Tag Archives: Race

Diversity and Disgrace – How the U.S. News Law School Rankings Hurt Everyone

Image Credit: James Sarmiento via Flickr

Image Credit: James Sarmiento via Flickr

By Tony Varona[*]
Professor of Law and Associate Dean for Faculty and Academic Affairs at the American University Washington College of Law

U.S. News and World Report recently released its law school rankings[1] and, as happens every year, readers have focused almost exclusively on the many extreme fluctuations in ranks. Why did Schools A, B and C suddenly jump 20 spots? Did the learning experience at Schools X, Y and Z really erode so dramatically as to justify their 25-spot freefall? What will this big drop (or climb) mean for student and faculty recruitment, and alumni employment rates, at these schools?

Instead, or in addition, we should be asking more probing questions, like: Does the U.S. News measuring stick itself measure up? Is it measuring the right things? And what effects have the U.S. News rankings had on legal education and society itself?

If we were to carry a miner’s canary[2] into the depths of the U.S. News ranking methodology,[3] we quickly would have a dead bird on our hands. Why? Let us look at just one flaw that, standing alone, discredits the U.S. News rankings altogether.

Experts in diversity point to how composites and alloys of diverse elements produce building materials that are much stronger and more robust than their individual parts.[4] They reference how reproductive diversity is crucial for the collective health of species.[5] There is no dispute that biodiversity itself is a linchpin of the planet’s ecosystem.[6] Philosophers such as Montesquieu and Condorcet credited random transactions among diverse merchants for promoting community and trust among different peoples; doux commerce civilized the motley hordes.[7] “Effective competition” requires the participation of a diversity of market competitors in delivering the best consumer value. And financial advisors urge us to diversify our investments so that we can better optimize the performance of our portfolios in uncertain markets.[8]

In short, diversity pays off in many areas.

In legal education, diversity among students is indispensable. We train law students, after all, to be “social architects”to serve as ministers of justice among the nation’s very diverse communities. Unsurprisingly then, an awareness of and comfort with the diversity of races, ethnicities and backgrounds that make up our societyand that are dependent upon our legal systemhelp law students become better and more effective lawyers.[9] In his plurality opinion in 1978’s Bakke[10] decision, Justice Powell wrote that “[i]t is not too much to say that the ‘nation’s future depends upon leaders trained through wide exposure’ to the ideas and mores of students as diverse as this nation of many peoples.”[11] Justice Powell’s words later played a prominent role in the Court’s landmark Grutter[12] decision, upholding the University of Michigan Law School’s diversity-promoting admissions policy.

Precisely how does a high rate of student diversity benefit all law students?

I teach Contracts to a full section of approximately 80 first-year students every fall at my law school, the American University Washington College of Law. Ours was “the first law school in the world founded by women” (in 1896), [13] “the first . . . founded especially for women,”[14] and one of our two founders, Ellen Spencer Mussey, became “the first woman dean of an American law school.”[15] Valuing diversity is in our school’s genome. Nearly 60 percent of our last entering class was comprised of women.[16] Fully 40 percent are racial and ethnic minorities.[17] We welcome many international, LGBT, and disabled students, and students from a spectrum of faiths, cultures and worldviews.

To train advocates, we law professors prefer to conduct our classes less like virtuoso lecturers and more like conductors of well-tuned symphony orchestras.[18] Law teaching is a rigorous, high-energy, and interactive exercise. What my students contribute from class to class, therefore, determines to a significant degree the quality, sophistication and rigor of the teaching we are able to achieve together. It should come as no surprise, therefore, that our school’s high rate of student diversity enriches the educational experience for all of my students throughout the semester.

Here are just a few examples from my last Contracts class:

