LARC Cardoso Law (Yeshida Univ)
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Backdating #MeToo
Get PDFThe #MeToo movement radically altered the way that people think about workplace sexual harassment. For decades, women were expected to tolerate a broad range of sexualized conduct at work. However, the revelation of Harvey Weinstein’s misdeeds in late 2017, followed by the exposure of countless other bad actors, dramatically shifted the social narrative regarding appropriate workplace behavior. Conduct that employees once ignored or overlooked suddenly became the basis for vociferous objection; the perfunctory responses to harassment that many employers once adopted suddenly stood out as glaringly deficient.
While society has undergone great shifts in its understanding of and response to workplace harassment, the courts have been slow to respond to these changing views. Various academics and other commentators have argued that sexual harassment law must evolve to catch up to these social changes, but few courts have embraced (or even acknowledged) this new reality. More importantly, virtually no one has addressed how courts should treat cases that span the progression of these norm shifts—cases that may have arisen prior to the upheaval caused by the #MeToo movement, but which are being litigated in the aftermath of these new social standards. This seems particularly striking given the extent to which the legal framework for resolving harassment claims explicitly involves an understanding of broader norms. In an area of the law that turns so significantly on “reasonableness”—whether a “reasonable” plaintiff would have perceived a sexually hostile environment; how a “reasonable” employer or employee should respond in such circumstances—what happens when reasonableness becomes a moving target, even within the duration of a single case?
This Article examines the extent to which current, more stringent social standards regarding workplace sexual harassment should be applied retroactively to cases that may have arisen before those standards came into being. Specifically, it examines what should happen when a court is faced with workplace behavior that would not have constituted actionable harassment at the time that such conduct occurred, but which likely would create liability for the employer under today’s expectations. Should courts “backdate” the new norms created by the #MeToo movement? This Article discusses the ramifications for women—and for society at large—of engaging in such a retroactive application of these evolving standards
Whither Affirmatively Furthering Fair Housing in New York? The AFFH Mandate in an Era of Land Use Reform
Get PDFNew York is experiencing a severe housing affordability crisis. This crisis is driven by a housing supply shortfall decades in the making. The state’s housing shortage exacerbates economic, racial, and regional inequalities, and harms the economy by limiting growth. New York’s struggles with housing affordability reflect a national surge in housing costs since the pandemic that has disproportionally impacted communities of color. Yet, in many respects, the crisis in New York is worse than that in other states with comparably robust housing demand. The extent of New York’s housing affordability crisis has led to growing momentum behind legislative action in recent years. But so far, the New York legislature has failed to pass much needed reforms intended to stimulate housing growth.
A large body of research shows that overly restrictive local land use regulations play a significant role in constraining housing supply and driving up prices. The local adoption of exclusionary zoning practices, such as requiring large minimum lot sizes and prohibiting multifamily development, inhibits the production of enough housing to respond to demand. This problem is particularly acute in high-demand, affluent suburbs. Moreover, it tends to be intractable where control over land use decision-making is left to localities, which often have strong fiscal and political incentives to restrict development. This creates issues of collective action: while it may be rational for individual municipalities to restrict development, these restrictions in the aggregate lead to housing scarcity that substantially increases housing costs and harms the overall regional economy. In response, a consensus is emerging that state-level intervention into zoning and land use policies is needed to address exclusionary zoning’s impact on housing costs.
Exclusionary zoning practices have also been shown to generate significant inequalities and to perpetuate residential segregation by race and income. Additionally, modern-day zoning is rooted in the history of racial segregation and helped to facilitate “white flight”—the postwar movement of white people and capital from the urban core that has profoundly shaped the persistently unequal racial and economic residential patterns of American metropolitan regions. By some measures, the New York City metropolitan area is the most segregated in the nation, and stark levels of segregation are evident in upstate cities as well. New York also has a deep history, even in the recent past, of racially exclusionary suburbs and racial conflict over residential integration.
But while a number of peer states have enacted state-level land use reforms to promote housing development, New York has lagged behind. In fact, New York has some of the most exclusionary zoning in the country. Although New York law ostensibly prohibits exclusionary zoning, the so-called Berenson doctrine is widely regarded as toothless. By contrast, states with comprehensive schemes in place to limit exclusionary zoning see more affordable housing production and higher rates of new homes built than New York.
