Although civil rights advocates have largely supported hate crimes laws over the last four decades, growing concern over mass incarceration is now leading some to question the focus on enhancing prison sentences. This Essay explores two alternatives to the traditional sentence enhancement model that might retain the expressive message of hate crimes laws—to convey society’s particular condemnation of crimes of bias—while relying less heavily on police and prisons: the reformation of victim compensation programs to help victims and targeted communities and the application of restorative justice processes to hate crimes. Each of these alternatives presents complications, but both offer sufficient potential to justify further exploration.
Conversations about police reform in lawmaking and legal scholarship typically take a narrow view of the multiple, complex roles that policing plays in American society, focusing primarily on their techniques of crime control. This Article breaks from that tendency, engaging police reform from a sociological perspective that focuses instead on the noncriminal functions of policing. In particular, it examines the role of policing in the daily maintenance of racial residential segregation, one of the central strategies of American racial inequality. Unlike previous work that touches on these issues, this Article argues that police reformers and police leaders should adopt an anti-segregation approach to policing. It also offers legal frameworks and policy prescriptions that flow from an anti-segregation ethic in police governance.
This Article begins by setting forth a rich account of residential segregation, clarifying the distinction between easily measurable proxies for segregation and the type of segregation with which law and policy should be concerned: the spatial separation that confines, subordinates, and dominates. It then identifies and illustrates six mechanisms through which American policing perpetuates residential segregation, drawing from sociological research, including qualitative narratives collected in Dallas County, Texas; Cuyahoga County, Ohio; and Baltimore, Maryland. Next, the Article sketches the architecture of anti-segregation policing, offering legal frameworks based on fair housing law and federal and state consent decrees, as well as a non-exhaustive set of practical approaches police departments could take to advance an anti-segregation agenda. Finally, the Article engages a fundamental question central to police transformation movements today: Is meaningful police reform, including anti-segregation policing, possible in a society that is structured through race?
This Article explores a few remedies to closing the racial wealth gap rooted in a theory of contract damages. The U.S. government has failed to live up to its promises to Black Americans to treat them equally under the law and thus a remedy is justified. Though a full reparations program is necessary and theoretically justified, this Article does not focus on a full-scale reparations program. Rather, the Article explores how a housing grant might work as one solution to closing the racial wealth gap given the current constitutional interpretation and political barriers.
This Article addresses a circuit split in the disability law jurisprudence. Under the Americans with Disabilities Act (ADA), employees generally bring two types of claims against their employers—discrimination claims and failure-to-accommodate claims. Succeeding on a discrimination claim requires proving that the employee suffered an adverse employment action. Succeeding on a failure-to-accommodate claim does not. But several courts—including a recent case in the Tenth Circuit—have added this adverse- employment-action requirement into failure-to-accommodate claims. In doing so, these courts have camouflaged important issues about an employer’s obligation to provide a reasonable accommodation to disabled employees. Although I believe that courts that require an adverse employment action in failure-to-accommodates claim do so in error, the main contribution of this Article is to reveal how courts have obscured and confused broader disability-accommodation issues by imposing that requirement.
The #MeToo movement has ushered in a new kind of sexual misconduct accusation—accusation leveled through informal channels of communication. A functional analysis shows that unofficial reporting can advance important ends. But the rise of informal accusation should be of special concern to legal scholars and lawyers, who generally proceed from certain assumptions regarding the primacy of formal systems of accountability. These basic assumptions need revision if, by aiming to satisfy goals that our laws and legal institutions fail to achieve, informal reporting channels are serving as substitutes for the officially sanctioned mechanisms of accountability that monopolize scholarly attention. Unofficial reporting pathways are imperfect legal workarounds; their prevalence means that the law of sexual misconduct has been consigned to a relative state of quiescence. Over time, survivors, long disserved by the criminal law, by campus disciplinary processes, and by workplace complaint structures, have mostly turned away from the systems that have forsaken them. A needed redesign of official complaint channels should be informed by the benefits of informal reporting, along with a commitment to awakening law.
Dirty Data, Bad Predictions: How Civil Rights Violations Impact Police Data, Predictive Policing Systems, and Justice
Law enforcement agencies are increasingly using predictive policing systems to forecast criminal activity and allocate police resources. Yet in numerous jurisdictions, these systems are built on data produced during documented periods of flawed, racially biased, and sometimes unlawful practices and policies (“dirty policing”). These policing practices and policies shape the environment and the methodology by which data is created, which raises the risk of creating inaccurate, skewed, or systemically biased data (“dirty data”). If predictive policing systems are informed by such data, they cannot escape the legacies of the unlawful or biased policing practices that they are built on. Nor do current claims by predictive policing vendors provide sufficient assurances that their systems adequately mitigate or segregate this data.
