From our archive

The Administration’s proposed 31% budget increase for Ed Dept.’s Office for Civil Rights is ill-advised

Valerie Richardson writes in the Washington Times of our recent letter to Congressional leaders:

“Two federal civil-rights commissioners are calling on Congress to nix a proposed budget increase for the Department of Education’s Office for Civil Rights, charging it with enacting overreaching and even unlawful policies on school discipline, sexual harassment and bullying.

‘In our study of all three topics, we have noticed a disturbing pattern of disregard for the rule of law at OCR,’ said U.S. Commission on Civil Rights members Gail Heriot and Peter Kirsanow in a Feb. 26 letter to House and Senate Appropriations Committee leaders.

In the letter, which was released this week, the commissioners argue that the office’s proposed 31 percent budget increase should be rejected.

‘That office has all-too-often been willing to define perfectly legal conduct as unlawful,’ the letter said. ‘Though OCR may claim to be under-funded, its resources are stretched thin largely because it has so often chosen to address violations it has made up out of thin air. Increasing OCR’s budget would in effect reward the agency for frequently over-stepping the law.’

The commissioners, speaking for themselves and not the entire commission, cite the OCR’s efforts to expand federal authority on three fronts: school bullying at the K-12 level; school discipline that has a ‘disparate impact’ on minority students; and campus sexual harassment.”

Commission on Civil Rights issues statement on Ferguson grand jury proceedings

Recently, the U.S. Commission on Civil Rights issued the following statement on the Ferguson, Missouri’s decision not to indict Officer Darren Wilson for the death of Michael Brown:

WASHINGTON, Nov. 25, 2014 /PRNewswire-USNewswire/ — The U.S. Commission on Civil Rights by bipartisan majority vote today issued the following statement upon the completion of the work of the grand jury and the State of Missouri’s decision not to indict Officer Darren Wilson for the death of teenager Michael Brown.

We understand the disappointment and anger that many in Ferguson feel with regard to the decision of the grand jury not to return an indictment in the shooting death of Michael Brown. But our nation’s commitment to the rule of law requires that the decision must be afforded our respect and we must abide by the decision. However, this does not mean that inquiries into the deeper issues of inequality and racial disparities raised by members of the African American community in St. Louis County and others in the aftermath of the shooting should end.

Conditions which deny individuals or groups equal protection under the law and which deny valuable opportunities for improvement are not the American way. The Commission applauds the citizens’ work to educate the country about the tensions between communities and law enforcement that have long caused great loss. Although the grand jury has completed its work, the Commission encourages the continued work of citizens and community organizations to address these issues. We also note the ongoing, in-depth investigation of this matter by the Department of Justice (DOJ) regarding the issues of civil rights and police use of force is continuing.  The DOJ investigation has been endorsed by this Commission.

As President Obama remarked, “In too many communities around the country, a gulf of mistrust exists between local residents and law enforcement.  In too many communities, too many young men of color are left behind and seen only as objects of fear.” The Commission has long championed reforms that would combat these tensions and implement more just and effective policing.  In its 1981 report Guarding the Guardians and the 2000 update Revisiting Guarding the Guardians, the Commission raised concerns about law enforcement practices that deny equal protection and opportunity under the law to minority communities. Those members called on lawmakers and civic leaders to enact reforms that increase police accountability and reduce incidents of violence or injustice. We now call on lawmakers to revisit the themes in those 1981 and 2000 reports to review the need for independent community oversight of their law enforcement entities.

Just a few days ago, the Commission’s Advisory Committee in Missouri voted to investigate the issue of interactions in Missouri between law enforcement and communities of color, particularly those interactions that involve the use of force. The Committee will take testimony from police, government officials, community members and experts on community and police interactions.  It intends to hear directly from Missouri residents who have been affected by police use of excessive force.  It will also examine current federal legislation related to discrimination on the basis of race in the administration of justice and make recommendations regarding their findings.

We fully endorse the Missouri Advisory Committee’s approach.  We especially support the notion of Missourians looking into the situation within their own communities. There is nothing more valuable than neighbors seeking to improve their way of life and the way of life of their fellow citizens and communities. We look forward to the results of their investigation. The Commission and its staff will do our part to support them as they proceed.

But while we feel some sympathy with those who feel disappointment with the grand jury decision, we cannot condone the violence and looting that has occurred. At the same time, the actions of a few individuals also cannot override the constitutional rights of citizens to peaceable assembly and protest in the days ahead. We urge restraint by all parties, law enforcement and protesters. We wish to express our condolences to the family of Michael Brown. 