  • In our first session, I had the students puzzle over an introductory hypothetical. In what cases should a gift shop’s prominently displayed sign saying “You Break It, You Buy It” lead to contractual liability? Almost immediately, some of my multilingual, multicultural students asked something like: “Would the answer not depend on whether the customer in question could read and understand English?” “What if she were blind, or functionally illiterate?” Important, challenging questions.
  • Later, we analyzed a case study involving sex work contracts and the legal bases for their criminalization. In response to several students’ liberty-based arguments for decriminalization, another student presented an eloquent appeal for the subjugation of personal autonomy in favor of communitarian objectives. This value of community over self, tribe over individual, was a decidedly foreign counterpoint delivered by my student from West Africa – a former Christian pastor and community servant.
  • When we discussed the Civil Rights Act of 1866 and its provision against racial discrimination in contract formation and enforcement, we considered the refusal of certain hairstylists to “do African-American hair.”[19] Some of my African-American students offered enlightening and unique observations, stemming from their personal experiences, about how our legal analysis should consider racial differences in hair texture, the manner in which the customer was addressed and treated, the salon’s clientele, and its neighboring community. These inquiries enabled us to go far beyond the otherwise facile substantive framing provided by casebook.
  • In another class, we discussed a viral social media story, likely a hoax but still instructive as a hypothetical case, in which a Chinese father claimed breach of contract against his wife after their biological baby came out, as he put it, “extremely ugly.”[20] The father alleged that his wife had surreptitiously undergone facial plastic surgery in order to induce him into marriage. Our analysis was made all the more sophisticated and culturally competent by the contributions of two of my students – one an Asian-American and the other a native-born Chinese student – who described the prevalence of plastic surgery among unmarried young women within Far Eastern societies.
  • Our examination of the 1902 Alaska Packers’ Association v. Domenico decision[21] was especially telling. Mostly Italian immigrant fishermen in San Francisco were contracted by a salmon fishing and packaging company to sail to Alaska and work in exchange for a flat $50 fee and a commission of 2 cents for every fish caught. The fishermen expected to earn most of their money catching salmon and so were alarmed to find upon arriving in Alaska that the company had plenty of salmon already caught for the fishermen to can and would only provide low-grade fishing nets. [22] They refused to work until the company’s representative granted their demand for a doubling of the base fee. After the company broke that promise, the fishermen sued, and lost. The court held that Alaska Packers’ representative had promised the doubled fee under duress, rendering the promise unenforceable.

    Our casebook presents Alaska Packers as a cut-and-dry application of doctrine, but some of my immigrant, working class, and non-native English students argued for the fishermen. They helped show how the fishermen were at a bargaining disadvantage due to a lack of facility with both the English language and American business practices. It was Alaska Packers who acted in bad faith and breached the contract, they argued, by unfairly saddling the fishermen with a backlog of fish and low quality nets. Their arguments were instrumental in bringing to light a more sophisticated and critical legal analysis found only in the best scholarly writing on the case.[23]

The different perspectives provided by these diverse students, rooted in their own experiences and backgrounds, added depth, nuance and quality to our discussions and debates. Their contributions turned what otherwise would have been rote and simplistic coverage of dusty doctrines into rigorous and careful analyses of the kind that we expect from the most sophisticated of practicing attorneys. Their presence and contributions added significantly to the academic rigor and sophistication of our course, and grounded it in the real world. In other words, they helped produce precisely the sort of learning experience we law professors strive to provide to all of our law students but that would be impossible to achieve in the absence of student diversity.

So, in light of how valuable diversity among students is to legal education, you might be wondering how much weight U.S. News devotes to student diversity in rating America’s law schools. Ten percent? Fifteen?

The answer is… zero.

The U.S. News ranking methodology ignores student diversity altogether in calculating the rankings. It treats a law school with little diversity as virtually indistinguishable from a very diverse school where pedagogically rich exchanges like those above abound.

For a variety of reasons,[24] the average underrepresented minority student tends to have lower GPA and LSAT scores – the myopic[25] academic credentials that U.S. News “counts” – than his or her White, nonminority counterpart. So, it is easy to see how schools that trade student diversity for higher numbers tend to move up in the U.S. News ranks. By contrast, schools that refuse to sacrifice diversity pay a big U.S. News price for pursuing what most educators agree is best for all our students. U.S. News actually rewards less diverse schools for admitting less diverse classes, and altogether ignores the clear learning advantages at the more diverse schools.

It is no secret that law schools have gone as far as admitting much smaller and significantly more homogenous first-year classes, and then letting many more students in through the 2L transfer “back door” (where U.S. News’s methodology does not look), thereby hiding the true credentials of their students from the magazine and artificially inflating their U.S. News ranks.[26] U.S. News does nothing to stop schools from engaging in this obvious manipulation.

