Ricci Decision Threatens Constitutional Values of Equal Justice for All
In a 5 to 4 decision in the case of Ricci v. DeStefano, the U.S. Supreme Court ruled today that the city of New Haven, Connecticut violated Title VII when it declined to make promotions in the fire department on the basis of a test that disproportionately screened out minority candidates.
The Equal Justice Society joined the Lawyers’ Committee for Civil Rights Under Law in an amicus curiae, or friend of the court, brief urging the Court to uphold New Haven’s efforts to root out discrimination from its promotional process, consistent with civil rights laws and the Constitution. The Lawyers’ Committee brief was also joined by the National Association for the Advancement of Colored People and the National Urban League.
“We are shocked by the decision and we will continue our work to preserve the vital protections of Title VII of the Civil Rights Act of 1964,” said Barbara Arnwine, executive director of the Lawyers’ Committee for Civil Rights Under Law. “Like Justice Ginsburg, we anticipate that the decision ‘will not have staying power.’”
In this case, the city of New Haven, Connecticut declined to certify the results of a firefighter promotion test based on evidence that the test discriminated on the basis of race. The city also had evidence that more fair and effective tests were available. Rather than making promotions on the basis of the discriminatory test, the city declined to certify the results, and sought to explore less discriminatory alternatives, in keeping with its obligations under Title VII of the Civil Rights Act of 1964. When the city declined to make promotions on the basis of the test results, firefighters who had scored highly on the test filed suit, alleging that the city discriminated on the basis of race.
“Today’s decision ignores the plain language of Title VII, congressional intent and established precedent,” said Sarah Crawford, senior counsel with the Lawyers’ Committee for Civil Rights Under Law’s Employment Discrimination Project. “We still have far to go to fulfill Title VII’s promise of equal employment opportunity. This is a giant leap backward.”
Ideologically-Charged Decision in Ricci v. DeStefano Ignores History, Precedent
In a statement issued today on the Supreme Court’s 5-4 decision on Ricci v. DeStefano, Alliance for Justice President Nan Aron said that the “majority’s opinion ignores our nation’s history, rejects precedent, overturns the judgment of local government officials and makes it more difficult for employers to take voluntary steps to break down barriers to equal employment.”
“Continuing its assault on our civil rights laws, the five conservative ideologues on the Supreme Court today rejected long-standing law to weaken Title VII protections for traditional victims of discrimination,” said Aron.
Before the Court issued its ruling, People For the American Way Executive Vice President Marge Baker said that: “Opponents of Judge Sotomayor have gone to great lengths to use the ruling of her panel in Ricci v. DeStefano against her, and they will surely ramp up their efforts if the Supreme Court overturns the Second Circuit. But the simple fact is that the Supreme Court’s ruling, whatever it may be, will not reflect upon Sotomayor’s jurisprudence.
“Sotomayor and her panel colleagues were bound by longstanding precedent and federal law. They applied the law without regard to their personal views and unanimously affirmed the district court ruling. To do anything but would have been judicial activism.
“The full Second Circuit backed up the panel, which came as no surprise. Nearly ten years earlier a Second Circuit panel — consisting of three GOP nominees — reached the same conclusion in a similar case (Hayden v. County of Nassau).
“When a case virtually identical to Ricci came before the Sixth Circuit — Oakley v. Memphis — a panel rejected the plaintiffs’ claims and affirmed the district court ruling. Notably, they did so in an unpublished summary order, and one of the three judges was conservative Bush nominee Richard Allen Griffin.
“In other words, Sotomayor is anything but an outlier. She and the seven other federal judges who decided Ricci and Oakley at the district and circuit levels were unanimous in determining that precedent and federal law required the rejection of the suits.”
Position Opening: EJS Director of Law and Public Policy
The Equal Justice Society is seeking experienced candidates for the position of Director of Law and Public Policy.
The Director of Law and Public Policy is a member of the management team of EJS and participates in the overall management and development of the organization. The Director reports to the President of EJS.
EJS is a national strategy group driven by a vision of a society where race is no longer a barrier to opportunity. Our mission is to heighten consciousness on race in the law and popular discourse. Grounded by an agenda that seeks progressive legal reform, we engage a three-pronged strategy that incorporates communications, law and policy, and fostering a “grand alliance” among our progressive allies.
Our legal strategy aims to broaden conceptions of present-day discrimination using cognitive science, structural analysis, and real-life experience. We provide attorneys with tools to challenge the flawed assumptions underlying current anti-discrimination doctrine.
The Director of Law and Public Policy is responsible for managing and directing the implementation of multiple programmatic responsibilities in pursuit of the organization’s goals and strategies. The Director will be expected to:
* Supervise and prepare legal activity, including appellate briefs, amicus curiae, and, eventually, impact litigation involving issues of critical importance to EJS’s mission;
* Direct research by EJS staff, consultants and outside academics and social scientists on various legal and social justice issues;
* Plan and prepare law related conferences that bring together legal scholars, practitioners, law students, social scientists, journalists and other concerned activists to stimulate analysis and progressive reform of key areas of the law, with a particular emphasis on civil rights and social justice;
* Direct outreach to law schools, students and faculty to engage in research, public policy initiatives and legal action and supervising legal and/or research interns.