The U.S. Commission on Civil Rights is an independent, bipartisan agency charged with advising the President and Congress on civil rights matters and issuing an annual federal civil rights enforcement report. For information about Commission’s reports and meetings, visit

Disclosure: I work at the U.S. Commission on Civil Rights as a special assistant and counsel to Gail Heriot, who was one of the commissioners who voted in favor of issuing this statement. The New American Civil Rights Project website is not affiliated with the Commission, and the views presented on it are not necessarily those of the Commission.

School Discipline Disparate Impact Juggernaut Rolls On, This Time Stopping in Minneapolis

The Obama Department of Education’s crusade against racial disparities in discipline – whether resulting from racial bias or not — marches on. Most recently, the Minneapolis Public Schools entered into an agreement with Education’s Office for Civil Rights promising to address racial gaps in student discipline rates.

“MPS must aggressively reduce the disproportionality between black and brown students and their white peers every year for the next four years,” Minneapolis superintendent Bernedeia Johnson said in a press release. “This will begin with a 25 percent reduction in disproportionality by the end of this school year; 50 percent by 2016; 75 percent by 2017; and 100 percent by 2018.”

There are several problems with Minneapolis’s approach. First, one federal appellate court has ruled that disciplinary targets or quotas similar to Minneapolis’s violate the Constitution’s Equal Protection Clause. Second, OCR purported to be investigating Minneapolis’s compliance with Title VI of the Civil Rights Act of 1964. But the Supreme Court held in Alexander v. Sandoval that Title VI does not create a private cause of action to enforce disparate impact regulations. Although the holding of Sandoval turned on the private cause of action question and not on the validity of disparate impact regulations themselves, many knowledgeable observers have understood a majority of the Sandoval Court to take the position that Title VI does not authorize disparate impact regulations. This question is discussed in greater depth in this U.S. Commission on Civil Rights report in then-Commissioner Todd Gaziano’s essay at 87-89 and in a public comment submitted by Roger Clegg and Edward Blum at 135-138.

For additional comments on Minneapolis’s case, see this excellent blog post by former Education Department lawyer Hans Bader at OpenMarket, an editorial at Investors Business Daily, Robby Soave at Reason magazine, and two Corner posts by Roger Clegg at National Review Online. The Minneapolis Star Tribune and MPR News. Some of these stories note comments from Superintendent Johnson stating that her leadership would review all suspensions of black or brown students involving non-violent offenses; Johnson later clarified her statements to indicate that her team would not be reviewing suspensions prospectively, but only retrospectively and with the goal of better understanding the circumstances around suspensions. Although I am glad to learn that Minneapolis’s policy is not quite as blatantly unconstitutional as it looked at first, I remain troubled that the constitutionally questionable discipline quotas still apparently stand.




Fisher v. Texas: Headed back to the Supreme Court

Today, the Fifth Circuit Court of Appeals voted to deny Abigail Fisher’s petition for rehearing en banc in the Fisher v. Texas affirmative action case.  That vote leaves in place a three-judge panel ruling upholding the use of racial preferences in admissions at the University of Texas-Austin. That decision came after the Supreme Court sent the case back to the lower court for a second look.

Ten Fifth Circuit judges (Chief Judge Stewart and Judges Jolly, Davis, Dennis, Prado, Southwick, Haynes, Graves, Higginson, and Costa) voted against rehearing; five (Jones, Smith, Clement, Owen, and Elrod) voted in favor.

Judge Garza filed a brief dissent from the denial of rehearing, which mostly referred to his dissent from the panel opinion. He said, “Clearly the panel majority dutifully bows to Fisher ’s requirements, but then fails to conduct the strict scrutiny analysis it requires, thus returning to the deferential models of Regents of University of California v. Bakke , 438 U.S. 265 (1978), and Grutter v. Bollinger , 539 U.S. 306 (2003). In my dissent, I explain and analyze with some detail the University’s position, in which it fails to furnish any articulated meaning for its stated goal of ‘critical mass.’.. By not providing a clear definition of that end goal, the University eliminates any chance that this court could conduct the “most rigid scrutiny” of its race-conscious admissions program…. Analytically, Fisher requires that the University’s stated goal not be confined to the assessment of the University’s decision to pursue diversity, but also reach the narrow tailoring analysis. “The University must prove that the means chosen by the University to attain diversity are narrowly tailored to that goal.”

