Columbia Journal of Race and Law

Sabotaging Scrutiny: SFFA’s Racialized Distortion of Suspect Classification

Clay Morris — Tue, 12 Aug 2025 00:00:00 +0000

This Note explores how the Supreme Court’s opinion in Students for Fair Admissions (SFFA) has changed the functional effect of strict scrutiny in affirmative action challenges, subsequently warped suspect classification under the Fourteenth Amendment. It argues that the Court’s strict scrutiny analysis in SFFA, which ignores the dynamic realities of race in America and gives doctrinal credence to meritocracy in higher education, handicaps non-white litigants’ access to the Fourteenth Amendment’s Equal Protection Clause while widening the availability of the Fourteenth Amendment suspect for white litigants. By parsing whiteness’ evolution in race related jurisprudence before and after suspect classification became canonical doctrinally, dissecting the SFFA opinion’s approach to narrow tailoring and compelling interests, and presenting the lower courts’ utilization of post-SFFA strict scrutiny’s edit in employment cases, the Note highlights the court’s strategy in reconstructing strict scrutiny and offers the Thirteenth Amendment as a solution to the foreclosure of the Fourteenth Amendment for non-white litigants post-SFFA.

Municipium, Absens Parens: Rectifying Monell and Parens Patriae for Institutional Liability

Mahak Kumari — Tue, 12 Aug 2025 00:00:00 +0000

The impact of the carceral system and policing on youth led to the development of a separate juvenile system recognizing the special needs of young people. However, policing-based harm remains at the forefront of legal scholarship not just for its continued prevalence in the country as a whole, but also because of the disproportionate impact on Black and Brown people. This impact is compounded when the targets of police violence are youth, who are subjected to extreme force by police at higher rates in comparison to adults and their white youth counterparts. Legal protections that purport to protect citizens’ rights inhibit victims from obtaining any meaningful recourse or compensation after experiencing the most heinous forms of police misconduct or violence. Individual police officers are protected by qualified immunity, and institutional liability is an illusory concept due to the flawed and extremely high bars created by the Monell framework. States have obligations to protect children under the parens patriae doctrine but are shielded from liability both because policing falls under municipal control and because the Eleventh Amendment provides states with sovereign immunity. Municipalities responsible for police conduct and discipline lack a similar common law obligation to their vulnerable citizens. This Note explores how the existing Monell and parens patriae doctrines can be reformed and adapted to ensure that institutions not only have a duty to protect youth from policing-based harm, but also that this duty is enforced with mechanisms for finding liability. Only with a meaningful pathway to liability for harm caused to youth at the hands of police can any real police accountability or long-term reform in policing be expected and racial disparities in this harm be addressed.

Deconstructing the Gang Menace: Gang Policing and Police “Expert” Testimony in New York City

T.J. Braxton — Thu, 14 Aug 2025 00:00:00 +0000

In New York City, the gang member is feared, vilified, and romanticized. The New York City Police Department (NYPD), the media, elected officials, and courts have all played a part in casting street gang members as some of the most dangerous people in society. But who exactly are these so-called gangsters? The answer is highly racialized: An overwhelming ninety-seven percent of the NYPD’s Criminal Group Database (CGD) are Black and Latino men. Although this disparity is harmful in itself, it represents only a part of the problem these men face. Alleged gang members who are arrested and wish to contest their criminality at trial are faced with an insidious prosecutorial practice—the admission of NYPD officers as gang “experts.” These experts infect the courtroom with racial bias, while judges are exceedingly deferential to them despite their problematic methods of policing and surveillance. Their testimony is both unfairly prejudicial and unreliable, as it feeds off implicit biases and couples gang member stigmatization with the overbroad and extremely suspect evidence encapsulated within the CGD. In exploring this issue, this Note will proceed in three Parts. Part I provides an overview of gang policing and prosecution in New York City, highlighting changes in policing tactics over time and the current law around police gang expert testimony. Part II outlines the racial implications of police gang expert testimony, focusing on prejudice and unreliability. Part III advocates for the admission of nonpolice gang experts to counteract these negative effects of police testimony.

Jim Crow North and Fair Housing Enforcement

Charles S. Bullock, III, Charles M. Lamb — Tue, 12 Aug 2025 00:00:00 +0000

This article investigates how federal, state, and local government agencies enforce the federal Fair Housing Act of 1968 (also known as Title VIII of the Civil Rights Act of 1968) in Northeastern states, which are referred to here as the Jim Crow North. Focusing on data obtained from the U.S. Department of Housing and Urban Development (HUD) under the Freedom of Information Act (FOIA), this study measures the extent to which the thirteen Northeastern states—from Maine to Virginia—decided Fair Housing Act complaints in favor of Black and Latinx Americans from 1989 to 2010.

