Congress Charged with Violating Constitution in Vote to De-Fund ACORN
The Center for Constitutional Rights (CCR) today filed a case challenging Congress’s unconstitutional defunding of the Association of Community Organizations for Reform Now (ACORN).
The case charges Congress with violating the Bill of Attainder provision in the U.S. Constitution, violating the Fifth Amendment right to due process, and infringing on the First Amendment right to freedom of association by targeting affiliated and allied organizations, as well. CCR attorneys say members of Congress violated the Constitution by declaring an organization guilty of a crime and punishing it and its members without benefit of a trial.
The lawsuit seeks a temporary restraining order to prevent the government from reallocating funds designated for the organization and its affiliates and a preliminary injunction to stop Congress from singling out a single organization for punishment without proper investigation or due process.
The plaintiffs are ACORN, the ACORN Institute, and the New York ACORN Housing Company. The suit is ACORN v. USA and was filed in federal court in the Eastern District of New York.
Fact sheets on the case and more information available at http://ccrjustice.org/acorn-v-usa.
Obama Nominates Sotomayor for Supreme Court
President Barack Obama today nominated Judge Sonia Sotomayor to succeed David Souter as an associate justice of the Supreme Court. Obama said Sotomayor has more experience as a judge than any current member of the high court had when nominated, adding she has earned the “respect of colleagues on the bench, the admiration of many lawyers who argue cases in her court and the adoration of her clerks, who look to her as a mentor.”
She would be the first Latina to serve on the Supreme Court.
The following is a backgrounder issued by the White House:
Sonia Sotomayor has served as a judge on the United States Court of Appeals for the Second Circuit since October 1998. She has been hailed as “one of the ablest federal judges currently sitting” for her thoughtful opinions,i and as “a role model of aspiration, discipline, commitment, intellectual prowess and integrity”ii for her ascent to the federal bench from an upbringing in a South Bronx housing project.
Her American story and three decade career in nearly every aspect of the law provide Judge Sotomayor with unique qualifications to be the next Supreme Court Justice. She is a distinguished graduate of two of America’s leading universities. She has been a big-city prosecutor and a corporate litigator. Before she was promoted to the Second Circuit by President Clinton, she was appointed to the District Court for the Southern District of New York by President George H.W. Bush. She replaces Justice Souter as the only Justice with experience as a trial judge.
Judge Sotomayor served 11 years on the Court of Appeals for the Second Circuit, one of the most demanding circuits in the country, and has handed down decisions on a range of complex legal and constitutional issues. If confirmed, Sotomayor would bring more federal judicial experience to the Supreme Court than any justice in 100 years, and more overall judicial experience than anyone confirmed for the Court in the past 70 years. Judge Richard C. Wesley, a George W. Bush appointee to the Second Circuit, said “Sonia is an outstanding colleague with a keen legal mind. She brings a wealth of knowledge and hard work to all her endeavors on our court. It is both a pleasure and an honor to serve with her.”
In addition to her distinguished judicial service, Judge Sotomayor is a Lecturer at Columbia University Law School and was also an adjunct professor at New York University Law School until 2007.
An American Story
Judge Sonia Sotomayor has lived the American dream. Born to a Puerto Rican family, she grew up in a public housing project in the South Bronx. Her parents moved to New York during World War II – her mother served in the Women’s Auxiliary Corps during the war. Her father, a factory worker with a third-grade education, died when Sotomayor was nine years old. Her mother, a nurse, then raised Sotomayor and her younger brother, Juan, now a physician in Syracuse. After her father’s death, Sotomayor turned to books for solace, and it was her new found love of Nancy Drew that inspired a love of reading and learning, a path that ultimately led her to the law.
Most importantly, at an early age, her mother instilled in Sotomayor and her brother a belief in the power of education. Driven by an indefatigable work ethic, and rising to the challenge of managing a diagnosis of juvenile diabetes, Sotomayor excelled in school. Sotomayor graduated as valedictorian of her class at Blessed Sacrament and at Cardinal Spellman High School in New York. She first heard about the Ivy League from her high school debate coach, Ken Moy, who attended Princeton University, and she soon followed in his footsteps after winning a scholarship.
