EJS and Other Organizations File Amicus Brief Supporting Application of Voting Rights Act and Protection of Minority Voting Rights
The Equal Justice Society (EJS), the Lawyers’ Committee for Civil Rights, Legal Services for Prisoners with Children, and American Parole and Probation Association submitted an Amicus brief in the Ninth Circuit case Farrakhan v. Gregoire, which will determine whether Washington State’s felon disenfranchisement law violates the 1965 Voting Rights Act (VRA). (Download a PDF of the brief here.)
Earlier this year, a three-judge panel of the Ninth Circuit held that Washington State’s law denying the vote to people with felony convictions is racially discriminatory and violates Section 2 of the Voting Rights Act. The case is now scheduled for rehearing en banc by an eleven-judge panel in September.
EJS agrees with the three-judge panel’s conclusion that Washington’s law is racially discriminatory and violates the VRA by disproportionately disenfranchising both individuals and communities of color. As a result of Washington’s law, 24 percent of Black men and 15 percent of Washington’s Black population have lost their voting rights because of felony convictions.
Our brief, in particular, focuses on the importance of voting rights to successful reintegration and rehabilitation for formerly incarcerated persons. Not only do felon disenfranchisement policies impede political participation and successful re-entry of formerly incarcerated individuals, they also impact entire communities by diluting their collective voting strength.
Section 2 of the VRA was enacted to protect against racial discrimination in voting, and prohibits states from using any voter qualification system that results in a denial of the right to vote on account of race or color. EJS encourages the en banc panel to uphold the panel’s decision and strike down Washington’s racially discriminatory law.
The law firm Cooley LLP provided assistance on the brief.
Georgetown Law Journal to Publish Article by EJS Motley Fellow Brando Simeo Starkey on Need for Equal Protection Re-Invigoration
An upcoming issue of the Georgetown Journal of Law & Modern Critical Race Perspectives will include the article “Inconsistent Originalism and the Need for Equal Protection Re-Invigoration” by Brando Simeo Starkey, the Equal Justice Society Judge Constance Baker Motley Fellow.
The article can be downloaded here.
After Washington v. Davis, the Equal Protection Clause, as in Plessy v. Ferguson, was interpreted to prevent racial justice for communities of color. The Davis Court announced the intent doctrine: that the Equal Protection Clause only protects those discriminated against pursuant to a discriminatory motives.
But as Charles Lawrence announced in his piece entitled The Id, The Ego, and Equal Protection, discrimination is frequently the result of an unconscious mind. By focusing on a motive inquiry, moreover, courts limit remedy to the most overt of discriminatory acts. The evidentiary burden is too high.
Brando’s article argues that the Equal Protection Clause is no longer an effective tool for stigmatized minorities, and needs to be re-invigorated to further racial equality.
Those seeking to overturn Davis must, though, grapple with the reality that the original public understanding of the Equal Protection Clause does not render discriminatory acts resulting from unconscious bias unconstitutional.
Brando argues that the Fourteenth Amendment’s original understanding is an anachronism and the future of the intent doctrine must not hinge on the ratifying generation’s formulation. Originalists implicitly agree with this contention.
Indeed, Originalists’ equal protection opinions, particularly involving affirmative action, confound anyone with a basic knowledge of the Fourteenth Amendment’s legislative history. Originalists best establish how much the original understanding of the Fourteenth Amendment is unhelpful in dealing with contemporary race issues.
The Equal Protection Clause, writes Brando, must be re-invigorated so that its new understanding reflects both our deepening knowledge of unconscious bias and our appreciation for how a discriminatory motive can be easily hidden.
The article has already generated a reaction from Lawrence B. Solum, John E. Cribbet Professor of Law and Philosophy and Co-Director of the Institute for Law and Philosophy at the University of Chicago School of Law on the Legal Theory Blog:
I enjoyed this interesting piece, but it’s exposition of originalism does (by my lights) capture the content of contemporary originalist theory (the so-called “new originalism” or “original public meaning originalism”). In particular, the author might want to consider the distinction (original made by Mark Greenberg and emphasized by Jack Balkin) between original expected applications and the original public meaning of the constitutional text.
Brando graduated in June of 2008 with a J.D. from Harvard Law School, where he was a research assistant at both the Jamestown Project, a think tank, and at the Law School’s library researching various matters for professors. He was also was an opinion editorialist for the Harvard Law Record, the school’s newspaper.
He also published several works: Uncle Tom and Clarence Thomas: Is the Abuse Defensible?, The Veil of Fair Representation: Maurice Clarett v. NFL, “Acting White” and the Achievement Gap: Burden or Myth?: A Research Brief & Recommendations for Educators, Policymakers & Members of the Media, and Drastic Action: The 1983 Course Boycott at Harvard Law School.