The Project on Fair Representation, which represents Fisher, has pledged to take the case back to the Supreme Court. Edward Blum, president of the Project on Fair Representation, commented that  “Abby Fisher and her family are disappointed with the court’s denial for a rehearing, but remember that they have been in this posture before. This case will be appealed back to the US Supreme Court… The justices had to correct the Fifth Circuit’s errors the first time Abby Fisher took her case to the high court and we look forward to making our arguments to them once again.”

When Fisher went up to the Supreme Court the first time, many court watchers were puzzled that it took the Court months to issue a short 7-1 opinion that merely sent the case back to the lower court. A new book by Joan Biskupic, summarized here by journalist Nina Totenberg (and see also this commentary by law professor Josh Blackman) some insight into what may have really happened: Justice Sonia Sotomayor “was furious about where the majority of her colleagues were and what they were going to do in terms of rolling back affirmative action. So she writes this dissent, circulated privately, and it gets the attention of her colleagues ‘who were’ skittish’ about the case to begin with. Behind the scenes, inside the court, writes Biskupic, tense negotiations ensued for nine months, with individual justices assuming critical roles. ‘Among them, Sotomayor as agitator, Stephen Breyer as broker and Kennedy as compromiser.” In the end, the conservatives backed away; the University of Texas affirmative action policy was allowed to stand, at least for the near future; “and there is no public sign of what Sotomayor had wrought.’ If this is true, it will be harder to fashion such a compromise a second time around, meaning that the Court may be forced to confront the constitutionality of Texas’s policy head-on.


A “War on Youth?”: Federalist Society convenes conference on “Millennials, Equity, and the Rule of Law”

Although people who aren’t employment lawyers often don’t think of age discrimination as a civil rights issue, there is nonetheless a comprehensive scheme of federal law protecting workers over 40 from discrimination based on age. Some commentators have called for an expansion of that statutory scheme (see the transcript of this U.S. Commission on Civil Rights briefing on the Age Discrimination in Employment Act.)

Nobody is in favor of bias and invidious age discrimination directed against individuals over the age of 40. Yet a spate of articles from across the political spectrum suggests that it is actually the problems of young Americans that deserve increased attention from policymakers.  Statistics suggest that younger generations are burdened with more educational debt than past generations have been. They are unemployed or underemployed at higher rates than older Americans.  Yet they are also disproportionately responsible for covering the costs of health care for older Americans.

How might employment law work against the interests of young Americans?  Laws regulating employment can serve the commendable purposes of protecting workers from discrimination based on characteristics that are not related to job performance. But these laws also increase the risk that anyone who is fired or demoted will bring costly lawsuits against the employer, meaning that employers may be more nervous about hiring new employees because the cost of a bad hire becomes prohibitively high. These laws thus may make it more difficult for younger workers to find their first jobs. It is also noteworthy that federal age discrimination laws prohibiting employers from discriminating against older workers and limit employers’ use of practices that have an adverse effect on workers over the age of 40. But there is no equivalent protection for age discrimination for younger workers (in contrast to most other anti-discrimination laws, which are symmetrical.)

Increasingly, it appears that employers have attempted to avoid the problem of getting stuck with the wrong employee by first requiring many entry-level employees to work as interns for little or no pay. These practices have long been common in highly desirable fields, such as fashion, entertainment, or the higher levels of politics. But news stories suggest that they are increasingly being employed at less glamorous workplaces.  In any case, the spread of low-paid and unpaid internships will make it increasingly difficult for younger workers from less well-off backgrounds to break into many careers. There have been calls for the federal Department of Labor and its state and local equivalents to use the minimum wage laws aggressively to crack down on unpaid internship programs.  But getting the opportunity to prove oneself to an employer by working for free may be better than having no opportunity to prove oneself at all, meaning that such calls may leave prospective junior employees still worse off.

The Federalist Society will address some of these issues at its National Lawyers Conference this year, to be held at the Mayflower Hotel in Washington, DC from November 13 to 15. The showcase panels addressing the general conference theme include:



Showcase Panel I: Youth, Employment, and the Law
9:30 a.m. – 11:15 a.m.
Grand Ballroom

This panel will examine intergenerational equity issues raised by employment discrimination laws, including those protecting the elderly from discrimination.  Those laws, minimum wage laws, laws favoring unionization, and laws countering arbitrary dismissal have obvious appeal.  But many of those very laws greatly raise the costs to business of entry-level hiring.  One consequence may be that many young people are only able to enter the work force as interns or fellows.  This may be especially true for minorities.  Are these costs worth the benefits?  Is there some middle ground?