At Princeton, she continued to excel, graduating summa cum laude, and Phi Beta Kappa. She was a co-recipient of the M. Taylor Pyne Prize, the highest honor Princeton awards to an undergraduate. At Yale Law School, Judge Sotomayor served as an editor of the Yale Law Journal and as managing editor of the Yale Studies in World Public Order. One of Sotomayor’s former Yale Law School classmates, Robert Klonoff (now Dean of Lewis & Clark Law School), remembers her intellectual toughness from law school: “She would stand up for herself and not be intimidated by anyone.” [Washington Post, 5/7/09]
A Champion of the Law
Over a distinguished career that spans three decades, Judge Sotomayor has worked at almost every level of our judicial system – yielding a depth of experience and a breadth of perspectives that will be invaluable – and is currently not represented — on our highest court. New York City District Attorney Morgenthau recently praised Sotomayor as an “able champion of the law” who would be “highly qualified for any position in which wisdom, intelligence, collegiality and good character could be assets.” [Wall Street Journal, 5/9/09]
A Fearless and Effective Prosecutor
Fresh out of Yale Law School, Judge Sotomayor became an Assistant District Attorney in Manhattan in 1979, where she tried dozens of criminal cases over five years. Spending nearly every day in the court room, her prosecutorial work typically involved “street crimes,” such as murders and robberies, as well as child abuse, police misconduct, and fraud cases. Robert Morgenthau, the person who hired Judge Sotomayor, has described her as a “fearless and effective prosecutor.” [Wall Street Journal, 5/9/09] She was cocounsel in the “Tarzan Murderer” case, which convicted a murderer to 67 and ½ years to life in prison, and was sole counsel in a multiple-defendant case involving a Manhattan housing project shooting between rival family groups.
A Corporate Litigator
She entered private practice in 1984, becoming a partner in 1988 at the firm Pavia and Harcourt. She was a general civil litigator involved in all facets of commercial work including, real estate, employment, banking, contracts, and agency law. In addition, her practice had a significant concentration in intellectual property law, including trademark, copyright and unfair competition issues. Her typical clients were significant corporations doing international business. The managing partner who hired her, George Pavia, remembers being instantly impressed with the young Sonia Sotomayor when he hired her in 1984, noting that “she was just ideal for us in terms of her background and training.” [Washington Post, May 7, 2009]
A Sharp and Fearless Trial Judge
Her judicial service began in October 1992 with her appointment to the United States District Court for the Southern District of New York by President George H.W. Bush. Still in her 30s, she was the youngest member of the court. From 1992 to 1998, she presided over roughly 450 cases. As a trial judge, she earned a reputation as a sharp and fearless jurist who does not let powerful interests bully her into departing from the rule of law. In 1995, for example, she issued an injunction against Major League Baseball owners, effectively ending a baseball strike that had become the longest work stoppage in professional sports history and had caused the cancellation of the World Series the previous fall. She was widely lauded for saving baseball. Claude Lewis of the Philadelphia Inquirer wrote that by saving the season, Judge Sotomayor joined “the ranks of Joe DiMaggio, Willie Mays, Jackie Robinson and Ted Williams.”
A Tough, Fair and Thoughtful Jurist
President Clinton appointed Judge Sotomayor to the U.S. Court of Appeals for the Second Circuit in 1998. She is the first Latina to serve on that court, and has participated in over 3000 panel decisions, authoring roughly 400 published opinions. Sitting on the Second Circuit, Judge Sotomayor has tackled a range of questions: from difficult issues of constitutional law, to complex procedural matters, to lawsuits involving complicated business organizations. In this context, Sotomayor is widely admired as a judge with a sophisticated grasp of legal doctrine. “’She appreciates the complexity of issues,’ said Stephen L. Carter, a Yale professor who teaches some of her opinions in his classes. Confronted with a tough case, Carter said, ‘she doesn’t leap at its throat but reasons to get to the bottom of issues.’” For example, in United States v. Quattrone, Judge Sotomayor concluded that the trial judge had erred by forbidding the release of jurors’ names to the press, concluding after carefully weighing the competing concerns that the trial judge’s concerns for a speedy and orderly trial must give way to the constitutional freedoms of speech and the press.
