunity For Hire: How The Same-Actor Doctrine Sustains Discrimination In The Contemporary Workplace, 40 Conn. L. Rev. 1117 (2008).

• Summary: This article “provides a doctrinal critique of an employment discrimination principle recognized by the courts-the same-actor inference-based on its incongruence with both cognitive psychological research and the social dynamics of the workplace.”

Eva Paterson, Kimberly Thomas Rapp, Sara Jackson, The Id, The Ego, And Equal Protection In The 21st Century: Building Upon Charles Lawrence’s Vision To Mount A Contemporary Challenge To The Intent Doctrine, 40 Conn. L. Rev. 1175 (2008).

• Summary: This article “posits that in order to more effectively acknowledge and remediate racial discrimination, considerations of race must be on the table and kept there, at least until we dismantle the psychological and structural sources of racial inequality.” The article ” 1) provides an overview of Washington v. Davis and the Intent Doctrine; 2) discusses contemporary examples of unconscious bias and structural racism in a variety of social spheres; 3) highlights areas to date where the courts have been particularly receptive to unconscious bias; and 4) posits that, in light of what modern science tells us about discrimination, requiring “proof of intent” is both outdated and largely ineffective in supporting our efforts to advance racial equality and remedy the continuing harms caused by racism.”

John Tehranian, Selective Racialization: Middle-Eastern American Identity And The Faustian Pact With Whiteness, 40 Conn. L. Rev. 1201 (2008).

• Summary: “Drawing on Charles Lawrence’s insights on the power of unconscious racism, John Tehranian examines the social mechanisms that have fueled discrimination against Middle-Eastern Americans and exacerbated their relative invisibility in the body politic and the civil rights movement.”

David L. Faigman, Nilanjana Dasgupta, Cecilia L. Ridgeway, A Matter Of Fit: The Law Of Discrimination And The Science Of Implicit Bias, 59 Hastings L.J. 1389, 1434 (2008).

• Summary: The article examines “the interpretation of applicable law and the legal fit between the law and scientific research on implicit bias.” It also “provides an overview of the psychological and sociological literatures in order to determine whether research” supports expert opinion on implicit bias in Title VII actions and “considers whether the extant research scientifically fits one or more issues brought into question by” Title VII. The article concludes that “the full research literature amply supports expert opinion regarding implicit bias and its potential to effect employment decisions.” The article, however, argues that implicit bias research “focuses on the phenomenon generally and does not demonstrate that an expert can validly determine whether implicit bias caused a specific employment decision.” As such, the article asserts that “courts should… admit expert testimony, insofar as it will assist triers of fact to understand the phenomenon of implicit bias generally, so that they can then determine whether a particular employment decision was a product of improper motives.”

Tristin K. Green, Alexandra Kalev, Discrimination-Reducing Measures At The Relational Level, 59 Hastings L.J. 1435 (2008).

• Summary: This article suggests that unconscious/implict bias must be examined with a structural lens to properly understand its effect on protected groups. The authors argue that Title VII unconsious bias scholarhip has “focused too narrowly on individuals and that discrimination-reducing measures should be broadened to address the relational sources of discrimination. By relational sources [the authors] refer to social interactions and relations at work that operate to reinforce stereotypes and bias. [The authors] present social science research showing that bias and stereotypes are executed and reinforced not only in moments of ultimate decision making, like hiring or promotion, but also in day-to-day intergroup interactions and relations (or lack thereof) at work. [The authors] also present research showing that employers can reduce discrimination and workplace inequality by organizing work in ways that change the context of workplace relations and interactions from stereotype reinforcing to stereotype challenging. [The authors] draw on this research to advance the “cognitive turn” a step further, broadening the locus of implicit biases and stereotypes to include interactions, what we call the relational level of discrimination.”

The REP recently attended the National Convening on Subprime Lending, Foreclosure and Race hosted by the Kirwan Institute for the Study of Race and Ethnicity. We would like to share a few resources that we picked-up with our readers.

First, the Kirwan Institute commissioned several papers on the current credit crisis These papers are available online. We found the article by Rick Cohen, A Structural Racism Lens on Subprime Foreclosures and Vacant Properties, particularly interesting.

Second, several community organizations have developed interesting and innovative responses to foreclosures in their communities. The efforts of ESOP, an Ohio-based community organization, really stood out. Since 2006, ESOP has saved over 2,500 home from foreclosure. In addition to direct action campaigns, ESOP “uses a Hot Spot Card process, through which homeowners complete documentation and provide financial information relevant to their case, and have the opportunity to make suggestions to the lender for a resolution. ESOP foreclosure prevention advocates use the information obtained from the homeowner to negotiate with the lender for an affordable modification to the loan. Unlike most housing counseling agencies, ESOP has direct points of contact and formal agreements with many lending companies, which produces results in a quick and efficient manner.” ESOP currently has working partnerships with the following lenders and servicers: Ameriquest/Argent, Charter One/CCO Mortgage, Citifinancial, Citimortgage, CitiResidential, Countrywide Home Loans, Homecomings Financial/GMAC, JP Morgan Chase, Litton Loan Servicing, Ocwen Financial Services, Option One/AHMS Inc., Select Portfolio Servicing/Fairbanks, Third Federal Savings and Loan, Wells Fargo/ASC, and Wilshire Credit Corporation.

Lastly, the Kirwan Institute will be making video recordings of the plenary sessions and transcriptions of the break-out sessions available online over the coming weeks. Take a look at their website.

This post was authored by Allan M. Parnell, Ph.D., Cedar Grove Institute for Sustainable Communities.

We were asked by Reed Colfax of Relman and Dane, PLLC to determine whether there was an association between race and access to public water services in the Coal Run area in Muskingum County, Ohio. The Coal Run area is just outside of Zanesville, Ohio. In particular, Mr. Colfax was interested in having the patterns mapped. My colleagues in this analysis were Ben Marsh, Professor of Geography and Environmental Studies at Bucknell University, and Ann Moss Joyner, my colleague at the Cedar Grove Institute of Sustainable Communities. The results of our analysis were shown in a set of maps shown to the jury.

