ACS Speaker Series: Reva Siegel— The Law (and Politics) of Disparate Impact

Yale Law School Professor Reva Siegel joined ACS on Thursday to talk about the law and politics of disparate impact. Siegel began by discussing why a disparate impact framework is an important tool to fight discrimination. She emphasized that disparate impact can be used to probe for intentional, unconscious, and historical biases that may be responsible for underrepresentation of minority groups in certain roles. Siegel then discussed the historical context of disparate impact, focusing on the 2009 Supreme Court case Ricci v. DeStefano. In Ricci, the Supreme Court held that the New Haven fire department had violated Title VII of the Civil Rights Act by not implementing the results of a promotion exam after the results showed that white applicants scored disproportionately higher than minority applicants. In discussing the historical framework of disparate impact, Siegel pointed out contrasting constitutional views: (1) that equal protection requires the government to act to promote integration, (2) that equal protection permits government to do so, and (3) that equal protection prohibits the government from promoting integration.

What do you think?

• Does equal protection prohibit the government from taking any action to promote integration? Does eliminating discrimination require complete “color-blindness”?
• Should disparate impact be part of a constitutional framework? Does equal protection require, or at least permit, the government to promote integration of underrepresented groups?
• Is there, as Justice Scalia noted in his Ricci concurrence, a war coming between equal protection and disparate impact?

ACS Speakers Series: Chief Judge Lippman – The Right to Civil Legal Services

The HLS American Constitution Society was honored to be joined by Chief Judge Lippman of the New York Court of Appeals today.  Chief Judge Lippman spoke about New York’s efforts to fund civil legal services for low-income New Yorkers who are at risk of losing the essentials of life, including but not limited to housing, health care, and employment income.  He began his remarks by laying out the steep problems faced by a growing population of impoverished New Yorkers and Americans, who face dire legal challenges including mortgage foreclosures and landlord-tenant disputes, without access to an attorney.  In order to address this growing need, Chief Judge Lippman has secured funding from the state government in New York to provide civil legal services to this at-risk population.  Chief Judge Lippman reported that for every dollar spent on civil legal services in New York, five dollars have been saved due to the subsequent decrease in homelessness and poverty that would push low-income New Yorkers into social service programs.  Throughout his remarks, Chief Judge Lippman argued that legal services for indigent parties should be recognized as a fundamental right, just as we view emergency health care and public education, due to the inherent ethical considerations and our notions of justice.

We look forward to continuing this discussion in the comments section:

• Should all civil litigants have a right to an attorney?  Should a certain class of civil litigants have such a right?
• How does the right to civil legal services fit within the paradigm of due process?
• How should we prioritize civil legal services among the needs of low-income Americans?  If funding for civil legal services is net-beneficial for state budgets, do we need to ask this question?
• Where does the current case law leave us on this issue?  How will Turner v. Rogers be applied?

Please feel free to add additional questions in the comments section.