Sotomayor also has keen awareness of the law’s impact on everyday life. Active in oral arguments, she works tirelessly to probe both the factual details and the legal doctrines in the cases before her and to arrive at decisions that are faithful to both. She understands that upholding the rule of law means going beyond legal theory to ensure consistent, fair, common-sense application of the law to real-world facts. For example, In United States v. Reimer, Judge Sotomayor wrote an opinion revoking the US citizenship for a man charged with working for the Nazis in World War II Poland, guarding concentration camps and helping empty the Jewish ghettos. And in Lin v. Gonzales and a series of similar cases, she ordered renewed consideration of the asylum claims of Chinese women who experienced or were threatened with forced birth control, evincing in her opinions a keen awareness of those women’s plights.
Judge Sotomayor’s appreciation of the real-world implications of judicial rulings is paralleled by her sensible practicality in evaluating the actions of law enforcement officers. For example, in United States v. Falso, the defendant was convicted of possessing child pornography after FBI agents searched his home with a warrant. The warrant should not have been issued, but the agents did not know that, and Judge Sotomayor wrote for the court that the officers’ good faith justified using the evidence they found. Similarly in United States v. Santa, Judge Sotomayor ruled that when police search a suspect based on a mistaken belief that there is a valid arrest warrant out on him, evidence found during the search should not be suppressed. Ten years later, in Herring v. United States, the Supreme Court reached the same conclusion. In her 1997 confirmation hearing, Sotomayor spoke of her judicial philosophy, saying” I don’t believe we should bend the Constitution under any circumstance. It says what it says. We should do honor to it.” Her record on the Second Circuit holds true to that statement. For example, in Hankins v. Lyght, she argued in dissent that the federal government risks “an unconstitutional trespass” if it attempts to dictate to religious organizations who they can or cannot hire or dismiss as spiritual leaders. Since joining the Second Circuit, Sotomayor has honored the Constitution, the rule of law, and justice, often forging consensus and winning conservative colleagues to her point of view.
A Commitment to Community
Judge Sotomayor is deeply committed to her family, to her co-workers, and to her community. Judge Sotomayor is a doting aunt to her brother Juan’s three children and an attentive godmother to five more. She still speaks to her mother, who now lives in Florida, every day. At the courthouse, Judge Sotomayor helped found the collegiality committee to foster stronger personal relationships among members of the court. Seizing an opportunity to lead others on the path to success, she recruited judges to join her in inviting young women to the courthouse on Take Your Daughter to Work Day, and mentors young students from troubled neighborhoods Her favorite project, however, is the Development School for Youth program, which sponsors workshops for inner city high school students. Every semester, approximately 70 students attend 16 weekly workshops that are designed to teach them how to function in a work setting. The workshop leaders include investment bankers, corporate executives and Judge Sotomayor, who conducts a workshop on the law for 25 to 35 students. She uses as her vehicle the trial of Goldilocks and recruits six lawyers to help her. The students play various roles, including the parts of the prosecutor, the defense attorney, Goldilocks and the jurors, and in the process they get to experience openings, closings, direct and cross-examinations. In addition to the workshop experience, each student is offered a summer job by one of the corporate sponsors. The experience is rewarding for the lawyers and exciting for the students, commented Judge Sotomayor, as “it opens up possibilities that the students never dreamed of before.” [Federal Bar Council News, Sept./Oct./Nov. 2005, p.20] This is one of many ways that Judge Sotomayor gives back to her community and inspires young people to achieve their dreams.
She has served as a member of the Second Circuit Task Force on Gender, Racial and Ethnic Fairness in the Courts and was formerly on the Boards of Directors of the New York Mortgage Agency, the New York City Campaign Finance Board, and the Puerto Rican Legal Defense and Education Fund.
Intent Doctrine: Its Relationship to Seattle and Louisville School Cases and the Need to Preserve Brown’s Legacy
UPDATE JUNE 28: The Supreme Court today handed down its decision on the Seattle and Louisville schools cases. Read our statement here.