Showcase Panel II: Intergenerational Equity and Social Security, Medicare, Obamacare, and Pensions
10:30 a.m. – 12:00 noon
Grand Ballroom

Several major federal programs directly tax the young to provide benefits to the elderly.  This is a main feature of the Affordable Care Act, the Social Security System as it currently works, and of the laws guaranteeing pensions.  In addition, the national debt raises intergenerational equity issues.  What obligations do these debts impose on the young?  Are they all of a piece or are the answers different in each case?  Is it true that this generation is likely to be poorer than the previous one?  What role does our legal system play in this?  How will the law address pensions that contribute to bankrupting cities or states?  What is the nature of the Social Security contract?

  • Hon. Christopher C. DeMuth, Distinguished Fellow, Hudson Institute, Inc., and former Administrator for Information and Regulatory Affairs, U.S. Office of Management and Budget
  • Prof. John O. McGinnis, George C. Dix Professor in Constitutional Law, Northwestern University School of Law
  • Prof. David A. Weisbach, Walter J. Blum Professor of Law and Senior Fellow, The Computation Institute of the University of Chicago and Argonne National Laboratory
  • Moderator: Hon. Frank H. Easterbrook, U.S. Court of Appeals, Seventh Circuit


Showcase Panel III: Higher Education: Run for the Benefit of Students or Faculty or Administrators?
9:00 a.m. – 10:30 a.m.
Grand Ballroom

Success in today’s global economy virtually requires a college or post graduate degree, but colleges and law schools have raised tuition enormously.  The government subsidizes students to take huge loans to pay for college and law schools, loans which inflict an increasing burden on students, including law students in a troubled economy.  Do these loans pay as much for faculty research and administrators as for direct student education?  Are faculties producing research that justifies these costs?  Are students getting a good deal now?  Could or will on line education provide students with similar education at a fraction of the cost?  Is it time to ask some hard questions about higher education?  Does education policy benefit average and below average students or does it merely benefit the top of the class?  This panel will focus to a significant degree on law schools.

Showcase Panel IV: ROUNDTABLE: Is the Future of the American Dream Bright?
2:15 p.m. – 4:00 p.m.
State Room

America has always been a forward-looking country.  What is the future for our young – for the best and brightest – and for everyone else?  Does the American Dream still apply?  Does our current legal and regulatory system offer the young prospects for a more just and better society, or for an overregulated society that stifles enterprise and compromises individual liberty?  How do we balance these competing concerns and what role can and should our legal system play?  Finally, there has been much discussion recently about income inequality.  Are efforts to address that through law or taxes beneficial or harmful to the young and their vision of a better society?

  • Hon. Rachel L. Brand, Member, Privacy and Civil Liberties Oversight Board; Senior Advisor to the U.S. Chamber Litigation Center, United States Chamber of Commerce; and former Assistant U.S. Attorney General for Legal Policy United States Department of Justice
  • Hon. Lanny J. Davis, Principal, Lanny J. Davis & Associates, former Special Counsel to the President, and former Member, Privacy and Civil Liberties Oversight Board
  • Prof. Neal K. Katyal, Paul and Patricia Saunders Professor of National Security Law and Director, Center on National Security and the Law, Georgetown University Law Center, Partner, HoganLovells US LLP, and former Acting U.S. Solicitor General
  • Prof. Randall L. Kennedy, Michael R. Klein Professor of Law, Harvard University Law School
  • Dr. Charles A. Murray, W.H. Brady Scholar, American Enterprise Institute
  • Moderator: Ms. Karlyn Bowman, Senior Fellow and Research Coordinator, American Enterprise Institute

Interested readers are encouraged to attend!

Accomplished Yale Univ. scholar-athlete pens column on his alma mater’s Kafka-esque sexual assault policies

Patrick Witt, a student at Harvard Law School, has published an op-ed detailing his chilling experience with being accused of sexual assault as an undergraduate at Yale University. Regular readers of the New American Civil Rights Project are likely familiar with the due process concerns that have been raised regarding the Department of Education’s sexual assault guidance. Witt’s story is a powerful reminder of the harm that befalls innocent individuals who get caught up in such kangaroo court proceedings.

Witt writes,  “I am a first-year student at Harvard Law School, and I join the 28 members of our faculty who recently protested the university’s adoption of a new and expansive sexual harassment policy. While I agree wholeheartedly that universities have a moral as well as a legal obligation to provide their students with learning environments free of sexual harassment, I echo the faculty’s concern that this particular policy “will do more harm than good,” and I urge the university to reconsider its approach to addressing the problem.