California Court Issues Preliminary Ruling in Favor of Bar Applicants’ Private Data, Denying Prof. Sander’s Request
A California Superior Court judge on March 24 issued a preliminary ruling (download PDF) denying Professor Richard Sander’s request for access to bar applicants’ private data from the State Bar of California.
Prof. Sander’s lawsuit attempted to compel the State Bar to release information regarding applicants’ race, GPA, and bar exam scores in order to advance his research on what he terms the “mismatch hypothesis” – that affirmative action in law schools actually harms Black students by putting them in schools where they are unable to compete.
Sander’s findings to date have been readily contested, and his requests for confidential Bar data repeatedly denied – however, he has continued to pursue his claims in court, prompting attempted intervention by law students who claim that release of the confidential data would violate their right to privacy.
Judge Curtis Karnow ruled that Sander’s request should be denied because the data he requested is not a public record under California law (this order is currently pending, and will not be final until entered by the Court). Sander and his colleagues have stated that they intend to appeal this ruling.
While the final outcome of this case remains to be seen, this initial proposed ruling is a victory for the law students whose private records are at risk of being released without their permission.
Below is a more extensive summary of the March 24 preliminary decision in Sander v. State Bar of California by EJS law clerk Audrey Daniel.
Petitioner Richard Sander has filed suit seeking information from the State Bar of California. Specifically, he is attempting to compel the Bar to release information, including race, GPA, Bar exam scores, etc. for applicants for the Bar exam. Sander plans to utilize this data to argue that affirmative action hinders African Americans’ progress in becoming attorneys. EJS has joined the opposition to protect the privacy of Bar applicants against Sander gaining access to their personal information, and using it for such purposes.
The case will be heard in two stages. First, the judge will decide whether the particular data that Sander requests is considered public record. If so, and Sander prevails at the first stage, then the court will then hear the second phase. There, the judge will consider the privacy and burden issues implicated in the request.
The judge recently issued a Proposed Statement of Decision on phase one. Based on a variety of authorities that Sander claimed allowed him access to this information, the judge found that none of them mandated the Bar release this type of personal information of its applicants. This proposed decision is not yet final, but indicates that the court is heavily swayed towards denying Sander’s requests.
Sander first argued that he is entitled to this data based on the common law right of access to documents filed with the courts. However, the California Supreme Court has distinguished between documents related to adjudication and those that do not, when applying such a right of access. The Court there ruled that while there is a broad public right to documents related to judicial hearings and records, it does not include materials not related to a trial or adjudication. The judge in the case at hand found that the personal information that Sander seeks clearly does not relate to a trial or adjudication, and he therefore is not entitled to it based on this theory.
Sander also claims that he is entitled to the data as judicial records. He argues that there is a broad, general right to access of judicial records. While the definition of judicial records is in fact broad, even more so than the common law right to access, it still does not encompass the type of information that Sander seeks.
Another avenue for access asserted was Proposition 59, the California Public Records Act, which could be a potential basis on which Sander is entitled to the information. He argues that the voters’ intent was to include every writing of a public official, even if it was simply in the possession of an official and not actually written by an official. The court, though, did not find his evidence of that intent sufficient, and found that the plain language of the Proposition would not include Bar applicants’ personal information. While the Act expanded public access, it is limited to meetings of public bodies and writings of public officials. Information collected by officials regarding private individuals does not fall under either category. Thus, Sander cannot gain access to these records under Proposition 59.
The court could now rule that based on neither the common law right of access, the right of access to judicial records, nor Proposition 59, Sander did not have a right to this information. The countervailing policy that we support is the privacy rights of all applicants who gave this information with the understanding that it would not be released to the public in any form. While we expect Sander to appeal this decision, EJS commends the court on recognizing and honoring the privacy of California Bar exam applicants.
Feb. 11 Briefing: Sharon Browne Nomination to Legal Services Corp & Status of Judicial Nominations
Join the Alliance for Justice for a breakfast briefing, “Sharon Browne’s Nomination to the Legal Services Corporation and the Status of Judicial Nominations During the Obama Administration,” on Thursday, February 11, from 10 a.m. to 11 a.m. in the EJS offices, 260 California St, 7th Floor, San Francisco.
Join us for a light continental breakfast and to learn more about how your voice can be heard. This event is free, but space is limited. Registration is required here.
On December 17, 2009, President Obama nominated Sharon Browne, a senior attorney at the Pacific Legal Foundation (“PLF”), to serve on the Legal Services Corporation (“LSC”) Board of Directors. Browne’s decades-long legal efforts to undo our nation’s progress in preserving social justice and equality are at odds with the mission of the Legal Services Corporation.