Fair housing laws prohibit racial discrimination in housing but have largely failed to reduce residential segregation by race. Although federal courts have held that zoning ordinances having a disproportionately exclusionary impact on racial minorities can in some cases violate the Fair Housing Act (FHA), fair housing laws have had a limited impact on exclusionary zoning practices in the aggregate.
A 2006 lawsuit against Westchester County challenging the lack of affordable housing in the County’s predominantly white communities promised to change that by highlighting the potential of an underutilized provision of the FHA requiring the U.S. Department of Housing and Urban Development (HUD) to “affirmatively further” fair housing (AFFH). Yet despite a historic settlement agreement requiring Westchester County to develop a significant number of affordable housing units in predominantly white communities, the effect of the mandate to affirmatively further fair housing on the scope of federal oversight over local housing policy, including land use and zoning regulations, has remained relatively limited. Although the Westchester litigation spurred the Obama administration to create a federal rule in 2015 clarifying the obligations of federal housing funding recipients to affirmatively further fair housing and creating a procedural framework to certify compliance, this rule was repealed by the Trump administration in 2020 and, at the time of writing, remains in the process of being reinstated by the Biden administration. Meanwhile, a handful of states passed their own AFFH legislation, including, in 2021, New York (New York AFFH law). In light of the impending reinstatement of a federal AFFH rule, it remains to be seen to what extent requirements to affirmatively further fair housing will act as a meaningful constraint on exclusionary zoning moving forward.
This Note examines the potential impact of the New York AFFH law as a constraint on exclusionary zoning. It also assesses, in light of the momentum behind state-level interventions into local zoning laws, how New York can strengthen its requirement to affirmatively further fair housing in order to ensure that localities are not only building more housing, but are also actively planning to increase racial and economic integration. Part I examines the federal duty to affirmatively further fair housing, its position within the FHA, and the history of its enforcement. The Part then proceeds to describe exclusionary zoning and its relationship to fair housing, and assesses New York’s exclusionary zoning jurisprudence. Part II examines the New York AFFH law, comparing it to the federal AFFH rule and a similar California law, and finding the New York law lacking both procedurally and substantively. Part III discusses the New York AFFH law as a constraint on exclusionary zoning and argues that in order to meaningfully further fair housing, the law must be strengthened by creating a private right of action, requiring recipients of state housing funding to report their fair housing progress, and more clearly defining what constitutes compliance. Part III concludes by assessing Governor Kathy Hochul’s Housing Compact, a land use reform proposal that failed to pass the state legislature in 2023. It argues that, while such proposed reforms would have represented an important step towards limiting the ability of municipalities to use their zoning powers to exclude, future state land use interventions should include a robust AFFH requirement in order to realize the New York law’s goal of creating more diverse and integrated communities
“Today, the Constitution Prevails”: A History and Legacy of Constitutional Racism
Get PDFIn a decision that surprised almost no one, the United States Supreme Court struck down the affirmative action programs at Harvard College and the University of North Carolina. The majority opinion recounted a jurisprudential history that started with the Fourteenth Amendment, jumped to Plessy v. Ferguson, and lingered on the progeny of Brown v. Board of Education. The opinion hailed Brown as the ultimate triumph, the case that spelled the beginning of the end of racism in America. It declared that the purpose of the Equal Protection Clause is to eliminate “all governmentally imposed discrimination based on race.” In his concurrence, right-wing jurist Clarence Thomas proudly boasted: “Today, . . . the Constitution prevails.”
The “prevailing” federal Constitution makes no mention of African Americans. Prior to the Thirteenth Amendment’s ratification, it made no reference to slavery either. However, the Constitution is a document that has exalted white supremacy from its founding to the present. Implicit racism—racism that is derived from the intended interpretation of facially race-neutral language—is a truly American brand of racism. Ian Haney López’s book Dog Whistle Politics dates the origins of coded racism to the 1960s, with George Wallace and Barry Goldwater as the first dog whistlers. Katie R. Eyer has pointed out that facially race-neutral opposition to racial justice and equality existed during the Plessy era and prevailed in the North as well as the South. In truth, however, coded racism has its roots in the nation’s founding document; the federal Constitution itself is a living example of coded racism.
