Category Archives: Civil Rights

New Article: “Civil Rights Catch 22s”

New Article: Jonathan Feingold, Civil Rights Catch 22s, 43 Cardozo L. Rev. 2 (2022). Abstract below:

Civil rights advocates have long viewed litigation as a vital path to social change. In many ways, it is. But in key respects that remain under-explored in legal scholarship, even successful litigation can hinder remedial projects. This perverse effect stems from civil rights doctrines that incentivize litigants (or their attorneys) to foreground community plight—such as academic underachievement or over-incarceration. Rational plaintiffs, responding in kind, deploy legal narratives that tend to track racial biases and regressive theories of inequality. When they do, even successful lawsuits can harden the structural and behavioral forces that produce and perpetuate racial inequality.

I refer to this dynamic as a “civil rights catch 22.” To concretize this phenomenon and its effects, I explore recent right-to-education lawsuits featuring low-income students of color. The cases reveal how doctrine can drive plaintiffs to portray themselves and their communities through a lens of poverty and illiteracy. Even if strategic from a litigation perspective, the proliferation of such narratives can entrench disparities across educational domains.

For decades, critical race theorists have revealed how the law “constructs” race. This article builds on that canon but shifts the lens to litigation itself. For those committed to meaningful racial reform, better understanding this dynamic is essential—particularly given the emancipatory role that civil rights litigation is understood to fulfill.

New Article: “Expanding Civil Rights to Combat Digital Discrimination on the Basis of Poverty”

New Article: Michele E. Gilman, Expanding Civil Rights to Combat Digital Discrimination on the Basis of Poverty, 75 SMU L. Rev. 1 (2022, Forthcoming). Abstract below:

We live in a datafied society in which a vast network of public and private entities collect and combine our personal data. Algorithms sort these data troves and generate digital profiles that serve as gatekeepers to life’s necessities such as jobs, housing, health care, and education. Several scholars and civil rights organizations have highlighted the potential for algorithmic bias in these artificial intelligence systems, and examples of digital discrimination on the basis of race, gender, and other protected characteristics are ubiquitous. As a result, there are numerous legislative proposals and emerging litigation strategies for countering algorithmic bias. However, these civil rights initiatives leave out one group of Americans who are particularly vulnerable to digital discrimination – people experiencing poverty. Low-income people are suffering in the datafied society, while businesses amass large profits at their expense and governments digitally deny them social safety net benefits. This Article explores the harms poor people suffer from algorithms used in tenant screening, credit scoring, higher education admissions, and online advertising platforms. In light of these harms, this Article argues that existing and new laws prohibiting digital discrimination should include low socio-economic status as a protected characteristic. This legal reform would limit the digital harms low-income people suffer, enhance economic opportunity for millions of Americans, advance the fight for racial justice, and generate the data needed to improve anti-poverty policymaking.

New Article: “The Pocketbook Next Time: From Civil Rights To Market Power In The Latinx Community”

New Article: Rachel F. Moran, The Pocketbook Next Time: From Civil Rights To Market Power In The Latinx Community, 73 Am. L. Rev. 579 (2022). Abstract below:

The United States is undergoing a demographic transformation. Nearly one in five Americans already is Latinx, and the United States Census Bureau projects that by 2060, nearly one in three will be. Latinx will substantially outnumber every other historically underrepresented racial and ethnic minority group, and non-Hispanic whites no longer will be a majority. Those changes have unsettled traditional approaches to full inclusion.

Civil rights activists have suffered numerous setbacks, and the burgeoning Latinx population is searching for other paths to belonging. Some leaders have turned to growing Latinx market power to demand recognition and equal opportunity. These efforts rely heavily on aggregate contributions that Latinx make to the labor force, consumption of goods and services, and entrepreneurship. Advocates use these statistics to show that Latinx are vital to continued prosperity for all Americans.

Aggregate statistics do not grapple with the internal heterogeneity of the Latinx population, particularly along lines of class and immigration status. Nor do the numbers address the ways in which the law itself constrains market participation. Earlier movements to promote economic empowerment are instructive. Marcus Garvey’s Universal Negro Improvement Association (UNIA), though not a Latinx movement, mobilized working-class Black Americans to advance race pride and an enterprising spirit. That initiative foundered in the face of two implacable forces: opposition from middle-class Black leaders committed to a civil rights agenda and a capitalist system that made little room for entrepreneurship by poor people. Cesar Chavez’s labor organizing for the United Farm Workers (UFW) is the most famous mobilization to advance Latinx economic interests, and his movement continues to influence activists to this day. The UFW’s rise and fall reveal how disputes over the treatment of the undocumented and legal battles over union tactics divided the membership and drained precious resources.