Census data clearly were not going to be useful because of the small size of the neighborhood. The core of the neighborhood is in two census blocks, but census data was not helpful because of the scale and distribution of residents within the blocks. Within each block, the northern part is predominantly white and the southern part is predominantly non-white. One plaintiff lived in a third census block, and the residents on the north side of Adamsville Road are in a fourth census block. There was no clear way to use Census data to show the whether race is a factor in access to public water. I proposed a house-by-house analysis within the neighborhood.

We obtained public Geographic Information Systems (GIS) data from Muskingum County. The key data were the parcel data, which identified all occupied houses in the study areas, the location of water lines with dates of construction, Zanesville’s city limits, and the street locations. Relman and Dane obtained water billing data giving the addresses of all houses with public water service. I field-checked the parcel data confirming that each property identified in the parcel data was an occupied house. We also geocoded the location of the water plant.

We knew the race of plaintiffs, but we did not know the race of the residents in the other houses. I designed a short survey asking the number of residents, the race of each resident and how long they had lived at that address. Under my supervision, two employees of Relman and Dane went door-to-door collecting the household data. The survey took place over two days. If one resident in a household was non-white, the house was coded as non-white. In the very few cases where we were unable to speak to any resident, the house was coded as unknown. Using the public GIS data, the household survey information, the plaintiff information and the addresses of houses with billed water service, Ben Marsh built the GIS layers for the maps showing the clear pattern of racial discrimination. I wrote the expert report using the maps, the survey information, and information from the plaintiffs.

Reed Colfax and John Relman decided to build the maps before the jury, layer by layer, adding information to the base map, explaining where the information in each layer came from.

Map 1 is the base map, showing the location of the Coal Run area relative to the city and the water plant and the roads.

Map 2 adds the location of public water lines as of the date when the case was filed.

Map 3 adds the location of occupied houses, showing the proximity of these houses to water lines. Note, however, that having a water line in front of your house does not necessarily mean that you have public water.

Map 4 shows which houses had billed water service. Note that one house south of the water lines had billed water service. This was an “special arrangement” made with a private line run to that house.

Map 5 introduces the race of the household with the water lines. The water line down Langen Lane clearly ends where non-white residences begin.

Map 6 adds billed water service again (the dark blue dots) confirming that most non-white houses did not have public water while most white houses did have water service.

While we believe that color schemes should be intuitively obvious (and thus white and black make sense here), it is difficult to use true black and have any internal symbol (the dark blue dot meaning billed water service) show up well. Thus, to designate houses of minority residents, a dark orange or light brown might have been more informative. Regarding the maps as shown, the attorneys chose the color scheme of the houses to indicate race.

A final map shows how far the public water lines extended. Note the location of the Coal Run area in blue.

The defense used GIS to try and make the case that race did not affect who had water service and that some areas with African American residents had water service so there was no pattern of discrimination.

The defense map pictured left shows the Coal Run area and surrounding area. Census blocks are coded by the number of African American residents. Water lines are shown in blue. The defense expert argued that all residents of a census block had water if a water line intersected any part of the block. This is demonstrably false, and he had difficulty with this argument in his testimony. The defense expert also pointed to the census block southwest of the Coal Run area that borders I-70 with 34 African American residents.

I had examined the census data for the block and found that while there were 34 African American residents in 2000, there were no African American households. Individuals in the census are classified as living either in households or in group quarters, and the African American residents all lived in group quarters. And they were all elderly. Clearly, they live in a nursing home that is 88% white. The water line in question services a health care facility that had no residents (black or white) when it was built.

This post was authored by Allan M. Parnell, Ph.D., Cedar Grove Institute for Sustainable Communities.

Webmaster’s note: Plaintiffs in this case received a near 11 million dollar jury verdict (attorneys fees reserved).

On July 10, a federal jury in Columbus, Ohio returned verdicts totaling nearly $11 million against the City of Zanesville, Muskingum County, and the East Muskingum Water Authority, for denying access to public water services on the basis of race to the African-American community of Coal Run in Ohio. Each of the 67 plaintiffs in the case, Jerry Kennedy, et al. v. City of Zanesville, Ohio, et al. Case No. 2:03-cv-01047, S.D. Ohio., testified about the hardships they endured residing in a community that has had no running water for over 50 years despite its proximity to Zanesville, a municipality of over 25,000 persons. As reported in the Time online article Making Water a Matter of Race, lead plaintiff Jerry Kennedy, a life long resident of Coal Run whose home is within yards of the municipal water line, has relied mostly on rain or hauls from the water treatment plant to his home as his water sources for most of his 58 years. Well water is not an option for Coal Run residents as the ground water has been contaminated by the surrounding coal mines. Repeated demands for water service by Kennedy and his African-American neighbors over the years went unanswered. The other plaintiffs in the case, Fair Housing Advocates Association and the Ohio Civil Rights Commission, also received favorable verdicts. Reed Colfax, John Relman, and Jennifer Klar of Washington D.C.-based civil rights firm Relman & Dane, PLLC were lead counsel in the case. Zanesville and Muskingum County plan to appeal.

For additional details on the verdicts and the case, see Relman & Dane’s press release; Racism ruled, jury finds (Columbus Dispatch); and Jury: Black Neighborhood Was Denied Water Service (truthout).

Maps created by Cedar Grove Institute for Sustainable Communities illustrating the the racial disparities in public water access between the predominantly African- American Coal Run community and the surrounding overwhelmingly white parts of the County played an instrumental role in securing the verdicts. Look for a posting on this webpage with links to those maps soon.

We all remember reading Arlington Heights v. Metropolitan Housing Development Corporation, 429 U.S. 252 (1976), (“Arlington Heights I“) in law school. It stated three types of evidence that a plaintiff may use to prove racial discrimination violative of the Equal Protection Clause. Advocates, myself included, often believe that Arlington Heights I tempered the Court’s ruling in Washington v. Davis. Many believe that Arlington Heights I offers a viable method to circumvent the subjective intent requirements of the Intent Doctrine.