This Article argues that the federal Constitution has substantively, structurally, and interpretively tolerated a baseline level of racism. Substantively and structurally, the Constitution sanctions anti-Black racism without mentioning race. Interpretively, the Supreme Court’s antebellum jurisprudence, particularly the Dred Scott decision, somewhat departs from the Constitution’s racial spirit; it is explicit in its anti-Blackness. However, its postbellum jurisprudence returns to that spirit of colorblind racism, entrenching racial subjugation through race-neutral language. To be clear, overt racial animus featured prominently in American life and law for most of America’s history. However, the Fourteenth Amendment prohibited state governments from treating persons or groups unequally based on race; and even the Supreme Court of the Old Jim Crow Era, bad as it was, mainly stuck to that command. What the Court did instead was provide a racism guidebook for white society to follow. The Court invalidated state-sanctioned racism when it was glaringly obvious, but it also left the white public constitutionally unrestrained, permitted state passivity in face of private anti-Black racism, and sanctioned coded racism at the state level. In sum, the Reconstruction Era birthed the blueprint for constitutional racism, erecting architecture that has endured to this day.
Students for Fair Admissions is the Supreme Court’s most recent homage to America’s legacy of constitutional racism. It purveys racism while pretending not to; it purports to denounce the very thing it promotes. What the Court calls “racial discrimination” translates to any explicit mentions of race. The Court does not mind—and has never minded—state-sponsored racial subjugation insofar as the state does not obviously identify race as the motive for the governmental action in question. By transmogrifying express invocations of race into “racial discrimination,” the Court mirrors the spirit of the Constitution, issuing lofty pronouncements in favor of freedom for all, while implicitly endorsing the continued government-sanctioned oppression of African Americans. This transmogrification also serves a second purpose: because meaningfully addressing the effects of racial subjugation necessarily requires race-conscious remedies, the Court preserves white supremacy by killing those remedies under the guise of eliminating racial discrimination.
A plethora of Articles denouncing the latest affirmative action decision are sure to come. Past affirmative action and other race-related equal protection decisions have generated much legal scholarship defending race-conscious remedial measures and chastising the Court for its obduracy. They point out fallacies in the Court’s logic and dispel the myth of colorblindness. They call out the hypocrisies of originalist judges who abandon any pretenses of originalism when it comes to interpreting the Fourteenth Amendment. They conclude that negative affirmative action decisions were wrongly decided. They argue for and imagine a more robust Equal Protection Clause and jurisprudence that accounts for history and helps the Black struggle for justice. The author fully accepts the racial justice thrust behind these arguments.
Nonetheless, this Article perversely affirms Justice Thomas’ declaration in Students for Fair Admissions that “[t]oday . . . the Constitution prevails.” Far from being a feat worthy of celebration, however, the Constitution prevailed in that it once again sanctioned coded racism while formally blocking efforts to undo oppression. The Constitution prevailed in that it empowered racist politicians across the country to oppose racial justice not only with renewed vigor, but with a vocabulary that allows them to shamelessly cast themselves as proponents of racial equality. The Constitution prevailed, to be blunt, in that it scored yet another victory against a 235-year adversary: racial justice and equity. Race-conscious remedies are unconstitutional because the order of the nation’s founding document has been, remains, and will likely forever be, the preservation of white supremacy.
This Article borrows from Derrick Bell’s theory of racial realism: the idea that full racial equality for African Americans is unattainable in the United States. This Article modifies that theory to call for a “constitutional realism” with respect to racial justice; it calls for recognizing that the federal constitution has always been and will remain the fundamental legal barrier to righting America’s past and present racial wrongs. If racial equity will ever be achieved in America, the Constitution will not be the vehicle by which it happens. This Article is also the next progression from Ruth Colker’s recent piece The White Supremacist Constitution, an Article that accurately casts the nation’s founding document as a proponent of white supremacy. However, this Article is narrower in scope, focusing on African Americans. At the same time, it also offers a more comprehensive examination of the juridical relationship between the Constitution and race, discussing important foundational cases omitted from Colker’s otherwise brilliant exposition.