Part I presents a historical snapshot of fair housing law and policy in the Jim Crow North. Part II examines the federal legal response to residential discrimination and segregation nationwide. Part III explains the theory and methodology for calculating favorable outcomes made by federal, state, and local governments in Northeastern Title VIII complaints. Part IV provides the results of the favorable outcome analysis for Black and Latinx Americans. Part V spotlights New York and New Jersey to better understand their low rates of favorable outcomes in Fair Housing Act complaints. The conclusion discusses the study’s findings and suggests some explanations.

The analysis leads to three key takeaways. First, it reveals considerable variations in favorable outcomes across the Jim Crow North, even between adjacent states with similar demographic traits. Such outcome variations suggest that governmental jurisdictions’ support for Title VIII complainants can differ noticeably and that the region, state, or locality in which a person files a Fair Housing Act complaint makes a difference. Second, Black complainants are most likely to win their Title VIII claims in federal Region I (Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont). In contrast, Latinx people are most likely to obtain favorable outcomes in federal Region III (Delaware, Maryland, Pennsylvania, Virginia, and West Virginia). Third, Black and Latinx complainants are least likely to win Title VIII claims in federal Region II, which consists of New York and New Jersey.

Because of this third finding, the Article then explores aspects of law, race relations, and public policy in New York and New Jersey to help explain their low rates of favorable outcomes in Fair Housing Act complaints. Four facts about New York and New Jersey are considered: their comparatively high levels of (1) residential, (2) school, and (3) economic segregation, as well as (4) their lack of local jurisdictions participating in HUD’s Fair Housing Assistance Program (FHAP). Our analysis assumes that if subnational governmental decisions primarily represent the demands of people and groups with the most influence at the state and local levels, and if residential, educational, and economic segregation are the preference of many people and groups in New York and New Jersey, civil rights agencies in these states will likely respond by deciding a relatively low percentage of Fair Housing Act complaints in favor of Black and Latinx complainants. Because of data limitations, the analysis cannot directly measure the individual effects of residential, educational, or economic segregation on the decisions of FHAP agencies, so it cannot prove that one or more of these four factors cause Region II’s low favorability rates. Nonetheless, the results suggest that such a causal link is plausible.

Given this conclusion, this Article proposes four recommendations for Region II. First, working closely with HUD, governors, mayors, and business leaders, New York and New Jersey should develop new incentive programs to dramatically increase the number of certified local FHAP agencies. Second, Congress and the current presidential administration should make certain that funds and other resources are available to new local FHAP agencies in New York and New Jersey to enforce the Fair Housing Act effectively. Third, HUD should play an aggressive role in helping all local jurisdictions in New York and New Jersey participate in FHAP, including the drafting of new local fair housing laws that are substantially equivalent to Title VIII. Finally, Congress and HUD should hold all FHAP agencies to a higher standard of enforcement performance in race and national origin Title VIII cases generally. Unfortunately, in light of the re-election of President Donald Trump in 2024, these recommendations must await a future administration and a Congress far more sympathetic toward fair housing rights. There is a reasonable chance that fair housing law and policy in the United States will experience turmoil throughout the remainder of the second Trump administration, and perhaps beyond. Depending on what occurs over the next few years, some of the progress made in equal housing opportunity over the past seven decades is in jeopardy.

Overreporting and Investigation in the New York City Child Welfare System: A Child’s Perspective

Daniella Rohr, Melissa Friedman — Wed, 09 Jul 2025 00:00:00 +0000

Child welfare agencies are tasked with protecting children, and in so doing, with investigating allegations of abuse and neglect. If done properly, such investigations can promote child safety. But the data suggests that New York City’s Administration for Children’s Services (“ACS”) subjects far more children and families to intrusive investigations than is necessary. Nearly 100,000 children in New York City are investigated by the ACS each year, and ACS only seeks entry or body-search warrants in 0.4% of investigations. Moreover, the vast majority of these investigations are executed in homes where ACS ultimately decides that it is unlikely any abuse or neglect occurred. Such investigations come at a high cost to children: they are aggressive, traumatic, and coercive.

This piece argues that ACS’ investigative apparatus not only harms more children than it protects, but the tactics it employs violate the state and federal constitutional rights of children and their families. Using ACS’ own statistics, this piece demonstrates that New York unnecessarily investigates far too many, primarily Black and brown families; examines the harmful, and often unlawful reporting and investigation process in New York City; and enumerates reforms critical to protect both the safety and privacy rights of New York City’s children and families.