One year ago, a UC Davis Law student and participant in the race equity seminar, offered during the 2006 Fall semester at UC Davis Law, wrote a paper examining how courts have applied Arlington Heights I in the thirty years since that case was decided. Somewhat surprisingly, she discovered that only one case has applied the Arlington Heights factors and found evidence sufficient to support a finding of intentional discrimination. Perhaps more surprisingly, she discovered that federal courts have, by in large, failed to conduct the fact-intensive inquiries mandated by Arlington Heights I. Interested in reading her paper? Take a look.

Mildred Loving, an African-American woman whose marriage to a white man led to the landmark Supreme Court ruling overturning state miscegenation laws, died on May 2 at her home in Central Point, Va. She was 68.

As a product of an interracial couple it’s sometimes hard for me to believe that there was a time when interracial marriage was illegal and punishable with jail time. Thank you Mildred for your courage and bravery.

San Francisco County Sheriff Michael Hennessey recently reported that over 60 percent of all prisoners in the city’s jail are Black despite the Black population in San Francisco only being 6.7 percent. Nearly half of the inmates are in jail for drug offenses.

The increasing incarceration of Blacks is a direct result of the War on Drugs. As a result of the War on Drugs, Black communities are suffering from mass incarceration. Not only are large numbers of Blacks being locked-up, Blacks are incarcerated at staggering numbers that far exceed any purposeful law enforcement interest and which are destroying Black communities.

The idea that Blacks commit more drug related offenses, and that this is the reason for the disparities, is false. Most drug arrests are for possession. Possession is a crime that every drug user commits and, in the United States, most drug users are white.

Who has found (or is even looking for) the “racist” at the center of the foreclosure crisis? Granted, diverse and voluminous people have been harmed by the crisis across America; but growing data demonstrate brown and black renters and homeowners have been disproportionately impacted by the sub-prime mortgage meltdown. Searching for relief using our traditional model of discrimination would lead us down a trail for a single cause or single actor, an individual perpetrator with “intent” to discriminate, who is responsible for the present uprooting of families and utter demise of entire neighborhoods inhabited by people of color.

While there may be no shortage of people, institutions and other places to begin assigning blame, the ultimate root of the foreclosure problem is, in large part, the unfettered capitalist driven interests of financial institutions, mortgage brokers, securities dealers and investors. Certainly, that is not to suggest that people of color and limited income have not been the targets of irresponsible low- and no-money down adjustable rate lending options—which certainly is true in some cases. Rather, the point here is to bring front and center an illustrative example of how a constricted single actor with intent approach will hardly adequately rectify this and other complex systemic problems harming members of our society and impeding the achievement of racial equality in housing, health, employment, education, and other social and economic necessities.

Since Washington v. Davis, 426 U.S. 229 (1976), the disregard of harm experienced by members of society and focus on the intent of decision-makers and institutional actors has placed confounding limitations on constitutional interpretation and the availability of remedies for victims of varying forms of discrimination. Specifically, this Supreme Court case gutted the protections of the equal protection clause of the Fourteenth Amendment to the U.S. Constitution by setting a standard that places the burden on plaintiffs bringing discrimination claims to establish the intent of the alleged perpetrator to discriminate. Under this intent doctrine, the plaintiff alleging an equal protection violation must prove that the discriminating actor or agency “selected or reaffirmed a particular course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable [racial] group,” Personnel Administrator of Massachusetts v. Fenney, 442 U.S. 256, 279 (1979). More generally, this intent standard and its proliferation in antidiscrimination jurisprudence unjustly shifts the focus of our protective laws away from shielding members of our society and away from reaching restorative outcomes that begin to address institutional structures, practices and social norms that facilitate the kinds of sub-prime lending abuses and other racial inequities evident today.

Modern science explains why always seeking to finger a racist, or an individual with intent to discriminate, is an outdated approach to combating discrimination. Cognitive and social science research shows we all, at some level, have subconscious or implicit beliefs, attitudes and expectations about people based on our exposure to the race, gender, age or other groups to which such individuals belong. These implicit biases often influence our decisions and interactions with others even though we may not possess any explicit prejudice, ill will, or animus. By now, most of us have heard of the Implicit Association Test (IAT) that measures our subconscious biases or read about research studies looking at the implications of these biases in myriad sectors of society.

For example, the Washington Post ran an article about the reflection of the implicit attitudes of physicians in disparities in their medical judgments and treatment recommendations. (“The Color of Health Care: Diagnosing Bias in Doctors,” Washington Post, Aug. 13, 2007.) The New York Times covered a study on the National Basketball Association (N.B.A.) concluding that “players who were similar in all ways except skin color drew foul calls at a rate difference of up to 4 ½ percent depending on the racial composition of an N.B.A. game’s three-person referee crew.” (“Study of N.B.A. Sees Racial Bias in Calling Fouls,” New York Times, May 2, 2007.) The USA Today discussed a study about immigrant skin tone and U.S. earning potential that found “[o]n average, being one shade lighter has about the same effect as having an additional year of education.” (“Study Says Skin Tone Affects Earnings,” USA Today, Jan. 26, 2007.) Ascribe Newswire reported that the risk of housing discrimination begins when prospective tenants simply send email inquiries signed with names commonly affiliated with particular racial or ethnic backgrounds. (“Name is Enough When it Comes to Discrimination,” AScribe Newswire, May 23, 2006.)

Additionally, examples of subconscious biases becoming institutionalized or built into the fabric of institutional structures, practices and norms have made their way into mainstream media. Fortune magazine highlighted the Dukes v. Wal-Mart, 474 F.3d 1214 (9th Cir. 2007), case as an example of the increasing prevalence of social science testimony on implicit bias in discrimination lawsuits. (“The War Over Unconscious Bias,” Fortune, Oct. 15, 2007.) Testimony in the early stages of that case suggested that managers involved in promotion and pay decisions unknowingly engaged in “‘spontaneous,’ and ‘automatic’ stereotyping and ‘in-group favoritism’” that systematically resulted in the most favorable jobs being filled by men, and the company’s historic and overly discretionary promotion and pay procedures allowed managers to unintentionally reinforce structural barriers to women’s advancement. Today, startling statistics of persisting disparities in the number of women and people of color represented in the upper ranks of corporate, academic, legal and other institutions often have little to do with overt gender and racial discrimination, but more to do with “locked-in” or “unquestioned” norms and habits and our country’s history of denying equal opportunities to certain groups in avenues fundamental to social and economic advancement.