The U.S. News editors in charge of the magazine’s law school rankings have known about these (and other) glaring flaws in their ratings methodology for years. I myself, together with colleagues, have spoken about some of these serious shortcomings with Robert Morse,[27] the editor in charge of the U.S. News rankings, twice. Despite the professoriate’s reticence to acknowledge and (we fear) legitimize U.S. News’s rankings, colleagues have made some of the same arguments I have made, as well as many others, again,[28] and again,[29] and again[30] (and again[31]). But to no avail. U.S. News remains unmoved.

Since U.S. News goes so far as to provide diversity data[32] separately from the main rankings, why does it not reward schools that are more diverse than others by incorporating a diversity score in the rankings themselves? Mr. Morse insists that doing so would be difficult.[33] He has argued that “measuring how successful law schools are at achieving diversity goals cannot be included easily in our rankings formula in a fair and meaningful way.”[34] Mr. Morse also has pointed to demographic, statistical and other hurdles.[35] And I agree with him that it would not be easy, particularly in light of the challenge of accurately defining, quantifying and weighting indicia of diversity without inadvertently penalizing schools (like historically Black institutions) that serve underrepresented minorities primarily but are not, in the technical sense, “diverse.” (Sociologists Wendy Espeland and Michael Sauder addressed these and other challenges brilliantly in a 2009 article.[36]) These ambiguities, however, are far less intractable than U.S. News’s current corrosive approach.

Furthermore, it should give pause that Mr. Morse, the guru of the U.S. News law school (and numerous other) rankings, betrays a disturbing ignorance of the significant pedagogical value of student diversity in law school classrooms. He has said that “an important issue” impeding the incorporation of a diversity element into the law school rankings is the “question of whether diversity should even be included in the rankings, given that the main purpose of the rankings is to identify the best schools academically.”[37] Apparently, Mr. Morse believes that student diversity and academic quality are competing instead of complementary objectives. Student diversity, he suggests, detracts from academic excellence, despite the Supreme Court’s own findings to the contrary[38] and the experience of many law students and law professors in diverse classrooms across the nation, including–as I demonstrate above–my own.

The sad truth is that the U.S. News law school rankings have hurt, and not helped, American law students, the legal profession and, thus, society as a whole. The U.S. News rankings have resulted in the denial of a quality legal education to minority law school applicants with great promise and drive but modest, rankings-unfriendly credentials. It has kept deserving students with great potential in the legal profession outside the doors of quality law schools and the profession itself by encouraging restrictive admissions policies geared more towards gaming the rankings than doing what is right societally, and what is best pedagogically.

Adding insult to injury, U.S. News has done all of this at a time when the demographic complexion of the legal profession continues to lag far behind the increasingly rich diversity of the nation’s population. No less than the president of the American Bar Association, James R. Silkenat, recently bemoaned the fact that the American legal profession looks very little like the population it serves. He noted that “[w]hile people of color will soon be the majority in this country, racial and ethnic minorities constitute just 13 percent of lawyers, and minority women are only 6 percent.”[39]

None of this, of course, is to say that White, non-minority students do not have a lot to contribute to in-class analyses, discussions and debates. They very much do. The issue is not about who already is present in many American law school classrooms – it’s who is absent. And there is no disputing the reality that U.S. News’s anti-diversity ranking methodology has led to more homogenous and less effective law school classrooms, harming all of our law students and producing a less sophisticated, worldly and diverse legal profession–a result that hurts us all.

Prospective law students should keep these criticisms in mind as they review the new U.S. News rankings. Applicants are right to choose among their law school options with great care and a skeptical eye. But they also should be wary of the U.S. News law school rankings themselves, which are so flawed and misleading that they may very likely do these students – like so many students before them – a whole lot more harm than good.

[*] The author thanks colleagues Professors Mary Clark, Angela Davis, Robert Dinerstein, Claudio Grossman, BJ Kaufman, Elliott Milstein, Andrew Popper, Jamin Raskin, Darren Rosenblum, Ann Shalleck, and Ari Ezra Waldman, the students in his fall 2013 Contracts class, and John Gill, for very helpful feedback on earlier drafts of this essay. Tami Martin, Esq., provided excellent research assistance. Many thanks also go to Geoffrey Wertime, Scott Bulua and Jonah Peppiatt for brilliant editing.

[1] Travis Mitchell, Best Law Schools 2015, U.S. News & World Rep., March 10, 2014, http://www.usnews.com/education/best-graduate-schools/top-law-schools/slideshows/us-news-best-law-schools-2015.