This term, the Supreme Court faces a question that it set itself on a collision course with three decades ago.[1] The Court will decide whether school districts in Seattle and Louisville can consider the racial composition of a particular school in deciding student assignments within a district.[2]
The school assignment plans utilize race as a factor to try and alleviate systemic barriers to full participation and integration by taking race into account in student assignment. The irony of the Court addressing this particular question is palpable, given that a scant few decades ago the Constitution was interpreted as compelling governments and localities to remedy such racial inequities through race conscious plans.[3]
How did the Court position itself to decide whether just taking race into account, even when proactively and voluntarily addressing de facto racial segregation, is Constitutionally permissible? By adopting an ideology of “color-blindness,” the Court has contrived an unintended constitutional mandate under the Equal Protection Clause that fails to acknowledge and distinguish different uses of “race” in our society.[4] This jurisprudence, manifested through the Court’s “intent doctrine,” precludes the ability of courts to protect individuals who have suffered real harms as a result of racial inequities.[5]
Thus, while the Court decides whether schools have the power to voluntarily follow Brown v. Board of Education’s mandate to eradicate racial segregation,[6] we are left to ask the extent to which the Supreme Court’s equal protection jurisprudence has foreclosed the ability to address and rectify inequality, racial and otherwise.[7] An increasing number of the Court’s decisions have crippled the foundations of civil rights laws laudably enacted by Congress and ingrained in our Constitution. The present legal landscape begs the question of how will the Court address racial inequality and segregation going forward.
The Court’s Ideology of Race
The Supreme Court has not coherently articulated a conception of race in the context of history and social reality.[8] Instead, the Court persists in employing its ideology of color-blindness, which it portrays as a neutral principle. In fact, however, this ideology is far removed from the racial realities of society. The color-blind ideology treats any and all uses of “race” as false ascriptions of inherent characteristics, and thus inherently problematic.[9] However, the affirmative use of race is oftentimes the only effective way to recognize and address real social phenomena.
This presumption, termed the “intent doctrine,” has been applied to any governmental action where groups are treated differently on the basis of race. Under this doctrine these overt uses of race are constitutionally permissible only if they are “[narrowly tailored] to serve a compelling governmental interest.”[10] This standard, known as “strict scrutiny,” has for the most part been “strict in theory, but fatal in fact,”[11] and has meant that a great many of the governmental actions designed to address racial inequality, in areas such as higher education,[12] contracting,[13] and voting,[14] have been deemed unconstitutional. In essence, this ideology of color-blindness functions to “legitimate[] and thereby maintain[] the social, economic, and political advantages that whites hold over other Americans.”[15]
Ironically, in the rush to impose its color-blind ideal, the Supreme Court has severely weakened the ability of the Fourteenth Amendment to protect racial minorities from discriminatory and inequitable practices. The Court’s ideologically created mandate to demonstrate “intent” creates a retrenchment of the ability to address racial inequality by requiring a plaintiff to prove the near-impossible: a decision-maker’s specific motivation to discriminate against a minority group.[16] Thus to prove a claim under the current Equal Protection Clause jurisprudence, it is not enough for a plaintiff to show that the defendant acted with knowledge that his or her actions would have a discriminatory impact on an identifiable racial group. Instead, an aggrieved individual must show that the harmful government action was taken “at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.”[17] This leads to a situation where the “practical result is to convert the burden of proof of improper motive into a substitute rule for upholding governmental action.”[18]
This constricted “intent doctrine” permeates antidiscrimination law, ignores much of what we know about the dynamics of discrimination, and deprives many of redress for discrimination. The extraordinarily high burden almost requires a civil rights plaintiff to find a “smoking gun” statement expressing outward racial animus.[19] In modern times, however, overt statements of racial hostility are known to be socially unacceptable. Additionally, the intent requirement does not take into account how modern cognitive science understands discrimination. Scholars such as Charles Lawrence,[20] Linda Krieger,[21] and Jerry Kang[22] have demonstrated that discrimination is often a product of unconscious or implicit biases and categorizations, rather than “intentional discrimination.”[23]
Turning a Blind Eye to Real Inequality
Of course, this willful ignorance of historical and social context is nothing new in the Court’s race jurisprudence.[24] However, the cumulative and very deleterious effect is the inability of the Court (and resulting refusal by the public) to recognize, and therefore to directly address, the harms that accrue due to persisting racial inequality. Instead, the Court sees the Equal Protection Clause as a bulwark against the “harm” of a person being classified as a member of a race, rather than a safeguard from real harms suffered by an individual on account of race.[25] This normative discourse of color-blindness ends up masking entrenched systems of inequality; it hinders any government agency – from the Seattle and Louisville school boards to post-209 California – from making race-conscious efforts to mitigate structural inequities. In the case of the school assignment plans, the districts utilize a race-conscious program not because race is some immutable characteristic to which they ascribe certain inherent characteristics, but because “race” has real social effects.