As the Wal-Mart case illustrates, our courts have begun to acknowledge the existence and grapple with the implications of implicit and institutional bias. In some areas of law, the presence of implicit bias has provided a basis for judicial findings of discrimination. Courts have long recognized that unconscious biases can shape juror selection and jurors’ perception of plaintiffs and defendants. In the Supreme Court case Miller-El v. Dretke, 545 U.S. 231 (2005), which involved a prosecutor who peremptorily struck ten of eleven prospective black jurors, the existence of unconscious racial bias supported the Court’s ultimate conclusion that the prosecutor’s use of peremptory challenges constituted purposeful discrimination. In the immigration context, an officer’s unconscious bias proved sufficient to constitute a constitutional violation when a deportee was stopped solely on the basis of his Hispanic appearance, as the court noted, “…Border Patrol officers may use racial stereotypes as a proxy for illegal conduct without being subjectively aware of doing so.” Gonzalez-Rivera v. INS, 22 F.3d 1441 (9th Cir. 1994). In EEOC v. Inland Marine, 729 F.2d 1129 (9th Cir. 1984), the court ruled that African American employees alleging racial discrimination based upon a disparate wage structure proved intentional discrimination even though “[t]he company did not consciously set out to establish a two-tiered wage structure, and hence did not act maliciously.”

These cases and social examples briefly discussed here illustrate some of the progress advocates, litigators, scientists and other members of our society have made toward updating our understanding of discrimination and reversing the trend to always identify a racist in order to provide relief for racially disparate outcomes. Legal services and other civil rights advocates are uniquely positioned to continue identifying instances where race may be a factor and urge our courts to understand modern discrimination. Our courts must be encouraged to grapple with persisting racial disparities in areas such as housing, education and employment, and provide a remedy where a “racist” decision-maker may be nonexistent because subconscious and institutional biases may be causing the harm. Our combined efforts can avoid leaving individuals with evidence of discrimination without remedy.

This article was authored by Kimberly Thomas Rapp. Kimberly Thomas Rapp is the director of law and public policy at the Equal Justice Society, a national organization strategically advancing racial justice through law and public policy, communications and the arts, and alliance building.

In a courageous piece of advocacy, the Alameda County Homeless Action Center, argued that proposed cuts in the general assistance program would have a disparate impact upon African Americans in Alameda County. In support of their contention staff attorney, John Engstrom, crafted a Racial Impact Statement clearly demonstrating how the cuts would fall most heavily upon those in the African American community. He also challenged the “exemption process” that classified most unemployed African Americans as employable by describing the societal structures that prevented these recipients from accessing job opportunities. Kudos to Pattie Wall, John Engstrom and the clients of the Homeless Action Center for so effectively putting race on the table in their advocacy.

Joining Florence Wagman Roisman’s clarion call in End Racial Segregation: Build Communities that Look Like America, recently posted on this page, two other fair housing/civil rights heavyweights urge the social justice community to fully engage in strategic race-conscious fair housing and community development advocacy as the best way to fulfill the promise of the federal Fair Housing Act, now in its 40th year.

In An Unfinished Agenda: Fair Housing and Community Development To Fight the Vestiges of Segregation, recently published in the Black Agenda Report and ShelterForce Online, renown civil rights attorney Betsy Julian calls on social justice advocates to coalesce around and move forward with an agenda that demands implementation of a true anti-segregation approach in housing and community development policy at the local, state and national levels. Like Roisman, Julian reminds us of the direct connection between government-created and sanctioned housing segregation and discrimination and the ongoing “[r]acial disparities [that] exist in almost every indicator of health and well-being.” She rightly asks whether we in the justice community are complicit in maintaining structurally racist systems when we insist on “colorblindness” and “class over race” as paradigms in approaching our work when, in fact, the demographics reveal stark differences in access to opportunity and decent living conditions between poor whites and poor people of color. Citing successful examples, she urges advocates to pursue impact litigation to address disparities in housing and municipal services and to push Congress and other law-making bodies to remove from the Low Income Housing Tax Credit, HOPE IV Public Housing Program and other programs the components that perpetuate racial segregation.

In Is local housing really fair? (April 26, Press Democrat), civil rights and land use attorney David Grabill also links racially discriminatory zoning practices to school segregation in the context of a critique of Santa Rosa, California’s “inclusionary” zoning ordinance. The ordinance, states Grabill, fails to live up to its title because it allows developers to pay fees in lieu of building affordable units in affluent high opportunity areas, thus excluding low income people who are disproportionately people of color from such neighborhoods and exporting the inclusionary obligation to poorer, mostly of color areas. Grabill offers workable local solutions such as requiring that inclusionary zoning laws apply in single-family home areas and requiring jurisdictions to match their hunger for economic development with a commitment to fairly house the workers that make such development possible.

We made a few new additions to our resources today that we think you should take a look at:

The Kirwan Institute for the Study of Race and Ethnicity

• Site Summary: The Kirwan Institute for the Study of Race and Ethnicity’s “ultimate goal is to stimulate and facilitate transformative change to bring about a society that is fair and just for all people.” It approaches this goal “with the understanding that all communities of people are interconnected and that by fostering positive relationships through research, scholarship and collaboration, we will deepen the possibility for change.” The Kirwan Institute is a true pioneer in the fight to achieve equitable results for communities of color and its research and advocacy, particularly around opportunity mapping, represents some of the most innovative and effective advocacy currently being undertaken by advocates for race equity. The Institute also posts all of their PowerPoint presentations on their site. Available presentations cover topics ranging from GIS to framing to structural racism.

HealthyCity

• Site Summary: HealthyCity offers perhaps the most comprehensive access to community resources, demographic/health data, and cutting edge online GIS mapping technology that the REP has ever seen. For the time being, the site only offers geographic coverage for Los Angeles county. We hope that HealthyCity will be going statewide soon but until that time we will have to stew in our jealousy of the wonderful online mapping and data analysis tools that residents of the city of angels have access to.