Browne has long advocated for the narrow application of civil rights laws geared toward creating a more just and equitable society. She made her name through her work on California’s Proposition 209, a ballot initiative that, upon its approval in 1996, prohibited the state from considering past discrimination “of any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.”
Browne has also alleged that Section 5 of the Voting Rights Act, one of our nation’s most cherished civil rights laws protecting minorities against disenfranchisement, is illegal. Moreover, Browne has demonstrated an ingrained hostility to immigrants’ rights, championing California’s Proposition 227, which banned bilingual education in public schools, and Proposition 187, which prohibited undocumented immigrants from accessing California’s social services, health care, and public education systems.
As of February 2nd, President Obama has nominated 39 judges and had only 15 of them confirmed. At a similar point in his presidency, President Bush had nominated 89 judges and had 30 of them confirmed. President Bush doubled President Obama’s nomination and confirmation rate despite facing a Democratic-controlled Senate for most of the time period. This disparity is stark and must be quickly addressed.
Coalition Urges Congress Not to Confirm Sharon Browne to Legal Services Corporation Board
UPDATE2: New posts on Huffington Post and Think Progress.
UPDATE: Bob Egelko of the San Francisco Chronicle covers the opposition to Browne in a Feb. 3, 2010, article and join us for a Feb. 11 briefing by Alliance for Justice on the Browne nomination.
A coalition of more than seventy civil rights, women’s rights, consumer, fair housing and legal organizations – including the Equal Justice Society – this week sent a letter to Congress urging the Senate Health, Education, Labor, and Pensions (“HELP”) Committee to reject the nomination of Sharon Browne to the Board of Directors of the Legal Services Corporation (“LSC”).
“Sharon Browne’s nomination is highly troubling because she has spent her entire career advocating against the very constituencies the Legal Services Corporation serves, said Nan Aron, Alliance for Justice. “After extensively reviewing her record, I have seen nothing to indicate that she is committed to supporting women, people of color, or the poor – the very people LSC was created to support.”
When creating the LSC, Congress established that members of the legal services board should be committed to the development of legal assistance for the poor and supportive of the principal that this population have access to adequate and effective legal services.
Eva Paterson of the Equal Justice Society indicated, “At a time when inadequate funding means that legal services turns away nearly half of those who seek its help, LSC needs leadership from those dedicated to its core mission: serving society’s neediest.”
“Sharon Browne’s nomination defies the basic criteria that Congress established in identifying LSC board members,” continued Paterson. “She would not contribute to making the LSC board representative of those who provide, use, and support legal services. She is not committed to keeping politics out of the LSC’s work. And, her track record reveals a long history of political efforts against the LSC’s basic mission of providing equal justice for the poor.”
“AFJ and the more than 70 organizations who have signed onto this letter urge Congress and the HELP committee to reject Browne’s nomination and ask that another nominee – with a personal and professional commitment to providing equal justice for the poor – be identified,” concluded Nan Aron.
Thomas A. Saenz, Counsel to Los Angeles Mayor, Named MALDEF President and General Counsel
The Mexican American Legal Defense and Educational Fund (MALDEF) today announced Thomas A. Saenz, Counsel to Los Angeles Mayor Antonio Villaraigosa, as its new President and General Counsel. Saenz will join MALDEF in mid-August.
(Tom has been an extraordinary ally and supporter of EJS for many years. We congratulate him and wish him much success in returning to MALDEF.)
Since August 2005, Saenz has served as Counsel to Mayor Villaraigosa and as a member of the Mayor’s four-person Executive team. Saenz has helped to lead the Mayor’s legislative effort to change the governance of Los Angeles Unified School District (LAUSD) in order to secure a quality education for all students in Los Angeles and has recently served as the Mayor’s lead liaison on labor negotiations as the City strives in partnership with workers to address its serious financial situation.
“We could not ask for a better civil rights leader than Thomas Saenz to take the helm of MALDEF at this critical time,” said Patricia A. Madrid, Chairman of the MALDEF Board of Directors and former New Mexico Attorney General. “The Latino community is currently facing a drastic rise in hate crimes and witnessing an explosive rebirth of extremist anti-immigrant rhetoric and measures that adversely affect all Latinos. A highly respected attorney and community leader, Thomas brings a wealth of legal expertise and dedication to civil rights causes that fundamentally define the future of Latinos. We are looking forward to a great future under his leadership as we work together to advance the mission of MALDEF,” Madrid added.