This inability to directly address racial inequity is rooted in the Supreme Court’s decision in Washington v. Davis, which essentially determined that the Equal Protection Clause would equate color-blindness with a constitutional mandate. The doctrinal feature that undergirds this color-blind mandate, the intent doctrine, largely prohibits governmental actors from taking overt, proactive action (ameliorative or otherwise) that attempts to modify social distribution on the basis of race. However, in the absence of overt usage of race, the existing social and economic distributions are assumed to be neutral and non-suspect. In this way, the Court, by importing a conception of what the neutral is, engages in a pretense of objectivity that actually preserves the existing distribution of social resources.[26] Accordingly, this color-blind ethic sees baseline juridical regimes—from district assignment plans that rely on only factors other than race in Seattle and Louisville cases, to admissions criteria that rely on tests that have severe racial impacts in higher education,[27] to “traditional districting criteria”[28] in cases of voter districting—as natural.[29]
Today, some of the most pernicious and pervasive forms of discrimination result from facially neutral practices that diminish the opportunities of whole minority communities. For example, Richard Thompson Ford has argued that governmental actors can now make decisions on the facially race neutral basis of geographical boundaries, despite the fact that those boundaries are a function of de jure and de facto segregation.[30] These ostensibly neutral practices have the effect of allowing governmental decision-makers to take advantage of “locked –in”[31] discrimination without being violative of the Constitution. With this limitation in place, it becomes increasingly difficult to remedy the effects of structural inequality. At the same time, the elimination of a right of action to bring suits based on a disparate impact severely hampers the ability of aggrieved parties to challenge much of the structural inequality in schools based on statutory civil rights protections.[32]
However, some school districts, such as those being challenged in Louisville and Seattle, understand well that in a segregated community, students may not be able to interact or study together in integrated schools unless race is taken into account in assigning students to schools under a plan that offers an equal educational opportunity to all the districts’ children. Yet, the Supreme Court may well take away the districts’ ability to do so.
In her dissent in Gratz v. Bollinger, Justice Ginsburg noted that the Constitution must be color conscious so that it can “prevent discrimination being perpetuated and to undo the effects of past discrimination.”[33] In other words, color-consciousness does not look at race because it falsely captures some presumed inherent qualities, but rather, because it captures and directly addresses the lived social reality of communities in which African Americans, Latinos and other people of color have less access to social resources than whites. By explicitly addressing the way in which race has been deployed in any particular action,[34] the Court can accordingly apply a more fitting level of scrutiny necessary to determine if the action satisfies the Equal Protection Clause.[35]
Almost all of the debate around these cases has taken as their starting point that the Court will apply “strict scrutiny” to the school plans at issue, and those in favor of maintaining race-conscious districting have attempted to demonstrate why the plans are narrowly tailored to serve a compelling governmental interest. However, it is becoming clear that the narrow Equal Protection Clause jurisprudence will continue to limit the ways in which society can remedy the social ill of racial oppression. While the Court will like continue to utilize its existing framework in Seattle and Louisville, it must at some point deal with the fact that “[i]n order to get beyond racism, we must first take account of race.”[36]
—
[1] Many argue that this question is “fundamentally different” than any that the Court has previously faced. For instance, Judge Kozinski’s concurrence in Seattle argues against the shared analytical framework of the majority and dissent because “this case is fundamentally different from almost anything the Supreme Court has previously addressed.” Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 426 F.3d 1162, 1193 (9th Cir. 2005) (en banc), cert. granted, 126 S.Ct. 2351 (2006) (citing Comfort v. Lynn Sch. Comm., 418 F.3d 1, 27 (1st Cir.) (Boudin, C.J., concurring), cert. denied, 126 S. Ct. 798 (2005). Professors Pamela Karlan and Goodwin Liu have pointed out that school desegregation plans and redistricting plans that take race into account are fundamentally different than affirmative action cases and should be treated accordingly. See Pamela S. Karlan & Daryl J. Levinson, Why Voting is Different, 84 Cal. L. Rev. 1201 (1996); Goodwin Liu, Seattle and Louisville, 95 Cal. L. Rev. 277 (2007).