• Suggested Uses: If you have any mapping or data analysis needs related to Los Angeles county and you are not adverse to free, powerful, user-friendly online mapping and data analysis tools than HealthyCity is for you.

We have spent much time exploring the many ways in which advocates can use mapping to highlight the social isolation and segregation from opportunity of their client communities, among other things, and advocate for positive change. (See REP Blog mapping archives.) However, mapping is tool available to everyone and, as this story may suggest to you, can have its downside, especially when applied to groups racialized as prone to radicalism and violence.

According to the NY Times in Protest Greets Police Plan Map Muslim Angelinos, the Los Angeles Police Department (LAPD) plans to map the location of southern California Muslims under the auspices of the “Violent Radicalization and Homegrown Terrorism” Act. The “Violent Radicalization and Homegrown Terrorism” Act defines “ideologically based violence” as “the use, planned use, or threatened use of force or violence by a group or individual to promote the group or individual’s political, religious, or social beliefs.” That’s the place from which LAPD’s assumptions about Muslims run wantonly in the direction of implicit bias. As many are aware, the law of implicit bias is unsettled.

Though not listed among the LAPD’s official maps, the department never officially withdrew its proposal to map SoCal Muslims. Here’s what others had to say about the proposal.

Peter Bibring, a lawyer with the A.C.L.U. of Southern California, expressed the alarm many felt at hearing that the “starting point for a police investigation is ‘let’s look at all Muslims.’”

Mike German, policy counsel for the ACLU, called the plan “wrongheaded” because the bill calls for heightened scrutiny of people who believe, or might come to believe, in a violent ideology, which, the In These Times article notes, is perfectly legal.

Hussam Ayloush, executive director of the Greater Los Angeles Area chapter of the Council on American-Islamic Relations (CAIR-LA), debates an LAPD proposal to “map” Southern California Muslim communities on “NBC Nightly News.” See the video interview here. The video questions whether racial profiling can be good policing. For an historical view of the process of official state mapping of minority communities and racial profiling policy, see the LA Times article, “Community Profiling’s Long, Sad History” by Professor Richard Marcus of Cal State Long Beach.

Pr. Marcus points out that, under the Bush Administration:

The U.S. Department of Justice banned racial profiling, calling it unconstitutional. Under this definition, former Atty. Gen. John Ashcroft followed in February 2002, saying that using race “as a proxy for potential criminal behavior is unconstitutional, and it undermines law enforcement by undermining the confidence that people can have in law enforcement.” I guess the LAPD missed the memo.

A Pennsylvania judge has ordered three Spanish-speaking men to learn English or go to jail.

Diversity defines who we are as human beings. We cheer our diversity. We often times brag about America being a melting pot. It is part of the American makeup. If this is true, then why is there so much hostility against people of color today? I’m not sure whose remarks are worse, the judge or the attorney.

Justice Samuel A. Alito wrote the majority opinion in Snyder v. Louisiana, a case that reversed the first degree murder conviction of Allan Snyder. The court held that the prosecutor improperly used peremptory challenges to secure an all white jury in this trial of an African American man in Louisiana.

The case represents a significant elaboration on the court’s ruling 22 years ago in Batson v. Kentucky that opened the door to challenges of criminal convictions for racial discrimination in jury selection. Finding “clear error” Justice Alito held that “the very integrity of the courts is jeopardized” by racial bias in jury selection and found the prosecutors explanation of his actions to be unconvincing and pretextual.

Justices Clarence Thomas and Antonin Scalia dissented.

The United Nations Committee on the Elimination of Race Discrimination (CERD) issued its Concluding Observations on March 7. These Observations followed formal review of the U.S.  report to the CERD under the International Convention on the Elimination of All Forms of Racial Discrimination, a treaty the U.S. ratified in 1994. In the “positive aspects” section of the report on the U.S., CERD applauds California Housing Element Law as an effective anti-discrimination and anti-segregation tool. California Housing Element Law requires each jurisdiction in California to plan and zone for the housing needs of all economic segments of its population, including the needs of residents in the lower income strata who are disproportionately people of color. While many civil rights and affordable housing advocates advocate for a strong housing element law, many have used it to promote more equitable development policies and patterns. Such application is described in the January 08 REP e-newsletter article by Michael Rawson of the Public Interest Law Project (PILP). Other positives in the CERD report include the recent reauthorizations of the Violence Against Women Act and the Voting Rights of 1965.

Among the many concerns, with recommendations, listed in CERD’s report are persistent racial segregation in housing, persistent lack of access to opportunity among people of color, particularly African-Americans and Latinos, the failure of national and state law and jurisprudence to recognize and remedy discrimination caused by disparate impact, the U.S. Supreme Court decisions in Parents Involved in Community Schools v. Seattle School District No. 1 and Meredith v. Jefferson County Board of Education and their after effects, and the ongoing displacement and disenfranchisement of African-Americans from the gulf region two years after Hurricane Katrina. The National Law Center on Homelessness and Poverty, the Poverty and Race Research Action Council, PILP and Public Counsel are among the organizations that contributed to the report.

See also the CERD Housing Report: Residential Segregation and Housing Discrimination in the United States.

The NAACP Legal Defense Fund (LDF) and the Civil Rights Project/Proyecto Derechos Civiles (CRP) announce the release of Still Looking to the Future: Voluntary K-12 School Integration; A Manual for Parents, Educators and Advocates. The Manual provides valuable guidance and information about how communities and school districts can promote racial diversity and address racial isolation in schools nationwide. This Second Edition of the Manual is being issued on the heels of the Supreme Court’s June 2007 decision in Parents Involved in Community Schools v. Seattle School District No. 1, which limited the ability of school districts to take race into account in achieving these goals.

This is a critical time on the ground. School districts and communities around the country are struggling to determine how to continue their voluntary integration efforts within the bounds of the Court’s decision. In some instances, school districts have hastily modified or abandoned diversity programs without carefully considering the options that are still viable under the Court’s decision and taking proper account of the significant harms of racially segregated schools.

