EJS 20th Anniversary – Reflecting on 2012: Advancing Our Work on Implicit Bias and the Intent Standard

At our June 2012 Judge Constance Baker Motley Civil Rights Fellowship Luncheon, EJS President Eva Paterson (right) moderated a special discussion on the state of current anti-discrimination litigation efforts in the Courts with (from left): EJS Legal Director Allison Elgart, former U.S. Assistant Attorney General for Civil Rights Bill Lann Lee, Rebekah Evenson (now Alameda County Superior Court Judge) of the Prison Law Office, and MALDEF President and General Counsel Thomas A. Saenz. Photo by Bob Hsiang.

2020 is the 20th anniversary of the Equal Justice Society. Every week leading up to our 20th anniversary celebration on September 17, we will highlight one year in our history. This week we remember 2012.

In 2012, our efforts to illuminate implicit bias and to roll back the intent standard gained steam on a number of fronts.

IMPLICIT BIAS / Fisher v. University of Texas at Austin – On August 13, 2012, EJS, in partnership with the law firm of Wilson Sonsini Goodrich & Rosati, and the Haas Diversity Research Center at the University of California, Berkeley, wrote an amicus brief on behalf of 13 of the nation’s leading social scientists. The brief offered a deeper understanding of how a diverse educational environment benefits White students as well as students of color, and why diversity benefits society as a whole, even more than previously understood.

The brief was submitted by legal counsel EJS President Eva Paterson, EJS Legal Director Allison S. Elgart, and EJS Staff Attorney Fabián Rentería, a team of attorneys from Wilson Sonsini Goodrich & Rosati, and john a. powell and Stephen Menendian of the Haas Diversity Research Center at the University of California, Berkeley. Oral arguments were heard on October 10, 2012.

EJS organized a panel about the Fisher amicus efforts, hosted by Wilson Sonsini in Palo Alto, on October 9, 2012. Fabián moderated the panel, which included Allison Elgart from EJS, Savith Iyengar of Wilson Sonsini, and Stephen Menendian of the Haas Diversity Research Center.

IMPLICIT BIAS / Expert Panel: ‘Achieving an Impartial Jury: Removing Bias in Voir Dire and Deliberations’ – EJS Legal Director Allison Elgart was asked to serve on an Expert Panel for a grant-funded project by the ABA Criminal Justice Section entitled Achieving an Impartial Jury: Removing Bias in Voir Dire and Deliberations. The ABA formed the Expert Panel with individuals and representatives from a broad-based coalition of criminal justice groups that are experts in implicit bias, cultural competency, jury voir dire/jury deliberations, and racial justice issues, including leaders in Neurology, Social Science (psychology), Criminal Law (defense, prosecution and academia) and the Judiciary.

IMPLICIT BIAS / Implicit Racial Bias Across the Law Book Launch Conference, Charles Hamilton Houston Institute for Race and Justice, Harvard Law School – On June 14, 2012, Eva Paterson, Allison Elgart, EJS Director of Development Nicole Medeiros, and consultant Kimberly Papillon attended the “Implicit Racial Bias Across the Law” Book Conference hosted by the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School. Professor Charles Ogletree, the founding board chair of EJS, established the Institute in 2005. Eva was a panelist on “Courtroom Implications of Implicit Bias,” along with Judge Mark W. Bennett, U.S. District Court for the Northern District of Iowa (now retired), Judge Nancy Gertner, U.S. District Court for the District of Massachusetts (now retired), and distinguished academics. Eric Yamamoto, also a founding board member of EJS, and Susan Serrano, EJS’s founding research director, also spoke at the conference. The conference, designed to coincide with the launch of the book “Implicit Racial Bias Across the Law,” edited by Justin Levinson and Robert Smith, examined both the continued subordination of historically disadvantaged groups and the legal system’s complicity in this subordination through the lens of powerful and pervasive implicit racial attitudes and stereotypes.

INTENT STANDARD / Magner v. Gallagher – In Magner v. Gallagher, the Supreme Court of the United States was to decide whether disparate impact claims were cognizable under the Fair Housing Act (FHA) and which test should be used to analyze whether a practice has a discriminatory effect. EJS signed on to an amicus brief submitted in January 2012 by The Opportunity Agenda, urging the Court to rule that the FHA includes a disparate impact standard. Several of the nation’s leading civil rights organizations, including the ACLU, The Lawyers’ Committee for Civil Rights Under Law, and the NAACP Legal Defense & Educational Fund, twelve state Attorneys General, and the federal government filed briefs in favor of allowing disparate impact claims under the FHA. The case was dismissed by agreement of both parties and was not heard in the Supreme Court.

INTENT STANDARD / Inadequate Special Education Services for Young Men and Boys of Color in Public Schools – In 2012, EJS was called in by the Disabilities Rights Education and Defense Fund (DREDF) to discuss how the intent standard hurts people in the disability community and to examine how to forge ties between the movements for racial and disability justice. DREDF asked EJS to assist with the case of a teenage African American boy whose diagnosis of ADHD was inadequately addressed by special education services in his school. EJS and the team located a psychologist to conduct an independent evaluation, diagnosis, and treatment plan for this student, and DREDF helped resolve the student’s case.