This Article proceeds in four parts. Part I defines “coded racism,” drawing from the work of Ian Haney López and Eduardo Bonilla-Silva. Part II examines the original federal Constitution, contrasting its fancy vernacular with the intentions behind it. While numerous scholars have recognized the original Constitution’s condonement of chattel slavery, no casting of the Constitution as a dog whistle document exists. Yet, the original constitution is a coded racism template flavored with anti-Blackness. As to African Americans, it features no race-specific language and no references to slavery. Nonetheless, Congress and the Supreme Court understood its intended meaning as a white supremacist document.
Part III explains the components of the constitutional racism blueprint the Supreme Court designed during the Reconstruction Era. It examines the cultivation and maintenance of the architecture of constitutional racism from post-Reconstruction to the present. It explores the blueprint’s modifications as well as its consistency over time across various Court spans. Considering the Constitution’s anti-Black nature, the focus here will be on anti-Black racism; this is particularly appropriate given how the Supreme Court weaponized other racial groups to kill affirmative action.
Part IV situates Students for Fair Admissions into the American history of constitutional racism. The majority opinion follows the framework of the Constitution; its rhetoric is grandiloquent, but it deliberately promotes racial inequality. The longstanding opposition to affirmative action has always struck this same tone. Part IV also examines the responses of the decision’s proponents both before and after the decision; Students for Fair Admissions was barely off the presses before right-wing politicians began weaponizing it against existing racial justice efforts. Finally, Part IV sums up what this decision confirms with a bold assessment: the federal Constitution is the enemy of racial justice, and equity advocates should look elsewhere for solutions
Is Grammar Religious Exercise? Addressing Transgender Students and the Limits of the Complicity Doctrine
Get PDFMay teachers reject transgender students’ names and pronouns on religious grounds? Across the United States, many schools and universities have adopted policies calling on staff to use all students’ designated first names and gender-congruent pronouns. A number of conservative Christian teachers have claimed that they cannot address transgender students in this way without violating their religious beliefs. In several cases, after unsuccessful attempts by administrators to accommodate these objections, teachers who were subject to employment consequences have brought lawsuits alleging violation of their religious liberty and free speech rights.
This Note employs two recent cases to examine courts’ reasoning on the claims for religious exemption from using gender-congruent language. Typically, teachers claim that addressing transgender students according to gender identity would violate a sincere religious belief in binary, immutable sex. This Note examines these cases against the backdrop of an increasingly blurred boundary between First Amendment speech and free exercise analyses, waning concern in church-state separation by the Supreme Court, and a proliferation of religious exemptions from neutral, generally applicable laws.
The religious exercise-speech blurring is part of a doctrine I term “religious exemptionalism” that diverges from traditional First Amendment jurisprudence, which distinguished between free exercise and freedom of speech claims. This Note contends that the Court has improperly mixed principles from each line of precedent, creating a “complicity of conscience zone” that extends religious exercise protections far beyond what was deemed religious conduct in the past. This expansion is possible because courts have gradually set aside any nexus inquiry for religious liberty claims, taking only minimal steps to examine the connection between an asserted religious belief and the conduct a party seeks to avoid. Courts have thus upheld religious exemptions that lack a concrete link between a plaintiff’s tenets of faith and the requirements of law.
This Note places the school pronoun cases in the broader landscape of First Amendment jurisprudence, as a site of conservative Christian resistance to sexual and gender minority rights. It contends that teachers’ refusal to call transgender students by their names or refer to them with gender-congruent terms is a poor fit for the free exercise framework, because speaking to or about an individual student is not religious practice, nor does it express a specific belief. The mode of speaking to a student lacks a plausible nexus with religious beliefs about the nature of sex and gender because, grammatically, personal pronouns merely refer to other nouns, while first names are inherently individual and do not convey a speaker’s beliefs.