Lest We Forget: Covid-19, the Defense Production Act, and Executive Order 13,917

N. Brock Enger — Fri, 18 Jul 2025 00:00:00 +0000

During his 2024 presidential campaign, Donald Trump claimed that the ongoing conflicts in Ukraine and Gaza would not have occurred had he been reelected in 2020. However, during his first presidency, President Trump faced another significant adversary—the COVID-19 pandemic caused by Severe Acute Respiratory Syndrome Coronavirus 2 (SARS-CoV-2)—and many contend that Trump’s inadequate response to this viral enemy contributed significantly to his 2020 election loss. Central to the pandemic response was the Defense Production Act, a Cold War–era statute granting broad emergency powers.

This Article argues that the Trump administration fundamentally misunderstood the Defense Production Act, initially by failing to invoke it promptly to secure critical medical supplies, and later by misapplying it via Executive Order 13,917 to compel meat-processing operations in a manner that ultimately prioritized corporate profits over worker safety. With the notable exception of Operation Warp Speed and a few less noteworthy instances, the Trump administration’s use of the Defense Production Act largely failed to safeguard the nation’s public health and harmed vulnerable workers in the meatpacking industry.

Compounding these failures, the meatpacking industry, USDA, and OSHA also largely failed to meaningfully protect these workers, many of whom are members of communities suffering the impacts of marginalization. Meat-processing workers labored in the shadows of public concern under conditions that paralleled the industry’s treatment of animals—both denied meaningful protection, both ultimately treated as disposable. In either case, the underlying assumption seems clear: some lives matter less than money.

This Article ultimately serves as a resource for policymakers and attorneys, highlighting how the Defense Production Act, when judiciously deployed, can effectively safeguard public health, protect worker rights, and affirm the nation’s commitment to valuing human life.

Smuggling Conspiracies

Mimi Whittaker — Mon, 21 Jul 2025 00:00:00 +0000

Amid growing political polarization, human trafficking remains one of the few social causes that retains universal bipartisan support. Nowhere was this clearer than Florida in the spring of 2023, when Governor Ron DeSantis passed widely popular human trafficking reforms. Despite a legislative session marked by national controversy over the state’s extreme antiimmigrant proposals that year, DeSantis’ rhetoric on human trafficking specifically called for the protection of immigrant victims. The story behind the 2023 reforms reveals not a benevolent change of heart or momentary hypocrisy, but an ominous call towards racist tropes plaguing human trafficking and immigration reform for centuries. This Article conducts an extensive legislative history and argues that DeSantis’ legislative efforts tap into theories popularized by QAnon, a far-right decentralized web of conspiracies. In doing so, Florida echoes historical racial narratives and utilizes dog whistles to further justify an expansion of its immigration enforcement powers. The strategy behind Florida’s efforts to generate anti-immigrant hysteria has extended to other states and is now being carried out on a national stage under the new Trump administration. This Article contends that advocates must meet this growing threat by crafting multidisciplinary counter-narratives that directly confront the role of race and reject the respectability politics dominating mainstream trafficking discourse.

When the Executive Accidentally Supported the Movement: Participatory Democracy and the Rise of the Non-Profit Industrial Complex

Michael Haber — Tue, 29 Jul 2025 00:00:00 +0000

The critique of the non-profit industrial complex has spread from movement groups and movement-aligned scholars in fields like race, gender, and ethnic studies to influence scholars in other fields, including legal scholars. Despite this growing influence, studies of the non-profit industrial complex devote almost no attention to the importance of the Community Action Program (“CAP”), part of the Economic Opportunity Act of 1964, to its development. When CAP was created, the Johnson Administration sought to capitalize on the rhetoric of “participatory democracy” at a moment when that phrase had great cultural cachet but a deeply ambiguous meaning. The implementation of CAP exposed a rift between the Administration’s expectations of limited participation and the hopes of activists in many low-income communities of color, who had been inspired by a collectivist approach to participatory democracy, one that had grown out of John Dewey, the Christian pacifist movement, and the Highlander Folk School to be embraced by the civil rights movement of the early 1960s. As low-income communities of color began to utilize CAP as a tool to support grassroots efforts for social change, the Johnson Administration and Congress developed new restrictions on CAP to rein in what it accidentally unleashed without suffering the political costs of repealing one of the central components of the War on Poverty just months after it had launched. The tactics it developed—stripping funding, influencing board selection, new emphases on quantitative outcomes, reporting, and eligibility for services, and splitting funding for community organizing from funding for service provision—would become core tactics of the non-profit industrial complex.