If considered only in the abstract, many might wonder how a policy with such a laudable aim could draw any serious objections. And I might well have been among them — were it not for the fact that such a policy nearly ruined my life.

Now, in the hopes that my painful and humiliating experience might yet produce some good by improving the final measures adopted, I offer my own story as a real-life example of how this well-intended policy can produce disastrous consequences if it remains detached from the most basic elements of fairness and due process that form the foundation of our legal system.

Harvard’s new policies are substantially similar to those already in effect at Yale, my alma mater. While an undergraduate there, my ex-girlfriend filed an informal complaint against me with the then-newly-created University-Wide Committee on Sexual Misconduct. The committee summoned me to appear and styled the meeting as a form of mediation. Its chairman, a professor with no prior experience handling dispute resolution, told me that I could have a faculty adviser present but no lawyer, and instructed me to avoid my accuser, who, by that point, I had neither seen nor spoken to in weeks. The committee imposed an ‘expectation of confidentiality’ on me so as to prevent any form of ‘retaliation’ against my accuser.

I would say more about what the accusation itself entailed if indeed I had such information. Under the informal complaint process, specific accusations are not disclosed to the accused, no fact-finding takes place, and no record is taken of the alleged misconduct. For the committee to issue an informal complaint, an accuser need only bring an accusation that, if substantiated, would constitute a violation of university policy concerning sexual misconduct. The informal “process” begins and ends at the point of accusation; the truth of the claim is immaterial.

When I demanded that fact-finding be done so that I could clear my name, I was told, ‘There’s nothing to clear your name of.’ When I then requested that a formal complaint be lodged against me — a process that does involve investigation into the facts — I was told that such a course of action was impossible for me to initiate. At any time, however, my accuser retained the right to raise the complaint to a formal level. No matter, the Committee reassured me, the informal complaint did not constitute a disciplinary proceeding and nothing would be attached to my official record at Yale.”

Despite the lack of evidence – or indeed effort to uncover any evidence – against Witt, he relates that he had a full-time job offer rescinded from his summer employer and that the Rhodes Trust suspended him from consideration for one of its prestigious scholarships. Although previously told that he was a likely NFL draft pick, no teams would touch him after the sexual assault accusation was made public. “I cannot begin to describe how exasperatingly difficult it has been to try to explain to people what an informal complaint is and how there was never any evidence — nor any effort made to discover evidence — to substantiate the claim made by my accuser,” Witt wrote. “My summer employer and the NFL certainly couldn’t understand it, and the media flat out didn’t care — the words ‘informal complaint’ were all that was needed to establish my guilt in their eyes.”

You can read the rest here.

At the liberal-leaning online magazine Slate, columnist and recent Yale graduate Katy Waldman indicates that while Witt may be no angel in spite of his outstanding athletic and academic accomplishments, his central argument is still basically sound: “He is right that “by giving to unsubstantiated accusations the confoundingly difficult-to-define title of ‘informal complaint,’ ” Yale plunged him under a cloud of suspicion he couldn’t dispel. He is right that “denying accused students an opportunity to clear their names” is unjust, “detached from the most basic elements of fairness and due process.” Everything Witt says about the power of these sub rosa systems to humiliate and handicap possibly innocent young men is correct.”


ACLU complaint about South Orange-Maplewood NJ discipline and academic tracking could be test case for new applications of disparate impact theory

Recently, the ACLU filed a complaint with the Department of Education’s Office for Civil Rights (“OCR”) about the South Orange-Maplewood, New Jersey district’s discipline and academic tracking policies. OCR has issued high-profile guidances indicating that school districts with racially disproportionate discipline rates and advanced class enrollment rates may violate Title VI’s ban on racial discrimination, even when these differences were not caused by intentional racial discrimination, because of their “disparate impact.” A local education blogger observes that the ACLU may be primarily “interested in using SOMW [South Orange-Maplewood] as a test case for this new application of disparate impact theory.”

Some advocates of disparate impact liability claim that it is necessary to smoke out cases of intentional race discrimination that would otherwise go well-hidden. Yet the ACLU complaint is remarkably forthright in conceding that neither Maplewood’s disciplinary nor academic policies are motivated by racism. Rather, it is concerned only about the “effects” of such policies.