The Director of Law and Public Policy should have at least five (5) years of academic and/or legal experience, particularly in the area of civil rights, critical race theory, and/or the use of social science and the law. The ability to engage legal scholars, practitioners and grassroots activists is essential to successful performance. The Director will supervise a full-time staff attorney and a fellow, additional legal staff as the organization grows, occasional interns and help coordinate and direct other program staff.
The position is an exempt, professional and management position. The Director is expected to be a senior, experienced manager. A demonstrated record of working in coalition with other organizations is required.
Interested candidates should send a résumé and letter of interest on or after July 1* and sent no later than July 15, 2009, to info@equaljusticesociety.org and sent via postal mail (postmarked by July 15) to:
Search Committee
Equal Justice Society
260 California Street, Suite 700
San Francisco, CA 94111
* We ask that applications be sent on or after July 1 due to our office move taking place June 26-30.
LDF: Supreme Court Ruling Leaves in Place Core Provision of the Voting Rights Act
Today, the Supreme Court in Northwest Austin Municipal Utility District Number One v. Holder rejected a challenge to the constitutionality of Section 5, the core provision of the Voting Rights Act, said the NAACP Legal Defense and Educational Fund, Inc. (http://www.naacpldf.org) in a press release.
In an opinion authored by Chief Justice Roberts, the Supreme Court recognized that “[t]he historic accomplishments of the Voting Rights Act are undeniable.”
Today’s ruling, which was joined by seven other Justices, recognizes Section 5′s critical importance in addressing voting discrimination faced by citizens throughout our country.
“The entire thrust of LDF’s argument was that Section 5 remains critical to our democracy and, however grudgingly, the Court acknowledges that in its opinion today. In an unusually harmonious opinion, today’s decision upholds the constitutionality of an essential core protection in our democracy,” said John Payton, LDF Director-Counsel.
Payton observed that “Section 5 of the Voting Rights Act protects and shields the rights of minority voters from discrimination. Section 5 has long been symbolic of our nation’s long and unsteady march toward greater political equality. Without its protections, our nation would unnecessarily face the grave risk of significant backsliding and retrenchment in the fragile gains that have been made.”
The Court’s ruling today ensures that minority voters will continue to have the safeguards provided by the Section 5 preclearance process.
The Court expanded the number of places that can seek to “bailout” or exempt themselves from preclearance. However, no Section 5-covered jurisdiction can do so without demonstrating a clean bill of health for a ten-year period.
The bailout provision has proven workable and achievable for those jurisdictions that have sought it. It remains to be seen how the Court’s interpretation of the bailout provision will impact enforcement of Section 5. If, for any reason, today’s ruling renders Section 5 unworkable in the future, Congress could always amend the statute.
“The utility district brought this case to tear out the heart of the Voting Rights Act. Today, it failed. The Voting Rights Act remains one of Congress’s greatest legacies,” said Debo P. Adegbile, LDF Director of Litigation, who argued the case on behalf of Appellee-Intervenors.
Farewell, but not goodbye: Kimberly Thomas Rapp
It is with a mixture of great sadness and deep gratitude that we announce that Kimberly Thomas Rapp, our Director of Law and Policy, will be leaving us.
We feel sadness because Kimberly’s contributions to EJS and to the cause of social and racial justice have been immense. We are grateful because her presence here for the past four years has been a true pleasure. We will miss her.
Those of you who have been lucky enough to work with Kimberly fully understand the depth and breadth of the loss we have suffered. Our EJS board member, Professor Eric Yamamoto, put it best when he said after hearing the sad news: “You bring such deep intelligence, people insight, dedication and heart to all you do.” We second that emotion.
During her time with us she has worked closely with the California Teachers Association on the issue of unconscious bias in the classroom. She also was the key moving force in three meetings of folks who litigate in the United States Supreme Court.
Her combination of scholarly understanding of equal protection jurisprudence coupled with a preacher’s kid’s comfort with making arrangements for large groups of people contributed to the success of these events that took place twice at Duke University and once at UC Irvine.
Kimberly supervised countless law clerks and younger attorneys. She always took the time to help them develop their skills as they also contributed to the legal work here at EJS. There were countless things that Kimberly worked on while she was here. She did them all with style, depth, intelligence and grace.
We were also continually astonished at the work Kimberly and her family does in the community. Her father is the pastor of a church in Richmond, Calif. The church makes sure that people in the community were fed and clothed and loved.
We joked about the fact that Kimberly and her family routinely cooked Thanksgiving meals for hundreds of people. We wanted her to cater our events but she drew the line there.
As you can readily see, Kimberly is an amazing woman.
