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Professor William Simon will present his paper on “Elaborating Civil Rights Experimentally: Examples from Juvenile Justice and Education”
Second generation civil rights claims challenge conduct that disproportionately burdens historically subordinated groups but that often is not explicitly or obviously intentionally discriminatory. Doctrine has struggled to define both the defendants’ duties and the plaintiffs’ burden of proof with respect to such conduct. An important approach requires or encourages proactive efforts by defendants to identify and mitigate disparate impacts. This approach shifts focus from questions of motive to questions of feasibility. The more ambitious versions attempt to define and implement equality norms iteratively and experimentally. Doctrinal issues that seem intensely difficult when treated analytically may become more tractable when elaborated recursively in the course of efforts to implement provisional understandings. I will illustrate this claim with discussions of two examples – efforts to reduce racial disparities in juvenile detention in Santa Cruz, California, and efforts to reduce a range of group disparities in student performance in New York City.