The complaint asks that the district do away with out-of-school suspensions. Although I can understand the argument that these punishments do more harm than good by keeping students out of school and thus causing them to miss out on valuable learning, individual districts ought to be able to weigh the pros and cons of such policies without the threat of a federal investigation. The complaint cites some social science studies suggesting that racial disparities in out-of-school suspensions stem from race discrimination. But, as discussed in footnote 9 of Gail Heriot’s statement for this U.S. Commission on Civil Rights report, many of these studies have significant flaws. A study published since the Commission’s report also indicates that past misbehavior, not hidden racial discrimination, is a better explanation for racial discipline gaps.  The complaint’s proposed alternative disciplinary system– Positive Behavior Intervention Supports, or PBIS —  has its drawbacks (see Heriot dissent, n 19 at page 106, noting that the implementation of PBIS by the Allentown, Pennsylvania school district led to a “culture of defiance” where “[bathrooms are unsafe and trashed, detentions get ignored, study halls are a zoo, and school is dismissed early to quell a potential gang fight with bricks and bats.”

The complaint also asks that the district “eliminate levelling” – that is, put all high school students in Advanced Placement classes (currently the highest academic track) and provide extra support for those students likely to struggle in such a program and also extra enrichment for gifted students who will find the program too easy.

Although sometimes condemned for reinforcing racial and class inequities, there is much good empirical evidence that tracking and ability grouping work, as summarized by this website (which takes the inequity claims seriously.) See also. At the college level, the “mismatch” research also suggests that students learn less if they are placed in courses that are too challenging than they would in classes for which their preparation is a better fit. It is likely that the same principles apply to students placed in college-level courses as high school students when they are not well-prepared for them.

The complaint tells the stories of several individual students who appear to have been treated badly by Maplewood-South Orange (though the reader of course isn’t told the district’s side of the story.) But these stories don’t really appear to be discrimination against African-Americans; one appears to be a story of inadequate response to a disability, and another seems a tale of discrimination against a scholar-athletes who wants to juggle both a demanding academic and athletic schedule. Finally, in the latter case, the student’s Algebra II teacher declined to stay after school to help her because “she was not required to stay after school past 3:28 p.m. due to the teachers’ contract. Perhaps this story is as more a commentary on public employee unionization than it is on racism?

This complaint illustrates the breadth of modern disparate impact theory, under which virtually any educational practice with an adverse effect on one particular group is vulnerable to challenge in court. Because just about any educational policy can have a disparate impact on some group — remember that disparate impact also applies to national origin, meaning that Norweigan Americans can bring suit if they are adversely affected relative to Ukrainian Americans — just about any choice that a local school district makes can be second-guessed by the federal OCR.

It remains to be seen whether OCR will take up the ACLU’s open invitation. If they do, the court hearing the case may have to make a decision about the constitutionality of disparate impact.

Decision in American Insurance Association v. HUD: Fair Housing Act Does Not Support Disparate Impact Claims

HUD suffered a blow today when Judge Richard Leon of the District of D.C. ruled that the Fair Housing Act (FHA) only permits claims of discrimination based on disparate treatment. Therefore, HUD exceeded its rulemaking authority when it promulgated a rule, “Implementation of the Fair Housing Act’s Discriminatory Effects Standard,” in February 2013 providing for claims of discrimination based on disparate impact. Judge Leon granted the plaintiffs’ motion for summary judgment and vacated the rule.

Until February 2013, HUD had never promulgated a rule that purported to enshrine disparate impact as a cognizable claim under the FHA and instead relied on precedent. As Judge Leon notes in his opinion, HUD received a scare in 2011 when the Supreme Court granted certiorari in Magner v. Gallagher, which argued that disparate impact claims were not cognizable under the FHA. Although the Court has been prevented from ruling on the question by last-minute settlements in both Magner and Mt. Holly v. Mt. Holly Citizens in Action, one day a FHA case would likely be decided (in fact, the court has a third chance to rule on this issue this very term in Texas Dept. of Housing v. Inclusive Communities Project). And so, hoping that Chevron deference would accomplish what the text of the FHA likely could not, HUD promulgated a rule enshrining disparate impact causes of action under the FHA.

Judge Leon writes, “I must, in the final analysis, determine whether the text of the FHA unambiguously evidences Congress’s intent for [disparate impact] claims to be cognizable under the Act.” (Mem. Op. at 16) He determined that the text of the FHA did not support such an interpretation, and that “only disparate treatment (intentional discrimination) claims are cognizable under the FHA.” (Mem. Op. at 16) The text of the FHA only prohibits disparate treatment, and there is no clear language prohibiting practices that result in “discriminatory effects” or “disparate impact.” For instance Smith v. City of Jackson, Justice Stevens wrote that “the text [of the Age Discrimination in Employment Act] focuses on the effects of the action on the employee rather than the motivation for the action of the employer.” Smith v. City of Jackson, 544 U.S. 228, 236. In contrast, Judge Leon writes, the text of the FHA focuses only on discriminatory actions, not discriminatory effects.

