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Wendy Webster Williams - One of the best experts on this subject based on the ideXlab platform.
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Ruth Bader Ginsburg's Equal Protection Clause: 1970-80
2013Co-Authors: Wendy Webster WilliamsAbstract:Professor Ruth Bader Ginsburg of Columbia Law School was the leading Supreme Court litigator for gender Equality in the crucial decade, 1970-80. In addition to teaching her classes, producing academic articles, and co-authoring the first casebook on sex discrimination and the law, she worked on some sixty cases (depending on how one counts), including over two dozen cases in the Supreme Court. Rumor has it she did not sleep for ten years; her prodigious output gives the rumor some credence. Her impact on the law during that critical decade earned her the title "the Thurgood Marshall of the women's movement" and secured her place in history - even before she became a federal appellate judge and Supreme Court justice. The author devotes her allotted space to two, intimately intertwined, topics: first, Ruth Ginsburg and the Supreme Court's standard of review in sex discrimination cases, and second, the substance of Ruth Ginsburg's concept of gender Equality in law.
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Ruth Bader Ginsburg's Equal Protection Clause: 1970-80
Columbia journal of gender and law, 2013Co-Authors: Wendy Webster WilliamsAbstract:Professor Ruth Bader Ginsburg of Columbia Law School was the leading Supreme Court litigator for gender Equality in the crucial decade, 1970-80. In addition to teaching her classes, producing academic articles, and co-authoring the first casebook on sex discrimination and the law, she worked on some sixty cases (depending on how one counts), including over two dozen cases in the Supreme Court. Rumor has it she did not sleep for ten years; her prodigious output gives the rumor some credence. (1) Her impact on the law during that critical decade earned her the title "the Thurgood Marshall of the women's movement" and secured her place in history--even before she became a federal appellate judge and Supreme Court justice. I will devote my allotted space to two, intimately intertwined, topics: first, Ruth Ginsburg and the Supreme Court's standard of review in sex discrimination cases, and second, the substance of Ruth Ginsburg's concept of gender Equality in law. Ruth Ginsburg and the Standard of Review The Supreme Court, by 1970, had settled on what had become known as the "two-tier" approach to Equal Protection cases. Cases challenging racial classifications were in the top tier; the Court subjected those classifications to "strict scrutiny" and placed the burden on the state to defend its classification by showing a "compelling interest" in its race-based law or practice. Rare was the race line that survived that standard. Almost all other kinds of classification fell into the lower tier: in such cases the court would settle for almost any colorable rationale the state could offer up for its categories. Gender-based classifications were firmly relegated to the lower tier. (2) Ruth Ginsburg called the lower tier approach to sex discrimination the "anything goes" standard. (3) When she began her ten-year litigation career, the Court had never encountered a sex classification that it did not consider perfectly reasonable and constitutionally sound. This meant that the first challenge for women's rights advocates of the early 1970s was to persuade the Court to undertake a more skeptical look at sex-based laws. Professor Ginsburg led the way: she was the first lawyer to argue to the United States Supreme Court that sex classifications should, like race classifications, be subjected to the highest standard of review. (4) She did this in the ACLU's Brandeis-style brief in Reed v. Reed, submitted to the Court in the summer of 1971. In it, she recounted in detail the history of the legally-enforced second-class status of women and pointed to the historical analogy between the political, social, and legal status of women and that of African Americans. (5) In its brief opinion issued in November of '71, the Court did not adopt Ginsburg's position on standard of review or even refer to it, but it did, for the first time in its history, strike down a gender-line in law as a violation of the Equal Protection Clause of the Fourteenth Amendment. Better yet, the language of the Reed decision hinted, tantalizingly, at a new, more skeptical approach to gender-based laws. (6) Two years later, in Frontiero v. Richardson, (7) Professor Ginsburg's argument that strict scrutiny should apply to gender cases persuaded four but not the necessary five justices. Pragmatist that Ginsburg was, she thereafter focused on coaxing the Court to adopt a mid-level "heightened" review for sex discrimination cases. That mission was accomplished in 1976, when Justice Brennan formulated an intermediate standard for gender cases in Craig v. Boren. (8) Ruth Ginsburg had advised the plaintiffs' lawyer in that case, submitted an amicus brief for the ACLU, and sat at counsel table for his oral argument to the Supreme Court. (9) Ruth Ginsburg's substantive vision of gender Equality How Ruth Ginsburg has been characterized--and lauded or criticized based on this characterization--is as a proponent of "formal Equality" for the sexes, viewing discrimination against men and women as Equally reprehensible in the same way some conservative justices viewed discrimination against white people as the moral and legal equivalent of discrimination against minorities. …
Eang L. Ngov - One of the best experts on this subject based on the ideXlab platform.