These lessons of history reveal the limits of both market aggregation and traditional civil rights strategies in addressing contemporary Latinx labor force participation, political consumerism, and entrepreneurship. Aggregation conceals distinct challenges that Latinx face depending on whether they are working-class or middle-class, undocumented or legally present. For working- class and undocumented Latinx, the most essential reforms depart from a civil rights framework, requiring structural investments in human capital and comprehensive immigration reform. For middle-class and legally present Latinx, civil rights can be a useful tool in fighting discrimination on the job and in lending markets. However, new approaches will be needed to address exclusionary social networks, which create barriers to advancement at work and limit access to capital. To leverage growing numbers, Latinx therefore must forge innovative strategies that recognize the intricate interdependency of the civic square and the marketplace.

New Article: Antisubjugation and the Equal Protection of the Laws

New Article: Evan D. Bernick, Antisubjugation and the Equal Protection of the Laws, 110 Georgetown L. J. (2021). Abstract Below:

For nearly 150 years, the Supreme Court has held that the Fourteenth Amendment to the United States Constitution does not secure “positive” rights to governmental aid or apply to “private” action. This Article argues that neither of those things is true as a matter of the original meaning and purpose of the Equal Protection Clause. It then contends that constitutional doctrine should be reconstructed to realize the Constitution’s promise of “the equal protection of the laws.”

The Court has articulated a general rule against judicial use of the Fourteenth Amendment’s Due Process Clause to guarantee governmental protection against private violence.2 It has also hindered Congress’s efforts to provide civil remedies for private violence. At the same time, the Court has insisted that the Equal Protection Clause generally prohibits unjustified, intentional discrimination.

Scholars have long questioned these features of Fourteenth Amendment law. One group of scholars—call them protection theorists—contends that the original meaning of “the equal protection of the laws” only guarantees security against physical violence and possibly access to the courts.6 Another group of scholars contends that the “state-action doctrine” is incoherent and that the original meaning of the Fourteenth Amendment does guarantee positive rights to certain kinds of governmental aid, including protective services.

This Article contends that the Equal Protection Clause guarantees both nondiscriminatory law enforcement and nondiscriminatory laws. The Clause also prohibits states from interfering with any protection provided by constitutionally proper federal laws. Under the Clause, state governments are: 

(1) required to impartially execute nondiscriminatory state laws that protect life, liberty, and property; 

(2) required to provide people with impartial access to the courts; 

(3) prohibited from enacting discriminatory laws that unreasonably burden or benefit the life, liberty, and property of some people more than others; 

(4) prohibited from denying people life-, liberty-, and property-related protection that is provided by constitutionally proper federal laws. 

New Book: Furthering Fair Housing Prospects for Racial Justice in America’s Neighborhoods

New Book: Justin P. Steil et al., Furthering Fair Housing Prospects for Racial Justice in America’s Neighborhoods (2021). Description below:

The 2015 Affirmatively Furthering Fair Housing Rule was the most significant federal effort to increase equality of access to place-based resources and opportunities, such as high-performing schools or access to jobs, since the 1968 Fair Housing Act. However, in an effort to appeal to suburban voters, the Trump administration repealed the rule in 2020, leaving its future in doubt.

Furthering Fair Housing analyzes multiple dimensions of this rule, identifying failures of past efforts to increase housing choice, exploring how the AFFH Rule was crafted, measuring the initial effects of the rule before its rescission, and examining its interaction with other contemporary housing issues, such as affordability, gentrification, anti-displacement, and zoning policies.

The editors and contributors to this volume—a mix of civil rights advocates, policymakers, and public officials—provide critical perspectives and identify promising new directions for future policies and practices. Placing the history of fair housing in the context of the centuries-long struggle for racial equity, Furthering Fair Housing shows how this policy can be revived and enhanced to advance racial equity in America’s neighborhoods.

New Article: “Discrimination on Wheels: How Big Data Uses License Plate Surveillance to Put the Brakes on Disadvantaged Drivers”

New Article: Nicole McConlogue, Discrimination on Wheels: How Big Data Uses License Plate Surveillance to Put the Brakes on Disadvantaged Drivers, Stanford Journal of Civil Rights and Civil Liberties, Vol. 18 (Forthcoming). Abstract below:

As scholarly discourse increasingly raises concerns about the negative societal effects of “fintech,” “dirty data,” and “technochauvinism,” a growing technology provides an instructive illustration of these concepts. Surveillance software companies develop predictive analytical tools based on automated license plate reader (ALPR) technology and market the tools to auto financers and insurers as a risk assessment input when evaluating consumer applicants. Proponents might argue that more information about consumer travel habits results in more accurate and individualized risk predictions, potentially increasing vehicle ownership among marginalized groups. Expanding access to cars would go a long way toward undoing the economic hobbling of many people who are low-income or of color.