[2] Seattle, 426 F.3d 1162; McFarland v. Jefferson County Pub. Schs., 330 F. Supp. 2d 834 (W.D. Ky. 2004), aff’d per curiam, 416 F.3d 513 (6th Cir. 2005), cert. granted sub nom. Meredith v. Jefferson County Bd. of Educ.,126 S. Ct. 2351 (2006).
[3] See generally Gary Orfield et al., Dismantling Desegregation: The Quiet Reversal of Brown v. Board of Education 53-55 (1996); see also Missouri v. Jenkins, 515 U.S. 70 (1995) (holding that interdistrict remedies are impermissible to correct intradistrict segregation).
[4] For example, Neil Gotanda has analyzed the various ways in which race has been employed by courts. See Neil Gotanda, A Critique of “Our Constitution Is Color-Blind,” 44 Stan. L. Rev. 1 (1991).
[5] First articulated in Washington v. Davis, 426 U.S. 229 (1976), the intent doctrine requires plaintiffs challenging the constitutionality of a facially neutral law to prove a racially discriminatory purpose on the part of those responsible for the law’s enactment or administration. Essentially, laws that distinguish groups based on race are subject to “strict scrutiny,” meaning that the law can only past constitutional muster if it is narrowly tailored to serve a compelling governmental interest. Conversely, laws that do not use race (or another suspect classification) are only subject to rational basis review, meaning that the law must be rationally related to a legitimate governmental purpose. In the most famous cases invalidating laws under rational basis review for violation of the Equal Protection Clause, City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985), and Plyler v. Doe, 457 U.S. 202 (1982), the Court arguably applied an “enhanced” form of the rational basis test. For more discussion of the real world effect of applying strict scrutiny, see infra.
[6] Brown v. Bd. of Educ., 347 U.S. 483 (1954). While Brown is held to be many things, it is best understood within an interpretation of the Equal Protection Clause understanding that: “guarantees of equal citizenship cannot be realized under conditions of pervasive social stratification and . . . that law should reform institutions and practices that enforce the secondary social status of historically oppressed groups.” Jack M. Balkin & Reva B. Siegel, The American Civil Rights Tradition: Anticlassification or Antisubordination?, 58 U. Miami L. Rev. 9 (2003).
[7] Cf. David A. Strauss, Discriminatory Intent and the Taming of Brown, 56 U. Chi. L. Rev. 935, 946-51 (1989).
[8] See Gotanda, supra note 4.
[9] Cf. Eric K. Yamamoto, Carly Minner, & Karen Winter, Contextual Strict Scrutiny, 49 How. L.J. 241 (2006). In this article, the authors demonstrate the ways in which the Court has employed a varied conception of race in which it may be willing to consider context in its strict scrutiny analysis. See also Alan David Freeman, Legitimizing Racial Discrimination Through Antidiscrimination Law: A Critical Review of Supreme Court Doctrine, 62 Minn. L. Rev. 1049 (1978).
[10] Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 275 (1978) (opinion of Powell, J.)
[11] Fullilove v. Klutznick, 448 U.S. 448, 519 (1980) (Marshall, J., concurring in judgment) (citing Bakke, 438 U.S. 265, 362 (1978)).
[12] Bakke, 438 U.S. 265; Gratz v. Bollinger, 539 U.S. 244 (2003) (striking down point-based affirmative action programs in higher education). But see Grutter v. Bollinger, 539 U.S. 306 (2003) (upholding University of Michigan School of Law’s affirmative action program employing race as a “plus factor”).
[13] See City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989); Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995) (striking down affirmative action in contracting).
[14] See, eg., Shaw v. Reno, 509 U.S. 630 (1993).
[15] See Gotanda, supra note 4, at 2-3.
[16] See, Washington, 426 U.S. 229.
[17] Personnel Administrator v. Feeney, 442 U.S. 256, 279 (1979).
[18] Kenneth Karst, Belonging to America: Equal Citizenship and the Constitution 154 (1989).