[2] See Lani Guinier & Gerald Torres, The Miner’s Canary: Enlisting Race, Resisting Power, Transforming Democracy (The Nathan I. Huggins Lectures) (2003) (applying the “canary in the coal mine” metaphor to the function and status of race in the United States).

[3] Sam Flanigan and Robert Morse, Methodology: 2015 Best Law Schools Rankings, U.S. News & World Rep., March 10, 2014, http://www.usnews.com/education/best-graduate-schools/top-law-schools/articles/2014/03/10/methodology-2015-best-law-schools-rankings.

[4] Frederick A. Miller & Judith H. Katz, The Path from Exclusive Club to Inclusive Organization: A Developmental Process 8 (2007), available at http://outandequal.org/documents/KJ_PathFromExclusive_AR_Flat_010509.pdf. See also Jeffrey F. Milem, Mitchell J. Chang, & Anthony Lising Antonio, Making Diversity Work on Campus: A Research-Based Perspective 6 (2005), available at http://siher.stanford.edu/AntonioMilemChang_makingdiversitywork.pdf (discussing educational advantages of diverse college classrooms).

[5] Miller & Katz, supra note 4, at 8.

[6] Biodiversity, World Health Org., http://www.who.int/globalchange/ecosystems/biodiversity/en/ (last visited Mar. 21, 2014, 12:41 AM).

[7] Alessandro Roncaglia, The Wealth of Ideas: A History of Economic Thought 86 (2006).

[8] See, e.g., The Pros’ Guide to Diversification, Fidelity Viewpoints, Fidelity (Sept. 4, 2013), https://www.fidelity.com/viewpoints/guide-to-diversification.

[9] See, e.g., Alyson Oliver and Reed Erikson, Why Leadership Diversity in Litigation Is Crucial, Trial Mag., March 2014, at 40, 40-43. Litigators Oliver and Erikson argue that “[d]iversity breeds courtroom success.” Id. at 41. They observe that, “[g]enerally, diverse groups tend to outperform nondiverse groups by a substantial margin, and they make more innovative business decisions than their homogenous counterparts.” Id. at 40.

[10] Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265 (1978) (quoting Keyishian v. Board of Regents, 385 U.S. 589, 603 (1967)) (upholding the reliance on race as an element in college admissions decisions but invalidating the use of racial quotas).

[11] Bakke, 438 U.S. at 313.

[12] Grutter v. Bollinger, 539 U.S. 306 (2003).

[13] Founders: Mussey & Gillett, Am. U. Wash. Coll. of L., http://www.wcl.american.edu/history/founders.cfm (last visited April 1, 2014).

[14] http://www.wcl.american.edu/history/founders.cfm Virginia G. Drachman, Sisters in Law: Women Lawyers in Modern American History 150 (1998) (emphasis added). Drachman notes that WCL was the first and “only law school in the county devoted especially to women” and “was run and taught primarily by women.” Id. at 152.

[15] Mary Clark, The Founding of the Washington College of Law: The First Law School Established by Women for Women, 47 Am. U. L. Rev. 613, 661 (1998). Dean Clark notes that “[WCL] became the first law school established by and for women in the United States. As WCL’s first and second deans, Mussey and Gillett were the first two women to lead an American law school.” Id. at 614. See also Washington College of Law: Rich in History, Am. U. Wash. Coll. of. L., http://www.wcl.american.edu/history/ (last visited Mar. 21, 2014, 12:58 AM).

[16] Admissions Profile for the 2013 Entering Class, Am. U. Wash. Coll. of L., http://www.wcl.american.edu/admiss/profile.cfm (last visited Mar. 21, 2014, 1:00 AM).

[17] Id.

[18] See Tania Sheko, Should Teachers Be More Like Conductors? TED Tells, Brave New World (Oct. 22, 2009, 8:17 AM), http://tsheko.wordpress.com/2009/10/22/should-teachers-be-more-like-conductors-ted-tells/.

[19] See, e.g., Perry v. Command Performance, 913 F.2d 99 (3d. Cir. 1990) (African-American patron of hairstyling salon refused service by substitute stylist who exclaimed, “No, no, no, no! I don’t do black hair. No, no, no, no! Not today!. . . I’m from New Hampshire and I don’t deal with blacks!”), discussed in E. Allan Farnsworth et al., Contracts: Cases and Materials 176-77 (Foundation Press, 8th ed. 2013); “We Don’t Do Black Hair”: Discrimination at the Hair Salon, Clutch (Oct. 1, 2012), http://www.clutchmagonline.com/2012/10/we-dont-do-black-hair-discrimination-at-the-hair-salon.

