Reflections on the Supreme Court\u27s 1988 Term: The Employment Discrimination Decisions and the Abandonment of the Second Reconstruction

Eight decisions of the 1988 Term effectively rewrote Title VII of the Civil Rights Act of 1964 and threatened to undo the significant gains in equal employment opportunity that had been achieved since its enactment. Established modes of proof, theories of recovery, entitlement to attorneys’ fees, and the enforceability of affirmative action decrees were all significantly altered in ways that advantaged employers and burdened plaintiffs. Congress would later respond with the Civil Rights Act of 1991, restoring and even extending the protections for minorities and women

The Fraudulent Case Against Affirmative Action: The Untold Story Behind Fisher v. University of Texas

For over thirty-five years, the Supreme Court has grappled with the controversial issue of affirmative action and race preference. Beginning with Justice Lewis Powell’s influential opinion in Bakke v. U. Cal. Davis in 1978, leeway has been permitted for admissions policies that take account of race, as long as it is not given determinative weight so as to exclude consideration of nonminority candidates, or used to set quotas. As the Court has become increasingly conservative, however, its license for race preference has tightened considerably, and it has become receptive to “reverse discrimination” plaintiffs challenging such policies in universities and the workplace. Grutter v. Bollinger (2003) purported to immunize good faith race-conscious university admissions for a period of twenty-five years, but with the retirement of its author, Sandra Day O’Connor, the Court chose to revisit the matter in Fisher v. University of Texas, decided on June 24. While remanding to the lower courts without a definitive ruling on UT’s program, it is the contention of this article that the decision may well seal the fate of race-sensitive decision-making by public actors. Seven justices, over the dissent of Ruth Bader Ginsburg, sign onto an exacting strict scrutiny standard of review anachronistically borrowed from cases challenging pernicious discrimination motivated by a desire to exclude and subjugate disfavored groups. This “searching” examination, which treats affirmative action in the interest of diversity as inherently suspect and presumptively unlawful, is unjustified legally and unwise as a matter of policy. Implicitly, the Court adopts a paradigm of white male victimhood, which has turned anti-discrimination provisions on their head. The article also challenges the contention that affirmative action inevitably sacrifices “merit” to preference, by confronting the misconceptions regarding merit, and particularly the glorification of standardized testing

The Slow Demise of Race Preference

This article traces the origins of affirmative action, its initial success, and the Reagan Administration\u27s efforts to end it, which only recently have come to fruition with Fisher v. University of Texas and Shuette v. Coalition to Defend Affirmative Action

Discriminatory Job Knowledge Tests, Police Promotions, and What Title VII Can Learn from Tort Law

Nationally, the continued use of selection devices by police departments—such as multiple-choice examinations requiring memorization of police manuals—stifles advancement for a disproportionate number of otherwise qualified minority candidates, and hinders the desired diversification of the upper ranks. These exams have little to do with predicting success as a sergeant or other police supervisor. The traditional Title VII approach, a disparate impact challenge, has proven unsatisfactory given the relative ease with which the exams can be “content validated” in court. This Article proposes a new approach familiar to tort lawyers—the inference of intent from actions taken with foreseeable or inevitable consequences. When a police agency routinely administers multiple-choice exams, fully aware of the exclusionary impact on minorities, the results can no longer be deemed “unintentional,” and the matter should be treated as disparate treatment. Significantly, each U.S. Department of Justice report following the incidents of police killings of unarmed civilians in Ferguson, Chicago, Baltimore, and elsewhere, found poor supervision of line officers and lack of diversity in supervisory positions to be major contributing factors to these tragedies. Title VII of the Civil Rights Act of 1964, landmark legislation designed to open employment opportunities to minorities and women, is uniquely positioned to address the problem. But to do so, courts must disentangle these litigations from the hyper-technical world of test validation, and instead apply a common-sense definition of intentional discrimination as applied in tort litigation

The British Experience With Hearsay Reform: A Cautionary Tale

Among the proposals being considered by the Advisory Committee on the Federal Rules of Evidence (“the Committee”) is the scrapping of the categorical exception regime for hearsay, leaving questions of reliability and admissibility ad hoc to district court judges along the lines of Federal Rules of Evidence (FRE) 403 and 807. Over the past decades, the British have moved toward this approach, and it is the purpose of this Article to identify the lessons that can be learned from that experience, especially with regard to criminal prosecutions and the right of confrontation

Costs, Profits, and Equal Employment Opportunity

Professor Brodin explores the clash between the antidiscrimination principle embodied in Title VII of the Civil Rights Act of 1964, and employer self-interest in minimizing costs and maximizing profits. While precedent explicitly rejects a cost defense to an action brought under the statute, some courts have subtly adopted the equivalent under the guise of the business necessity defense to a disparate impact action. Permitting employers to utilize selection devices that disproportionately exclude minorities or women merely because they are less expensive than more sophisticated personnel procedures without discriminatory impact violates Title VII’s mandate, which imposes the costs of equal opportunity on employers in much the same way that environmental regulations do on polluters

Case Note: Ashe v. Swenson: Collateral Estoppel, Double Jeopardy, and Inconsistent Verdicts

The Supreme Court in Ashe v. Swenson held that the fifth amendment\u27s guarantee against double jeopardy, applicable to the states through the fourteenth amendment, requires that a criminal defendant acquitted of a crime be able to invoke the doctrine of collateral estoppel in a later trial. Commentators had long urged such a rule, and though it has existed for some time in the federal courts, its elevation to a constitutional requirement is a significant step. The case invites consideration of the meaning and purpose of the double jeopardy guarantee and of the jury system itself. Specifically in regard to the latter, Ashe may subvert the currently accepted practice of allowing a jury to reach an inconsistent verdict in certain cases. This Comment will examine the effects that Ashe may have in these areas