by Valerie Schneider, Assistant Professor of Law and Director of Fair Housing Clinic, Howard University School of Law
Less than one year after the Supreme Court ended its term with the gutting of the Voting Rights Act, it is clear that at least four of the members of the current Supreme Court (the number needed for a case to be heard by the highest court) are eager to limit the reach of another pillar of the Civil Rights legislation from the 1960s -- the Fair Housing Act.
In the past two years, the Supreme Court has granted certiorari in two Fair Housing Act cases, both of which would have required the Supreme Court to determine whether acts that are not intentionally discriminatory, but still have a disproportionate negative impact on minority communities, may be prohibited by the Fair Housing Act. Each of these cases -- first Magner v. Gallagher and then, just this week, Township of Mt. Holly v. Mt. Holly Gardens Citizens In Action, Inc.– settled just weeks before oral arguments were scheduled.
Those who would have liked the case to move forward argue that, unless plaintiffs can prove that a defendant harbored racial animus or intended to discriminate, the law should not recognize that discrimination has taken place. This proposition is countered by widely accepted social science, not to mention human experiences, that indicates that intent actually has very little to do with whether discrimination occurred. Regardless, to those displaced by discriminatory redevelopment decisions or lending policies, it is little comfort that the decision-makers may have had no conscious intent to cause harm based on race. What is in the mind of those engaged in discriminatory actions is of no comfort to the victims of discrimination and should be of limited import under the Fair Housing Act.
by Edward A. Hailes, Jr., Managing Director and General Counsel, Advancement Project. This post is a part of our 2013 ACS Constitution Day symposium.
As the nation observes Constitution Day, most Americans would probably be surprised to learn that there is no provision of the Constitution or federal law that explicitly and affirmatively guarantees all citizens the right to vote. While the Constitution mentions the right to vote more than any other – forbidding it from being abridged based on race, gender, age or ability to pay a poll tax – it contains no affirmative language making that right explicit. In fact, the U.S. is one of only 11 of the 119 democratic countries in the world that do not explicitly provide the right to vote in their Constitutions. What’s more, the US Supreme Court decision in Shelby County vs. Holder, which acknowledged the existence of persistent discrimination in voting, opened the door for new barriers to voting to emerge in states across the country.
Nowhere is this more evident than in North Carolina, where Governor Pat McCrory recently signed into law legislation (HB 589) that enacts dozens of changes that will make it harder to vote. Among other provisions, the recently signed measure implements a strict voter ID requirement; cuts early voting by a full week; eliminates same-day registration; allows voters to be challenged by any registered voter in the same county, rather than precinct; bans 16 and 17-year-olds from pre-registering to vote; repeals a state directive that high schools conduct voter registration drives; prohibits paid voter registration drives; and prevents counties from extending poll hours to accommodate long lines.
Each of these changes, on their own, would already be considerably harmful to the voting rights of North Carolinians. Taken together, it is the worst voter suppression law in the country. It viciously targets nearly every aspect of the voting process – chipping away at who can vote, where they vote, when they can vote, and how they vote. With the stroke of a pen, Gov. McCrory has transformed North Carolina from a state with one of the nation’s most progressive voting systems, in which we saw some of the highest voter turnout rates of the last two presidential elections, into a state with the most draconian policies we’ve seen in decades. The law will disproportionately impact communities of color, seniors and students.
Yesterday, after months of anticipation, the Department of Justice announced its response to marijuana legalization ballot measures passed by voters in Washington and Colorado last November. The DOJ said it does not plan to sue Washington and Colorado to block the new laws. The agency also released new prosecutorial guidance that indicates it may limit the enforcement of federal drug laws in states that have legalized marijuana for recreational or medical purposes.
If you felt a sense of déjà vu reading that paragraph, there’s a good reason.
In 2009, The New York Times ran a front-page article about a different DOJ memo under the headline U.S. Won’t Prosecute in States That Allow Medical Marijuana. The 2009 Times article reported that “[p]eople who use marijuana for medical purposes and those who distribute it to them should not face federal prosecution, provided they act according to state law, the Justice Department said Monday in a directive with far-reaching political and legal implications.”