[20] Zoe Mintz, Is That Jian Feng? New Ugly Baby Photo Attributed To Chinese Man Who Sued Wife Over Plastic Surgery Deception, Int’l Bus. Times (Nov. 7, 2013, 12:33 PM), http://www.ibtimes.com/jian-feng-new-ugly-baby-photo-attributed-chinese-man-who-sued-wife-over-plastic-surgery-deception. See also Chinese Man Sues Wife for Being Ugly, Wins, WBTV.COM (Nov. 2, 2012), http:// http://www.wbtv.com/story/19986930/chinese-man-sues-wife-for-being-ugly-wins.

[21] Alaska Packers’ Ass’n v. Domenico, 117 F. 99 (9th Cir. 1902).

[22] Id. at 100-01.

[23] See, e.g., Debora L. Threedy, A Fish Story: Alaska Packers’ Association v. Domenico, 2000 Utah L. Rev. 185 (2000).

[24] See Wendy Espeland & Michael Sauder, Rankings and Diversity, 18 S. Cal. Rev. L. & Soc. Just. 587 (2009); Alex M. Johnson, Jr., The Destruction of the Holistic Approach to Admissions: The Pernicious Effects of Rankings, 81 Ind. L.J. 309 (2006).

[25] See, e.g., Phoebe Haddon A. & Deborah W. Post, Misuse and Abuse of the LSAT: Making the Case for Alternative Evaluative Efforts and a Redefinition of Merit, 80 St. John’s L. Rev. 41 (2006)

[26] Catherine Ho, Law School Deans Push ABA About Transfers, Wash. Post (March 23, 2014), http://www.washingtonpost.com/business/capitalbusiness/law-school-deans-push-aba-about-transfers/2014/03/21/d59e2a98-aec1-11e3-96dc-d6ea14c099f9_story.html (“At issue is what many legal educators say is an effort by some schools to keep the data hidden in order to inflate their credentials for rankings purposes. Because U.S. News and World Report’s law school rankings look at the median LSAT scores of first-year students, but not the LSAT scores of transfer students — which are typically lower — critics contend the practice allows the schools to game the system.”).

[27] Mr. Morse’s official title is “Director of Data Research” for the magazine and, according to the biography on his blog, “[h]e develops the methodologies and surveys for the Best Colleges and Best Graduate Schools annual rankings….” Bob Morse, Morse Code: Inside the College Rankings, U.S. News & World Rep., http://www.usnews.com/education/blogs/college-rankings-blog (last visited April 2, 2014).

[28] Karen Sloan, Law School Rankings Complicate Diversity Efforts, Research Suggests, Nat’l L. J., http://www.alm.law.com/jsp/article.jsp?id=1202445313688&slreturn=20140220234501 (last visited Mar. 21, 2014, 1:22 AM).

[29] Victor Gold, What’s Really Behind U.S. News’ Refusal to Consider Diversity?, Huffington Post (Mar. 21, 2011, 2:53 PM), http://www.huffingtonpost.com/victor-gold/whats-really-behind-us-ne_b_838580.html.

[30] Louis H. Pollak, Why Trying to Rank Law Schools Numerically is a Non-Productive Undertaking: An Article on the U.S. News & World Report 2009 List of The Top 100 Schools,” 1 Drexel L. Rev. 52 (2009).

[31] Johnson, supra note 24. See also SALT Statement in Support of U.S. News & World Report Boycott (May 21, 2010), available at http://www.saltlaw.org/userfiles/file/5-21-10rankings%20letter.pdf; Jeffrey E. Stake, The Interplay Between Law School Rankings, Reputations, and Resource Allocation: Ways Rankings Mislead, 81 Indiana L. J. 229 (2006).

[32] Law School Diversity Index, U.S. News & World Rep., http://grad-schools.usnews.rankingsandreviews.com/best-graduate-schools/top-law-schools/law-school-diversity-rankings (last visited Mar. 21, 2014, 1:28 AM).