The Manual addresses the practical questions of what parents, advocates and educators can now do to promote diversity and address the harms of racial isolation in their schools. It provides accurate and up to date information and a step by step guide for how you can strengthen diversity and expand opportunity in your schools, including:

• The history of court-ordered desegregation efforts;
• The causes, patterns and devastating impact of the rapid resegregation currently occurring in America’s public schools;
• A comprehensive discussion of many demonstrated benefits of racially integrated schools and the harms of racially isolated schools;
• A detailed review of the Supreme Court’s Parents Involved decision;
• Brief description of the common methods of student assignment;
• Case studies of school districts with widely discussed approaches towards promoting high quality, inclusive schools

A donut that is constantly being nibbled at the edges is perhaps an apt description of Boston’s Chinatown. During the four and a-half decades between 1950 and 1995, this 46-acre neighborhood was besieged with institutional expansion waged by the medical school and the hospital in its core and highway construction on its fringes. (For background of the land use history in Boston’s Chinatown, see Zenobia Lai, Leong and Wu, The lessons of the Parcel C struggle: reflections on community lawyering, 6 Asian Pacific American L.J. 1 (Summer 2000); also Louder than words: lawyers, communities and the struggle for justice, c.6. p. 120 (Penda D. Hair, ed., March 2001)) During the past decade, gentrification brought on by mega development of luxury condominiums and apartments has replaced institutional expansion to threaten Chinatown’s survival. To protect this community from gentrification is immediate and urgent.

Land use and zoning is not within the traditional legal services practice areas, why did Greater Boston Legal Services take this up? It started when the community asked the Asian Outreach Unit in 1993 to explore legal handles to stop a proposed hospital garage on “Parcel C,” one of the last remaining urban renewal parcels. In the course of mapping out the land use history of Chinatown from the 1950s to that point, it is not difficult to see that facially neutral land use policies had robbed this community of much needed housing and open space. The urban renewal policy implemented pursuant to the 1948 National Housing Act and the highway plan of 1948 had worked in tandem to remove land and housing from Chinatown. Instead of implementing the urban renewal policy to replace dilapidated housing with new housing for existing residents, the policy was implemented to raze existing housing leading to the displacement of hundreds of residents from the neighborhood, only to clear the land to enable the hospital and medical school to expand in the heart of Chinatown. At the same time, the construction of two interstate highways stripped land and housing off two sides of the neighborhood, removing still more housing units and families in the 1950s and 60s. The effect of the urban renewal was to hollow out Chinatown from the inside whereas the effects of the highway construction was to box in Chinatown from the edges. While these government policies ravaged through Chinatown, the adjacent neighborhoods with mostly white residents were left untouched. The reason why such devastating land use policies could be implemented in Boston Chinatown but not in the neighboring communities was because the Chinese residents did not matter to the policy makers. Almost a century of exclusionary immigration and citizenship policies had deprived Chinese Americans from re-uniting with their overseas families, becoming citizens and hence voting.

By 1993, the legacy of the adverse land use policies has reduced Chinatown into a neighborhood that looked like a donut, with numerous surface parking lot dotting its landscape. The proposed hospital garage on Parcel C was particularly offensive, not only because of the history of the hospital’s land grab within the community, but also because the City had promised to preserve this piece of land for a Chinatown community center less than two years earlier. Moreover, this garage proposal would test the efficacy of the Chinatown Community Plan adopted by the city in 1990, which lays the ground rules and principles for future land use and developments for Chinatown.

The research into the community’s land use and social history quickly led us to conclude that the garage proposal was only “the miner’s canary.” (This is referring to the theme of the book of the same title by Lani Guinier and Gerald Torres.) The battle to protect Parcel C from institutional expansion was thus not just the mechanical examination of land use law or development review, it called for a challenge to the underlying government policies and actions that sanctioned inequitable land use adversely affecting a community of color. GBLS represented the Coalition formed to fight for Parcel C through the city’s project review process (The city’s project review process followed Article 31 (has since been amended and re-codified as Article 80) of the Boston Zoning Code, which focused on the proposed development’s impact on the environment and not on the social fabric of the community.) and the state’s environmental review (MEPA) process. (The state’s Executive Office of Environmental Affairs oversee the environmental review pursuant to the Massachusetts Environmental Policy Act, M.G.L. c.30, Sections. 61-62H, 301 C.M.R. Sec. 11.00 (amended in 1998).) Although for the first time, the community was able to demand a bilingual public hearing, secured a skimpily translated draft environmental impact report and succeeded in convincing the state agency to require the hospital to redraft its environmental impact report, we knew that this review process would not stop the garage in the end. This realization led us to begin building a civil rights case along an environmental justice claim that centered on the continuing application of land use policies that produced disparate impacts on a community of color. The environmental justice claims that Boston Chinatown has developed are not about hazardous waste or toxic dump. They center around the municipality’s deliberate land use policies that have allowed highway construction, adult entertainment district siting and institutional expansion to take place in inner city neighborhood that produces adverse impacts on low income community of color. The case was never filed because the city negotiated with the hospital to withdraw the garage proposal a week before the planned filing date. The potential lawsuit, however, created a new dialogue within the community that had never before considered civil rights “their” issue.

Since the Boston Chinatown community won the Parcel C battle, the landscape of the land use in the community has changed. Instead of institutional expansion, Boston Chinatown has been experiencing downtown encroachment and gentrification. Since 2000, approximately 1200 units of housing has been built in and around Chinatown, which almost doubled the total number of housing units in this neighborhood. Of these new units, less than three percent is affordable to low income households, which account for the majority of those in Chinatown. Almost all of them are high rises with hundreds of units in a single development, apparently to advance the “smart growth” principles. The frontier of the Boston Chinatown’s land use battle has moved from the earlier environmental justice claims to zoning enforcement. The issue of contention is the municipality’s granting of illegal zoning variance to allow the building of luxury residential high rises in Chinatown to hasten gentrification that leads to displacement of low income residents. (In 2002, Greater Boston Legal Services represented a community based organization and a tenant in suing the City of Boston and the private developer for violating the zoning in proposing to build a high rise residential building at three times the height limit and twice the allowable density under the applicable zoning code. For a brief discussion of this case, see Raun Rasmussen, Zoning and Land-Use Laws: Tools to create housing and services for our clients, Clearinghouse Review Journal of Poverty Law and Policy, 441,454 (Nov. – Dec. 2002).) Instead of undoing its 1972 zoning that put the sex business into Chinatown in the first place, the city has chosen a circuitous and ineffective route. It has chosen to allow developers to violate zoning law to build luxury high rises that in the city’s view will “contain” the adult entertainment district.