However, identifying and observing discrimination’s entry points in the consumer scoring cycle shows ALPR-based data analytics will only exacerbate the problem. Competing incentives and assumptions steer the choices of the humans who collect ALPR data, creating a conflict that irredeemably poisons the data and any consumer access decisions that spring from it. Moreover, using location data to assess risk means that automobile costs are based on value judgments about the neighborhoods consumers visit. Thus, not only does the tainted ALPR data collection methodology reinforce discrimination rather than creating an equal path to economic mobility and stability, but using the data to score consumers affirmatively resuscitates and repackages the practice of redlining.

This article analyzes the fintech model as represented by ALPR’s application to the landscape of auto financing and insurance. This article deviates from other commentary surrounding ALPR by contemplating this technology specifically through a consumer law lens: a context overlooked by a conversation preoccupied with ALPR’s privacy and Fourth Amendment implications. Even as scholars and commentators examine law enforcement’s engagement with this high-tech surveillance, powerful private actors fly under the radar while subjecting vulnerable consumers to ALPR’s exploitative commercial applications. It exposes the ways in which consumer laws have left disadvantaged drivers unprotected and advances a number of proposals, including removing geographic inputs from auto access decision making, developing a central base of technological expertise to audit algorithms, and banning commercial use of ALPR.

New Article: “Their Home is Not Their Castle: Subsidized Housing’s Intrusion into Family Privacy and Decisional Autonomy”

New Article: Michelle Ewert, Their Home is Not Their Castle: Subsidized Housing’s Intrusion into Family Privacy and Decisional Autonomy, 99 N.C. L. Rev. 869 (2021). Abstract below:

The anti-Black racism that has permeated public benefits programs and federal housing policy for over a century persists in subsidized rental housing. Public housing authorities (PHAs) impede the ability of tenants—who are disproportionately Black women—to change household composition as their family situations change. PHAs routinely take months or longer to approve requests to add or remove household members and often require tenants to produce inaccessible third-party verification of a former household member’s new address before removing them from official records. In failing to grant these requests promptly, PHAs infringe on tenants’ fundamental right to privacy and family autonomy, impose a financial burden on tenants who have limited resources, and put tenants at risk of eviction if former household members are arrested for criminal activity.

This Article proposes workable solutions to these problems. First, PHA failure to timely respond to a request to adjust household composition should be treated as a constructive denial, as is done in fair housing law and other areas of administrative law. This strategy would allow tenants to pursue administrative and judicial review rights that already exist in public housing and the housing choice voucher program. Second, the statutory or regulatory schemes governing subsidized housing should be amended to include subpoena powers such as exist in the Administrative Procedure Act to allow tenants to access needed third-party records. These changes would protect the substantive and due process rights of vulnerable tenants and help dismantle systemic racism that continues to plague public benefits programs.

New Article: Reconstructing the Algebra of Race and Rights

Raul Carrillo, Reconstructing the Algebra of Race and Rights, L. & Pol. Econ. (Feb. 18, 2021). Introduction below:

In The Alchemy of Race and RightsPatricia Williams critiques capitalism for narrowing our demands on the state to monetizable claims, arguing the “purchasing of our liberties; the peonage of our citizenship” situates us in eternal stasis. If “…a change on one side of the equation is always balanced by the algebraically obligatory change on the other” then “[m]oney reflects law and law reflects money, unattached to notions of shared humanity.” For advocates demanding direct deployment of public money, (via a right to guaranteed income, for example), a rigid conception of public finance is a trap.

Critical legal scholars persuasively argue rights are abstract, unstable, and indeterminate. But these qualities are not generated merely by courts: indeed, issues of justiciability are downstream from the broader public law of collective governance and monetary design, which shapes our understanding of each other as economic agents and units, and the form and function of rights demands in the first place. 

New Op-Ed: The Way Out of America’s Zero-Sum Thinking on Race and Wealth

Heather C. McGhee, The Way Out of America’s Zero Sum Thinking on Race and Wealth, N.Y. Times (Feb. 13, 2021). Subhead below:

Margaret Bourke-White/The Life Picture Collection – Getty Images, via Art Resource, NY

The evidence shows we all lose the society’s overwhelmed by white resentment and win when we organize across our differences.

New Article: Constructing Countervailing Power: Law and Organizing in an Era of Political Inequality

Kate Andrais & Benjamin I. Sachs, Constructing Countervailing Power: Law and Organizing in an Era of Political Inequality, 130 Yale L.J. 546 (2021). Abstract below:

This Article proposes an innovative approach to remedying the crisis of political inequality: using law to facilitate organizing by the poor and working class, not only as workers, but also as tenants, debtors, welfare beneficiaries, and others. The piece draws on the social-movements literature, and the successes and failures of labor law, to show how law can supplement the deficient regimes of campaign finance and lobbying reform and enable lower-income groups to build organizations capable of countervailing the political power of the wealthy. As such, the Article offers a new direction forward for the public-law literature on political power and political inequality. It also offers critical lessons for government officials, organizers, and advocates seeking to respond to the inequalities made painfully evident by the COVID-19 pandemic.