[33] Robert Morse, Should Diversity Be Added to Best Law Schools Rankings?, Morse Code: Inside the College Rankings, U.S. News & World Rep. (April 7, 2011), http://www.usnews.com/education/blogs/college-rankings-blog/2011/04/07/should-diversity-be-added-to-best-law-schools-rankings [hereinafter Should Diversity]; Sloan, supra note 28 (“Bob Morse, director of data research for U.S. News, said that diversity is a complicated issue that cannot easily be incorporated into its rankings formula. ‘To say that U.S. News is inhibiting law schools from taking minority students is a misunderstanding of the mathematics behind the rankings,’ he said.”); Debra Cassens Weiss, US News Weighs Request to Add Diversity Measure to Law School Rankings, ABA J. (Apr. 8, 2011, 10:28 AM), http://www.abajournal.com/news/article/us_news_weighs_request_to_add_diversity_measure_to_law_school_rankings.

[34] Should Diversity, supra note 33.

[35] Id.

[36] Espeland & Sauder, supra note 24.

[37] Should Diversity, supra note 33.

[38] See supra notes 10-12 and accompanying text. See also Gold, supra note 29 (quoting Grutter, which noted that the Court would “defer” to the University of Michigan “Law School’s educational judgment that diversity is essential to its educational mission,” particularly since the school’s “assessment that diversity will, in fact, yield educational benefits is substantiated . . . .”).

[39] James R. Silkenat, President’s Message: Major Push for Diversity, ABA J., March 2014, at 8. Mr. Silkenat also noted that “[a]t the law firm partner level, only 7 percent are minorities and just 2 percent are minority women.” Id.

Suggested citation: Tony Varona, Diversity and Disgrace – How the U.S. News Law School Rankings Hurt Everyone, N.Y.U. Rev. L. & Soc. Change Blog (April 3, 2014), http://socialchangenyu.com/2014/04/03/diversity-and-disgrace-how-the-u-s-news-law-school-rankings-hurt-everyone.

The (In)visibility of Motherhood in Family Court Proceedings

Melissa L. Breger


Issues of bias in Family Court in the context of race and overrepresentation of people of poverty have been extensively explored in academic literature. There is arguably a parallel overrepresentation of women, and particularly mothers, in our Family Courts. I question whether the Family Court would function as it currently does without mothers as its core litigants. Specifically, I delve into the implicit gender biases inherent in societal expectations of mothers as all-knowing, ever-nurturing, and ever-protective of their children––expectations that often ignore the complexities and nuances of motherhood. To illustrate my thesis, I focus on a case that I was involved in over a decade ago, which was subsequently featured in Professor Dorothy Roberts’ book: Shattered Bonds: The Color of the Child Welfare System. Through this narrative, the Article raises critical questions regarding the influence of implicit gender bias and the construct of motherhood in Family Court proceedings. As a result of its predominance, has the gender of Family Court litigants become virtually invisible? How might we identify, confront, and address this (in)visibility in our family justice system?

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The History of Voter Suppression and VRA’s Section 5 Today

by Sean McMahon

The 2012 election cycle was rife with a new crop of voter suppression measures, designed to reduce the access of minorities, the poor, and limited-English speaking citizens to the polls. Despite these well-documented abuses of the electoral process, advocates have emerged arguing that disenfranchisement of minorities is no longer a major concern and that Section 5 of the Voting Rights Act – the federal government’s bulwark against disenfranchisement – is unconstitutional.

The Supreme Court will decide the fate of Section 5 in Shelby County v. Holder, a case brought by a district in Alabama asserting that Section 5’s requirements violate federalism and equal protection. Section 5 requires jurisdictions with a history of racial discrimination to obtain federal preclearance before changing any voting procedure or regulation. This places the burden on state and local governments that fall under the coverage of Section 5 to justify their new electoral procedures as nondiscriminatory.

In considering whether Section 5 is still necessary today, it is worth reflecting on why such a far-reaching measure was adopted originally. Civil rights leaders understood that limiting access to the polls – even with facially neutral laws – could have a grossly disproportionate impact on minority voters and effectively prevented their participation in the political process. Section 5 is designed to prevent such laws from going into effect and is a major reason the Voting Rights Act has been called “the most effective civil rights law ever enacted.”

