EJS Legal Strategy

NEWS: Civil Rights Groups Join Equal Justice Society in Brief Urging
Court to Strike Down Anti-Equality Law in Michigan

Nov.3, 2011: The Equal Justice Society and more than a dozen other civil rights organizations this week filed an amicus brief (download PDF) in the U.S. Court of Appeals for the Sixth Circuit, urging the court to strike down Michigan’s anti-equality Proposal 2 as unconstitutional. In its brief, EJS argues that Proposal 2 violates the Equal Protection Clause of the 14th Amendment of the Constitution by creating procedural barriers for people of color.  (continue)

OVERVIEW

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.

We have developed a theory of changing the law that relies upon lived experiences with issues of race and racial discrimination and well-researched scientific evidence regarding the process and operation of discrimination at individual, institutional and structural levels. The law should reflect these real-life experiences and serve to counter discrimination and substantively address its harmful effects. With the support of our organizational allies, we have identified core legal approaches with short-term and long-term targets, including:

  • Full Frontal Approach: short term – consistently monitor and intervene in federal discrimination cases where the need to prove “intent” is at issue and implement a concerted amicus effort in the circuit courts and the U.S. Supreme Court; long term – develop and file test cases to dismantle the existing “intent” doctrine as established by the 1976 Supreme Court case Washington v. Davis;
  • Incremental Approach: short term – expand areas of law and public policy where stereotyping is already held to be illegal (since stereotyping is widely understood to operate on both conscious and subconscious level with similar effects regardless of intentionality); long term – use stereotyping foothold as a launch pad to develop novel legal arguments detailing the wayward development of “intent”, the role of stare decisis, and the potential for policy reforms; and
  • Legal Actors Approach: short term – support, conduct and participate in lawyer, judicial, and legislative education sessions on existing social science and persisting structural racism to seed content for legal arguments, opinions and policies; long term – vet alternative tests to “intent”.

Our efforts to revitalize Fourteenth Amendment equal protection jurisprudence largely focus on redefining the legal understanding of discrimination and how it operates, which requires overturning the Supreme Court decision in Washington v. Davis.

Learn more about our work on:

Redefining Discrimination: We strive to redefine discrimination and promote equal opportunity through legal, legislative, and policy advocacy and also through developing the next generation of legal advocates. (more)

Equal Opportunity: EJS has long been engaged in efforts to promote equal opportunity for women and people of color, both locally and across the country. Dating back to Ward Connerly’s 1996 campaign to abolish affirmative action in California, EJS President Eva Paterson has been an outspoken proponent of affirmative action and the continued need for race and gender conscious policies. (more)

Legal Advocacy: We increase the capacity of attorneys and other legal actors engaged in racial justice advocacy. (more)

Legislative Advocacy: Defending affirmative action nationally, EJS co-facilitated a series of trainings supporting state-level campaigns. (more)

Policy Advocacy: We are developing a progressive vision of the U.S. Constitution that will guide cross-silo litigation and policy advocacy strategies, inform considerations of judicial nominees, and support public education campaigns in various issue areas. (more)

Scholar Advocates: Our Scholar-Advocate program develops and positions law students and recent law school graduates to become activists who craft and implement progressive law and policy. (more)