Kimberly will continue working with us here at EJS on race and gender conscious contracting issues so she will not be leaving us completely, but her official last day in the office is June 25. She can be reached via email after that date at kdtrapp@comcast.net.
We wish her the best and know that we will be hearing about her next successes as she moves on to the next challenge.
Thanks so much Kimberly. We will miss you a lot.
On behalf of your friends and colleagues at EJS,
EVA PATERSON
Dying While Black: An Examination of Race and the California Death Penalty
Photo by nodeathpenalty.org
The foundation of the Equal Justice Society is based on the premise that racial justice cannot be achieved when the law fails to reflect actual experience. Under existing equal protection law, the constricted “Intent Doctrine” (as established in the 1976 United States Supreme Court decision Washington v. Davis) ignores much of what we know about the dynamics of modern day discrimination and therefore deprives underrepresented groups access to our courts and redress for discrimination.
By requiring plaintiffs to prove a decision-maker’s conscious intent to discriminate, they are faced with an almost impossible burden.
Our focus on the Intent Doctrine intersected with the efforts of journalist Claire Cooper, formerly of the Sacramento Bee, to draw attention to the structural causes of the vast over-representation by Blacks on death row to a degree virtually unmatched in the nation.
We share Claire’s thoughts below:
In late 2008, I was asked to participate in a panel discussion on race and the California death penalty. What I learned in preparing for my remarks surprised me, though I had covered the state’s death penalty for almost 30 years as a newspaper reporter. Because this information has not been part of our death penalty debate, it may surprise you, too.
I learned, in sum, that blacks in this progressive state are over-represented on death row to a degree virtually unmatched in the nation. Death sentence rates for black defendants here (but not Latinos) far exceed black population rates and even black homicide arrest rates. I also learned that neither race-of-victim information nor any other available data seem sufficient to explain the wide disparities.
Please take a few minutes to read my Sacramento Bee commentary, “Scales of justice may weigh heavily against blacks.” Share with us your reactions and suggestions here. If you are in California, please consider how we might bring the issues to the attention of the state’s policy-makers. If you are outside California, please consider whether hidden racial issues are affecting the death penalty in your state.
My own view is that California should be collecting data on the way discretion is exercised in charging, prosecuting and defending homicide cases, as well as data on the racial composition of death penalty juries. But please share your understanding of the situation. Tell us how we can raise awareness of it and begin to fix it.
- Claire Cooper
EJS has examined the intersection of the doctrine and the death penalty before.
In August 2004, more than 60 people from the Bay Area legal and social science communities gathered for an EJS brown bag to discuss how we can use social science research to advocate for social justice and challenge existing legal frameworks
At the gathering, we discussed how the death penalty — in this case, at the federal level — and race is a good example of an arena with a high potential for frame-breaking.
There have been many cases where the Supreme Court ruled that racial disparities in the way the death penalty is administered are not that important even though in the last 30 years data show that there is a much greater likelihood that Black Americans will be sentenced to death in homicide cases (if and when the victim is white).
The U.S. Supreme Court has chosen to ignore data showing racial patterns, and has instead insisted on an individual case-by-case assessment of fairness.
In the fall of 2005, following the Katrina disaster, EJS began working with a coalition of more than 140 U.S. social justice groups in an effort to focus international attention on human rights violations in the United States. EJS focused on race discrimination and the impact of the intent doctrine on civil rights litigation, and other groups dealt with issues ranging from voting rights to environmental racism and the death penalty.
June 30: California’s Day of Action to End the Death Penalty
The Equal Justice Society is deeply committed to racial justice and preserving human dignity for all people. Consistent with these commitments, we have joined the fight to help stop executions in California, and we encourage you to join us.
The California Department of Corrections and Rehabilitation (CDCR) recently released new regulations on its lethal injection process – a first step towards resuming executions in our state.
No one has been executed in California for more than three years. Unfortunately, the new CDCR regulations will not only re-engage the machinery of death, but they also contain several provisions that fail to preserve the dignity of prisoners and their families. For instance:
- The regulations do not provide non-Christian inmates equal access to their spiritual advisors or permission to conduct the end-of-life rituals necessary to obtain peace of mind before their deaths;
- The regulations do not provide adequate resources for non-Native English speaking inmates and their families that would guarantee full understanding of the process by which the inmate’s life will be taken;
- The regulations unduly limit the media’s access to information about executions, and do not provide for notice to ethnic or non-mainstream media outlets;
- Finally, the CDCR has refused to disclose how much the implementation of its new regulations will cost the state (despite that this information is required by law). In this time of fiscal crisis, the public has a right to know how many millions of dollars these executions will cost.
The new regulations are currently open for public comment and the CDCR is required to satisfactorily respond to each and every relevant comment prior to implementation. Click here for a summary of the regulations and information about how to submit comments.
Additionally, on Tuesday, June 30, a public hearing on the new CDCR regulations will take place as part of a Day of Action to End the Death Penalty.
JOIN EJS IN THE FIGHT TO END THE DEATH PENALTY
http://deathpenalty.org/article.php?id=362