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When 'the Evil Day' Comes, Will Title VII's Disparate Impact Provision be Narrowly Tailored to Survive an Equal Protection Clause Challenge?
The American University law review, 2011Co-Authors: Eang L. NgovAbstract:"The road to hell is paved with good intentions." Employers must be careful about the intentional and unintentional effect of their employment practices, even when acting with good motive. Title VII’s disparate impact provision holds employers liable for employment practices that cause an adverse impact on racial groups, even when the employment practice applies Equally to all groups and was not implemented to disadvantage a particular group. A prima facie case of disparate impact can arise solely based on numbers - a comparison between the rate at which one racial group passes a test or is selected for hiring or promotion as compared to rate of other racial groups. The disparate impact provision raises an Equal Protection Clause issue because it encourages employers to make race-conscious employment decisions to avoid disparate impact liability. This Article takes on the difficult question that the Supreme Court avoided in Ricci v. DeStefano: Does the provision violate the Equal Protection Clause? Evaluating the disparate impact provision under the rigors of strict scrutiny, this Article examines if the provision is narrowly tailored to achieve the possible compelling interests of remedying past discrimination, smoking out discrimination, increasing diversity, providing role models, meeting an operational need, or removing barriers to Equal employment opportunities. After considering whether the disparate impact provision operates as a rigid quota, affords flexibility or individualized decisions, is narrow in scope and duration, applies to white males, and has available race-neutral alternatives, this Article concludes that the provision fails narrow tailoring and is likely unconstitutional.
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War and Peace between Title VII’s Disparate Impact Provision and the Equal Protection Clause: Battling for a Compelling Interest
Loyola University of Chicago Law Journal, 2010Co-Authors: Eang L. NgovAbstract:“[T]he war between disparate impact and Equal Protection will be waged sooner or later, and it behooves us to begin thinking about how – and on what terms – to make peace between them.” This Article addresses Justice Scalia’s premonition in Ricci v. DeStefano by providing an analysis of how that war may be waged and whether peace can be made between Title VII’s disparate impact provision and the Equal Protection Clause. Ricci involved a challenge to the City of New Haven’s decision to void the test results of an examination required for promotion within the City’s fire department. The test adversely affected African-American firefighters, who passed the examination at a lower rate than Caucasian firefighters. Because of the disproportionate number of African-American firefighters who failed the test, the City feared that it would be subject to discrimination lawsuits under the disparate impact provision of Title VII of the Civil Rights Act of 1964. Disparate impact focuses on the results of employment decisions and imposes liability when employment practices cause a disparate impact on the basis of race or any other protected class. “The City was faced with a prima facie case of disparate-impact liability” because the pass rates for the Hispanic and African-American test takers fell below the 80% rule. Consequently, the City refused to certify the tests and thereby voided the results. This Article seeks to answer the constitutional question left unresolved in Ricci – whether Title VII’s disparate impact provision violates the Equal Protection Clause by requiring employers to consider race in their employment practices. This Article seeks to test Title VII’s disparate impact provision under strict scrutiny to determine if it can survive an Equal Protection challenge. This Article’s focus is to provide an extensive search for a compelling purpose that may justify the racial classifications that are required under Title VII’s disparate impact provision. Operating on the assumption that the disparate impact provision implicates racial classifications, this Article examines six rationales that may be asserted as compelling interests to defend the provision against an Equal Protection challenge: (1) remedying past discrimination; (2) smoking out discrimination (intentional or unconscious); (3) obtaining the benefits of diversity; (4) providing role models; (5) satisfying an operational need; and (6) providing Equal employment opportunity by removing barriers. Finally, this Article anticipates the attacks that may be lodged against those defenses.
