[Fiyah!] Olatunde Johnson (Columbia) on "Equality Law Pluralism"....

Olatunde C.A. Johnson (Columbia), Equality Law Pluralism, 117 Colum. L. Rev. 1973 (2017)

Olatunde Johnson (Columbia)

Olatunde Johnson (Columbia)

I wholeheartedly endorse the quest for “equality law pluralism”.  Consistent with Professor Johnson’s scholarly call to action, the legal conception of racism as asymmetrical market imperfections is designed to “advance new regulatory regimes … that seek to link questions of identity inclusion to economic inequality and the distribution of public goods.”  Whether it moves “beyond the formalist, liberalist assumptions of traditional civil rights regimes”, I cannot tell.  I hope AMI moves what was past to the present. - DreSmith

Abstract:

This contribution to the Constance Baker Motley Symposium examines the future of civil rights reform at a time in which longstanding limitations of the antidiscrimination law framework, as well as newer pressures such as the rise of economic populism, are placing stress on the traditional antidiscrimination project. This Essay explores the openings that nevertheless remain in public law for confronting persistent forms of exclusion and makes the case for greater pluralism in equality law frameworks. In particular, this Essay examines innovations that widen the range of regulatory levers for promoting inclusion, such as competitive grants, tax incentives, contests for labor agreements and licenses, requirements attached to land-use development, and scoring systems for public contracts that reward entities for pursuing equity goals. Relying on these types of regulatory incentives and levers expands the mechanisms typically employed to advance integration and equity and builds on tools available not just at the federal level but also at the state and local level. Even in the present political environment, this Essay argues there is utility in advancing new regulatory regimes that move beyond the formalist, liberalist assumptions of traditional civil rights regimes and that seek to link questions of identity inclusion to economic inequality and the distribution of public goods.

From the Article:

Since the establishment in the 1960s of constitutional rules barring state-sponsored segregation and of a statutory civil rights framework that prohibits discrimination in education, public accommodations, housing, voting, and other areas of public life, the narrative has shifted to the messier work of implementation, or of removing structural rather than formal limitations....

Motley's move to state and city government resonates with an account of why the antidiscrimination project in some respects has stalled. First is the limitation of discrimination (at least in its judicial formulations) as an explanation for persistent inequality--its dependence on the notion that removing formal barriers could alter the underlying institutional frameworks, or remedy centuries of disinvestment in communities. We can call this the formalist assumption underlying antidiscrimination law. The second and related assumption is the antidiscrimination framework's dependence on courts for norm implementation...

No doubt, one might welcome legal liberalism's court-centered, lawyer-directed approach for battling incipient authoritarianism or securing basic democratic rights,but it seems less suited to the multidimensional work of implementing social and economic inclusion...

In this Symposium contribution, I explore the openings in public law for confronting persistent forms of exclusion at a moment in which antidiscrimination frameworks are under challenge. My interest in particular is in expanding the regulatory mechanisms that governments utilize to spur and require inclusion....

Questioning the adequacy of the framework has perhaps become more salient as economic inequality, rather than racial inequality, has come to dominate public discourse on inequality.  More pointed is the emergence of a new economic populism that implicitly and explicitly questions whether “discrimination,” and particularly “race,” defines the real problem of inequality and whether racial or identity-based discourse thwarts the coalition building and organizing necessary to advance economic inclusion...

The legal liberalism critique prevalent since the 1980s and 1990s questions the lawyer-driven model of social change, characterized most prominently by the LDF model, for being too determined by elite lawyers and insufficiently connected to social movements. Another related critique is that the LDF model depends too much on courts for implementing remedies or is insufficiently attentive to how to design remedies that might produce actual change in policy domains.Related to this critique is a questioning of the specific approach taken by LDF as too driven by the integrationist and insufficiently redistributive priorities of the elite...

one might argue that courts failed. Cases like San Antonio Independent School District v. Rodriguez and Milliken v. Bradley sought to take the antidiscrimination approach further, challenging in constitutional terms the ways in which government decisions, boundaries, and resource allocations cemented both racial and economic inequality, but each failed in court...

In recent years, statutes that protect the economically vulnerable have been the particular focus of state and local innovation. In this regard, several states and localities have adopted statutes prohibiting discrimination on the basis of unemployment status, credit history, source of income, and arrest or conviction status.These innovations are important, but as shown below, the structure of the prohibitory approach in antidiscrimination law has attendant limits...

