by David Cole
Achieving justice for racial discrimination has long been fraught with obstacles. During the civil rights era, it was Southern governors and school boards who blatantly obstructed court orders to desegregate schools. In more recent years, the burdens have been erected not by Southern politicians, but by the courts themselves. The Supreme Court has made it virtually impossible to prove race discrimination short of compelling evidence that specific individuals were intentionally targeted because of their race; proof that government policies or practices—up to and including the death penalty—have widespread discriminatory effects on African-Americans is not enough. And by striking down a core part of the Voting Rights Act last term, the Supreme Court has decided that states and localities that had discriminatory voting practices in the past no longer need to have changes to their voting laws vetted to ensure they don’t continue to discriminate.
Now, a decision by the US Court of Appeals for the Second Circuit suggests that there is no limit to the obstacles courts can raise to claims of race discrimination. Not only did the Court of Appeals temporarily stay any remedies arising from a landmark lower court decision in August finding that the New York City Police Department had engaged in intentional discrimination in its “stop-and-frisk” program; it also took the extraordinary step of removing the lower court judge from the case.
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