Judge Leon also notes that it is clear Congress did not intend for the FHA to encompass disparate impact claims because it did not amend the statute to do so. (Mem. Op. at 22-26) Congress amended or enacted three major civil rights laws in the late 80s and early 90s. It amended the FHA in 1988, enacted the Americans with Disabilities Act in 1990, and amended Title VII in 1991. Congress provided for disparate impact causes of action in the ADA and the 1991 amendments to Title VII. It made no such change to the FHA. If Congress wants to include disparate impact provisions in a statute, it knows how to do so. It did not do so here, which strongly suggests that it did not want the FHA to include claims based on disparate-impact liability.

The fact that the rule extended disparate impact liability to homeowners insurance also brings the rule into conflict with the McCarran-Ferguson Act. (Mem. Op. at 25-29) The McCarran-Ferguson Act is intended “to ensure the primacy of state law in regard to insurance regulation.” (Mem. Op. at 26) By requiring insurers to collect demographic data on customers, the disparate-impact rule conflicts with a number of state statutes. Judge Leon writes that it is impossible to believe that Congress intended the FHA to trump state insurance regulations. “To the contrary, it is utterly incomprehensible that Congress would intentionally provide for disparate-impact liability against insurers in the FHA, where doing so would require those same insurers to collect and evaluate race-based data, thereby engaging in conduct expressly prohibited by state law.” (Mem. Op. at 29)

How did Chevron deference come into this decision? The portion of the opinion dedicated to Chevron was much shorter than might have been expected because Judge Leon determined, for the reasons detailed above, that the rule failed the first step of the Chevron test. There is no ambiguity as to whether Congress intended the FHA to include disparate-impact liability. It unambiguously intended the FHA to prohibit only disparate treatment. Therefore, there was no need for him to consider whether HUD’s interpretation of the statute was reasonable – he had already determined that HUD’s interpretation was flatly wrong. The disparate impact rule exceeds HUD’s authority and therefore violates the APA. (Mem. Op. at 16-17)

The full text of the opinion is available here:


Did American History’s Wrong Turn Toward Slavery Begin With Bacon’s Rebellion?

I’ve been writing about the Abolition Movement today. It made me think about why the American colonies started down the road toward slavery in the first place. It’s a question I can’t entirely answer, but at least I can shed a tiny bit of light on it. Of course, slavery was common in the world at that point. But there is more than that going on here …

The first thing that popped out to me in tracing the history of slavery in what became the Southern United States is that at no point was a choice made to use African slaves rather than free labor to work the fields. Free labor was not then a viable option–something that is easy to lose sight of. In the mid-seventeenth century, the large plantations that were being established in Virginia’s Tidewater area and the Carolina Low Country were tended mainly by indentured servants from England, Ireland, Scotland and Wales. Chattel slavery is, of course, quite different from indentured servitude, but one can see how the differences might not have been considered overwhelming at the time.

I’ve written before about indentured servants in the recent report of the U.S. Commission on Civil Rights on Human Trafficking. Somewhere between one half and two thirds of all white immigrants to the American colonies from the mid-seventeenth century to the Revolutionary War came as indentured servants–either voluntarily or as convicts. Convicts were only about 10% of the total number of indentured servants.

In Virginia, these seventeenth-century servants might serve three to seven years, and if they were lucky enough to survive the period of their indentures, they would often move further into the interior and establish small farms in the Piedmont areas. Chattel slavery of Africans was being practiced–even in the New England colonies—but it was not yet a major factor.

Life was tough for these indentured servants. But it is important to understand why the institution of indentured servitude filled a very real need at the time (and indeed in some parts of the globe continues to be a risky, but plausible way out for those mired in the worst of circumstances).

Consider, for example, my own situation: I am a law professor. If I ever lose that job, I would be unlikely to find another in the San Diego area where I live, so there is a good chance I would have to move. Fortunately for me, I have a little money in the bank to tide me over and finance my move, whether it is 1000 miles to Dallas or 8000 to Delhi. I am lucky.