Disenfranchisement from the Civil War to the Civil Rights Movement

Following the passage of the Fifteenth Amendment in 1870, all men “regardless of of race, color, or previous condition of servitude” were formally ensured the right to vote. Yet for nearly a century, people of color were disenfranchised via literacy tests, poll taxes, and grandfather clauses. Since generations of slavery and racial inequality rendered people of color far less wealthy and educated than whites, these facially neutral laws effectively disenfranchised many African Americans.

After the formation of the NAACP in 1909, African American leaders pursued a strategy to challenge restrictive voting laws. Despite notable victories in cases such as Guinn v. United States, 238 U.S. 347 (1915) (striking down a grandfather clause in Oklahoma and Maryland) and Smith v. Allwright, 321 U.S. 649 (1944) (striking down whites-only Democratic primaries), racist voter suppression was too pervasive to be defeated by individual lawsuits. Furthermore, it was sometimes difficult to prove the government enacted these laws with discriminatory intent, which was necessary to establish an equal protection violation. Compounding the NAACP’s struggle was the fact that a single case could take years to win.

As the Civil Rights Movement gained ground throughout the 1950s and early 1960s, white supremacist tactics evolved and became subtler. Some jurisdictions implemented new facially neutral voting tests purporting to measure understanding of the issues and the character of the voters. Due to longstanding systemic inequality in education and subjective evaluation of good character, these tests effectively barred African Americans from the polls. Incumbent white politicians further disempowered African American voters by gerrymandering voting districts to weaken the black vote and prevent the formation of majority-black districts. In order to halt this deliberate avoidance of the requirements of the Fifteenth Amendment, Congress enacted Section 5 of the Voting Rights Act to force state and local governments across the South to justify any new electoral rules and procedures.

Photograph of President Lyndon Johnson Signs t...

President Lyndon Johnson signs the Voting Rights Act as Martin Luther King, Jr. and other civil rights leaders look on. (Photo credit: The U.S. National Archives)

The Voting Rights Act to Today: Why Section 5 Is Still Needed to Protect Access to the Political Process

Congress renewed the Voting Rights Act in 1982 and again in 2006; both times, it noted the continued importance of Section 5 despite advancements in racial justice. Jurisdictions under Section 5 persist in proposing regulations that restrict minorities’ access to the polls. The number of Section 5 objections (regulations flagged by the Department of Justice as discriminatory) has declined since the 1960s, but the provision has not fallen into disuse. The Lawyers’ Committee’s National Commission on the Voting Rights Act found that between 1965 and 2004, over half of all objections were made after 1982. Surveying data from 1982 to 2004, the Commission found that out of 800 DOJ requests for more information from state and local governments regarding new rule proposals, 205 rule proposals were withdrawn. Columbia law professor Nathaniel Persily notes that this “gives a sense of how many dogs did not bark as a result of the threat of denial of preclearance.”

In this past election cycle, conservative politicians sought new voting rules in order to reduce Democratic voter turnout. Section 5 has been the strongest defense against voter suppression tactics. In the past year, Section 5 prevented the reduction of early-voting hours in some districts in Florida and blocked a voter ID law in Texas. The court that struck down the Texas ID law noted that the required documentation would be enormously burdensome to obtain, and would disproportionately affect minorities and the poor. Recently, federal judges used Section 5 to block a Texas redistricting plan that would have divided a population of African American and Latino voters into new, white-majority districts. Judge Thomas B. Griffith described it as a “deliberate, race-conscious method to manipulate not simply the Democratic vote but, more specifically, the Hispanic vote.”

Jurisdictions under Section 5’s review have complained that it is burdensome and unfair since other jurisdictions do not need to submit to preclearance. However, it is possible to be released from Section 5 preclearance – a jurisdiction simply needs to refrain from proposing a discriminatory electoral law for ten years. Over seventy jurisdictions have successfully done so,and ten jurisdictions in the state of New Hampshire are currently in the process of being released from Section 5 review, which would make it the first entire state to leave Section 5 coverage – though a conservative advocacy group is attempting to block the release as part of a broader strategy to strike down Section 5 as unconstitutional.

Society has changed for the better in the past half-century, and the turnout of minority voters is on the rise. But the amelioration of a problem is not its eradication. Until full and equal participation for people of color in the political process can truly be guaranteed, Section 5 is necessary to enforce their political and civil rights.

Sean is a 2L at NYU and a Staff Editor on the Review of Law & Social Change.