In our research, we analyze thirteen jurisdictions that have used or developed predictive policing tools while under government commission investigations or federal court monitored settlements, consent decrees, or memoranda of agreement stemming from corrupt, racially biased, or otherwise illegal policing practices. In particular, we examine the link between unlawful and biased police practices and the data available to train or implement these systems. We highlight three case studies: (1) Chicago, an example of where dirty data was ingested directly into the city’s predictive system; (2) New Orleans, an example where the extensive evidence of dirty policing practices and recent litigation suggests an extremely high risk that dirty data was or could be used in predictive policing; and (3) Maricopa County, where despite extensive evidence of dirty policing practices, a lack of public transparency about the details of various predictive policing systems restricts a proper assessment of the risks. The implications of these findings have widespread ramifications for predictive policing writ large. Deploying predictive policing systems in jurisdictions with extensive histories of unlawful police practices presents elevated risks that dirty data will lead to flawed or unlawful predictions, which in turn risk perpetuating additional harm via feedback loops throughout the criminal justice system. The use of predictive policing must be treated with high levels of caution and mechanisms for the public to know, assess, and reject such systems are imperative.
Although lesbian, gay, bisexual, and queer people in the United States of America have experienced significant changes in their legal rights over the previous decade, they are still disproportionately likely to live in poverty. The Supreme Court’s 2015 decision in Obergefell v. Hodges granted LGBQ individuals access to the institution of marriage and the attendant social benefits, but the safety net is still full of holes for low-income LGBQ individuals because of deeply rooted heteronormativity in the administration of welfare. Using three facially neutral examples— proof-of-paternity requirements for welfare recipients, work requirements for the Temporary Assistance for Needy Families (TANF) and Medicaid programs, and barriers to state support for low-income LGBQ youth experiencing homelessness—this Note elucidates and indicts enduring paradigms of heteronormativity in the welfare state. This Note also offers prescriptive solutions, advocating for the adoption of the perennial legislative proposal known as the “Equality Act” as well as state and federal executive action to ease the burdens on LGBQ welfare recipients in the near term.
The imminent aging of the “baby boom” generation will magnify the need for eldercare, much of which will come from family members who also work outside the home. Current laws are inadequate to protect many working family caregivers from family responsibilities discrimination (FRD): the unfair treatment of workers with family caregiving responsibilities. When FRD causes caregivers to leave the workplace, there can be financial penalties for both the caregivers—especially women—and their employers. This Essay proposes that states can resolve these issues by adding family caregivers as a protected class to state antidiscrimination laws and provides examples of such legislative efforts.
It has been more than sixty years since Brown v. Board of Education, and our country still presents children with dual and unequal systems of education. Not only are students segregated between school districts, but segregation is happening within school buildings as well as through tracking. Tracking is the process by which students are placed into higher or lower subject-specific courses such as math or science—sometimes as early as elementary school—based on their perceived abilities. This practice prohibits many students from accessing high-level courses. Courses such as Advanced Placement (AP) and honors classes have become indispensable for applying to college, but under a tracked system, if students do not take advanced classes in middle school, they will likely not be able to take advanced courses before graduating high school. Proponents of tracking argue that it is an efficient model of education that allows students to learn based on their skill level, but research shows that students are tracked along racial and class lines rather than on “ability.” Tracking causes both academic and psychological harm to students in lower tracks, and the opportunities students in higher tracks receive, as opposed to their innate intellectual abilities, are what cause them to succeed. In this Note, I argue that tracking is an inherently inequitable system that should be abolished since it denies so many students the resources, learning opportunities, and access to higher-level courses needed to succeed in today’s society. The legal tools that have been employed to dismantle this system under federal law—the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act—have had limited success, so this Note points to state law as a possible solution. State constitutions contain educational mandates and equal protection clauses that together require states to provide children with an equal educational opportunity. Under this doctrine, many courts have established that states must provide students with the opportunity to gain the skills necessary to compete in a changing society. Although state equal educational opportunity litigation has primarily occurred in the school finance context, this legal tool could be extended to tracking. A finding that tracking violates a student’s right to an equal educational opportunity would require school districts to detrack and open the door so that all students, regardless of race, class, or parental influence, have the opportunity to succeed.
Scholars view Tinker v. Des Moines Independent Community School District as the high-water mark of student speech protection and the Supreme Court’s subsequent decisions, Bethel School District No. 403 v. Fraser, Hazelwood School District v. Kuhlmeier, and Morse v. Frederick (the Bong Hits case) as a considerable retreat from this mark. By contrast, this Note argues that Tinker, while employing strongly speech-protective rhetoric, nonetheless requires courts to defer to educators’ reasonable determinations of what speech may cause a substantial disruption and provides only very modest protection for student speech. Comparing the Tinker standard to those of Fraser and Kuhlmeier reveals that it gives no less deference to educators, and little more protection to student speech. As a consequence of misconstruing Tinker, Fraser, and Kuhlmeier, scholars have failed to address why Bong Hits’ requirement of deference to educators’ reasonable judgments is any less acceptable than Tinker’s. Deference under Tinker recognizes the difficulty inherent in predicting the potential consequences of speech without eliminating the limited protection provided by Tinker’s required showing of potential disruption. By contrast, the sole protection Bong Hits provides is in maintaining the line between advocacy and nonadvocacy, yet deferring to the reasonable judgments of educators on this question blurs the line considerably, thereby largely eliminating protection for student speech. To illuminate the differences between the Tinker and Bong Hits tests, this Note analogizes to Justice Oliver Wendell Holmes’s “clear and present danger” and Judge Learned Hand’s “express advocacy” tests and concludes that the special policy considerations that apply to the school environment do not justify departing from the principles underlying these paradigmatic First Amendment standards.