My ancestors were not so lucky. They didn’t have money in the bank. Indeed, I can’t be sure they had even heard of a bank. But they had heard of the New World and they wanted to come. The problem of how to finance a long voyage from a land of poverty to a land of opportunity is an old one. The seventeenth century British Isles had a lot of willing workers, but not a lot of work or even food to eat. The American colonies were crying out for them. But the logistics of getting from Point A to Point B only seem easy to us because we are looking at them from a distance of hundreds of years. In reality, it required smart thinking and a willingness to take a risk. Who would pay for their passage? And who would pay for their food during the long passage? Where would they sleep before their first payment of wages? What would they eat? They didn’t have savings. Nor did they have easy access to credit.

One of the most logical ways for aspiring immigrants to get credit was to commit themselves to labor through a written indenture, which could be sold by a labor broker to the highest bidder upon arrival in the New World. Put differently, their best option was to become indentured servants. No Old World bank could take the risk of lending money to these would-be immigrants. There would be no way to assure its repayment once they got to America. The debtor could disappear into the interior, never to be located by the lender again. But while an Old World bank couldn’t take the risk, a seventeenth-century Virginia plantation owner in need of laborers could. In addition to providing room, board and work, he could keep a sharp eye on his investment. His neighbors had a stake in helping him do so, since they had indentured servants too. The system worked imperfectly, but well enough to bring a lot of people to America—many of them desperate refugees from famine and religious wars–who otherwise could not have gotten here.

No one should be under any illusion about the potential for abuse. Stories abound of seventeenth century Britons being kidnapped and thrown onto a ship headed for America. Some of the stories were likely true. And there were other problems too. In the seventeenth century, recruiters usually knew a good deal more about what life is going to be like in the New World than did the potential recruit. They therefore were in a position to mislead the recruit in order to persuade him to make the move. “The streets are paved with gold in the New World”—or so it was said. In addition, once the servant arrived at his destination, his employer had an incentive to squeeze as much work out of him as possible. Indeed, an employer who was also a slaveholder had good reason to assign an indentured servant to the more hazardous jobs, since the death of an indentured servant, particularly one whose indenture was about to expire, was less harmful financially to the employer than the death of a healthy slave.

But it is also important not to exaggerate the abuses. Dr. Russell Menard, professor of history at the University of Minnesota and a leading expert in the social and economic history of the North American colonies, has written: “Servants … could protest ill-treatment and receive a hearing in the courts. Cases in this period are few, but the provincial court seems to have taken seriously its obligation to enforce the terms of indentures and protect servants’ rights. No instances of serious mistreatment of servants appear in the [State of Maryland’s] records in the late 1630s and early 1640s. Servants were worked long and hard, but they were seldom abused.”

Chattel slavery of Africans might never have flourished as it did had it not been for the little-understood rebellion in 1676 led by Nathaniel Bacon against Virginia’s colonial Governor William Berkeley. The rebels had a lot of grievances, some possibly legitimate, others not so much. Among other things, they wanted lower taxes and a more aggressive policy toward the Indian tribes, whose territory their farms were often pressing against. The significant aspect of the rebellion for understanding the rise of chattel slavery was that Bacon’s followers included both indentured servants and the small farmers in the interior who had previously been indentured servants (and some members of more prosperous classes too).

According to some historians, once the rebellion was over, the potential for further unrest disturbed the large Tidewater landowners. They resolved to put a stop to future coalitions between their field workers and other poor whites by increasing the use of Africans as permanent slaves, rather than continuing to rely on indentured servants. It was a conscious effort to separate the interests of the plantation field workers and the poor white farmers to the west, and it worked beyond anyone’s wildest dreams. Shifting alliances among the three groups—plantation owners and their allies concentrated in the coastal areas, poor whites concentrated in the upland areas and African American slaves and their descendants—accounted for a good deal of the history of the Southern states well into the modern era.

Indentured servitude was too important to die out quickly, but its use declined over time. As it became more rare, the difference in status between hereditary African slaves and the rest of the population become more and more stark. The immorality of the institution became more and more obvious. By then, however, it was hard to uproot the peculiar institution.

The 338th anniversary of Bacon’s death, which was the beginning of the end of the rebellion, was this past Sunday.

Kirsanow Sends Letter to President Obama Regarding Executive Amnesty, ID Cards

This afternoon, Commissioner Kirsanow sent a letter to President Obama and the Congressional Black Caucus. In the letter, Commissioner Kirsanow expresses his concern about a DHS solicitation for up to 34 million identification cards in the event that immigration reform occurs. Given the remote possibility that any sort of immigration reform would pass Congress, this solicitation likely contemplates an executive amnesty following the November elections. The full letter is available here.

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