Almost fifteen years after Greater Boston Legal Services took on the first land use case in Boston Chinatown, our practice on this issue has broadened beyond the project-by-project challenge. Recognizing that this community’s strength derives from its physical space marked by Chinatown, GBLS has been working with community-based organizations to build resident capacity and to map out broader economic and community development strategies to ensure this community’s survival. The upcoming challenge will focus on the future development of a 10 to 20-acre site made available by the completion of the “Big Dig,” part of which comprised land taken from the community in the 1950s and 60s. The next frontier of our work will be to combine our legal expertise in zoning law, inclusionary zoning policies, affordable housing policies, and civil rights laws with the expertise of urban planners to push through the community’s vision of survival and growth, both geographically and economically.

In devoting significant resources in preserving one community, Greater Boston Legal Services has not abandoned its practice in other areas. Its Asian Outreach Unit (AOU) that focuses on serving the legal needs of the low income Asian immigrant community has continued to have a general poverty law practice that covers employment, family, housing, immigration, and public assistance. The unit was founded in 1972 by the first generation Asian American law students to bring legal services to the growing Chinese community who could not access the mainstream legal services due to language barriers. Recognizing that the understanding and resolution of their legal problems also requires knowledge of cultural practices common in the community, the AOU and its predecessor also emphasize bringing in bilingual and bicultural staff and interns to aid in the delivery of legal services. Thirty-five years after it was formed, the core mission of the Asian Outreach Unit has remained unchanged. In fact, over the past decade, the Asian Outreach Unit has emerged as a model for other legal services programs in designing their service to better serve the needs of limited-English-proficient clients. (See e.g. The search for equal access to justice: Asian American Access to Justice Project Report, p.29 (The National Asian Pacific American Legal Consortium, May 2000); Expanding Legal Services: serving limited English proficient Asians and Pacific Islanders, p. 25 (Asian Pacific American Legal Center, Nov. 2003); the Asian Outreach Unit is also profiled in an abstract on the Legal Services Corporation resource library.) It is challenging to strike a balance between meeting the day-to-day legal needs of individual clients through the regular legal services delivery and taking on big projects that address the long-term economic, social and political advancement of the community. (Besides the land use work in Chinatown, the Asian Outreach Unit also served as the legal counsel to the Vietnamese American Initiative for Development (Viet-AID) during its early years in the mid-1990s. Viet-AID is the first and only community development corporation founded by and for the Vietnamese American community. It is the brainchild of one of the first seven NAPIL (now Equal Justice Works) fellows who joined the Asian Outreach Unit in the fall of 1993. The AOU helped with the formation of the family childcare center project and the community center by doing basic legal research on the applicable program regulations and property titles. Along the way, AOU has also helped form and incorporate tenant associations and the Boston Chinatown Resident Association.)

However, legal services need not evaluate its programming within an “either-or” construct. The collective advancement of the social and economic conditions of a community also benefits the clients who may come to legal services for assistance on individual legal problems. The solution to persistent poverty is in both helping the individuals get more income and correcting the underlying conditions that keep people poor. One approach is short-term and immediate, the other is long-term and perhaps indirect. With respect to the Boston Chinatown community, we are experimenting with using the tangible land use emergency to stimulate the community’s imagination, to find ways to capitalize on these developments to produce economic opportunities for the community burdened with these developments. We hope that by working with the community to create a vision for its physical and economic future, and by lending our expertise to support its implementation, the Boston Chinatown residents may one day afford to rent or own the gleaming new apartments that are rising in their neighborhood.

By Zenobia Lai, Senior Attorney, Greater Boston Legal Services

In the newly published Opening the Floodgates: Why America Needs to Rethink Its Borders and Immigration Laws, its author Kevin R. Johnson provides a reality check for current U.S. immigration laws and policies asserting that a nativist approach works against a globalized economy. In addition to the economic benefits that would flow to the U.S. and its trade partners with the removal of antiquated border controls, Johnson writes that such reform “would end the sheer brutality inherent in current immigration enforcement, which results in physical abuse, promotes racial discrimination and relegates certain groups of U.S. citizens and lawful immigrants to second-class status, both inside and outside and United States.” Kevin R. Johnson is Associate Dean for Academic Affairs and Mabie-Apallas Professor of Public Interest Law and Chicana/o Studies at the University of California at Davis and is also President of the Board of Directors of Legal Services of Northern California (LSNC). For more on this new publication and to read an excerpt, see Putting Immigration in perspective, LSNC Advocate Feed, November 18, 2007.

The Equal Justice Society and UCLA School of Law hosted a Symposium on the labor and employment impact of California’s anti-affirmative action law — Prop. 209. Several research papers were presented, including:

A Vision Fulfilled? The Impact of Proposition 209 on Equal Opportunity for Women Business Enterprises
Monique W. Morris, Michael D. Sumner, Jessica Z. Borja

Affirmative Action Programs and Business Ownership among Minorities and Women
Robert Fairlie, Justin Marion

Diversity Management in America and the Affirmative Action Debate in France
Christine Pauwels

The Effectiveness of Affirmative Action in Highway Procurement
Justin Marion

Free to Compete? Measuring the Impact of Proposition 209 on Minority Business Enterprises
Monique W. Morris, Sirithon Thanasombat, Michael D. Sumner, Sara Pierre, Jessica Z. Borja

The Impact of State Affirmative Procurement Policies on Minority- and Women- Owned Businesses in Five States
Tim Lohrentz

Minority Preferences In Public Contracts
Christopher M. Westhoff, Jess J. Gonzalez

Using Race or Ethnicity as Factors in Employee and Contractor Outreach
David Benjamin Oppenheimer

* * *
In related news, UCLA Professors Cheryl Harris and Walter Allen wrote an Op-Ed in the National Law Journal highlighting the flaws in the “mismatch thesis”, which purports to demonstrate empirically that “affirmative action in law schools hurts black law students because it puts them in schools where their credentials are below the median; consequently, they cannot academically compete.” Professors Harris and Allen note that the “mismatch thesis” has not been subject to peer review and numerous questions remain about the accuracy of the thesis.
The Equal Justice Society published a point-by-point response to Pr. Sander’s 2004 article, which appeared in the Stanford Law Review. Other responses can be found at http://www.equaljusticesociety.org/research.html.