This prohibitory antidiscrimination approach creates important incentives for compliance. For instance, civil rights statutes frequently provide not just injunctive relief, but also attorney's fees, compensatory damages, and even punitive damages.Institutions that want to avoid lawsuits, administrative enforcement action, and paying attorney's fees and damages will likely conform their behavior accordingly. There is some evidence of this dynamic at play…

Yet there is also evidence of a countertrend in that the volume of cases does not necessarily lead to better implementation of the statutory goals. In recent years, studies have found that plaintiffs are not typically victorious, and decisions favorable to plaintiffs are eight times more likely to be reversed on appeal than decisions favoring employers.By some accounts, the amount of Title VII litigation may make judges more hostile to those claims.Commentators have noted that federal judges find Title VII claims to be unmeritorious, “brought by whining plaintiffs who have been given too many, not too few breaks along the way.”...

Besides potential judicial hostility rooted in the volume of Title VII litigation, the doctrinal landscape makes it hard for plaintiffs to win. Legal scholars have well documented these limitations. The doctrine emphasizes conscious, explicit discrimination--the idea of the individual bad actor--when discrimination in fact is often implicit, hidden in organizational practices, subtle, and complex,the result of institutional indifference or negligence, or the result of subjective practices...

even if one were to pursue improvements within the litigation realm, the limitations of the existing approach should lead us to explore whether we might gain more from alternative approaches...

A second set of problems stems from variation in the incentives for litigation, which inherently limit efficacy in a complaint-driven enforcement regime. Lawyers will have incentives to bring cases that they are able to win (or to extract a settlement from) and that yield higher damages...

The second critique of the civil rights paradigm relates to the more fundamental limits of the antidiscrimination approach and its capacity to address group-based subordination and economic inequality. In many respects, this critique is also longstanding: that the antidiscrimination framework emphasizes formal inclusion at the expense of substantive inclusion, thus leaving behind those who lack the economic means and capital to make use of opportunities....

Legal and social science commentators have observed that discrimination is at most a partial explanation for inequality, and that antidiscrimination law is in fact increasingly irrelevant. [See Ford, supra note 19, at 10-14 (arguing that “civil rights litigation and activism don't do enough to redress today's most serious social injustices, many of which aren't caused by overt prejudice or simple discrimination”); Loury, Anatomy of Racial Inequality, supra note 6, at 92-93 (arguing that discrimination should be “demoted, dislodged from its current prominent place in the conceptual discourse on racial inequality in American life”); Ralph Richard Banks & Richard Thompson Ford, (How) Does Unconscious Bias Matter?: Law, Politics, and Racial Inequality, 58 Emory L.J. 1053, 1120 (2009) (arguing that if “we are legitimately concerned about substantive disparities” then the “goal of eliminating discrimination is too modest, not ambitious enough”).]

The mismatch occurs because antidiscrimination frameworks often assume a type of formal equality among individuals or groups.In the area of employment, for instance, the antidiscrimination model takes workers where it finds them, and thus it fails to provide training or address other barriers to inclusion such as transportation or childcare...

In addition to these internal critiques, the marginalization of antidiscrimination law in recent discourse to advance economic inequality has also become a problem. Major academic pieces on economic inclusion may assume a baseline of civil rights law, but civil rights are often not featured in contemporary strategies to achieve economic equality, whether centered around courts or policy domains.

In part, this omission might reflect a tendency to sideline race when addressing economic inequality.Or it may be the result of an empirical debate that assumes discrimination is not a meaningful contributor to economic inequality.But the exclusion likely also reflects a normative political choice in which discussion of antidiscrimination law (“race”) may subvert the purportedly broader strategies needed to address economic inequality...

But even as one avoids creating a sharp binary that casts courts and antidiscrimination law as irrelevant to address racial, ethnic, and economic inequities, the limitations of past litigation and public law strategies would seem to demand supplemental approaches. The limits of antidiscrimination law should lead us to examine (1) the possibilities of strategies that extend beyond the prohibitory antidiscrimination regime as a framework to advance inclusion, attending to substantive and resource disparities that do not fit well within the formal equality model; (2) a broader range of strategies that, while not sidelining courts, incorporate other levers to prompt inclusion; and (3) models that engage social movements and local groups, including those not organized around antidiscrimination....

[AMI is the way to make antidiscrimination and economic inequality complementary instead of binary.]

This section argues that the equality law regulatory model relies on an insufficiently broad set of enforcement and inducement tools. Many contexts of public regulation outside of equality law engage a fuller range of public law and private law regulatory tools, moving from “hard” forms of regulation--such as in command-and-control regulation and prohibitions enforced by administrative enforcement and litigation--to “softer” approaches--such as incentives, grants, disclosure, and even private rating systems...