Though courts may not evaluate the truth or content of a religious belief when they decide whether a person’s free exercise rights have been violated, this Note contends that they must evaluate whether a conflict actually exists between the sincerely held religious belief and the law or policy at issue. This Note proposes that courts revisit and strengthen the nexus inquiry in religious liberty cases by (1) evaluating whether the objected-to conduct has a concrete relationship to a claimant’s religious practice interests; (2) treating free speech claims as distinct, unrelated to the sincerity and religious nature of a claimant’s beliefs; and (3) accounting for whether the purpose of the exemption is fundamentally coercive.
Part I of this Note provides historical and legal context for school pronoun cases in terms of past litigation over transgender people’s rights, the shifting balance in free exercise versus separation of church and state at the Supreme Court, and the First Amendment rights of government employees. As background for discussion of how blurring free speech and free exercise doctrines expands religious exemptionalism, it also delineates traditional interpretation of speech versus free exercise protections and the traditional distinction between expressive conduct and pure speech.
Part II sketches the typical school pronoun cases and presents courts’ reasoning on free exercise claims for two illustrative cases. Subsequently, Part III contends that courts failed to adequately inquire into the nexus between teachers’ asserted religious beliefs and the exemptions they request. It explains how non-expressive speech-acts can cause concrete harm through differential treatment even when the words themselves lack an inherent message. Further, it critiques courts’ mixing religious liberty and free speech analyses, and concludes by arguing that even if misgendering were constitutionally protected, the balance of interests would weigh heavily in favor of educational institutions based on analysis of third party harms.
Part IV considers the broader ramifications of blurring free speech and free exercise analyses and concomitant expansion of religious exemptions. Finally, it proposes a framework for distinguishing religious exemption claims that are properly protected from those that are not. This Note ends with remarks on the implications of religious exemptionalism and blurred free speech–free exercise analyses for minority protections, including religious interests
Commercial Transactions: A Systems Approach, Eighth Edition
No full textCommercial Transactions: A Systems Approach explores the nuances of transaction law from a systems’ perspective, examining the infrastructure that supports commercial transactions and how lawyers apply the law in real-world situations. Its outstanding team of co-authors uses an assignment-based structure that allows professors to adapt the text to a variety of class levels and approaches. Well-crafted problems challenge students’ understanding of the material in this comprehensive, highly teachable text.
New to the Eighth Edition: 25 new cases, spread across all three major parts of the text Coverage of the July 2022 amendments to the Uniform Commercial Code UCC Article 12, establishing rules for transactions in cryptocurrency and other controllable electronic records Textual material that analyzes the 2022 Amendments to Article 2 and their effect on hybrid transactions, the statute of frauds, and the parol evidence rulehttps://larc.cardozo.yu.edu/faculty-books/1123/thumbnail.jp
Cardozo Law News Brief: January 19, 2024
Get PDFFeatured Faculty: Jessica Roth Pamela Foohey Burton Lipshie Michael Pollack Gabor Rona Richard Weisberg
Events: The 2024 Cardozo Colloquium on Global and Constitutional Theory The FAME Center Presents: An Evening with Steve Madden Cardozo Law Review Symposium on Ethics in the Judiciary and the Legal Profession: Are We in Crisis
Book Talk: How to Save the World in Six (Not So Easy) Steps
Get PDFJoin Professor David M. Schizer of Columbia Law School in conversation with Dean Melanie Leslie of Cardozo Law School about Professor Schizer\u27s new book, moderated by Cardozo\u27s Professor Michelle Greenberg-Kobrin.https://larc.cardozo.yu.edu/event-invitations-2024/1003/thumbnail.jp
Black History Month Dinner Black Art and Resistance: An Ode to Billie Holiday and Nina Simone
Get PDFhttps://larc.cardozo.yu.edu/flyers-2023-2024/1093/thumbnail.jp
\u3ci\u3eBostock\u3c/i\u3e and Its Progeny: A Path to Protection for the LGBTQ+ Community
No full textThe Bostock v. Clayton County decision marked a pivotal moment in extending federal protections under Title VII to the LGBTQ+ community, prohibiting employment discrimination based on sexual orientation and gender identity. This ruling has had far-reaching implications, influencing various cases across federal and state courts, though its application varies, leading to a diverse landscape of protections