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war and peace between title vii s disparate impact provision and the Equal Protection Clause battling for a compelling interest
2010Co-Authors: Eang L. NgovAbstract:“[T]he war between disparate impact and Equal Protection will be waged sooner or later, and it behooves us to begin thinking about how – and on what terms – to make peace between them.” This Article addresses Justice Scalia’s premonition in Ricci v. DeStefano by providing an analysis of how that war may be waged and whether peace can be made between Title VII’s disparate impact provision and the Equal Protection Clause. Ricci involved a challenge to the City of New Haven’s decision to void the test results of an examination required for promotion within the City’s fire department. The test adversely affected African-American firefighters, who passed the examination at a lower rate than Caucasian firefighters. Because of the disproportionate number of African-American firefighters who failed the test, the City feared that it would be subject to discrimination lawsuits under the disparate impact provision of Title VII of the Civil Rights Act of 1964. Disparate impact focuses on the results of employment decisions and imposes liability when employment practices cause a disparate impact on the basis of race or any other protected class. “The City was faced with a prima facie case of disparate-impact liability” because the pass rates for the Hispanic and African-American test takers fell below the 80% rule. Consequently, the City refused to certify the tests and thereby voided the results. This Article seeks to answer the constitutional question left unresolved in Ricci – whether Title VII’s disparate impact provision violates the Equal Protection Clause by requiring employers to consider race in their employment practices. This Article seeks to test Title VII’s disparate impact provision under strict scrutiny to determine if it can survive an Equal Protection challenge. This Article’s focus is to provide an extensive search for a compelling purpose that may justify the racial classifications that are required under Title VII’s disparate impact provision. Operating on the assumption that the disparate impact provision implicates racial classifications, this Article examines six rationales that may be asserted as compelling interests to defend the provision against an Equal Protection challenge: (1) remedying past discrimination; (2) smoking out discrimination (intentional or unconscious); (3) obtaining the benefits of diversity; (4) providing role models; (5) satisfying an operational need; and (6) providing Equal employment opportunity by removing barriers. Finally, this Article anticipates the attacks that may be lodged against those defenses.
Michael A Helfand - One of the best experts on this subject based on the ideXlab platform.
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The Usual Suspect Classifications: Criminals, Aliens and the Future of Same-Sex Marriage
2008Co-Authors: Michael A HelfandAbstract:In this Article, I argue for a new understanding of the immutability factor employed by courts in determining which classifications ought to receive suspect status under the Equal Protection Clause. Drawing on the process-based foundations of the Equal Protection Clause, this new understanding defines immutable traits not as traits that cannot be changed, but as trait that were, in the words of the Supreme Court in Frontiero, mere “accidents of birth.” In contrast, courts and scholars typically center the immutability inquiry on an individual’s technical ability to exit a particular class, which has led to inconsistencies in applying Equal Protection doctrine to criminality, alienage and sexual preference classifications. Understanding immutability in this way is vital given the ongoing litigation surrounding same-sex marriage. Courts, in addressing whether sexual preference can constitute a suspect classification, all-too often get bogged down in biological studies or psychological profiling in attempt to determine whether sexual preference is something that can be changed. In doing so, courts often import definitions of immutability from other doctrinal contexts, like asylum or Title VII law. Doing so simply confuses the type of inquiry underlying the principles driving the Supreme Court’s process-based approach to the Equal Protection Clause.