On Sunday, the Associated Press reported on the current declining trend in African-American lawyers appearing before the Supreme Court. The article suggests several factors that may account for the growing paucity of minority lawyers at the nation’s highest court:

• continuing problems in recruiting and retaining blacks and other minorities at the top law firms;
• the rise of a small group of lawyers who focus on Supreme Court cases;
• the decline in civil rights cases that make it to the high court; and
• the court’s dwindling caseload.

No doubt, the loss of effective affirmative action policies at many law schools will exacerbate this trend.

Titled “Racist Incident Roils Pa. High School” the Associated Press article describes a part of the school parking lot where students wearing Confederate flags exclusively park their trucks at Warkwick High School, a mostly white, affluent school. Parents of students of color stated they made complaints about the hostile environment this created, but the school defended the actions as protected by the First Amendment. Not until racial slurs targeting the students of color came to the attention of staff did the school respond, and the response seems more motivated by rumors of threats of violence than acknowledgment that the school allowed a racist environment to exist. The Superintendent’s lack of response until this week was explained as such: “Perhaps we were lulled into a false sense that our school district was immune to racism and bigotry.” Unfortunately this is an example of the racial realist/colorblind paradigm that exists across the country, a false belief that the civil rights movement changed the minds of people to believe that the movement achieved equality amongst all people. The district’s response at the parent meeting was to blame the students for not coming forward as an excuse for the school’s failure to address the hostile school environment. See Jon Hanson, Kathleen Hanson, The Blame Frame: Justifying (Racial) Injustice In America, 41 Harv. C.R.-C.L. L. Rev. 413 (2006). Clearly, this story and many others from schools across our nation indicate that to this day, youth do not think whites and people of color are equal. Incidents like this and more violent displays of racism by young people should demonstrate to school administrators that by turning a blind eye, they have a hand in perpetuating racial hostility.

The New York Times reports in Race Gap: Crime vs. Punishment on the arguments made before the Supreme Court last week which examined the legitimacy and mandatory nature of sentencing guidelines that result in racially disparate impact among those convicted of powder vs. crack cocaine offenses. In the 1987 McClesky decision, the Supreme Court took up a similar issue in the context of the administration of the death penalty. Some (most notably Brian Stevenson) have compared the Supreme Court’s decision in McClesky (dismissing demonstrated racial bias in death penalty sentencing) to the Dred Scott and Plessy v. Ferguson cases, which established and upheld the “separate but equal” doctrine. Without answering, the article asks to what degree the criminal justice system might be overtly racist and suggests that stereotypes and unconscious/unintentional discrimination may be at work.

The Harvard Project on Law and Mind Sciences recently examined the effect of stereotyping in the criminal justice system with reports on visual processing of African-American criminal suspects and defendants who look “deathworthy”.

A big thank you to Brian Lawlor who brought this article to our attention.

Why We Can’t Wait: Reversing the Retreat on Civil Rights is a regional conference being co-hosted by the Leadership Conference on Civil Rights Education Fund and the National Campaign to Restore Civil Rights, among others, on October 19 – 20, 2007 at the Marriott Civic Center in Durham, North California. The conference’s objective is “to educate. . .and build alliances to protect and preserve equal justice, fairness, and opportunity and to make sure our laws are in step with the country we want for ourselves and for future generations.” The conference implements the conveners’ broader goal to counter the “rollback” period in civil rights that began in the late seventies and eighties. Session topics include the future of school integration, immigrant rights and using human rights laws as a tool in civil rights cases. Click on the conference name above for registration information.

The Equal Justice Society today issued a report, “Framing Race and Class in the Wake of Hurricane Katrina: A Natural and Unnatural Disaster,” an examination of coverage by different kinds of media of this unique natural and unnatural disaster in an effort to understand how the story of Hurricane Katrina and its aftermath were being presented to American audiences.

The Supreme Court decided the seminal case Village of Arlington Heights v. Metropolitan Housing Development Cooperation, 429 U.S. 252, in January of 1977. The decision established that plaintiffs may prove intentional discrimination by showing (1) a pattern of disparate impact that can only be explained by purposive discrimination, (2) a history government actions that reveal a discriminatory decision-making process, or (3) an administrative history that reveals bias or racial animus.

My initial thoughts on Arlington Heights were that it (1) provided a useful “work-around” to the strict requirements of the Intent Doctrine and that (2) I needed to better understand the wealth of case law that applied of the Arlington Heights factors. Imagine my surprise when I discovered that I could count the federal cases applying the Arlington Heights factors on one hand….yikes!

Standing alone in the nearly empty field relevant Arlington Heights case law, Dews v. Town of Sunnyvale, Tex., 109 F. Supp. 2d 526 (2000), systematically applied of the Arlington Heights factors to find in favor of the plaintiffs intentional discrimination claim. Unfortunately, this case will not appear as citing Arlington Heights in one major legal research engine due to careless indexing. Keep your eyes open for the upcoming exhaustive analysis of the Arlington Height factors and the subsequent case law written by one of the participants in the REP seminar at UC Davis School of Law.

I was unclear about the severity of the segregation patterns that Seattle School District No. 1 (“District”) was trying to remedy after reading the Court’s recent opinion in Parents Involved In Community Schools v. Seattle School District No. 1. Given the Court’s summary factual account of the problem that gave rise to the District’s program, I wondered how severe the segregation patterns in the District were.

I decided to map the patterns of segregation existent in the District at the commencement of the suit. Take a look at the map for yourself (Click on the map image to view the map).

Note that the District’s program simply gave preference to students of color who requested to attend one of District’s “high demand schools.” Was the problem of segregation perhaps more severe than the Court’s statement of facts suggests? Could such marked patterns of segregation really be unconnected to our history of racial segregation? The REP would love to hear your thoughts.

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