INTENT STANDARD / Section 1983 Legal Training – On June 11, 2012, EJS sponsored a lunchtime training on 42 U.S.C. Section 1983 conducted by Bill McNeill, an attorney at the Legal Aid Society Employment Law Center (LAS-ELC). Bill explained the basics of pleading a 1983 claim, gave numerous case citations and treatises to use as authorities on researching 1983 case law, and explained how 1983 claims interact with the intent standard and affect EJS’s legal strategy.

INTENT STANDARD / Avondale-Glen Elder and the Sacramento Natural Gas Storage Project – EJS investigated a potential environmental justice case in the Sacramento community of Avondale-Glen Elder, with primary counsel at the Legal Services of Northern California (LSNC) and the Avondale-Glen Elder Neighborhood Association (AGENA). The Sacramento Natural Gas Storage (SNGS) Project attempted to site eight billion cubic feet of natural gas under the neighborhood, despite the fact that the unprecedented and unnecessary project posed a significant risk to the district’s inhabitants. Avondale- Glen Elder is a historically African American neighborhood and today 85 percent of its residents are people of color. EJS brought to the case an interest in legal arguments of environmental justice under the Equal Protection Clause to fight the intent standard. AGENA and LSNC ultimately succeeded in halting the project. 

INTENT STANDARD / McCleskey v. Kemp 25th Anniversary – In April, the NAACP LDF and the Equal Justice Society spearheaded an outreach effort to raise awareness of the 25th anniversary (April 22) of the Supreme Court’s McCleskey v. Kemp decision. In 1987, McCleskey v. Kemp imposed the intent standard on challenges to death sentences, almost entirely preventing capital defendants from raising the issue of race in their defense. The outreach effort included the partnership of organizations involved with the Abolition 2025 Campaign and the Engaging Communities of Color Working Group. The NAACP LDF served as the lead voice for the outreach, with the Equal Justice Society staffing the effort.

Additional highlights of 2012:

Connerly v. State of California – The California Citizens Redistricting Commission was created by California voters through the passage of Proposition 11. The purpose of Proposition 11 was to ensure that the Commissioners that serve on the Commission and are charged with redrawing California’s legislative and Board of Equalization districts reflect California’s diversity. The Proposition was also designed to give the State legal cover from a lawsuit based on Proposition 209. The Pacific Legal Foundation has brought suit on behalf of Ward Connerly against the State in Superior Court in Sacramento. The lawsuit claims that the Redistricting Commission’s member selection process violates Proposition 209, which prohibits “preferential treatment” on the basis of race or sex in public education, contracting, and employment. EJS helped draft an amicus brief in support of the State of California, along with co-counsel the ACLU Foundation of Southern California, the Asian Pacific American Legal Center, the Lawyers’ Committee for Civil Rights of the San Francisco Bay Area, and Munger, Tolles & Olson LLP.

White Housing Briefing on Judicial Nominations – On May 7, 2012, EJS Legal Director Allison Elgart and EJS Board Member Tobias Barrington Wolff, a law professor at the University of Pennsylvania, were among 150 leaders who went to the White House to share their experiences and concerns about judicial nominations with administration officials, including Attorney General Eric Holder and the President’s judicial selection team.

CCRC Tax and Budget Policy Video – EJS launched a website in early October for the video produced by CCRC on California’s tax and budget crisis. The announcement of the video reached 24,125 users on Facebook and 12,400 users on Twitter through sponsored posts. 

CCRC Communications Roadshow – Claudia Peña, Statewide Director of the California Coalition for Civil Rights and EJS Director of Communications Keith Kamisugi conducted a statewide series of workshops to take place in October for small nonprofits, advocates and activists fighting for civil rights in California. This free communications workshop included tips and techniques related to social media, email marketing, media relations, and website creation and management. This workshop was geared for those nonprofits and individuals who did not have dedicated communications staff or resources but wanted to learn how to best integrate strategic communications into their operations and activities.

California Civil Rights Coalition Conducted Workshops in Bay Area and Southern California on Budget and Taxes – In collaboration with Non-Profits Talking Taxes, Claudia Peña traveled around the state facilitating a 2-hour workshop in an effort to reach 10,000 non-profit employees in the state of California. The workshop encouraged participant interest in the budget and taxes so that Californians would learn enough to vote for tax and budget policy from an informed perspective.

CCRC successfully lobbied for Election Day Registration – Working along with Common Cause and other allies, CCRC pushed for AB 1436 which allows for same-day voter registration. By leveraging the power of our Steering Committee, CCRC played a significant role in the passage of AB 1436.

We welcome sponsorships to our 20th anniversary celebration on September 17, 2020, at Herbst Theatre in San Francisco. The evening will include an oratorio by Marcus inspired by the courage of Harriet Tubman and by the two decades of EJS. Please contact Ginger Johnson at gjohnson@equaljusticesociety.org for more information. Thank you!