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How the Diversity Rationale Lays the Groundwork for New Discrimination: Examining the Trajectory of Equal Protection Doctrine
2008Co-Authors: Michael A HelfandAbstract:This article argues in favor of differentiating between two distinct categories of Equal Protection cases. The first - what I have termed indicator cases - are instances where a court considers whether there are sufficient factual indications to demonstrate the existence of a prima facie Equal Protection violation. The second - violation cases - are instances where a court considers whether there is a good enough justification for a prima facie Equal Protection violation. Unfortunately, the Supreme Court has not differentiated between these two different types of cases, leading to a string of decisions where the Court has erroneously looked for justifications of non-existent Equal Protection Clause violations, when in fact it should have been looking for indications to determine whether there actually had been an Equal Protection Clause violation. But even more troubling are some of the suggestions on the horizon; for example, the diversity rationale adopted by the Court as sufficient to survive strict scrutiny could serve to justify discriminatory police tactics such as racial profiling. By clearly outlining the above distinction and its analytic ramifications, this article hopes to undermine arguments built on the diversity rationale as wholly unfounded.
David S. Cohen - One of the best experts on this subject based on the ideXlab platform.
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Title IX: Beyond Equal Protection
2007Co-Authors: David S. CohenAbstract:The relationship between Title IX and the Equal Protection Clause is relevant to many areas of sex discrimination law. However, most courts that have addressed cases raising both provisions as well as scholars analyzing them have not developed or understood the relationship between the two. This Article does just that and develops the theory that Title IX has broader Protections from sex discrimination than the Equal Protection Clause. To reach the conclusion that Title IX offers more Protection, this Article proceeds in the following way. In Part II, the Article surveys court decisions and commentary that have explicitly touched on the relationship between Title IX and the Equal Protection Clause. In Part III, the Article then develops its own analysis of the relationship between Title IX and the Equal Protection Clause, using the text and history of Title IX, the jurisprudential differences between Title IX and the Equal Protection Clause, and the theoretical differences between Title IX and constitutional sex discrimination law. Finally, in Part IV, the Article looks at some of the legal issues affected by an analysis of Title IX's relationship to the Equal Protection Clause and posits solutions based on the doctrinal and theoretical conclusions reached in Part III.
Wendy Parker - One of the best experts on this subject based on the ideXlab platform.
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Limiting the Equal Protection Clause Roberts Style
2009Co-Authors: Wendy ParkerAbstract:This symposium piece was first presented during a conference on the future of affirmative action at the University of Miami. Evoking Brown v. Board of Education, the Supreme Court recently decided that the school boards in Jefferson County, Kentucky and Seattle, Washington could not voluntarily do what federal courts once routinely ordered in the name of Brown: consider race or ethnicity for the purpose of increasing student integration. While this outcome might have been the same under the Rehnquist Court, the Roberts Court in reaching that conclusion indicated a very different approach to the Equal Protection Clause and Brown v. Board of Education than that of the Rehnquist Court. The Rehnquist Court typically utilized an interest-balancing approach to the Equal Protection Clause that considered many values. The Roberts Court, on the other hand, has begun to minimize the Equal Protection Clause to concern only capitalizing individual treatment, to the detriment of other values. As a result, the Roberts Court has narrowed considerably the meaning of Brown v. Board of Education and calls into question the legitimacy of long-standing, bedrock school-desegregation principles.
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Limiting the Equal Protection Clause Roberts Style
University of Miami law review, 2009Co-Authors: Wendy ParkerAbstract:Evoking Brown v. Board of Education, the Supreme Court recently decided that the school boards in Jefferson County, Kentucky and Seattle, Washington could not voluntarily do what federal courts once routinely ordered in the name of Brown: consider race or ethnicity for the purpose of increasing student integration. While this outcome might have been the same under the Rehnquist Court, the Roberts Court in reaching that conclusion indicated a very different approach to the Equal Protection Clause and Brown v. Board of Education than that of the Rehnquist Court. The Rehnquist Court typically utilized an interestbalancing approach to the Equal Protection Clause that considered many values. The Roberts Court, on the other hand, has begun to minimize the Equal Protection Clause to concern only capitalizing individual treatment, to the detriment of other values. As a result, the Roberts Court has narrowed considerably the meaning of Brown v. Board of Education and calls into question the legitimacy of long-standing, bedrock school-desegregation principles.