[19] But see, Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266 (1977) (stating that evidence of discriminatory impact “may provide an important starting point” to determine if there has been intentional discrimination).
[20] Charles R. Lawrence, III, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, 39 Stan. L. Rev. 317, 323 (1987).
[21] Linda Hamilton Krieger, The Content of Our Categories: A Cognitive Bias Approach to Discrimination and Equal Employment Opportunity, 47 Stan. L. Rev. 1161 (1995).
[22] Jerry Kang, Trojan Horses of Race, 118 Harv. L. Rev. 1489 (2005).
[23] For a further discussion of the need to reevaluate the concept of intent based on advances in cognitive psychology and critical sociology, see the Equal Justice Society report by Eric K. Yamamoto, Susan K. Serrano, and Minal Shah Fenton, Redefining Discrimination: Using Social Cognition Theory to Challenge the Faulty Assumptions of the “Intent Doctrine” in Anti-Discrimination Law that is included in the supplemental materials.
[24] See, e.g., Personnel Administrator, 442 U.S. 256, 279 (holding that there is no constitutional violation when a governmental decision is made merely “in spite of” its known discriminatory impact); Shaw v. Reno, 509 U.S. 630, 657 (1993) (stating that racial considerations in districting “may balkanize us into competing racial factions; it threatens to carry us further from the goal of a political system in which race no longer matters,” in the face of the extant racial bloc voting).
[25] Seattle, 426 F.3d at 1199 (citing Miller v. Johnson, 515 U.S. 900, 911 (1995)). The Equal Protection Clause of the Fourteenth Amendment to the Constitution protects persons from discriminatory conduct by government actors.
[26] For an extended critique of adjudication that normalizes and legitimates its decisions according to this function, see Cass Sunstein, Lochner’s Legacy, 87 Colum. L. Rev. 873 (1987). For a specific critique of the way that antidiscrimination law performs the function see Kimberlé Williams Crenshaw, Race, Reform and Retrenchment: Transformation and Legitimation in Antidiscrimination Law 101 Harv. L. Rev. 1331 (1988).
[27] See Grutter, 539 U.S. 306; Gratz, 539 U.S. 244.
[28] See Shaw v. Reno, 509 U.S. 630, 642
[29] Jerome McCristal Culp, Jr., Understanding the Racial Discourse of Justice Rehnquist, 25 Rutgers L.J. 597, 617 (1994) (arguing that the Rehnquist Court’s color-blind jurisprudence assumes that “the racial status quo, is an appropriate base line and that any deviation from that status quo invades a protected right”); See also Bakke, 438 U.S. 407 (Blackmun, J., concurring in part and dissenting in part) (Stating that, “We cannot-we dare not-let the Equal Protection Clause perpetuate racial supremacy.”)
[30] Richard Thompson Ford, The Boundaries of Race: Political Geography in Legal Analysis, 107 Harv. L. Rev. 1841 (1994).
[31] Daria Roithmayr, Locked In Segregation, 12 Va. J. Soc. Pol’y & L. 197 (2004).
[32] See Rachel F. Moran, Undone By Law: The Uncertain Legacy Of Lau v. Nichols, 16 Berkeley La Raza L.J. 1 (2005) (arguing that the elimination of the private right of action based on disparate impact claims may have the effect of undermining Lau v. Nichols which “barred school practices that have the effect of excluding children from the educational process based on language, where language is a proxy for race, ethnicity, or national origin”).
[33] Gratz, 539 U.S. at 302 (Ginsburg, J., dissenting) (quoting United States v. Jefferson County Bd. of Educ., 372 F.2d 836, 876 (5th Cir. 1966)).
[34] In the Seattle and Louisville cases, many members of the Court questioned whether the districts could have achieved its racially motivated goal without overtly using race as a factor without subjecting themselves to the same constitutional scrutiny. In this sense there is a concern for the legitimacy of the legal system when the legal rules encourage “hiding the ball,” Gratz, 539 U.S. at 298 (Souter, J., dissenting), and legislation “through winks, nods, and disguises,” id. at 304 (Ginsburg, J., dissenting).
[35] Yamamoto et al., supra note 9.
[36] Bakke, 438 U.S. 407 ((Blackmun, J., concurring in part and dissenting in part).