“Tom Saenz has been a trusted advisor who understands the importance of public service and working on behalf of those in need,” said Los Angeles Mayor Antonio Villaraigosa. “His zealous leadership, legal prowess and counsel have helped diversify our body of City commissioners, provide living wages for our City’s workers, and demand a quality education for every child in Los Angeles. I thank Tom for his devoted service to the City of Los Angeles and wish him all the best in his new endeavor. MALDEF is not only inheriting a brilliant legal mind, but also a passionate and committed champion of civil rights.”
Saenz had previously served as MALDEF’s lead counsel for 12 years. During that time he successfully challenged California’s unconstitutional Proposition 187 and led numerous civil rights cases in the areas of immigrants’ rights, education, employment, and voting rights. Saenz achieved several victories against ordinances unlawfully restricting the rights of day laborers, served as lead counsel in the 2001 challenge to California’s congressional redistricting, and initiated the employment discrimination lawsuit resulting in a $50 million settlement with Abercrombie and Fitch. Saenz was also the lead drafter of the Amicus brief on behalf of Latino organizations supporting affirmative action in the Supreme Court case, Grutter v. Bollinger.
Saenz said he is looking forward to the new challenges and opportunities. “Throughout its 40-year history, MALDEF has been a national leader on all legal and policy issues affecting the Latino community. I look forward to leading a very strong MALDEF staff in successfully addressing the next set of challenges facing what is now the largest minority group in this country, a group whose progress is essential to our nation’s success,” Saenz stated.
Prior to joining MALDEF early in his legal career, Saenz clerked at both the federal district court and the U.S. Court of Appeals for the Ninth Circuit after graduating summa cum laude from Yale University and receiving his Juris Doctor from Yale Law School.
“Tom Saenz is an outstanding choice, he represents an extensive and celebrated record as a champion for civil rights and social justice. Throughout his career as Chief Counsel to Mayor Villaraigosa and as legal counsel for MALDEF, Saenz has proven to be a cornerstone for legal activism in our country,” stated Wade Henderson, President and CEO, Leadership Conference on Civil Rights (LCCR). “I can think of no better leader to take on the challenge of continuing the Mexican American Legal Defense and Educational Fund’s nationwide movement for equality and justice.”
“MALDEF’s work is now more important than ever before. Tom has spent his professional life serving as a champion for civil rights and social justice. His legal career has been devoted to protecting the people’s civil and constitutional rights. His lawsuits overturned local ordinances banning day laborers from seeking employment and he will lead the fight to ensure that the promises of justice and equality are a reality for all Americans,” stated Dolores Huerta, Co-founder of United Farm Workers of America and President of the Dolores Huerta Foundation.
Saenz has an extensive and celebrated background.
At the beginning of August 2005, Thomas A. Saenz became Counsel to the Mayor of the City of Los Angeles, where he serves as a member of Mayor Antonio Villaraigosa’s executive team and provides legal and policy advice to the mayor. Previously, Saenz practiced civil rights litigation at the Mexican American Legal Defense and Educational Fund (MALDEF), a national organization dedicated to securing and promoting the civil rights of Latinos in the United States, where he served as Vice President of Litigation. As Vice President, Saenz oversaw MALDEF’s efforts nationwide to pursue civil rights litigation in the areas of education, employment, political access, immigrants’ rights, and public resource equity.
Saenz was born and raised in southern California. He graduated summa cum laude from Yale University, and he received his law degree from Yale Law School. Saenz then served as a law clerk to the Honorable Harry L. Hupp of the U.S. District Court for the Central District of California, and to the Honorable Stephen Reinhardt of the U.S. Court of Appeals for the Ninth Circuit.
Saenz joined MALDEF as a staff attorney in 1993; he became Los Angeles Regional Counsel in 1996, National Senior Counsel in 2000, and Vice President of Litigation in 2001. At MALDEF, Saenz served as lead counsel in numerous civil rights cases, involving such issues as educational equity, employment discrimination, immigrants’ rights, day laborer rights, and voting rights. For example, he served as MALDEF’s lead counsel in successfully challenging California’s Proposition 187 in court; as such, he presented extensive written and oral arguments on numerous occasions in three different cases involving the anti-immigrant initiative. He was also MALDEF’s lead counsel in two court challenges to Proposition 227, the English-only education initiative that voters enacted in 1998, and he successfully challenged several ordinances barring day laborers from soliciting employment. Saenz also served as MALDEF’s lead counsel in challenging California’s congressional redistricting in 2001.
For eight years, Saenz taught “Civil Rights Litigation” in the spring semester as an adjunct lecturer at the U.S.C. Law School. Saenz currently serves on the Los Angeles County Board of Education, and he previously served on the Los Angeles County Commission on Human Relations.
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.