A first possibility builds on the insights of conditioned spending, which rewards entities and institutions that adopt inclusionary practices that go further than baseline requirements of antidiscrimination...

Beyond the competitive grant model, another approach would be to attach a set of mandates or goals to a more expansive swath of government benefits or programs. Governments design tax programs and issue tax incentives, make zoning decisions, issue permits and licenses, and purchase services. Any of these might be areas for leveraging inclusion...

In the context of employment, these regulatory leverage points might include procurement and other mechanisms such as zoning, tax credits, licensing, and negotiated labor agreements. For instance, local governments can enact a set of regulatory requirements and incentives for hiring and training minority and traditionally excluded workers, and for encouraging linkages between credentialing institutions (high schools, trade schools, community-based organizations, and community colleges) and employers....

For example, contractors and labor unions working on major, multiyear public projects could be directed to agree to a workplace equity and inclusion component. The inclusionary agreement may require the hiring and training of graduates from particular training schools or community workforce programs that train and support historically excluded groups, or of a certain percentage of local workers on a craft-by- craft basis to the extent allowable by local law. Furthermore, race, ethnicity, and gender hiring goals could be set as allowed by law and local conditions. Monitoring and accountability by the government actor and by community stakeholders would be built into the agreement at its inception...

A regime that relies so heavily on these types of regulatory inducements might be faulted for giving up on direct mandates, sticks, and prohibitions that seem to form the current civil rights regime....

Current civil rights regimes also depend on incentives and inducements that take place in the shadow of the regulatory framework…

What I mean to capture in this framework is the need to develop public law regimes that build on the complex motivations that individuals, institutions, and governments have to work toward inclusion, which are not easily or properly captured by an assessment of economic costs and benefits.In simpler terms, governments, nonprofits, and private actors might seek to advance inclusion to benefit their economic bottom line and avoid sanctions, as well as to include historically excluded communities, revitalize low-income communities, promote economic development, provide better education and housing, and express public values...

Localities have begun using a range of regulatory levers to address spatial and occupational segregation and exclusion in growing urban areas. Cities employ a variety of strategies to encourage employers to train and hire employees in local communities and from traditionally excluded groups, improve labor market and wage conditions, prevent displacement, and provide affordable housing.The use of these regulatory levers has expanded in recent years...

Specifically, jurisdictions are using city contracts, tax incentives, and land-zoning approvals as leverage points to require inclusive development by companies. Most typical is the use of procurement--which cities have long harnessed to place hiring, wage, and other conditions on recipients of city contracts--to promote economic inclusion.The City of Oakland's labor agreement for the redevelopment of its port provides an example, expanding uses of procurement from affirmative action and wage conditions to mandate the development of training, hiring, and support initiatives for local residents, such as childcare programs...

State and local contracts, public land, and public spending provide straightforward examples of public goods that may be seamlessly marshaled as regulatory levers to advance equality and inclusionary goals...

As a matter of regulatory design, some jurisdictions have introduced these inclusionary inducements as a set of across-the-board requirements on entities that receive public goods, including tax credits. For instance, the City of San Francisco has for several years required entities that receive city funds or city leases, or whose projects require planning approval, to engage in “first source” hiring of local residents from particular training centers with the goal of connecting economically disadvantaged local residents to employment in growing sectors.110 The City of Detroit recently enacted an ordinance that requires developers with projects valued at more than $75 million, and who are receiving more than $1 million in tax benefits from the city, to negotiate a community benefits agreement...

These requirements also address barriers that are typically outside the scope of antidiscrimination law's formal equality model, by providing supports that address the full range of barriers that workers face such as exclusion from race- and gender-delineated networks,lack of adequate training, and lack of access to childcare services...

Effective inducement strategies build in accountability and monitoring as general practices and provide judicial review and penalties for noncompliance...

The community benefit agreements discussed above have generated interest from scholars of labor and community economic development,and there is evidence that they are benefiting local communities.Labor scholars have cast these initiatives as part of a “new accountable development” movement in which employers and residents seek full participation in the development that is shaping their communities.But these types of agreements are not included within the framework of equality law, which is generally confined to antidiscrimination law. My suggestion is that we also understand these regulatory inducements as an equality law intervention--part of a continuum of regulation that begins with traditional antidiscrimination law but that should ultimately include a broader range of mechanisms as well as a broader range of equality and inclusionary goals...