By early 2012, however, Rolling Stone ran a story titled Obama’s War on Potin which writer Tim Dickinson forlornly told the story of how “over the past year, the Obama administration ha[d] quietly unleashed a multiagency crackdown on medical cannabis that goes far beyond anything undertaken by George W. Bush.”
Will the DOJ’s new marijuana policy live up to the hype? Or, will we see a replay of what happened following the 2009 memo? Policy advocates seem to be split so far, with some calling it a historic turning point for U.S. drug policy and others taking a wait-and-see approach.
Only time will provide a definitive answer to this question. But comparing yesterday’s memo with 2009’s can help us understand what to watch for in the months to come. A few points are worth particular attention.
by Janai S. Nelson, law professor, associate dean for faculty scholarship, and associate director of the The Ronald H. Brown Center for Civil Rights and Economic Development, St. John's University School of Law. She is also author of the article, “The Causal Context of Disparate Vote Denial” on the Voting Rights Act. This post is part of an ACSblog symposium on the 50th Anniversary of the March on Washington for Jobs and Freedom.
The commemoration of the historic March on Washington for Jobs and Freedom is a reminder both of how far we've come as a nation and how far we’ve yet to go.
The 1963 march signaled the beginning of the end of America’s racial apartheid regime and brought over a quarter of a million citizens together, largely African-Americans, in one of the nation’s largest human rights demonstrations. The power of their presence and the movement they represented forced the nation’s leaders finally to allow the words of the American constitution to ring with unprecedented truth.
However, many of the legal victories of the civil rights movement -- affirmative action, voting rights, and equal employment opportunities -- have been scaled back by the Supreme Court in recent years. The real change in our democracy envisioned by Dr. Martin Luther King Jr. and others requires immediate and sustained attention from our legislators and advocates. It means strengthening the Voting Rights Act by reinstating federal oversight of our nation’s most troubled voting locales. It also means articulating an affirmative, equal right to vote, and making voter registration automatic.
These are fundamental steps to ensure that the commemoration of the march and King's dream speech is more than just a remembrance but rather is a call to action. As I’ve written in this post on Reuters, “The promise held in King’s dream is to wake up one day to its reality — not to slumber while discrimination marches on. The immediate step we can take is to reverse the continuing assault on voting rights and expand participation in our democracy. Rehabilitating the Voting Rights Act of 1965, following the Supreme Court’s recent decision in Shelby County v. Holder, which struck down one of the law’s most important provisions, should be at the top of this agenda.” The full text on this post, “King’s Deferred Dream of Democracy,” is here.
by Atiba R. Ellis, Associate Professor, West Virginia University College of Law. This post is part of an ACSblog symposium on the 50th Anniversary of the March on Washington for Jobs and Freedom.
The March on Washington for Jobs and Freedom represented the high point of the decades-long civil rights movement against Jim Crow apartheid. The March brought heightened international attention to African Americans’ demands for social, political, and economic justice. And the March offered a snapshot of the battle to awaken the moral imagination of the country. Indeed, the progress achieved in the 1960s battle for civil, political, and economic rights could not have been made without first winning the battle for the moral imagination of the United States.
The movement made apparent the injustices of Jim Crow. The movement called white America’s attention to the terrorism of lynching and bombings. The movement forced Americans to consider the effects of segregated facilities. The movement demanded equal participation for African Americans in the political process. The “I Have A Dream” speech spoke for many in the movement by setting out specifically the moral question of civil rights for African Americans to the country.
Dr. King sought not just to evoke the question, but also to show the necessity of answering the question immediately. He said that “[w]e . . . come to this hallowed spot to remind America of the fierce urgency of now. This is no time to engage in the luxury of cooling off or to take the tranquilizing drug of gradualism. Now is the time to make real the promises of democracy.” Yet, the question we must confront in 2013 is whether we have been tranquilized into the lethargy of gradualism concerning the work that needs to be done.
Fifty years ago, because of the public shaming of nonviolent protest, the majority society of 1963 could no longer ignore the tyranny of American apartheid. As a result, Congress passed the Civil Rights Act of 1964 and the Voting Rights Act of 1965. We can rightfully rejoice in the fact that America today cannot be called an “apartheid” country. But the majority society of 2013 seems to have forsaken the Civil Rights Movement’s call to moral imagination. Instead, many in society seem to have fallen victim to a new kind of gradualism.